the Responsibility to Protect and the Protection of Civilians in Armed Conflicts

147 Pages·2012·1.79 MB·English

The Responsibility to Protect and the
Protection of Civilians in Armed Conflicts:
1
Review and Analysis
Table of Contents
Abbreviations .......................................................................................................................................... 4
Introduction and Terminology ................................................................................................................ 5
Part 1. The Responsibility to Protect ...................................................................................................... 6
§1 The ICISS Concept: R2P2001 .......................................................................................................... 6
§1.1 Central Normative Structure/Principle: the R2Pcore .............................................................. 9
§1.2 R2P2001 Justifications/Foundations: .................................................................................... 12
§1.3 Content of R2P2001 .............................................................................................................. 28
§2 The Summit Outcome Document: R2P2005 ................................................................................ 30
§2.1 R2P2005 Actualisation and further utilisation ...................................................................... 31
§2.2 R2P2005 differences from R2P2001 ..................................................................................... 39
§2.3 UNSG R2P Reports 2009-2010 The “Three Pillars” approach. .............................................. 46
§3 R2P Challenges, Critiques and Responses .................................................................................... 52

1 Version 2.0. Hugh Breakey, Institute for Ethics, Governance and Law, Griffith University, January, 2012. All
correspondence to [email protected].
This review, as part of a larger research project on the Responsibility to Protect and the Protection of Civilians
in Armed Conflict, was funded by the Australian Responsibility to Protect Fund and the Asia Pacific Civil-
Military Centre of Excellence. An earlier version of this review was presented at the “R2P and PoC
Academic-Practitioner Workshop” Sydney, Nov. 2010. Thanks go to all participants for a lively discussion,
especially to Professors Charles Sampford, Ramesh Thakur and Vesselin Popovski, Major General Mike
Smith (Ret’d), and Peter Thomson, Hitoshi Nasu and Angus Francis. Particular thanks are owed to Phoebe
Wynn-Pope for urging the significance of (what is here termed) Humanitarian POC, and for drawing my
attention to literature on this topic, and to Valentin Hadjiev for reviewing an earlier draft of this work.
Thanks also to Lt. General John Sanderson (Ret’d), Force Commander of UNTAC, for his helpful
correspondence.
Preferred citation: Breakey, Hugh (2012) ‘Review and Analysis: The Responsibility to Protect and the
Protection of Civilians in Armed Conflict’ Working Paper developed from Responsibility to Protect and the
Protection of Civilians in Armed Conflicts Academic-Practitioner International Workshop, Sydney, Australia.
Nov. 17-18, 2010.
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§3.1 Issues of Specificity and Codification .................................................................................... 52
§3.2 Lack of commitment to R2P duties by individual states in the international community. .. 61
§3.3 R2P as “Trojan Horse” and “redecorated colonialism”......................................................... 63
§3.4 Concerns with the role of the UNSC and the use of the veto ............................................... 66
§3.5 Practical Problems ................................................................................................................. 71
§3.6 The “Nothing new” critique .................................................................................................. 71
§3.7 Other Critiques ...................................................................................................................... 75
Part 2. The Protection of Civilians in Armed Conflict ............................................................................ 80
Overview: Four Protection Concepts ................................................................................................ 80
§1 Combatant POC: Protection of Civilians in jus in bello and International Humanitarian Law ..... 83
§1.1 Combatant POC Normative Foundations: jus in bello and IHL ............................................. 83
§1.2 Combatant POC Applicability to non-international conflicts, guerrilla wars, civil strife and
other contexts beyond traditional “armed conflict” .................................................................... 84
§1.3 The Substance and Content of Combatant POC duties ........................................................ 88
§2 Peacekeeping POC: Protection of Civilians in Armed Conflict in the context of Peace Support
Operations: The Brahimi Paradigm ................................................................................................... 91
§2.1 Peacekeeping POC: Normative Structure ............................................................................. 93
§2.2 Peacekeeping POC: Substance and Content ......................................................................... 99
§3 Security Council POC: Protection of Civilians in Armed Conflicts in the context of UN Secretary
