Cross-Cutting Report No. 2: Protection of Civilians
Introduction • Methodology • Some Key Distinctions • Relevant Provisions of International Humanitarian Law • Emergence in the Council of a Framework for Protection of Civilians • The Council and Protection of Civilians after Resolution 1296 • Implementing Council Commitments in Country-Specific Contexts since Resolution 1296 • Special Implementation Issues Involving UN Peacekeeping Operations • Assessment • Conclusion • Other SCR Reports on Protection of Civilians
In the Security Council the thematic focus on protection of civilians in armed conflict is relatively recent and dates from the late 1990s. However, the issue has been a concern for many Council members over the years. The disproportionate burden that war imposed on civilian populations in the twentieth century has been a key factor. In the past century, the ratio of civilian casualties to military casualties as a result of conflict rose steadily until civilian deaths surpassed those of combatants. Causes included not only direct violence but also malnutrition and disease precipitated by war.
Estimates of conflict-related deaths in the twentieth century vary according to the methodology, criteria and sources used. Milton Leitenberg, in the study Deaths in Wars and Conflicts in the 20th Century, (whose estimates are in the middle of the range) suggests a combined total of 231 million civilian deaths from 1900-2000 from conflict and state-sponsored violence involving massive mistreatment of civilians.
The numbers of civilian deaths include cases of genocide and similar atrocities that resulted in the annihilation of substantial percentages—sometimes as high as 50 percent and above—of certain communities. Another point that is not reflected in aggregate numbers is the impact of what has come to be referred to as “ethnic cleansing” and other forcible population transfers. This has led, in some cases, to the disappearance of whole communities and modes of living from certain regions and often their dissipation into diasporas.
In the pre-industrial era, warfare had comparatively lower casualty levels among civilians. Most of the dead and wounded were combatants, i.e. those fighting as organised and trained forces. But some important aspects in the evolution of warfare since then progressively blurred the distinction between those taking part in hostilities and non-combatants and meant that an increasing majority of conflict-related casualties would be civilians.
Historically, from relatively small and decentralised events controlled by local elites war became a state driven enterprise, involving whole populations. In the twentieth century ideologies of resistance, liberation and transformation were sometimes exploited by one or both sides to justify the deliberate targeting of civilians as a matter of policy.
An important factor was also the shift from interstate conflicts which constituted the majority of wars worldwide for much of the twentieth century (pitting state militaries against each other), to the current situation in which the majority of conflicts occur within a state. A further factor in the second half of the twentieth century was an increase in “unconventional conflicts”. These involved irregular armed groups such as guerrilla movements or paramilitary forces, but may also involve organised criminals and other irregular groupings—not necessarily politically motivated—fighting against the incumbent government. A common feature of this type of conflict is that militias (often fighting for both sides) prey on the civilian population and seek protection by living among civilians. Some such groups have increasingly made use of terrorist-type tactics, which by their very nature require them to hide among civilians and to target them. In such circumstances, the increasing difficulty in clearly separating those taking part in hostilities from non-combatants inevitably leads to higher “collective” civilian casualties. The sometimes poor discipline of troops and insurgent forces in such conflicts has further increased the impact on civilians.
Civilians caught up in such fighting can suffer the most. Such conflicts often lead to retaliation, justifying reciprocal atrocities when it is difficult to distinguish between civilians and combatants. In fact civilian pain can be an essential part of the military tactics of governments and irregular forces.
”In these new wars”, according to British author Mary Kaldor, “…violence is mainly directed against civilians and not another army… Population displacement, massacres, widespread atrocities are not just side effects of war; they are a deliberate strategy for political control… The various parties finance themselves through loot and plunder and various forms of illegal trading; thus they are closely linked into and help to generate organised crime networks… The various actors—states, remnants of states, paramilitary groups, liberation movements, etc.—depend on continued violence for both political and economic reasons.“
This kind of warfare creates enormous humanitarian crises. Moreover it also poses huge challenges for humanitarian actors. As former Secretary-General Kofi Annan noted in 2000, there is a dilemma that “has often forced us to provide food and clothing not only to victims of conflict, but also its architects” and “allows combatants to use humanitarian aid and its recipients as tools in war”, but most importantly it “makes clear that humanitarian assistance is no substitute for political action.”
A further aspect contributing to the increase in civilian casualties is mass production of relatively high quality, relatively cheap and eminently portable small arms and light weapons. More recent innovations, such as anti-personnel mines, cluster munitions, weapons of mass destruction and aerial capabilities allow for wide area military action and relatively remote command and control. Killing becomes quicker, easier and more efficient. Moreover, these armaments by their very nature can be indiscriminate in their targets and thus tend to have a disproportionate effect on the civilian population and have played a key role in civilian casualties in all recent armed conflicts.
At the country-specific level the Security Council became intensively involved in the issue of protection of civilians in the 1990s. The crises in Somalia, the Balkans and Rwanda, in particular, led to concern about the impact on civilians and this aspect increasingly underpinned the Council’s work. Initially this impact was felt primarily in its decisions in country specific situations. However, following the failure of UN protection efforts in the early 1990s, in 1999-2000, the Council took up protection of civilians in conflict situations as a thematic issue. In resolution 1296, the Council recognised that the impact of conflict on civilians could trigger its Charter responsibilities:
“the deliberate targeting of civilian populations or other protected persons and the committing of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security”.
At times, some in the Council seemed inclined to an ever broadening scope of the concept. Some occasionally seemed to merge protection of non-combatants with a wide range of other issues such as disarmament, demobilisation and reintegration; collaboration with regional organisations; curbing hate media; controlling armaments; special treatment for women and children; tending to the peace building needs of society, the safe return of refugees and justice and accountability. Others seemed to be steering the concept into areas such as conflict prevention, as well as the provision of adequate resources to peacekeeping operations and the appropriate use of sanctions.
By late 2008, however, it is now possible to look back at the Council’s actual practice and the associated frameworks of international law, and to identify a relatively clear conceptual basis for a more limited spectrum of international activity that can be seen, classically, as protection of civilians.
The first point on the spectrum is the protection norms set out in the 1949 Geneva Conventions and subsequent Protocols, the core treaties of International Humanitarian Law (IHL). This notably includes the duties of those taking part in hostilities to civilians, who are designated as “protected persons”. IHL rules are backed up not only by international criminal jurisdiction for “grave breaches”, increasingly enforced by national courts, but also by an impressive and longstanding capacity for monitoring and physical protection by the delegates of the International Committee of the Red Cross (ICRC). The ICRC utilises techniques of neutral, independent, humanitarian action on the ground in support of its mandate.
At the other end of the spectrum, there is the protection role of the United Nations. The UN is now increasingly being mandated to provide physical protection through its missions, particularly peacekeeping operations, which have been tasked with using military capability in the field either to deter attacks on civilians or, sometimes, to use force to defend civilians from attack.
The Security Council occupies space covering both ends of this spectrum as well as the middle ground:
it reinforces general norms – in particular IHL rules;
it uses its Chapter VII powers to mandate either UN missions or regional organisations or groups of member states to take measures including the use of force for the protection of civilians. Sometimes this is an exclusive task (for example, the EU force, or EUFOR, in Chad) or in conjunction with wider mandate tasks of a multidimensional peacekeeping operation (for example, MONUC in the Democratic Republic of the Congo);
it can develop middle ground using its Chapter V, VI and VIII powers by calling on parties to conflicts in country-specific situations to observe IHL; and
finally, the Council has a role in holding parties accountable for breaches of IHL in extreme cases including by authorisation of ad hoc tribunals (for example in the case of the former Yugoslavia and Rwanda) or referring situations to the International Criminal Court.
This study aims to provide a detailed analysis of the Council’s involvement in protection of civilians in this classic sense and to distinguish protection of civilians from other related concepts, namely human security, humanitarian intervention and the responsibility to protect. Although arguably intellectually related and sometimes overlapping, these ideas have sometimes been compounded with protection resulting in confusion and controversy.
In the following sections, we provide background on international humanitarian law, and a snapshot of the evolution of the Council’s thematic work in that area. We then identify the general undertakings the Council has made with regards to civilians in armed conflict in its thematic work, and follow with an assessment of how the Council has applied these principles in its situation-specific work.
A table (Annex I) analyses the Council’s detailed involvement on protection issues across all of the situations on its agenda (including issues taken up only in informal consultations) since 2004. A sample of case studies is also presented, with examples that are both representative and instructive of Council trends. Finally we examine Council dynamics and conclude with options and a medium-term outlook on protection.
3. Some Key Distinctions: Protection of Civilians, Human Security, Humanitarian Intervention and the Responsibility to Protect
The development of the concept of the protection of civilians is founded in the universally accepted rules of IHL. In recent years this concept, in the UN context, has provided a policy rationale for new activities often largely of a political nature such as preventive diplomacy and for physical protection activity as well. It is worth noting that the Council’s evolving approach to the protection of civilians, for example in advocacy and mandates on the provision of humanitarian assistance, remains grounded in IHL.
At the same time the concept of protection has had to compete with the emergence of related concepts covering similar ground to the idea of protection. These include human security, the responsibility to protect and humanitarian intervention. All these share with the protection concept the idea of protecting civilian well-being. But there are significant differences between these distinct concepts.
Because of controversies over sovereignty and humanitarian intervention there have been problems also in discussion of the protection issue. Some states have been increasingly reluctant to reiterate universally accepted principles of IHL, sometimes seeing these as instrumentalised by other states. Some have purposefully attempted to politicise the issue of protection by exploiting the sovereignty controversy.
It is therefore essential to understand and distinguish the key conceptual differences.
Human security is an idea first articulated in detail in the 1994 Human Development Report from the UN Development Programme (UNDP). It is a concept that places individuals and their needs as the centrepiece of policy. It provides a philosophical base for identifying problems from the perspective of individuals holistically and includes hunger, disease, inequality, violence, disasters and poverty. It is meant to be applicable to all states, not just developing ones or those facing conflict. It reinforces the role of governments and does not deny the sovereignty of states, relying essentially on inter-state cooperation, partnership and diplomacy.
Humanitarian intervention was a concept involving a proposed norm that would override sovereignty and the UN Charter and legitimise forceful action by states to alleviate a humanitarian crisis. The concept evoked strong resistance among many UN member states and there are few, if any, states which would openly support such a doctrine.
Many states that traditionally support humanitarian causes are also uneasy about this concept, particularly the use of the word “humanitarian” to qualify intervention. (Unsurprisingly, so are most independent humanitarian actors who of course work on the basis of persuasion and consent rather than force.) They note that humanitarian assistance refers to the provision of basic services and living conditions during conflict or natural disasters, an activity that is in its very essence non-military. Humanitarian organisations generally seek to distance themselves from any military presence even one designed to create sufficient security for the provision of assistance.
The third concept that needs to be distinguished from protection of civilians is the responsibility to protect. This norm relates to civilians facing mass atrocities such as genocide, war crimes and crimes against humanity. It recognises the principle of sovereignty and the state’s primary responsibility to protect its own citizens against such crimes and proceeds on the basis that the international community’s responsibility is subsidiary. In such situations when the state in question is unwilling or unable to guarantee the security of citizens action is envisaged and the importance of early use of non-coercive forms is recognised. Only in the most extreme cases would the use of force under Chapter VII be envisaged.
Protection of civilians is distinct: it is none of the above. Its origins lie in the universal and long-standing principles of IHL. But it also now covers a set of practical tools and activities designed to foster civilian security during conflict.
4. Relevant Provisions of International Humanitarian Law
Underlying the development of IHL was the idea that the means and the targets of military force in conflict do matter and must be restricted, regardless of the lawfulness of the resort to force in the first place.
According to the ICRC, IHL can be defined as “a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.” (IHL should not be confused with the general prohibition of resort to war as laid out in the UN Charter.)
Key principles of modern IHL (which have also become part of customary international law) include:
distinction of targets: civilians (as opposed to those taking part in hostilities) are not lawful targets of military action and thus cannot be attacked and any tactic, method or armament that fails to respect this distinction is also unlawful; and
proportionality and minimum force: even a military objective can become an unlawful target if the damage to civilians might reasonably be expected to be out of proportion to the advantage expected, and can only be attacked if all reasonable measures are taken to minimise such damage to civilians.
