November 1, 2011
Photo: UN Photo/Yutaka Nagata
Dr. Vesselin Popovski of the UNU Institute for Sustainability and Peace examines the differences and commonalities between the concepts of the “Protection of Civilians” and the “Responsibility to Protect”. He examines their origins, evolution and applicability to the situation in Libya in 2011, and the measures brought by Security Council Resolutions 1970 and 1973.
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The origins of the Protection of Civilians (POC) in armed conflict can be traced in the history of the development of the norms of war that were prescribed in early religious texts and developed over many centuries. The need to protect the lives of civilians and other non-combatants (such as wounded or captured soldiers) in armed conflict has been gradually accepted in international humanitarian law, universalized and codified. The Fourth Geneva Convention coined the phrase Protection of Civilians and has become its firm international legal establishment.
With the massive failures to protect civilians in major armed conflicts in the last two decades — Bosnia-Herzegovina, Liberia, Somalia, Rwanda, Burundi, Timor-Leste, Democratic Republic of the Congo, Sierra Leone, Kosovo, Darfur and elsewhere — POC has become a central matter of international concern. It has been under regular consideration by the UN and its principal organ, the Security Council, since 1999 when the first report of the UN Secretary-General on the subject was issued.
In parallel with the increased attention to POC, another concept, the Responsibility to Protect (R2P), has emerged out of a similar humanitarian concern. After yet another failure to protect civilians — the Kosovo Albanians from the ethnic cleansing in 1998-99 — followed by controversial unauthorized military intervention by NATO in March 1999, an International Commission on Intervention and State Sovereignty (ICISS) was formed.
The ICISS initially engaged in yet another fruitless debate on the right of humanitarian intervention. But when at one of the meetings the phrase “responsibility to protect” was suggested as a re-formulation of “humanitarian intervention”, shifting the focus from the interests of intervening states towards the life-saving needs of victims, nobody could dispute it, and the silence in the hall signified the birth of a new concept. R2P became a worldwide shared emerging norm in 2005 when almost 150 world leaders — the biggest ever gathering of Heads of State in history — adopted the document “World Summit Outcome”.
Ed Luck, Special Representative of the UN Secretary-General on R2P, when I interviewed him in the summer of 2010, referred to POC and R2P as “cousins, but not sisters”. But the situation in Libya in early 2011, and the responses by regional organizations and the Security Council, has brought the two concepts even closer, and I would now name them “sisters, but not twins”.
POC and R2P share the same concern — civilian suffering from mass human-induced violence — but each has its own nuances and limitations. The main limitation of R2P is that it does not cover all violations of human rights, nor does it cover suffering from natural disasters — as horrible as these might be. The threshold between what falls within R2P, and what does not, lies in the determination of atrocity crimes: genocide, crimes against humanity, war crimes. These have to be systematic and planned, as such.
In the case of POC, the main limitation is that the concept emerged as relevant to situations of armed conflict only. If there is no armed conflict — where civilians are defined as the opposite of combatants — POC transforms itself to protection of citizens in time of peace, covered by the well-developed and comprehensive body of human rights.
POC — the protection of civilians in time of war — is more limited than the protection of citizens in time of peace, and also more limited than the protection of all non-combatants in time of war. On one hand, POC is narrower than R2P — if all war crimes trigger R2P, not all war crimes would fall under POC — as some war crimes are not committed against civilians, but against wounded or captured soldiers. On another hand, R2P is narrower than POC and would not apply in every armed conflict, but only in those in which mass atrocities have been systematically planned as part of the war strategy.
To summarize: in many situations, the two circles of R2P and POC can overlap — for example, when war crimes against civilians or crimes against humanity (including ethnic cleansing and genocide) are committed during armed conflict. A situation that would fall under POC, but not R2P, is the protection of civilians threatened by escalating armed conflict if mass atrocities are not planned and committed. And a situation that would trigger R2P, but not POC, is a threat from mass atrocities planned outside an armed conflict.
To add further sophistication, a situation that originally was not an armed conflict can escalate into one and raise demands for POC. Security Council Resolution (SCR) 1970 (of 26 February 2011) describes atrocities against peaceful demonstrators in Libya — not yet an armed conflict — and raises R2P (crimes against humanity) concerns; but this, technically, is not yet a POC situation. A second resolution, 1973 (of 17 March 2011) describes the situation in Libya as a civil war, no longer as protests and riots; thus, POC now comes into consideration, in parallel with R2P.
