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Security Challenges Volume 7 Number 4 (Summer 2011)



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  • 1. Security ChallengesVolume 7 Number 4 (Summer 2011)
  • 2. Security Challenges ISSN 1833 – 1459EDITORS: 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.auEDITORIAL BOARD:Robert Ayson Ross Babbage Sam BatemanVictoria University The Kokoda Foundation University of WollongongWellington, New Zealand Canberra, Australia Wollongong, AustraliaLeszek Buszynski Eliot Cohen Ralph CossaInternational University of John Hopkins University, Pacific Forum CSISJapan, Tokyo, Japan Washington, DC, USA Honolulu, Hawaii, USABates Gill Gerald Hensley Rod LyonStockholm International Former Secretary of Defence ASPIPeace Research Institute, New Zealand Canberra, AustraliaStockholm, SwedenAndrew Mack Rizal Sukma Ramesh ThakurSimon Fraser University Centre for Strategic and Asia-Pacific College ofVancouver, Canada International Studies Diplomacy, Australian Jakarta, Indonesia National University Canberra, AustraliaWilliam Tow Akio WatanabeDepartment of International Research Institute for PeaceRelations, Australian National and SecurityUniversity Tokyo, JapanCanberra, AustraliaProject Management and Cover: Qote Canberra (02) 6162 1258Published 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 ofprivate study, research, criticism or review as permitted by the Copyright Act, no part of thispublication may be reproduced, stored, transmitted or disseminated in any form or by anymeans without prior written permission. Inquiries should be made to the publisher.All articles published in Security Challenges are fully peer-reviewed. Any opinions and viewsexpressed are those of the authors, and do not necessarily reflect the opinion of the KokodaFoundation or the editors of Security Challenges.
  • 3. RESPONSIBILITY TO PROTECT AND PROTECTION OF CIVILIANSVesselin PopovskiThe Concepts of Responsibility to Protect and Protection of Civilians:‘Sisters, but not Twins’ ......................................................................................... 1Ramesh ThakurLibya and the Responsibility to Protect:Between Opportunistic Humanitarianism and Value-Free Pragmatism................ 13Michael G. Smith, Jeni Whalan and Peter ThomsonThe Protection of Civilians in UN Peacekeeping Operations:Recent Developments .......................................................................................... 27Hugh Breakey and Angus FrancisPoints of Convergence and Divergence:Normative, Institutional and Operational Relationships between R2P and PoC... 39Charles SampfordA Feuerbachian Inversion:From Sovereign Rights and Subjects Duties to Citizen Rights and State Duties 51 MYANMARJohn BlaxlandMyanmar: Time for Australian Defence Cooperation .......................................... 61Christopher B. RobertsChanging Myanmar:International Diplomacy and the Futility of Isolation ............................................. 77 ARTICLEVandra Harris and Aaron P. JacksonLearning Each Other’s Language:Doctrine and AFP-ADF Interoperability ................................................................ 103
  • 4. Editors’ NoteWelcome to the Summer 2011 edition of Security Challenges. The recentLibya intervention has put the future of the Responsibility to Protect (R2P)back on the international agenda. In this edition, Ramesh Thakur and otherprominent authors discuss this concept and its practical implications fromdifferent angles. Moreover, Myanmar seems to have embarked on aprocess of significant political change in recent months. In this context, JohnBlaxland writes about the potential for defence engagement betweenAustralia and Myanmar, while Christopher Roberts argues for endinginternational sanctions against the regime. Finally, the edition features anarticle by Aaron Jackson and Vandra Harris on the crucial issue of how topromote interoperability between the Australian Federal Police (AFP) andthe 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. The Concepts of Responsibility to Protect and Protection of Civilians: ‘Sisters, but not Twins’ Vesselin PopovskiThis article examines the differences and commonalities between the concepts ‘Protection ofCivilians’ (PoC) and ‘Responsibility to Protect’ (R2P) in terms of their origins, evolution andapplicability to various situations. Such comparative analysis is necessary as to avoid confusionand 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 examplebeing the international responses to the deadly threats to civilians in Libya in February-March2011 and the measures imposed by the UN Security Council Resolutions 1970 and 1973. Thearticle also assesses whether the responses to the crisis in Libya represent a triumph or afailure of the ’sister’ concepts.With the failures of the international community and warring parties to protectcivilians in major armed conflicts in the last two decades—including Bosnia-Herzegovina, Liberia, Somalia, Rwanda, Burundi, Timor Leste, DemocraticRepublic of Congo, Sierra Leone, Kosovo, Darfur and elsewhere—tworelated, but distinct concepts have risen on the international agenda: theduty for Protection of Civilians (PoC) in armed conflict and the Responsibilityto Protect (R2P) people from mass atrocities. There is a close relationshipbetween R2P and PoC. They share the same concern—civilian sufferingfrom mass human-induced violence—and both have underpinnedinternational policy and calls for interventions. But there are also importantdifferences in their scope and the situations and ways in which they can beapplied. One can argue that they are ‘sister’ concepts: it is important to keepin mind their differences, as to avoid confusion and gaps in responsibilities;but also it is important to exploit the commonalities between the two as tobring mutual reinforcement and co-operation among actors. The twoconcepts have co-existed for more than a decade, but there has hardly beenany in-depth comparative analysis nor a clear differentiation so far, apart 1from a short anonymous brief written for the Global Centre for R2P. TheUN Security Council Resolutions 1970 and 1973 on Libya utilised bothconcepts and have provided us with an opportunity to undertake a moredetailed comparison.1 ‘The Relationship between the Responsibility to Protect and the Protection of Civilians inArmed 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].Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 1-12. -1-
  • 6. Vesselin PopovskiProtection of CiviliansThe origins of PoC in armed conflict can be traced in the history of thedevelopment of the norms of war, prescribed in early religious texts and 2developed by many scholars of politics and ethics over many centuries.The need to protect the life of civilians and other non-combatants in armedconflicts has been gradually accepted in international humanitarian law,universalised and codified in the 1949 Fourth Geneva Convention. TheFourth Geneva Convention—‘Relative to the Protection of Civilian Persons in 3Time of War’ —coined the term PoC, and grounded its international legalestablishment. PoC, therefore, emerged as relevant to situations of armedconflict only—if there is no armed conflict, where civilians are defined as theopposite of combatants, PoC transforms itself into protection of citizens (thatcan confusingly also be abbreviated as PoC) in times of peace, which iscovered by the well-developed and comprehensive body of human rights.PoC is more limited than the peace-time protection of citizens and morelimited than the protection of all non-combatants in times of war—it wouldnot, 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 agencieswith protection mandates, such as OCHA (Office for the Coordination ofHumanitarian Affairs), UNHCR (United Nations High Commissioner forRefugees), and some humanitarian NGOs interpret the concept of PoC asone of their core activities and apply it in a broader sense, covering not onlythe period of armed conflict, but also protecting civilians in post-conflictsituations, too. PoC has been under regular consideration by the UNSecurity Council since 1999, when it received the first report of the 4Secretary-General on the subject.Responsibility to ProtectIn parallel with the increased attention to PoC, another concept, R2P, hasemerged out of a similar concern—the failure to protect people from 5systematic mass atrocities. In 1996, the then Representative of the UN2 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, 12August 1949’, International Humanitarian Law—Treaties & Documents, International Committeeof the Red Cross, 2005, <http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument> [AccessedNovember 2011].4 S/1999/957, 8 September 1999. For a full list of all UN Security Council resolutions andSecretary General Reports on PoC, see <http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.4012213/k.481A/Protection_of_Civilians_in_Armed_ConflictbrUN_Documents.htm> [Accessed 19 November 2011].5 Ramesh Thakur, The Responsibility to Protect: Norms, Laws and the Use of Force inInternational 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).-2-
  • 7. The Concepts of Responsibility to Protect and Protection of CiviliansSecretary-General on Internally Displaced Persons, Francis Deng, with histeam at Brookings published the seminal work Sovereignty as 6Responsibility, arguing that sovereignty can no longer be seen as a licencefor states to ignore people, but rather as states’ responsibility for thehumanitarian consequences of conflict. After yet another failure to protectcivilian population—Kosovo Albanians from the Milosevic regime’srepressions in 1998-99—and the controversial un-authorised militaryintervention by NATO, an International Commission on Intervention andState Sovereignty (ICISS) was formed from the initiative and sponsorship of 7the Canadian Government, that coined the phrase R2P in its 2001 Report.R2P has become a worldwide shared concept, when in September 2005almost 150 world leaders—the largest ever gathering in history of Heads of 8States—adopted the document ‘World Summit Outcome’ at the opening of ththe UN General Assembly 60 Session in New York, spelling out the newlyemerging norm in paragraphs 138-140 of the document. The UN GeneralAssembly continued debating R2P in several of its sessions as is evident 9from the Reports of the UN Secretary-General in 2009, 2010 and 2011,always enjoying a huge support, and with very few countries, still reluctant toaccept it.R2P thus applies to serious situations of mass atrocities, but it does notcover all violations of human rights, nor suffering from natural disasters—ashorrific as these might be. One test of the R2P limitations was the 2008Cyclone Nargis in Myanmar, when some of the initial founders of theconcept—Bernard Kouchner and Lloyd Axworthy—attempted to speak aboutMyanmar’s reckless ignorance of the human suffering as a failure to exercise 10R2P. This could have been possible under the original scope of the ICISS2001 Report, but not under what was agreed upon by the UN GeneralAssembly in the 2005 World Summit Outcome document. One may arguethat if the Myanmar regime’s deliberate impediments to humanitarianassistance had continued and the misery and starvation of people couldamount to a policy of extermination, a crime against humanity, then suchdeliberate inflicting of additional human suffering (not the victimisation fromthe natural disaster per se) could have triggered the applicability of R2P.However, if evidence does not support such a finding of a crime against6 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 toProtect, 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, September2005, <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: EarlyWarning, Assessment, and the Responsibility to Protect; 2011 UN SG Report: The Role ofRegional and Sub-regional arrangements in Implementing the Responsibility to Protect.10 For analysis, see ‘Cyclone Nargis and the Responsibility to Protect’, Myanmar/Burma BriefingNo. 2 by the Asia-Pacific Centre for the Responsibility to Protect,<http://www.r2pasiapacific.org/documents/Burma_Brief2.pdf> [Accessed 3 December 2011]. -3-
  • 8. Vesselin Popovskihumanity, an R2P framework cannot be activated, and in such a case othermechanisms—human rights machinery, humanitarian assistance—could beapplied instead.In the case of R2P, the threshold between what falls in and what falls out ofthe concept lies in the determination of the four atrocity crimes andaccordingly, it should not be equated to the general duty to protect citizensfrom various disasters, nor should its mechanisms be equated with generalconflict prevention or conflict resolution; these can be regarded as a muchlarger and historically more developed agenda. Although prevention ofconflicts in general can be a useful contribution in avoiding the occurrence ofpotential mass atrocities during these conflicts, the focus of the R2Ppreventive mechanisms should be specified to address particular atrocitycrimes. R2P, although narrowed in scope, should have a deep resource:from the domestic, bilateral, regional and international mechanisms, starting 11from power-sharing agreements (Kenya) to the use of military force as alast resort (Libya) can form its arsenal.Differentiating R2P and PoCThe two concepts have a similar origin, they share the same initialhumanitarian impulse, but they have different scope and applicability. Not allwar crimes would fall under PoC, because some of them are not committedagainst civilians, for example, mistreatment of prisoners of war. But all warcrimes would fall under R2P, as they represent one of the four atrocitycrimes. War crimes against civilians, as well as crimes against humanitycommitted during armed conflict, would fall under both R2P and PoC and inthese situations the two circles of R2P and PoC would overlap.A situation that would fall under PoC, but not R2P, for example, would be theprotection of civilians threatened from escalating armed conflict, if massatrocities are not planned and committed as part of such armed conflict. Asituation that would fall under R2P, but not PoC, would be, for example,ethnic cleansing or crimes against humanity without nexus to an armedconflict. On one hand, PoC is narrower than R2P—if all war crimes triggerR2P, not all war crimes would fall under PoC—some are not committedagainst civilians. On the other hand, R2P is narrower than PoC; it would notapply in every armed conflict, but only in those in which mass atrocities havebeen systematically planned and committed.Interestingly, a situation that originally was not an armed conflict, canescalate into an armed conflict and engage the PoC. The first UN Security11 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].-4-
  • 9. The Concepts of Responsibility to Protect and Protection of CiviliansCouncil Resolution 1970 (26 February 2011) on Libya describes atrocitiesagainst peaceful demonstrators—not yet an armed conflict—and activatesR2P (crimes against humanity), but is technically not yet a PoC situation.The second UN Security Council Resolution 1973 (17 March 2011) alreadydescribes 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 inResolution 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, toprotect civilians. If R2P is a matter for states only, PoC can be an obligationfor non-state actors.The comparison between the legal sources of R2P and PoC can beillustrated 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 UN Security Council Resolutions: thematic (Res. Additional Protocols (war crimes) 1894) and country-specific mandates to PoC 1998 Rome Statute for ICC (crimes against Refugee Laws (1951 Convention, 2009 African humanity, forceful deportation) 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 minoritiesTable 1 (though not exhaustive), demonstrates well both similarities anddifferences: if all four Geneva Conventions are relevant to R2P, only the last(fourth) Geneva Convention is relevant to PoC. The whole volume of humanrights laws would be too large for both R2P and PoC, and only parts of it willbe relevant; for example, the non-discrimination of minorities would berelevant to R2P, if minorities rights are gradually abused, this can escalateinto ethnic cleansing or genocidal policies. In another example, children’srights may be relevant to PoC in the case of a serious impact of armedconflicts on children. The legal sources for PoC would also include refugeelaws, some disarmament treaties, and prohibiting certain weapons likechemical weapons, landmines or cluster munitions that cause excessivecivilian suffering. -5-
  • 10. Vesselin PopovskiTable 2 (being, as Table 1, also not exhaustive) indicates the similarities anddifferences between R2P and PoC in terms of the actors engaged in thevarious types of protection: Table 2: Comparison of Actors Engaged with R2P and PoC R2P Actors PoC Actors UN Secretary General Special Advisors Armed Forces Peace Operations, UN Security Council, Police, law enforcement institutions (Pillar 1) Department of Peace-Keeping Operations (DPKO) Regional actors: African Union, European UN Agencies: Union, League of Arab States, others UNHCR, OCHA DPKO, UNHCR, High-Commissioner for Human Rights, Peacebuilding Commission, ICRCUNICEF, Special Rapporteur on Children; Aid donors, capacity builders, NGOs (Pillar 2) Mediators, fact-finding missions, Secretary-General (non-coercive measures); UN Security Humanitarian NGOs Council (coercive measures, Pillar 3) International Criminal TribunalsSome actors would engage in both R2P and PoC, but others will havespecific mandate in just one type of protection. Although R2P may have theambition to engage almost everyone, illustrated in the formula ‘narrow, butdeep response’, some actors—PKO, UNHCR, ICRC, OCHA—that are verywilling to apply PoC, are reluctant to engage with R2P, considering it apotential jeopardy for their mandates.R2P and PoC concepts are ‘sisters, but not twins.’ They are close inrelationship and share similar humanitarian concerns; yet, their specificity isimportant and should not be confused. Agencies that acknowledge andengage in PoC have been reluctant to attach their mandate to R2P, seeingthe concept as too interventionist. In fact, one needs to be reminded that 12R2P contains very little interventionism—even within the Pillar Threemachinery, military intervention forms only a last option. Adding that R2Phas a very large preventative agenda, there is not much to worry about; R2Pcame into existence as a counter-point to intervention, it is about helpingpotential victims of atrocities. Although technically not a firm internationallegal obligation, it has reached global acceptance and every GeneralAssembly debate proves this. R2P, as the ‘younger sister’, does notundermine action, rather it catalyses it; it can mobilise political will and serve12 The 2009 UN SG Report: ‘Implementing the Responsibility to Protect’ divided R2P into threepillars: first pillar—states domestic responsibility to protect; second pillar—states andinternational organizations assist other states to protect; and third pillar—when states manifestlyfail to protect, the international community through the UN Security Council adopt timely anddecisive measures, including coercion, under Chapter VII of the UN Charter.-6-
