Norms of Protection

Norms of Protection

Responsibility to Protect, Protection of Civilians and their Interaction You do not have access to this content

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24 Jan 2013
9789210558945 (PDF)

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A series of humanitarian tragedies in the 1990s (Somalia, Rwanda, Srebrenica, Kosovo) demonstrated the failure of the international community to protect civilians in the context of complex emergencies. These brought to life two norms of protection – Responsibility to Protect (R2P) and Protection of Civilians (POC) – both deeply rooted in the empathy that human beings have for the suffering of innocent people. Both norms raise concerns of misinterpretation and misuse. They are developing – sometimes in parallel, sometimes diverging and sometimes converging – with varying degrees of institutionalization and acceptance. This book engages in a profound comparative analysis of the norms and aims to serve policy-makers at various levels; practitioners with protective roles; academics and researchers; civil society and R2P and POC advocates.
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  • Foreword
    Global governance is defined as the sum of norms, laws, policies and institutions that define, constitute and mediate international relations between and among people, society, market and the state – the wielders and objects of the exercise of international public power. It advances (and sometimes retreats) by filling (or widening) five analytical gaps: knowledge, norms, policies, institutions and compliance.
  • Acknowledgements
    This book came about as a result of an already well-developed collaboration between the Institute for Ethics, Governance and Law headquartered in Brisbane, and the United Nations University in Tokyo. The two academic partners, jointly with the Australian Civil-Military Centre, developed the idea for a new book project aimed at unpacking and mapping the relationship between two norms of protection – responsibility to protect (R2P) and protection of civilians (POC) – and to identify gaps, overlaps and areas of complementarity. We submitted a grant application to the Australian Government’s Responsibility to Protect Fund, and were successful.
  • Introduction
    With intra-state conflict replacing inter-state conflict across the globe (Orchard, 2010: 38), “civilian-based civil wars” (Ferris, 2011) are exposing vulnerable populations to war crimes, ethnic cleansing and acts of genocide. The UN Secretary-General has highlighted the growing threats to women and children caught up in armed conflicts, as well as dangers faced by civilians forced to mix with combatants and armed elements in camps for refugees and the internally displaced. The vulnerability of civilians in conflict has been exacerbated by some governments’ reluctance to accept international assistance and the increasing number of attacks on humanitarian workers and UN staff (UNSG, 1999).
  • The responsibility to protect: Game change and regime change
    In the short span of years since its inception the concept of the Responsibility to Protect (R2P) has had a substantial yet controversial impact on international relations and efforts to protect populations from atrocities. This chapter overviews the nature and history of R2P before turning to consider the major critiques of the principle. It deals in detail with the important objection that R2P is a vehicle for regime change – a critique that has assumed a new urgency in the fallout over the NATO military action in Libya in 2011. This chapter argues that members of the UN Security Council (UNSC), and of the international community more generally, need to be realistic about the ways military intervention for protective purposes will inevitably have implications for incumbent regimes, but at the same time be sensitive to the ways protective intervention can be operationally separated from the deliberate pursuit of regime change.
  • The protection of civilians in armed conflict: Four concepts
    For thousands of years, myriad cultures across the globe have developed principles aiming to protect unarmed populations from violence at the hands of the armed. Since the Fourth Geneva Convention of 1949 such efforts have fallen under the rubric of the Protection of Civilians (POC). This chapter details the nature of POC in the contemporary context. It argues that while all POC actors have a broadly shared understanding of the core concerns of POC – the basic rights of non-combatants and the types of violence that threaten them – the different perspectives, resources and powers possessed by separate types of POC actors make those actors develop distinct POC roles and responsibilities.
  • The responsibility to protect and the protection of civilians in armed conflict: Overlap and contrast
    This chapter investigates the overlap and contrast between the responsibility to protect (R2P) and the protection of civilians (POC), keeping in mind the different versions of these principles detailed in the preceding two chapters: the three pillars of R2P and the four POC concepts. Section 3.1 affirms two widely acknowledged differences between R2P and POC – R2P’s narrow scope and deep response – before section 3.2 outlines two important similarities between them: their shared basis in human rights and the cross-cutting parallels between R2P pillars and POC concepts. Section 3.3 turns to more controversial terrain. It argues that the alleged limitation of POC to “armed conflict” is far less significant than commonly supposed and that POC’s status as a humanitarian principle – with primary concerns for impartiality and neutrality – is not fully applicable to all POC concepts. Subsection 3.3.3 applies Abbott and Snidal’s analytic categorization of soft laws to R2P and POC, illustrating the similarities and differences between each of the principles. Section 3.4 assesses the usefulness of differentiating peacekeeping operations (PKOs) on the basis of R2P and POC, and advances one model of how this may be done.
