security challenges volume 7 number 4 (summer 2011)

Security Challenges

Volume 7 Number 4 (Summer 2011)

Security Challenges ISSN 1833 – 1459

EDITORS: Dr Stephan Frühling and Dr Benjamin Schreer Managing Editors [email protected] Robert Wylie Geoff Hunt Consulting Editor Defence Industry Policy Production Editor [email protected] [email protected]

EDITORIAL BOARD: Robert Ayson Victoria University Wellington, New Zealand

Ross Babbage The Kokoda Foundation Canberra, Australia

Sam Bateman University of Wollongong Wollongong, Australia

Leszek Buszynski International University of Japan, Tokyo, Japan

Eliot Cohen John Hopkins University, Washington, DC, USA

Ralph Cossa Pacific Forum CSIS Honolulu, Hawaii, USA

Bates Gill Stockholm International Peace Research Institute, Stockholm, Sweden

Gerald Hensley Former Secretary of Defence New Zealand

Rod Lyon ASPI Canberra, Australia

Andrew Mack Simon Fraser University Vancouver, Canada

Rizal Sukma Centre for Strategic and International Studies Jakarta, Indonesia

Ramesh Thakur Asia-Pacific College of Diplomacy, Australian National University Canberra, Australia

William Tow Department of International Relations, Australian National University Canberra, Australia

Akio Watanabe Research Institute for Peace and Security Tokyo, Japan

Project Management and Cover: Qote Canberra (02) 6162 1258 Published and distributed by: The Kokoda Foundation 2/10 Kennedy St (PO Box 4060), Kingston ACT 2604 T: (02) 6295 1555 F: (02) 6169 3019 E: [email protected] W: www.securitychallenges.org.au © The Kokoda Foundation. All rights reserved. Apart from any fair dealing for the purposes of private study, research, criticism or review as permitted by the Copyright Act, no part of this publication may be reproduced, stored, transmitted or disseminated in any form or by any means without prior written permission. Inquiries should be made to the publisher. All articles published in Security Challenges are fully peer-reviewed. Any opinions and views expressed are those of the authors, and do not necessarily reflect the opinion of the Kokoda Foundation or the editors of Security Challenges.

RESPONSIBILITY TO PROTECT AND PROTECTION OF CIVILIANS

Vesselin Popovski The Concepts of Responsibility to Protect and Protection of Civilians: ‘Sisters, but not Twins’ ......................................................................................... 1 Ramesh Thakur Libya and the Responsibility to Protect: Between Opportunistic Humanitarianism and Value-Free Pragmatism................ 13 Michael G. Smith, Jeni Whalan and Peter Thomson The Protection of Civilians in UN Peacekeeping Operations: Recent Developments .......................................................................................... 27 Hugh Breakey and Angus Francis Points of Convergence and Divergence: Normative, Institutional and Operational Relationships between R2P and PoC... 39 Charles Sampford A Feuerbachian Inversion: From Sovereign Rights and Subjects Duties to Citizen Rights and State Duties 51

MYANMAR

John Blaxland Myanmar: Time for Australian Defence Cooperation .......................................... 61 Christopher B. Roberts Changing Myanmar: International Diplomacy and the Futility of Isolation ............................................. 77

ARTICLE

Vandra Harris and Aaron P. Jackson Learning Each Other’s Language: Doctrine and AFP-ADF Interoperability ................................................................ 103

Editors’ Note

Welcome to the Summer 2011 edition of Security Challenges. The recent Libya intervention has put the future of the Responsibility to Protect (R2P) back on the international agenda. In this edition, Ramesh Thakur and other prominent authors discuss this concept and its practical implications from different angles. Moreover, Myanmar seems to have embarked on a process of significant political change in recent months. In this context, John Blaxland writes about the potential for defence engagement between Australia and Myanmar, while Christopher Roberts argues for ending international sanctions against the regime. Finally, the edition features an article by Aaron Jackson and Vandra Harris on the crucial issue of how to promote interoperability between the Australian Federal Police (AFP) and the Australian Defence Force (ADF).

Stephan Frühling

Benjamin Schreer Managing Editors

December 2011

The Kokoda Foundation

and the

Security Challenges Editorial Team

wish to acknowledge the generous support of

The Australian Department of Defence

and

Jacobs Australia

for the production and printing of the journal.

Security Challenges, Vol. 7, No. 4 (Summer 2011), pp. 1-12. - 1 -

The Concepts of Responsibility to Protect and Protection of Civilians:

‘Sisters, but not Twins’

Vesselin Popovski

This article examines the differences and commonalities between the concepts ‘Protection of Civilians’ (PoC) and ‘Responsibility to Protect’ (R2P) in terms of their origins, evolution and applicability to various situations. Such comparative analysis is necessary as to avoid confusion and misinterpretation. The main argument is that the two can be regarded as ‘sister’ concepts, reinforcing each other, particularly when it comes to critical situations, the most recent example being the international responses to the deadly threats to civilians in Libya in February-March 2011 and the measures imposed by the UN Security Council Resolutions 1970 and 1973. The article also assesses whether the responses to the crisis in Libya represent a triumph or a failure of the ’sister’ concepts.

With the failures of the international community and warring parties to protect civilians in major armed conflicts in the last two decades—including Bosnia-Herzegovina, Liberia, Somalia, Rwanda, Burundi, Timor Leste, Democratic Republic of Congo, Sierra Leone, Kosovo, Darfur and elsewhere—two related, but distinct concepts have risen on the international agenda: the duty for Protection of Civilians (PoC) in armed conflict and the Responsibility to Protect (R2P) people from mass atrocities. There is a close relationship between R2P and PoC. They share the same concern—civilian suffering from mass human-induced violence—and both have underpinned international policy and calls for interventions. But there are also important differences in their scope and the situations and ways in which they can be applied. One can argue that they are ‘sister’ concepts: it is important to keep in mind their differences, as to avoid confusion and gaps in responsibilities; but also it is important to exploit the commonalities between the two as to bring mutual reinforcement and co-operation among actors. The two concepts have co-existed for more than a decade, but there has hardly been any in-depth comparative analysis nor a clear differentiation so far, apart from a short anonymous brief written for the Global Centre for R2P.1 The UN Security Council Resolutions 1970 and 1973 on Libya utilised both concepts and have provided us with an opportunity to undertake a more detailed comparison.

1 ‘The Relationship between the Responsibility to Protect and the Protection of Civilians in Armed Conflict’, Policy Brief, Global Centre for the Policy to Protect, 9 May 2011, <http://responsibilitytoprotect.org/The%20Relationship%20Between%20POC%20and%20R2P-%20Updated.pdf> [Accessed 3 December 2011].

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Protection of Civilians

The origins of PoC in armed conflict can be traced in the history of the development of the norms of war, prescribed in early religious texts and developed by many scholars of politics and ethics over many centuries.2 The need to protect the life of civilians and other non-combatants in armed conflicts has been gradually accepted in international humanitarian law, universalised and codified in the 1949 Fourth Geneva Convention. The Fourth Geneva Convention—‘Relative to the Protection of Civilian Persons in Time of War’3—coined the term PoC, and grounded its international legal establishment. PoC, therefore, emerged as relevant to situations of armed conflict only—if there is no armed conflict, where civilians are defined as the opposite of combatants, PoC transforms itself into protection of citizens (that can confusingly also be abbreviated as PoC) in times of peace, which is covered by the well-developed and comprehensive body of human rights. PoC is more limited than the peace-time protection of citizens and more limited than the protection of all non-combatants in times of war—it would not, for example, include the protection of wounded or captured soldiers, which are dealt within the First, Second and Third Geneva Conventions. The International Committee of the Red Cross (ICRC), some UN agencies with protection mandates, such as OCHA (Office for the Coordination of Humanitarian Affairs), UNHCR (United Nations High Commissioner for Refugees), and some humanitarian NGOs interpret the concept of PoC as one of their core activities and apply it in a broader sense, covering not only the period of armed conflict, but also protecting civilians in post-conflict situations, too. PoC has been under regular consideration by the UN Security Council since 1999, when it received the first report of the Secretary-General on the subject.4

Responsibility to Protect

In parallel with the increased attention to PoC, another concept, R2P, has emerged out of a similar concern—the failure to protect people from systematic mass atrocities.5 In 1996, the then Representative of the UN

2 See V. Popovski, G. Reichberg and N. Turner (eds.), World Religions and Norms of War (Tokyo: United Nations University Press, 2009). 3 ‘Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949’, International Humanitarian Law—Treaties & Documents, International Committee of the Red Cross, 2005, <http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument> [Accessed November 2011]. 4 S/1999/957, 8 September 1999. For a full list of all UN Security Council resolutions and Secretary General Reports on PoC, see <http://www.securitycouncilreport.org/site/ c.glKWLeMTIsG/b.4012213/k.481A/Protection_of_Civilians_in_Armed_ConflictbrUN_Documents.htm> [Accessed 19 November 2011]. 5 Ramesh Thakur, The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics (London: Routledge, 2011); Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington DC: Brookings Institution, 2008); Alex J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity, 2009).

The Concepts of Responsibility to Protect and Protection of Civilians

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Secretary-General on Internally Displaced Persons, Francis Deng, with his team at Brookings published the seminal work Sovereignty as Responsibility,6 arguing that sovereignty can no longer be seen as a licence for states to ignore people, but rather as states’ responsibility for the humanitarian consequences of conflict. After yet another failure to protect civilian population—Kosovo Albanians from the Milosevic regime’s repressions in 1998-99—and the controversial un-authorised military intervention by NATO, an International Commission on Intervention and State Sovereignty (ICISS) was formed from the initiative and sponsorship of the Canadian Government, that coined the phrase R2P in its 2001 Report.7 R2P has become a worldwide shared concept, when in September 2005 almost 150 world leaders—the largest ever gathering in history of Heads of States—adopted the document ‘World Summit Outcome’8 at the opening of the UN General Assembly 60th Session in New York, spelling out the newly emerging norm in paragraphs 138-140 of the document. The UN General Assembly continued debating R2P in several of its sessions as is evident from the Reports of the UN Secretary-General in 2009, 2010 and 2011,9 always enjoying a huge support, and with very few countries, still reluctant to accept it.

R2P thus applies to serious situations of mass atrocities, but it does not cover all violations of human rights, nor suffering from natural disasters—as horrific as these might be. One test of the R2P limitations was the 2008 Cyclone Nargis in Myanmar, when some of the initial founders of the concept—Bernard Kouchner and Lloyd Axworthy—attempted to speak about Myanmar’s reckless ignorance of the human suffering as a failure to exercise R2P.10 This could have been possible under the original scope of the ICISS 2001 Report, but not under what was agreed upon by the UN General Assembly in the 2005 World Summit Outcome document. One may argue that if the Myanmar regime’s deliberate impediments to humanitarian assistance had continued and the misery and starvation of people could amount to a policy of extermination, a crime against humanity, then such deliberate inflicting of additional human suffering (not the victimisation from the natural disaster per se) could have triggered the applicability of R2P. However, if evidence does not support such a finding of a crime against

6 D. Rothchild, Fr. Deng, I. W. Zartman, S. Kimaro, T. Lyons, Sovereignty as Responsibility: Conflict Management in Africa Brookings (Washington DC: Brookings Institution Press, 1996). 7 International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, December 2001). 8 ‘2005 World Summit Outcome’, Fact Sheet, UN Department of Public Information, September 2005, <http://www.un.org/summit2005/presskit/fact_sheet.pdf> [Accessed 3 December 2011]. 9 2009 UN SG Report: Implementing the Responsibility to Protect; 2010 UN SG Report: Early

Warning, Assessment, and the Responsibility to Protect; 2011 UN SG Report: The Role of Regional and Sub-regional arrangements in Implementing the Responsibility to Protect. 10 For analysis, see ‘Cyclone Nargis and the Responsibility to Protect’, Myanmar/Burma Briefing No. 2 by the Asia-Pacific Centre for the Responsibility to Protect, <http://www.r2pasiapacific.org/documents/Burma_Brief2.pdf> [Accessed 3 December 2011].

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humanity, an R2P framework cannot be activated, and in such a case other mechanisms—human rights machinery, humanitarian assistance—could be applied instead.

In the case of R2P, the threshold between what falls in and what falls out of the concept lies in the determination of the four atrocity crimes and accordingly, it should not be equated to the general duty to protect citizens from various disasters, nor should its mechanisms be equated with general conflict prevention or conflict resolution; these can be regarded as a much larger and historically more developed agenda. Although prevention of conflicts in general can be a useful contribution in avoiding the occurrence of potential mass atrocities during these conflicts, the focus of the R2P preventive mechanisms should be specified to address particular atrocity crimes. R2P, although narrowed in scope, should have a deep resource: from the domestic, bilateral, regional and international mechanisms, starting from power-sharing agreements (Kenya)11 to the use of military force as a last resort (Libya) can form its arsenal.

Differentiating R2P and PoC

The two concepts have a similar origin, they share the same initial humanitarian impulse, but they have different scope and applicability. Not all war crimes would fall under PoC, because some of them are not committed against civilians, for example, mistreatment of prisoners of war. But all war crimes would fall under R2P, as they represent one of the four atrocity crimes. War crimes against civilians, as well as crimes against humanity committed during armed conflict, would fall under both R2P and PoC and in these situations the two circles of R2P and PoC would overlap.

A situation that would fall under PoC, but not R2P, for example, would be the protection of civilians threatened from escalating armed conflict, if mass atrocities are not planned and committed as part of such armed conflict. A situation that would fall under R2P, but not PoC, would be, for example, ethnic cleansing or crimes against humanity without nexus to an armed conflict. On one hand, PoC is narrower than R2P—if all war crimes trigger R2P, not all war crimes would fall under PoC—some are not committed against civilians. On the other hand, R2P is narrower than PoC; it would not apply in every armed conflict, but only in those in which mass atrocities have been systematically planned and committed.

Interestingly, a situation that originally was not an armed conflict, can escalate into an armed conflict and engage the PoC. The first UN Security

11 Mark Schneider, ‘Implementing the R2P in Kenya and Beyond’, <http://www.crisisgroup.org/en/publication-type/speeches/2010/implementing-the-responsibility-to-protect-in-kenya-and-beyond.aspx> [Accessed 2 December 2011]; also ‘Kenya in Crisis’, Africa report No. 137, <http://www.crisisgroup.org/en/regions/africa/horn-of-africa/kenya/137-kenya-in-crisis.aspx> [Accessed 2 December 2011].


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Council Resolution 1970 (26 February 2011) on Libya describes atrocities against peaceful demonstrators—not yet an armed conflict—and activates R2P (crimes against humanity), but is technically not yet a PoC situation. The second UN Security Council Resolution 1973 (17 March 2011) already describes the situation in Libya as a civil war, not simply protests and riots, and the PoC comes to life (in parallel with R2P) as it applies in non-international armed conflict. Another interesting element, emphasised in Resolution 1973, is that PoC is an obligation of all parties in conflict, therefore it urges not only the Gaddafi regime, but the rebels, as well, to protect civilians. If R2P is a matter for states only, PoC can be an obligation for non-state actors.

The comparison between the legal sources of R2P and PoC can be illustrated as follows:

Table 1: Comparison of Legal Sources for R2P and PoC

R2P Legal Sources PoC Legal Sources

1948 Genocide Convention (genocide) 1949 Fourth Geneva Convention (PoC), International Humanitarian Law (IHL), jus in bello

traditions 1949 four Geneva Conventions and their

Additional Protocols (war crimes) UN Security Council Resolutions: thematic (Res.

1894) and country-specific mandates to PoC 1998 Rome Statute for ICC (crimes against

humanity, forceful deportation) Refugee Laws (1951 Convention, 2009 African

Union Convention on Internally Displaced Persons)

Domestic Law Ottawa protocol banning landmines Bilateral, Regional Law 2010 Convention on Cluster Munitions

UN Charter, Chapter VI, VII, VIII measures Relevant Human Rights Laws—prohibition of recruitment of children in armed forces

Relevant Human Rights Laws—non-discrimination of ethnic minorities

Table 1 (though not exhaustive), demonstrates well both similarities and differences: if all four Geneva Conventions are relevant to R2P, only the last (fourth) Geneva Convention is relevant to PoC. The whole volume of human rights laws would be too large for both R2P and PoC, and only parts of it will be relevant; for example, the non-discrimination of minorities would be relevant to R2P, if minorities rights are gradually abused, this can escalate into ethnic cleansing or genocidal policies. In another example, children’s rights may be relevant to PoC in the case of a serious impact of armed conflicts on children. The legal sources for PoC would also include refugee laws, some disarmament treaties, and prohibiting certain weapons like chemical weapons, landmines or cluster munitions that cause excessive civilian suffering.