  • 11. The Concepts of Responsibility to Protect and Protection of Civiliansthe PoC agenda well. The ‘sister’ concepts, R2P and PoC, can reinforceeach other, but also can compete with each other.R2P and PoC: Libya 2011One may argue that R2P and PoC merge closer when it comes to verycritical situations such as in February-March 2011 in Libya, where R2Prapidly developed from Pillar One to the whole scope of Pillar Three, ‘timelyand decisive response’, when Libya manifestly failed to protect. Thecategorisation of the situation as civil war brought PoC language intoResolution 1973 and it became a textbook resolution for a parallelapplication of both PoC and R2P.Libya 2011 is not the first time when R2P was referred to by the UN SecurityCouncil—previous Security Council resolutions on Sudan (Darfur) and Côte 13d’Ivoire also used R2P language. Also, Libya is not the first time when theSecurity Council has authorised use of force to protect civilians—thebombing of Bosnian Serb military targets around Sarajevo in 1995 wasaimed mostly to protect the Bosnian Muslim civilian population and wasunder the solid authorisation by the Security Council. I would even questionthat Resolution 1973 is the first time the Security Council has authorised theuse 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 SecurityCouncil Resolution 794 (1992) in Somalia and Resolution 929 (1994) in 14Rwanda. Let us not forget Security Council Resolution 688 (1991) in theaftermath of the first Gulf War that established a no-fly zone to protect theKurdish minority in Northern Iraq, certainly against the wishes of afunctioning 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 thelanguage ‘all necessary means’, the no-fly zone in Northern Iraq was not apaper-tiger—it was supported with limited air strikes several times in the1990s, with the intervening states referring to Resolution 688 as ajustification for their military actions. Resolution 688 was adopted when theR2P did not exist yet as a defined concept, and when PoC was simply alegal requirement from the Fourth Geneva Convention, therefore one canregard the two Security Council Resolutions 1970 and 1973 on Libya as thefirst real test of utilising the two ‘sister’ concepts, R2P and PoC, to stop apotential mass slaughter of a civilian population.13 See for example text from Resolution 1962 (2010) on Côte d’Ivoire: “recalling that the Ivorianleaders bear primary responsibility for ensuring peace and protecting the civilian population inCôte d’Ivoire and demanding that all stakeholders and parties to conflict act with maximumrestraint 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 Exceptionand the Norm’, Ethics & International Affairs, vol. 25, no. 3 (2011). -7-
  • 12. Vesselin PopovskiResolution 1970The Security Council invoked R2P immediately when on 26 February 2011 itconsidered the deadly risk and the urgent need to protect the Libyanpopulation from atrocities, and adopted Resolution 1970, condemning theuse of force against civilians, deploring the gross systematic violations ofhuman rights, expressing deep concerns at the deaths of civilians and theincitement to hostility by the Libyan Government. The Council consideredthat the widespread and systematic attacks against the civilian populationmay amount to crimes against humanity, referring to one of the four atrocitycrimes and triggering the applicability of R2P. In explicit text and in aseparate 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 actwith utmost restraint, to respect human rights, to ensure safety of all foreignnationals, to allow safe passage of humanitarian and medical supplies, andlift media restrictions; and referred the situation to the International CriminalCourt (ICC)—an additional signal that R2P crimes might have beencommitted. It also imposed Chapter VII sanctions on Libya, namely an armsembargo, strengthened with a call upon States to inspect all cargo, that may,upon reasonable ground to believe, contain prohibited items; a travel banagainst 16 Libyan officials, listed in Annex I of the Resolution, among themGaddafi himself, some of his family members and military leaders, involvedin violence; and an asset freeze against six designated individuals, listed inAnnex II of the Resolution—Gaddafi, four of his sons and one daughter.There was no positive reaction, rather the opposite; Gaddafi not only ignoredResolution 1970, but committed clear breaches of it, refusing to permithumanitarian aid convoys into the besieged Misrata and Ajdabiya, a clearfailure by Libya to exercise R2P. The search for a peaceful solution throughthe UN Special Envoy and the African Union High-Level Committeecontinued, but gradually most governments and regional organisationsrealised that the use of diplomatic efforts only would not protect the Libyanpeople in lethal danger. Acknowledging Gaddafi regime’s manifest failure toprotect people, the international community shifted to enforcementmeasures: on 12 March 2011 the League of Arab States (LAS) called on theSecurity Council to impose immediately a no-fly zone on the Libyan AirForce and to establish safe areas as precautionary measures to protect thecivilian population.Resolution 1973 15This demand for a no-fly zone by the LAS proved to be crucial. The UnitedKingdom, France and Lebanon (the latter representing LAS) introduced a15 Bellamy and Williams, ‘The New Politics of Protection?’.-8-
  • 13. The Concepts of Responsibility to Protect and Protection of Civiliansnew resolution, Security Council Resolution 1973 (17 March 2011) whichurged the parties involved in armed conflict to “bear the primaryresponsibility to take all feasible steps to ensure protection of civilians(emphasis added)”. In Resolution 1973, PoC came to life, as the situationmoved 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 GenevaConventions. This was an important development, as the Security Councilcould now strengthen its decisions based on obligations under internationalhumanitarian laws, applicable only in time of (civil) war and add war crimesjurisdiction into what has already been established as R2P obligations inResolution 1970 on the basis of potential crimes against humanity. InResolution 1973, all the force of PoC (applicable to armed conflict) is addedto the force of R2P, previously already activated in Resolution 1970. The‘sister’ concepts R2P and PoC in Resolution 1973 were synergised, theirlegal and political forces merged to urge the Security Council to utilise all itsoverwhelming power under Chapter VII, including the use of force—toprotect the civilian population and civilian-populated areas. This timely anddetermined decision of the Security Council, a body often accused of beingobsolete, 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 ‘totake all necessary measures’. Paragraph 5 added into the authorisation ofthe use of force, the establishment of a no-fly zone. Another new measureimposed by Resolution 1973 is a ban on flights where states shall denypermission to Libyan aircraft to take off from, or land in, or overfly theirterritory. Resolution 1973 in its two Annexes added additional designationsof individuals, to whom the travel ban or the asset freeze will apply.Resolution 1973 also strengthened other measures already adopted inResolution 1970: Paragraph 13 of Resolution 1973, enforcement of the armsembargo, replaced Paragraph 11 of the previous resolution, adding anadditional authorisation to use force—after calling upon all vessels andaircraft of flag States to co-operate with the inspections of the armsembargo; the Security Council also authorised UN Member States‚ to use“all necessary measures commensurate with the specific circumstances tocarry out such inspections”. Similar precedents can be found in the historyof the enforcement of sanctions in Southern Rhodesia in 1966 (SecurityCouncil Resolution 221), Iraq-Kuwait in 1990 (Security Council Resolution665) and others. This additional and limited authorisation to use of force inResolution 1973 does not, curiously, target Libya only; it can be appliedagainst any other state (including its vessels and aircraft) that may violatethe arms embargo.Here comes probably the most controversial—legally and politically—issuein my analysis: Resolutions 1970 and 1973 not only prohibited the supply ofany weapons to Libya, but also authorised limited use of force to interceptsuch supplies. Therefore, when in late June 2011 the French parachuted -9-
  • 14. Vesselin Popovskimachine guns, rocket-propelled grenades and munitions to the Libyanrebels, could, hypothetically, Russia, officially protesting this as a violation of 16Resolution 1970, use force against the French aircraft delivering suchweapons to rebels in contravention of the Resolutions? Ironically, suchhypothetical use of force by Russia to prevent the French supplies ofweapons to Libyan rebels, would have been in compliance with Paragraph13 of Resolution 1973.Resolution 1973 was adopted with ten votes in favour and five abstentions:Brazil, China, Germany, India and Russia. These five countries—twopermanent members and three strong candidates for permanentmembership—voiced their preference to seek a peaceful solution whenabstaining from the vote. Interestingly, Resolution 1973 does not eliminateefforts for a peaceful solution; in fact it repeats and extends them. In itsstatement, Russia recalled its own earlier draft resolution, calling for aceasefire and dialogue, but it is doubtful whether such a mild resolutionwould have been instrumental. Calls for a ceasefire were never in shortage.Many were made by UN officials and regional organisations, but in vain. Onthe contrary, announcement of a ceasefire came from Gaddafi immediatelyafter the adoption of Resolution 1973 and this demonstrated how importantfor the concept R2P is, if the international community is able to utilise theR2P machinery to its deepest scope—threat and use of military measuresunder Chapter VII.R2P and PoC after Libya 17I share views expressed by various scholars that Security CouncilResolutions 1970 and 1973 represent a triumph of R2P and PoC. It wouldhave been a defeat of R2P and PoC, if Resolutions 1970 and 1973 were notadopted and Gaddafi could massacre the citizens of Benghazi. TheResolutions are a triumph of R2P, because for the first time since theconcept emerged 10 years ago, the full and deepest scope of itsimplementation was utilised. The Pillar One domestic responsibility toprotect was referred to in Resolution 1970, and when this responsibility wasmanifestly flouted and the regime threatened its own population withmassacre, the responsibility shifted to the international community; and, boththe UN and regional organisations engaged in the full scope of Pillar Threemeasures: negotiations, diplomatic pressure, sanctions and, when all theseproved to be ineffective, the authorisation for the use of force came from theonly legal authority—the Security Council.16 Statement by Russian Foreign Minister Lavrov, ‘Russia Criticizes France over Arming LibyanRebels’, RT, 30 June 2011, <http://rt.com/news/france-supplying-rebels-country/> [Accessed 19November 2011].17 See Gareth Evans, ‘Ending Mass Atrocity Crimes: The R2P Balance Sheet After Libya’, theSecond Renate Kamener Oration, Leo Baeck Centre, Melbourne, 31 July 2011; Alex Bellamy,Tom Weiss, Jennifer Welsh and other authors in the Roundtable: Libya, RToP, andHumanitarian Intervention, Ethics & International Affairs, vol. 25, no. 3 (2011).- 10 -
  • 15. The Concepts of Responsibility to Protect and Protection of CiviliansThe removal of Gaddafi from power was nowhere stated as an aim in theResolutions; Gaddafi was mentioned but in terms of referral to the ICC, thefreezing of his assets and the ban on travel. Also, the military action wasonly 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 militaryintervention: Chapter VI dialogue and mediation, non-military sanctions(Article 41), and only if these fail, military intervention (Article 42). What theresponses to the crisis in Libya show, is that the Chapter VI and the Article41 measures could be shortened to move faster towards a ‘timely anddecisive’ military response. Libya also showed that consensus can often bedifficult, particularly when it comes to the last resort. It was the extraordinary 18coincidence of many factors in Libya that allowed the triumph of R2P andPoC.If Libya demonstrated the fullest opportunity and the triumph of R2P andPoC, Syria showed the opposite—the limits of the ‘sister’ concepts. Thedifficult question from Kosovo in 1999 (that triggered the debates that gavebirth to R2P), ‘How to save people from mass atrocities, when a statemanifestly fails to protect them and the UN Security Council is paralysed?’, isback on the table. The biggest R2P triumph so far, in Libya, could befollowed by probably the biggest R2P failure so far—to protect people inSyria and elsewhere. If the UN and regional organisations do not act withthe same determination as they did in Libya, the danger of selectivity in theapplication of R2P and PoC will continue to cloud international law. In thewords of Dr. Simon Adams, Executive Director of the Global Centre for theR2P: “While tanks, troops and even warships have been unleashed againstordinary Syrians, the Security Council has so far failed in its responsibility toprotect civilians. Syria has become a stain upon the conscience of the 19world.”ConclusionThe concepts R2P and PoC originated from a similar concern, potentialhuman suffering and innocent victimhood from wars or mass atrocities, anddeveloped in parallel over the last decade. I presented in the comparativeanalysis above the commonalities and differences between the two conceptsand emphasised that they can reinforce each other, but they can also enterinto competing agendas. Although collaboration is always preferable,ignorance of the differences between the two concepts may create confusionand counter-productivity.18 Bellamy, ‘Libya and the Responsibility to Protect’.19 Global Centre for R2P Media release ‘Syria at the Crossroads: UN General Assembly MustUphold their Responsibility to Protect’, <www.globalr2p.org/media/pdf/Syria_Press_Release_21_November_2011.pdf> [Accessed 3 December 2011]. - 11 -
  • 16. Vesselin PopovskiProfessor Ed Luck, the Special Representative of the UN Secretary-Generalon R2P, called the two concepts ‘cousins, but not sisters’; but this wasbefore Resolutions 1970 and 1973 on Libya. After Libya, whichdemonstrated the important of progress in the development of awareness,adoption and implementation of both R2P and PoC concepts, I would nothesitate to define R2P and PoC as ‘sisters, but not twins’. The two conceptsmay exist separately in normal circumstances, but when the lives of peopleare gravely threatened in critical situations, as occurred in Libya in February-March 2011, they should reinforce each other and merge closer as to avoidgaps in order to protect the innocent people at risk.Vesselin Popovski is Senior Academic Programme Officer at the Institute for Sustainability andPeace, United Nations University in Tokyo. He develops research, teaches and publishes inpeace and security, international law, human rights and global governance. He co-edited thebooks: International Criminal Accountability and the Rights of Children (2006); World Religionsand Norms of War (2009); Democracy in the South (2010); Human Rights Regimes in theAmericas (2010); Blood and Borders (2011). He has completed a trilogy on modern trends andinnovations in governance, co-editing Engaging Civil Society (2010), Building Trust inGovernment (2010) and Cross-Border Governance (2011). Another major book Legality andLegitimacy in Global Affairs is forthcoming with Oxford University Press. He took part in twomajor international initiatives: the International Commission on Intervention and StateSovereignty, that produced the concept ‘Responsibility to Protect’, and the Princeton Principlesof Universal Jurisdiction. popovski@unu.edu.- 12 -
  • 17. Ad to be added by printers
  • 18. Libya and the Responsibility to Protect: Between Opportunistic Humanitarianism and Value-Free Pragmatism Ramesh ThakurSince the Treaty of Westphalia, sovereignty has been backed by the norm of nonintervention.By contrast, the responsibility to protect (R2P) strikes a balance between unauthorisedunilateral interventions and institutionalised indifference. With a rapidly deterioratinghumanitarian situation in Libya in early 2011, the United Nations (UN) authorised the use offorce to protect an imminent slaughter of civilians but prohibited taking sides in the internal civilwar, intervening with ground troops, or effecting forcible regime change. The record of NATOactions in Libya marks a triumph for R2P but also raises questions about how to prevent theabuse of UN authority to use international force for purposes beyond human protection.Military action by international forces in Libya in 2011 marks the first instanceof the implementation of the sharp edge of the new norm of the responsibilityto protect (R2P). It was a successful example, if also a controversial one.Until the twentieth century, state sovereignty included the right to go to warand an unchallengeable monopoly on the lawful use of force domestically.Gradually by the time of the creation of the United Nations (UN) in 1945 andmore rapidly thereafter, the right to use force internationally was restricted toself-defence against armed attack or under UN authorisation. Historically,the norm of nonintervention notwithstanding, individual states had alsointervened inside sovereign jurisdictions to stop the slaughter of kith and kin 1or co-religionists. Under the impact of the Holocaust and starting with theGenocide Convention in 1948, the international community asserted thecollective right to stop states killing large numbers of civilians inside theirborders.Even so, for 350 years—from the Treaty of Westphalia in 1648 until 1998—sovereignty functioned as institutionalised indifference. Internationalinterventions in Kosovo and East Timor in 1999 broke that mould and werethe backdrop to UN Secretary-General Kofi Annan’s search for a new norm.His genius lay in channelling historic ideational transformations into new1 For a study of the relevance of R2P to the problem of states with ethnic ties spread acrossnational borders, see Walter Kemp, Vesselin Popovski and Ramesh Thakur (eds.), Blood andBorders: The Responsibility to Protect and the Problem of the Kin-State (Tokyo: United NationsUniversity Press, 2011).Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 13-25. - 13 -
  • 19. Ramesh Thakurinstitutional linkages. Instead of collective gnashing and wailing duringatrocities followed by a traumatic repeat afterwards, yet again, of promises of‘Never Again’, he pushed for a new doctrine to take timely and effectiveaction. With Canada’s help, an international commission formulated the 2innovative principle of the responsibility to protect.The UN was neither designed nor expected to be a pacifist organisation. Onthe contrary, its origins lie in the anti-Nazi wartime military alliance amongBritain, the United States and the Soviet Union. Its primary purpose is themaintenance of international peace and security. The chief responsibility fordoing this is vested in the all-powerful UN Security Council as the world’ssole and duly sworn in sheriff for enforcing international law and order.The system of collective security against interstate aggression nevermaterialised. In the decades after World War II the nature of armed conflict 3was transformed. Interstate warfare between uniformed armies gave wayto irregular conflict between rival armed groups. The nature of the state toochanged from its idealised European version. Many communist and somenewly-decolonised countries were internal security states whose regimesruled through terror. Increasingly, the principal victims of both types ofviolence were civilians. Advances in telecommunications brought the fullhorror of their plight into the world’s living rooms. R2P spoke eloquently tothe need to change the UN’s normative framework in line with the changed 4reality of threats and victims.In the meantime, the goals of promoting human rights and democraticgovernance, protecting civilian victims of humanitarian atrocities andpunishing governmental perpetrators of mass crimes became moreimportant. Our understanding and appreciation of human rights andcommitment to their promotion and protection have deepened and 5broadened. The chief impulse to human rights is the recognition that everyhuman being is deserving of equal moral consideration. It is an acceptance2 The Responsibility to Protect, Report of the International Commission on Intervention andState Sovereignty (Ottawa: International Development Research Centre for ICISS, 2001). TheReport is available on the website at <www.iciss.gc.ca>. See also Gareth Evans, TheResponsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington: BrookingsInstitution, 2008); Ramesh Thakur, The Responsibility to Protect: Norms, Laws and the Use ofForce 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 NationsUniversity 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 UnitedNations, 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 ofUniversal Justice (Bloomington: Indiana University Press, 2008).- 14 -