The 1949 Geneva Conventions represented a landmark in the evolution of IHL. Of particular importance is the Fourth Convention, the first to deal specifically with civilians. It legally designates them as “protected persons”, and elaborates on their protected status through detailed provisions on their treatment, status and rights. It also includes rules on humanitarian assistance during hostilities and territorial occupation, which underpin in part the issue of humanitarian access as part of the contemporary discussion on protection of civilians.
Another major innovation in the Conventions was article 3, common to all four conventions, also applicable to conflicts considered non-international in nature. Much debated at the time, this provision offered general but more limited protection in non-international conflicts. It prohibited:
violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
taking of hostages;
outrages upon personal dignity, in particular humiliating and degrading treatment; and
the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees widely recognised as indispensable.
Articles 146-149 (common to all 1949 Geneva Conventions) cemented the universality of IHL norms by the establishment of universal jurisdiction for the prosecution and punishment of international crimes arising from the commission of grave breaches of the Conventions.
The 1977 Additional Geneva Protocols further supplemented existing IHL. Protocol I contains provisions regarding protection of civilians in inter-state conflicts. Movements fighting against “colonial domination”, “alien occupation” and “racist régimes”, “in exercise of their right of self-determination” also fall under Protocol I.
A particular innovation was Protocol II, applicable to all other armed conflicts, in plain terms to civil wars or non-international armed conflicts. It is less detailed than Protocol I, primarily because of the controversial nature of the subject. It includes some fundamental guarantees for civilians and also children, the wounded, sick and shipwrecked, whether civilians or not.
Certain other international instruments contain limited provisions applicable in wartime, such as the right to life and the prohibition of torture and slavery. These include the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The 1989 Convention on the Rights of the Child incorporates elements of both IHL and human rights law, calling in article 38 for respect for IHL rules and establishing a minimum age requirement for military conscription. One of its Optional Protocols specifically addresses the recruitment and use in armed conflict of children.
Other relevant international instruments include the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, and the 1994 Convention on the Safety of United Nations and Associated Personnel and its 2005 Optional Protocol.
IHL-related provisions have also been incorporated into regional treaties and human rights declarations. These include:
the 1981 African Charter on Human and Peoples’ Rights;
the 1969 inter-American Convention on Human Rights (the Pact of San Jose, Costa Rica); and
the 1950 European Convention on Human Rights.
More recent IHL-related instruments extended the scope of the law regarding the means of warfare, in particular those which are indiscriminate or with massively disproportionate effects on the civilian population. They include recognition of the disproportionate effect that specific armaments have both in fuelling civil wars and harming civilians (often long after a war is over), and regulatory control or prohibition of certain conventional weapons. These include the 1980 Certain Conventional Weapons Convention and its five protocols, the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Convention), and the 2008 Convention on Cluster Munitions.
Recent years have also seen major developments regarding enforcement of violations of IHL. Important examples include the Nuremberg trials, the Council-mandated tribunals for the former Yugoslavia and Rwanda, and the tribunals in Cambodia and Sierra Leone. The 1998 Rome Statute of the International Criminal Court created or clarified key obligations for all parties to a conflict relating to the treatment of civilians and humanitarian personnel by detailing the conducts that constitute war crimes, crimes against humanity and genocide.
5. Emergence in the Council of a Framework for Protection of Civilians
The conflicts in Somalia, Bosnia, Rwanda, Angola, Liberia, the Democratic Republic of the Congo (DRC), Sierra Leone, Timor-Leste and Kosovo in the 1990s drew attention to the extreme levels of suffering for civilians caught up in situations of armed conflict where the protagonists were demonstrating lower and lower levels of respect for IHL norms.
The impact on civilians in those situations created a powerful international awareness and public criticism during the 1990s. The failure of protection efforts led to much soul-searching and resulted in a number of landmark reports with lessons learned and recommendations on specific issues, including:
the 1996 report on the impact of conflict on children by Graça Machel (A/51/306);
the United Nations’ Department of Peacekeeping Operations’ (DPKO) Comprehensive Report on Lessons Learned from the UN Operation in Somalia (UNOSOM) April 1992-March 1995;
the Secretary-General’s report on the fall of Srebrenica (A/54/549); and
the report of the independent inquiry commission on the Rwandan genocide (the Carlsson Report, S/1999/1257).
Rwanda and Bosnia in particular contributed significantly to rethinking of international—and Security Council—approaches to civilian protection. The failure to halt the Rwandan genocide, as highlighted in the Carlsson Report, went beyond UNAMIR. It was “was a failure by the United Nations system as a whole. The fundamental failure was the lack of resources and political commitment devoted to developments in Rwanda and to the United Nations presence there. There was a persistent lack of political will by Member States to act, or to act with enough assertiveness.”
The fall of Srebrenica, ironically a UN “safe area”, also revealed the overall inadequacy and lack of political will vis-à-vis civilian protection in Bosnia. The use of safe areas as the primary protection strategy without clear mandates or resources to deter or repel violence became a symbol of lack of real political will within the Council and the international community as a whole. As noted in the Srebrenica report, the “cardinal lesson of Srebrenica is that a deliberate and systematic attempt to terrorize, expel or murder an entire people must be met decisively with all necessary means, and with the political will to carry the policy through to its logical conclusion.”
Until the late 1990s, the Security Council had only dealt with IHL issues from a country-specific point of view. This started to change when the Council began addressing some of its recurring themes arising from these situations of the failures of the early 1990s.
Some of these discussions preceded what later on became known as the protection of civilians theme, and included refugees (resolution 1208 of 1998) or small arms in Africa (resolution 1209 of 1998), and safety of UN and associated personnel (first taken up in the Security Council in 1993 and in the General Assembly in 1994 with the addition of the Convention on the Safety of United Nations and Associated Personnel). One of the most important early results was the progressive establishment of a clear link between systematic breaches of IHL and threats to international peace and security. Another was to identify the distinct needs of children, women and civilians in time of conflict.
Protection of civilians as a separate conceptual thematic issue was first articulated in 1998 in two Secretary-General’s reports, on Africa and on protection for humanitarian assistance to refugees and others.
On 21 January 1999, the Council heard a ground-breaking briefing on humanitarian assistance by Under Secretary-General for Humanitarian Affairs Sérgio Vieira de Mello, who underscored that the primary goal would be to
“bridge [the gap between international norms and compliance] through the realization of international laws and fundamental principles in practice. While the primary obligation to abide by international humanitarian law and human rights rests with Member States and parties to conflicts, which have often committed themselves on paper, the Council is still charged with ensuring respect, as part of its international responsibility to maintain peace and security.”
On 12 and 22 February 1999, during Canada’s presidency, the Council held its first open debates explicitly on protection of civilians. As a result, the Council adopted presidential statement 1999/6, which expressed “willingness to respond, in accordance with the Charter of the United Nations, to situations in which civilians, as such, have been targeted or humanitarian assistance to civilians has been deliberately obstructed.”
Council discussions revealed the existence of a spectrum of ideas as to what protection of civilians entails, from the more restrictive to the broad approach mentioned above. The 1999 statement tended to the broader end of the spectrum. It noted that “a comprehensive and coordinated approach by Member States and international organizations and agencies is required in order to address the problem of the protection of civilians in situations of armed conflicts.”
A number of members, such as Egypt and China stressed that the Council’s role in protection should take into account the competencies of other UN bodies such as the General Assembly and ECOSOC. They cautioned that the recourse to military means required authorisation from the Security Council, and that any action should bear in mind the Charter’s principles regarding sovereignty and the prerogatives of governments, and that consent and cooperation would be key. This would prove to be a key point because for others, as summarised by Slovenian Ambassador Danilo Türk,
“[the] principles of protection of the sovereignty and territorial integrity of States are important principles, but they are not absolute. The Security Council must be able to distinguish between the genuine protection of the sovereignty and territorial integrity of States and the use or abuse of these principles as quasi-justification for the commission of crimes against humanity and other atrocities which, in addition to being an evil in themselves, threaten the international peace.” (S/PV.3968)
The 1999 presidential statement requested the Secretary-General to provide recommendations for the Council’s future work. The result was a landmark report published on 8 September 1999, in which the Secretary-General provided forty recommendations including:
underscoring at the onset of a conflict the humanitarian imperative and insisting that failure to comply will result in targeted sanctions;
establishing a permanent sanctions review mechanism to ascertain their probable impact on civilians;
imposing arms embargoes;
making greater use of targeted sanctions;
considering deployment of a preventive peacekeeping operation, or another preventive presence;
taking steps to strengthen the UN’s capacity to rapidly plan and deploy missions;
deploying international military observers to camps, and regional or international military forces to compel disarmament;
ensuring that peacekeeping and peace enforcement operations are authorised and equipped to control or close down hate media assets; and
in the face of massive and ongoing abuses, considering the imposition of appropriate enforcement action.
ensure compliance with IHL;
improve access for and safety of humanitarian personnel; and
tackle the problems presented by conventional armaments.
The resolutions also reflect the importance of conflict prevention and cooperation with regional and other organisations.
(Annex II contains a summary of main Council undertakings in those resolutions.)
But it is important to note that the Council shied away from a number of the Secretary-General’s recommendations, including the establishment of Council working groups on volatile situations. Some were perceived to fall outside its scope. Four (on stand-by arrangements and peacekeepers’ discipline, for example) were deemed to fall within the General Assembly’s competencies and were forwarded to its Special Committee on Peacekeeping Operations (C34) in a 14 February 2000 letter (S/2000/119). The C34 provided an update on its consideration of the recommendations in a 7 April 2000 letter (S/2000/298).
6. The Council and Protection of Civilians after Resolution 1296: A Shift to Country-Specific Focus?
Resolution 1296 also emphasised “the need, when considering ways to provide for the protection of civilians in armed conflict, to proceed on a case-by-case basis, taking into account the particular circumstances”. This seemed to signal a readiness for more intensive Council activity in the future in the direction of country-specific action as the appropriate step if the Council was to be effective regarding civilian protection.
But it also seemed to reflect a growing caution in that there should be some limit to the Council’s thematic and norm-setting role in civilian protection. This also seemed to signal that the Council’s protection framework would not be automatically incorporated in each specific case—i.e., the framework could be considered on a situation-specific basis, but its practical application would be left to the particular negotiations in each circumstance.
In March 2001, the Secretary-General presented his second report on protection. He noted that 18 months had passed since his first report, but that only a few of his recommendations were being implemented. He presented some additional recommendations. These include:
actively engaging parties to conflicts to sustain safe access for humanitarian operations, and to demonstrate its willingness to act where such access is denied;
supporting the development of clear criteria and procedures for the identification and separation of armed elements in situations of massive population displacement; and
investigating linkages between illicit trade in natural resources and the conduct of war.
The Council considered the new report in an open debate on 23 April 2001 under UK leadership. Some—including Tunisia, Singapore, Jamaica, Ireland and Malaysia—expressed support for a Council working group to address protection issues. (But this idea, as we will see, never gained sufficient traction in the Council.) Members acknowledged that resolutions 1265 and 1296 had had an impact. However, much remained to be done in terms of mainstreaming protection issues the Council’s everyday work. A key point then was the desire to focus the debate away from abstract principles into more practical measures.
At the thematic level, there was strong support for three initiatives. The first was the compilation of provisions in resolutions 1265 and 1296 into a roadmap indicating the various responsibilities of UN organs. The second was an aide-memoire to assist the Council in its consideration of country-specific situations, in particular peacekeeping mandates. The third was better coordination between DPKO and the Office for the Coordination of Humanitarian Affairs (OCHA).
In an unusual display of working-method flexibility (in a question-and-answer format), the Council heard a briefing by Under Secretary-General for Humanitarian Affairs Kenzo Oshima under the Jamaican Council presidency in November 2001. It included an update on OCHA’s efforts on the aide-memoire and the roadmap. Other briefings in 1999 and 2001 were conducted by the High Commissioner for Human Rights.
On 15 March 2002, the Council adopted the aide-memoire. The roadmap was presented to the Council in the Secretary-General’s third report on protection on 26 November 2002, but no formal Council reaction emerged.
