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Wednesday, Dec. 5, 2012
The reality of R2P and POC
By HUGH BREAKEY, CHARLES SAMPFORD and RAMESH THAKUR
NEW YORK — As Australia prepares to assume its two-year seat on the U.N. Security Council from Jan. 1, it will either have to react to, or may well decide to actively promote, the cause of protecting civilians caught in harm's way in contemporary armed conflicts. Either way, it would benefit from drawing on a recent study by the U.N. University in Tokyo and the UNU-affiliated Institute for Ethics, Governance and Law (IEGL) based at Griffith University in Brisbane.
There has been a steady rise over the 200 years in the proportion of civilians killed in armed conflict, whether in the violence of war directly, or from conflict-related hunger and disease. The international community has responded to the calls to protect them by developing two principles in parallel, the protection of civilians (POC) and the responsibility to protect (R2P).
As the intervention in Libya last year showed, R2P remains a subject of debate and some confusion. POC, whose emergence on the agenda of global policy coincides chronologically with that of R2P, has been markedly less contentious, to the point where its advocates and actors fear contagion from the more politicized R2P. Hence the need for a detailed and nuanced exposition of the points of convergence, overlap, tension and divergence between R2P and POC on the normative, institutional and operational dimensions.
Thus while POC applies to discrete acts of violence against individuals, R2P has a much narrower scope, applying only to mass atrocity crimes. But it is equally true that while peacekeeping operations have an explicit focus on POC, they can also be important R2P actors. Atrocity crimes are often performed by non-state or state-sponsored militias, and peacekeepers can have the capacity to respond. U.N. peacekeeping missions failed to protect 800,000 people killed in the Rwanda genocide in 1994, and 8,000 innocent civilians killed by Serb forces in Srebrenica in 1995. It would be obscene to try to excuse either by saying that R2P-type measures are beyond the remit of U.N. peace operations.
Contrary to the common perception, POC is not strictly limited to situations of armed conflict, as defined by international humanitarian law (IHL). This limitation is applicable to Narrow POC, which refers to the obligations of parties to an armed conflict to distinguish between combatants and civilians, and to avoid targeting or disproportionately harming the latter. Provided for in the instruments of IHL, Narrow POC has specific requirements for its applicability, such as open fighting between two armed forces, both holding territory and having a military structure.
But Broad POC is a policy framework for protection as an activity and an objective. Utilized in different forms by peacekeepers, the Security Council, the U.N. Secretariat and humanitarian agencies, Broad POC draws on Narrow POC to define the types of violence against civilians that it aims to prevent. However, Broad POC extends beyond armed conflict to situations of widespread, grave, lawless violence.
Another error is to claim that POC is a legal concept while R2P is a political concept. In making such a claim in his 2012 report on POC, Secretary General Ban Ki Moon seemed to contradict his 2012 report on R2P and all his previous reports on both POC and R2P. Thus the 2012 report on R2P traces the normative foundations of R2P "in particular, in international humanitarian, refugee and human rights law."
We align with this position. Both R2P and Broad POC are related to, but extend beyond, the requirements of international law. The four R2P atrocity crimes — war crimes, crimes against humanity, genocide, and ethnic cleansing — have legal definitions in the 1998 Rome Statute and the 1948 Genocide Convention. Some R2P duties — prohibiting complicity in genocide — are found in international law. By recourse to the UN Security Council, even military interventions are made consistent with international law.
Conversely, Broad POC has major elements not specified by international law. The positive duties of peacekeepers to protect and contribute to the protection of civilians are not dictated by international law. So too, the Security Council has great discretion over the coercive measures it utilizes to protect civilians, and the situations in which it may employ them.
Next, it is mistakenly believed that, unlike R2P, POC is always impartial, neutral and apolitical. True, R2P is comparatively more politicized than POC, as the presence of atrocities implies a perpetrator that may need to be challenged. Even so, different Broad POC actors operate with different capacities and under different constraints.
Humanitarian POC is impartial and neutral. Peacekeeping POC requires the impartial pursuit of the mandate of the peacekeeping force. This can require acting decisively against perpetrators in violation of neutrality but, as the 2000 Brahimi Report noted, still faithful to U.N. Charter values and principles. While respect for sovereignty is a vital element of international peace, in extreme situations Security Council POC can require coercive measures, that are not neutral between perpetrators and victims of violence, to protect civilians.
The recent report on U.N. inaction in Sri Lanka highlights the need for different POC actors to be aware of their limitations in this respect. Humanitarian POC actors can adopt highly apolitical stances to ensure humanitarian access. As the report stated, however, "the U.N.'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 political POC actors, such as the U.N. secretary general and Security Council, which have the authority and capability to challenge unacceptable behavior by a member-state.
Finally, many hold that peacekeepers, humanitarian and human-rights actors may perform specific atrocity-prevention activities, but it is better not to speak of these as R2P activities. This depends on specific factors. In some situations it may needlessly invoke controversy to refer to atrocity-prevention as "R2P." But the systematic avoidance of R2P language by protection actors would result in R2P only being spoken about as military intervention, to the neglect of building state capacity and providing consensual international assistance to prevent atrocities.
Successful international action requires that both the similarities and differences between R2P and POC be understood, so that the different actors can either draw on synergies or insulate themselves against cross-infection where the two norms can reinforce or undermine each other respectively.
Hugh Breakey is a postdoctoral fellow at IEGL; Charles Sampford is director of IEGL; and Ramesh Thakur is director of the Center for Nuclear Nonproliferation and Disarmament, Australian National University. This is an extract from "Enhancing Protection Capacity: Policy Guide to the Responsibility to Protect and the Protection of Civilians."