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Table 2 (being, as Table 1, also not exhaustive) indicates the similarities and differences between R2P and PoC in terms of the actors engaged in the various types of protection:

Table 2: Comparison of Actors Engaged with R2P and PoC

R2P Actors PoC Actors

UN Secretary General Special Advisors Armed Forces

Police, law enforcement institutions (Pillar 1) Peace Operations, UN Security Council,

Department of Peace-Keeping Operations (DPKO)

Regional actors: African Union, European Union, League of Arab States, others

UN Agencies: UNHCR, OCHA

DPKO, UNHCR, High-Commissioner for Human Rights, Peacebuilding Commission,

UNICEF, Special Rapporteur on Children; Aid donors, capacity builders, NGOs (Pillar 2)

ICRC

Mediators, fact-finding missions, Secretary-General (non-coercive measures); UN Security

Council (coercive measures, Pillar 3) Humanitarian NGOs

International Criminal Tribunals

Some actors would engage in both R2P and PoC, but others will have specific mandate in just one type of protection. Although R2P may have the ambition to engage almost everyone, illustrated in the formula ‘narrow, but deep response’, some actors—PKO, UNHCR, ICRC, OCHA—that are very willing to apply PoC, are reluctant to engage with R2P, considering it a potential jeopardy for their mandates.

R2P and PoC concepts are ‘sisters, but not twins.’ They are close in relationship and share similar humanitarian concerns; yet, their specificity is important and should not be confused. Agencies that acknowledge and engage in PoC have been reluctant to attach their mandate to R2P, seeing the concept as too interventionist. In fact, one needs to be reminded that R2P contains very little interventionism—even within the Pillar Three12 machinery, military intervention forms only a last option. Adding that R2P has a very large preventative agenda, there is not much to worry about; R2P came into existence as a counter-point to intervention, it is about helping potential victims of atrocities. Although technically not a firm international legal obligation, it has reached global acceptance and every General Assembly debate proves this. R2P, as the ‘younger sister’, does not undermine action, rather it catalyses it; it can mobilise political will and serve

12 The 2009 UN SG Report: ‘Implementing the Responsibility to Protect’ divided R2P into three pillars: first pillar—states domestic responsibility to protect; second pillar—states and international organizations assist other states to protect; and third pillar—when states manifestly fail to protect, the international community through the UN Security Council adopt timely and decisive measures, including coercion, under Chapter VII of the UN Charter.


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the PoC agenda well. The ‘sister’ concepts, R2P and PoC, can reinforce each other, but also can compete with each other.

R2P and PoC: Libya 2011

One may argue that R2P and PoC merge closer when it comes to very critical situations such as in February-March 2011 in Libya, where R2P rapidly developed from Pillar One to the whole scope of Pillar Three, ‘timely and decisive response’, when Libya manifestly failed to protect. The categorisation of the situation as civil war brought PoC language into Resolution 1973 and it became a textbook resolution for a parallel application of both PoC and R2P.

Libya 2011 is not the first time when R2P was referred to by the UN Security Council—previous Security Council resolutions on Sudan (Darfur) and Côte d’Ivoire also used R2P language.13 Also, Libya is not the first time when the Security Council has authorised use of force to protect civilians—the bombing of Bosnian Serb military targets around Sarajevo in 1995 was aimed mostly to protect the Bosnian Muslim civilian population and was under the solid authorisation by the Security Council. I would even question that Resolution 1973 is the first time the Security Council has authorised the use of force for human protection against the wishes of a functioning state, and that the closest the Council came to doing so in the past, was in Security Council Resolution 794 (1992) in Somalia and Resolution 929 (1994) in Rwanda.14 Let us not forget Security Council Resolution 688 (1991) in the aftermath of the first Gulf War that established a no-fly zone to protect the Kurdish minority in Northern Iraq, certainly against the wishes of a functioning state (Iraq) and in a very similar situation to that in Libya—Saddam Hussein was threatening a huge part of the Iraqi (Kurdish) population with massacre. Although Resolution 688 did not use the language ‘all necessary means’, the no-fly zone in Northern Iraq was not a paper-tiger—it was supported with limited air strikes several times in the 1990s, with the intervening states referring to Resolution 688 as a justification for their military actions. Resolution 688 was adopted when the R2P did not exist yet as a defined concept, and when PoC was simply a legal requirement from the Fourth Geneva Convention, therefore one can regard the two Security Council Resolutions 1970 and 1973 on Libya as the first real test of utilising the two ‘sister’ concepts, R2P and PoC, to stop a potential mass slaughter of a civilian population.

13 See for example text from Resolution 1962 (2010) on Côte d’Ivoire: “recalling that the Ivorian leaders bear primary responsibility for ensuring peace and protecting the civilian population in Côte d’Ivoire and demanding that all stakeholders and parties to conflict act with maximum restraint to prevent a recurrence of violence and ensure the protection of civilians”. 14 Alex J. Bellamy and Paul D. Williams, ‘The New Politics of Protection?’, International Affairs, vol. 87, issue 4 (2011); also A. Bellamy, ‘Libya and the Responsibility to Protect: The Exception and the Norm’, Ethics & International Affairs, vol. 25, no. 3 (2011).

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Resolution 1970

The Security Council invoked R2P immediately when on 26 February 2011 it considered the deadly risk and the urgent need to protect the Libyan population from atrocities, and adopted Resolution 1970, condemning the use of force against civilians, deploring the gross systematic violations of human rights, expressing deep concerns at the deaths of civilians and the incitement to hostility by the Libyan Government. The Council considered that the widespread and systematic attacks against the civilian population may amount to crimes against humanity, referring to one of the four atrocity crimes and triggering the applicability of R2P. In explicit text and in a separate paragraph, Resolution 1970 recalled the Libyan authorities’ responsibility to protect (emphasis added) its population.

Resolution 1970 demanded an immediate end to violence, urged Libya to act with utmost restraint, to respect human rights, to ensure safety of all foreign nationals, to allow safe passage of humanitarian and medical supplies, and lift media restrictions; and referred the situation to the International Criminal Court (ICC)—an additional signal that R2P crimes might have been committed. It also imposed Chapter VII sanctions on Libya, namely an arms embargo, strengthened with a call upon States to inspect all cargo, that may, upon reasonable ground to believe, contain prohibited items; a travel ban against 16 Libyan officials, listed in Annex I of the Resolution, among them Gaddafi himself, some of his family members and military leaders, involved in violence; and an asset freeze against six designated individuals, listed in Annex II of the Resolution—Gaddafi, four of his sons and one daughter.

There was no positive reaction, rather the opposite; Gaddafi not only ignored Resolution 1970, but committed clear breaches of it, refusing to permit humanitarian aid convoys into the besieged Misrata and Ajdabiya, a clear failure by Libya to exercise R2P. The search for a peaceful solution through the UN Special Envoy and the African Union High-Level Committee continued, but gradually most governments and regional organisations realised that the use of diplomatic efforts only would not protect the Libyan people in lethal danger. Acknowledging Gaddafi regime’s manifest failure to protect people, the international community shifted to enforcement measures: on 12 March 2011 the League of Arab States (LAS) called on the Security Council to impose immediately a no-fly zone on the Libyan Air Force and to establish safe areas as precautionary measures to protect the civilian population.

Resolution 1973

This demand for a no-fly zone by the LAS proved to be crucial.15 The United Kingdom, France and Lebanon (the latter representing LAS) introduced a

15 Bellamy and Williams, ‘The New Politics of Protection?’.


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new resolution, Security Council Resolution 1973 (17 March 2011) which urged the parties involved in armed conflict to “bear the primary responsibility to take all feasible steps to ensure protection of civilians (emphasis added)”. In Resolution 1973, PoC came to life, as the situation moved from a riot—which does not qualify as ‘armed conflict’—to a civil war, or a non-international armed conflict, in the language of the Geneva Conventions. This was an important development, as the Security Council could now strengthen its decisions based on obligations under international humanitarian laws, applicable only in time of (civil) war and add war crimes jurisdiction into what has already been established as R2P obligations in Resolution 1970 on the basis of potential crimes against humanity. In Resolution 1973, all the force of PoC (applicable to armed conflict) is added to the force of R2P, previously already activated in Resolution 1970. The ‘sister’ concepts R2P and PoC in Resolution 1973 were synergised, their legal and political forces merged to urge the Security Council to utilise all its overwhelming power under Chapter VII, including the use of force—to protect the civilian population and civilian-populated areas. This timely and determined decision of the Security Council, a body often accused of being obsolete, can be regarded as a triumph of both PoC and R2P.

Paragraph 4 of Resolution 1973 under the sub-title ‘Protection of Civilians’ contained the authorisation of the use of force in the well-known formula ‘to take all necessary measures’. Paragraph 5 added into the authorisation of the use of force, the establishment of a no-fly zone. Another new measure imposed by Resolution 1973 is a ban on flights where states shall deny permission to Libyan aircraft to take off from, or land in, or overfly their territory. Resolution 1973 in its two Annexes added additional designations of individuals, to whom the travel ban or the asset freeze will apply. Resolution 1973 also strengthened other measures already adopted in Resolution 1970: Paragraph 13 of Resolution 1973, enforcement of the arms embargo, replaced Paragraph 11 of the previous resolution, adding an additional authorisation to use force—after calling upon all vessels and aircraft of flag States to co-operate with the inspections of the arms embargo; the Security Council also authorised UN Member States‚ to use “all necessary measures commensurate with the specific circumstances to carry out such inspections”. Similar precedents can be found in the history of the enforcement of sanctions in Southern Rhodesia in 1966 (Security Council Resolution 221), Iraq-Kuwait in 1990 (Security Council Resolution 665) and others. This additional and limited authorisation to use of force in Resolution 1973 does not, curiously, target Libya only; it can be applied against any other state (including its vessels and aircraft) that may violate the arms embargo.

Here comes probably the most controversial—legally and politically—issue in my analysis: Resolutions 1970 and 1973 not only prohibited the supply of any weapons to Libya, but also authorised limited use of force to intercept such supplies. Therefore, when in late June 2011 the French parachuted

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machine guns, rocket-propelled grenades and munitions to the Libyan rebels, could, hypothetically, Russia, officially protesting this as a violation of Resolution 1970,16 use force against the French aircraft delivering such weapons to rebels in contravention of the Resolutions? Ironically, such hypothetical use of force by Russia to prevent the French supplies of weapons to Libyan rebels, would have been in compliance with Paragraph 13 of Resolution 1973.

Resolution 1973 was adopted with ten votes in favour and five abstentions: Brazil, China, Germany, India and Russia. These five countries—two permanent members and three strong candidates for permanent membership—voiced their preference to seek a peaceful solution when abstaining from the vote. Interestingly, Resolution 1973 does not eliminate efforts for a peaceful solution; in fact it repeats and extends them. In its statement, Russia recalled its own earlier draft resolution, calling for a ceasefire and dialogue, but it is doubtful whether such a mild resolution would have been instrumental. Calls for a ceasefire were never in shortage. Many were made by UN officials and regional organisations, but in vain. On the contrary, announcement of a ceasefire came from Gaddafi immediately after the adoption of Resolution 1973 and this demonstrated how important for the concept R2P is, if the international community is able to utilise the R2P machinery to its deepest scope—threat and use of military measures under Chapter VII.

R2P and PoC after Libya

I share views expressed by various scholars17 that Security Council Resolutions 1970 and 1973 represent a triumph of R2P and PoC. It would have been a defeat of R2P and PoC, if Resolutions 1970 and 1973 were not adopted and Gaddafi could massacre the citizens of Benghazi. The Resolutions are a triumph of R2P, because for the first time since the concept emerged 10 years ago, the full and deepest scope of its implementation was utilised. The Pillar One domestic responsibility to protect was referred to in Resolution 1970, and when this responsibility was manifestly flouted and the regime threatened its own population with massacre, the responsibility shifted to the international community; and, both the UN and regional organisations engaged in the full scope of Pillar Three measures: negotiations, diplomatic pressure, sanctions and, when all these proved to be ineffective, the authorisation for the use of force came from the only legal authority—the Security Council.

16 Statement by Russian Foreign Minister Lavrov, ‘Russia Criticizes France over Arming Libyan Rebels’, RT, 30 June 2011, <http://rt.com/news/france-supplying-rebels-country/> [Accessed 19 November 2011]. 17 See Gareth Evans, ‘Ending Mass Atrocity Crimes: The R2P Balance Sheet After Libya’, the Second Renate Kamener Oration, Leo Baeck Centre, Melbourne, 31 July 2011; Alex Bellamy, Tom Weiss, Jennifer Welsh and other authors in the Roundtable: Libya, RToP, and Humanitarian Intervention, Ethics & International Affairs, vol. 25, no. 3 (2011).


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The removal of Gaddafi from power was nowhere stated as an aim in the Resolutions; Gaddafi was mentioned but in terms of referral to the ICC, the freezing of his assets and the ban on travel. Also, the military action was only one part of the whole coercive regime established by the Resolutions. A common mistake is to see R2P simply as a military intervention. In fact, the international community has a lot of options before it comes to military intervention: Chapter VI dialogue and mediation, non-military sanctions (Article 41), and only if these fail, military intervention (Article 42). What the responses to the crisis in Libya show, is that the Chapter VI and the Article 41 measures could be shortened to move faster towards a ‘timely and decisive’ military response. Libya also showed that consensus can often be difficult, particularly when it comes to the last resort. It was the extraordinary coincidence of many factors in Libya18 that allowed the triumph of R2P and PoC.

If Libya demonstrated the fullest opportunity and the triumph of R2P and PoC, Syria showed the opposite—the limits of the ‘sister’ concepts. The difficult question from Kosovo in 1999 (that triggered the debates that gave birth to R2P), ‘How to save people from mass atrocities, when a state manifestly fails to protect them and the UN Security Council is paralysed?’, is back on the table. The biggest R2P triumph so far, in Libya, could be followed by probably the biggest R2P failure so far—to protect people in Syria and elsewhere. If the UN and regional organisations do not act with the same determination as they did in Libya, the danger of selectivity in the application of R2P and PoC will continue to cloud international law. In the words of Dr. Simon Adams, Executive Director of the Global Centre for the R2P: “While tanks, troops and even warships have been unleashed against ordinary Syrians, the Security Council has so far failed in its responsibility to protect civilians. Syria has become a stain upon the conscience of the world.”19

Conclusion

The concepts R2P and PoC originated from a similar concern, potential human suffering and innocent victimhood from wars or mass atrocities, and developed in parallel over the last decade. I presented in the comparative analysis above the commonalities and differences between the two concepts and emphasised that they can reinforce each other, but they can also enter into competing agendas. Although collaboration is always preferable, ignorance of the differences between the two concepts may create confusion and counter-productivity.

18 Bellamy, ‘Libya and the Responsibility to Protect’. 19 Global Centre for R2P Media release ‘Syria at the Crossroads: UN General Assembly Must Uphold their Responsibility to Protect’, <www.globalr2p.org/media/pdf/Syria_Press_Release_ 21_November_2011.pdf> [Accessed 3 December 2011].

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Professor Ed Luck, the Special Representative of the UN Secretary-General on R2P, called the two concepts ‘cousins, but not sisters’; but this was before Resolutions 1970 and 1973 on Libya. After Libya, which demonstrated the important of progress in the development of awareness, adoption and implementation of both R2P and PoC concepts, I would not hesitate to define R2P and PoC as ‘sisters, but not twins’. The two concepts may exist separately in normal circumstances, but when the lives of people are gravely threatened in critical situations, as occurred in Libya in February-March 2011, they should reinforce each other and merge closer as to avoid gaps in order to protect the innocent people at risk.

