11.2: Emerging Norms of Human Protection
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Since the end of the Cold War, the practice of human protection has evolved through at least eight interconnected streams of norms, rules, practices and institutional developments. Each of these emerged to address the problem of civilian suffering, especially during war and will be addressed in turn.
International humanitarian law
International humanitarian law had its origins in the nineteenth century with the development of the US Government’s ‘General Orders No. 100’ (better known as the Lieber code), which were military laws designed to limit the conduct of soldiers – and the emergence of the Red Cross movement. After the Second World War, international humanitarian law was developed and codified in a series of international treaties. In 1948, the newly established UN General Assembly approved the Genocide Convention, which prohibited the crime of genocide and assigned all states a legal duty to prevent it and punish the perpetrators. The International Court of Justice (ICJ) was established as the judicial arm of the United Nations and is responsible for adjudicating on disputes between states and other legal matters. It judged that as a result of this convention, all states have a legal responsibility to do what they can, within existing law, to prevent genocide.
The laws of war were further codified in the four Geneva Conventions (1949), two additional protocols (1977), and in a range of protocols covering the use of Certain Conventional Weapons. Of particular importance was Common Article 3 of the 1949 Geneva Conventions, which committed parties to respect the human rights of all non-combatants; and the Convention on the Protection of Civilian Persons, which offered legal protection to non-combatants in occupied territories. The Geneva Protocols (1977) extended the legal protection afforded to non-combatants to situations of non-international armed conflict. They also insisted that armed attacks be strictly limited to military objectives and forbade attacks on non-combatants or their property. These principals provided the legal and moral foundation for subsequent campaigns for conventions banning weapons, such as landmines and cluster munitions, that were considered inherently indiscriminate. International humanitarian law has thus created a normative standard of civilian protection that not only prohibits attacks on non-combatants and restricts the use of certain weapons but also calls for the prevention of particular crimes, such as genocide, and the punishment of perpetrators.
Protection of civilians
The UN Security Council’s formal engagement with this theme dates back to 1998 when, at Canada’s request, it adopted a presidential statement calling for the Secretary-General to submit periodic reports on how the UN might improve the protection of civilians. Since then, it has held a series of open meetings on the protection of civilians, establishing it as one of its major thematic interests. In 1999, the Security Council unanimously adopted Resolution 1265 expressing its ‘willingness’ to consider ‘appropriate measures’ in response ‘to situations of armed conflict where civilians are being targeted or where humanitarian assistance to civilians is being deliberately obstructed’. In addition, the Security Council expressed its willingness to explore how peacekeeping mandates might be reframed to afford better protection to endangered civilians. In 2006, it adopted Resolution 1674, which built further on this progress by demanding that parties to armed conflict grant unfettered humanitarian access to civilians.
As it has developed its thematic interest in the protection of civilians, the Security Council has also developed and strengthened its practices of protection. In doing so it has broken new ground. In Resolution 1973, passed in 2011, the Security Council authorised the use of force for human protection purposes in Libya. This was the first time in the history of the Security Council that such an action had been passed without the consent of the host state. Through this resolution, and the one that preceded it (Resolution 1970) the Security Council utilised the full range of the collective security powers granted to it by the UN Charter. Three years later, Resolution 2165 authorised the delivery of humanitarian assistance into Syria without the consent of the Syrian government – the first time that the Council has done this. Hence, two very important issues of precedent were established, built on a new understanding of the need to protect civilians.
Before the turn of this century, civilian protection was typically not considered a core part of peacekeeping. Starting in 1999 with the UN mission in Sierra Leone, the Security Council has invoked Chapter VII of the UN Charter with increasing regularity to authorise peacekeepers to use all means necessary to protect civilians. Chapter VII of the Charter gives the UN Security Council the authority to authorise whatever means it deems necessary, including the use of force, for the maintenance of international peace and security. By design, it was intended as a key deterrent to international aggression. Today, civilian protection and the authorisation of ‘all means necessary’ to that end are core aspects of UN peacekeeping and central to many of its new mandates. In the Democratic Republic of the Congo (DRC), the Security Council went even further by tasking a ‘Force Intervention Brigade’ to take the fight to non-state armed groups that were employing mass violence against civilians. Today, the bulk of the UN’s 120,000 peacekeepers are deployed with mandates to use all necessary means to protect civilians from harm.