General Reports and Security Council Resolutions ......................................................................... 106
§3.1 Security Council POC in UN Secretary General Reports ...................................................... 107
§3.2 Security Council POC in UNSC Resolutions ......................................................................... 110
§3.3 Security Council POC in UN Operations Reports and Guidelines ........................................ 115
§4 Humanitarian POC: Humanitarian Protection ........................................................................... 116
§4.1 Normative Foundations ...................................................................................................... 117
§4.2 Substance and Content of Humanitarian POC .................................................................... 118
§4.3 Neutrality and Impartiality in Humanitarian POC ............................................................... 121
Part 3. Links drawn between R2P and PoC ......................................................................................... 123
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§1 PoC is restricted to armed conflicts only. .............................................................................. 123
§2 PoC as a limited or secondary direction; R2P as the overall mission objective. .................... 126
§3 R2P narrowly focused on four crimes: PoC applies to all large-scale rights violations ......... 127
§4 PoC is, where R2P is not, a humanitarian norm. .................................................................... 127
§5 R2P is concerned with prevention and rebuilding as well as reaction .................................. 130
§6 R2P as a proper part of PoC ................................................................................................... 130
Bibliography ........................................................................................................................................ 132

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Abbreviations
AU: African Union
DPKO: UN Department of Peace Keeping Operations
DRC: Democratic Republic of the Congo
ECOWAS: Economic Community of West African States
ICC: International Criminal Court
ICISS: International Commission on Intervention and State Sovereignty
ICJ: International Court of Justice
IHL: International Humanitarian Law
IHRL: International Human Rights Law
NATO: North Atlantic Treaty Organisation
OCHA: UN Office for the Coordination of Humanitarian Affairs
P5: United Nations Security Council Permanent Five
PSO: Peace Support Operation (including peace-keeping and peace-enforcement operations)
SC: UN Security Council
SG: UN Secretary-General
UN: United Nations
UNHCR: UN High Commissioner for Refugees
USG: Under-Secretary General
GA: UN General Assembly

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Introduction and Terminology
This review and analysis covers the two international protection norms of the Responsibility to
Protect and the Protection of Civilians in Armed Conflict. Each of the first two parts delineates in turn
the two norms, before moving in the third section to consider literature on their basic conceptual,
normative, legal and practical inter-relations.
This document will be primarily of use to scholars, postgraduate students, commentators and
(theoretically-minded) practitioners wanting to know the nature, issues, critiques, areas of
ambiguity, recent development and justifications of these two international protection norms,
and the main literature associated with each of these topics. The document’s primary purpose is to
survey the key literature (though even at its substantial length and with its copious footnotes, it is by
no means exhaustive in this respect). A certain amount of argument and analysis structures some
sections – especially in Parts 2 and 3 – but the reader should hopefully have little trouble
distinguishing when I am reviewing the literature and when I am offering my own views or
categorizations. Apart from the terminological issues I note immediately below, most sections
should be able to stand alone, without knowledge of what has preceded it. The document is
intended as a useful research tool to be searched as necessary for particular topics or authors,
rather than being read from cover to cover.
The Responsibility to Protect (R2P) has two main forms. First, there is the concept expressed in the
seminal 2001 International Commission on Intervention and State Sovereignty (ICISS) Report of the
same name. I term this R2P2001. Second, there is the conception as ultimately accepted by the UN
General Assembly and UN Security Council. I will here term this conception as R2P2005, but it should
be emphasized that in most ordinary discourse and commentary ‘R2P’ means R2P2005. R2P2005 is a
specified and to some extent diluted form of R2P2001, though retaining much of its spirit and
substance. R2P2005 was filled out by the Secretary-General in 2009 with his influential ‘Three Pillars’
framework. When I use the general term R2P, I am speaking of the concept in a broad sense
inclusive of both R2P2001 and R2P2005.
The concept of Protection of Civilians in Armed Conflicts (PoC) is considerably more plastic. In what
follows I distil four separate PoC concepts, and note the literature on each. Combatant POC is the
“protection of civilians” norm that constrains militaries in armed conflicts. Normatively we have
application of the jus in bello aspect of Just War Theory; legally we have the relevant Geneva
Conventions, Additional Protocols and similar instruments of International Humanitarian Law.