  • 20. Libya and the Responsibility to Protectof a duty of care by those living in safety towards those trapped in zones ofdanger. The UN’s normative mandates on security, development and 6human rights alike embody this powerful intuition. 7Failure to act in the 1994 Rwanda genocide and non-UN-authorisedhumanitarian intervention in Kosovo in 1999 set off angry and deeply divisive 8recriminations around the world for acts of omission and commission. Inthe wake of that controversy, the 2001 report of the InternationalCommission on Intervention and State Sovereignty (ICISS) argued that theessential nature of sovereignty had changed from state privileges andimmunities to the responsibility to protect people from atrocity crimes.Where the state defaulted on its solemn responsibility owing to lack of will orcapacity, or because it was itself complicit in the commission of theatrocities, the responsibility to protect tripped upwards to the internationalcommunity acting through the authenticated structures and procedures ofthe UN.The importance of sovereignty as the key organising principle of the modernworld order needed and received a strong affirmation in the ICISS report.The Commission took pains to emphasise that a cohesive and peacefulinternational system is more likely to be achieved through the cooperation ofeffective and legitimate states than in an environment of fragile, collapsed, 9fragmenting or generally chaotic states. 10Reconceptualising sovereignty as responsibility was not a radical departurefrom established precept and practice. Nowhere is the authority of the stateabsolute. 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 ofpublic 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 embracingresponsibility. The UN Charter is itself an example of an internationalobligation voluntarily accepted by member states.6 This is most powerfully articulated in Kofi A. Annan, In Larger Freedom: TowardsDevelopment, Security and Human Rights For All, Report of the Secretary-General, documentA/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 ofHumanitarian 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 NationsUniversity 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). - 15 -
  • 21. Ramesh ThakurThere is no transfer or dilution of the status of state sovereignty. But there isa necessary change in the exercise of sovereignty: from sovereignty ascontrol to sovereignty as responsibility in both internal functions and externalduties. Anne Orford argues that contrary to claims that the requirement is toput the R2P principle into practice, ICISS in fact put evolving practice ofcontingent and softening sovereignty, and of increasing internationalintrusions, into a new concept: the justificatory principle followed practice,words followed deeds. R2P is an attempt to integrate existing and evolvingbut dispersed practices of protection into a conceptually coherent account of 11international authority.The unanimous endorsement of R2P by the largest ever collection of worldleaders at the UN summit in 2005 was historic, for it spoke to thefundamental purposes of the UN and responded to a critical challenge of the21st century. Some 150 world leaders tightened the application of R2P tofour atrocity crimes: war crimes, genocide, ethnic cleansing, and crimesagainst humanity. They affirmed that states have the primary responsibilityto protect all people within their territorial jurisdiction but that if theymanifestly failed to do so, owing to incapacity, unwillingness or complicity inthe crimes, then the international community, acting through the UN SecurityCouncil, would take timely and decisive action to implement the international 12responsibility to protect. Secretary-General Ban Ki-moon then refined theprinciple further in the language of three pillars: Pillar One as the state’s ownresponsibility; Pillar Two as international assistance to strengthen statecapacity to implement R2P obligations; and Pillar Three as coerciveinternational action, including measures not involving the use of force underArticle 41 of the United Nations Charter (for example economic sanctions,arms embargoes, and asset freezes) and, ultimately, military force under 13Article 42.R2P captures and channels the convergence of some significant trends inworld affairs. Its preventive and rebuilding pillars involve strengthening astate’s capacity to handle its own law and order problems. But its hard edgerequires the international community, acting through the UN, to take up theslack when any state defaults on its sovereign responsibility to protect allpeople inside its borders.By its very nature, including unpredictability, unintended consequences andthe risk to innocent civilians caught in the crossfire, warfare is inherentlybrutal: there is nothing humanitarian about the means. Still, the fact is thatour ability and tools to act beyond our borders have increased tremendously.11 Anne Orford, International Authority and the Responsibility to Protect (Cambridge: CambridgeUniversity Press, 2011).12 2005 World Summit Outcome, adopted by UN General Assembly Resolution A/RES/60/1, 24October 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).- 16 -
  • 22. Libya and the Responsibility to ProtectThis greatly increases demands and expectations ‘to do something’ and thefundamental question cannot be avoided: under what circumstances is theuse of force necessary, justified and required to provide effectiveinternational humanitarian protection to at-risk populations without theconsent of their own government? Absent R2P, the intervention is morelikely to be ad hoc, unilateral, self-interested and deeply divisive. With theR2P norm and guiding principles agreed to in advance, military action ismore likely to be rules-based, multilateral, disinterested and consensual.Not a Western ImplantThe R2P debate is emphatically not a West versus The Rest narrative.Instead the theory and practice of state sovereignty is itself decidedlyEuropean. Developing countries, not Western ones, are the likely targets ofinternational military interventions. If their people are the principalbeneficiaries and their states the main victims when R2P is put into practice,their scholars, think tank analysts, public intellectuals and journalists shouldbe the lead debaters. Asia has its own rich traditions that vest sovereignswith responsibility for the lives and welfare of subjects while circumscribingthe exercise of power with the majesty of law that stands above the agentsof the state. In India Ashoka, the great Mauryan emperor (269–232 BC),inscribed the following message on a rock edict: “this is my rule: governmentby the law, administration according to the law, gratification of my subjects 14under the law, and protection through the law”.The debate is also wrongly framed on substance. In the real world, we knowthat there will be more atrocities, victims and perpetrators—and thereforemore interventions. They were common before R2P; they are notguaranteed with R2P. The real choice is not if interventions will take place,but when, why, how, by whom and under whose authority. Unilateral and adhoc interventions will sow and nourish the seeds of international discord.Multilateral and rules-based interventions will speak powerfully to the world’sdetermination never again to return to institutionalised indifference to massatrocities.R2P attempts to strike a balance between unilateral interference andinstitutionalised indifference. It will help the world to be better prepared—normatively, organisationally and operationally—to meet the recurrentchallenge of external military intervention wherever and whenever it arisesagain, as assuredly it will. To interveners, R2P offers the prospect ofinternational legitimacy, reduced compliance and transaction costs and moreeffective results. To potential targets of intervention, R2P offers thereassurance 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. - 17 -
  • 23. Ramesh Thakurthere will be nothing to stop the powerful from intervening ‘anywhere andeverywhere’.Gaddafi in the Crosshairs of a Changing Normative OrderR2P is narrow—it applies only to the four crimes of ethnic cleansing,genocide, crimes against humanity, and war crimes. But it is deep: there areno limits to what can be done in responding to these atrocity crimes. In a 15matching symmetry, support for R2P has been broad but shallow. Libya in2011 provided an opportunity to convert the noble sentiments and solemnpromise of R2P into meaningful action whose import will resonate long andfar. In poignant testament to its tragic origins and normative power, R2Pwas 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 isgreater with action under Pillars One (building state capacity) and Two(international assistance to build state capacity) than Pillar Three (coerciveinternational action with the final option being military intervention to protectat-risk populations from atrocity crimes). But, to be meaningful, the R2Pspectrum of action must include military force as the option of last resort.Three sets of issues were involved in framing the most appropriate andeffective response to the Libyan crisis: military capacity, legal authority, andpolitical legitimacy. Analysts were divided on the scale, complexity andfeasibility of a no-fly zone. Only the West has the requisite assets andoperational capability for military action in the Libyan theatre. But NATOwould have been ill-advised to take any military action on its own authority.Political commentators warned of mission creep. But that would arise only ifownership of the uprising was appropriated from the Libyans. No one askedfor foreign boots on the ground. UN legal authorisation could be restricted tofour 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 BanKi-moon called on Libya to respect its R2P, human rights and international 16humanitarian law obligations. When their appeals were ignored, on 26February, 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 International15 See Ramesh Thakur, ‘The Responsibility to Protect and the North–South Divide’, in SanfordR. 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/10180AFR/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 5September 2011].- 18 -
  • 24. Libya and the Responsibility to Protect 17Criminal Court (Resolution 1970). On 4 March, both the Global Centre andInternational Coalition for R2P published an open letter to the SecurityCouncil pointing out that Resolution 1970 had failed to halt attacks taking 18place at the moment and calling for additional protective measures.Although Britain and France took the lead in trying to mobilise diplomaticsupport for some military action to help the Libyan rebels, the critical turningpoint was US backing. The key decision was made by President BarackObama at a meeting with top officials on 15 March. R2P gave him thenecessary intellectual and normative tool to act. He decided to side with pro-interventionist advisers in favour of a definition of the Libyan crisis that wascloser to his instincts and consistent with the narrative that won him the 19White House. The game-changer was the juxtaposition of R2P as apowerful new galvanising norm; the defection of Libyan diplomats who joinedthe chorus of calls from the rebels for immediate action to protect civilians;and Arab, French and British participation that provided political cover andinternational legitimacy. In Iraq in 2003, Washington was the ardent suitorfor military intervention. In Libya in 2011, Washington was the reluctantfollower.Adopted on 17 March by a 10-0-5 (China, Russia, Brazil, Germany, India)vote, UN Security Council Resolution 1973 authorised the use of “allnecessary measures … to protect civilians and civilian-populated areas”: the 20first UN-sanctioned combat operations since the 1991 Gulf War. In theBalkans, it took NATO almost the full decade to intervene with air power inKosovo in 1999. In Libya, it took just one month to mobilise a broadcoalition, secure a UN mandate to protect civilians, establish and enforce no-fly and no-drive zones, stop Gaddafi’s advancing army and prevent amassacre 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 humanitarianprotection and limited the means to that goal. At a time when the recaptureof Benghazi by Gaddafi loyalists seemed imminent, Resolution 1973authorised military action to prevent such civilian slaughter but not intervenein the civil war (any state has the right to use force to suppress armeduprisings), nor effect regime change. Occupying or dismembering Libya was17 United Nations Security Council, Resolution 1970 (2011), 26 February 2011.18 International Coalition for the Responsibility to Protect and the Global Centre for theResponsibility to Protect, ‘Open Letter to the Security Council on the Situation in Libya’, 4 March2011, <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 byClinton’, New York Times, 18 March 2011.20 United Nations Security Council, Resolution 1973 (2011), 17 March 2011. Previousoperations, such as in Bosnia, East Timor, Somalia or Congo, were or are peace operationsauthorised to use force if challenged and not conceived as combat operations from the outset. - 19 -
  • 25. Ramesh Thakurprohibited. Gaddafi was not to be directly targeted. To the extent that hewas so targeted, NATO exceeded UN authority in breach of the Charter law.Obama’s insistence that the United States would not be deploying groundtroops aligned military means to the limited ambitions and objectives: 21humanitarian protection, not regime change. In contrast to the Bushdoctrine, under Obama the United States will act in concert with others, notalone; coax, persuade and heed, not impose its will; and set clear limits ongoals and means. This did not please some shadow warriors. Referring tothe role of Hillary Clinton, Susan Rice, and Samantha Power in the decisionto join the intervention against the inclinations of Defense Secretary RobertGates, National Security Adviser Thomas Donilon and Chief ofCounterterrorism John Brennan, Jacob Heibrunn derided Obama foreffectively having been henpecked into interventionism by “these Valkyries 22of foreign affairs”. Not to be outdone on misogyny, Mark Krikoriancommented caustically that “our commander-in-chief is an effete vacillator 23who is pushed around by his female subordinates”.Norm Consolidation or AbuseAs the collection of articles in this special issue makes clear, there is a closenormative and operational link between R2P and the protection of civilians(PoC). The jury is still out on whether international military action in Libyaand Côte d’Ivoire will promote consolidation or softening of the twin norms.There were inconsistencies in the muted response to protests and uprisingsin Bahrain and Saudi Arabia where vital Western geopolitical and oilinterests are directly engaged, and with the lack of equally forceful militaryaction in Syria and Yemen. Western failures to defend the dignity and rightsof Palestinians under Israeli occupation have been especially damaging totheir claims to promote human rights and oppose humanitarian atrocitiesuniversally instead of selectively.Despite the doubts, the alternative of standing idly on the sidelines yet againwould have added to the shamefully long list of rejecting the collectiveresponsibility to protect. Gaddafi would have prevailed and we have noreason to doubt his threat to embark on a methodical killing spree of rebel21 The commendable initial clarity was soon muddied, and policy benchmarks made needlesslytougher, when Obama joined the British and French leaders in writing that although the goal ofmilitary action was “not to remove Qaddafi by force”, “it is impossible to imagine a future forLibya with Qaddafi in power”. Barack Obama, David Cameron and Nicolas Sarkozy, ‘Libya’sPathway to Peace’, International Herald Tribune, 14 April 2011.22 Jacob Heibrunn, ‘Americas Foreign Policy Valkyries: Hillary Clinton, Samantha Power, andSusan Rice’, National Interest, 21 March 2011, <http://nationalinterest.org/blog/jacob-heilbrunn/americas-foreign-policy-valkyries-hillary-clinton-samantha-p-5047> [Accessed 5September 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].- 20 -
  • 26. Libya and the Responsibility to Protectleaders, cities and regions alley by alley, house by house, room by room.Had the world shirked its responsibility, Libya could have been the graveyardof the new R2P norm and the UN might as well have sounded the last postfor it.Libya marks the first time the Security Council has authorised aninternational R2P operation. Côte d’Ivoire is the first time it has authorisedthe use of military force by outside powers solely for PoC. Between them,Resolutions 1973 and 1975 show that including R2P language in thepreamble might provide the normative justification for PoC demands in theoperational paragraphs of the UN mandates.Many PoC champions fear the more overtly politicised agenda of R2P. Thisignores the reality of how they come together when atrocity crimes are beingcommitted. PoC advocates are nervous about being cross-contaminated byR2P because they tend to focus on the soft side of the subject, such asprograms to train peacekeepers, rather than the sharp end of robust militaryaction. In justifying the authorisation of all necessary measures by the UNpeace operation in Côte d’Ivoire, UN Security Council Resolution 1975reaffirmed “the primary responsibility of each State to protect civilians” and,in the same sentence, reiterated that “parties to armed conflict bear theprimary responsibility to take all feasible steps to ensure the protection of 24civilians”.Seamus Milne, convinced that the Arab revolution had been hijacked by theimperialist West in Libya, argued that “If stopping the killing had been thereal aim, Nato states would have backed a ceasefire and a negotiated 25settlement, rather than repeatedly vetoing both”. Terry Macalister, theGuardian’s energy editor, believes that “The Libyan conflict has been a warabout 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 ofGaddafi and secure access to future energy supplies, he argues. He askswhether their cooperation is “a potent symbol that western politics and oil are 26so closely intermeshed that the agendas of both are indistinguishable”?In his speech to the General Assembly, India’s Prime Minister ManmohanSingh made a thinly-veiled attack on the expansive interpretation by NATOof Resolution 1973: “Actions taken under the authority of the United Nationsmust respect the unity, territorial integrity, sovereignty and independence of24 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, 24August 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 5September 2011]. - 21 -
  • 27. Ramesh Thakur 27individual states”. Russia and China led the chorus of dismay at the UN 28appearing to take sides in the internal conflicts in Libya and Côte d’Ivoire.They may be less willing in future to permit sweeping endorsements fortough action, either by a coalition (Libya) or by UN peacekeepers (Côted’Ivoire).Value-free pragmatism is no more an answer to the challenge of reconcilingrealism and idealism than opportunistic humanitarianism. Brazil, China,Germany, India, and Russia joined the African Union (AU) in positioningthemselves on the wrong side of the war—as witnessed in the triumphal visitof British Prime Minister David Cameron and French President NicolasSarkozy to Libya in September—and on the wrong side of history insofar asthe emerging normative architecture is concerned. The AU moved torecognise the rebel Transitional National Council on 20 September, onlyafter they had captured Tripoli. Among others, one risk for the AU is that the 29new regime will highlight its Arab over its African heritage and identity. Thereason this matters is that, following the Libya precedent, regionalorganisations may well acquire a critical ‘gatekeeping role’ in the global 30authorisation of R2P-type operations. As long as the rising new powersremain more concerned with consolidating their national power aspirations 31than developing the norms and institutions of global governance, they willremain incomplete powers, limited by their own narrow ambitions, with theirmaterial grasp being longer than their normative reach.The Libyan people’s euphoria and NATO’s relief over the successful militarycampaign is likely to temper criticisms of the manner in which NATO roderoughshod over UN authorisation to protect civilians. For NATO had indeedintervened 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 inparticular circumstances. Already in 2003, replying to criticisms of the ICISSreport by Adam Roberts, I had noted that “the primary motivation behindintervention—the cause rather than the necessary condition—must not bedefeating an enemy state”. But “If defeat of a non-compliant state or regime27 ‘Manmohan Slams West for Using Force to Change Regimes’, Times of India, 25 September2011, <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 19September 2011].30 See Alex J Bellamy and Paul D Williams, ‘The New Politics of Protection? Côte d’Ivoire, Libyaand 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 theTwenty-first Century’, International Affairs, vol. 87, no. 4 (2011), pp. 851-69.- 22 -