Vesselin Popovski is Senior Academic Programme Officer at the Institute for Sustainability and Peace, United Nations University in Tokyo. He develops research, teaches and publishes in peace and security, international law, human rights and global governance. He co-edited the books: International Criminal Accountability and the Rights of Children (2006); World Religions and Norms of War (2009); Democracy in the South (2010); Human Rights Regimes in the Americas (2010); Blood and Borders (2011). He has completed a trilogy on modern trends and innovations in governance, co-editing Engaging Civil Society (2010), Building Trust in Government (2010) and Cross-Border Governance (2011). Another major book Legality and Legitimacy in Global Affairs is forthcoming with Oxford University Press. He took part in two major international initiatives: the International Commission on Intervention and State Sovereignty, that produced the concept ‘Responsibility to Protect’, and the Princeton Principles of Universal Jurisdiction. [email protected].

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Libya and the Responsibility to Protect: Between Opportunistic

Humanitarianism and Value-Free Pragmatism

Ramesh Thakur

Since the Treaty of Westphalia, sovereignty has been backed by the norm of nonintervention. By contrast, the responsibility to protect (R2P) strikes a balance between unauthorised unilateral interventions and institutionalised indifference. With a rapidly deteriorating humanitarian situation in Libya in early 2011, the United Nations (UN) authorised the use of force to protect an imminent slaughter of civilians but prohibited taking sides in the internal civil war, intervening with ground troops, or effecting forcible regime change. The record of NATO actions in Libya marks a triumph for R2P but also raises questions about how to prevent the abuse of UN authority to use international force for purposes beyond human protection.

Military action by international forces in Libya in 2011 marks the first instance of the implementation of the sharp edge of the new norm of the responsibility to protect (R2P). It was a successful example, if also a controversial one. Until the twentieth century, state sovereignty included the right to go to war and an unchallengeable monopoly on the lawful use of force domestically. Gradually by the time of the creation of the United Nations (UN) in 1945 and more rapidly thereafter, the right to use force internationally was restricted to self-defence against armed attack or under UN authorisation. Historically, the norm of nonintervention notwithstanding, individual states had also intervened inside sovereign jurisdictions to stop the slaughter of kith and kin or co-religionists.1 Under the impact of the Holocaust and starting with the Genocide Convention in 1948, the international community asserted the collective right to stop states killing large numbers of civilians inside their borders.

Even so, for 350 years—from the Treaty of Westphalia in 1648 until 1998—sovereignty functioned as institutionalised indifference. International interventions in Kosovo and East Timor in 1999 broke that mould and were the backdrop to UN Secretary-General Kofi Annan’s search for a new norm. His genius lay in channelling historic ideational transformations into new

1 For a study of the relevance of R2P to the problem of states with ethnic ties spread across national borders, see Walter Kemp, Vesselin Popovski and Ramesh Thakur (eds.), Blood and Borders: The Responsibility to Protect and the Problem of the Kin-State (Tokyo: United Nations University Press, 2011).

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institutional linkages. Instead of collective gnashing and wailing during atrocities followed by a traumatic repeat afterwards, yet again, of promises of ‘Never Again’, he pushed for a new doctrine to take timely and effective action. With Canada’s help, an international commission formulated the innovative principle of the responsibility to protect.2

The UN was neither designed nor expected to be a pacifist organisation. On the contrary, its origins lie in the anti-Nazi wartime military alliance among Britain, the United States and the Soviet Union. Its primary purpose is the maintenance of international peace and security. The chief responsibility for doing this is vested in the all-powerful UN Security Council as the world’s sole and duly sworn in sheriff for enforcing international law and order.

The system of collective security against interstate aggression never materialised. In the decades after World War II the nature of armed conflict was transformed.3 Interstate warfare between uniformed armies gave way to irregular conflict between rival armed groups. The nature of the state too changed from its idealised European version. Many communist and some newly-decolonised countries were internal security states whose regimes ruled through terror. Increasingly, the principal victims of both types of violence were civilians. Advances in telecommunications brought the full horror of their plight into the world’s living rooms. R2P spoke eloquently to the need to change the UN’s normative framework in line with the changed reality of threats and victims.4

In the meantime, the goals of promoting human rights and democratic governance, protecting civilian victims of humanitarian atrocities and punishing governmental perpetrators of mass crimes became more important. Our understanding and appreciation of human rights and commitment to their promotion and protection have deepened and broadened.5 The chief impulse to human rights is the recognition that every human being is deserving of equal moral consideration. It is an acceptance

2 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre for ICISS, 2001). The Report is available on the website at <www.iciss.gc.ca>. See also Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington: Brookings Institution, 2008); Ramesh Thakur, The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics (London: Routledge, 2011) and The People vs. the State: Reflections on UN Authority, US Power and the Responsibility to Protect (Tokyo: United Nations University Press, 2011); Thomas G. Weiss, Humanitarian Intervention (London: Polity, 2007); Alex J. Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity, 2009). 3 See Andrew Mack et al., Human Security Report 2005 (Oxford: Oxford University Press, 2005). 4 For an account of the UN’s transformation since 1945, see Ramesh Thakur, The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge: Cambridge University Press, 2006). 5 See Roger Normand and Sarah Zaidi, Human Rights at the UN: The Political History of Universal Justice (Bloomington: Indiana University Press, 2008).

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of a duty of care by those living in safety towards those trapped in zones of danger. The UN’s normative mandates on security, development and human rights alike embody this powerful intuition.6

Failure to act in the 1994 Rwanda genocide7 and non-UN-authorised humanitarian intervention in Kosovo in 1999 set off angry and deeply divisive recriminations around the world for acts of omission and commission.8 In the wake of that controversy, the 2001 report of the International Commission on Intervention and State Sovereignty (ICISS) argued that the essential nature of sovereignty had changed from state privileges and immunities to the responsibility to protect people from atrocity crimes. Where the state defaulted on its solemn responsibility owing to lack of will or capacity, or because it was itself complicit in the commission of the atrocities, the responsibility to protect tripped upwards to the international community acting through the authenticated structures and procedures of the UN.

The importance of sovereignty as the key organising principle of the modern world order needed and received a strong affirmation in the ICISS report. The Commission took pains to emphasise that a cohesive and peaceful international system is more likely to be achieved through the cooperation of effective and legitimate states than in an environment of fragile, collapsed, fragmenting or generally chaotic states.9

Reconceptualising sovereignty as responsibility10 was not a radical departure from established precept and practice. Nowhere is the authority of the state absolute. Internally, it is constrained and regulated by constitutional power-sharing arrangements and shared between different levels of government: local, provincial and national. It is also distributed among different sectors of public authorities at any one given level, such as the legislature, executive, judiciary and bureaucracy. Internationally, too, in human rights covenants, UN practice and state practice itself, sovereignty is understood as embracing responsibility. The UN Charter is itself an example of an international obligation voluntarily accepted by member states.

6 This is most powerfully articulated in Kofi A. Annan, In Larger Freedom: Towards Development, Security and Human Rights For All, Report of the Secretary-General, document A/59/2005 (New York: United Nations, 21 March 2005). 7 See Kingsley Moghalu, Rwanda’s Genocide: The Politics of Global Justice (Houndmills: Palgrave Macmillan, 2005). 8 See Albrecht Schnabel and Ramesh Thakur (eds.), Kosovo and the Challenge of Humanitarian Intervention: Selective Indignation, Collective Action, and International Citizenship (Tokyo: United Nations University Press, 2000). 9 This was the assumption behind a joint project between the Carr Center of Harvard University, the International Peace Academy and the United Nations University: Simon Chesterman, Michael Ignatieff and Ramesh Thakur (eds.), Making States Work (Tokyo: United Nations University Press, 2005). 10 For further elaboration, see Trudy Jacobsen, Charles Sampford and Ramesh Thakur (eds.), Re-envisioning Sovereignty: The End of Westphalia? (London: Ashgate, 2008).

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There is no transfer or dilution of the status of state sovereignty. But there is a necessary change in the exercise of sovereignty: from sovereignty as control to sovereignty as responsibility in both internal functions and external duties. Anne Orford argues that contrary to claims that the requirement is to put the R2P principle into practice, ICISS in fact put evolving practice of contingent and softening sovereignty, and of increasing international intrusions, into a new concept: the justificatory principle followed practice, words followed deeds. R2P is an attempt to integrate existing and evolving but dispersed practices of protection into a conceptually coherent account of international authority.11

The unanimous endorsement of R2P by the largest ever collection of world leaders at the UN summit in 2005 was historic, for it spoke to the fundamental purposes of the UN and responded to a critical challenge of the 21st century. Some 150 world leaders tightened the application of R2P to four atrocity crimes: war crimes, genocide, ethnic cleansing, and crimes against humanity. They affirmed that states have the primary responsibility to protect all people within their territorial jurisdiction but that if they manifestly failed to do so, owing to incapacity, unwillingness or complicity in the crimes, then the international community, acting through the UN Security Council, would take timely and decisive action to implement the international responsibility to protect.12 Secretary-General Ban Ki-moon then refined the principle further in the language of three pillars: Pillar One as the state’s own responsibility; Pillar Two as international assistance to strengthen state capacity to implement R2P obligations; and Pillar Three as coercive international action, including measures not involving the use of force under Article 41 of the United Nations Charter (for example economic sanctions, arms embargoes, and asset freezes) and, ultimately, military force under Article 42.13

R2P captures and channels the convergence of some significant trends in world affairs. Its preventive and rebuilding pillars involve strengthening a state’s capacity to handle its own law and order problems. But its hard edge requires the international community, acting through the UN, to take up the slack when any state defaults on its sovereign responsibility to protect all people inside its borders.

By its very nature, including unpredictability, unintended consequences and the risk to innocent civilians caught in the crossfire, warfare is inherently brutal: there is nothing humanitarian about the means. Still, the fact is that our ability and tools to act beyond our borders have increased tremendously.

11 Anne Orford, International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press, 2011). 12 2005 World Summit Outcome, adopted by UN General Assembly Resolution A/RES/60/1, 24 October 2005, paras. 138-40. 13 Ban Ki-moon, Implementing the Responsibility to Protect: Report of the Secretary-General (New York: United Nations, Doc. A/63/677, 12 January 2009).


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This greatly increases demands and expectations ‘to do something’ and the fundamental question cannot be avoided: under what circumstances is the use of force necessary, justified and required to provide effective international humanitarian protection to at-risk populations without the consent of their own government? Absent R2P, the intervention is more likely to be ad hoc, unilateral, self-interested and deeply divisive. With the R2P norm and guiding principles agreed to in advance, military action is more likely to be rules-based, multilateral, disinterested and consensual.

Not a Western Implant

The R2P debate is emphatically not a West versus The Rest narrative. Instead the theory and practice of state sovereignty is itself decidedly European. Developing countries, not Western ones, are the likely targets of international military interventions. If their people are the principal beneficiaries and their states the main victims when R2P is put into practice, their scholars, think tank analysts, public intellectuals and journalists should be the lead debaters. Asia has its own rich traditions that vest sovereigns with responsibility for the lives and welfare of subjects while circumscribing the exercise of power with the majesty of law that stands above the agents of the state. In India Ashoka, the great Mauryan emperor (269–232 BC), inscribed the following message on a rock edict: “this is my rule: government by the law, administration according to the law, gratification of my subjects under the law, and protection through the law”.14

The debate is also wrongly framed on substance. In the real world, we know that there will be more atrocities, victims and perpetrators—and therefore more interventions. They were common before R2P; they are not guaranteed with R2P. The real choice is not if interventions will take place, but when, why, how, by whom and under whose authority. Unilateral and ad hoc interventions will sow and nourish the seeds of international discord. Multilateral and rules-based interventions will speak powerfully to the world’s determination never again to return to institutionalised indifference to mass atrocities.

R2P attempts to strike a balance between unilateral interference and institutionalised indifference. It will help the world to be better prepared—normatively, organisationally and operationally—to meet the recurrent challenge of external military intervention wherever and whenever it arises again, as assuredly it will. To interveners, R2P offers the prospect of international legitimacy, reduced compliance and transaction costs and more effective results. To potential targets of intervention, R2P offers the reassurance of a rules-based system. Absent an agreed new set of rules,

14 Quoted in Stanley Wolpert, A New History of India (New York: Oxford University Press, 1977), pp. 66–7.

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there will be nothing to stop the powerful from intervening ‘anywhere and everywhere’.

Gaddafi in the Crosshairs of a Changing Normative Order

R2P is narrow—it applies only to the four crimes of ethnic cleansing, genocide, crimes against humanity, and war crimes. But it is deep: there are no limits to what can be done in responding to these atrocity crimes. In a matching symmetry, support for R2P has been broad but shallow.15 Libya in 2011 provided an opportunity to convert the noble sentiments and solemn promise of R2P into meaningful action whose import will resonate long and far. In poignant testament to its tragic origins and normative power, R2P was the discourse of choice in debating how best to respond to the crisis.

R2P is not solely about military intervention. The world’s comfort level is greater with action under Pillars One (building state capacity) and Two (international assistance to build state capacity) than Pillar Three (coercive international action with the final option being military intervention to protect at-risk populations from atrocity crimes). But, to be meaningful, the R2P spectrum of action must include military force as the option of last resort.

Three sets of issues were involved in framing the most appropriate and effective response to the Libyan crisis: military capacity, legal authority, and political legitimacy. Analysts were divided on the scale, complexity and feasibility of a no-fly zone. Only the West has the requisite assets and operational capability for military action in the Libyan theatre. But NATO would have been ill-advised to take any military action on its own authority. Political commentators warned of mission creep. But that would arise only if ownership of the uprising was appropriated from the Libyans. No one asked for foreign boots on the ground. UN legal authorisation could be restricted to four military tasks: surveillance and monitoring, humanitarian assistance, enforcement of the arms embargo, and enforcement of a no-fly zone.

The UN Security Council, Human Rights Council and Secretary-General Ban Ki-moon called on Libya to respect its R2P, human rights and international humanitarian law obligations.16 When their appeals were ignored, on 26 February, the Security Council demanded an end to the violence in Libya, which “may amount to crimes against humanity”; imposed sanctions; affirmed Libya’s R2P obligations; and referred Gaddafi to the International

15 See Ramesh Thakur, ‘The Responsibility to Protect and the North–South Divide’, in Sanford R. Silverburg, ed., International Law: Contemporary Issues and Future Developments (Boulder: Westview, 2011), pp. 32–47. 16 See ‘Security Council Press Statement on Libya’, United Nations document SC/10180 AFR/2120, 22 February 2011, <http://www.un.org/News/Press/docs/2011/sc10180.doc.htm> [Accessed 5 September 2011]; ‘Ban Strongly Condemns Qadhafi’s Actions Against Protesters, Calls for Punishment’, <http://www.un.org/apps/news/story.asp?NewsID=37599> [Accessed 5 September 2011].


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Criminal Court (Resolution 1970).17 On 4 March, both the Global Centre and International Coalition for R2P published an open letter to the Security Council pointing out that Resolution 1970 had failed to halt attacks taking place at the moment and calling for additional protective measures.18

Although Britain and France took the lead in trying to mobilise diplomatic support for some military action to help the Libyan rebels, the critical turning point was US backing. The key decision was made by President Barack Obama at a meeting with top officials on 15 March. R2P gave him the necessary intellectual and normative tool to act. He decided to side with pro-interventionist advisers in favour of a definition of the Libyan crisis that was closer to his instincts and consistent with the narrative that won him the White House.19 The game-changer was the juxtaposition of R2P as a powerful new galvanising norm; the defection of Libyan diplomats who joined the chorus of calls from the rebels for immediate action to protect civilians; and Arab, French and British participation that provided political cover and international legitimacy. In Iraq in 2003, Washington was the ardent suitor for military intervention. In Libya in 2011, Washington was the reluctant follower.

Adopted on 17 March by a 10-0-5 (China, Russia, Brazil, Germany, India) vote, UN Security Council Resolution 1973 authorised the use of “all necessary measures … to protect civilians and civilian-populated areas”: the first UN-sanctioned combat operations since the 1991 Gulf War.20 In the Balkans, it took NATO almost the full decade to intervene with air power in Kosovo in 1999. In Libya, it took just one month to mobilise a broad coalition, secure a UN mandate to protect civilians, establish and enforce no-fly and no-drive zones, stop Gaddafi’s advancing army and prevent a massacre of the innocents in Benghazi.