Peacekeeping POC is the “protection of civilians” concept as it appears in Peace Operations
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literature, especially as produced by UN bodies like the DPKO, DFS and OCHA. Security Council POC is
the “protection of civilians” concept used by the UN Secretary General in his reports on the subject,
and subsequently by the UN Security Council when considering action. Humanitarian POC is the
developing concept of humanitarian protection – the commitment to protection and civilian safety
as enacted by humanitarian actors such as ICRC, UNHCR, Oxfam and so forth. As above, when I use
the general term PoC, I am speaking of it in a broad sense ambivalent between these four
specifications.
Finally, I have chosen – out of deference to the terminological judgment of the original ICISS report2
and the reasoning behind that judgment – to refer to coercive military actions undertaken without
the consent of the host state in order to protect the civilian population as “military intervention for
human protection purposes”, rather than the more orthodox “humanitarian intervention”.3
Part 1. The Responsibility to Protect
§1 The ICISS Concept: R2P2001
§1.1 The backdrop to ICISS
Throughout the 1990s the international community – and the UN in particular – was faced with an
array of humanitarian crises, including genocide, ethnic cleansing, mass internal displacement of
citizens, and humanitarian disasters arising from such. In some cases (e.g. Somalia and Sierra Leone)
the UN sanctioned military intervention for human protection purposes in various forms and to
various degrees of success. In others (e.g. Kosovo) non-sanctioned intervention occurred. And in still
others (e.g. Rwanda) no substantial intervention took place, and atrocities proceeded effectively
without interdiction.
Many factors precipitated both the increase in and character of these catastrophes, and the
perceived need to do something about them – including the prevalence of state collapse,

2 International Commission on Intervention and State Sovereignty ICISS, The Responsibility to Protect (Ottawa:
IDRC, 2001), p. 9.
3 This does involve swimming somewhat against the tide. As Roberts notes, in this regard, “In the terrifyingly
Darwinian matter of labelling, short and succinct generally triumphs over laborious and accurate.” Adam
Roberts, "Intervention: One Step Forward in Search of the Impossible", International Journal of Human
Rights 7(3) (2003): 142-53, p. 145.
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globalization, shifts in the economics of war, the “CNN effect”, the rise of NGOs, and the
empowering of the UN Security Council with the dissolution of the cold war. 4
By the decade’s end, the tension and conflicts between intervention and sovereignty was a major
topic of legal, political and philosophical debate.5 UN Secretary-General Annan called for change and
reform, and for the international community to do more to prevent such atrocities.6 Similar
sentiments were aired by key heads of state, especially with respect to the catastrophes in Rwanda
and Srebrenica.7 Several influential reports on these crises added their weight to the discussion,8

4 See Lee Ward, Toward a New Paradigm for Humanitarian Intervention, Public Policy No. 50, 2007, p. 5; Adam
Roberts, "The So-Called 'Right' of Humanitarian Intervention", Yearbook of International Humanitarian
Law 3(3) (2000): 3-51, pp. 15-18; 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. 16; Thomas G. Weiss, Humanitarian Intervention (Cambridge: Polity, 2007), pp.
59-61, 68; Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd ed.
(New York: Basic Books, 2000), p xii; Jennifer Welsh, "Introduction", in J. Welsh (ed.), Humanitarian
Intervention and International Relations (Oxford: Oxford University Press, 2004), pp. 1-7, pp. 2-3; Mark
Frohardt, Diane Paul, and Larry Minear, Protecting Human Rights: The Challenge to Humanitarian
Organizations, Occasional Papers 35 (Providence: The Watson Institute, 1999), pp. 13-27. In the context of
changes to peacekeeping see John Sanderson, "The Changing Face of Peace Operations: A View from the
Field", Journal of International Affairs 55(2) (2002): 277-88, pp. 278-282; Romeo Dallaire, Shake Hands
with the Devil: The Failure of Humanity in Rwanda (New York: Carroll and Graf, 2003), Ch. 2 and p. 72.