  • 28. Libya and the Responsibility to Protect 32is the only way to achieve the human protection goals, then so be it”. InLibya, the West’s strategic interests coincided with UN values. This does notmean that the latter was subordinated to the former. It does mean, as withAustralia vis-à-vis East Timor in 1999, that there was a better prospect ofsustained 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 fromthe right calling for boots on the ground. The protracted wars in Iraq andAfghanistan notwithstanding, too many expected or demanded instantmilitary gratification. In fact six months to overthrow an entrenched anddetermined dictator is not excessively long. Moreover, it is also true that hadall the restrictions of Resolution 1973 been scrupulously observed, the warwould have been more protracted and messier, and coalition unity ofpurpose and action would have been even more strained.The outcome is a triumph first and foremost for the citizen soldiers whorefused to let fear of Gaddafi’s thugs determine their destiny any longer. It istriumph secondly for R2P. It is possible for the international community,working through the authenticated, UN-centred structures and procedures oforganised multilateralism, to deploy international force to neutralise themilitary might of a thug and intervene between him and his victims withreduced civilian casualties and little risk of military casualties. NATO militarymuscle deployed on behalf of UN political will help to level the killing fieldbetween citizens and a tyrant.But the ruins of Libya’s political infrastructure and parlous state of its coffersmean that the third component in the ICISS formulation R2P—the 33international responsibility to rebuild and reconstruct —will also be calledon. This will require the international community to stay engaged with statebuilding in Libya for some time. Fortunately, Libya’s physical infrastructureremains mainly intact as there was no Iraq-style shock-and-awe bombingcampaign. The willingness, nature and duration of outside help will also helpto shape the judgment of history on whether Western motivations wereprimarily self-interested geopolitical and commercial, or the disinteresteddesire to protect civilians from a murderous rampage. As with the war itself,however, the lead role will have to be assumed by Libyans themselves, whilethe international community can assist without assuming ownership of theprocess or responsibility for the outcome.The price of that in turn may require the international community to acceptand live with the political choices made by the Libyans. The Transitional32 Ramesh Thakur, ‘In Defence of The Responsibility to Protect’, International Journal of HumanRights, vol. 7, no. 3 (Autumn 2003), p. 163.33 The substance of this is incorporated within Pillar Two (international assistance) in thesubsequent reformulation of R2P by Secretary-General Ban. - 23 -
  • 29. Ramesh ThakurNational Council’s immediate priorities are to establish security, law andorder; prevent lootings and reprisals and avoid attacks on black Africans bylighter-skinned Arabs as the new normal; defeat remaining pockets ofresistance by Gaddafi loyalists and prevent them from turning into aprotracted low-level insurgency, and establish control over the wholecountry; restore infrastructure and public services; and ameliorate thehumanitarian situation. National reconciliation based on the politics ofconcessions, compromises and power-sharing accommodation,reconstruction and continuing regional and international support will be thenext order of business after immediate humanitarian needs have been met.ConclusionIn both Libya and Côte d’Ivoire, regimes that had lost all domestic andinternational legitimacy declared war on their own people. In both, globalpolitical responses were shaped by universal values as well as strategicinterests, so that UN member states moved closer to mirroring traditional UNpolicy and perspectives. Because the UN is taking the lead in redefiningsovereignty by aligning state prerogatives with the will and consent of thepeople, the ruling class of any country must now fear the risk and threat ofinternational economic, criminal justice and military action if they violate 34global standards of conduct and cross UN red lines of behaviour.The two operations in Libya and Côte d’Ivoire therefore mark a pivotalrebalancing of interests and values. In the old world order, international 35politics, like all politics, was a struggle for power. The new internationalpolitics will be about the struggle for the ascendancy of competing normativearchitectures based on a combination of power, understood as thedisciplined application of force, and values and ideas.At the time of writing, the rebels had captured Tripoli but not Gaddafi. Hardquestions, unasked so as not to complicate the push for victory, will nowcome to the fore. Who are the rebels? What do they stand for? For whomdo they speak? How much popular support do they command? Albeitqualified and incomplete, therefore, Libya nevertheless does mark animportant milestone on the journey to tame atrocities on their own people bytyrants.In the words of former Secretary General Dag Hammarskjöld, the UN was 36“not created in order to bring us to heaven, but to save us from hell”.34 For the intimate relationship between the twin normative agendas of R2P and internationalcriminal justice, see Ramesh Thakur and Vesselin Popovski, ‘The Responsibility to Protect andProsecute: 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: TheStruggle 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.- 24 -
  • 30. Libya and the Responsibility to ProtectFailures in Africa and the Balkans in the 1990s reflected structural, politicaland operational deficiencies that accounted for the UN’s inability to savepeople from a life of hell on earth. R2P responds to the idealised UN as thesymbol of an imagined and constructed community of strangers: We are ourbrothers’ and sisters’ keepers.Ramesh Thakur is Professor of International Relations in the ANU’s Asia–Pacific College ofDiplomacy, and Adjunct Professor in the Institute of Ethics, Governance and Law at GriffithUniversity. He was Vice Rector and Senior Vice Rector of the United Nations University (andAssistant Secretary-General of the United Nations) from 1998–2007. He was a Commissionerand one of the principal authors of The Responsibility to Protect, and Senior Adviser onReforms and Principal Writer of Secretary-General Kofi Annan’s second reform report. Hisrelated books include The United Nations, Peace and Security: From Collective Security to theResponsibility to Protect (Cambridge University Press, 2006); Global Governance and the UN:An Unfinished Journey, co-written with Thomas G. Weiss (Indiana University Press, 2010); TheResponsibility 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 Peoplevs. the State: Reflections on UN Authority, US Power and the Responsibility to Protect (UNUniversity Press, 2011). His next major project is The Oxford Handbook of Modern Diplomacyco-edited with Andrew F. Cooper and Jorge Heine (Oxford University Press, forthcoming).ramesh.thakur@anu.edu.au. - 25 -
  • 31. - 26 -
  • 32. The Protection of Civilians in UN Peacekeeping Operations: Recent Developments Michael G. Smith, Jeni Whalan and Peter ThomsonThe frequency with which peacekeeping operations have proved inadequate to protect civilianshas prompted substantial reform of peacekeeping mandates and practice. But it has also led tosignificant normative developments within the wider UN system—not just in peacekeepingmandates and practice. This article charts the normative, institutional and operations contoursof the protection of civilians in armed conflict within the UN, highlighting the particularcontributions of the Australian government to that agenda. It concludes by identifying fourpathways through which efforts to protect civilians can be improved. 1In his report that coincided with Remembrance Day 2010, the Secretary-General of the United Nations (UN), Ban Ki-Moon, reinforced the centralimportance of the ‘protection of civilians’ (PoC) to UN peacekeeping, therebyconfirming 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.2Armed conflict has tragic consequences for civilians. Too often in recentconflicts, armed groups have intentionally targeted civilians as a tool ofwar—including many in which UN peacekeepers were deployed. In Rwandain 1994, the United Nations system and its hopelessly inadequatepeacekeeping force were “almost paralysed in the face of a wave of some of 3the worst brutality humankind has seen in [that] century”. In 1995,peacekeepers in the tragically named UN Protection Force oversaw theestablishment of ‘safe areas’ which were anything but for up to 20,000civilians killed in and around Srebrenica, Sarajevo, Bihać, Goražde, Žepa, 4and Tuzla. And in the Democratic Republic of Congo, Major GeneralPatrick Cammaert reflected on the abhorrent prevalence of rape, noting that1 The views expressed in this paper are those of the authors alone; they do not necessarilyreflect the position of the Australian government.2 United Nations Security Council, Report of the Secretary-General on the Protection of Civiliansin Armed Conflict, S/2010/579, 11 November 2010.3 United Nations Security Council, Report of the Independent Inquiry into the Actions of theUnited 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 GeneralAssembly Resolution 53/35: The Fall of Srebrenica, A/54/549, 15 November 1999.Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 27-38. - 27 -
  • 33. Michael G. Smith, Jeni Whalan and Peter Thomson“[i]t has probably become more dangerous to be a woman than a soldier in 5armed conflict”.The frequency with which peacekeeping operations have over the past twodecades proved inadequate to protect civilians has prompted substantialreform of peacekeeping mandates and practice. But it has also led tosignificant normative developments within the wider UN system—not just inpeacekeeping mandates and practice. An emerging priority for fieldoperations, PoC is also becoming a focal point within the UN securitysystem: an embryonic coordinating raison d’être among the UN’s centralorgans—the Security Council, the General Assembly and the Secretariat—and its member states and agencies.In official statements, policy discourse and scholarly contributions, thecredibility of the UN is increasingly argued to hinge on its ability to protectcivilians. In his remarks at the 2010 UN Security Council open debate on theprotection of civilians in armed conflict, UN Secretary-General Ban Ki-Moonstated that “saving and protecting people from the horrors of armed conflict”is a central component of the UN’s ‘cardinal mission’. The UN’s NewHorizon agenda notes that consensus on policy and requirements for civilianprotection is “central to the success of current and future UN peacekeeping 6operations”. Paul Williams goes even further, arguing that PoC is critical tothe “legitimacy and success of individual peacekeeping operations but also 7to the credibility of the entire UN system”.Indeed, the protection of civilians is a core component of the UN’scontemporary efforts to save generations form the scourge of war, echoed inregional organisations and by national governments around the world.Nowhere is this more evident than within the multidimensional peaceoperations that today integrate protection as a cross-cutting issue to beaddressed by military, civilian and policing components acting in concert—not by any one component alone. Yet the protection agenda within the UNsystem is far outpacing the development of practical, operational methods 8for actually fulfilling protection obligations in the field. As Dennis McNamaranoted 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 HumanRights, ‘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 NewPartnership 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 DefenseUniversity Press, September 2010), p.11.8 On the history of civilian protection, see Siobhán Wills, Protecting Civilians: The Obligations ofPeacekeepers (Oxford: Oxford University Press, 2009).- 28 -
  • 34. The Protection of Civilians in UN Peacekeeping Operations: Recent Developmentsprogress at the institutional level, “this has not led to more effective 9protection in the field for most civilians caught-up in today’s wars”.The Normative and Practical Contours of PoCA task increasingly assigned to peacekeeping operations by the SecurityCouncil, PoC is, at its roots, based on international humanitarian law, humanrights law and refugee law. The moral imperative to protect civilians isgrounded in inherent principles of humanity and codified in international 10law. For humanitarian actors, the touchstone definition of humanitarianprotection is that developed by the International Committee of the Red Crossand 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).11The norm that civilians are not legitimate targets in war and should beprotected from the consequences of violent conflict is subject to littlecontestation. As an operational objective and a practical task, however,protecting civilians is a more challenging endeavour. The operationalimplementation of civilian protection can and does mean different things todifferent actors. In this way, conceptual debates regarding the ‘protection’resemble those of other contested terms such as ‘security’—which may referto practices across a wide span of traditional national defence, internationalcollective security or broad human security, entailing distinctive policyinstruments and desired outcomes. Civilian protection can and does existoutside 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 ‘ProtectingPeople 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 withthe related norm of the Responsibility to Protect (R2P), endorsed by UN member states at the2005 World Summit. However, where R2P is limited in application to preventing civilians fromfour specific mass atrocity crimes—genocide, war crimes, crimes against humanity, and ethniccleansing—PoC has much broader application: to protect civilians from conflict-related graveharms, which may include the R2P atrocity crimes, but which also extend to serious humanrights violations and the broader human costs of armed conflict. For more on the relationshipbetween PoC and R2P, see Global Centre for the Responsibility to Protect, ‘The Relationshipbetween the Responsibility to Protect and the Protection of Civilians in Armed Conflict’, PolicyBrief, 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. - 29 -
  • 35. Michael G. Smith, Jeni Whalan and Peter ThomsonAs it exists in debates before the Security Council, and as it will beconsidered here, the PoC agenda focuses primarily on the implementation ofprotection through the mandates of UN peace operations. At the heart ofcontemporary PoC debates is a difficult practical challenge: how shouldprotection mandates be operationalised? How can protection beimplemented in practice?In this context, civilian protection is now broadly understood to be aninherent objective of contemporary peacekeeping. For the authors of theindependent study commissioned by the UN’s Department of PeacekeepingOperations (DPKO) and the Office for the Coordination of HumanitarianAffairs (OCHA), PoC is intrinsic to peacekeeping and “[m]issions arepresumed to deploy to protect civilians, which is an enduring, implicit goal of 12operations”.Importantly, where UN peacekeepers are deployed with protectionmandates, current guidance prescribes the adoption of multidimensionalstrategies: just as peacekeeping is no longer the sole domain of soldiers,protection can only be achieved through the concerted efforts of integratedcivil, military and police components within the peace operation, working incollaboration with the UN Country Team when deployed, and with the hoststate that retains ultimate responsibility for the protection of their citizens.PoC straddles the traditional ‘3D’ divisions between diplomacy, defence anddevelopment. It requires a fundamentally integrated approach, for which thesecurity forces and civilian structures of contributing states are often ill-suited. It stands to reason that if multidimensional UN peacekeepingmissions are effectively to implement PoC, then countries contributingtroops, police and civilian personnel must also develop their own integratednational approaches; it is unrealistic to expect that the United Nations canimplement PoC when its member states lack the necessary capabilities.New approaches and ad hoc coordination mechanisms within contributingmember states are required to breakdown and re-link traditional silos ofeffort, including for the development of national PoC doctrine.The Evolution of PoC in UN PeacekeepingThe personnel of today’s peace operations face more difficult PoCchallenges than did ‘traditional’ peacekeepers. Developed during the ColdWar, traditional peacekeeping operations were deployed primarily to addressinter-state conflicts. Designed to implement agreed conflict settlements,12 Victoria Holt and Glyn Taylor, with Max Kelly, Protecting Civilians in the Context of UNPeacekeeping Operations: Successes, Setbacks and Remaining Challenges, independentstudy jointly commissioned by the UN Department of Peacekeeping Operations and the UNOffice for the Coordination of Humanitarian Affairs, 17 November 2009, p. 210. Similarly, PaulWilliams views civilian protection as the ‘very essence’ of peacekeeping (Enhancing CivilianProtection in Peace Operations, p. 7).- 30 -
  • 36. The Protection of Civilians in UN Peacekeeping Operations: Recent Developmentsthese 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 orend conflict, they coincidentally may have contributed to protecting civilians.However, PoC was neither the core concern nor the explicit mandate ofthese earlier operations. Some earlier precedent can be found in thewording 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.13Deployed within a state and authorised to use force if necessary, ONUCstands out from the UN’s other early peacekeeping endeavours, not least forits demonstration of the fundamental tensions between sovereignty, consent,impartiality, human rights and the broader maintenance of peace andsecurity.These tensions continue to plague contemporary peacekeeping, with thepolitical, analytical and practical challenges of civilian protection at their core.There is nothing ‘new’ about the human cost of conflict, nor anythingdistinctly modern about the deliberate targeting of civilians as a tactic ofwarfare. But for the UN, and for its constantly evolving instrument ofpeacekeeping, the challenge of confronting these wrongs remains arelatively new demand on the organisation. In Cambodia, Rwanda, Bosnia,Haiti, East Timor, and in a host of African states, UN peacekeepers havebeen deployed in settings where civilians have tragically been targeted indeliberate attacks by armed parties. Mechanisms such as ceasefiremonitoring and interposition forces are no longer sufficient to address theconditions of insecurity into which peace operations are deployed, whereoften fragmented armed groups wage conflict across invisible ‘frontlines’ thatcan too easily be concealed within communities. Peacekeepers are nowmore often authorised to use all necessary means, including deadly force, inthe pursuit of their mandates.Notably, there is no explicit mention of civilian protection in Boutros-Ghali’slandmark An Agenda for Peace, which in 1992 laid out a new manifesto forthe post-Cold War United Nations, nor its 1995 Supplement, released after13 Quoted in Herbert Nicholas, ‘UN Peace Forces and the Changing Globe: The Lessons ofSuez and Congo’, International Organization, vol. 17, no. 2 (Spring 1963), fn. 14, pp. 329-30. - 31 -