Addressing specific vulnerabilities
Since the end of the Second World War, international society has periodically recognised groups that are exposed to particular vulnerabilities and has established mechanisms aimed at addressing or reducing those vulnerabilities. Of these, the best developed is the international refugee regime, which is governed by the 1951 Refugee Convention and subsequent 1967 Protocol. It is overseen by the UN High Commissioner for Refugees (UNHCR). This system grants people facing persecution the right to claim asylum and receive resettlement in third countries and mandates the UNHCR to ensure that refugees have access to protection and durable solutions to their displacement. During the 1990s, it became apparent that this system was unable to cope with a new displacement crisis – that of internal displacement. Internal displacement occurs when people are forced from their homes by mass violence and other ills but remain within their host country. As a largely domestic issue there was little appetite for an international convention governing the displaced. Instead, the UNHCR extended its mandate to cover the protection of all displaced persons and United Nations officials developed ‘guiding principles’ for their treatment.
Another longstanding facet of mass violence that gained political prominence only in the 1990s was sexual and gender-based violence. The use of rape as a weapon of war in various cases pushed the UN Security Council to establish the protection of women and girls as one of the principal elements of its ‘Women, Peace and Security’ agenda adopted in the year 2000 via Resolution 1325. Since then, the United Nations has created the post of Special Representative of the Secretary-General to give permanent focus to the issue, and has instituted a series of annual reports that identify where these crimes are committed and advocate for steps to be taken in response. The United Nations has also begun to ‘mainstream’ the protection of women and girls through, for example, the deployment of women’s protection advisers. Beyond the United Nations, the British government launched its Preventing Sexual Violence in Conflict Initiative which, amongst other things, has helped persuade two-thirds of the world’s states to support a ‘Declaration of Commitment to End Sexual Violence in Conflict’. These developments have been paralleled by a range of initiatives focused on protecting children in armed conflict. Also led by the Security Council, the United Nations has appointed a Special Representative for the protection of children, which reports on the unique protection challenges facing children and related issues such as the recruitment of child soldiers. In 2014, the UN’s ambassador for the promotion of education, former UK prime minister Gordon Brown, launched a global initiative to establish a contingency fund to support the provision of education to children during humanitarian crises, be they caused by natural disasters or mass violence.
Human rights
While human rights as a whole are subject to a great deal of questioning, their higher profile has undoubtedly made an important contribution to human protection. Two aspects in particular stand out, but they are illustrative rather than definitive since the overlap is extensive and complex. First, emerging principles and practices of peer-to-peer review, where states evaluate and comment on each other’s performance (mainly through the compulsory review process of the UN’s Human Rights Council), create expectations about the type of steps that states ought to take in order to protect their populations from various forms of abuse, including mass violence. While the most intransigent states remain largely unmoved, there is increasing evidence that peer review activities are influencing many states and pushing them towards greater compliance with their human rights obligations due to the pressure that being ‘watched’ places on them. Second, over the past two decades, international society has made increasing use of permanent and ad hoc arrangements for human rights monitoring and reporting in its decisionmaking on mass violence. Through a variety of different mechanisms, such as independent commissions and inquiries, special rapporteurs and fact-finding missions, international society is increasingly utilising human rights mechanisms to monitor and prevent mass violence. Most obviously, this reporting helps support decision-making on mass violence by furnishing key institutions with reliable information. It also encourages states to respect human rights by raising international awareness of domestic human rights practices.
International criminal justice
The idea that some crimes are so serious that the prosecution of perpetrators should be universal has advanced significantly in the past two decades through the activities of the International Criminal Court and a series of special tribunals. These institutions have proliferated since the mid-1990s and contribute to individual perpetrators being held accountable for their actions. Proponents argue that by ending impunity such institutions help deter wouldbe perpetrators and also give some legal protection to the victims. The first tentative steps were taken in the mid-1990s when the Security Council established tribunals to prosecute the perpetrators of grave crimes in Bosnia and Rwanda. The Rome Statute establishing the International Criminal Court in 1998 held that the Court’s jurisdiction could be invoked when a state party proved unwilling or unable to investigate evidence pointing to the commission of widespread and systematic war crimes, crimes against humanity and genocide. The Court’s prosecutor can initiate proceedings in cases where he or she is able to persuade a panel of judges that a case fell under the Court’s jurisdiction, where a complaint was made by a signatory state, or when a case was referred to the prosecutor by the Security Council. To date, the Court has indicted 39 individuals and counts 124 states as members – though importantly the United States, Russia and China have yet to join. While it is important to state that developments like the International Criminal Court are still embryonic, the evidence suggests that transitional justice measures make reoccurrence less likely and improve general human rights within states. It also has a deterrent effect that spills over into other countries, including those that are not (yet) members of the International Criminal Court.