One may argue that R2P and POC come closer and overlap in critical situations: for example, Bosnia-Herzegovina in 1992–1995 or Darfur in 2003–2007. In 2011 in Libya, the situation developed from a Pillar One (domestic responsibility to protect) reminder of the obligations of Libya in SCR 1970, to later encompass the whole scope of Pillar Three (“timely and decisive response” when States manifestly fail to protect). In parallel, the categorization of the situation as civil war brought POC language into SCR 1973 — a textbook resolution for both POC and R2P application.
Another interesting element in SCR 1973 is that POC is an obligation not only of the Gaddafi regime, but of all parties in conflict; it urges the rebels also to protect civilians. If R2P is a matter for States only, POC can be an obligation for non-State actors.
R2P, although narrow in scope, has a deep resource: everything in the domestic, bilateral, regional and UN system; everything from a power-sharing agreement (2008 Kenya) to the use of military force (2011 Libya) can form its arsenal.
The comparison between the legal sources for R2P and POC can be illustrated as follows:
|1949 Geneva Conventions and their Additional Protocols (war crimes)||1949 Fourth Geneva Convention (POC), domestic and international humanitarian law, jus in bello traditions|
|1948 Genocide Convention (genocide)||UN Security Council Resolutions: thematic (Res. 1894) and country-specific mandates to POC|
|1998 Rome Statute for ICC (crimes against humanity, forceful deportation)||Refugee Laws (1951 Convention, 2009 AU Convention on IDPs)|
|Domestic Law (Pillar One); Bilateral, Regional Law (Pillar Two)||Ottawa protocol banning land-mines|
|UN Charter, Chapter VI, VII, VIII measures (Pillar Three)||2010 Convention on Cluster Munitions|
|Relevant Human Rights Laws – for example, non-discrimination of ethnic minorities||Relevant Human Rights Laws – for example, prohibition of recruitment of children in armed forces|
One can see the similarities and differences in the table: if all four Geneva Conventions will be relevant to R2P, only the fourth one will be relevant to POC. The whole volume of human rights law would be too large for both R2P and POC, and only parts of it will be relevant. The legal sources for POC also would include refugee laws, disarmament treaties and prohibiting of certain weapons that cause excessive civilian suffering.
POC and R2P have their nuances not only in legal sources, but also in actors — some would engage in both R2P and POC, but others will have a specific mandate in just one type of protection. Some actors are very willing to act in POC missions, and understand their mandates accordingly, but are reluctant to engage in R2P, considering it as jeopardy to their mandates. R2P and POC share similar humanitarian concerns, yet their specificity is important. R2P, the “younger sister”, does not undermine; rather, it serves as a catalyst for action — it can mobilize political will and complement the POC agenda.
R2P and POC can interplay, as the 2011 Libya case demonstrates. SCR 1970 and 1973 are not the first time that R2P was utilized by the UN Security Council; previous resolutions on Sudan (Darfur) and Cote d‘Ivoire similarly used R2P language. Libya is also not the first time that the Security Council has authorized the use of force to protect civilians. The bombing of Bosnian Serb military targets around Sarajevo in 1995, aimed at protecting the civilian population, was under the solid authorization of the Security Council.
I would even question what Paul Williams and Alex Bellamy insist — that SCR 1973 is the first time that the Security Council has authorized the use of force for human protection against the wishes of a functioning state. The Security Council, in Resolution 688 (March 1991) in the aftermath of the first Gulf War, established a no-fly zone to protect the Kurdish minority in Northern Iraq — certainly against the wishes of a functioning state (Iraq) and with (very similar to the 2011 Libya situation) Saddam Hussein threatening a large part of his country’s own population with massacres. Also, the no-fly zone, authorized by SCR 688 was not a paper-tiger; it was enforced with air strikes several times in the 1990s.
What I regard as a novelty with SCR 1970 and 1973 is that this is the first joint utilization of the concepts POC and R2P to stop a potential mass slaughter of civilians. R2P was invoked by the Security Council immediately when, on 26 February 2011, it considered the urgent need to protect the Libyan people from atrocities and unanimously adopted SCR 1970. The Council considered that the widespread and systematic attacks against the civilian population could amount to crimes against humanity, thus referring to one of the atrocity crimes and triggering the applicability of R2P.
In explicit text, and in a separate paragraph, SCR 1970 recalled the Libyan authorities’ responsibility to protect the Libyan population. It imposed Chapter VII sanctions on Libya and referred the situation to the International Criminal Court (ICC), an additional signal that R2P crimes might have been committed.
Libya not only ignored SCR 1970, but committed clear breaches of it by refusing to permit humanitarian aid convoys into the besieged cities of Misrata and Ajdabiya. Although the search for a peaceful solution continued, gradually most governments and regional organizations realized that diplomatic efforts alone would not protect civilians in great danger.