Note in particular the arguments of Tan who observes that the question of an obligation to act was less
urgent in the Cold War time when “states were eager to intervene”: Kok-Chor Tan, "The Duty to Protect",
in T. Nardin and M. Williams (eds.), Nomos XLVII: Humanitarian Intervention (New York: New York
University, 2006), pp. 84-116, p. 85. For an alternative picture of the 1990’s context of military
intervention for humanitarian purposes, see Noam Chomsky, Statement by Professor Noam Chomsky to
the United Nations General Assembly Thematic Dialogue on the Responsibility to Protect 23 July 2009, pp.
4-5; and with comparison to the 1970s see: Noam Chomsky, "Simple Truths, Hard Problems: Some
Thoughts on Terror, Justice, and Selfdefence", Philosophy 80 (2005): 5-28, pp. 5-7. Another way of figuring
the changes in sovereignty is in terms of shifts in hegemonic power: see Nico Krisch, "International Law in
Times of Hegemony: Unequal Power and the Shaping of the International Legal Order", The European
Journal of International Law 16(3) (2005): 369-408, esp. pp. 393-5, 407.
5 For example the World Congress on Legal and Social Philosophy in New York on June 29 1999 devoted its
final plenary to sovereignty and intervention with the final keynote delivered by Sampford on “Democratic
and Global Challenges to the concepts of Sovereignty and Intervention” (later published as: Charles
Sampford, "Sovereignty and Intervention", in T. Campbell and B. M. Leiser (eds.), Human Rights in Theory
and Practice (London: Ashgate, 2001). For a general overview of the context at this time, see Alex Bellamy,
Responsibility to Protect: The Global Effort to End Mass Atrocities (Cambridge: Polity, 2009), pp. 19-32.
6 Kofi Annan, We the Peoples: Millenium Report to the General Assembly (New York: United Nations, 2000). For
an overview of Annan’s relevant 1999 speeches, see Ralph Zacklin, "Beyond Kosovo: The United Nations
and Humanitarian Intervention", Virginia Journal of International Law 41(4) (2001): 923-40, pp. 927-9,
note also pp. 934-5.
7 Note the speech of William J. Clinton, Remarks by the President to Genocide Survivors, Assistance Workers,
and U.S. And Rwanda Government Officials (Kigali Airport, Kigali, Rwanda March 25, 1998) and his words
regarding the prevention of genocide in the former Yugoslavia: William J. Clinton, Remarks by the
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with The Kosovo Report explicitly declaring: “The Commission believes that the time is now ripe for
the presentation of a principled framework for humanitarian intervention.”9 Annan explicitly invoked
a “moral duty” of the Security Council to act on behalf of the international community when faced
with crimes against humanity.10 While he did not himself solve the dilemma posed by the apparently
conflicting principles of humanity and sovereignty,11 he placed it before the General Assembly in
telling terms:

President to the KFOR Troops (Skopje, Macedonia June 22, 1998). For other examples (including Tony Blair
and EU High Representative Javier Solana) and declarations (including the Stockholm Declaration), see G.
Austin and B. Koppelman, Darfur and Genocide: Mechanisms for Rapid Response, an End to Impunity
(London: Foreign Policy Centre, 2004), pp. 6-12; Alex Bellamy, "Responsibility to Protect or Trojan Horse?
The Crisis in Darfur and Humanitarian Intervention after Iraq", Ethics and International Affairs 19(2)
(2005): 31-53, p. 31; Ethan Cramer-Flood, "The “Reponsibility to Protect” and Unilateral Humanitarian
Interventions: An Emerging Legal Doctrine?", Minerva 33 (2008): 35-50, p. 36. Succinct overviews of the
context are given in: Emma McClean, "The Responsibility to Protect: The Role of International Human
Rights Law", Journal of Conflict and Security Law 13(1) (2008): 123-52, pp. 125-7; Gareth Evans, "From
Humanitarian Intervention to the Responsibility to Protect", Wis. Int'l LJ 24 (2006): 703-22, pp. 706-7; on
the post-Kosovo world, see also: Ian Johnstone, "Security Council Deliberations: The Power of the Better
Argument", European Journal of International Law 14(3) (2003): 437-80, pp. 459, 478-9.