Carefully crafted both to authorise and delimit the scope of intervention, Resolution 1973 specified the purpose of military action as humanitarian protection and limited the means to that goal. At a time when the recapture of Benghazi by Gaddafi loyalists seemed imminent, Resolution 1973 authorised military action to prevent such civilian slaughter but not intervene in the civil war (any state has the right to use force to suppress armed uprisings), nor effect regime change. Occupying or dismembering Libya was

17 United Nations Security Council, Resolution 1970 (2011), 26 February 2011. 18 International Coalition for the Responsibility to Protect and the Global Centre for the Responsibility to Protect, ‘Open Letter to the Security Council on the Situation in Libya’, 4 March 2011, <http://globalr2p.org/advocacy/index.php> [Accessed 5 September 2011]. 19 See Helene Cooper and Steven Lee Myers, ‘Obama Takes Hard Line with Libya after Shift by Clinton’, New York Times, 18 March 2011. 20 United Nations Security Council, Resolution 1973 (2011), 17 March 2011. Previous operations, such as in Bosnia, East Timor, Somalia or Congo, were or are peace operations authorised to use force if challenged and not conceived as combat operations from the outset.

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prohibited. Gaddafi was not to be directly targeted. To the extent that he was so targeted, NATO exceeded UN authority in breach of the Charter law.

Obama’s insistence that the United States would not be deploying ground troops aligned military means to the limited ambitions and objectives: humanitarian protection, not regime change.21 In contrast to the Bush doctrine, under Obama the United States will act in concert with others, not alone; coax, persuade and heed, not impose its will; and set clear limits on goals and means. This did not please some shadow warriors. Referring to the role of Hillary Clinton, Susan Rice, and Samantha Power in the decision to join the intervention against the inclinations of Defense Secretary Robert Gates, National Security Adviser Thomas Donilon and Chief of Counterterrorism John Brennan, Jacob Heibrunn derided Obama for effectively having been henpecked into interventionism by “these Valkyries of foreign affairs”.22 Not to be outdone on misogyny, Mark Krikorian commented caustically that “our commander-in-chief is an effete vacillator who is pushed around by his female subordinates”.23

Norm Consolidation or Abuse

As the collection of articles in this special issue makes clear, there is a close normative and operational link between R2P and the protection of civilians (PoC). The jury is still out on whether international military action in Libya and Côte d’Ivoire will promote consolidation or softening of the twin norms. There were inconsistencies in the muted response to protests and uprisings in Bahrain and Saudi Arabia where vital Western geopolitical and oil interests are directly engaged, and with the lack of equally forceful military action in Syria and Yemen. Western failures to defend the dignity and rights of Palestinians under Israeli occupation have been especially damaging to their claims to promote human rights and oppose humanitarian atrocities universally instead of selectively.

Despite the doubts, the alternative of standing idly on the sidelines yet again would have added to the shamefully long list of rejecting the collective responsibility to protect. Gaddafi would have prevailed and we have no reason to doubt his threat to embark on a methodical killing spree of rebel

21 The commendable initial clarity was soon muddied, and policy benchmarks made needlessly tougher, when Obama joined the British and French leaders in writing that although the goal of military action was “not to remove Qaddafi by force”, “it is impossible to imagine a future for Libya with Qaddafi in power”. Barack Obama, David Cameron and Nicolas Sarkozy, ‘Libya’s Pathway to Peace’, International Herald Tribune, 14 April 2011. 22 Jacob Heibrunn, ‘America's Foreign Policy Valkyries: Hillary Clinton, Samantha Power, and Susan Rice’, National Interest, 21 March 2011, <http://nationalinterest.org/blog/jacob-heilbrunn/americas-foreign-policy-valkyries-hillary-clinton-samantha-p-5047> [Accessed 5 September 2011]. 23 Mark Krikorian, ‘They Know Who Wears the Pants in This Country’, National Review Online, 21 March 2011, <http://www.nationalreview.com/corner/262607/they-know-who-wears-pants-country-mark-krikorian> [Accessed 5 September 2011].


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leaders, cities and regions alley by alley, house by house, room by room. Had the world shirked its responsibility, Libya could have been the graveyard of the new R2P norm and the UN might as well have sounded the last post for it.

Libya marks the first time the Security Council has authorised an international R2P operation. Côte d’Ivoire is the first time it has authorised the use of military force by outside powers solely for PoC. Between them, Resolutions 1973 and 1975 show that including R2P language in the preamble might provide the normative justification for PoC demands in the operational paragraphs of the UN mandates.

Many PoC champions fear the more overtly politicised agenda of R2P. This ignores the reality of how they come together when atrocity crimes are being committed. PoC advocates are nervous about being cross-contaminated by R2P because they tend to focus on the soft side of the subject, such as programs to train peacekeepers, rather than the sharp end of robust military action. In justifying the authorisation of all necessary measures by the UN peace operation in Côte d’Ivoire, UN Security Council Resolution 1975 reaffirmed “the primary responsibility of each State to protect civilians” and, in the same sentence, reiterated that “parties to armed conflict bear the primary responsibility to take all feasible steps to ensure the protection of civilians”.24

Seamus Milne, convinced that the Arab revolution had been hijacked by the imperialist West in Libya, argued that “If stopping the killing had been the real aim, Nato states would have backed a ceasefire and a negotiated settlement, rather than repeatedly vetoing both”.25 Terry Macalister, the Guardian’s energy editor, believes that “The Libyan conflict has been a war about oil if not ‘for’ oil”. The British and French governments have worked “hand in glove” with the big energy companies in the war to rid Libya of Gaddafi and secure access to future energy supplies, he argues. He asks whether their cooperation is “a potent symbol that western politics and oil are so closely intermeshed that the agendas of both are indistinguishable”?26

In his speech to the General Assembly, India’s Prime Minister Manmohan Singh made a thinly-veiled attack on the expansive interpretation by NATO of Resolution 1973: “Actions taken under the authority of the United Nations must respect the unity, territorial integrity, sovereignty and independence of

24 United Nations Security Council, Resolution 1975 (2011), 17 March 2011. 25 Seamus Milne, ‘Libya’s Imperial Hijacking Is a Threat to the Arab Revolution’, Guardian, 24 August 2011, <http://www.guardian.co.uk/commentisfree/2011/aug/24/libyas-imperial-hijacking-threat-arab-revolution> [Accessed 5 September 2011]. 26 Terry Macalister, ‘So, Was this a War for Oil?’ Guardian, Friday 2 September 2011, <http://www.guardian.co.uk/commentisfree/2011/sep/02/next-war-libya-one-for-oil> [Accessed 5 September 2011].

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individual states”.27 Russia and China led the chorus of dismay at the UN appearing to take sides in the internal conflicts in Libya and Côte d’Ivoire.28 They may be less willing in future to permit sweeping endorsements for tough action, either by a coalition (Libya) or by UN peacekeepers (Côte d’Ivoire).

Value-free pragmatism is no more an answer to the challenge of reconciling realism and idealism than opportunistic humanitarianism. Brazil, China, Germany, India, and Russia joined the African Union (AU) in positioning themselves on the wrong side of the war—as witnessed in the triumphal visit of British Prime Minister David Cameron and French President Nicolas Sarkozy to Libya in September—and on the wrong side of history insofar as the emerging normative architecture is concerned. The AU moved to recognise the rebel Transitional National Council on 20 September, only after they had captured Tripoli. Among others, one risk for the AU is that the new regime will highlight its Arab over its African heritage and identity.29 The reason this matters is that, following the Libya precedent, regional organisations may well acquire a critical ‘gatekeeping role’ in the global authorisation of R2P-type operations.30 As long as the rising new powers remain more concerned with consolidating their national power aspirations than developing the norms and institutions of global governance,31 they will remain incomplete powers, limited by their own narrow ambitions, with their material grasp being longer than their normative reach.

The Libyan people’s euphoria and NATO’s relief over the successful military campaign is likely to temper criticisms of the manner in which NATO rode roughshod over UN authorisation to protect civilians. For NATO had indeed intervened on behalf of one side in a civil war and pursued regime change. That said, we should not retreat into naivety on what may be required in particular circumstances. Already in 2003, replying to criticisms of the ICISS report by Adam Roberts, I had noted that “the primary motivation behind intervention—the cause rather than the necessary condition—must not be defeating an enemy state”. But “If defeat of a non-compliant state or regime

27 ‘Manmohan Slams West for Using Force to Change Regimes’, Times of India, 25 September 2011, <http://articles.timesofindia.indiatimes.com/2011-09-25/india/30200524_1_libya-sovereignty-countries> [Accessed 26 September 2011]. 28 See Patrick Worsnip, ‘ANALYSIS-U.N. Protection of Civilians at Issue after Libya’, Reuters, 13 May 2011 <http://www.trust.org/alertnet/news/analysis-un-protection-of-civilians-at-issue-after-libya> [Accessed 5 September 2011]. 29 See Knox Chitiyo, ‘Has Africa Lost Libya?’, Guardian, 19 September 2011, <http://www.guardian.co.uk/commentisfree/2011/sep/18/africa-libya-not-lost> [Accessed 19 September 2011]. 30 See Alex J Bellamy and Paul D Williams, ‘The New Politics of Protection? Côte d’Ivoire, Libya and the Responsibility to Protect’, International Affairs, vol. 87, no. 4 (2011), pp. 825-50. 31 See Amitav Acharya, ‘Can Asia Lead? Power Ambitions and Global Governance in the Twenty-first Century’, International Affairs, vol. 87, no. 4 (2011), pp. 851-69.


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is the only way to achieve the human protection goals, then so be it”.32 In Libya, the West’s strategic interests coincided with UN values. This does not mean that the latter was subordinated to the former. It does mean, as with Australia vis-à-vis East Timor in 1999, that there was a better prospect of sustained NATO engagement than if Western interests were not affected.

Paris, London and Washington—and Ban—did not waver in their resolve, despite critics from the left pushing for diplomacy, not war and critics from the right calling for boots on the ground. The protracted wars in Iraq and Afghanistan notwithstanding, too many expected or demanded instant military gratification. In fact six months to overthrow an entrenched and determined dictator is not excessively long. Moreover, it is also true that had all the restrictions of Resolution 1973 been scrupulously observed, the war would have been more protracted and messier, and coalition unity of purpose and action would have been even more strained.

The outcome is a triumph first and foremost for the citizen soldiers who refused to let fear of Gaddafi’s thugs determine their destiny any longer. It is triumph secondly for R2P. It is possible for the international community, working through the authenticated, UN-centred structures and procedures of organised multilateralism, to deploy international force to neutralise the military might of a thug and intervene between him and his victims with reduced civilian casualties and little risk of military casualties. NATO military muscle deployed on behalf of UN political will help to level the killing field between citizens and a tyrant.

But the ruins of Libya’s political infrastructure and parlous state of its coffers mean that the third component in the ICISS formulation R2P—the international responsibility to rebuild and reconstruct33—will also be called on. This will require the international community to stay engaged with state building in Libya for some time. Fortunately, Libya’s physical infrastructure remains mainly intact as there was no Iraq-style shock-and-awe bombing campaign. The willingness, nature and duration of outside help will also help to shape the judgment of history on whether Western motivations were primarily self-interested geopolitical and commercial, or the disinterested desire to protect civilians from a murderous rampage. As with the war itself, however, the lead role will have to be assumed by Libyans themselves, while the international community can assist without assuming ownership of the process or responsibility for the outcome.

The price of that in turn may require the international community to accept and live with the political choices made by the Libyans. The Transitional

32 Ramesh Thakur, ‘In Defence of The Responsibility to Protect’, International Journal of Human Rights, vol. 7, no. 3 (Autumn 2003), p. 163. 33 The substance of this is incorporated within Pillar Two (international assistance) in the subsequent reformulation of R2P by Secretary-General Ban.

Ramesh Thakur

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National Council’s immediate priorities are to establish security, law and order; prevent lootings and reprisals and avoid attacks on black Africans by lighter-skinned Arabs as the new normal; defeat remaining pockets of resistance by Gaddafi loyalists and prevent them from turning into a protracted low-level insurgency, and establish control over the whole country; restore infrastructure and public services; and ameliorate the humanitarian situation. National reconciliation based on the politics of concessions, compromises and power-sharing accommodation, reconstruction and continuing regional and international support will be the next order of business after immediate humanitarian needs have been met.

Conclusion

In both Libya and Côte d’Ivoire, regimes that had lost all domestic and international legitimacy declared war on their own people. In both, global political responses were shaped by universal values as well as strategic interests, so that UN member states moved closer to mirroring traditional UN policy and perspectives. Because the UN is taking the lead in redefining sovereignty by aligning state prerogatives with the will and consent of the people, the ruling class of any country must now fear the risk and threat of international economic, criminal justice and military action if they violate global standards of conduct and cross UN red lines of behaviour.34

The two operations in Libya and Côte d’Ivoire therefore mark a pivotal rebalancing of interests and values. In the old world order, international politics, like all politics, was a struggle for power.35 The new international politics will be about the struggle for the ascendancy of competing normative architectures based on a combination of power, understood as the disciplined application of force, and values and ideas.

At the time of writing, the rebels had captured Tripoli but not Gaddafi. Hard questions, unasked so as not to complicate the push for victory, will now come to the fore. Who are the rebels? What do they stand for? For whom do they speak? How much popular support do they command? Albeit qualified and incomplete, therefore, Libya nevertheless does mark an important milestone on the journey to tame atrocities on their own people by tyrants.

In the words of former Secretary General Dag Hammarskjöld, the UN was “not created in order to bring us to heaven, but to save us from hell”.36 34 For the intimate relationship between the twin normative agendas of R2P and international criminal justice, see Ramesh Thakur and Vesselin Popovski, ‘The Responsibility to Protect and Prosecute: The Parallel Erosion of Sovereignty and Impunity’, in Giuliana Ziccardi Capaldo (ed.), The Global Community: Yearbook of International Law and Jurisprudence 2007, vol. 1 (New York: Oxford University Press, 2008), pp. 39-61. 35 This was most famously formulated in Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 4th ed. (New York: Alfred A. Knopf, 1967). 36 Quoted in Brian Urquhart, Hammarskjold (New York: W. W. Norton, 1994), p. 4.


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Failures in Africa and the Balkans in the 1990s reflected structural, political and operational deficiencies that accounted for the UN’s inability to save people from a life of hell on earth. R2P responds to the idealised UN as the symbol of an imagined and constructed community of strangers: We are our brothers’ and sisters’ keepers.

Ramesh Thakur is Professor of International Relations in the ANU’s Asia–Pacific College of Diplomacy, and Adjunct Professor in the Institute of Ethics, Governance and Law at Griffith University. He was Vice Rector and Senior Vice Rector of the United Nations University (and Assistant Secretary-General of the United Nations) from 1998–2007. He was a Commissioner and one of the principal authors of The Responsibility to Protect, and Senior Adviser on Reforms and Principal Writer of Secretary-General Kofi Annan’s second reform report. His related books include The United Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge University Press, 2006); Global Governance and the UN: An Unfinished Journey, co-written with Thomas G. Weiss (Indiana University Press, 2010); The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics (Routledge, 2011); Blood and Borders: The Responsibility to Protect and the Problem of the Kin-State, co-edited with Walter Kemp and Vesselin Popovski (UN University Press, 2011); and The People vs. the State: Reflections on UN Authority, US Power and the Responsibility to Protect (UN University Press, 2011). His next major project is The Oxford Handbook of Modern Diplomacy co-edited with Andrew F. Cooper and Jorge Heine (Oxford University Press, forthcoming). [email protected].

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The Protection of Civilians in UN Peacekeeping Operations:

Recent Developments

Michael G. Smith, Jeni Whalan and Peter Thomson

The frequency with which peacekeeping operations have proved inadequate to protect civilians has prompted substantial reform of peacekeeping mandates and practice. But it has also led to significant normative developments within the wider UN system—not just in peacekeeping mandates and practice. This article charts the normative, institutional and operations contours of the protection of civilians in armed conflict within the UN, highlighting the particular contributions of the Australian government to that agenda. It concludes by identifying four pathways through which efforts to protect civilians can be improved. 1

In his report that coincided with Remembrance Day 2010, the Secretary-General of the United Nations (UN), Ban Ki-Moon, reinforced the central importance of the ‘protection of civilians’ (PoC) to UN peacekeeping, thereby confirming protection as a key measure of UN effectiveness and credibility:

we must focus our efforts on enhancing protection where and for whom it matters most—on the ground, in the midst of conflict and for the hundreds of thousands of civilians who are, on a daily basis, at risk of, or fall victim to, serious violations of international humanitarian law and human rights law.2

Armed conflict has tragic consequences for civilians. Too often in recent conflicts, armed groups have intentionally targeted civilians as a tool of war—including many in which UN peacekeepers were deployed. In Rwanda in 1994, the United Nations system and its hopelessly inadequate peacekeeping force were “almost paralysed in the face of a wave of some of the worst brutality humankind has seen in [that] century”.3 In 1995, peacekeepers in the tragically named UN Protection Force oversaw the establishment of ‘safe areas’ which were anything but for up to 20,000 civilians killed in and around Srebrenica, Sarajevo, Bihać, Goražde, Žepa, and Tuzla.4 And in the Democratic Republic of Congo, Major General Patrick Cammaert reflected on the abhorrent prevalence of rape, noting that

1 The views expressed in this paper are those of the authors alone; they do not necessarily reflect the position of the Australian government. 2 United Nations Security Council, Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/2010/579, 11 November 2010. 3 United Nations Security Council, Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, S/1999/1257, 16 December 1999. 4 United Nations General Assembly, Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, A/54/549, 15 November 1999.