Since 2002, the Council’s thematic involvement on protection of civilians seems to have decreased and the focus dissipated. Various efforts by some member states, such as Norway’s proposed support group, made no progress. Members also seemed increasingly to confine discussions to more general statements on a wide number of topics of concern, but without prioritisation or a clear indication of concrete steps forward.
A number of developments may have had a direct impact on this slowing of momentum. They include the US-led invasion of Iraq, increasing concern with terrorism, and US ambivalence towards the ICC leading to resolution 1422 (2002) (which briefly established immunity for military personnel from states not parties to the ICC Statute serving in a Council-authorised mission). The resulting environment was one in which divisions among members coupled with intensified nervousness in the Council probably limited capacity for new initiatives.
In 2003, Under Secretary-General for Humanitarian Affairs Jan Egeland, sensing the decreasing momentum in the Council, proposed ten action points drawn from the roadmap. They included access; safety of humanitarian personnel; security needs of displaced persons; special needs of children and women; shortcomings in the approach to disarmament, demobilisation, reintegration and rehabilitation; small arms and light weapons; impunity; measures to promote the responsibility of armed groups and non-state actors; and the needs of vulnerable populations in “forgotten emergencies”.
The only other concrete action was a set of commitments regarding the safety of UN and humanitarian personnel in resolution 1502, in the wake of the crisis that followed the killing 22 UN personnel in Baghdad in August 2003, including Sérgio Vieira de Mello.
By 2005, the situations in the DRC, Somalia, Sudan, Iraq, Colombia and northern Uganda were being held up by the media and NGOs as acute reminders of the Council’s failure to act to protect civilians in country-specific situations despite its commitments in resolutions 1265 and 1296. Pressure for a new resolution began to increase. The Council adopted yet another resolution on protection of civilians, resolution 1674, which contained some new pledges and messages (see Annex II) on civilian protection.
Since 2006, the Council has not pursued the issue thematically. There is still disagreement on the normative dimension of protection. (One exception was resolution 1738 (2007) on protection of journalists.) Nor has the Council taken up the most recent recommendations of the Secretary-General presented in October 2007, including formation of a Council expert group on protection.
Resolutions 1265 and 1296, 1502 and 1674 establish a wide framework of Council commitments from prevention to enforcement. They are complemented by a number of undertakings in other resolutions including 1325 (women), 1612 (children), 1625 (conflict prevention) and 1820 (sexual exploitation). In order to facilitate analysis of the implementation of Council commitments these resolutions are summarised in Annex II.
(More detailed undertakings relating to women and children—particularly arising from resolutions 1325 and 1612—are outside the scope of this report. For specific analysis of those issues, please see our 4 February 2008 Cross-Cutting Report on Children and Armed Conflict and our publications on Women, Peace and Security.)
7. Implementing Council Commitments in Country-Specific Contexts since Resolution 1296
We now turn to whether and how the Council has implemented the commitments listed in Annex II in its situation-specific work. We will also bear in mind the provisions in the Aide-Memoire as detailed in Annex IV. It seems that those undertakings have had an impact on how the Council handles its work, but the picture is mixed.
Civilian protection issues have been a key feature in a growing number of items in the Council’s agenda, particularly in but not limited to Africa. In situations such as the DRC, Liberia, Sierra Leone, and Sudan, the Council’s involvement was intense and civilian issues were very much to the fore. Two important landmarks in this regard were the mandates given in 1999 to missions in Sierra Leone (UNAMSIL) and Timor-Leste (INTERFET and UNTAET) allowing the use of force if necessary to protect civilians. From that point on, initially quite slowly, civilian protection begins to appear in specific mandates, and includes issues such as protection of civilians under imminent threat; child protection; monitoring; protection of human rights and protection from sexual abuse and exploitation.
The table in Annex I contains a detailed list of country-specific situations with a significant protection dimension that have been under Council consideration since 2004. The chart below graphs the Council’s involvement over this period. As can be seen the number of times that there have been agreed outcomes involving protection is low relative to the total and has remained relatively flat.
But there are some significant positive indicators which need to be identified. By looking at the cases where there have been outcomes (see table in Annex I) it is possible to see an underlying trend of support for a protection dimension. Conclusions drawn from Annex I include:
of the 14 UN peacekeeping missions established since 1999, only one (Ethiopia-Eritrea) does not have a protection-related element in its mandate (this excludes political offices such as in Afghanistan, Nepal and Iraq, which are not physically structured to carry out protection mandates);
of those 14, even where the UN does not have the lead in terms of military capabilities, such as in Kosovo, Timor-Leste, and Chad/Central African Republic (CAR), the Council authorised multinational deployments with protection mandates;
of the 14 sanctions regimes established since 1997, nine were created as a means of containing violent conflict with significant potential for impact on civilians;
all 14 of the sanctions regimes have consisted of “smart sanctions,” i.e. measures customised to target the decision makers and avoid the humanitarian consequences of blunt comprehensive sanctions such as those created in the early 1990s regarding Iraq and the former Yugoslavia;
of the six sanctions regimes created since 2004, three (Côte d’Ivoire, Darfur and the DRC) contain provisions for targeted measures linked with violations of human rights or international humanitarian law; and
of the 25 Council visiting missions since 2000, almost all of them included situations in which grave humanitarian crises were underway and constituted a key area of Council concern.
The graphs below further illustrate this increase in the Council’s involvement:
As illustrated above, since 2004, more than half of the Council’s meetings, as well as the action taken therein, has been on country situations with a protection dimension as defined above. Geographically, this action has been concentrated on Africa, reflecting the emergence of new conflicts in the continent, including in Côte d’Ivoire and Darfur, and increasing Council involvement in the DRC and Somalia. The large number of meetings on the Middle East is a result of the monthly briefings and the Council’s involvement in Iraq and Lebanon.
There has also been a marked increase since the late 1990s in the importance and frequency of country-specific humanitarian and, to a lesser extent, human rights reporting, both of which contribute to the Council’s capacity for preventive action or other responses. The activism of the Under Secretary-General for Humanitarian Affairs has increased and led to encouragement for the Council to take on new issues, as with Darfur and northern Uganda.
However, these numbers conceal a number of issues. The Council, as noted above, has sometimes been divided on protection issues, with significant impact over the effectiveness of Council decisions, including sanctions regimes and the prospects for sustainable peacekeeping. For example, arms embargoes in Somalia and Darfur are consistently violated, but the Council has taken no steps to counter this situation. Another example is the mission in Darfur (UNAMID), which is seriously under-resourced despite Council pledges to support the protection mandates it establishes.
Moreover, in a number of other crises with significant civilian protection dimensions such as Colombia and Sri Lanka, the Council has not become involved except with regards to the impact on children. In others, the Council was involved only reluctantly and marginally, such as Palestine, Afghanistan and, for a long time, Somalia. Still there are other cases in which the Council is involved, but, fraught with disagreement, it conspicuously avoided decisions on protection issues for extended periods, as during the discussions in 2006 on a ceasefire to stop the violence in Lebanon-Israel and regarding Iraq.
The following charts show the geographical scope of various levels of Council action (resolutions, presidential statements and press statements) on situations with protection dimensions.
In other cases, the effectiveness of the Council’s involvement has been severely impaired by divisions within the Council and the wider membership.
As a way of further investigating what lies below the numbers, we present the following eight case studies to illustrate the Council’s performance more closely.
The war between the Ugandan government and the rebel Lord’s Resistance Army (LRA) was for more than twenty years one of the world’s forgotten crises. The conflict displaced an estimated 90 percent of the civilian population in northern Uganda and led to extreme abuse against civilians in four countries: Uganda, the DRC, Sudan and the Central African Republic.
Reports began to emerge that the LRA was being given safe haven in Sudan. The situation was further complicated by the conflict involving Uganda and the DRC in the latter’s eastern region in the midst of the Congolese civil war in the 1990s and early 2000s. As a result, the LRA was able to use locations in the DRC as well as Sudan to launch attacks into Ugandan territory.
With the end of the Congolese and Sudanese civil wars, external support for the LRA decreased. Both Uganda and the DRC began to jointly pressure the Council and MONUC for forceful action to disarm and capture the LRA. Pressure on the LRA also increased with the issuing of arrest warrants against its leadership by the ICC in July 2005.
Despite the clear protection needs of the civilian population and the obvious international character of the situation, it took the Council more than two decades to begin addressing the LRA issue. The first messages on the protection dimension of the LRA problem came in a press statement (SC/8057) of 14 April 2004 following a briefing by Jan Egeland. Two main factors in this regard seem to have been a general lack of interest in the Council and also resistance from Uganda to broader international involvement.
In earlier resolutions on the DRC, the Council had sought to incorporate a (cautious) regional outlook to the crisis engulfing the Great Lakes. This was done for example in resolution 1556 (2004) by urging the governments in the region to “ensure that its territory is not used to infringe the sovereignty of the others, to realize without further delay the complete normalization of their bilateral relations, and to cooperate actively in assuring security along their common borders”. This message specifically regarding the LRA was reiterated in presidential statement 2005/46 of 4 October 2005—but the protection of civilians dimension was avoided.
Only in 2006 did the Council take up the LRA issue directly. Two key factors also seem to have encouraged Council members in that regard:
strong, unified regional pressure for UN action on the part of the DRC and Uganda;
concern about the lack of progress with disarming irregular groups in the DRC and increasing threats from Kampala of a resumption of Ugandan military activity in the DRC; and
increasing advocacy regarding the dimension of the crisis for civilians on the part of some member states, such as Canada, as well as Under Secretary-General for Humanitarian Affairs Egeland and NGOs.
On 19 December 2005, the Council heard a briefing by Under Secretary-General Egeland, when he indicated that the LRA constituted a threat to regional peace and security and recommended that the Council should appoint a panel of experts to examine the activities of and the sources of support for the group. A Council visiting mission to the region in January 2006 and an LRA attack against MONUC forces on 23 January 2006 seem to have further generated broader Council attention to the issue.
Resolution 1653 (2006) was the first to mention concern about the “devastating impact” of conflicts in the Great Lakes region “such as” the LRA insurgency. It was a result of an open debate on the Great Lakes sponsored by Tanzania. In resolution 1663, the Council further specified that the Secretary-General should provide recommendations on how the two UN peacekeeping missions in the region — UNMIS and MONUC — could address the LRA problem.
The Secretary-General’s response came in a June 2006 report (S/2006/478). It highlighted the dilemmas faced by peacekeeping operations with limited resources and competing demands. He noted that neither mission had sufficient resources to counter the LRA. Moreover, UNMIS was a Chapter VI monitoring operation not equipped for a protection mandate and MONUC was fully committed in the Congolese electoral process. He recommended broader, coordinated regional action.
It is important to note that from the outset Council members were aware of the resource limitations affecting UNMIS and MONUC. The former in particular had been established by the Council a year before without robust capabilities at the request of the parties in Sudan, and had been facing challenges with troop and asset generation.
The Council’s focus on MONUC and UNMIS seems to have been a by-product of pressure to be seen to be doing something and some concerns about what, if anything, could be done. On the one hand, a key driver seems to have been recognition that using force against the LRA might contribute to regional destabilisation or at least compromise efforts in the DRC. On the other, some member states, including the UK in the Council, and also Norway, the Netherlands and Canada in the “Core Group” seemed to dispute this analysis, highlighting the humanitarian and root causes aspects of the situation.
Uganda favoured limiting Council action to the regional dimension. It resisted involvement in the situation in northern Uganda itself. This was highlighted in a series of Council meetings on Uganda in April 2006, when the government took the initiative to provide a briefing to Council members, but opposed further involvement or even the appointment of a UN envoy to northern Uganda. Some in the Council, such as China, Republic of Congo, Tanzania, Ghana and Qatar, seemed sympathetic to the need to respect the government’s concerns and sovereignty.
The result was that the LRA problem was largely left to regional initiatives, most importantly the peacemaking process launched by the Government of Southern Sudan in mid-2006.