Humanitarian action
The notion that civilians ought to receive humanitarian assistance in wartime dates back to the nineteenth century and was integral to the development of the humanitarian idea of providing lifesaving assistance to whomever needed it. Those rights and expectations were incorporated into international humanitarian law but their applicability gradually expanded during the 1990s. The UN Security Council began authorising peacekeeping missions to support the delivery of humanitarian aid and, in the cases of Somalia and Bosnia, authorised the use of force to achieve this end. Since then, the Security Council has regularly authorised force for these purposes. What is more, however, in successive resolutions on the protection of civilians and in substantive resolutions on crises, the Security Council has demanded that parties to armed conflict grant unfettered access to humanitarian agencies.
Regional initiatives
The foundations for Europe’s engagement with civilian protection were laid in the 1970s with the Helsinki Accords. Over time, these provided the basis for a Conference on Security and Cooperation in Europe mechanism that by the 1990s incorporated specific references to protection issues, including the protection of children and protection against torture. When this was transformed into the Organisation for Security and Cooperation in Europe in 1995, it was given additional responsibility and capacities to protect human rights including the post of High Commissioner for National Minorities.
As part of its common foreign and security policy the European Union also started to develop a civilian protection role, exemplified by the French-led multinational force in the Democratic Republic of the Congo in 2003 and a range of other operations. The African Union has established a comprehensive regional system for crisis management and response that includes a specific focus on the protection of civilians from mass violence. Article 4(h) of the Union’s Constitutive Act enshrines its right to intervene in the affairs of its member states in issues relating to genocide and mass atrocities. Although this article has not been formally acted upon, owing to African leaders’ continuing commitment to sovereignty, the African Union’s peacekeeping operation in Darfur included a civilian protection mandate and its missions in Mali, the Central African Republic and Somalia have also supported civilian protection. In Latin America, states have established a comprehensive regional human rights mechanism. Even the Southeast Asian region, which is formally committed to the principle of non-interference in the domestic affairs of states, has begun to develop its own mechanisms for promoting human rights and protection through the ASEAN Intergovernmental Commission on Human Rights. These mechanisms might not understand or pursue ‘rights’ in precisely the same fashion, but they do rest on a shared understanding of atrocity crimes as grave human wrongs and a commitment to the prevention of these crimes.
Responsibility to Protect
In late 2005, world leaders unanimously adopted the Responsibility to Protect (R2P) in paragraphs 138–140 of the UN World Summit Outcome Document. This commitment was subsequently reaffirmed by both the UN Security Council and the UN General Assembly, which also committed to ongoing consideration of its implementation. The Responsibility to Protect rests on three pillars. The first is the responsibility of each state to use appropriate and necessary means to protect its own populations from genocide, war crimes, ethnic cleansing and crimes against humanity (hereafter referred to collectively as ‘atrocity crimes’). The second pillar refers to the commitment of the international community to encourage and help states exercise this responsibility. The third pillar refers to the international responsibility to respond through the United Nations in a timely and decisive manner when national authorities are manifestly failing to protect their populations from the four atrocity crimes. The principle was initially considered to be controversial, as it countenanced the potential use of force and other transgressions of sovereignty. Over time, however, international consensus on the principle has widened and deepened.
More tellingly, the Responsibility to Protect has become part of the working language that frames international engagement with political crises and the Security Council has referred to it in more than forty resolutions. It has reminded governments of their protection responsibilities (e.g. Resolution 2014 on Yemen); demanded active steps to protect civilians (e.g. Resolution 2139 on Syria); tasked peacekeepers with assisting governments to protect their own populations (e.g. Resolution 2085 on Mali) and demanded that perpetrators of mass violence be held legally accountable (e.g. Resolution 2211 on the Democratic Republic of the Congo). The Security Council has also connected its work on the Responsibility to Protect with its international efforts focused on preventive diplomacy and conflict prevention through such measures as the control of small arms and light weapons, the prevention of genocide, counter-terrorism and international policing. With this changing focus, debate amongst states turned to focus less on the principle of the Responsibility to Protect and more on its implementation.