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“[i]t has probably become more dangerous to be a woman than a soldier in armed conflict”.5

The frequency with which peacekeeping operations have over the past two decades proved inadequate to protect civilians has prompted substantial reform of peacekeeping mandates and practice. But it has also led to significant normative developments within the wider UN system—not just in peacekeeping mandates and practice. An emerging priority for field operations, PoC is also becoming a focal point within the UN security system: an embryonic coordinating raison d’être among the UN’s central organs—the Security Council, the General Assembly and the Secretariat—and its member states and agencies.

In official statements, policy discourse and scholarly contributions, the credibility of the UN is increasingly argued to hinge on its ability to protect civilians. In his remarks at the 2010 UN Security Council open debate on the protection of civilians in armed conflict, UN Secretary-General Ban Ki-Moon stated that “saving and protecting people from the horrors of armed conflict” is a central component of the UN’s ‘cardinal mission’. The UN’s New Horizon agenda notes that consensus on policy and requirements for civilian protection is “central to the success of current and future UN peacekeeping operations”.6 Paul Williams goes even further, arguing that PoC is critical to the “legitimacy and success of individual peacekeeping operations but also to the credibility of the entire UN system”.7

Indeed, the protection of civilians is a core component of the UN’s contemporary efforts to save generations form the scourge of war, echoed in regional organisations and by national governments around the world. Nowhere is this more evident than within the multidimensional peace operations that today integrate protection as a cross-cutting issue to be addressed by military, civilian and policing components acting in concert—not by any one component alone. Yet the protection agenda within the UN system is far outpacing the development of practical, operational methods for actually fulfilling protection obligations in the field.8 As Dennis McNamara noted in 2009, while the last decade saw “major—and even quite radical”

5 Patrick Cammaert quoted in United Nations Office of the High Commissioner for Human Rights, ‘Rape: Weapon of War’, <http://www.ohchr.org/EN/NewsEvents/Pages/ RapeWeaponWar.aspx> [Accessed 9 September 2011]. 6 UN Department of Peacekeeping Operations and Department of Field Support, A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping (New York: United Nations, July 2009), p. v. 7 Paul D. Williams, Enhancing Civilian Protection in Peace Operations: Insights from Africa, Africa Center for Strategic Studies, Research Paper No. 1, (Washington DC: National Defense University Press, September 2010), p.11. 8 On the history of civilian protection, see Siobhán Wills, Protecting Civilians: The Obligations of Peacekeepers (Oxford: Oxford University Press, 2009).

The Protection of Civilians in UN Peacekeeping Operations: Recent Developments

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progress at the institutional level, “this has not led to more effective protection in the field for most civilians caught-up in today’s wars”.9

The Normative and Practical Contours of PoC

A task increasingly assigned to peacekeeping operations by the Security Council, PoC is, at its roots, based on international humanitarian law, human rights law and refugee law. The moral imperative to protect civilians is grounded in inherent principles of humanity and codified in international law.10 For humanitarian actors, the touchstone definition of humanitarian protection is that developed by the International Committee of the Red Cross and endorsed by the Interagency Standing Committee:

all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law, i.e. human rights law, international humanitarian law, and refugee law. Human rights and humanitarian organisations must conduct these activities in an impartial manner (not on the basis of race, national or ethnic origin, language or gender).11

The norm that civilians are not legitimate targets in war and should be protected from the consequences of violent conflict is subject to little contestation. As an operational objective and a practical task, however, protecting civilians is a more challenging endeavour. The operational implementation of civilian protection can and does mean different things to different actors. In this way, conceptual debates regarding the ‘protection’ resemble those of other contested terms such as ‘security’—which may refer to practices across a wide span of traditional national defence, international collective security or broad human security, entailing distinctive policy instruments and desired outcomes. Civilian protection can and does exist outside of peacekeeping operations, which adds to the confusion. Further, actions to ‘protect’ are not immune from unintended consequences.

9 Dennis McNamara, ‘The Politics of Protection’, keynote address to the conference ‘Protecting People in Conflict and Crisis: Responding to the Challenges of a Changing World’, Oxford, September 2009, available <http://www.rsc.ox.ac.uk/pdfs/keynotepapermcnamara.pdf> [Accessed 23 September 2011]. 10 See Charles Sampford, this volume. These normative foundations of PoC are shared with the related norm of the Responsibility to Protect (R2P), endorsed by UN member states at the 2005 World Summit. However, where R2P is limited in application to preventing civilians from four specific mass atrocity crimes—genocide, war crimes, crimes against humanity, and ethnic cleansing—PoC has much broader application: to protect civilians from conflict-related grave harms, which may include the R2P atrocity crimes, but which also extend to serious human rights violations and the broader human costs of armed conflict. For more on the relationship between PoC and R2P, see Global Centre for the Responsibility to Protect, ‘The Relationship between the Responsibility to Protect and the Protection of Civilians in Armed Conflict’, Policy Brief, 9 May 2011, <http://responsibilitytoprotect.org/The%20Relationship%20Between% 20POC%20and%20R2P-%20Updated.pdf> [accessed 23 September 2011]. 11 See International Committee of the Red Cross, Professional Standards for Protection Work, (Geneva: ICRC, October 2009), p. 8.


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As it exists in debates before the Security Council, and as it will be considered here, the PoC agenda focuses primarily on the implementation of protection through the mandates of UN peace operations. At the heart of contemporary PoC debates is a difficult practical challenge: how should protection mandates be operationalised? How can protection be implemented in practice?

In this context, civilian protection is now broadly understood to be an inherent objective of contemporary peacekeeping. For the authors of the independent study commissioned by the UN’s Department of Peacekeeping Operations (DPKO) and the Office for the Coordination of Humanitarian Affairs (OCHA), PoC is intrinsic to peacekeeping and “[m]issions are presumed to deploy to protect civilians, which is an enduring, implicit goal of operations”.12

Importantly, where UN peacekeepers are deployed with protection mandates, current guidance prescribes the adoption of multidimensional strategies: just as peacekeeping is no longer the sole domain of soldiers, protection can only be achieved through the concerted efforts of integrated civil, military and police components within the peace operation, working in collaboration with the UN Country Team when deployed, and with the host state that retains ultimate responsibility for the protection of their citizens.

PoC straddles the traditional ‘3D’ divisions between diplomacy, defence and development. It requires a fundamentally integrated approach, for which the security forces and civilian structures of contributing states are often ill-suited. It stands to reason that if multidimensional UN peacekeeping missions are effectively to implement PoC, then countries contributing troops, police and civilian personnel must also develop their own integrated national approaches; it is unrealistic to expect that the United Nations can implement PoC when its member states lack the necessary capabilities. New approaches and ad hoc coordination mechanisms within contributing member states are required to breakdown and re-link traditional silos of effort, including for the development of national PoC doctrine.

The Evolution of PoC in UN Peacekeeping

The personnel of today’s peace operations face more difficult PoC challenges than did ‘traditional’ peacekeepers. Developed during the Cold War, traditional peacekeeping operations were deployed primarily to address inter-state conflicts. Designed to implement agreed conflict settlements,

12 Victoria Holt and Glyn Taylor, with Max Kelly, Protecting Civilians in the Context of UN Peacekeeping Operations: Successes, Setbacks and Remaining Challenges, independent study jointly commissioned by the UN Department of Peacekeeping Operations and the UN Office for the Coordination of Humanitarian Affairs, 17 November 2009, p. 210. Similarly, Paul Williams views civilian protection as the ‘very essence’ of peacekeeping (Enhancing Civilian Protection in Peace Operations, p. 7).


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these operations were charged with monitoring ceasefires and buffer zones, in largely consensual environments populated by state-controlled militaries.

To the extent that traditional peacekeeping missions helped to manage or end conflict, they coincidentally may have contributed to protecting civilians. However, PoC was neither the core concern nor the explicit mandate of these earlier operations. Some earlier precedent can be found in the wording of a leaflet, signed by Special Representative of the Secretary-General Ralph Bunche and Force Commander General Carl Van Horn, distributed to troops of the United Nations Operation in the Congo (ONUC), deployed in 1960:

You serve as members of an international force. It is a peace force, not a fighting force … Your task is to help in restoring order and calm in this country which has been so troubled recently … Protection against acts of violence is to be given to all the people, white and black. You carry arms, but they are to be used only in self-defence. You are in the Congo to help everyone, to harm no one.13

Deployed within a state and authorised to use force if necessary, ONUC stands out from the UN’s other early peacekeeping endeavours, not least for its demonstration of the fundamental tensions between sovereignty, consent, impartiality, human rights and the broader maintenance of peace and security.

These tensions continue to plague contemporary peacekeeping, with the political, analytical and practical challenges of civilian protection at their core. There is nothing ‘new’ about the human cost of conflict, nor anything distinctly modern about the deliberate targeting of civilians as a tactic of warfare. But for the UN, and for its constantly evolving instrument of peacekeeping, the challenge of confronting these wrongs remains a relatively new demand on the organisation. In Cambodia, Rwanda, Bosnia, Haiti, East Timor, and in a host of African states, UN peacekeepers have been deployed in settings where civilians have tragically been targeted in deliberate attacks by armed parties. Mechanisms such as ceasefire monitoring and interposition forces are no longer sufficient to address the conditions of insecurity into which peace operations are deployed, where often fragmented armed groups wage conflict across invisible ‘frontlines’ that can too easily be concealed within communities. Peacekeepers are now more often authorised to use all necessary means, including deadly force, in the pursuit of their mandates.

Notably, there is no explicit mention of civilian protection in Boutros-Ghali’s landmark An Agenda for Peace, which in 1992 laid out a new manifesto for the post-Cold War United Nations, nor its 1995 Supplement, released after

13 Quoted in Herbert Nicholas, ‘UN Peace Forces and the Changing Globe: The Lessons of Suez and Congo’, International Organization, vol. 17, no. 2 (Spring 1963), fn. 14, pp. 329-30.


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the tragedy of Rwanda. In October 1995, DPKO released its ‘General Guidelines for Peacekeeping’, which mentions civilian protection only once, to question the feasibility and desirability of ‘safe areas’ that damage the impartiality of peacekeepers.14

By 1998, however, the demand for peacekeeping reform had seized UN headquarters. In that year, the Secretary-General Kofi Annan marked an important step in the UN’s emerging protection agenda by identifying PoC as a ‘humanitarian imperative’. Outlining his justification for prioritising civilian protection on the Security Council’s agenda, Annan characterised the significance of PoC in a manner that continues to shape its debates today:

In recent decades, there has been a dramatic and unacceptable deterioration in the level of adherence to humanitarian norms in crisis situations … In the past, civilian populations were chiefly indirect victims of fighting between hostile armies. Today, they are often the main targets, with women suffering in disproportionate numbers while often also being subjected to atrocities that include organised rape and sexual exploitation … Adherence to international humanitarian and human rights norms by all parties to a conflict must be insisted upon, and I intend to make this a priority in the work of the United Nations.15

In the years that followed, the United Nations progressively embedded PoC as a peacekeeping objective. In 1999, the Security Council established the United Nations Assistance Mission in Sierra Leone (UNAMISIL), authorising it “within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical violence”.16 The Security Council has now authorised twelve UN peace operations with PoC mandates, eight of which remain active at the time of writing in 2011: UNOCI in Cote d’Ivoire; MONUSCO in the Democratic Republic of Congo; MINUSTAH in Haiti; UNIFIL in Lebanon; UNMIL in Liberia; UNMISS in South Sudan; UNISFA in Abyei; and UNAMID in Darfur.17

The release in 2000 of The Report of the Panel on United Nations Peacekeeping Operations, known as the Brahimi Report, catalysed significant shifts in the UN’s approach to peace operations, including with regard to PoC. The report identified numerous problems in UN peacekeeping; among its many recommendations was the call for “robust doctrine and realistic mandates”. The Brahimi Report observed that the UN had often been unable to respond effectively to challenges on the ground

14 United Nations Department of Peace-keeping Operations, General Guidelines for Peace-Keeping Operations (New York: United Nations, 1995); see also Williams, Enhancing Civilian Protection in Peace Operations, p. 13. 15 United Nations, The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa, Report of the Secretary-General, A/52/871—S/1998/318, 13 April 1998, paras 49-50. 16 United Nations Security Council, Resolution 1270 (1999), 22 October 1999. 17 The UN mission in Sudan (UNMIS) completed its operations in July 2011; its successor mission, the UN mission in South Sudan (UNMISS) also has a PoC mandate.


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and it stressed the need for peacekeepers, once deployed, to carry out their mandates “professionally and successfully”. Moreover, UN peacekeepers, whether troops or police, who witness violence against civilians “should be presumed to be authorised to stop it, within their means, in support of basic UN principles”.18

As PoC gained prominence within UN peacekeeping debates, in 2002 UN OCHA submitted to the Security Council an Aide Memoire, intended as a practical diagnostic tool for the Security Council’s consideration of PoC issues during deliberations on peacekeeping mandates. The Aide Memoire is regularly updated; its fourth edition, published in 2011, identifies seven general areas of protection concern:

1. Parties’ responsibilities to protect and assist the conflict-affected population;

2. The protection of refugees and internally displaced persons;

3. Humanitarian access and safety and security of humanitarian workers;

4. The conduct of hostilities;

5. Small arms and light weapons, mines and explosive remnants of war;

6. Compliance, accountability and the rule of law; and

7. Media and information, inc. protection of journalists, countering occurrences of speech used to incite violence, and promoting and supporting accurate management of information on the conflict.19

The Aide Memoire also details protection concerns related to two specific conflict-affected populations: women and children. Finally, it includes an appendix of protection language used in Security Council resolutions to address the spectrum of issues listed above.

Two cross-cutting protection themes have emerged in Security Council debates over the past decade: the protection of women and children in conflict. In 2000 the Security Council specifically linked women’s experience of conflict to the maintenance of international peace and security.20 In 2008,

18 United Nations, Report of the Panel on United Nations Peace Operations, A/55/305—S/2000/809, 21 August 2000. 19 UN OCHA, ‘Aide Memoire: For the Consideration of Issues Pertaining to the Protection of Civilians in Armed Conflict’, Policy and Studies Series, vol. 1, no. 4 (2011). The Aide Memoires have been adopted through Presidential Statements in the Security Council; the most recent was adopted in S/PRST/2011/25. 20 United Nations Security Council, Resolution 1325 (2000), 31 October 2000.


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UN Security Council Resolution 1820 recognised conflict-related sexual violence as a tactic of war;21 tools for addressing the issue were articulated in UN Security Council Resolution 1888 of the following year, which included issues of leadership, judicial response expertise and reporting mechanisms.22 UN Security Council Resolution 1889 built upon these by setting out issues related to the role of women in peacebuilding.23 Finally, in 2010, UN Security Council Resolution 1960 established an accountability regime for addressing conflict-related sexual violence.24

In 1996, the UN General Assembly released a report on child protection in situations of armed conflict. Authored by Graca Machel, the study set a powerful agenda within the UN system.25 In 1997, the Secretary-General appointed a Special Representative for children affected by armed conflict, and in 2005 the Security Council authorised the establishment of an operational-level monitoring and reporting mechanism.26 A series of Security Council resolutions has established system-wide concern for the child protection in armed conflict; as with PoC more broadly, however, troubling gaps remain between such institutional-level progress and real impact in the field.27

That the institution of UN peacekeeping has evolved is not in itself significant: indeed, peacekeeping has always been an ad hoc instrument, repeatedly redesigned and adapted to meet the changing demands of international peace and security. That protection is so central to the agenda of today’s peacekeeping, however, does reflect an important development in UN security-related affairs: the achievement of broad political consensus—from civil society to the UN’s member states and key organs—regarding the moral legitimacy and practical imperative of protecting civilians from conflict-related grave harms.