In the Council, it took months to agree on the November presidential statement on the peace talks. Whereas there was a sense of need to express support for the peacemaking efforts, this delay seems to have been due to waning interest, agenda workload (particularly regarding the DRC and Darfur), and concern from some members with risk that the talks could lead to proposals for impunity for the LRA. The statement included key language on the need for the LRA to release captive women and children, on the need for justice and accountability, and for improvements in the living conditions of civilians in northern Uganda.
A limited measure of reporting to the Council on the peacemaking efforts was established with the appointment of Joaquim Chissano as UN special envoy to the talks in November 2006. Until then, briefings by Egeland had been the only real tool for keeping the issue alive. Chissano’s mandate, however, was couched in cautious terms, limited to regional aspects and a facilitation role, due to the government’s position vis-à-vis involvement in the situation in northern Uganda.
In 2008, agreement was reached on the elements of a peace agreement, including a domestic judicial mechanism to replace the ICC. But LRA leader Joseph Kony has refused to sign it, demanding that ICC warrants be dropped first. The LRA returned to active predation against civilians in the CAR, the DRC and southern Sudan—but at lower levels than in the past.
The Council has not taken a position on LRA-related developments in 2007 and 2008. Members have preferred to receive irregular briefings from Chissano although there has been support for the provision of more resources to his office. Some members, especially the UK, keep pressing for clearer support from the Council.
The Council became involved in the unfolding crisis in Kenya when it invited Under Secretary-General for Political Affairs B. Lynn Pascoe to give a briefing on 30 January 2008. Kenya had plunged into a political, security and humanitarian crisis following the 27 December 2007 elections. An estimated 600,000 people were displaced in weeks as numerous reports of abuses against civilians emerged, including arbitrary killings, rape and arson.
Reports of increasing militia violence against civilians and widespread displacement led to international outcry and fears of large-scale ethnically-motivated killings. Strong, concerted diplomatic pressure for a settlement quickly started, including by the AU, the US, the UK and the EU. Peacemaking efforts were mandated by the AU under the leadership of former Secretary-General Kofi Annan.
The Council adopted a press statement following Pascoe’s briefing. On 6 February it went further and adopted a formal presidential statement supporting the mechanisms efforts and applying pressure on the parties to reach an agreement. Members also agreed on the inclusion of language on justice and accountability as a deterrent to the violence. Direct reference to fact-finding missions by the High Commissioner for Human Rights and the Secretary-General’s Special Adviser for the Prevention of Genocide were included and the Council requested further Secretariat reporting on Kenya.
There seems to have been a strong sense of need for quick and decisive preventative action given the potential for widespread violence against civilians. Consensus on the value of Council involvement was easily gained because of the strong support from the region and the mediation team. The issue, however, was placed under agenda item “Peace and Security in Africa” largely because of concern from the Kenyan government with the country being specifically mentioned as an agenda item.
A further briefing followed on 25 February by Under Secretary-General for Humanitarian Affairs John Holmes and another briefing on the political situation on 5 March, after the signing of a peace agreement in Nairobi on 28 February. On that occasion, some members, including Belgium, France and the UK, reiterated the request for a Secretary-General’s report, which so far is still due. Following the relative calm after the 28 February agreement, members seem to have coalesced around a wait-and-see approach.
The sequence of Council involvement, in coordination with regional and international efforts, seems to have played a role in pressuring the parties to reach an agreement. This was also assisted by a strong perception of Council unity and determination to work to prevent widespread violence against civilians.
The degree of Council unity on Kenya was not seen in the case of Zimbabwe. A combination of regional dynamics, strong government resistance and divisions among Council members meant that despite an outbreak of post-election violence against civilians, Council action went no further than keeping the issue alive on the Council’s agenda.
The Council had previously focused on Zimbabwe in the early 1960s following Ian Smith’s racist regime’s unilateral declaration of independence in Southern Rhodesia. Facing mounting pressure from the wider membership, especially African states, the UK dropped its ambivalence and agreed that the Council should take up the issue. This led to a decision to impose sanctions in resolution 232 of 16 December 1966. The resolution, however, seemingly came too late to allay resentment within the continent and perceptions of Western ambivalence towards racist regimes in southern Africa.
After years of guerrilla war, the country became independent from the UK as Zimbabwe. In 1980 Robert Mugabe’s ZANU party achieved a landslide victory in the first nation-wide elections. Years of one-party rule went by until the opposition Movement for Democratic Change (MDC) emerged in 1999 in opposition to the government and the increasing economic chaos in the country. The spiralling crisis led to increasing pressure, particularly from the UK, the EU and the US (which imposed various unilateral sanctions). Mediation attempts were initiated by South Africa and the Southern Africa Development Community (SADC).
In May 2005 Mugabe launched “Operation Murambatsvina,” employing the government forces against civilians in a programme of evictions and demolitions of housing throughout Zimbabwe’s urban areas. Of the population of approximately 12.7 million people, the UN estimated that the operation had rendered 570,000 people homeless, deprived 98,000 people of their direct livelihood and directly or indirectly affected 2.4 million civilians. The worsening situation led to high-level UN involvement on the issue. This included the appointment of a UN special envoy for a fact-finding mission, which resulted in a report that noted the Zimbabwean government’s “indifference to human suffering” and disregard of “several provisions of national and international legal frameworks.”
On 25 July 2005 the Council convened an official private meeting under rule 48 of the Provisional Rules of Procedure to hear a briefing from the special envoy. The meeting was held in this format because of the opposition by some to a briefing by the special envoy in informal consultations. (Briefings in informal consultations require the agreement of all 15 members whereas a formal meeting can be convened under the Provisional Rules of Procedure by adoption of the agenda by majority vote—which is what ensued on 25 July 2005. Permanent members enjoy no veto on procedural matters.) Various understandings had been reached in advance—in particular that the Ambassador of Zimbabwe would be invited to participate and that the meeting would be in private. Brazil abstained and China, Russia, Tanzania, Benin and Algeria opposed the briefing. These members argued that the humanitarian crisis was a domestic matter or at least one in which the nature of the problem had not yet become a threat to international peace and security. A majority of the Council considered that the humanitarian crisis justified Council involvement under the Charter and hearing the recommendations of the special envoy.
Despite continuing Secretariat engagement at the political level, divisions among members meant that Council consideration of Zimbabwe remained frozen until April 2008. But growing instability following the March presidential and parliamentary elections, marked by opposition and international charges of election rigging led to intensified pressure for further Council discussion. MDC candidate Morgan Tsvangirai pulled out of the second round of presidential elections citing government-sponsored intimidation and violence; Mugabe was declared winner in June.
During a high-level debate on Africa on 16 April 2008 eight Council members (Belgium, Costa Rica, Croatia, France, Italy, Panama, UK and US) expressed concern about the situation in Zimbabwe.
In light of the violence at the time of the elections, it seems that a change of position occurred. Opposition to the Council discussing Zimbabwe faded, and wider agreement seemed to exist that prevention of further violence against civilians justified limited Council involvement to provide support for regional mediation.
This change led to a number of Secretariat briefings in April. A presidential statement was adopted in June, calling on Zimbabwe’s government to stop the violence, political intimidation and restrictions on the right of assembly, release detained political leaders and cooperate with all efforts aimed at finding a peaceful solution.
But this limited consensus came to a halt when a draft resolution imposing an arms embargo as well as targeted sanctions against key government figures was circulated. The draft, sponsored by Belgium, Croatia, France, Italy, Netherlands, UK and US was rejected on 11 July because of the negative votes of permanent members China and Russia. Libya, South Africa and Vietnam also voted against, Indonesia abstained. These members continued to prefer low-key Council engagement in support of regional initiatives. Burkina Faso was the only African member to vote in favour.
This debate in July exposed the limits of renewed Council engagement and the divisions inside the Council on what role it could play in the crisis. The net result has been that international action is primarily been focused on regional initiatives and bilateral pressure.
Following the 2003 invasion of Iraq, that country became one of the world’s fastest growing civilian protection emergencies alongside Somalia and Darfur. The ensuing widespread and brutal sectarian violence directed against civilians—especially since February 2006—resulted in over 2.2 million Iraqi civilians being internally displaced as of December 2007. Despite the relative stability brought to parts of Iraq, in 2008 the number of internally displaced persons (IDPs) reportedly remains at 2.8 million.
A May 2007 UN humanitarian briefing noted that Iraqi civilians lived in “continual fear” due to violence perpetrated by “armed groups, criminal gangs, religious extremists, militias, as well as operations by security and military forces.” As a result of insecurity, widespread poverty and unemployment, by then half of the Iraqi population was estimated to be dependent on food rations.
Syria and Jordan alone absorbed another 2 million Iraqi refugees, often without adequate infrastructure, resources or employment opportunities for hundreds of thousands of uprooted Iraqi civilians.
The situation of civilians in Iraq continues to be grave. Extrajudicial executions, random bombings of civilian targets and targeted killings remain common, although somewhat diminished from the peak months. Periodic human rights reports by the UN Assistance Mission (UNAMI) have chronicled the situation. (Those reports, however, initially published every two to three months, have become less frequent and published with considerable delay. The most recent covered the period from June to December 2007.)
Council attention to civilian protection has been limited and ambivalent at best. The deep controversy surrounding the 2003 invasion meant that there was strong domestic political pressure within the US and reluctance to acknowledge the extent of the humanitarian crisis more widely. Even among those who had opposed the US action in Iraq, there was an overriding concern for supporting the Iraqi government. This meant that many concerns about protection responsibilities for civilians were not publicly aired nor taken up by the Council. Effective dialogue and coordination with Syria on the refugee issue was severely affected by the constraints in US-Syrian relations and the dynamics surrounding crises elsewhere, in particular Israel-Palestine and Lebanon.
As a result, UN and NGO responses to the plight of civilians faced numerous challenges, from lack of resources to poor coordination. Most humanitarian organisations face huge security constraints and as such operate from neighbouring countries, particularly Jordan. Moreover, the August 2003 attack against UN staff in Baghdad resulted in the UN putting safety concerns first, which would hinder staff mobility in the field. Those concerns also led to reluctance in increasing the UN’s role in Iraq, particularly that of UNAMI.
These dynamics were also reflected in the Council. Many of the key messages included in presidential statements and resolutions on Iraq focused on “acts of terrorism”, the need for a political settlement, the future of the US-led coalition (MNF-I) and strengthening the UN’s role. Broader linkages and the impact of the violence on the civilian population played a minor part and were often absent.
Protection of civilians has therefore not been one of the main thrusts of the Council’s involvement in Iraq. This is despite the fact that the extent of the impact on civilians has been similar to that in Darfur and Somalia’s, where the Council’s involvement has included a much more focused protection lens. Such issues in Iraq, often appeared only in references in members’ interventions during open debates and briefings. It was not until August 2007 that the Council expressed concern for the humanitarian situation and decided to strengthen UNAMI’s mandate on humanitarian coordination in resolution 1770. Follow-up action was limited to reiterating this concern in resolution 1830, which renewed UNAMI.
Even those members most sympathetic to the plight of Iraqi civilians seem hesitant about making formal proposals for Council action during the two regular occasions when the Council regularly acts on Iraq: namely, when it renews UNAMI and the MNF-I. No doubt all are conscious that a more detailed discussion of protection needs would entail a closer look at the performance of the MNF-I and the government, and most delegates seem reluctant to go there, thus preferring a low-key approach.
Moreover, resentment at US attitudes before and after the invasion may have led some in the Council to treat Iraq as a “US problem”, and to prefer a focus on the issue of troop withdrawals. Some members appear to perceive any strengthening of international—and UN—action in Iraq as unduly favouring and encouraging US policies.
Beyond the country-specific prism, the situation in Iraq seems to have had negative implications on the whole protection debate. Previously, in the early 1990s, the US-UK intervention in northern Iraq for stated humanitarian reasons, had led to huge divisions, controversy and cynicism especially among the Non-Aligned Movement, Russia and China and this was reinforced in 2003 when humanitarian factors were again invoked as one of the justifications for the invasion.
The inclusion of humanitarian concerns on the list of US justifications for the invasion seems to have been particularly negative for the image of protection issues among the wider UN membership. The subsequent wave of sectarian violence, abuse against civilians and perceptions of lack of interest in the plight of civilian Iraqis also appears to have strengthened a perception of double-standards. Increasingly protection issues are seen by some not as a neutral and universal concern, but as a politicised issue. If this situation continues it could have serious consequences not only for the Council and UN humanitarian actors in protection mandates, but also for the broader humanitarian sector, including organisations independent of the UN.