Acknowledging Libya’s manifest failure to protect its people, the international community shifted into Pillar Three and took measures. On 12 March, the League of Arab States called on the Security Council to immediately impose a no-fly zone on the Libyan air force and to establish safe areas as a precautionary measure to protect civilians. This proved to be crucial, and Britain, France and Lebanon introduced the new resolution, 1973, urging the parties to armed conflict to “bear the primary responsibility to take all feasible steps to ensure protection of civilians”.
SCR 1973 brings POC to life, as the situation escalates from a riot (not qualifiable as armed conflict) into a civil war. This is an important legal determination — by making it, the Security Council could assert its decisions on obligations under international humanitarian law and Geneva Conventions, applicable in time of (civil) war. It also adds war crimes jurisdiction into what has already been established, but more vaguely, as R2P obligations in SCR 1970 on the basis of potential crimes against humanity.
In SCR 1973, the sister concepts POC and R2P join their legal, moral and political scopes, and drive the Security Council to utilize all its overwhelming power under Chapter VII — including use of force — to protect civilian populations and civilian-populated areas. This timely and determined decision of the Security Council (a body often accused of being obsolete) is a triumph of both POC and R2P.
One interesting caveat is that when a situation is qualified as civil war, as in SCR 1973, jus ad bellum (the right of the Libyan government to fight the rebels) also comes to life, in addition to jus in belli (protection of civilians). Accordingly, any military support for the Libyan rebels with air strikes, or with military supplies, that violate the arms embargo imposed by SCR 1970 becomes extremely problematic in international law.
Here is a brief comparison of the measures imposed by the two resolutions:
SCR 1970 demanded an immediate end of violence and urged Libya to act with utmost restraint, to respect human rights, to ensure safety of all foreign nationals, to allow safe passage of humanitarian and medical supplies, and to lift media restrictions. It decided to impose: (1) the referral of the situation to the ICC; (2) an arms embargo, strengthened with a call upon States to inspect all cargo that may upon reasonable grounds be believed to contain prohibited items; (3) a travel ban against sixteen Libyan officials, among them Qaddafi himself, some of his family members, and military leaders involved in violence; and (4) an asset freeze against six designated individuals — Qaddafi, four of his sons and one of his daughters.
SCR 1973, in Paragraph 4, sub-titled “Protection of Civilians”, contained authorization for the use of force in the famous formula “take all necessary measures”. Paragraph 5 establishes a no-fly zone. SCR 1973 strengthened other measures adopted in 1970 — paragraph 13, enforcement of the arms embargo, replaced paragraph 11 of the previous resolution, adding that Member States are authorized to use “all necessary measures commensurate with the specific circumstances to carry out such inspections”. This additional limited authorization does not target Libya only, but can apply against any other state (including its vessels and aircraft) that may violate the arms embargo.
This brings probably the most interesting and controversial question: SCR 1970 and 1973 not only prohibited the supply of weapons to Libya, but also authorized limited use of force to intercept such supplies. When, in late June 2011, the French parachuted machine guns, rocket-propelled grenades and munitions to besieged rebels, could Russia, protesting this as a violation of SCR 1970, also use force against the French aircraft? Would such use of force by Russia, preventing French supplies of weapons to Libyan rebels, have been in accord with Resolution 1973?
I share views expressed by various scholars — Gareth Evans, Alex Bellamy, Tom Weiss, Jennifer Welsh — that SCR 1970 and 1973 represent a triumph of R2P. The objective of the resolutions was to protect the civilian population and, for the first time since the R2P concept emerged ten years ago, the full and deepest scope of its implementation was utilized. When the Pillar One domestic responsibility to protect manifestly failed, moreover, when Qaddafi’s regime threatened its own population with massacres, the responsibility shifted to the international community, and both the UN and the regional organizations used the full scope of measures: negotiations, diplomatic pressure, sanctions and use of force.
If Libya demonstrated the fullest opportunity and the triumph of R2P, another situation, Syria, unfortunately, puts back on the table the terrible question from 1999 Kosovo: “How to save people from mass atrocities when a State manifestly fails to protect them and the Security Council is paralyzed?” This is the same question that triggered the debates and gave birth to R2P.
The biggest R2P triumph so far could be followed by the biggest R2P failure so far: failure to protect people in Syria, Yemen and elsewhere. If the UN and the regional organizations would not act with the same determination as they did in Libya, the danger of selectivity in the application of R2P and POC will continue to bring a cloud of doubt.
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This article is a summary of presentations made at three regional capacity-building workshops in Manila, Kuala Lumpur and Jakarta in June 2011, as part of a collaborative project funded by the Australian Responsibility to Protect Fund and implemented by UNU-ISP, Griffith University and the Asia Pacific Civil-Military Centre of Excellence.