Recent Developments in the UN System

In 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 Nations

21 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.


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peacekeeping operation and must be mainstreamed into the planning and conduct of its core activities.28

In November 2009, an independent study commissioned by DPKO and OCHA found substantial gaps between the Security Council’s intentions to protect civilians and the capacity of the UN (and its peace operations) to do so in practice. Protecting Civilians in the Context of UN Peacekeeping Operations: Successes, Setbacks and Remaining Challenges identified a series of grave weaknesses in the protection system, including the lack of adequate connections between early warning and mandate development, guidance gaps, confusion regarding Security Council intentions, and insufficient mission-wide protection strategies. The report made a number of recommendations, including the urgent development of guidance on PoC by the UN Secretariat. It also emphasised the need for ‘partnerships’ between major troop- and police-contributing countries and members states in the UN Security Council. Operationally, the report urged all actors to manage expectations in the host country.

In the same year as the independent study was released, the Special Committee on Peacekeeping Operations (C-34) included language in its report for the first time on protection of civilians. It was in response to requests from the C-34 that DPKO and the Department of Field Support (DFS) developed first an operational concept of PoC and then a Strategic Framework, designed to bring coherence in approach, minimise gaps, avoid duplication and maximise the ability of peacekeeping operations to enhance the implementation of PoC. The Framework operationalises PoC through three tiers of implementation: protection through a political process; protection from physical violence; and contributing to a protective environment. Attention is now focused on the much larger task of populating these tiers with policy initiatives that work in practice.

The combination of the Strategic Framework and the continuing development of mission-wide PoC strategies have seen significant improvement in the UN’s ability to conceptualise and implement effective PoC strategies. Significant work remains, however, in the area of pre-deployment and in-mission training for PoC, and in the allocation of necessary resources to ensure effective implementation on the ground. Further, it is recognised that, in practice, peacekeeping missions will not be able to protect all civilians, everywhere, all of the time; for this reason, the management of expectations with regard to civilian protection is a critical task, 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, including

28 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.


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DPKO, UNITAR, UN Women (through the Analytical Inventory), and the humanitarian protection agencies—OCHA, UNHCR and UNICEF. Of particular note, DPKO has developed training strategies that include four modules and twelve scenario-based packages. Further, across national governments, regional organisations and peacekeeping training centres, training for PoC is acquiring greater significance.

Australia’s Contribution to PoC

The Australian Government has been working with the international community to support the better operationalisation of PoC by advocating for language requesting the development of guidelines for peacekeepers on PoC in the Special Committee of Peacekeeping Operations (C-34), and assisting the UN develop and implement its reforms. During 2009 and 2010, the Permanent Missions of Australia and Uruguay co-hosted three workshops in New York to improve understanding of PoC, providing a forum for the peacekeeping community, particularly troop- and police-contributing countries, to discuss initiatives to improve the implementation of PoC mandates. During this period, the Australian Government also supported the drafting of the proposed Guidelines for the Protection of Civilians in African Union Peace Support Operations, the first initiative by a regional peace and security organisation to create strategic and operational-level guidance on PoC in peace operations. The AU Commission is currently developing a ‘comprehensive AU approach’ towards protection of Civilians and has set up a working group.29

Australia is also an active participant in the International Forum for the Challenges of Peace Operations, established to promote global dialogue and generate practical recommendations for reform, and in 2010 hosted the 3rd Forum, focused specifically on PoC.30

Australia, through AusAID, provided support to key UN agencies to develop an inventory of best practice in preventing sexual violence during conflict,31 which provides practical examples of peacekeeping tactics that have been used to reduce sexual violence and improve the safety of women during conflict. DPKO and UN Women have developed training modules and scenarios based on the inventory to generate awareness in military decision-making and planning circles and to support pre-deployment training of uniformed personnel.

29 See ‘Progress Report of the Chairperson of the Commission on the Development of Guidelines for the Protection of Civilians in African Union Peace Support Operations’, 18 May 2011, <http://www.ausitroom-psd.org/Documents/PSC2011/279th/Reports/ProgressReport ProtectionofCiviliansEng.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 Sexual Violence—An Analytical Inventory of Peacekeeping Practice (New York: United Nations, 2010).


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In partnership with the United Nations Institute of Training and Research (UNITAR), the Australian Government has produced a 40-minute training documentary entitled Mandated to Protect: Protection of Civilians in Peacekeeping Operations. Secretary-General Ban Ki-Moon introduces the documentary and interviewees provide insights on PoC in conflict zones, both past and present. This documentary will complement the UN’s scenario-based training.

Finally, in response to the identified need for more operational guidance, the Australian Government is developing a PoC doctrine note for the Australian Defence Force.

The Road Ahead

PoC is now a core requirement of modern peacekeeping. Despite the significant progress outlined above, more work lies ahead if UN peacekeepers are to be more effective in their implementation of PoC mandates. The future success of PoC will depend largely on the correlation of four civil-military capabilities: knowledge management; training and research; the allocation of appropriate resources; and the development of national PoC doctrine and guidance.

Knowledge management can enable civilian, military and police actors to understand the requirements of PoC, as well as the respective roles and responsibilities of each actor, and of the host state and local communities. At the heart of knowledge management is a willingness and commitment to share information and to break down the traditional silos that still obstruct better practice. In the field, knowledge management requires an effective early warning system tailored to community needs in order to facilitate timely decision-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 and research, much more needs to be done to develop PoC courses, to link PoC with training on sexual and gender-based violence, and to evaluate the effectiveness 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 circumstances of a particular operation. More applied research can help to capture lessons that 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 provide peacekeeping operations with the necessary resources to prevent atrocities and ensure adequate standards of protection. PoC demands agile peacekeeping characterised by reliable presence and appropriate posture to


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deter the perpetrators of violence. Beyond the necessary authorisation of robust 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, is the development of specific PoC guidelines and doctrine by member states at the national level. While it must be consistent with UN principles, such national guidance is crucial to prepare peacekeepers for the difficult, crucial task of protecting civilians in armed conflict.

Michael G. Smith is the founding Executive Director of the Asia Pacific Civil-Military Centre of Excellence (APCMCOE). From 2002-2008 he was CEO of Austcare. Mike formerly served as an Army Officer in the Australian Defence Force for 34 years, retiring in 2002. He is an Adjunct Professor at the Key Centre for Ethics, Law, Justice and Governance at Griffith University. [email protected].

Jeni Whalan is Research and Lessons Learned Manager at the APCMCOE and a Research Associate at the Global Economic Governance Programme, University of Oxford. She holds a DPhil in International Relations and a DPhil in International Relations from the University of Oxford. [email protected].

Peter Thomson is Governance and Rule of Law Advisor at the APCMCOE. He is seconded from the Attorney-General’s Department. From 1997 to 2004 he was appointed as a Member of the Australian Refugee Review Tribunal. He has undertaken AusAID-funded consultancies as the Long Term Human Rights Adviser within the Indonesian Department of Justice and Human Rights. He holds a Bachelor of Law and a Bachelor of Arts from the University of New South Wales and a Master of Public Law from the ANU. [email protected].


Points of Convergence and Divergence:

Normative, Institutional and Operational Relationships between R2P

and PoC

Hugh Breakey and Angus Francis

As an international norm, the Responsibility to Protect (R2P) has gained substantial influence and institutional presence—and created no small controversy—in the ten years since its first conceptualisation. Conversely, the Protection of Civilians in Armed Conflict (PoC) has a longer pedigree and enjoys a less contested reputation. Yet UN Security Council action in Libya in 2011 has thrown into sharp relief the relationship between the two. UN Security Council Resolutions 1970 and 1973 follow exactly the process envisaged by R2P in response to imminent atrocity crimes, yet the operative paragraphs of the resolutions themselves invoke only PoC. This article argues that, while the agendas of PoC and R2P converge with respect to Security Council action in cases like Libya, outside this narrow context it is important to keep the two norms distinct. Peacekeepers, humanitarian actors, international lawyers, individual states and regional organisations are required to act differently with respect to the separate agendas and contexts covered by R2P and PoC. While overlap between the two does occur in highly visible cases like Libya, neither R2P nor PoC collapses normatively, institutionally or operationally into the other.

In 2005, the international community took a bold step forward when it accepted a shared responsibility to use peaceful means to prevent genocide, war crimes, ethnic cleansing and crimes against humanity, and in the event peaceful means proved inadequate, to take collective action through the United Nations (UN) Security Council in accordance with the UN Charter.1 Yet while the Responsibility to Protect (R2P) doctrine, as it is known, gradually grew in significance within the UN, including the Secretary-General’s appointment of a Special Adviser on R2P in 2007,2 it was of limited operational relevance outside New York. The Security Council, in particular, despite affirming R2P in 20063 and evoking it in the context of the

1 2005 World Summit Outcome, GA Res. 60/1, paras. 138-9 (24 October 2005) [hereafter Outcome 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.


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conflict in Darfur, appeared to be holding off on applying the norm in a more robust and consistent fashion.4

UN Security Council Resolutions 1970 and 1973 on Libya marked a turning point.5 Their language, context, purpose and effect demonstrated the Security Council’s willingness to operationalise the R2P norm—and robustly. Resolution 1970, which was adopted unanimously, determined that the attacks on the civilian population in Libya may amount to crimes against humanity and sought international accountability for those acts by referring the situation to the International Criminal Court. When sanctions failed to halt the violence, the Security Council passed Resolution 1973, which reiterated “the responsibility of the Libyan authorities to protect the Libyan population” and authorised Member States “to take all necessary measures … to protect civilians and civilian populated areas under threat of attack” in Libya. 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 community to work with willing states to develop their capacities to protect their populations, and its ‘Third Pillar’ provides for Security Council-authorised sanction and military response to states manifestly violating their First Pillar responsibilities.6 In the context of Libya in 2011, there was clear evidence of a state engaged in mass atrocities against its population (failure of its Pillar One obligations); the failure of pacific measures to prevent further bloodshed (failure of R2P Pillar Two measures and the pacific sanctions of Pillar Three); and an international community prepared to take more robust action through the Security Council and Chapter VII of the UN Charter (R2P Pillar Three). With Resolution 1973 the Security Council did what it had never done before: it authorised a military intervention for humanitarian purposes against the express will of a functioning government.7

The fact that R2P has evolved from concept to concrete action has thrown up new challenges of definition and implementation. Not least of which is its relationship to a parallel doctrine that has developed in international humanitarian law and in the operational context of UN peacekeeping operations: the Protection of Civilians (PoC). Resolutions 1970 and 1973, as well as the statements of members of the Security Council at the time,8 are ripe 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 of

4 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 to Protect, 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).

Normative, Institutional and Operational Relationships between R2P and PoC

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violence and the protection of civilians. In this regard, the resolutions build on the work on PoC in the Security Council and General Assembly over the last decade that has witnessed PoC become entrenched in the mandates of numerous UN peacekeeping operations.

This reading of Resolutions 1970 and 1973 raises a fundamental question: If the resolutions can be seen as implementing both R2P and PoC, do they represent a merger of what have been regarded by most as distinct, though related, doctrines? The question has two significant implications. First, the hard-won international consensus on R2P was achieved largely because of the exclusive focus on mass atrocities. PoC is altogether much broader. Associating the grounds for international intervention with PoC (as opposed to how protection is to be carried out once UN peacekeepers are on the ground), may undermine this consensus.

Second, R2P is more controversial than PoC principally because of the robust military intervention entertained by R2P discourse (and actioned in Libya). Proponents of PoC in UN peacekeeping operations, such as the UN Department of Peacekeeping Operations, may have concerns that a convergence of R2P and PoC will make it less likely for agreement to be reached on the inclusion of PoC mandates in UN peacekeeping operations. This could lead to the highly unsatisfactory state of affairs whereby high profile cases like Libya attract international commitment and action, while the more day-to-day grind of engaging PoC across an array of peacekeeping opportunities falls by the wayside.

This article argues that both these negative implications can be avoided by a rigorous interpretation of Resolutions 1970 and 1973 against the background of the normative, institutional and operational characteristics of R2P and PoC. A precise interpretation of the UN Security Council’s resolutions on Libya—and one promoted in this article—is that the resolutions represent a convergence of the twin protection norms of R2P and PoC in the context of directly preventing and responding to imminent mass atrocities. However in many other respects the two doctrines should not be conflated, as they each retain distinct characteristics that must be preserved.

This article moves through the normative, institutional and operational dimensions of R2P and PoC, noting areas where it is vital the two norms remain distinct, while explaining how—in the specific context of Security Council reaction to imminent atrocities—the two norms will coalesce.

Normative Level

THE NORMATIVE CORE OF R2P AND POC To what extent do R2P and PoC share a normative core? At the most fundamental level, both are rooted in notions of empathy and humanity. They also reflect long-standing attempts to ensure states protect those


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falling within their jurisdiction—and that the international community takes steps to enforce this obligation. But R2P has a narrower agenda—dealing exclusively with mass atrocities.9 While the institutional and operational engagement demanded by R2P is broad, the normative focus is narrow.

However, this does not necessarily restrict R2P’s influence on PoC. At a recent workshop on R2P and PoC in Jakarta, Dr Mangadar Situmorang from the Universitas Katolik Parahyangan astutely highlighted the added political and organisational influence/power/weight that R2P has generated for the “whole concern and interest in protecting civilians”. The fact that R2P was formulated and proposed by internationally prominent former politicians (and sponsored by the Canadian Government)—and then supported and adopted by the UN General Assembly and the Security Council—boosted the significance of PoC in the UN, thereby contributing to the emergence of the “civilian protection principle” and the “civilian protection network” (the latter constituted by a transnational community of citizens, journalists, protection organisations 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 1973 framed the international response to the atrocities being committed in Libya in the unmistakable language of R2P.10 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 the security of the civilian population—suffused the statements of Security Council member states voting in favour of Resolution 1973.11 But the language used in the resolutions to define the scope of protection is unmistakably PoC.12

NORMATIVE DIVERGENCE BETWEEN R2P AND POC IN NON-REACTION

AND NON-ATROCITY CASES Historically, the core normative framework of PoC is International Humanitarian Law (IHL)—especially the Geneva Conventions of 1949 and the Additional Protocols of 1977. These instruments—and their moral antecedents throughout the centuries and across myriad cultures13—spell out the laws of armed conflict. States engaging in war, and the combatants thereof, must obey the three norms of proportionality, distinction and

9 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’s sovereignty 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 the Pacific Region’, Commonwealth Law Bulletin, vol. 34, no. 4 (2008), pp. 833-41; James Turner Johnson, ‘Maintaining the Protection of Non-Combatants’, Journal of Peace Research, vol. 37 (2000), pp. 421-48.


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limitation. For their part, peacekeeping and humanitarian operations, within their means and scope of authority, aim to protect civilians within their zone of operations from the crimes outlawed by IHL.

R2P, as noted above, centres not on war, but on atrocity. The legal instruments which most directly shape R2P are those defining international atrocity crimes, including the Genocide Convention, the Rome Statute, and the statutes of the ICTR and ICTY. All these instruments are explicit that atrocity crimes are not limited to armed conflict narrowly construed: genocide and crimes against humanity (including ethnic cleansing through the crimes of deportation or persecution) may occur in times of war or peace.14

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 not only assaults on people’s person, but upon, for instance, their private and cultural property.15 In practice, advocacy for and state-implementation of the norms of PoC revolves around ensuring that troops and their commanders are familiar with, trained in and regulated by IHL. Advocacy for and state-implementation of R2P, however, takes a very different form—focusing instead on civil society, security sector reform and implementation of human rights 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 SECURITY

COUNCIL REACTION-TO-ATROCITY CASES With atrocity crimes however, the founding norms of PoC and R2P begin to coalesce. Morally, the normative logic overlaps. If State B, in prosecuting war against State A, is understood to be bound by jus cogens limitations on what they may do to the enemy population of A, then it is ethically inconceivable that the government of State A itself would not be bound by similar restraints, vis-à-vis its own population (whether in peace or war). It would defy any imaginable moral logic to hold that an enemy fighting an existential threat in a state of war owes more moral consideration to the enemy population than that which is owed to that population by their own government. If even the horror of war admits of certain minimal levels of respect for humanity, then those levels cannot be lower than that expected of 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 of armed resistance with a military structure or of UN troops being involved in

14 E.g. Genocide Convention, Art. 1; similarly the Rome Statute of the International Criminal Court (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 Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’, International Review of the Red Cross, vol. 87, no. 857 (2005), pp. 175-212.