The Council’s involvement on Timor-Leste issues contained a number of innovative and ground-breaking approaches, often with a strong focus on protection of civilians. The conflict in that country culminated, after the 1999 referendum results, in atrocities against civilians and forced relocation or “cleansing” that impacted over 60 percent of the total civilian population. About 63 percent of the population were displaced and 85 percent of all buildings burned.
In response to this widespread crisis for civilians in September 1999, the Council authorised a multinational force (INTERFET), under Chapter VII in resolution 1264. The force was mandated to “restore peace and security in East Timor… and, within force capabilities, to facilitate humanitarian assistance operations.” (It is particularly significant to note that this resolution was adopted only two days before resolution 1265, and so clearly Council members had in mind the wider context of civilian protection.)
The turmoil had begun with a referendum on autonomy or independence from Indonesia. Evidence indicates that previous abuse against civilians had been perpetrated by both pro-autonomy militias and Indonesian armed forces.
Prior consent for the intervention was given by both Indonesia and Portugal, of which East Timor was formally still a colony. Another key factor was the support by regional players Australia and New Zealand and the early planning conducted by the Secretariat in case the Timorese voted for independence.
INTERFET was followed by the UN’s most comprehensive transitional administration, UNTAET, in October 1999. Part peacekeeping operation, part the barebones of a future Timorese state, UNTAET too was conferred with protection-related mandates, to “provide security and maintain law and order throughout the territory of East Timor”, “assist in the development of civil and social services”, and “ensure the coordination and delivery of humanitarian assistance, rehabilitation and development assistance”. UNTAET had three main components, namely military; governance and public administration; and humanitarian assistance and emergency rehabilitation. Both the peacekeeping mission in Sierra Leone (UNAMSIL) and UNTAET represented a major Council return to large-scale, robust peacekeeping since the failures in Somalia and Bosnia. It was also a multidimensional operation, managing protection-related activities in emergency relief, returns, justice and accountability, and law enforcement.
Justice and accountability issues, managed by both the UNTAET-led serious crimes processes and UNDP’s community-reconciliation programme, were eventually sidestepped following Timor-Leste’s independence. There were concerns from the nascent Timorese government with keeping good relations with Indonesia and related sympathy in the Council.
However, it soon became clear that the UN had overestimated its success in dealing with protection-related issues, especially the reintegration of former combatants. Violence and instability returned to Timor-Leste in 2006.
The violence in 2006 largely reflected the fissures within the Timorese political leadership and the politicisation of security forces. It again resulted in a huge impact on civilians involving the displacement of about 100,000 Timorese civilians, or 10 percent of the population. The Council was caught by surprise. It had been pursuing a policy of progressive disengagement from Timor as the country became independent. UNTAET had given way to residual UN presences, UNMISET and its follow-up UNOTIL.
The Council recognised the mistake and responded to the violence by supporting in a presidential statement the deployment of a regional force assembled at the request of the Timorese government in May 2006. It followed up with the deployment of one of the largest UN civilian police missions, UNMIT, in August 2006.
It seems clear that the Council had lost focus on Timor and the ongoing risks to civilians. The lingering tensions in the lead-up to the 2006 violence seem to have been underestimated in both the Council and the Secretariat. Pressure to reduce the UN’s peacekeeping and political presence had taken a life of its own and the risks to the civilians from a premature withdrawal seem to have been given little weight in Council discussions until 2006. Today the situation remains in balance.
The return of 100,000 displaced civilians is still uncertain. There is moreover lack of resources and capacity within UNMIT. Resource and capacity problems recently evidenced in a policing report were not new, and this seems to indicate that the Council has not learned some of the lessons that led it to create UNMIT in the first place. This is further signalled by some members’ continuing pressure for medium-term benchmarks and a plan for force reductions. And, compounding the problem, the mission does not have meaningful and sustained Council oversight.
The Council also seems to have largely deferred to key regional and international players in the Core Group as the main venue for discussions on Timor, or otherwise to players’ bilateral negotiations with the Timorese government.
The Somalia crisis in the early 1990s led to a civilian protection-inspired international intervention. This intervention began with a US-led coalition followed by a UN operation. Its failure resulted in a situation in which, for at least ten years, the Council adopted a hands-off approach to the issue, essentially ignoring the ongoing civilian protection crisis. However, despite evidence of a growing crisis for the civilian population, it was a “terrorism” driver as opposed to a “protection” driver that stimulated renewed Council interest.
As a result of conflict, there are now 3.25 million Somalis in need of humanitarian assistance, or 43 percent of the population, including 1.15 million IDPs.
From the late 1990s until 2006, mediation had been left to the Intergovernmental Authority on Development (IGAD) and the AU. As a result of their efforts, an agreement was signed by certain Somali clan factions paving the way for the establishment of the Transitional Federal Institutions (TFIs), including a transitional government (TFG) and parliament (TFP) in 2004. Planning for a peacekeeping operation by IGAD and the AU in support of the agreement also began.
The Council welcomed the progress, but continued its cautious approach, reiterating its expectation of “the establishment of a broad-based, all inclusive and effective government inside Somalia that will continue the reconciliation efforts with all Somali parties” (presidential statement 2004/43 of 19 November 2004). The civilian protection dimension remained absent.
From the outset the TFIs were plagued by fragmentation and contested legitimacy. Some factions in Somalia were aligned with either Ethiopia or Eritrea and to some extent reflected the dangerous regional dynamics fuelled by the border standoff between the two countries. The TFG in particular, under Darod clan leadership, was seen as an Ethiopian ally by its bitter enemy, the Mogadishu-based Hawiye clan.
The emergence of the Union of Islamic Courts (UIC) and the reported connections of some of its members with terrorist organisations increased the anxiety of Ethiopia about potential UIC expansionism into its Ogaden region, and also attracted concerns from the US.
As the UIC’s territorial control grew in late 2006, the Council came under pressure to take sides and support the TFG and facilitate the deployment of the IGAD/AU force, whose prospective role seemed to progressively become one of enforcement. But the lack of feasibility of the IGAD/AU plan, in particular given the lack of resources, capacity and a credible strategy, meant that the Council was stuck with options that would not address the real problem. Some acknowledged this and favoured meaningful, neutral pressure for inclusive TFG-UIC reconciliation albeit without the most extremist UIC elements.
The Council seemed hesitant and divided about how to even start to address the problem. A definite shift towards supporting the TFG came when the UIC achieved dominance in Mogadishu and the tipping point came as UIC forces surrounded the TFG’s sole outpost in Baidoa. In response, the Council endorsed the deployment of an IGAD force in resolution 1725 in December 2006, but an examination of the resolution and the political context show that concern about civilian protection was not a driving factor.
Ethiopia decided to intervene a few days later and it acted without Council authorisation. Its forces, combined with the TFG’s, pushed back the UIC and on 28 December Mogadishu was retaken. The Council followed with an authorisation for an AU force, AMISOM, in February 2007, in the expectation that the Ethiopian presence would provide sufficient security for the TFG to move on to inclusive political reconciliation.
But the TFG failed to organise a credible national dialogue, and to prevent the quick resurgence and hardening of UIC capability. A deadlier insurgency emerged that Ethiopian troops were unable to control. Fears of AMISOM’s strategic and capacity shortcomings materialised, and potential troop contributors hesitated. Soon, all sides were being accused of committing atrocities against the civilian population. Humanitarians and journalists were also targets.
Despite recent mediation efforts by the Secretary-General’s Special Representative, Ahmedou Ould-Abdallah, the situation has not improved. An agreement recently signed between the TFG and UIC remnants seems ineffective. The bulk of the insurgency continues in the hands of the al-Shabaab militia and the Asmara-based opposition.
Despite the progressive deterioration of conditions for civilians in Somalia, the Council remained uncertain about strategy. But one thing was clear: civilian protection was never at the core of its concern unlike in 1991. Options such as credibly strengthening the widely violated sanctions regime with a protection outlook were not seriously considered despite warnings and recommendations from the sanctions Monitoring Group.
Some members—including the US and Italy—strongly supported the position of African members for the transition of AMISOM to a UN operation to support the TFG against UIC remnants. But deep scepticism remained among other members, who seemed convinced that peacekeeping was not possible in a war fighting situation and especially not in the absence of a sustainable political process. The setbacks faced by AMISOM have reinforced this view. The Secretary-General indicated clearly that the existing situation required enforcement, and that this was best served by a multinational coalition force.
This option is now being considered more closely, but there seems to be no signs that it will materialise in the near future. No lead nation has come forward. Members have little or no knowledge of the precise activities of AMISOM and Ethiopian troops. AU-Security Council coordination remains poor. The US and European members remain reluctant to consider a UN financial package for AMISOM along lines requested by the AU.
In addition to oversight, coordination and accountability problems, the case of Somalia also presents perhaps one of the most difficult challenges in terms of civilian protection: namely, the huge gap when there is no peace to keep, yet no willingness among member states to launch a multinational force.
The Council began to address the conflict in Darfur in early 2004 under strong pressure from the Secretary-General and civil society. The first step was to hear a briefing by Under Secretary-General for Humanitarian Affairs Jan Egeland in April 2004. By then, there were already one million IDPs and many reports of large scale atrocities against civilians, primarily committed by government forces or Janjaweed militia. The Council adopted a press statement expressing “deep concern about the massive humanitarian crisis” and calling on the parties to cooperate.
Mediation initiatives were undertaken under the auspices of Chad and the AU, and support from the US, the EU and the UN. A humanitarian ceasefire agreement was signed in April 2004, to be monitored by an AU peacekeeping operation (AMIS). Following strong advocacy from the Secretary-General and NGOs, the UN and Khartoum signed a joint communiqué in which the government pledged to lift all restrictions on humanitarian access, bring to justice those responsible for human rights abuses, disarm the Janjaweed, protect IDPs from further attacks and resume peace talks with the rebels. Humanitarian access appears to have increased considerably as a result of the initiatives.
In this first phase of Council involvement, which lasted until 2005, members adopted a cautious approach. They were wary of the possible risk that activism on Darfur might derail the very sensitive peace process also under way in Sudan to bring to an end the north-south civil war, which had also inflicted huge casualties on the civilian population. Accordingly, the Council adopted primarily a strategy of delegation to regional efforts, yet retaining a residual concern about peacemaking initiatives and about persuading the government to stop abuse against civilians.
Some of the tools used in this first stage include:
requesting regular Secretariat reporting on the humanitarian and human rights situation;
increasing political pressure, particularly when it became clear that all parties were violating the ceasefire and that the government had not met its obligations under the joint communiqué. Resolution 1556, in particular, demanded that the government “fulfil its commitments to disarm the Janjaweed…and bring to justice Janjaweed leaders [responsible for] atrocities”, threatening sanctions in the event of non-compliance;
establishing fact-finding missions, most notably the International Commission of Inquiry requested in resolution 1564 to investigate reports of IHL violations by all parties, determine whether or not acts of genocide had occurred, and identify perpetrators;
referring the situation in Darfur to the ICC in resolution 1593.
But there were also divisions among members. This is exemplified by the fact that China, Russia, Pakistan and Algeria abstained in the adoption of resolution 1564, in what would soon emerge as a pattern in the Council. Similar voting patterns occurred in the adoption of resolutions 1591 on sanctions (abstentions from China, Russia and Algeria) and 1593 on the ICC referral (abstentions from China, Algeria, and, for reasons not connected with Darfur, Brazil and the US).
At the root was a strong difference of views on how to proceed, particularly with China, Russia, North African and some other NAM members expressing some understanding for the position of the Sudanese government and concern about the total disintegration of the country and favouring quiet diplomacy in support of regional initiatives. The US, the UK, France, Latin American and a few African members preferred a more urgent approach with a stronger focus on the civilian protection dimension and real pressure on the parties, especially the government.
By late 2005, it became clear that the situation in Darfur was once again spiralling out of control. AMIS was severely outnumbered and under-resourced, the ceasefire was ineffective, the AU’s Abuja peacemaking process was stagnant and attacks against civilians increased at a pace not seen since 2004.
