• Protecting Civilians: How It Works

    by  • December 10, 2012 • Responsibility to Protect, WORLDVIEWS • 4 Comments
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    A girl in Freetown, Sierra Leone

    A girl in Freetown, Sierra Leone, during the Nov. 17, 2012 presidential vote. Two parallel principles protecting civilians during conflict exist, but that doesn't mean they always work. JOE PENNEY

    CANBERRA, Australia — A steady rise has been occurring in the last two centuries in the proportion of civilians killed in armed conflict, either from direct violence or conflict-related hunger and disease. The international community has responded to the calls to protect innocent victims by developing two parallel principles, the protection of civilians and the responsibility to protect.

    Responsibility to protect (R2P) is an internationally agreed doctrine to protect populations from atrocities, set down at the 2005 World Summit and reaffirmed in later years in several United Nations Security Council resolutions.

    Protection of civilians is based on international humanitarian law, stemming primarily from the fourth Geneva Convention of 1949. Over the last few decades, this norm has developed robustly through the established practices, decisions and procedures of the UN Secretariat, the Security Council, peacekeepers and humanitarian agencies.

    By contrast, as the Security Council-approved intervention last year in Libya showed, R2P remains a topic of debate and controversy. Because protection of civilians is markedly less contentious, its advocates and practitioners fear contagion from the more politicized R2P. Hence a need for a detailed and nuanced explanation as to how the two principles are alike and different.

    On some points, the explanations are straightforward. While protection of civilians, for example, applies to discrete acts of violence against individuals, R2P has a much narrower scope, applying to mass-atrocity crimes only. While peacekeeping operations have an explicit focus on protecting civilians, they can also be important in R2P action. Atrocity crimes are often performed by rebel groups or state-sponsored militias, and peacekeepers can respond to both factions.

    Contrary to common perception, however, protection of civilians is not restricted to armed conflict, as defined by international humanitarian law. As we classify it, “narrow protection of civilians” refers to the obligations of parties to an armed conflict to distinguish between combatants and civilians and to avoid attacking the latter or harming them beyond what is necessary to achieve military objectives. It has precise legal requirements in its application, such as open fighting between two armed forces.

    Broad protection of civilians, on the other hand, is a policy framework used by UN and other peacekeepers, the Security Council, the UN Secretariat and humanitarian agencies. These protection players aim to contribute positively to the protection of civilians in situations of widespread, grave and lawless violence that have not reached the threshold of armed conflict. Syria in late 2011 was such a case, although it has tipped into full-fledged civil war.

    Another common mistake is claiming that protection of civilians is a legal concept, while R2P is political. In making this contention in his 2012 report on protection of civilians, UN Secretary-General Ban Ki-moon contradicted his previous reports on both protection of civilians and R2P. In his later R2P report, Ban returned to the traditional position that like protection of civilians, R2P is also based on fundamental principles of international, international humanitarian, international human-rights and refugee laws.

    As clarified in our recently published report, “Enhancing Protection Capacity: Policy Guide to the Responsibility to Protect and the Protection of Civilians,” we agree.

    R2P and broad protection of civilians are both rooted in, but extend beyond, legal principles. The four R2P atrocity crimes — war crimes, crimes against humanity, genocide and ethnic cleansing — have legal definitions in the 1998 Rome Statute (which governs the International Criminal Court) and the 1948 Genocide Convention. Some R2P duties — those that prohibit complicity in genocide by such means as inciting communal hatred, for example — are found in international law. By recourse to the Security Council, even military interventions are made consistent with international law, as distinct from Kosovo-style unilateralism, where NATO used military force against Serbia without Security Council authorization.

    Like R2P, broad protection of civilians draws on the law but extends beyond its strict requirements. The positive duties of peacekeepers to protect civilians are not dictated by international law. So, too, the Security Council has great discretion over the coercive measures it can take to protect civilians and the situations in which it may deploy troops. In 2011, Libya and the Ivory Coast, where the French military and UN peacekeepers ousted Laurent Gbagbo from the presidency after he lost the election, were cases in point.