8 See, e.g., UN Secretary-General, Report of the Secretary General Pursuant to General Assembly Resolution
53/55: The Fall of Srebrenica A/54/549, 15 November 1999, §501-§504; UN, Report of the Independent
Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda, UN Doc
S/1999/1257/Annex, 16 December, 1999, pp. 3, 50-51.
9 IICK, The Kosovo Report: Conflict, International Response, Lessons Learned (New York: The Independent
International Commission on Kosovo, 2000), p. 10. Links between the IICK and the ICISS reports are
commonplace: e.g., Falk judges the two “complementary in content and intention”, though he preferred
the IICK report for more directly confronting the “dilemma that arises at the outer limits of law when
moral and political factors strongly favour moving beyond those limits.” Richard Falk, "Legality and
Legitimacy: The Quest for Principled Flexibility and Restraint", Review of International Studies 31 (2005):
33-50, p. 40.
10 Annan, We the Peoples, p. 48.
11 The initial reaction of the General Assembly to Annan’s position on intervention was frosty at best: see
Roberts, "The So-Called 'Right' of Humanitarian Intervention", p. 32. For an overview of Annan’s influence
thereafter, see Adam Roberts, "The United Nations and Humanitarian Intervention", in J. Welsh (ed.),
Humanitarian Intervention and International Relations (Oxford: Oxford University Press, 2004), pp. 71-97,
pp. 86-87. Roberts summarizes: “Annan's campaign should be interpreted as a partially successful attempt
to change the terms of international debate, rather than as a call for any specific change in international
law.” Ibid.p. 87. Note, though, that Annan’s determination on the issue may have been influenced by his
own earlier actions in response to the unfolding genocide in Rwanda. See Thomas Pogge, "Moralizing
Humanitarian Intervention: Why Jurying Fails and How Law Can Work", in T. Nardin and M. Williams (eds.),
Nomos XLVII: Humanitarian Intervention (New York: New York University, 2006), pp. 158-87, pp. 161-3;
International-Panel, Rwanda: The Preventable Genocide: Special Report of the International Panel of
Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events, July 7,
2000, ¶¶9.13, 10.15, 13.29; UN, Rwanda Report, pp. 10-11, 33-34.
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But to the critics I would pose this question: if humanitarian intervention is, indeed, an
unacceptable assault on sovereignty, how should we respond to a Rwanda, to a
Srebrenica—to gross and systematic violations of human rights that offend every
precept of our common humanity?12
Against this background the Canadian government commissioned the International Commission on
Intervention and State Sovereignty, and in 2001 it provided its report.13
§1.2 Central Normative Structure/Principle: the R2Pcore
The conceptual core of R2P as drawn out by ICISS has two elements. The first concerns a shift in the
understanding of sovereignty from “sovereignty as control” to “sovereignty as responsibility”.14 That
is, sovereignty is no longer to be understood as a right to perform whatever internal actions the
state desires. The reason for sovereignty, it is submitted, is at base the protection of the people’s
most fundamental rights from the most egregious acts of violence, and as such sovereigns have an
inviolable responsibility to fulfil this protection. The second element of R2P is that, while the state
has primary responsibility for protecting its citizens, if the state should be unwilling or unable to fulfil
that mandate, then the responsibility shifts to the international community.15
While the state whose people are directly affected has the default responsibility to protect,
a residual responsibility also lies with the broader community of states. This fallback
responsibility is activated when a particular state is clearly either unwilling or unable to
fulfill its responsibility to protect or is itself the actual perpetrator of crimes or atrocities; or
where people living outside a particular state are directly threatened by actions taking place
there.16

12 Annan, We the Peoples, p. 48. See similarly: Kofi Annan, "Two Concepts of Sovereignty", The Economist
352(8137) (1999): 49-50.
13 For a detailed account of the development of the concept of R2P2001 through the work of ICISS and earlier
consultations/workshops, see Bellamy, Responsibility to Protect, pp. 35-51. For a description of the role of
commissions like ICISS in international law and legal discourse, see Johnstone, "The Power of the Better
Argument", p. 479.