  • 37. Michael G. Smith, Jeni Whalan and Peter Thomsonthe tragedy of Rwanda. In October 1995, DPKO released its ‘GeneralGuidelines for Peacekeeping’, which mentions civilian protection only once,to question the feasibility and desirability of ‘safe areas’ that damage the 14impartiality of peacekeepers.By 1998, however, the demand for peacekeeping reform had seized UNheadquarters. In that year, the Secretary-General Kofi Annan marked animportant step in the UN’s emerging protection agenda by identifying PoC asa ‘humanitarian imperative’. Outlining his justification for prioritising civilianprotection on the Security Council’s agenda, Annan characterised thesignificance 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.15In the years that followed, the United Nations progressively embedded PoCas a peacekeeping objective. In 1999, the Security Council established theUnited Nations Assistance Mission in Sierra Leone (UNAMISIL), authorisingit “within its capabilities and areas of deployment, to afford protection to 16civilians under imminent threat of physical violence”. The Security Councilhas now authorised twelve UN peace operations with PoC mandates, eightof 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 17Abyei; and UNAMID in Darfur.The release in 2000 of The Report of the Panel on United NationsPeacekeeping Operations, known as the Brahimi Report, catalysedsignificant shifts in the UN’s approach to peace operations, including withregard to PoC. The report identified numerous problems in UNpeacekeeping; among its many recommendations was the call for “robustdoctrine and realistic mandates”. The Brahimi Report observed that the UNhad often been unable to respond effectively to challenges on the ground14 United Nations Department of Peace-keeping Operations, General Guidelines for Peace-Keeping Operations (New York: United Nations, 1995); see also Williams, Enhancing CivilianProtection in Peace Operations, p. 13.15 United Nations, The Causes of Conflict and the Promotion of Durable Peace and SustainableDevelopment 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 successormission, the UN mission in South Sudan (UNMISS) also has a PoC mandate.- 32 -
  • 38. The Protection of Civilians in UN Peacekeeping Operations: Recent Developmentsand it stressed the need for peacekeepers, once deployed, to carry out theirmandates “professionally and successfully”. Moreover, UN peacekeepers,whether troops or police, who witness violence against civilians “should bepresumed to be authorised to stop it, within their means, in support of basic 18UN principles”.As PoC gained prominence within UN peacekeeping debates, in 2002 UNOCHA submitted to the Security Council an Aide Memoire, intended as apractical diagnostic tool for the Security Council’s consideration of PoCissues during deliberations on peacekeeping mandates. The Aide Memoireis regularly updated; its fourth edition, published in 2011, identifies sevengeneral 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 19 supporting accurate management of information on the conflict.The Aide Memoire also details protection concerns related to two specificconflict-affected populations: women and children. Finally, it includes anappendix of protection language used in Security Council resolutions toaddress the spectrum of issues listed above.Two cross-cutting protection themes have emerged in Security Councildebates over the past decade: the protection of women and children inconflict. In 2000 the Security Council specifically linked women’s experience 20of conflict to the maintenance of international peace and security. 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 ofCivilians in Armed Conflict’, Policy and Studies Series, vol. 1, no. 4 (2011). The Aide Memoireshave been adopted through Presidential Statements in the Security Council; the most recentwas adopted in S/PRST/2011/25.20 United Nations Security Council, Resolution 1325 (2000), 31 October 2000. - 33 -
  • 39. Michael G. Smith, Jeni Whalan and Peter ThomsonUN Security Council Resolution 1820 recognised conflict-related sexual 21violence as a tactic of war; tools for addressing the issue were articulatedin UN Security Council Resolution 1888 of the following year, which includedissues of leadership, judicial response expertise and reporting 22mechanisms. UN Security Council Resolution 1889 built upon these by 23setting out issues related to the role of women in peacebuilding. Finally, in2010, UN Security Council Resolution 1960 established an accountability 24regime for addressing conflict-related sexual violence.In 1996, the UN General Assembly released a report on child protection insituations of armed conflict. Authored by Graca Machel, the study set a 25powerful agenda within the UN system. In 1997, the Secretary-Generalappointed a Special Representative for children affected by armed conflict,and in 2005 the Security Council authorised the establishment of an 26operational-level monitoring and reporting mechanism. A series of SecurityCouncil resolutions has established system-wide concern for the childprotection in armed conflict; as with PoC more broadly, however, troublinggaps remain between such institutional-level progress and real impact in the 27field.That the institution of UN peacekeeping has evolved is not in itselfsignificant: indeed, peacekeeping has always been an ad hoc instrument,repeatedly redesigned and adapted to meet the changing demands ofinternational peace and security. That protection is so central to the agendaof today’s peacekeeping, however, does reflect an important development inUN security-related affairs: the achievement of broad political consensus—from civil society to the UN’s member states and key organs—regarding themoral legitimacy and practical imperative of protecting civilians from conflict-related grave harms.Recent Developments in the UN SystemIn 2008, PoC featured in the UN’s ‘Capstone Doctrine’ for peacekeeping,which noted that: The protection of civilians requires concerted and coordinated action among the military, police and civilian components of a United Nations21 United Nations Security Council, Resolution 1820 (2008), 19 June 2008.22 United Nations Security Council, Resolution 1888 (2009), 30 September 2009.23 United Nations Security Council, Resolution 1889 (2009), 30 September 2009.24 United Nations Security Council, Resolution 1960 (2010) 16 December 2010.25 United Nations, Impact of Armed Conflict on Children A/51/306, 26 August 1996.26 United Nations Security Council, Resolution 1612 (2005), 26 July 2005.27 United Nations Security Council, Resolution 1261 (1999), 30 August 1999; Resolution 1314(2000), 11 August 2000; Resolution 1379 (2001), 20 November 2001; Resolution 1539 (2004),22 April 2004; Resolution 1612 (2005), 26 July 2005; Resolution 1882 (2009), 4 August 2009;and the regular reports of the Secretary-General on child protection.- 34 -
  • 40. The Protection of Civilians in UN Peacekeeping Operations: Recent Developments peacekeeping operation and must be mainstreamed into the planning and conduct of its core activities.28In November 2009, an independent study commissioned by DPKO andOCHA found substantial gaps between the Security Council’s intentions toprotect civilians and the capacity of the UN (and its peace operations) to doso in practice. Protecting Civilians in the Context of UN PeacekeepingOperations: Successes, Setbacks and Remaining Challenges identified aseries of grave weaknesses in the protection system, including the lack ofadequate connections between early warning and mandate development,guidance gaps, confusion regarding Security Council intentions, andinsufficient mission-wide protection strategies. The report made a number ofrecommendations, including the urgent development of guidance on PoC bythe UN Secretariat. It also emphasised the need for ‘partnerships’ betweenmajor troop- and police-contributing countries and members states in the UNSecurity Council. Operationally, the report urged all actors to manageexpectations in the host country.In the same year as the independent study was released, the SpecialCommittee on Peacekeeping Operations (C-34) included language in itsreport for the first time on protection of civilians. It was in response torequests from the C-34 that DPKO and the Department of Field Support(DFS) developed first an operational concept of PoC and then a StrategicFramework, designed to bring coherence in approach, minimise gaps, avoidduplication and maximise the ability of peacekeeping operations to enhancethe implementation of PoC. The Framework operationalises PoC throughthree tiers of implementation: protection through a political process;protection from physical violence; and contributing to a protectiveenvironment. Attention is now focused on the much larger task of populatingthese tiers with policy initiatives that work in practice.The combination of the Strategic Framework and the continuingdevelopment of mission-wide PoC strategies have seen significantimprovement in the UN’s ability to conceptualise and implement effectivePoC strategies. Significant work remains, however, in the area of pre-deployment and in-mission training for PoC, and in the allocation ofnecessary resources to ensure effective implementation on the ground.Further, it is recognised that, in practice, peacekeeping missions will not beable to protect all civilians, everywhere, all of the time; for this reason, themanagement of expectations with regard to civilian protection is a criticaltask, particularly when it comes to resource allocation.Emerging progress in the area of training has been notable in recent years.A number of UN agencies are now involved in protection training, including28 United Nations Department of Peacekeeping Operations and Department of Field Support,United Nations Peacekeeping Operations: Principles and Guidelines (New York: United Nations,2008), p. 24. - 35 -
  • 41. Michael G. Smith, Jeni Whalan and Peter ThomsonDPKO, UNITAR, UN Women (through the Analytical Inventory), and thehumanitarian protection agencies—OCHA, UNHCR and UNICEF. Ofparticular note, DPKO has developed training strategies that include fourmodules and twelve scenario-based packages. Further, across nationalgovernments, regional organisations and peacekeeping training centres,training for PoC is acquiring greater significance.Australia’s Contribution to PoCThe Australian Government has been working with the internationalcommunity to support the better operationalisation of PoC by advocating forlanguage requesting the development of guidelines for peacekeepers onPoC in the Special Committee of Peacekeeping Operations (C-34), andassisting the UN develop and implement its reforms. During 2009 and 2010,the Permanent Missions of Australia and Uruguay co-hosted threeworkshops in New York to improve understanding of PoC, providing a forumfor the peacekeeping community, particularly troop- and police-contributingcountries, to discuss initiatives to improve the implementation of PoCmandates. During this period, the Australian Government also supported thedrafting of the proposed Guidelines for the Protection of Civilians in AfricanUnion Peace Support Operations, the first initiative by a regional peace andsecurity organisation to create strategic and operational-level guidance onPoC in peace operations. The AU Commission is currently developing a‘comprehensive AU approach’ towards protection of Civilians and has set up 29a working group.Australia is also an active participant in the International Forum for theChallenges of Peace Operations, established to promote global dialogue and rdgenerate practical recommendations for reform, and in 2010 hosted the 3 30Forum, focused specifically on PoC.Australia, through AusAID, provided support to key UN agencies to develop 31an inventory of best practice in preventing sexual violence during conflict,which provides practical examples of peacekeeping tactics that have beenused to reduce sexual violence and improve the safety of women duringconflict. DPKO and UN Women have developed training modules andscenarios based on the inventory to generate awareness in military decision-making and planning circles and to support pre-deployment training ofuniformed personnel.29 See ‘Progress Report of the Chairperson of the Commission on the Development ofGuidelines for the Protection of Civilians in African Union Peace Support Operations’, 18 May2011, <http://www.ausitroom-psd.org/Documents/PSC2011/279th/Reports/ProgressReportProtectionofCiviliansEng.pdf> [Accessed 23 September 2011].30 See <http://www.challengesforum.org/cms/images/pdf/Annex_SummaryRecommendations.pdf> [Accessed 23 September 2011].31 UNIFEM, DPKO and UN Action Against Sexual Violence, Addressing Conflict-Related SexualViolence—An Analytical Inventory of Peacekeeping Practice (New York: United Nations, 2010).- 36 -
  • 42. The Protection of Civilians in UN Peacekeeping Operations: Recent DevelopmentsIn partnership with the United Nations Institute of Training and Research(UNITAR), the Australian Government has produced a 40-minute trainingdocumentary entitled Mandated to Protect: Protection of Civilians inPeacekeeping Operations. Secretary-General Ban Ki-Moon introduces thedocumentary and interviewees provide insights on PoC in conflict zones,both past and present. This documentary will complement the UN’sscenario-based training.Finally, in response to the identified need for more operational guidance, theAustralian Government is developing a PoC doctrine note for the AustralianDefence Force.The Road AheadPoC is now a core requirement of modern peacekeeping. Despite thesignificant progress outlined above, more work lies ahead if UNpeacekeepers are to be more effective in their implementation of PoCmandates. The future success of PoC will depend largely on the correlationof four civil-military capabilities: knowledge management; training andresearch; the allocation of appropriate resources; and the development ofnational PoC doctrine and guidance.Knowledge management can enable civilian, military and police actors tounderstand the requirements of PoC, as well as the respective roles andresponsibilities of each actor, and of the host state and local communities.At the heart of knowledge management is a willingness and commitment toshare information and to break down the traditional silos that still obstructbetter practice. In the field, knowledge management requires an effectiveearly warning system tailored to community needs in order to facilitate timelydecision-making and pre-emptive action to prevent (or at least limit) conflict-related grave harms.Second, while the UN has made important progress on PoC training andresearch, much more needs to be done to develop PoC courses, to link PoCwith training on sexual and gender-based violence, and to evaluate theeffectiveness of these efforts. Importantly, training must involve civilian,military, and police leaders, and should be conducted in both pre-deployment and in-mission modules, adapted to the specific circumstancesof a particular operation. More applied research can help to capture lessonsthat can improve PoC strategies and their implementation.Third, civilian protection requires the appropriate allocation of resources—and the careful management of expectations. It is a long-standing and,unfortunately, enduring critique that member states too often fail to providepeacekeeping operations with the necessary resources to prevent atrocitiesand ensure adequate standards of protection. PoC demands agilepeacekeeping characterised by reliable presence and appropriate posture to - 37 -
  • 43. Michael G. Smith, Jeni Whalan and Peter Thomsondeter the perpetrators of violence. Beyond the necessary authorisation ofrobust rules of engagement, resources are required that enable: • the ability to acquire and act on information in a proactive manner; • the creation of joint civil-military-police protection patrols within the mission; • the field deployment of more women peacekeepers to meet the needs of women and children at risk; • sufficient transportation assets to ensure effective presence and response; • appropriate communications systems that readily connect peacekeepers to communities at risk; • police and military patrols capable of operating effectively at night and maintaining an irregular 24-hour presence in areas frequented by miscreants; • appropriate mentoring skills to ensure effective liaison with local security forces and to coordinate joint protection plans; • sufficient interpreters at field level to enable peacekeepers to communicate effectively with local populations, and accurately report critical information in a timely manner; and • public information systems capable of keeping the population informed and of managing unrealistic expectations.The final capability, and perhaps the most important for civilian protection, isthe development of specific PoC guidelines and doctrine by member statesat the national level. While it must be consistent with UN principles, suchnational guidance is crucial to prepare peacekeepers for the difficult, crucialtask of protecting civilians in armed conflict.Michael G. Smith is the founding Executive Director of the Asia Pacific Civil-Military Centre ofExcellence (APCMCOE). From 2002-2008 he was CEO of Austcare. Mike formerly served asan Army Officer in the Australian Defence Force for 34 years, retiring in 2002. He is an AdjunctProfessor at the Key Centre for Ethics, Law, Justice and Governance at Griffith University.michaelgsmith@gmail.com.Jeni Whalan is Research and Lessons Learned Manager at the APCMCOE and a ResearchAssociate at the Global Economic Governance Programme, University of Oxford. She holds aDPhil in International Relations and a DPhil in International Relations from the University ofOxford. jeni.whalan@civmilcoe.gov.au.Peter Thomson is Governance and Rule of Law Advisor at the APCMCOE. He is secondedfrom the Attorney-General’s Department. From 1997 to 2004 he was appointed as a Member ofthe Australian Refugee Review Tribunal. He has undertaken AusAID-funded consultancies asthe Long Term Human Rights Adviser within the Indonesian Department of Justice and HumanRights. He holds a Bachelor of Law and a Bachelor of Arts from the University of New SouthWales and a Master of Public Law from the ANU. peter.thomson@civmilcoe.gov.au.- 38 -
  • 44. Points of Convergence and Divergence: Normative, Institutional andOperational Relationships between R2P and PoC Hugh Breakey and Angus FrancisAs an international norm, the Responsibility to Protect (R2P) has gained substantial influenceand institutional presence—and created no small controversy—in the ten years since its firstconceptualisation. Conversely, the Protection of Civilians in Armed Conflict (PoC) has a longerpedigree and enjoys a less contested reputation. Yet UN Security Council action in Libya in2011 has thrown into sharp relief the relationship between the two. UN Security CouncilResolutions 1970 and 1973 follow exactly the process envisaged by R2P in response toimminent atrocity crimes, yet the operative paragraphs of the resolutions themselves invokeonly PoC. This article argues that, while the agendas of PoC and R2P converge with respect toSecurity Council action in cases like Libya, outside this narrow context it is important to keep thetwo norms distinct. Peacekeepers, humanitarian actors, international lawyers, individual statesand regional organisations are required to act differently with respect to the separate agendasand contexts covered by R2P and PoC. While overlap between the two does occur in highlyvisible cases like Libya, neither R2P nor PoC collapses normatively, institutionally oroperationally into the other.In 2005, the international community took a bold step forward when itaccepted a shared responsibility to use peaceful means to prevent genocide,war crimes, ethnic cleansing and crimes against humanity, and in the eventpeaceful means proved inadequate, to take collective action through the 1United Nations (UN) Security Council in accordance with the UN Charter.Yet while the Responsibility to Protect (R2P) doctrine, as it is known,gradually grew in significance within the UN, including the Secretary- 2General’s appointment of a Special Adviser on R2P in 2007, it was oflimited operational relevance outside New York. The Security Council, in 3particular, despite affirming R2P in 2006 and evoking it in the context of the1 2005 World Summit Outcome, GA Res. 60/1, paras. 138-9 (24 October 2005) [hereafterOutcome Document].2 Secretary-General Appoints Edward C. Luck of United States Special Adviser, Secretary-General, (SG/A/1120, BIO/3963), 21 February 2008.3 United Nations Security Council, Resolution 1674 (2006), 28 April 2006.Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 39-50. - 39 -