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fighting.16 These conditions would have been fulfilled in most recent atrocity cases, including Rwanda, Srebrenica, Kosovo, Darfur, the Democratic Republic of the Congo, Côte d’Ivoire and (importantly for our purposes) Libya.

Libya represents the coming together of R2P and PoC to prevent mass atrocities. The Security Council Resolutions are accompanied by repeated reference to the mass violence and attacks on the civilian population by Libyan authorities. There are none of the usual caveats in PoC mandates that might limit the scope of protection. Of course, there is the explicit rejection of ground troops, but this goes to the means of protection as opposed to who is being protected and against what.

The prevention of crimes against humanity in Libya is only one context in which the R2P and PoC norms might converge. They could also converge to prevent or respond to war crimes, genocide and ethnic cleansing. In the future another Rwanda might be prevented if we had an effective R2P principle to generate political action and hold states to their obligations under the Genocide Convention, together with a UN and regional peacekeeping force mandated and appropriately resourced to protect civilians.

In all, while the distinct status and scope in law of PoC and R2P duties must be recognised, and will be important in various applications, once atrocity crimes begin in earnest in cases like Libya, the two normative regimes will converge.

Institutional Level

INSTITUTIONAL DIVERGENCE BETWEEN R2P AND POC IN NON-REACTION

AND NON-ATROCITY CASES There are several institutional contexts where R2P and PoC must be distinguished.

First, R2P’s preventive agenda is quite different to PoC’s. Several sorts of institutions are employed by R2P in pursuit of the prevention of atrocity crimes. The Office of the Secretary General (including the Joint Office of the Special Advisors), the General Assembly and Regional Organisations are all called upon by R2P to engage in preventive actions with the mutual consent of all involved. Such actions may include preventive deployments, capacity building, training peacekeepers, dispute resolution and more.17 R2P, rather than PoC, is better able to promote this deep preventive agenda because the threat of atrocity crimes is morally graver, and has larger consequences

16 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 January 2009; UN Secretary-General, The Role of Regional and Sub-Regional Arrangements in Implementing the Responsibility to Protect, A/65/877–S/2011/393, 27 June 2011.


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for international peace. R2P therefore, can act as a rallying cry for preventive action as much as action in response to imminent atrocity.

Arguably, R2P’s narrower ambit also makes preventive action more tractable: prevention of atrocities is manageable in a way that prevention of armed conflict per se is not.18 The institutional difference here is pronounced vis-à-vis the General Assembly. As the institution that controls the internal organisation and funding of the UN’s organs, the development of R2P’s preventive capacities reposes primarily in the hands of the Assembly. The Assembly has, however, arguably not yet been up to the challenge it imposed on itself in the Outcome Document,19 with only weak support being offered, for instance, to the R2P Special Advisor to the Secretary General.20 Given that the likely concerns of the Assembly surround R2P’s controversial Third Pillar action however, its hesitancy is misplaced. As Resolution 1973 amply demonstrates, decisions over Third Pillar military action lie firmly in the hands of the Security Council. The Assembly’s lack of support for R2P undermines only R2P’s consent-based, preventive capacities.

Second, like other preventive measures, the institutional development of R2P early-warning mechanisms is important.21 In this case, once again, the specificity and gravity of R2P crimes make it a more effective device—as compared to PoC—for motivating the development of such capacities. Specifically, since robust early-warning impacts on various aspects of sovereignty, R2P’s norm of “sovereignty as responsibility” shapes as an ineluctable factor in the institutional development of such capacities by regional and global organisations. It is only because states no longer are understood to have the authority to perform atrocities on their people that a normative space is opened for monitoring state in this regard.

Third, R2P and PoC will be strongly distinguished by states that are faced with civil disturbances threatening civilians, especially when state actors are implicated in such threats. In such cases, states may be effectively faced with a choice between PoC and R2P. That is, they may opt for the deployment of an international peacekeeping operation with a robust PoC mandate in order to demonstrate that the situation in their country is not one that should be approached, as Libya ultimately was, through the R2P Pillar Three lens. States in this position will thus perceive R2P and PoC disjunctively.

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, 16 September 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.


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INSTITUTIONAL CONVERGENCE BETWEEN R2P AND POC IN SECURITY

COUNCIL REACTION-TO-ATROCITY CASES In cases of reaction to imminent atrocity, like Libya, the norms of R2P and PoC will converge upon the institution of the UN Security Council. In terms of PoC, while the Security Council concerns itself with many different situations where civilians are threatened, it has determined that the gravest and most large-scale cases of threats to civilians (i.e. atrocity crimes) may constitute a threat to international peace and security.22 Given the Security Council’s mandate and powers under Chapter VII of the UN Charter, this determination 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 regarding threats to international security is applicable. Here too however, there is additional political and legal support for the role of the Security Council. The Outcome Document, pursuant to the UN Charter, explicitly places decisions regarding coercive and military action in the hands of the Security Council. The largest ever gathering of world leaders therefore, have consented to the role of the Security Council in determining the proper response to atrocity cases. On a like footing, Article VIII of the Genocide Convention provides that the contracting parties may “call upon the competent organs of the United Nations to take such action under the Charter … as they consider appropriate for the prevention and suppression of genocide”. Here too, the Security Council is the primary—if not exclusive—organ of the UN vested with the authority to prevent genocide by a member state of its own people.

Thus, in cases of imminent atrocity, both PoC (through threats to international peace) and R2P (additionally through the Outcome Document and the Genocide Convention) converge in placing the authority for action on the institution of the UN Security Council.

Operational Level

OPERATIONAL DIVERGENCE BETWEEN R2P AND POC IN NON-REACTION

AND NON-ATROCITY CASES At the operational level, it will often be important to sharply distinguish R2P and PoC. Two examples follow:

First, in the last decade humanitarian actors (Oxfam, the International Committee of the Red Cross (ICRC) and so on) have increasingly come to play a key role in PoC, not only in their traditional roles of advocating for civilians and those hors de combat and in urging states to ratify IHL treaties, but more directly by targeting and expanding their humanitarian activities in

22 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.


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order to enhance the protection of local civilians from violence.23 The focus of such humanitarian operations is explicitly, and rightly, on PoC rather than R2P. In R2P situations, when armed parties have the systematic destruction or persecution of a civilian population as one of their settled war aims, the types of pacific solutions utilised by humanitarians are no longer viable and—indeed—the humanitarians themselves are likely to be in grave danger. On the operational plane at least, PoC is a focus of humanitarian actors in a way that R2P cannot be.

Second, the literature on peacekeeping operations has found it useful to distinguish ordinary peacekeeping operations’ engagement with PoC from ‘R2P missions’ in the sense that the latter calls for a much deeper and systematic response to civilian protection. In R2P situations, there is the threat of atrocity crimes, meaning that violence against civilians is not peripheral to the armed conflict. Rather, the threat against civilians posed by one or both sides is large-scale, deliberate and systematic. At an operational level, this type of threat must be dealt with quite differently to instances of small-scale, localised and opportunistic violence against civilians. 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.24

As such, it is important to distinguish ‘PoC missions’ from ‘R2P Pillar Two missions’.25 As Rwanda and Srebrenica have taught us, if a peace operation is mandated and resourced only for dealing with sporadic violence against civilians 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 for Humanitarian Agencies (London: Overseas Development Institute, 2005); Inter-Agency Standing Committee (IASC), Growing the Sheltering Tree: Protecting Rights through Humanitarian Action, Programmes and Practice Gathered from the Field (Geneva: UNICEF, 2002); Sorcha O’Callaghan and Sara Pantuliano, ‘Protective Action: Incorporating Civilian Protection into Humanitarian Response’, HPG Report 26, December 2007; Oxfam, Protection into Practice (Oxford: Oxfam, 2005). 24 Victoria Holt and Tobias Berkman, The Impossible Mandate? Military Preparedness, the Responsibility to Protect and Modern Peace Operations (Washington: The Henry L. Stimson Center, 2006), p. 3; see similarly: Siobhán Wills, Protecting Civilians: The Obligations of Peacekeepers (Oxford: Oxford University Press, 2009), p. 80, though Wills makes this distinction 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 cannot operate 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. In these cases, states acquiesce for political reasons at an executive level to the deployment of international 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 a contemporary one.


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OPERATIONAL CONVERGENCE BETWEEN R2P AND POC IN SECURITY

COUNCIL REACTION-TO-ATROCITY CASES The operational convergence of R2P and PoC in terms of reaction to atrocities is plainly in evidence in UN Security Council Resolution 1973. Action here occurs under the express PoC rubric. Indeed, the Resolution refers only obliquely and fleetingly to R2P, and instead phrases the operative part of the resolution explicitly in terms of the protection of civilians.26 The action was however—and as noted earlier—manifestly R2P in design, procedure and outcome.27

While R2P in principle is explicit in opening a space for direct, robust military force as a last resort, the military action of the international forces (ultimately headed by NATO) demonstrated that, once there is an imminent threat of atrocity, PoC allows for the direct application of force against the military targets of a regime. This is particularly true in cases like Libya, where members of the international community came to regard the regime itself as constituting a standing large-scale threat to a civilian population. If it becomes plausible to believe—or culpably naïve to deny—that one party to a conflict will, if a future opportunity presents itself, deliberately engage in atrocities against civilians, then a direction to take “all necessary measures” to protect civilians28 comes perilously close to a mandate to neutralise the armed forces of that regime and/or to support the regime’s opponents in their endeavours against it. That is, at the point where it becomes reasonable to believe that any future armed victory of the Gaddafi regime over the insurgency would imperil the civilian population of Benghazi,29 then the neutralisation—or at least the demobilisation—of Gaddafi’s forces becomes an ineluctable avenue to the protection of civilians. To be sure, issues of mission creep here are a legitimate concern, and the UN Security Council wisely curtailed the scope for interpretation of Resolution 1973 by explicitly ruling out the presence of ground forces.30 It is nevertheless clear that, as far as the UN Security Council (and the actors that engage on its behalf) is

26 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 1973 will come to be acknowledged as an official R2P resolution, through the process of authoritative interpretation. Given the Secretary-General’s position on the tight link between R2P and Resolution 1973 (UN Secretary-General, ‘Statement by the Secretary-General on Libya’, 17 March 2011, <http://www.un.org/apps/sg/sgstats.asp?nid=5145>, it is likely that he will describe Resolution 1973 as an instance of R2P action in, for instance, his next thematic report on PoC to the Security Council. When the Security Council takes note of the Secretary-General’s report in the Preamble to their subsequent thematic resolution on PoC, if they do not explicitly reject this 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 attack with “no mercy”. 30 They here followed the lead of the various relevant regional organisations, especially the League of Arab States, which had called for the no-fly zone but drawn the line at deploying ground troops. See Williams, ‘Briefing: Libya’, pp. 252-3.


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concerned, PoC is no less able than R2P to provide for the direct and robust use of military force.31

Conclusion

In conclusion, there is a close relationship between these two powerful international protection norms. This is to be expected: principles that have evolved rapidly in the last decade in response to the same humanitarian tragedies draw on the same well of international obligation, espouse the same language of civilian protection, and engage a similar cross-section of protection actors. In the specific context of UN Security Council reaction to imminent atrocities by states on their own populations, this article has argued that the normative bases, institutional structures and operational capacities of R2P and PoC converge. UN Security Council Resolutions 1970 and 1973 are at once both R2P and PoC resolutions.

Yet this does not mean more generally that either norm collapses into the other. As has been argued, the legal instruments underpinning PoC and R2P remain distinct, the institutional prevention agenda of R2P is stronger than that of PoC, states implicated in atrocity crimes will be faced with a choice between PoC peacekeeping and R2P Pillar Three sanction, and peacekeeping and humanitarian actors will on an operational plane distinguish sharply between PoC and R2P contexts. Thus, while the agendas of R2P and PoC overlap in the most visible cases, they yet remain normatively, institutionally and operationally distinct.

Casting back to the first of the two questions raised at the beginning of this article, the scope of R2P must remain narrowly focused on atrocity crimes. Smearing this key distinction between the norms and expanding R2P’s scope to include all violations of PoC would widen its potential applicability dramatically, rendering the norm unworkable in practice and unacceptable in legal and institutional terms. On the second question of the comparative controversy of the two norms however, the two norms are closer than usually allowed. PoC—at least in the hands of the UN Security Council, rather than peacekeepers, combatants and humanitarians—has allowed for the possibility of Chapter VII action in the gravest cases at least since the UN Security Council’s thematic PoC Resolutions of 1999 and 2000, and arguably as far back as Resolution 688 on Iraq in 1991.32 When war crimes

31 The recent use of decisive military force in Côte d’Ivoire on the basis of the PoC elements of United Nations Security Council, Resolution 1962 (2010), 20 December 2010 and Resolution 1975 (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 Situation in Côte D'Ivoire’, 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.


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become atrocity crimes, the UN Security Council position on PoC comports exactly with its position on R2P.33

As this article has shown, the relationship between R2P and PoC is complex. Genuine overlap is possible, but as a general matter each norm remains distinct. As the UN Secretariat moves to implement the R2P norm,34 the above analysis points to the need for careful attention to the specific areas where R2P and PoC converge and diverge.

Dr Angus Francis lectures in public international law and refugee law at the Queensland University of Technology’s Faculty of Law and is the Programme Leader of the Faculty’s Human Rights and Governance Research Programme. He is currently undertaking research into the relationship between the Responsibility to Protect and Protection of Civilians as part of a collaborative grant funded by the Australian Responsibility to Protect Fund. [email protected].

Dr Hugh Breakey is a Research Fellow at the Institute for Ethics, Governance and Law at Griffith University, Australia. He researches on the nature of rights, especially bodily, intellectual and property rights, and their relation to laws, duties, responsibilities, and international protection norms. [email protected]

33 This explains why, despite the differences between the two norms discussed throughout this article, 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 to Protect, UN Doc A/64/864 (14 July 2010); UNSG, The Role of Regional and Sub-Regional Arrangements in the Responsibility to Protect, UN Doc A/65/877 (27 June 2011).


A Feuerbachian Inversion: From Sovereign Rights and Subjects

Duties to Citizen Rights and State Duties

Charles Sampford

The responsibility to protect (R2P) and the Protection of Civilians (PoC) are emerging international norms (or principles) with similar origins and covering similar ground. One of the most 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 to protection and states have responsibilities. This radical inversion carries into international norms the ‘Feuerbachian’ inversion of domestic norms imposed on Westphalian sovereigns by enlightenment thinkers—who insisted that subjects did not have to prove their loyalty to sovereigns but that states had to justify themselves to their citizens. However, there remains concern at potential overreach and abuse and the ways in which the risk of such abuse may be limited. 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 for unprotected civilians whose lives and livelihoods are threatened by conflict. The risk of abuse should be recognised and addressed by legal and institutional means.

The responsibility to protect (R2P) and the Protection of Civilians (PoC) are emerging international norms (or principles1) covering similar ground. One of the most attractive features of R2P and PoC is the priority it gives to human rights over state rights. R2P emphasises that states do not have rights to intervene but harmed civilians have rights to protection and states have responsibilities. This radical inversion carries into international norms the inversion of domestic norms imposed on Westphalian sovereigns by enlightenment thinkers—who insisted that subjects did not have to prove their loyalty to sovereigns but that states had to justify themselves to their citizens. These related inversions take the same form as Feuerbach who famously challenged the idea that God created man in His image with the idea that man may have created God in his.

However, there remains concern at potential overreach and abuse and the ways in which the risk of such abuse may be limited. I will argue that they should not be seen as ideas from the West imposed on the rest. They are much more broadly grounded than that, finding support in (i) the empathy for others that is part of being human and which finds a variety of expressions in the religions and cultures of the world; (ii) the claims by all rulers to protect

1 Edward Luck, UN Security Council: Practice and Promise (London: Routledge, 2006).

Charles Sampford

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their followers and (iii) the fact that many rulers have persecuted rather than protected their subjects.