    Moreover, it is mistakenly believed that protection of civilians, unlike R2P, is always impartial, neutral and apolitical. R2P is comparatively more sensitive, as the presence of atrocities implies a perpetrator that may need to be identified and confronted. Even so, the different categories of broad protection of civilian players have different abilities and face different constraints.

    The broad protection of civilians used by humanitarian agencies is fully impartial and neutral. But peacekeeping protection of civilians requires the impartial pursuit of the mandate of the peacekeeping force. This may require rejecting neutrality to take decisive action against perpetrators, which occurred in the Ivory Coast.

    Equally, while respect for sovereignty is a vital element of international peace, in extreme situations Security Council protection of civilians can require (non-neutral) coercive steps to protect civilians – as it did with Resolution 1973, authorizing a no-fly zone and NATO air assaults in Libya.

    The recent UN report criticizing its own lack of action in Sri Lanka highlights the need for different protection players to be aware of one another’s limits. Humanitarian protection workers can adopt highly apolitical stances to ensure access to those in need. But as the report said, “The UN’s reference to what was ‘political’ seemed to encompass everything related to the root causes of the crisis and aspects of the conduct of the war.”

    In this situation, it was vital to introduce protection actors with the authority and ability to challenge unacceptable behavior by a UN member country, Sri Lanka. Humanitarian workers cannot do so. Only the Security Council can create and deploy strong protection forces.

    Finally, many hold that peacekeepers, humanitarian and human-rights workers may perform specific atrocity-prevention efforts, but it is better not to refer to these as R2P activities. We agree that in some situations, needless controversy may arise by referring to atrocity prevention as R2P. The systematic avoidance, however, of R2P language by those engaged in protecting civilians would result in the doctrine referred to as military intervention only.

    This stance would neglect efforts to rebuild a country’s institutions and provide international help to prevent atrocities. It would also produce a self-fulfilling collapse of R2P into coercive military intervention, ignoring its many major contributions to building a nation’s capacity to exercise its sovereignty with responsibility.

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    About

    Hugh Breakey is a postdoctoral fellow at the Institute for Ethics, Governance and Law and the Key Center for Ethics, Law, Justice and Governance at Griffith University in Australia. His award-winning Ph.D. work in political philosophy at the University of Queensland explored how natural rights limit intellectual property. His current research focuses on philosophical issues in international relations, international law and the protection of civilians, as well as continuing research on the nature of rights, especially security, intellectual and property rights and other topics in applied ethics. Breakey has published articles in international policy journals and a book, "Intellectual Liberty: Natural Rights and Intellectual Property."

    Charles Sampford is foundation director of the Institute for Ethics, Governance and Law (a joint initiative of the United Nations University, Griffith University, Queensland University of Technology and Australian National UUniversity). Formerly, he was foundation dean of Law at Griffith University in 1991, and in 1999, he became foundation director of the university's Key Center for Ethics, Law, Justice and Governance. He has published 116 articles and essays and completed 26 books and edited collections with international publishers. His foreign fellowships include visiting senior research fellow at St John's College Oxford and a Fulbright senior award to Harvard.

    Ramesh Thakur is the director of the Center for Nuclear Nonproliferation and Disarmament at Australia National University in Canberra and a professor of international relations in the Asia-Pacific College of Diplomacy. He was vice rector and senior vice rector of United Nations University (and assistant secretary-general of the UN) from 1998–2007. Educated in India and Canada, he was also a professor of international relations at the University of Otago in New Zealand and professor and head of the Peace Research Center at the Australian National University, while also advising the Australian and New Zealand governments on arms control, disarmament and international security issues.

    In addition, Thakur was a principal author of the Responsibility to Protect doctrine and a senior adviser on reforms and principal writer of the UN secretary-general’s second reform report (2002). He has written or edited more than 40 books, 400 articles and book chapters. His most recent book is "The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics" (London: Routledge, 2011).

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