  • 45. Hugh Breakey and Angus Francisconflict in Darfur, appeared to be holding off on applying the norm in a more 4robust and consistent fashion.UN Security Council Resolutions 1970 and 1973 on Libya marked a turning 5point. Their language, context, purpose and effect demonstrated theSecurity Council’s willingness to operationalise the R2P norm—and robustly.Resolution 1970, which was adopted unanimously, determined that theattacks on the civilian population in Libya may amount to crimes againsthumanity and sought international accountability for those acts by referringthe situation to the International Criminal Court. When sanctions failed tohalt the violence, the Security Council passed Resolution 1973, whichreiterated “the responsibility of the Libyan authorities to protect the Libyanpopulation” and authorised Member States “to take all necessary measures… to protect civilians and civilian populated areas under threat of attack” inLibya. Thus, each of the key elements of R2P was met. R2P’s ‘First Pillar’invokes the responsibilities of states to protect their own populations, its‘Second Pillar’ describes the responsibilities of the international communityto work with willing states to develop their capacities to protect theirpopulations, and its ‘Third Pillar’ provides for Security Council-authorisedsanction and military response to states manifestly violating their First Pillar 6responsibilities. In the context of Libya in 2011, there was clear evidence ofa state engaged in mass atrocities against its population (failure of its PillarOne obligations); the failure of pacific measures to prevent further bloodshed(failure of R2P Pillar Two measures and the pacific sanctions of PillarThree); and an international community prepared to take more robust actionthrough the Security Council and Chapter VII of the UN Charter (R2P PillarThree). With Resolution 1973 the Security Council did what it had neverdone before: it authorised a military intervention for humanitarian purposes 7against the express will of a functioning government.The fact that R2P has evolved from concept to concrete action has thrownup new challenges of definition and implementation. Not least of which is itsrelationship to a parallel doctrine that has developed in internationalhumanitarian law and in the operational context of UN peacekeepingoperations: the Protection of Civilians (PoC). Resolutions 1970 and 1973, as 8well as the statements of members of the Security Council at the time, areripe with the language of PoC. The common objective of the resolutions,despite the usual blogs that it is “all about the oil”, is clearly the end of4 Alex J. Bellamy, ‘The Responsibility to Protect—Five Years On’, Ethics & International Affairs,vol. 24, no. 2 (Summer 2010), p. 144.5 United Nations Security Council, Resolution 1973 (2011), 17 March 2011.6 UN Secretary-General, Implementing the Responsibility to Protect: Report of the Secretary-General, UN Doc A/63/677 (12 January 2009);7 Paul Williams, Briefing: The Road to Humanitarian War in Libya, Global Responsibility toProtect, vol. 3, no. 2 (2011), p. 249.8 United Nations Security Council 6498th meeting, 17 March 2011, S/PV.6498, p. 8 (Mr Cabral,Portugal); p. 9 (Mrs Ogwu, Nigeria); p. 10 (Mr Sangqu, South Africa).- 40 -
  • 46. Normative, Institutional and Operational Relationships between R2P and PoCviolence and the protection of civilians. In this regard, the resolutions buildon the work on PoC in the Security Council and General Assembly over thelast decade that has witnessed PoC become entrenched in the mandates ofnumerous UN peacekeeping operations.This reading of Resolutions 1970 and 1973 raises a fundamental question: Ifthe resolutions can be seen as implementing both R2P and PoC, do theyrepresent a merger of what have been regarded by most as distinct, thoughrelated, doctrines? The question has two significant implications. First, thehard-won international consensus on R2P was achieved largely because ofthe exclusive focus on mass atrocities. PoC is altogether much broader.Associating the grounds for international intervention with PoC (as opposedto how protection is to be carried out once UN peacekeepers are on theground), may undermine this consensus.Second, R2P is more controversial than PoC principally because of therobust military intervention entertained by R2P discourse (and actioned inLibya). Proponents of PoC in UN peacekeeping operations, such as the UNDepartment of Peacekeeping Operations, may have concerns that aconvergence of R2P and PoC will make it less likely for agreement to bereached on the inclusion of PoC mandates in UN peacekeeping operations.This could lead to the highly unsatisfactory state of affairs whereby highprofile cases like Libya attract international commitment and action, while themore day-to-day grind of engaging PoC across an array of peacekeepingopportunities falls by the wayside.This article argues that both these negative implications can be avoided by arigorous interpretation of Resolutions 1970 and 1973 against the backgroundof the normative, institutional and operational characteristics of R2P andPoC. A precise interpretation of the UN Security Council’s resolutions onLibya—and one promoted in this article—is that the resolutions represent aconvergence of the twin protection norms of R2P and PoC in the context ofdirectly preventing and responding to imminent mass atrocities. However inmany other respects the two doctrines should not be conflated, as they eachretain distinct characteristics that must be preserved.This article moves through the normative, institutional and operationaldimensions of R2P and PoC, noting areas where it is vital the two normsremain distinct, while explaining how—in the specific context of SecurityCouncil reaction to imminent atrocities—the two norms will coalesce.Normative LevelTHE NORMATIVE CORE OF R2P AND POCTo what extent do R2P and PoC share a normative core? At the mostfundamental level, both are rooted in notions of empathy and humanity.They also reflect long-standing attempts to ensure states protect those - 41 -
  • 47. Hugh Breakey and Angus Francisfalling within their jurisdiction—and that the international community takessteps to enforce this obligation. But R2P has a narrower agenda—dealing 9exclusively with mass atrocities. While the institutional and operationalengagement demanded by R2P is broad, the normative focus is narrow.However, this does not necessarily restrict R2P’s influence on PoC. At arecent workshop on R2P and PoC in Jakarta, Dr Mangadar Situmorang fromthe Universitas Katolik Parahyangan astutely highlighted the added politicaland organisational influence/power/weight that R2P has generated for the“whole concern and interest in protecting civilians”. The fact that R2P wasformulated and proposed by internationally prominent former politicians (andsponsored by the Canadian Government)—and then supported and adoptedby the UN General Assembly and the Security Council—boosted thesignificance of PoC in the UN, thereby contributing to the emergence of the“civilian protection principle” and the “civilian protection network” (the latterconstituted by a transnational community of citizens, journalists, protectionorganisations and statespersons).R2P also can be seen paving the way for the application of PoC in Libya.The reference to “crimes against humanity” in Resolutions 1970 and 1973framed the international response to the atrocities being committed in Libya 10in the unmistakable language of R2P. So too, R2P’s core idea of“sovereignty as responsibility”—that sovereignty over a state is not absolute,but is contingent on fulfilling some basic responsibilities regarding thesecurity of the civilian population—suffused the statements of Security 11Council member states voting in favour of Resolution 1973. But thelanguage used in the resolutions to define the scope of protection is 12unmistakably PoC.NORMATIVE DIVERGENCE BETWEEN R2P AND POC IN NON-REACTIONAND NON-ATROCITY CASESHistorically, the core normative framework of PoC is InternationalHumanitarian Law (IHL)—especially the Geneva Conventions of 1949 andthe Additional Protocols of 1977. These instruments—and their moral 13antecedents throughout the centuries and across myriad cultures —spellout the laws of armed conflict. States engaging in war, and the combatantsthereof, must obey the three norms of proportionality, distinction and9 Outcome Document, para. 138.10 United Nations Security Council, Resolution 1970 (2011), 26 February 2011, Preamble;Resolution 1973 (2011), 17 March 2011, Preamble.11 UNSC 6498th meeting, 17 March 2011, S/PV.6498. Note especially the statements of Libya’ssovereignty by Bosnia/Herzegovina (p. 7) and of South Africa (p. 10).12 United Nations Security Council, Resolution 1973 (2011), 17 March 2011, paras 4-5.13 See, e.g. Helen Durham, ‘The Laws of War and Traditional Cultures: A Case Study of thePacific Region’, Commonwealth Law Bulletin, vol. 34, no. 4 (2008), pp. 833-41; James TurnerJohnson, ‘Maintaining the Protection of Non-Combatants’, Journal of Peace Research, vol. 37(2000), pp. 421-48.- 42 -
  • 48. Normative, Institutional and Operational Relationships between R2P and PoClimitation. For their part, peacekeeping and humanitarian operations, withintheir means and scope of authority, aim to protect civilians within their zoneof operations from the crimes outlawed by IHL.R2P, as noted above, centres not on war, but on atrocity. The legalinstruments which most directly shape R2P are those defining internationalatrocity crimes, including the Genocide Convention, the Rome Statute, andthe statutes of the ICTR and ICTY. All these instruments are explicit thatatrocity crimes are not limited to armed conflict narrowly construed: genocideand crimes against humanity (including ethnic cleansing through the crimes 14of deportation or persecution) may occur in times of war or peace.In application, the legal core of PoC (IHL) is far wider than the scope of R2P,as it applies to isolated actions of individual combatants, and prohibits notonly assaults on people’s person, but upon, for instance, their private and 15cultural property. In practice, advocacy for and state-implementation of thenorms of PoC revolves around ensuring that troops and their commandersare familiar with, trained in and regulated by IHL. Advocacy for and state-implementation of R2P, however, takes a very different form—focusinginstead on civil society, security sector reform and implementation of humanrights commitments. In these ways the two norms are distinct in application,and their implementation by reformers should be approached differently.NORMATIVE CONVERGENCE BETWEEN R2P AND POC IN SECURITYCOUNCIL REACTION-TO-ATROCITY CASESWith atrocity crimes however, the founding norms of PoC and R2P begin tocoalesce. Morally, the normative logic overlaps. If State B, in prosecutingwar against State A, is understood to be bound by jus cogens limitations onwhat they may do to the enemy population of A, then it is ethicallyinconceivable that the government of State A itself would not be bound bysimilar restraints, vis-à-vis its own population (whether in peace or war). Itwould defy any imaginable moral logic to hold that an enemy fighting anexistential threat in a state of war owes more moral consideration to theenemy population than that which is owed to that population by their owngovernment. If even the horror of war admits of certain minimal levels ofrespect for humanity, then those levels cannot be lower than that expectedof a government with respect to its own population.Legally, too, overlap occurs. The legal threshold for a determination of“armed conflict” in IHL is not demanding, requiring only the presence ofarmed resistance with a military structure or of UN troops being involved in14 E.g. Genocide Convention, Art. 1; similarly the Rome Statute of the International CriminalCourt (ICC), Art. 6 and Art. 7 contain no limitations regarding armed conflict.15 See, e.g. Rules 38-41 and 49-52 in: Jean-Marie Henckaerts, ‘Study on CustomaryInternational Humanitarian Law: A Contribution to the Understanding and Respect for the Ruleof Law in Armed Conflict’, International Review of the Red Cross, vol. 87, no. 857 (2005), pp.175-212. - 43 -
  • 49. Hugh Breakey and Angus Francis 16fighting. These conditions would have been fulfilled in most recent atrocitycases, including Rwanda, Srebrenica, Kosovo, Darfur, the DemocraticRepublic of the Congo, Côte d’Ivoire and (importantly for our purposes)Libya.Libya represents the coming together of R2P and PoC to prevent massatrocities. The Security Council Resolutions are accompanied by repeatedreference to the mass violence and attacks on the civilian population byLibyan authorities. There are none of the usual caveats in PoC mandatesthat might limit the scope of protection. Of course, there is the explicitrejection of ground troops, but this goes to the means of protection asopposed to who is being protected and against what.The prevention of crimes against humanity in Libya is only one context inwhich the R2P and PoC norms might converge. They could also convergeto prevent or respond to war crimes, genocide and ethnic cleansing. In thefuture another Rwanda might be prevented if we had an effective R2Pprinciple to generate political action and hold states to their obligations underthe Genocide Convention, together with a UN and regional peacekeepingforce mandated and appropriately resourced to protect civilians.In all, while the distinct status and scope in law of PoC and R2P duties mustbe recognised, and will be important in various applications, once atrocitycrimes begin in earnest in cases like Libya, the two normative regimes willconverge.Institutional LevelINSTITUTIONAL DIVERGENCE BETWEEN R2P AND POC IN NON-REACTIONAND NON-ATROCITY CASESThere are several institutional contexts where R2P and PoC must bedistinguished.First, R2P’s preventive agenda is quite different to PoC’s. Several sorts ofinstitutions are employed by R2P in pursuit of the prevention of atrocitycrimes. The Office of the Secretary General (including the Joint Office of theSpecial Advisors), the General Assembly and Regional Organisations are allcalled upon by R2P to engage in preventive actions with the mutual consentof all involved. Such actions may include preventive deployments, capacity 17building, training peacekeepers, dispute resolution and more. R2P, ratherthan PoC, is better able to promote this deep preventive agenda becausethe threat of atrocity crimes is morally graver, and has larger consequences16 Robert Kolb and Richard Hyde, An Introduction to the International Law of Armed Conflicts(Oxford: Hart Publishing, 2008), pp. 78-81.17 UN Secretary-General, Implementing the Responsibility to Protect, A/63/677, 12 January2009; UN Secretary-General, The Role of Regional and Sub-Regional Arrangements inImplementing the Responsibility to Protect, A/65/877–S/2011/393, 27 June 2011.- 44 -
  • 50. Normative, Institutional and Operational Relationships between R2P and PoCfor international peace. R2P therefore, can act as a rallying cry forpreventive action as much as action in response to imminent atrocity.Arguably, R2P’s narrower ambit also makes preventive action moretractable: prevention of atrocities is manageable in a way that prevention of 18armed conflict per se is not. The institutional difference here is pronouncedvis-à-vis the General Assembly. As the institution that controls the internalorganisation and funding of the UN’s organs, the development of R2P’spreventive capacities reposes primarily in the hands of the Assembly. TheAssembly has, however, arguably not yet been up to the challenge it 19imposed on itself in the Outcome Document, with only weak support being 20offered, for instance, to the R2P Special Advisor to the Secretary General.Given that the likely concerns of the Assembly surround R2P’s controversialThird Pillar action however, its hesitancy is misplaced. As Resolution 1973amply demonstrates, decisions over Third Pillar military action lie firmly inthe hands of the Security Council. The Assembly’s lack of support for R2Pundermines only R2P’s consent-based, preventive capacities.Second, like other preventive measures, the institutional development of 21R2P early-warning mechanisms is important. In this case, once again, thespecificity and gravity of R2P crimes make it a more effective device—ascompared to PoC—for motivating the development of such capacities.Specifically, since robust early-warning impacts on various aspects ofsovereignty, R2P’s norm of “sovereignty as responsibility” shapes as anineluctable factor in the institutional development of such capacities byregional and global organisations. It is only because states no longer areunderstood to have the authority to perform atrocities on their people that anormative space is opened for monitoring state in this regard.Third, R2P and PoC will be strongly distinguished by states that are facedwith civil disturbances threatening civilians, especially when state actors areimplicated in such threats. In such cases, states may be effectively facedwith a choice between PoC and R2P. That is, they may opt for thedeployment of an international peacekeeping operation with a robust PoCmandate in order to demonstrate that the situation in their country is not onethat should be approached, as Libya ultimately was, through the R2P PillarThree lens. States in this position will thus perceive R2P and PoCdisjunctively.18 Alex Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge:Polity, 2009), pp. 102-31.19 UN General-Assembly, Res. 60/1: World Summit Outcome Document, A/Res/60/1, 16September 2005, para. 139.20 See the opposition described in:<http://www.responsibilitytoprotect.org/index.php/component/content/article/3618>21 Secretary-General, Implementing the Responsibility to Protect, Annex; UN Secretary-General,Early Warning, Assessment and the Responsibility to Protect, A/64/864, 14 July 2010. - 45 -
  • 51. Hugh Breakey and Angus FrancisINSTITUTIONAL CONVERGENCE BETWEEN R2P AND POC IN SECURITYCOUNCIL REACTION-TO-ATROCITY CASESIn cases of reaction to imminent atrocity, like Libya, the norms of R2P andPoC will converge upon the institution of the UN Security Council. In termsof PoC, while the Security Council concerns itself with many differentsituations where civilians are threatened, it has determined that the gravestand most large-scale cases of threats to civilians (i.e. atrocity crimes) may 22constitute a threat to international peace and security. Given the SecurityCouncil’s mandate and powers under Chapter VII of the UN Charter, thisdetermination authorises the Security Council to act to protect civilians,including by the use of military force if necessary.In terms of R2P, the same determination by the Security Council regardingthreats to international security is applicable. Here too however, there isadditional political and legal support for the role of the Security Council. TheOutcome Document, pursuant to the UN Charter, explicitly places decisionsregarding coercive and military action in the hands of the Security Council.The largest ever gathering of world leaders therefore, have consented to therole of the Security Council in determining the proper response to atrocitycases. On a like footing, Article VIII of the Genocide Convention providesthat the contracting parties may “call upon the competent organs of theUnited Nations to take such action under the Charter … as they considerappropriate for the prevention and suppression of genocide”. Here too, theSecurity Council is the primary—if not exclusive—organ of the UN vestedwith the authority to prevent genocide by a member state of its own people.Thus, in cases of imminent atrocity, both PoC (through threats tointernational peace) and R2P (additionally through the Outcome Documentand the Genocide Convention) converge in placing the authority for action onthe institution of the UN Security Council.Operational LevelOPERATIONAL DIVERGENCE BETWEEN R2P AND POC IN NON-REACTIONAND NON-ATROCITY CASESAt the operational level, it will often be important to sharply distinguish R2Pand PoC. Two examples follow:First, in the last decade humanitarian actors (Oxfam, the InternationalCommittee of the Red Cross (ICRC) and so on) have increasingly come toplay a key role in PoC, not only in their traditional roles of advocating forcivilians and those hors de combat and in urging states to ratify IHL treaties,but more directly by targeting and expanding their humanitarian activities in22 United Nations Security Council, Resolution 794 (1992), 3 December 1992, Preamble;Resolution 1265 (1999), 17 September 1999, para. 10; Resolution 1296 (2000), 19 April 2000,para. 5.- 46 -