This marked a second stage in the Council’s involvement, where the US, the UK, France and others began to push for direct Council and UN involvement. This was primarily through a transition from AMIS to a UN operation in support of the anticipated outcome from the Abuja process. This option, however, faced considerable opposition from Khartoum and those Council members sympathetic to the government’s position. Moreover, the Abuja process culminated in May 2005 with an agreement that the major rebel movements refused to sign.
What followed proved to be a string of unprecedented developments in Council history. It was the first time since Somalia and the former Yugoslavia in the 1990s that the Council was seriously considering approving a robust operation with a primary protection mandate to be deployed in the midst of conflict, without the consent of the host government and without a political process in place.
After considerable US and UK advocacy, in August 2006 the Council adopted resolution 1706, mandating transition from AMIS to robust UN peacekeeping in Darfur despite the challenging context.
The resolution also marked the first recognition of the regional dimensions to the conflict, including the spill-over effect into Chad and the Central African Republic. This was nonetheless a limited step that failed to recognise the important and interconnected dynamics of the conflict in Chad itself, in that both Chad and Sudan were supporting each other’s rebels and that civilians needed protection on both sides of the border.
Under pressure from China and others the resolution invited the government’s consent. However, that provision was scarcely credible in light of the strong opposition from Khartoum and divisions among members. Before long it was clear that a transition from AMIS to UN peacekeeping on these terms was impracticable and that resolution 1706 was a dead letter.
But shifting military realities (in particular Khartoum’s failure to achieve success on the battlefield) and bilateral pressure on Sudan from China and the AU and from global public opinion about protection needs brought a change in position. From this emerged an unprecedented agreement based on a partnership between the UN and a regional organisation.
On 18 November 2006, it was agreed that UN assessed funding would be used to support of AMIS as part of a stepped transition, culminating in a hybrid operation. On the political side, an equally central development in terms of eventually unlocking Khartoum was the pledge to revive the peace process. The agreement, however, was never really pinned down.
Over the following months none of the issues in the Council’s four-pronged approach to Darfur—improving security and fully deploying the robust UN-AU hybrid operation (UNAMID) so as to implement the protection mandate, re-energising the peace talks, the regional dimension, and the ICC issue—made substantial progress. The civilian protection situation deteriorated. (Civilians in Darfur affected by the conflict rose to 4.5 million, an all-time high, and the number of internally displaced increased to about 2.5 million.) Peacemaking efforts in Darfur and Chad failed to yield tangible results, and Sudan continued to reject cooperation with the ICC. Both Sudan and Chad reportedly continued to aid each other’s rebels, and armed groups attacked N’Djamena in February and the outskirts of Khartoum in May 2008.
Aware of the divisions in the Council, Khartoum continued to frustrate deployment of the hybrid operation. The AU’s position also began to evolve, in that the dominant consideration became to preserve as much as possible of its leadership in the post-AMIS environment, even at the cost of clarity and effectiveness on the hybrid operations command-and-control design. UNAMID’s deployment has to date made only limited progress, with huge troop and asset shortages, logistical challenges and limited cooperation from Khartoum.
As a result, Darfur has continued to be one of the most active issues in the Council’s agenda, but divisions in the Council steadily hardened and have become even more prominent. It seems that the scope for moderation and compromise in the Council on Darfur have decreased over time. Members have frequently had to resort to a lowest common denominator, meaning that no significant practical proposals could emerge.
The US, the UK, and France, with strong support from European and Latin American elected members, continue to see civilian protection as a key requirement, as well as a pattern of government obstruction and flouting of responsibilities on civilian protection and humanitarian assistance as the biggest problem. Their primary response was to present a number of proposals to ratchet up pressure on Khartoum, including sanctions and benchmarks for cooperation.
China, Russia, South Africa, Republic of Congo, Indonesia, Qatar and Libya have resisted proposals that would imply criticism against or threaten Khartoum, refer to human rights, or strengthen the arms embargo and the flight ban. They emphasised that UNAMID issues are best resolved through direct Secretariat cooperation with the government, and prefer to focus on the lack of sufficient (Western) asset contributions to UNAMID as well as on the peace talks and pressure on the rebels to come to the negotiating table.
Nowhere was this clearer than on justice and accountability issues. The 14 July 2008 request for an arrest warrant against Sudanese President Omar al-Bashir to be brought before the ICC led to strong reaction from African and Arab members (backed by China, Russia, Indonesia and Vietnam) who demanded a Council-mandated suspension of ICC proceedings. This activism also took a wider dimension as a number of member states within the Non-Aligned Movement (NAM), the Arab League and the Organisation of the Islamic Conference took a public stand in support of the suspension.
The lack of compromise in the Council on Darfur issues has also meant that real negotiation on substantive measures is increasingly done outside the Council. This may mean that the Council could lose control over direction or outcomes. UNAMID issues, for example, are largely dealt with by the Secretariat or the “Friends”, without Council direction or significant involvement. Regarding the regional situation, the Council seems to be deferring to regional initiatives and limiting itself to authorising the peacekeeping missions in Chad and Darfur.
The implications for civilians from the current dynamics on Sudan seem huge. Allegations of serious and persistent violations of IHL continue. This is complicated by serious security problems for humanitarian actors on the ground, making protection of the civilian population extremely difficult. It is unclear whether members will be able to muster sufficient unity to move forward with improving civilian protection. In a wider context, Darfur issues seem symptomatic of broader divisions in the Council and the wider membership on the shape and future of UN action on protection of civilians.
h. Democratic Republic of the Congo
Over the past 14 years, the DRC has experienced continuous instability and a civil war that took an extremely heavy toll on the civilian population. The numbers are vast: from the spill-over from the Rwandan genocide in 1994, to the 1996-1998 and the 1998-2003 civil wars and the ensuing political transitions, millions of civilians died of conflict-related causes and hundreds of thousands of others were displaced. The second civil war alone is estimated to have led to the death of between 3.3 and 5.4 million civilians, which ranks it as the world’s deadliest conflict since World War II. The war involved dozens of rebel groups—both Congolese and foreign, including Rwandan génocidaires, the LRA and the Angolan UNITA—in addition to other African countries: Rwanda, Uganda, Burundi, Sudan, Angola, Zimbabwe, Chad and Namibia.
Today, the DRC continues to face instability in its eastern provinces and resulting abuse against the civilian population. The primary causes are the recalcitrant foreign and Congolese militias (in particular the Rwandan Forces démocratiques de libération du Rwanda, or FDLR, the LRA and General Laurent Nkunda’s forces), the resulting controversial relations between the DRC and Rwanda/Uganda, and the lack of discipline and integration within the government’s security forces. Currently, there are about 1.5 million Congolese internally displaced, plus 300,000 Congolese refugees living in Tanzania, Uganda and other eastern neighbouring countries.
The Council’s involvement in the DRC (then called Zaire) began in 1995 as a result of the Rwandan and Burundian crises. Gross violations of IHL and attacks against the civilian population have been a key aspect throughout. In its first presidential statement on the Congolese civil war (1996/44) the Council expressed grave concern at the “effect which the continued fighting is having on the inhabitants of the region”, while condemning “all acts of violence”. From the beginning, the importance of continuous reporting from the Secretary-General, the High Commissioner for Refugees and UN human rights mechanisms has been a key factor—something that is identified in that statement.
Three main phases in the Council’s involvement regarding the DRC can be identified.
The first, stretching from 1995 to 1998, covers the first civil war to oust President Mobutu Sese Seko and the beginning of spill over of problems from neighbouring countries, initially Rwanda. It was clear that the Rwandan génocidaires were regrouping and rearming in refugee camps in the DRC. Council action was nonetheless very limited. There were concerns, in particular from the US, about the potential costs of involvement in such a complex situation.
Substantial action was left to subregional and bilateral initiatives, mainly under the aegis of the Organisation of African Unity with active support from the UN Secretariat. The Council—as in Sierra Leone and Liberia—limited itself to marginal political support, pressure for a negotiated solution and monitoring/fact-finding of large-scale atrocities.
The only exception to this pattern was a multinational force authorised by the Council in resolution 1080 (1996) to facilitate aid delivery and civilian returns in the face of mounting public pressure. The mission, however, was never deployed, since the return of large groups of Rwandan Hutu civilians as of late 1996 suggested conditions had improved on the ground. There were, however, huge concerns and criticism about the international community’s failure to avoid mass killings of Rwandan civilians, both Hutu and Tutsi, in the aftermath of the genocide.
The same pattern was repeated in the second phase, from 1998 to 2002, covering the second civil war. Following the rise of former rebel leader Laurent Kabila as Congolese president, relations between the DRC and former allies Rwanda and Uganda began to sour. Angola, Zimbabwe, Namibia, Chad and Sudan intervened on behalf of the government, and numerous militias aligned with either side emerged. The catastrophic ensuing violence was only contained after the Lusaka Ceasefire Agreement in 1999. This was primarily a subregional initiative aided by international (and Council) pressure. The agreement called for a robust UN operation established under Chapter VII. (This was in part due to lack of regional peacekeeping capacity.)
As a result, the level and intensity of Council involvement markedly increased. As an example, from 2000 onwards the Council made it a practice of visiting the region annually. During these years, the Council’s involvement had a strong protection dimension. But the touchstone of its strategy and the focus of resources was keeping the political process on track, countering peace spoilers and extending state authority.
The Council’s initial peacekeeping response was more modest than expected in the region. It only authorised ninety military observers in resolution 1258.
In the following months, the Council went further and established the UN Organisation Mission in the Congo (MONUC) with additional 500 observers in resolution 1279, further expanding it to 5,537 military personnel in resolution 1291. It also provided MONUC with a protection mandate under Chapter VII, in addition to human rights monitoring and aid facilitation.
The mission’s military strength, however, was well below the requirements of a robust operation, which contributed to frustration and false expectations regarding MONUC. (It is important to note that the UN was at the same time deploying large operations in Timor-Leste and Sierra Leone and its capacity was stretched well beyond reasonable limits.) Members undoubtedly also had in mind resolution 1265 on protection of civilians. But three factors seem to have strongly influenced MONUC’s difficult beginning: the concerns of cost-conscious Council members, especially the US; Kabila’s opposition to the deployment of troops from developed nations; and lingering doubts about the feasibility of peacekeeping in the DRC. As Victoria Holt notes,
“[d]uring its early phases, the mission was designed and structured as an observer force. UN forces were not initially recruited with an expectation that they would intervene to defend civilians. Indeed, UN peacekeepers faced obstacles in supporting the political peace, let alone providing support to humanitarian assistance or improving security for civilians. MONUC forces were not deployed in large numbers, nor were they adequately mobile.”
The Council’s involvement in this second phase also included three other tools with important protection-related aspects:
Council visits to the region to assess progress on the political, security and humanitarian fronts; and
increasing attention to the connection between natural resources and conflict, as exemplified in the expert panel called for in presidential statement 2000/20; and
continuing monitoring of large-scale atrocities, as per the report of the joint fact-finding mission on the situation in Kisangani presented to the Council by the High Commissioner for Human Rights in July 2002.
The third phase in the Council’s DRC involvement starts in late 2002, with increasing concern about (i) progress with political reconciliation in the transitional phase and elections; and (ii) massive violence and abuse against the civilian population in eastern DRC; the violence primarily was due to the unresolved situation of foreign militias as well as Uganda and Rwanda-backed Congolese groups.
In this context, frequent and important tools for Council action were the fact-finding missions and reporting on IHL violations by the High Commissioner for Human Rights and MONUC. The Council also continued with the practice of annual visiting missions to the region.
This renewed concern was reflected in resolution 1468 (2003), which contained strong language against IHL violations, including a call on Congolese parties to take into account the “commitment and record” of individuals considered for government posts. It further strengthened MONUC’s human rights and IHL monitoring.
At the same time, however, the Council held back from taking action in response to the findings of the expert panel on natural resources, as exemplified in resolution 1457 (2003).