  • The responsibility to protect and the protection of civilians: A view from the United Nations
    This chapter is part of the study of the relationship between the responsibility to protect (R2P) and the protection of civilians (POC). The authors undertook extensive theme-focused interviews at the relevant UN offices in New York and Geneva and the Australian mission in New York as part of the process of mapping the relationship between R2P and POC and their relevance to UN protection operations. The aim of this chapter is to present the opinions of UN officials as a way of understanding the practicalities and application of POC and R2P to the UN system, drawing links between the issues raised by respondents and the wider debate on POC and R2P. In this way, this chapter complements the project’s overview of the literature on R2P and POC presented in the preceding chapter of this collection.
  • A tale of two norms
    In late 2008, one of the authors of R2P accosted me in the quadrangle of Magdalen College, Oxford, during an alumni dinner. He was clearly displeased that some were suggesting that R2P was not a norm of international law but merely a “principle” or an “emerging norm”. He was not at all happy that the genuinely impressive normative work done by the International Commission on Intervention and State Sovereignty (ICISS) in general and himself and the other lead drafters might not yet have the status of a norm even after its unanimous adoption by the World Summit in 2005. I doubt that he was also reacting to the rising star of Protection of Civilians (POC) which was also being promoted by the Australian government, which many countries feel more comfortable in advocating and which the UN Security Council has used much more.
  • Peacekeeping, civilian protection mandates and the responsibility to protect
    The idea that the United Nations, acting through the Security Council, should intervene when civilian lives are threatened or being violated came about in the late 1990s as a result of independent inquiries into the failure to prevent mass atrocity crimes in Rwanda and Srebrenica. This idea spawned a two-pronged response within the UN. First, the responsibility to protect (R2P) concept emerged in 2001 from the report of the International Commission on Intervention and State Sovereignty (ICISS, 2001). The concept has since then been variably embraced by UN documents (UN High-Level Panel, 2004: 66; UNSG, 2005: para. 135), and was contained in the 2005 World Summit Outcome Document (WSOD), in which world leaders, albeit restrictively, affirmed their commitment to the responsibility to protect populations from genocide, ethnic cleansing, crimes against humanity and war crimes (UNGA, 2005: paras. 138–139). Much of the discussion about the concept still remains largely as a policy agenda (UNGA, 2009b; Bellamy, 2010: 158, 166), posing challenges to the operationalization of the concept in practice.
  • Enhancing protection of civilians through “responsibility to protect” preventive action
    In the context of conflict and complex emergencies … the UN serves as a firefighter. We are now trying to change this, by trying to prevent the fire in the first place.
  • Framing a protection service
    The United Nations has recognized that the plight of civilians is fundamental to its mandate (UNSG, 1999: paras. 67, 68). While protecting civilians has been an aim of UN peacekeeping operations for over a decade, the organization has not always succeeded in achieving this goal. Civilians are still under threat in places such as the Democratic Republic of Congo (DRC) where UN peacekeeping operations are currently deployed (UNSC, 2010). While governments honoured their responsibility to protect civilians in Libya and Côte d’Ivoire, calls for the international community to stop mass atrocity crimes in Sri Lanka (Egeland et al., 2009), Syria (Stack and MacFarquhar, 2012) and elsewhere have fallen on deaf ears.
  • The relationship between international humanitarian law and responsibility to protect: From solferino to srebrenica
    Since the earliest times people and communities have set rules intended to minimize the suffering caused by war. Limitations on the way conflict is fought can be found in every culture, and traditionally these rules were often agreed upon by the specific parties involved. The founder of the International Red Cross and Red Crescent Movement, Henry Dunant, started the modern codification of the laws of war, after experiencing the horrors of a battlefield and urging the international community to create binding treaties in the area. This call for humanity during war resulted in the first Geneva Convention of 1864 and the development of international humanitarian law (IHL). Today the four Geneva Conventions of 1949 are universally ratified and have been added to by many other treaties, protocols and developments in customary international law.