  • 52. Normative, Institutional and Operational Relationships between R2P and PoC 23order to enhance the protection of local civilians from violence. The focusof such humanitarian operations is explicitly, and rightly, on PoC rather thanR2P. In R2P situations, when armed parties have the systematic destructionor persecution of a civilian population as one of their settled war aims, thetypes of pacific solutions utilised by humanitarians are no longer viableand—indeed—the humanitarians themselves are likely to be in gravedanger. On the operational plane at least, PoC is a focus of humanitarianactors in a way that R2P cannot be.Second, the literature on peacekeeping operations has found it useful todistinguish ordinary peacekeeping operations’ engagement with PoC from‘R2P missions’ in the sense that the latter calls for a much deeper andsystematic response to civilian protection. In R2P situations, there is thethreat of atrocity crimes, meaning that violence against civilians is notperipheral to the armed conflict. Rather, the threat against civilians posed byone or both sides is large-scale, deliberate and systematic. At anoperational level, this type of threat must be dealt with quite differently toinstances of small-scale, localised and opportunistic violence againstcivilians. As Holt and Berkman argue, in making this distinction, a military intervention designed expressly to protect civilians from mass killing is fundamentally different from a peace operation mandated to protect civilians from much lesser risks.24As such, it is important to distinguish ‘PoC missions’ from ‘R2P Pillar Two 25missions’. As Rwanda and Srebrenica have taught us, if a peace operationis mandated and resourced only for dealing with sporadic violence againstcivilians it will find itself impotent in the face of determined armed opposition.One cannot send a PoC mission to do an R2P Pillar Two mission’s work.23 See, for example, Hugo Slim and Andrew Bonwick, Protection: An ALNAP Guide forHumanitarian Agencies (London: Overseas Development Institute, 2005); Inter-AgencyStanding Committee (IASC), Growing the Sheltering Tree: Protecting Rights throughHumanitarian Action, Programmes and Practice Gathered from the Field (Geneva: UNICEF,2002); Sorcha O’Callaghan and Sara Pantuliano, ‘Protective Action: Incorporating CivilianProtection into Humanitarian Response’, HPG Report 26, December 2007; Oxfam, Protectioninto Practice (Oxford: Oxfam, 2005).24 Victoria Holt and Tobias Berkman, The Impossible Mandate? Military Preparedness, theResponsibility to Protect and Modern Peace Operations (Washington: The Henry L. StimsonCenter, 2006), p. 3; see similarly: Siobhán Wills, Protecting Civilians: The Obligations ofPeacekeepers (Oxford: Oxford University Press, 2009), p. 80, though Wills makes thisdistinction between two types of R2P activity, rather than between R2P and PoC.25 There is no such thing as a R2P Pillar Three peacekeeping mission. Peacekeepers cannotoperate if a state government with a functioning military treats them as an invading force.Complicatedly however, R2P Pillar-Two-and-a-Half peacekeeping missions are possible. Inthese cases, states acquiesce for political reasons at an executive level to the deployment ofinternational peacekeepers with protection mandates. However, elements of the state or state-sponsored actors are nevertheless pursuing objectives of ethnic cleansing or genocide.Rwanda is a historic example of such a case, the Darfur region of the Sudan presents acontemporary one. - 47 -
  • 53. Hugh Breakey and Angus FrancisOPERATIONAL CONVERGENCE BETWEEN R2P AND POC IN SECURITYCOUNCIL REACTION-TO-ATROCITY CASESThe operational convergence of R2P and PoC in terms of reaction toatrocities is plainly in evidence in UN Security Council Resolution 1973.Action here occurs under the express PoC rubric. Indeed, the Resolutionrefers only obliquely and fleetingly to R2P, and instead phrases the operative 26part of the resolution explicitly in terms of the protection of civilians. Theaction was however—and as noted earlier—manifestly R2P in design, 27procedure and outcome.While R2P in principle is explicit in opening a space for direct, robust militaryforce as a last resort, the military action of the international forces (ultimatelyheaded by NATO) demonstrated that, once there is an imminent threat ofatrocity, PoC allows for the direct application of force against the militarytargets of a regime. This is particularly true in cases like Libya, wheremembers of the international community came to regard the regime itself asconstituting a standing large-scale threat to a civilian population. If itbecomes plausible to believe—or culpably naïve to deny—that one party to aconflict will, if a future opportunity presents itself, deliberately engage inatrocities against civilians, then a direction to take “all necessary measures” 28to protect civilians comes perilously close to a mandate to neutralise thearmed forces of that regime and/or to support the regime’s opponents in theirendeavours against it. That is, at the point where it becomes reasonable tobelieve that any future armed victory of the Gaddafi regime over the 29insurgency would imperil the civilian population of Benghazi, then theneutralisation—or at least the demobilisation—of Gaddafi’s forces becomesan ineluctable avenue to the protection of civilians. To be sure, issues ofmission creep here are a legitimate concern, and the UN Security Councilwisely curtailed the scope for interpretation of Resolution 1973 by explicitly 30ruling out the presence of ground forces. It is nevertheless clear that, asfar as the UN Security Council (and the actors that engage on its behalf) is26 United Nations Security Council, Resolution 1973 (2011), 17 March 2011, paras 4-5.27 It is also likely (though not certain) that, despite its non-invocation of R2P, Resolution 1973will come to be acknowledged as an official R2P resolution, through the process of authoritativeinterpretation. Given the Secretary-General’s position on the tight link between R2P andResolution 1973 (UN Secretary-General, ‘Statement by the Secretary-General on Libya’, 17March 2011, <http://www.un.org/apps/sg/sgstats.asp?nid=5145>, it is likely that he will describeResolution 1973 as an instance of R2P action in, for instance, his next thematic report on PoCto the Security Council. When the Security Council takes note of the Secretary-General’s reportin the Preamble to their subsequent thematic resolution on PoC, if they do not explicitly rejectthis characterisation of Resolution 1973, then it will be reasonable to accept the Secretary-General’s characterisation as an authoritative interpretation of Resolution 1973.28 United Nations Security Council, Resolution 1973 (2011), 17 March 2011, para. 4.29 Benghazi was the explicit population-centre of concern in United Nations Security Council,Resolution 1973 (2011), 17 March 2011, para. 4, and the subject of Gaddafi’s threats of attackwith “no mercy”.30 They here followed the lead of the various relevant regional organisations, especially theLeague of Arab States, which had called for the no-fly zone but drawn the line at deployingground troops. See Williams, ‘Briefing: Libya’, pp. 252-3.- 48 -
  • 54. Normative, Institutional and Operational Relationships between R2P and PoCconcerned, PoC is no less able than R2P to provide for the direct and robust 31use of military force.ConclusionIn conclusion, there is a close relationship between these two powerfulinternational protection norms. This is to be expected: principles that haveevolved rapidly in the last decade in response to the same humanitariantragedies draw on the same well of international obligation, espouse thesame language of civilian protection, and engage a similar cross-section ofprotection actors. In the specific context of UN Security Council reaction toimminent atrocities by states on their own populations, this article hasargued that the normative bases, institutional structures and operationalcapacities of R2P and PoC converge. UN Security Council Resolutions1970 and 1973 are at once both R2P and PoC resolutions.Yet this does not mean more generally that either norm collapses into theother. As has been argued, the legal instruments underpinning PoC andR2P remain distinct, the institutional prevention agenda of R2P is strongerthan that of PoC, states implicated in atrocity crimes will be faced with achoice between PoC peacekeeping and R2P Pillar Three sanction, andpeacekeeping and humanitarian actors will on an operational planedistinguish sharply between PoC and R2P contexts. Thus, while theagendas of R2P and PoC overlap in the most visible cases, they yet remainnormatively, institutionally and operationally distinct.Casting back to the first of the two questions raised at the beginning of thisarticle, the scope of R2P must remain narrowly focused on atrocity crimes.Smearing this key distinction between the norms and expanding R2P’sscope to include all violations of PoC would widen its potential applicabilitydramatically, rendering the norm unworkable in practice and unacceptable inlegal and institutional terms. On the second question of the comparativecontroversy of the two norms however, the two norms are closer than usuallyallowed. PoC—at least in the hands of the UN Security Council, rather thanpeacekeepers, combatants and humanitarians—has allowed for thepossibility of Chapter VII action in the gravest cases at least since the UNSecurity Council’s thematic PoC Resolutions of 1999 and 2000, and 32arguably as far back as Resolution 688 on Iraq in 1991. When war crimes31 The recent use of decisive military force in Côte d’Ivoire on the basis of the PoC elements ofUnited Nations Security Council, Resolution 1962 (2010), 20 December 2010 and Resolution1975 (2010), 22 December 2010 also attests to this link between PoC and (regime changing)robust force. See UN Secretary-General, ‘Statement by the Secretary-General on the Situationin Côte DIvoire’, 4 April 2011.32 United Nations Security Council, Resolution 688 (1991), 5 April 1999; Resolution 1265 (1999),17 September 1999; Resolution 1296 (2000), 19 April 2000. - 49 -
  • 55. Hugh Breakey and Angus Francisbecome atrocity crimes, the UN Security Council position on PoC comports 33exactly with its position on R2P.As this article has shown, the relationship between R2P and PoC iscomplex. Genuine overlap is possible, but as a general matter each normremains distinct. As the UN Secretariat moves to implement the R2P 34norm, the above analysis points to the need for careful attention to thespecific areas where R2P and PoC converge and diverge.Dr Angus Francis lectures in public international law and refugee law at the QueenslandUniversity of Technology’s Faculty of Law and is the Programme Leader of the Faculty’s HumanRights and Governance Research Programme. He is currently undertaking research into therelationship between the Responsibility to Protect and Protection of Civilians as part of acollaborative grant funded by the Australian Responsibility to Protect Fund.angus.francis@qut.edu.au.Dr Hugh Breakey is a Research Fellow at the Institute for Ethics, Governance and Law atGriffith University, Australia. He researches on the nature of rights, especially bodily, intellectualand property rights, and their relation to laws, duties, responsibilities, and internationalprotection norms. h.breakey@uq.edu.au33 This explains why, despite the differences between the two norms discussed throughout thisarticle, the Security Council consistently considers R2P under the broader rubric of PoC: e.g.S/RES/1674; S/RES/1894.34 UNSG, Implementing the R2P; UNSG, Early Warning, Assessment and the Responsibility toProtect, UN Doc A/64/864 (14 July 2010); UNSG, The Role of Regional and Sub-RegionalArrangements in the Responsibility to Protect, UN Doc A/65/877 (27 June 2011).- 50 -
  • 56. A Feuerbachian Inversion: From Sovereign Rights and Subjects Duties to Citizen Rights and State Duties Charles SampfordThe responsibility to protect (R2P) and the Protection of Civilians (PoC) are emerginginternational norms (or principles) with similar origins and covering similar ground. One of themost attractive features of R2P and PoC is the priority it gives to human rights over state rights.R2P emphasises that states to not have rights to intervene but harmed civilians have rights toprotection and states have responsibilities. This radical inversion carries into internationalnorms the ‘Feuerbachian’ inversion of domestic norms imposed on Westphalian sovereigns byenlightenment thinkers—who insisted that subjects did not have to prove their loyalty tosovereigns but that states had to justify themselves to their citizens. However, there remainsconcern at potential overreach and abuse and the ways in which the risk of such abuse may belimited. The reservations are at least as firmly grounded in western and Westphalian traditions.However, I will argue that the latter fear should not trump the feelings of empathy forunprotected civilians whose lives and livelihoods are threatened by conflict. The risk of abuseshould be recognised and addressed by legal and institutional means.The responsibility to protect (R2P) and the Protection of Civilians (PoC) are 1emerging international norms (or principles ) covering similar ground. Oneof the most attractive features of R2P and PoC is the priority it gives tohuman rights over state rights. R2P emphasises that states do not haverights to intervene but harmed civilians have rights to protection and stateshave responsibilities. This radical inversion carries into international normsthe inversion of domestic norms imposed on Westphalian sovereigns byenlightenment thinkers—who insisted that subjects did not have to provetheir loyalty to sovereigns but that states had to justify themselves to theircitizens. These related inversions take the same form as Feuerbach whofamously challenged the idea that God created man in His image with theidea that man may have created God in his.However, there remains concern at potential overreach and abuse and theways in which the risk of such abuse may be limited. I will argue that theyshould not be seen as ideas from the West imposed on the rest. They aremuch more broadly grounded than that, finding support in (i) the empathy forothers that is part of being human and which finds a variety of expressions inthe religions and cultures of the world; (ii) the claims by all rulers to protect1 Edward Luck, UN Security Council: Practice and Promise (London: Routledge, 2006).Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 51-60. - 51 -
  • 57. Charles Sampfordtheir followers and (iii) the fact that many rulers have persecuted rather thanprotected their subjects.Similarly, the reservations are at least as firmly grounded in western traditionthan that of others. Indeed, it was the miseries inflicted by seventeenthcentury interventions purportedly to protect co-religionists that led to theprinciples of non-intervention in the first place—leading to a Westphalian‘wisdom’ that interventions generally produce much more harm than good.However, I will argue that the latter fear should not trump the feelings ofempathy for unprotected civilians whose lives and livelihoods are threatenedby conflict. The risk of abuse should be recognised and addressed byinstitutional means.Shared OriginsIt is widely said that R2P and PoC share common origins in internationalhumanitarian law (IHL) and in human rights law. I suggest that they springfrom the same roots.Both norms emphasise the value of protecting members of othercommunities from violence (R2P and PoC) and other severe deprivations(PoC). Although all cultures celebrate the special ties we have withparticular groups of fellow humans (kin, locality, ethnicity, religion and cultureitself). While these values may be utilised to generate conflict, most or allcultures recognise, in one form or another, a common humanity—and aconcern for others. The duties to avoid harming others and to go to the aidof those who are suffering are a prominent part of many religions. In the lastcentury it has been formalised in IHL, reinforced by the UN Charter, the UNDeclaration on Human Rights and the Human Rights Conventions. Whilethese are obligations to which all nations have committed, this does notmean that we should ignore the variety of supports found within the culturesand religions of the world. It means that we should emphasise these as partof ‘norm localisation’.Both norms emphasise the primary responsibility of the relevant sovereignstates—an idea that is grounded in the long standing attempts by rulers tolegitimise their regimes based on the claim that they protected their people.While there were other claims to legitimacy, this is always, at least, asupplementary claim of those who justify the power they wield.Protectors and Persecutors—Leviathans and TyrantsOf course, with every grant of power comes the possibility of abuse. Whathappens if sovereigns do not live up to their claims? What if they cannot orwill not protect their subjects? What if they ‘turn feral’, threatening the verypeople whose defence is the core of their raison d’etre? There is a specialobloquy for those who are entrusted with power for the benefit of another- 52 -
  • 58. From Sovereign Rights and Subjects Duties to Citizen Rights and State Dutiesand use it against them—doctors who murder patients, parents who abusetheir children, teachers who brainwash rather than educate their pupils. It iscommon for the law to treat such abuse of power as aggravating the offence.But sovereigns who turn out to be a greater threat to their peoples than thereal or imagined enemies against whom they claim to provide protection arerarely punished at all. Even when they kill thousands, prison doors do notgenerally open for them. The doors that open for them are those of thepalace at home, the embassy abroad and the private jet in between—as wellas the doors to bankers who lend the tyrant money to buy the plane, thepalace and to pay for the persecution of civilians. And after it is all over, thecitizens will have the responsibility to repay this ‘sovereign debt’.Why is this tolerated? Why do not other states intervene to protect citizensfrom the tyrants who oppress them? The answer lies in the wars of religionwhich involved frequent interventions to purportedly protect co-religionistsfrom persecution. Such interventions were generally undertaken for otherreasons and the intervening forces added to the plight of those on whosebehalf they supposedly intervened. The 1648 Treaty of Westphalia can beseen as grounded on the view that the consequences of intervention were sobad that it was better to let the tyrant do what tyrants do. It was seen asbetter to have refugees streaming over the border out of the tyranny thanhave troops going the other way to stop it. For this reason, I have called theTreaty of Westphalia ‘a tyrant’s charter’—written of the tyrants, by the tyrants 2for the tyrants.Despite the claims of sovereigns to protect their peoples the Westphalianconcept of sovereignty and sovereign legitimacy is effectively predicated onits opposite. Sovereignty is based on effective control of territory. Theeffectiveness is initially established by what I have dubbed, the “prior 3successful use of force” to gain effective control against a previoussovereign. It is maintained by a continued perceived willingness andcapacity to use that force against anyone who would seek to similarlysupplant them. The main threat was traditionally other tyrants or groupsdemanding religious or other freedoms. Members of such groups are notprotected from attack but subject to it. If people did not like the sovereign orwhat was done in his or her name then it was necessary for the sovereign toimpose his will and demonstrate his authority by massacring groups ofsubjects and gruesomely executing their leaders. Rather than giving way tothe wishes of the people, sovereigns saw it as their duty to enforce their willand demonstrate their sovereignty. Their ‘raison d’etre’ was not the rights ofcitizens but the preservation of the dynasty and its authority. Where the2 Excepting the United Dutch Provinces.3 See Charles Sampford, ‘Challenges to the Concepts of “Sovereignty” and “Intervention”’,closing keynote at World Congress on Legal and Social Philosophy, 1999, published in T.Campbell and B.M. Leiser (eds.), Human Rights in Philosophy and Practice, (Aldershot:Ashgate, 2001), pp. 335–91. - 53 -