Despite the growing concern about IHL violations and the need for civilian protection, the main focus of the Council continued to be how best to extend state authority, facilitate Ugandan/Rwandan/Angolan withdrawal and counter peace spoilers. Despite MONUC’s protection mandate, this political context and the lack of resources meant that the mission’s initial focus would be on monitoring, demobilisation, supporting security-sector reform and action against recalcitrant militias, with a smaller role in physical protection.
Moreover, divisions within the Council on cost meant that any revision of MONUC’s size and mandate was contentious, particularly between the US and France. As a result, MONUC’s progressive adaptation to the Congolese context in terms of mandate and increased size (perhaps also as a reflection of the wider surge in UN peacekeeping in the early 2000s) was painfully slow. Only in late 2002 did the Council agree to increase MONUC’s troop ceiling to 8,700, in resolution 1445.
Two watershed moments, however, were key in changing Council attitudes:
the deterioration of conditions in the Ituri region in mid-2003 and ensuing gross violations of IHL; and
the crisis in Bukavu, a city in eastern DRC, equally marked by widespread violence against civilians.
In both cases, MONUC was severely unprepared and under-resourced to deal with the large-scale violence, despite its physical protection mandate under Chapter VII. Troop-generation difficulties meant that the ceiling increases mandated in resolution 1445 had not materialised by the time of the Ituri crisis. South Africa reportedly did not consent to its troops being redeployed to Ituri, while Uruguay consented only to static guard duty despite MONUC’s protection mandate in resolution 1291 and the corresponding rules of engagement.
As a result, the Council agreed to authorise in May 2003 an EU force (the Interim Emergency Multinational Force, or IEMF, also known as Operation Artemis) to quell the crisis in the city of Bunia. The mission, by its own limited nature, attracted criticism from civil society for failing to offer a credible solution to the violence.
Under intense pressure for a handover from the IEMF, the Council quickly authorised an increase in MONUC’s strength to 10,800 in resolution 1493. It also divided MONUC’s mandate by creating a more explicit authorisation to use force in Ituri, as opposed to a more general, “as it deems within its capabilities” type for the rest of the country. This was added to broader responsibilities on rule of law, security-sector reform, election preparation and monitoring of the arms embargo. The resolution further established a limited arms embargo.
A year later, the crisis in Bukavu once again highlighted MONUC’s shortcomings in the face of unrelenting instability in a country of such a massive size. The Secretary-General then reported (S/2004/650) that violent demonstrations were staged in the DRC, complaining of MONUC not using its Chapter VII mandate. He also noted,
“The interpretation of Security Council resolution 1493 (2003) has been a major challenge for MONUC over the past year… The establishment of the peacekeeping mandate of MONUC under Chapter VII of the Charter of the United Nations has raised expectations that the Mission will enforce the peace throughout the country. However, there is a wide gap between such expectations and the Mission’s capacity to fulfil them. At the same time, the lack of specificity as to its tasks under resolution 1493 (2003) does not lend itself to the most effective use of the resources provided to the Mission.”
He then presented recommendations on the specific tasks MONUC could undertake from then on, in particular principles surrounding MONUC military deployments. He said that
“MONUC cannot assume responsibility for the maintenance of law and order in the Democratic Republic of the Congo… should the Security Council provide a mandate, under Chapter VII of the Charter, for MONUC to assist in the creation of stability in areas other than Ituri, the conditions under which MONUC should use force to deter dissident elements from using violence to derail the political process must be clearly defined.”
The Secretary-General proposed that MONUC’s forces be strengthened and made more robust, with a focus on Ituri, the eastern Kivu provinces, Katanga and the Kasais, and Kinshasa. He also proposed improvements in force enablers and command and control, totalling additional 13,100 military and 500 police personnel.
The Council responded by strengthening MONUC’s physical protection mandate with all necessary means in the whole of the DRC, in resolution 1565 (2004). The personnel increase, however, was limited to 5,900.
The same response was repeated in 2005, when the Secretary-General, in his special report on the upcoming Congolese elections (S/2005/320), requested an additional 2,590 military personnel. The Council declined to authorise the proposed increase. Instead, the issue of MONUC’s troop strength compared with its massive tasks would perennially come back, and the Council would slowly authorise small increases. Two temporary solutions found with significant leadership from the Secretariat were troop rehatting from the mission in Burundi and the deployment of a short-term EU force in 2006 to assist with security during the elections.
The issue of MONUC resources and the threat from militias in the east have dominated Council discussions on the DRC for years. However, most recently, other protection-related aspects came to the forefront, namely the abuses perpetrated by the armed forces, as well as sexual exploitation and indiscipline even by MONUC’s own troops. The latter was met with strong Council reaction and insistence on a zero-tolerance policy for sexual exploitation, but it is unclear whether recent investigations on the alleged involvement of MONUC troops in illegal trade in arms and natural resources will produce tangible results.
The Council incorporated two important innovations with significant protection aspects in resolutions 1698 and 1807. These were the result of important work carried out by NGOs, UN human rights mechanisms and the Council’s working group on children. They include:
the establishment of targeted sanctions against those responsible for recruiting children; and
targeted sanctions against those violating IHL and targeting women or children.
On the political front, however, the Council largely continued to defer to regional initiatives and to MONUC, with bilateral input from the US, France and others. A string of peacemaking activities evolved at the local level including proposals designed to (i) improve relations between the DRC, Uganda, Rwanda and Burundi and coordinate activity against rebel groups; and (ii) reach a negotiated political solution vis-à-vis the militias loyal to Nkunda. But progress so far has been elusive, and fighting continues in eastern DRC.
In retrospect, 14 years of Council involvement in the DRC have produced a mixed picture. On the one hand, over the years initiatives on the DRC have produced a number of innovative cutting-edge decisions with a strong protection outlook, including:
the progressive development of MONUC as the largest and most robust multidimensional UN operation since the failures of the early 1990s. The security situation in the DRC—active recalcitrant militias requiring constant combat operations—meant that the mission had to re-think the boundaries between peacekeeping and enforcement “on the job”. The resulting balance was a creative one: peacekeeping operations such as MONUC cannot operate without the guidance of a broader political process as well as consent, but they could not be blind to violence against civilians, particularly that perpetrated by local peace spoilers. Progressively MONUC began to engage in enforcement activity against them. This balance strongly influenced current peacekeeping doctrine and has helped to forge new thinking since the failures in Bosnia, Rwanda and Somalia;
authorisations for multinational deployments with a protection nature, such as the IEMF;
adoption of sanctions against those violating IHL, explicitly in connection with children and women;
reliance on human rights and humanitarian fact-finding as a means to both expose and counter IHL violations; and
political pressure including annual Council visits to the country.
On the other hand, however, substantial Council action on civilian protection issues in the DRC came too late for many Congolese. By the time the Council increased MONUC to 8,700 military in late 2002, millions had died of conflict-related causes despite Council assurances that a tragedy on par with the Rwandan genocide would not be repeated elsewhere. The Council did little to facilitate humanitarian access or push meaningfully for a political settlement during both civil wars.
When the Council finally became serious about the issue, there were initial problems of effectiveness. Discussion on natural resources and conflict in the Council failed to produce decisive action at the appropriate time, and to this date international oversight on these issues in the DRC is scant and weak. Targeted sanctions regarding women and children have not yet been implemented, and the arms embargo is constantly violated. And the issue of accountability for IHL violations has been mostly left to Congolese authorities with only scant Council attention.
There seems to have been a generalised lack of political interest and commitment in the Council on the DRC. Most of the political effort was left to the Secretariat and MONUC itself, with the support of some concerned member states in particular African and European. The seemingly pervasive interest in “getting the job done” quickly in the DRC meant that there has been a reluctance to recognise or address failings by the government and armed forces.
It is in MONUC that some of the crippling effects of this lack of interest are seen. In the absence of a clear focus, often—and especially until 2003-2004—cost concerns tended to take the forefront in lieu of consideration of needs and matching resources. For MONUC, this meant that decisions about troop strength and mandate often had little to do with requirements on the ground, and more with the politics of cost-cutting, challenging domestic political environments in the US, and aversion to meaningful involvement in such a complex environment. The mission has all along been stretched dangerously thin.
Competing priorities and lack of Council guidance resulted in the fact that MONUC’s physical protection mandate went relatively unfulfilled for a number of years. Nowadays, there is relatively much more clarity as the concept has been further developed within the Secretariat and applied by the Council. But still resource issues and competing priorities loom in the background and have put a toll on MONUC’s physical protection activities.
This is made all the more difficult since, as we will see below, there is no agreed definition within the UN system of what activities and best practices fall within the protection umbrella, and even less regarding physical protection under Chapter VII.
8. Special Implementation Issues Involving UN Peacekeeping Operations
Over the past two decades, UN peacekeeping operations have been a major tool in Council action to protect civilians. Since resolution 1265, the first thematic resolution on protection of civilians, the Council has steadily included such tasks in peacekeeping mandates, increasingly with a multidimensional character.
Of particular importance is resolution 1270 of 22 October 1999 on Sierra Leone. The Council, acting under Chapter VII of the Charter, decided that in the discharge of its mandate the UN mission (UNAMSIL) “may take the necessary action to ensure the security and freedom of movement of its personnel and, within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical violence”.
As noted above, civilian protection has since increasingly appeared in specific country mandates, including tasks for peacekeepers such as physical protection of civilians under imminent threat; child protection; human rights monitoring; mine action; support for refugee returns; and protection from sexual abuse and exploitation. Using as a base the activities described in the aide-memoire and relevant thematic resolutions, Annex III contains a list of all peacekeeping operations established since 2000 and their protection-related mandates.
However, the practical side of implementation reveals a much more complex picture. The UNAMSIL example above provides a good example of the challenges that peacekeeping operations continue to face. The mission’s protection mandate increased expectations and hope among the civilian population after years of unrelenting conflict. UNAMSIL, however, plagued by lack of resources and safety concerns of some troop contributors, was unable to fulfil its mandate when in mid-2000 the rebel Revolutionary United Front (RUF) started a major offensive. 500 UNAMSIL troops were kidnapped by the RUF. This resulted in huge humiliation and loss of credibility that would take the mission years to overcome.
Some of the issues associated with the discharge of peacekeeping mandates are specific to protection itself whereas others are more broadly connected with challenges across peacekeeping activities as a whole.
In the first category is the absence of a systemic understanding on what types of activities fall under protection of civilians. This has largely meant that the interpretation of similar protection mandates varies across peacekeeping operations according to various factors including political and security contexts, leadership and available resources. The confusion is also due to the fact that many of the goals set for a given UN mission—such as increasing security, combating militias, fostering security sector reform, improving rule of law or working on disarmament, demobilisation and reintegration—often have important synergies with increasing the security and welfare of civilians. Yet, the result often seems to be uneven and inconsistent implementation across operations, with the added difficulty arising from the lack of agreed guidelines and benchmarks for monitoring success.
DPKO has been trying to address this by developing a new doctrine, subsidiary guidelines and training resources.
One critical area in which this problem has arisen is in coordination and facilitation of humanitarian assistance by a UN peacekeeping mission. Almost all of the operations in Annex III have such mandates, perhaps with the exception of the mission in Haiti (MINUSTAH). As a rule, recent operations have included a Deputy Special Representative of the Secretary-General who also serves as humanitarian coordinator. This innovation came as a result of the intense debates on the need for better integration among the various components of multidimensional operations, and increasing security for aid delivery. It was also a result of the perceived need for operations to have a multidimensional character in dealing with crises, in recognition that peacekeeping could not be a substitute for political action and development.
Yet, considerable concerns remain among UN agencies, international humanitarian organisations and NGOs with maintaining humanitarian assistance separate from peacekeeping and the political realm so as to protect its independence and neutrality. As a result, different missions have adopted distinct structures and varying levels of integration.
Observers note that these vary from a minimalist level of integration with emphasis on coordination and information-sharing (such as UNOCI in Côte d’Ivoire) to relatively full integration (as with UNMIL in Liberia).