14 ICISS, The Responsibility to Protect, p. 14, q.v. p. 13. On ‘sovereignty as responsibility’ see Francis M. Deng,
"From ‘Sovereignty as Responsibility’ to the ‘Responsibility to Protect’", Global Responsibility to Protect 2
(2010): 353-70, pp. 364-369; Francis Deng, Donald Rothchild, and I. William Zartmann, Sovereignty as
Responsibility: Conflict Management in Africa (Washington DC: Brookings Institution, 1996).
15 ICISS, The Responsibility to Protect, p.14.
16 Ibid., p.17.
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The international community is on this basis called upon to fill what ICISS Commissioner Ramesh
Thakur calls the “responsibility deficit” that arises when the state fails to fulfil its primary
obligation.17
We might call this broad view the “core principle”18 of R2P (what I will term R2Pcore). R2Pcore is
thus a broad vision of human protection and the assignation of responsibilities to ensure it. R2Pcore
imposes a responsibility on states to not harm and to pro-actively protect their populations; and
imposes a responsibility on the wider community to engage in appropriately authorised and
multilateral actions – including, if need be, using coercive force – to protect those populations if the
state cannot or will not live up to its responsibility. R2Pcore can be specified in different ways – in
particular in the manner ICISS would go on to present (R2P2001) and then in the further specified
(and somewhat diluted) form UN member states would accept (R2P2005). It is by reference to
R2Pcore that it can be plausibly claimed that, for instance, Article 4(H) of the Constitutive Act of the
African Union,19 and perhaps the Genocide Convention,20 embody R2P, even as they differ in various

17 Ramesh Thakur, "Intervention, Sovereignty and the Responsibility to Protect: Experiences from ICISS",
Security Dialogue 33(3) (2002): 323-40, p. 324.
18 Ibid., p. 330.
19 Regional concerns for gross domestic violations of human rights had been in evidence in Africa at least since
the 1991 Kampala Document. They were made explicit in the African Union’s Article 4(h), which provides
for “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in
respect to grave circumstances, namely: war crimes, genocide, and crimes against humanity”. For links
drawn between Art. 4(H) and R2P see: UN Secretary-General, Implementing the Responsibility to Protect,
A/63/677, 12 January 2009, ¶8; ICRtoP, Report on the General Assembly Plenary Debate on the
Responsibility to Protect, 15th September, 2009, ¶8; Evans, "From Humanitarian Intervention to the
Responsibility to Protect", p. 713; Edward Luck, The United Nations and the Responsibility to Protect
(Muscatine, IA: The Stanley Foundation, 2008), p. 2; David Carment and Martin Fischer, "R2P and the Role
of Regional Organisations in Ethnic Conflict Management, Prevention and Resolution: The Unfinished
Agenda", Global Responsibility to Protect 1 (2009): 261-90, pp. 274-5. Note however that intervention in
the AU document is described as a right rather than a responsibility. For a measured discussion of the
African Union in this regard see: Alex Bellamy, "Whither the Responsibility to Protect? Humanitarian
Intervention and the 2005 World Summit", Ethics and International Affairs 20(2) (2006): 143-69, pp. 157-
162; Dan Kuwali, "Art. 4 (H)+ R2P: Towards a Doctrine of Persuasive Protection to End Mass Atrocity
Crimes", Interdisc. J. Hum. Rts. L. 3 (2008): 55-85. For a general discussion of military intervention for
human protection purposes in Africa see: James Mayall, "Humanitarian Intervention and International
Society: Lessons from Africa", in J. Welsh (ed.), Humanitarian Intervention and International Relations
(Oxford: Oxford University Press, 2004), pp. 120-41, esp. pp. 128-130. Africa had already been the cradle
of the concept of ‘sovereignty as responsibility’.
20 UN General-Assembly, "Convention on the Prevention and Punishment of the Crime of Genocide, 9
December 1948.," (Geneva: United Nations, 1948), esp. Art. 1 and Art. 8.
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