  • 59. Charles Sampfordcriterion of sovereignty was the prior successful use of force, human rightsviolations did not so much undermine sovereign legitimacy but prove it.One may conclude that, despite traditional claims of sovereigns to protecttheir people, the heart of Westphalian sovereignty undermined it. Theauthoritarian states that were emerging during the century of Westphalia andthose that followed are not so much concerned with protection of civilians but 4protection from civilians and used their claimed monopoly of legitimate forceagainst them. If one were to formulate an R2P or PoC principle forWestphalian states, they would be more likely to refer to a ‘Responsibility toPower’ and power over citizens. For some of the more religiously minded, itmight be seen as the ‘Responsibility to Persecute’.This idea has been embraced by tyrants the world over. This is not an‘eastern’ or ‘Asian’ value. It is a western idea that has been picked up withobscene alacrity.Sovereign Legitimacy—Domestic and InternationalAs we have seen, in 1648 legitimacy in both domestic and international lawand theory was based on the effectiveness of the sovereign’s rule. Withinsome European states, it was challenged almost immediately and withinthirty years concepts of sovereignty in domestic and international law startedto diverge. John Locke argued that sovereigns were entrusted with power.If they abused that trust and became a threat to their people, the latter had aright to revolt. That was a pretty inefficient form of regime change and theright to revolt against governments who did not protect their civilians becamea right to choose the government that best reflected their interests andvalues. This shift was part of what I call the Enlightenment’s great leapforward in which a variety of governance values (liberte, egalite, fraternite,democracy, human rights, and the rule of law) were demanded and partlysecured in United States, United Kingdom and a growing number ofEuropean countries. At its centre was a Feuerbachian reversal of the wayrulers and ruled related to each other. Feuerbach pondered the relationshipbetween God and Man. Christians imagine that God created man in his ownimage. Feuerbach suggested that it was at least as likely that Man createdGod in his own image.Enlightenment philosophes suggested a similar inversion for sovereignty.Before the enlightenment, ‘subjects’ had to demonstrate their allegiance andloyalty to their ‘sovereign’. The philosophes proclaimed that ‘governments’had to justify their existence to ‘citizens’ who chose them. Once the reversalof the relationship was suggested, it was very hard to go back to the old way4 Although Max Weber did not refer to the “monopoly of legitimate force” until 250 years later,the seventeenth century rulers were very much concerned to establish such a monopoly againsttheir ‘over-mighty subjects’. Max Weber, Economy and Society, (Berkeley, CA: University ofCalifornia Press, 1922 [1979]).- 54 -
  • 60. From Sovereign Rights and Subjects Duties to Citizen Rights and State Dutiesof looking at things. Indeed, it became as broadly popular with civilians asWestphalian sovereignty was with some authoritarian states.This approach led to the new basis of sovereign legitimacy in the domesticlaw and political theory of the increasingly large number of democracies—the acquiescence, then consent, then the active choice of the governed.International law, however, has continued to recognise states andgovernments on the basis of who exercises effective political control overdiscrete territories. Even when a democratically elected government isoverturned by a coup d’etat, the ambassadors of the new regime areaccredited by foreign powers and are allowed to take that country’s seat atthe United Nations and other international forums. This glaringinconsistency caused considerable tension and great soul-searching withindemocratic states and led to the tentative and controversial claims that therewas an emerging norm of humanitarian intervention. This revival of pre-Westphalian ideas of intervention faced a lot of hostility that not only citedWestphalian norms but also the sorry history of interventions that helpedstimulate it. One of the problems was that this was formulated as a right ofstates rather than civilians. One of the great achievements of theInternational Commission on Intervention and State Sovereignty (ICISS) wasto effect a similar ‘Feuerbachian inversion’ on the ‘Right to Intervene’. Therelevant rights belonged to human beings. States had responsibilities toprotect them—with the primary responsibility being of the State in which theyreside and contingent responsibility on other states. It is radical because itdenies tyrants the right to do what tyrants have always done and for whichinternational law rewarded them. Accordingly, I see R2P not a westernattempt to interfere in other people’s problems but a global attempt to dealwith a western problem at the heart of the Westphalian system.PoC and R2P—Differences in Origins and ExemplarsR2P and PoC share similar normative origins and are both directed at theidea that states should live up to their claims of protecting their civilians,should receive international support in doing so, and could be ultimatelyrequired to do so. The two principles came together in Libya. In UNSecurity Council Resolution 1970, Colonel Gaddafi was referred to theInternational Criminal Court (ICC) for doing what tyrants traditionally do toprotect their power. In UN Security Council Resolution 1973/5, ColonelGaddafi’s domestic responsibility to protect civilians (R2P Pillar One) wasexplicitly recognised and the use of international uninvited force wasauthorised for the protection of civilians in Libya. It is notable that the UNSecurity Council used PoC rather than R2P pillar three in this case.While the two merged in Libya, R2P and PoC have been developing alongdifferent paths and exemplified by different exemplars, which go a long wayto explaining the differential level of international support. - 55 -
  • 61. Charles SampfordDiscussion of PoC at the international level started with existing armedconflicts and sought to protect civilians in pre-existing conflicts according towell accepted principles of International Humanitarian Law (IHL).Accordingly, PoC was, from the beginning, about reducing the effects ofconflict by an institution established to prevent conflict because of thedisastrous effects or previous conflicts. As such, it has grown with lessfanfare, much more consensus and does not appear to depart from that corebusiness of the UN.By contrast, R2P emerged as a proposed response to enormous challengesposed by Rwanda, Srebrenica and Kosovo where the consequences ofinternal conflict appear so great that the creation of what is effectively a newinternational conflict was seriously contemplated. Indeed, the United Statesand United Kingdom considered them so serious that they were prepared tostart a war that appeared to be contrary to international law.In fact, both PoC and R2P represent a continuum of responses. There arethree ‘pillars’ of R2P: (i) the responsibility of the State, (ii) the responsibility ofthe international community to help the State and, only in rare circumstances(iii) the above responsibility to act in spite of non-consent. PoC can be seento have a range of ‘pillars’ or forms with different versions of the norm forrelevant actors (Combatant PoC, Humanitarian PoC, Peacekeeping PoC,Security Council PoC).R2P was contentious from the beginning because it was a response to anevent that had led to ‘Pillar Three’ action without the legal authority thatmany (including this author) argued was necessary at the time and whichICISS later argued. PoC was less controversial because it started with theaccepted legal obligations of combatants.From Pillars to PyramidsWhile the architectural metaphor of a pillar is a common one, I am 5increasingly inclined to doubt its utility here. Pillars are seen as separateand of similar size and height (without which they cannot hold up a lintel).But in R2P and PoC, the various elements are only effective if they interactand neither are, nor intended to be, of similar size and weight. In R2P, theprimary emphasis is on the responsibilities of host governments and theresponsibility of other states to assist them in that responsibility rather thanto supplant them in this role. In PoC the primary obligation is on combatantsand the state (if it is not one of the combatants) with international actorsfilling in gaps. This suggests a different architectural metaphor—a pyramid:5 See Discussion in Charles Sampford, Rodney Smith and A. J. Brown, ‘From Greek Temple toBird’s Nest: Towards a Theory of Coherence and Mutual Accountability for National IntegritySystems’, Australian Journal of Public Administration, vol. 64, no. 2 (2005).- 56 -
  • 62. From Sovereign Rights and Subjects Duties to Citizen Rights and State Duties 1. The less coercive versions of the norm will have the largest application—indicating the solid and broad base of the pyramid. The more interventionist and ultimate coercive measures are the higher and narrower steps on the pyramid. 2. Even if the norms covered by Pillar Two or Pillar Three are called on, the Pillar One responsibility of states remains in force and the state will be expected to contribute where it can. International assistance is still to assist, not to supplant that responsibility. Thus the various norms build on each other and are simultaneously present and in force. The same is true of PoC where combatant PoC is primary. 3. It gives the greatest role in protection to the sovereigns who claim to provide it as justification for their sovereign power. 4. In terms of protection actually given, most is provided by intra-state forces—though it is important to emphasise the critical role of non- state elements. The latter play a critical and not always recognised role in normal times when civilian security is not merely supported by security forces such as army, police and fire brigades but by community groups, the way people live and physical barriers such as locks on doors which together constitute what I call “civilian 6 protection systems”. It is even more relevant in times of disorder when the security forces are ineffective, feral or partially replaced by international civil-military forces. Effective international assistance with the agreement of the sovereign state (Pillar Two) or with UN Security Council mandate (Pillar Three) can only do so much and needs the collaboration and support of community groups from the populations to be protected even more than they need it from international NGOs. 5. One might go further and suggest that communities have been protecting themselves since pre-historic times and that this constitutes the real base of the pyramid on which the state (generally) provides another, smaller step and international action an even smaller one.This approach reflects much thinking about norms and regulation such as 7Braithwaite’s ‘enforcement pyramid’ for corporate regulation. Regulatorygoals are not principally achieved by the threat, let alone the imposition ofsanctions. The availability of sanctions is useful, sometimes necessary tosecure compliance from some and to provide extra reasons for compliance6 See Charles Sampford, Protection of Civilians and the Rule of Law, Challenges ofPeacekeeping Forum, 2010.7 See Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the DeregulationDebate (New York: Oxford University Press, 1995). - 57 -
  • 63. Charles Sampfordfrom others. But most compliance needs to be through norm-setting thattaps into pre-existing norms—the lowest and broadest step. These shouldbe publicised and justified with the engagement of relevant sanctions—oneview of the next step. Minor and first breaches generate reminders (anotherstep) which, if ignored, lead to minor or conditional sanctions (yet another).The imposition of significant sanctions is near the top and ‘corporate capitalpunishment’ as the tiny but very useful peak. While capital punishment forindividuals is unacceptable for most, using it for organisations may be a verysensible approach and should be considered more often. If a regime is nolonger recognised by the international community as a whole and by keyinternational institutions (such as the UN, World Trade Organisation or Bankof International settlements) its viability is, at the very least, limited.The pyramid metaphor might be useful in emphasising the time and effortthat must go into building them. The pyramid metaphor is also useful inunderstanding the greater difficulties in securing acceptance for R2P. WhilePoC has been built up from its broad base—and the pointy end has onlybeen attached this year through UN Security Council Resolution 1973—withR2P, the construction had to start from the pointy end because that waswhat addressed the Kosovo issue which was the raison d’etre for itscreation. While there is a great deal of mystery about the way that thepyramids were built, one does not have to be either a stonemason or anengineer to know that this is not the recommended method of buildingpyramids. Given the construction brief, progress has been remarkable.Potential Overreach and AbuseThe largest obstacle to securing broader support for R2P is, of course, theconcern that it may be abused through its use to justify invasions mountedfor other reasons. This is a concern that should be fully acknowledged andaddressed. The thoroughly western Westphalian principle of non-intervention was generated by direct experience of the consequences ofabuse. The ICISS report acknowledged the risk—a risk that materialisedalmost immediately when Commissioner Ignatieff used it to justify the 8invasion of Iraq.The potential of overreach is not confined to R2P. The Red Cross definesPoC as “all activities aimed at obtaining full respect for the rights of theindividual in accordance with the letter and spirit of the relevant bodies oflaw”—a formulation that seems to go beyond protection to promoting rightsand better societies. I could imagine a member of the G6 seeing in thosewords the possibility that foreign forces might enter a country with UNSecurity Council and home state approval but would then be engage in setabout pursuing “all activities aimed at obtaining full respect for the rights ofthe individual in accordance with the letter and spirit of the relevant bodies of8 M. Ignatieff, ‘Why Are We in Iraq?’ New York Times, 7 September 2003, 38ff.- 58 -
  • 64. From Sovereign Rights and Subjects Duties to Citizen Rights and State Dutieslaw”. Given the range of international human rights laws and their expansiveand ambitious spirit the foreign forces would be there forever. Indeed, noneof the western countries that contribute to peace keeping forces provide fullrespect for individual rights set out in the UN Conventions that they haveratified. Of course, the Red Cross did not intend such outcomes. Ininternational civil military operations, foreign forces are fully extended tryingto secure basic protection, securing food and medical supplies and supportfor the rule of law. The spirit of human rights is left to supportive NGOs andstate officials. However, fine words penned with good intentions by thosewith the purest motives can be used for other purposes and it is well toaddress and limit those risks.Limiting the Risk of AbuseThree ways of limiting this risk occur to me—sticking to the Westphalianformula, narrowing the scope, utilising two R2P ‘moves’ and subjecting allaction in pursuit of R2P and PoC to the international rule of law. I willdiscuss the third and conclude with the last.The ICISS made two very important moves in constructing R2P to make itless amenable to abuse. The first was to perform the ‘Feuerbachianinversion’ on the claimed ‘right of humanitarian intervention’ by insisting thatthe only rights were those of the civilian population—states hadresponsibility. The second was to emphasise that the primary responsibilitywas that of the state where the relevant civilians lived. Responsibilities ofothers was to assist that state with its agreement and only in the rarest ofoccasions, and even then only with full legal authority, without thatagreement. This was formalised in the 2005 three pillars approach.PoC effectively operates under a similar regime—starting with, and definedby, individual human rights and with a strong emphasis on assisting states tofulfil their primary duty. I have suggested that similar moves might clarifyPoC and avoid any concerns at overreach under the Red Cross definition.The number and scope of rights covered by PoC stands: but the primaryresponsibility for their realisation lies with the state where the civilians arelocated. Humanitarian actors and peacekeepers have a role in assisting—with the latter involved in more limited security roles set out in their mission.The UN Security Council has an overall responsibility for helping to marshalinternational support and, in very rare cases, insisting on it.The pillars approach is not only a means for preventing abuse but enablesclearer thinking and more effective action. A general norm is not self-implementing. Such implementation will usually require several actors tocontribute consecutively, contemporaneously and sometimes in both ways.If they are to play their role in implementing the norm, it is important toensure detailed normative guidance through customised norms and, wherenecessary, formal prescription through detailed laws. They also need - 59 -
  • 65. Charles Sampfordappropriate institutional structures and operational procedures to fulfil thatrole. The R2P pillars can be seen as structured in this way. Pillar oneaddresses the role of the state. Pillar two addresses the role of other stateswhen consensually assisting a state. Pillar three addresses the role of theUN Security Council and member states providing that assistance withoutthe consent of the host state.As indicated, PoC could be similarly pillarised (if not pilloried). CombatantPoC deals with the role of the combatants, PoC2 with peacekeepers, PoC3with other humanitarian actors and PoC4 with the UN Security Council. Wehave sought to identify the relevant norms, institutions and operationalprocedures for each (though we do not attempt, in this project, to do so inthe detail that military and police forces do).R2P and PoC ultimately give the UN Security Council, and those theyauthorise, power. The natural concern that such power might be abused canbe addressed by making the conferral of such power conditional on those soauthorised accepting the jurisdiction of the International Court of Justice andICC.There should be no irony in insisting that new international norms take theirplace within, rather than outside the international law among which theirproponents would like it to take its place. That is how the Westphaliantyrannies became the eighteenth century rechstaats and ultimately liberaldemocracies. And it is how the potential tyranny of self-serving interventionscan be addressed.ConclusionAs we have seen, R2P and PoC are deeply embedded in the claims ofsovereigns to protect their people—claims with which they justify sovereignpower. Unfortunately, the abuse of such power was not only frequent butgrounded claims to sovereignty in both domestic and international law andpolitics because it demonstrated effective control. This made the Treaty ofWestphalia a ‘tyrant’s charter’. The enlightenment inspired democraticrevolutions of the eighteenth century performed a Feuerbachian inversion ofthe relationship between sovereign and subjects by which sovereign stateshad to justify themselves to, and be ultimately chosen by, those they nowcalled ‘citizens’. R2P and PoC offer a similarly Feuerbachian inversionwithin international law and politics. The concerns about R2P are notparticularly eastern/southern but reflect the disastrous experience withinterventions that spawned Westphalia. Part of the solution is to emphasisethe primary responsibilities of states for the protection of civilians. But theonly effective solution in international affairs is the same as that in domesticaffairs—to subject the use of force to legal rules.Charles Sampford is Professor in the Law and Justice Research Centre of the QueenslandUniversity of Technology. c.sampford@griffith.edu.au.- 60 -