  • The responsibility to protect civilians from political violence: Locating necessity between the rule and its exception
    This chapter inquires into the expansion of the rule of law in international law as it relates to the use of force. The promise of international law to promote and protect human welfare is limited by the means at the disposal of the international community where, normatively speaking, peace is the rule and armed conflict the exception. The consequential but regrettable necessity of a forcible response to real or threatened mass atrocities underscores this fundamental undesirability of violence versus its inevitability. The compromise forged is that force, although inevitable, should be used sparingly and only where necessary: specifically in emergencies and especially to protect civilians from mass atrocities. There are two, on the face of it contradictory, approaches clear in the debate on the role of force or violence in international law. The first relates to the fundamental undesirability of violence generally. The second relates to the inevitability of violence and consequential regrettable necessity of a forcible response in defence. The role of law in this debate is to navigate between these two coasts of undesirability and inevitability on the ship of necessity. This meandering approach is crystallized in the rules relating to the use of force, which try to restrict force only to extreme circumstances. The compromise reached is that force, although inevitable, should only be used sparingly.
  • The responsibility to protect and the international refugee regime
    A series of humanitarian tragedies in the 1990s (Somalia, Rwanda, Srebrenica, Kosovo and East Timor) highlighted the failure of the international community to prevent mass atrocities. Since that time “a newly energized international conscience” (Thakur, 2009) has seen the international community’s response to mass atrocities undergo a significant rethink. Arguably the most important development has been the conceptualization and promotion of the responsibility to protect (R2P) principle. The R2P principle, as endorsed by states, recognizes that states acting individually, and collectively through the United Nations, have a responsibility to protect persons within their jurisdiction from mass atrocities.
  • Enhancing the capacities of state and regional institutions in transforming responsibility to protect from words to deeds: The case of Indonesia and ASEAN
    As a principle, Responsibility to Protect (R2P) has gained relatively wide acceptance at a rapid pace since it was first formally introduced through the release of the report of the International Commission on Intervention and State Sovereignty (ICISS) back in 2001. Within five years, the earlier reluctance to embrace R2P had shifted into a global step to endorse the principle as part of an effort to maintain international peace and security, particularly against mass atrocities anywhere in the world. At the UN World Summit in 2005, more than 150 countries gave their support to the R2P principle, which was then followed by the adoption of UN Security Council Resolution 1674 which affirmed the principle in 2006. This shows that the idea to reframe the global concern over such atrocities from emphasizing “intervention justified by humanitarian concern” into calling for “responsibility to protect”, which lies primarily in the hands of the sovereign government, has become much more palatable.
  • Towards a “responsibility to provide”: Cultivating an ethic of responsible sovereignty in Southeast Asia
    At the United Nations World Summit of 2005, member countries from the Association of Southeast Asian Nations (ASEAN) unexpectedly adopted the “responsibility to protect” doctrine – popularly known as R2P – concerning the protection of populations from genocide, ethnic cleansing, war crimes and crimes against humanity (UNGA, 2005). However, ASEAN states’ responses to UN Security Council Resolution 1674 – which reaffirmed R2P and endorsed the use of appropriate measures where necessary to ensure its implementation – were relatively lukewarm. The shared caginess among the Southeast Asians towards Resolution 1674 implied a collective adherence to sovereignty as the right of nations rather than a responsibility to the peoples whom they represent. As a senior official from Singapore once urged his ASEAN colleagues, any deviation from their regional organization’s long-standing emphasis on the doctrines of sovereignty and non-interference would prove injurious to the region’s stability, since the upkeep of those principles constitutes “the key reason why no military conflict has broken out between any two ASEAN countries since the founding of ASEAN” (Jayakumar, 1997). Arguably, even the academic consensus on ASEAN has continually fostered the impression that Southeast Asian states rarely flout their non-interference principle (Jones, 2010). Indeed, ASEAN’s typical rationalizations of its own inaction in the face of domestic crises and intramural disputes within Southeast Asia have encouraged the perception of the Association as an effete organization, irrelevant to regional security other than for its members’ own parochial ends.
  • Interaction of the norms of protection
    Norms and laws originate in various backgrounds and traditions, they advance historically in parallel and often overlap and interact. Questions arise as to whether, how and when their interaction is beneficial or counter-productive for international law and for world peace. In editing a major recent volume, Roberta Arnold and Noelle Quenivet (2008) looked comprehensively at this issue. They argued in favour of the complementarity of international humanitarian law (IHL) and human rights law (HRL), but at the same time they acknowledged possible risks. They did not go so far as to advocate a “merger” of the two branches of law, as the title of the book provocatively suggested. They correctly concluded “that IHL and HRL are two distinct categories with their specific aims and fields of application. However, particularly in grey area situations such as military occupation or insurgencies, their complementary application may guarantee the respect of the rule of law” (ibid.: 592). Contributing a chapter for the same volume – on the protection of children as the most vulnerable group in the population – I argued in a similar way, that overlap between IHL and HRL could be problematic, but it could also be beneficial
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