Similarly, the reservations are at least as firmly grounded in western tradition than that of others. Indeed, it was the miseries inflicted by seventeenth century interventions purportedly to protect co-religionists that led to the principles 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 of empathy for unprotected civilians whose lives and livelihoods are threatened by conflict. The risk of abuse should be recognised and addressed by institutional means.

Shared Origins

It is widely said that R2P and PoC share common origins in international humanitarian law (IHL) and in human rights law. I suggest that they spring from the same roots.

Both norms emphasise the value of protecting members of other communities from violence (R2P and PoC) and other severe deprivations (PoC). Although all cultures celebrate the special ties we have with particular groups of fellow humans (kin, locality, ethnicity, religion and culture itself). While these values may be utilised to generate conflict, most or all cultures recognise, in one form or another, a common humanity—and a concern for others. The duties to avoid harming others and to go to the aid of those who are suffering are a prominent part of many religions. In the last century it has been formalised in IHL, reinforced by the UN Charter, the UN Declaration on Human Rights and the Human Rights Conventions. While these are obligations to which all nations have committed, this does not mean that we should ignore the variety of supports found within the cultures and religions of the world. It means that we should emphasise these as part of ‘norm localisation’.

Both norms emphasise the primary responsibility of the relevant sovereign states—an idea that is grounded in the long standing attempts by rulers to legitimise their regimes based on the claim that they protected their people. While there were other claims to legitimacy, this is always, at least, a supplementary claim of those who justify the power they wield.

Protectors and Persecutors—Leviathans and Tyrants

Of course, with every grant of power comes the possibility of abuse. What happens if sovereigns do not live up to their claims? What if they cannot or will not protect their subjects? What if they ‘turn feral’, threatening the very people whose defence is the core of their raison d’etre? There is a special obloquy for those who are entrusted with power for the benefit of another

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and use it against them—doctors who murder patients, parents who abuse their children, teachers who brainwash rather than educate their pupils. It is common 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 the real or imagined enemies against whom they claim to provide protection are rarely punished at all. Even when they kill thousands, prison doors do not generally open for them. The doors that open for them are those of the palace at home, the embassy abroad and the private jet in between—as well as the doors to bankers who lend the tyrant money to buy the plane, the palace and to pay for the persecution of civilians. And after it is all over, the citizens will have the responsibility to repay this ‘sovereign debt’.

Why is this tolerated? Why do not other states intervene to protect citizens from the tyrants who oppress them? The answer lies in the wars of religion which involved frequent interventions to purportedly protect co-religionists from persecution. Such interventions were generally undertaken for other reasons and the intervening forces added to the plight of those on whose behalf they supposedly intervened. The 1648 Treaty of Westphalia can be seen as grounded on the view that the consequences of intervention were so bad that it was better to let the tyrant do what tyrants do. It was seen as better to have refugees streaming over the border out of the tyranny than have troops going the other way to stop it. For this reason, I have called the Treaty of Westphalia ‘a tyrant’s charter’—written of the tyrants, by the tyrants for the tyrants.2

Despite the claims of sovereigns to protect their peoples the Westphalian concept of sovereignty and sovereign legitimacy is effectively predicated on its opposite. Sovereignty is based on effective control of territory. The effectiveness is initially established by what I have dubbed, the “prior successful use of force”3 to gain effective control against a previous sovereign. It is maintained by a continued perceived willingness and capacity to use that force against anyone who would seek to similarly supplant them. The main threat was traditionally other tyrants or groups demanding religious or other freedoms. Members of such groups are not protected from attack but subject to it. If people did not like the sovereign or what was done in his or her name then it was necessary for the sovereign to impose his will and demonstrate his authority by massacring groups of subjects and gruesomely executing their leaders. Rather than giving way to the wishes of the people, sovereigns saw it as their duty to enforce their will and demonstrate their sovereignty. Their ‘raison d’etre’ was not the rights of citizens but the preservation of the dynasty and its authority. Where the

2 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.

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criterion of sovereignty was the prior successful use of force, human rights violations did not so much undermine sovereign legitimacy but prove it.

One may conclude that, despite traditional claims of sovereigns to protect their people, the heart of Westphalian sovereignty undermined it. The authoritarian states that were emerging during the century of Westphalia and those that followed are not so much concerned with protection of civilians but protection from civilians and used their claimed monopoly of legitimate force4 against them. If one were to formulate an R2P or PoC principle for Westphalian states, they would be more likely to refer to a ‘Responsibility to Power’ and power over citizens. For some of the more religiously minded, it might 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 with obscene alacrity.

Sovereign Legitimacy—Domestic and International

As we have seen, in 1648 legitimacy in both domestic and international law and theory was based on the effectiveness of the sovereign’s rule. Within some European states, it was challenged almost immediately and within thirty years concepts of sovereignty in domestic and international law started to 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 a right to revolt. That was a pretty inefficient form of regime change and the right to revolt against governments who did not protect their civilians became a right to choose the government that best reflected their interests and values. This shift was part of what I call the Enlightenment’s great leap forward in which a variety of governance values (liberte, egalite, fraternite, democracy, human rights, and the rule of law) were demanded and partly secured in United States, United Kingdom and a growing number of European countries. At its centre was a Feuerbachian reversal of the way rulers and ruled related to each other. Feuerbach pondered the relationship between God and Man. Christians imagine that God created man in his own image. Feuerbach suggested that it was at least as likely that Man created God in his own image.

Enlightenment philosophes suggested a similar inversion for sovereignty. Before the enlightenment, ‘subjects’ had to demonstrate their allegiance and loyalty to their ‘sovereign’. The philosophes proclaimed that ‘governments’ had to justify their existence to ‘citizens’ who chose them. Once the reversal of the relationship was suggested, it was very hard to go back to the old way

4 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 against their ‘over-mighty subjects’. Max Weber, Economy and Society, (Berkeley, CA: University of California Press, 1922 [1979]).


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of looking at things. Indeed, it became as broadly popular with civilians as Westphalian sovereignty was with some authoritarian states.

This approach led to the new basis of sovereign legitimacy in the domestic law 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 and governments on the basis of who exercises effective political control over discrete territories. Even when a democratically elected government is overturned by a coup d’etat, the ambassadors of the new regime are accredited by foreign powers and are allowed to take that country’s seat at the United Nations and other international forums. This glaring inconsistency caused considerable tension and great soul-searching within democratic states and led to the tentative and controversial claims that there was an emerging norm of humanitarian intervention. This revival of pre-Westphalian ideas of intervention faced a lot of hostility that not only cited Westphalian norms but also the sorry history of interventions that helped stimulate it. One of the problems was that this was formulated as a right of states rather than civilians. One of the great achievements of the International Commission on Intervention and State Sovereignty (ICISS) was to effect a similar ‘Feuerbachian inversion’ on the ‘Right to Intervene’. The relevant rights belonged to human beings. States had responsibilities to protect them—with the primary responsibility being of the State in which they reside and contingent responsibility on other states. It is radical because it denies tyrants the right to do what tyrants have always done and for which international law rewarded them. Accordingly, I see R2P not a western attempt to interfere in other people’s problems but a global attempt to deal with a western problem at the heart of the Westphalian system.

PoC and R2P—Differences in Origins and Exemplars

R2P and PoC share similar normative origins and are both directed at the idea that states should live up to their claims of protecting their civilians, should receive international support in doing so, and could be ultimately required to do so. The two principles came together in Libya. In UN Security Council Resolution 1970, Colonel Gaddafi was referred to the International Criminal Court (ICC) for doing what tyrants traditionally do to protect their power. In UN Security Council Resolution 1973/5, Colonel Gaddafi’s domestic responsibility to protect civilians (R2P Pillar One) was explicitly recognised and the use of international uninvited force was authorised for the protection of civilians in Libya. It is notable that the UN Security Council used PoC rather than R2P pillar three in this case.

While the two merged in Libya, R2P and PoC have been developing along different paths and exemplified by different exemplars, which go a long way to explaining the differential level of international support.

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Discussion of PoC at the international level started with existing armed conflicts and sought to protect civilians in pre-existing conflicts according to well accepted principles of International Humanitarian Law (IHL). Accordingly, PoC was, from the beginning, about reducing the effects of conflict by an institution established to prevent conflict because of the disastrous effects or previous conflicts. As such, it has grown with less fanfare, much more consensus and does not appear to depart from that core business of the UN.

By contrast, R2P emerged as a proposed response to enormous challenges posed by Rwanda, Srebrenica and Kosovo where the consequences of internal conflict appear so great that the creation of what is effectively a new international conflict was seriously contemplated. Indeed, the United States and United Kingdom considered them so serious that they were prepared to start a war that appeared to be contrary to international law.

In fact, both PoC and R2P represent a continuum of responses. There are three ‘pillars’ of R2P: (i) the responsibility of the State, (ii) the responsibility of the 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 seen to have a range of ‘pillars’ or forms with different versions of the norm for relevant actors (Combatant PoC, Humanitarian PoC, Peacekeeping PoC, Security Council PoC).

R2P was contentious from the beginning because it was a response to an event that had led to ‘Pillar Three’ action without the legal authority that many (including this author) argued was necessary at the time and which ICISS later argued. PoC was less controversial because it started with the accepted legal obligations of combatants.

From Pillars to Pyramids

While the architectural metaphor of a pillar is a common one, I am increasingly inclined to doubt its utility here.5 Pillars are seen as separate and 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 interact and neither are, nor intended to be, of similar size and weight. In R2P, the primary emphasis is on the responsibilities of host governments and the responsibility of other states to assist them in that responsibility rather than to supplant them in this role. In PoC the primary obligation is on combatants and the state (if it is not one of the combatants) with international actors filling 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 to Bird’s Nest: Towards a Theory of Coherence and Mutual Accountability for National Integrity Systems’, Australian Journal of Public Administration, vol. 64, no. 2 (2005).


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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 protection systems”.6 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 Braithwaite’s ‘enforcement pyramid’ for corporate regulation.7 Regulatory goals are not principally achieved by the threat, let alone the imposition of sanctions. The availability of sanctions is useful, sometimes necessary to secure compliance from some and to provide extra reasons for compliance 6 See Charles Sampford, Protection of Civilians and the Rule of Law, Challenges of Peacekeeping Forum, 2010. 7 See Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York: Oxford University Press, 1995).

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from others. But most compliance needs to be through norm-setting that taps into pre-existing norms—the lowest and broadest step. These should be publicised and justified with the engagement of relevant sanctions—one view of the next step. Minor and first breaches generate reminders (another step) which, if ignored, lead to minor or conditional sanctions (yet another). The imposition of significant sanctions is near the top and ‘corporate capital punishment’ as the tiny but very useful peak. While capital punishment for individuals is unacceptable for most, using it for organisations may be a very sensible approach and should be considered more often. If a regime is no longer recognised by the international community as a whole and by key international institutions (such as the UN, World Trade Organisation or Bank of International settlements) its viability is, at the very least, limited.

The pyramid metaphor might be useful in emphasising the time and effort that must go into building them. The pyramid metaphor is also useful in understanding the greater difficulties in securing acceptance for R2P. While PoC has been built up from its broad base—and the pointy end has only been attached this year through UN Security Council Resolution 1973—with R2P, the construction had to start from the pointy end because that was what addressed the Kosovo issue which was the raison d’etre for its creation. While there is a great deal of mystery about the way that the pyramids were built, one does not have to be either a stonemason or an engineer to know that this is not the recommended method of building pyramids. Given the construction brief, progress has been remarkable.

Potential Overreach and Abuse

The largest obstacle to securing broader support for R2P is, of course, the concern that it may be abused through its use to justify invasions mounted for other reasons. This is a concern that should be fully acknowledged and addressed. The thoroughly western Westphalian principle of non-intervention was generated by direct experience of the consequences of abuse. The ICISS report acknowledged the risk—a risk that materialised almost immediately when Commissioner Ignatieff used it to justify the invasion of Iraq.8

The potential of overreach is not confined to R2P. The Red Cross defines PoC as “all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law”—a formulation that seems to go beyond protection to promoting rights and better societies. I could imagine a member of the G6 seeing in those words the possibility that foreign forces might enter a country with UN Security Council and home state approval but would then be engage in set about pursuing “all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of

8 M. Ignatieff, ‘Why Are We in Iraq?’ New York Times, 7 September 2003, 38ff.


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law”. Given the range of international human rights laws and their expansive and ambitious spirit the foreign forces would be there forever. Indeed, none of the western countries that contribute to peace keeping forces provide full respect for individual rights set out in the UN Conventions that they have ratified. Of course, the Red Cross did not intend such outcomes. In international civil military operations, foreign forces are fully extended trying to secure basic protection, securing food and medical supplies and support for the rule of law. The spirit of human rights is left to supportive NGOs and state officials. However, fine words penned with good intentions by those with the purest motives can be used for other purposes and it is well to address and limit those risks.

Limiting the Risk of Abuse

Three ways of limiting this risk occur to me—sticking to the Westphalian formula, narrowing the scope, utilising two R2P ‘moves’ and subjecting all action in pursuit of R2P and PoC to the international rule of law. I will discuss the third and conclude with the last.

The ICISS made two very important moves in constructing R2P to make it less amenable to abuse. The first was to perform the ‘Feuerbachian inversion’ on the claimed ‘right of humanitarian intervention’ by insisting that the only rights were those of the civilian population—states had responsibility. The second was to emphasise that the primary responsibility was that of the state where the relevant civilians lived. Responsibilities of others was to assist that state with its agreement and only in the rarest of occasions, and even then only with full legal authority, without that agreement. This was formalised in the 2005 three pillars approach.

PoC effectively operates under a similar regime—starting with, and defined by, individual human rights and with a strong emphasis on assisting states to fulfil their primary duty. I have suggested that similar moves might clarify PoC and avoid any concerns at overreach under the Red Cross definition. The number and scope of rights covered by PoC stands: but the primary responsibility for their realisation lies with the state where the civilians are located. 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 marshal international support and, in very rare cases, insisting on it.

The pillars approach is not only a means for preventing abuse but enables clearer thinking and more effective action. A general norm is not self-implementing. Such implementation will usually require several actors to contribute consecutively, contemporaneously and sometimes in both ways. If they are to play their role in implementing the norm, it is important to ensure detailed normative guidance through customised norms and, where necessary, formal prescription through detailed laws. They also need

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appropriate institutional structures and operational procedures to fulfil that role. The R2P pillars can be seen as structured in this way. Pillar one addresses the role of the state. Pillar two addresses the role of other states when consensually assisting a state. Pillar three addresses the role of the UN Security Council and member states providing that assistance without the consent of the host state.

As indicated, PoC could be similarly pillarised (if not pilloried). Combatant PoC deals with the role of the combatants, PoC2 with peacekeepers, PoC3 with other humanitarian actors and PoC4 with the UN Security Council. We have sought to identify the relevant norms, institutions and operational procedures for each (though we do not attempt, in this project, to do so in the detail that military and police forces do).

R2P and PoC ultimately give the UN Security Council, and those they authorise, power. The natural concern that such power might be abused can be addressed by making the conferral of such power conditional on those so authorised accepting the jurisdiction of the International Court of Justice and ICC.

There should be no irony in insisting that new international norms take their place within, rather than outside the international law among which their proponents would like it to take its place. That is how the Westphalian tyrannies became the eighteenth century rechstaats and ultimately liberal democracies. And it is how the potential tyranny of self-serving interventions can be addressed.

Conclusion

As we have seen, R2P and PoC are deeply embedded in the claims of sovereigns to protect their people—claims with which they justify sovereign power. Unfortunately, the abuse of such power was not only frequent but grounded claims to sovereignty in both domestic and international law and politics because it demonstrated effective control. This made the Treaty of Westphalia a ‘tyrant’s charter’. The enlightenment inspired democratic revolutions of the eighteenth century performed a Feuerbachian inversion of the relationship between sovereign and subjects by which sovereign states had to justify themselves to, and be ultimately chosen by, those they now called ‘citizens’. R2P and PoC offer a similarly Feuerbachian inversion within international law and politics. The concerns about R2P are not particularly eastern/southern but reflect the disastrous experience with interventions that spawned Westphalia. Part of the solution is to emphasise the primary responsibilities of states for the protection of civilians. But the only effective solution in international affairs is the same as that in domestic affairs—to subject the use of force to legal rules.

Charles Sampford is Professor in the Law and Justice Research Centre of the Queensland University of Technology. [email protected].

security challenges volume 7 number 4 (summer 2011)

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