Challenges of integration and coordination are also felt in quick-impact projects. These are essentially small interventions (such as building a school or a well) designed to improve popular cooperation with the mission at the local level. Most frequently they are undertaken with funds from the individual budget of national contingents, and as such are not subject to oversight from the mission’s leadership. This has led to strong concerns among humanitarian organisations, since many of the projects are similar to humanitarian assistance and may compromise popular and essential perceptions of the neutrality and impartiality of humanitarian aid. The Secretariat has issued guidelines to stimulate coordination, but concerns seem to linger—as has been the case especially with NATO’s International Security Assistance Force in Afghanistan.
A critical area is the actual operational tasks to be carried out in discharge of physical protection mandates. The Security Council often authorises such missions to protect civilians under “imminent threat” (Sierra Leone, Liberia, Côte d’Ivoire, DRC, Burundi, Sudan, Lebanon, Haiti), and frequently with certain limitations such as taking into account government responsibilities (Sierra Leone, Liberia, Côte d’Ivoire, Burundi, Sudan, Lebanon, Haiti), or acting within its capabilities and/or areas of deployment (Liberia, Côte d’Ivoire, DRC, Burundi, Sudan, Lebanon, Haiti).
What the words actually mean in practice is vague and therefore prone to diverging interpretations across and within missions. For example, national contingents have quite different training on and interpretation of such mandates. Even worse, in some cases the forces themselves were sources of abuse as in the DRC. Protection activities also have synergies with other mission activities such as generally deterring or countering violence, or extending state authority.
As a result, a variety of disparate activities are often seen as civilian protection, including simple patrolling, physical military presence, security of UN premises, and military good offices roles at the local level. In fact, there is no coherent approach to doctrine on protection by different national military headquarters around the world. As Victoria Holt notes,
“traditional means of preparing for military operations—doctrine, training programmes, rules of engagement—have not been adapted to address missions involving civilian protection. Militaries and organisations such as NATO do not use the phrase ‘protection’ or ‘civilian protection’ in their doctrines, or to describe their activities and missions. Preparations for such operations are ad hoc.”
In a May 2008 conference on women targeted or affected by armed conflict (the results of which were published as Council document S/2008/402), participants noted that missions are increasingly mandated to protect civilians. Yet, “this may not consistently be interpreted to encompass sexual violence due to the unconventional spaces and times at which it occurs; the fact that sexual violence is shrouded in silence and shame; and is often invisible, concealed as a ‘war within a war’. Moreover, the protection of civilians mandate of peacekeeping operations has yet to be matched with political resolve and resources, doctrine and guidance. Troop contributing countries likewise have not internalised this issue to the national defence policies that inform their peacekeeping doctrines.”
It is telling that, among existing UN operations, it seems that only MONUC currently engages in offensive operations against recalcitrant militias and includes a physical protection dimension with relative constancy. A particular innovation has been mobile operating bases. However, as seen above, the latter aspect is a late addition in practice despite the mission’s physical protection mandate, authorised since 1999.
Three additional interconnected factors seem to be of particular importance in shaping a mission’s response to its physical protection mandate, namely:
resources, both in terms of assets and troops; and
Despite Security Council pledges otherwise (such as in resolution 1296), several peacekeeping missions have suffered from a mismatch between mandate and expectations, on the one hand, and resources, design and context on the other. This has been compounded by the increasingly challenging operational and logistical environment in which UN missions are deployed, such as in Darfur and Chad.
The mission in Lebanon (UNIFIL) is also a useful example. In the wake of the fighting along the Israeli-Lebanese border in mid-2006, the Council strengthened UNIFIL’s mandate in resolution 1701. Among the new tasks was to “take all necessary action in areas of deployment of its forces and as it deems within its capabilities…to protect civilians under imminent threat of physical violence”. The compromise on resolution 1701 and UNIFIL’s new role came after weeks of Council paralysis and inability to address civilian protection issues or demand that the parties cease hostilities, despite a heavy civilian toll.
Despite its mandate, the political context means that, in practice, UNIFIL has limited scope to fulfil this protection role. The mission operates under strict constraints that have meant that it still operates essentially as a monitoring and verification mission, albeit strengthened. The mission therefore largely sees itself as a Chapter VI operation and is configured as such.
The mission in Sudan (UNMIS) is also an illustrative example. Established as a 10,000 strong force to oversee implementation of the Comprehensive Peace Agreement between north and south Sudan, UNMIS was authorised in resolution 1590 (2005) to take action to protect civilians under imminent threat. And, unlike UNIFIL, this relevant paragraph of the mandate is explicitly under Chapter VII.
However, pressure from the parties led it to be configured in practice as a monitoring and verification operation, of which Council members were well aware. UNMIS as a result does not have robust resources that would allow it to carry out forceful operations to protect civilians similar to MONUC, since it comprises mostly lightly armed infantry.
Nonetheless, on at least two occasions—the crises emerging from LRA activity in south Sudan in 2006, and violence in Abyei in 2008—the mission was criticised for not providing civilian protection. In both cases, the area had an UNMIS military presence consisting of light infantry and unprepared for robust protection. As pointed out by the Secretary-General:
“UNMIS operates with the usual Chapter VI force composition and configuration and has very few robust assets at its disposal. The military component is structured to provide support and security for monitoring and verification of the Comprehensive Peace Agreement, rather than to conduct operations which may require an offensive capability… In resolution 1663 (2006), the Council urged UNMIS to ‘make full use of its current mandate and capabilities’ against LRA. The present configuration of UNMIS allows the Mission to undertake regular patrolling by military observers, in known LRA areas. These patrols are escorted by small protection elements which, due to their size, scope and mandate, are limited to carrying out a minimum defensive capability.” (S/2006/478)
The fact that UNMIS had an explicit Chapter VII mandate is therefore less relevant given the constraints above. In fact, UNMIS and UNIFIL have similar rules of engagement (a set of regulations governing how and when force is to be used). Most importantly, they contain a number of caveats and limitations to the use of force that reflect the constraints noted above.
The recent case of UNAMID has shed light on yet another important piece of the puzzle. The mission—more than a year after its establishment—is less than half-deployed. Persistent opposition from the host state, as noted above, significantly limited quick mission deployment. Key aviation assets are still missing. The Council itself has been unable to agree to become more directly involved in supporting UNAMID and convincing potential contributors. In fact, from the beginning the Council effectively transferred responsibility for the deployment to the Secretariat.
Alan Doss, currently head of MONUC, formerly head of UNMIL and Deputy Special Representative of the Secretary-General in Sierra Leone, noted the dangers in this practice:
“… resolutions to authorise missions are usually the result of political compromises. Such compromises carry with them the danger of a mismatch between the mandate and the means and, as a consequence, between expectations and outcomes. Lack of coherence at that level can affect the credibility of a peace operation”.
Lack of coherence can also be a huge problem inside a mission. As noted above, mandates are often vague and can lead to uncertainty among field commanders, aid organisations and beneficiaries. In theory, potential ambiguities in the mandate are solved through the adoption of a concept of operations (describing and prioritising the mission’s actual tasks) and rules of engagement. And leadership in peacekeeping matters—ensuring coherence in interpreting these fundamental documents is one of its most important tasks.
These problems are also at least partially an inherent result of the challenges in managing large, multinational military contingents and multidisciplinary civilian components (police, human rights, protection and public information, to name a few). Each of those components usually has parallel reporting lines (national commanders, the Office of the High Commissioner for Human Rights in Geneva, for example) in addition to different bureaucratic cultures.
Military contingents also often come with national caveats and safety concerns from capitals. These can lead to very narrow interpretations of mandate and rules of engagement. They limit the kinds of activity in which they could be employed and thus in practice may defy command and control and mission efficiency. Limited interpretations of rules of engagement were one of the major aspects of the UN’s weak initial response in the DRC as seen above and in Sierra Leone in 2000. Similar concerns have been raised recently, but this time due to UNAMID’s hybrid nature, with fears of parallel lines of command.
The issue of command and control has had important effects in terms of discipline. Contingents in some missions, in particular MONUC, have allegedly been implicated in IHL violations such as sexual exploitation and other illegal activities. Whereas, it seems clear that UN contingents are bound by IHL as well as national legislation, there have been cases where gaps in terms of awareness and training on such laws have been apparent. Moreover, accountability becomes uncertain as troops serving in UN operations are only subject to national jurisdiction. Political pressure and the ever-increasing need for troops in the context of the growth in demand for UN peacekeeping seem to have created even greater difficulties in the relations between the Secretariat and troop contributors.
There are currently acute personnel shortages of expert UN staff. The growth in peacekeeping has in practice also been hindered by the lack of qualified military personnel. As exemplified in the case of UNAMID, potential troop contributions often come under-prepared and poorly equipped, meaning that deployments could take months before materialising.
DPKO and the Department of Field Support continue to struggle with a low ratio of field/headquarters personnel. This is clearly having a significant impact on management and coherence in the discharge of mandates. That ratio is extremely low when compared to national military practice. The problem is uniquely acute given that no national military is equally responsible for administering DPKO’s current 19 separate operations with a combined total of 82,000 uniformed personnel, 119 troop contributors and about 18,000 civilian staff.
The growth in UN policing activities has added another layer of difficulties. Virtually all operations created since 1999 have sizeable police contingents (especially formed police units, designed to perform crowd control and other more proactive activities). This reflects the fact that many civilian protection needs arise from the lack of rule of law and generalised lawlessness, tasks for which the military are not adequately prepared. However, in addition to the lack of qualified police, the system is still lagging behind in the development of policing doctrine and guidelines compared to their military counterparts.
The mission in Timor-Leste (UNMIT), for example, is responsible for law and order pending the restructuring of the Timorese police. It however operates without the “legal cushion” afforded by a Chapter VII authorisation (which would allow it to operate with much more legal certainty, especially if force is to be used) and under great pressure from national authorities to hand over policing responsibilities.
The preceding sections reveal a mixed picture of the Council’s leadership and involvement in civilian protection following resolutions 1265 and 1296. Perhaps the most important conclusion is that, despite its commitments at the thematic level, the Council has been slow and often ineffective in addressing huge impacts on civilians at the country-specific level. The violence against civilians in the DRC, Darfur, Iraq, Timor-Leste and Somalia demonstrate this.
However, from the broader areas identified in Council thematic resolutions on protection and related areas, some very important developments can be identified.
Prevention: The Council has been less effective at prevention. More often than not the Council has become involved in situations with grave protection dimensions only when conflict is in full sway. Some exceptions include Kenya, Mauritania, Guinea-Bissau and Fiji.
Since the mission in the Former Yugoslav Republic of Macedonia (UNPREDEP) in the 1990s, the Council has not authorised preventive deployments.
National authorities, often with the sympathy of regional players, are hesitant to recognise that conflict is imminent notwithstanding the risk of massive IHL violations taking place often with the participation of government forces.
Within the Council, this issue seems to have translated into strong differences of view as to the timing and nature of prevention. Some Council members, in particular China, Russia, and certain NAM states, have expressed a preference for regional involvement and ultimately waiting to see what happens. There are strong suspicions that anything more proactive will constitute interference in domestic affairs.
However, it is not only powerful differences of view of this kind that contribute to Council paralysis, lack of interest and low levels of attention can also lead to inaction. This was the case in Timor-Leste, despite a UN presence in the country since 1999. This in turn suggests that, just as in the Kenya example, preventive Council action seems dependent upon external factors such as strong regional cohesion, international pressure and support for Council involvement rather than momentum alone within the Council itself.
Political Action to Improve Protection and Respect for IHL: The Council has taken important steps in becoming involved in many situations where conflict has broken out and civilians are in danger. The impact and frequency of Secretariat reporting has increased, and, as the DRC, Kenya, Darfur and Uganda cases show, has been critical for ensuring better Council attention and support. Of particular importance were briefings from UN humanitarian and human rights mechanisms (albeit the latter with decreasing frequency), as well as NGO advocacy and contacts with humanitarian actors outside the UN family.
Nonetheless, huge Council divisions on Darfur, Somalia and Zimbabwe, for example, have led to hesitant action in those cases.
In other cases, illustrated by the Iraq example, major power divisions have meant that action was curtailed. Similarly, in Afghanistan, and most recently Georgia, the involvement of one or more major powers largely constrains action.
In cases such as Somalia, Timor-Leste and Uganda, lack of political interest was a factor. A string of resolutions and statements have been adopted, yet too late to make a difference on the ground. Perhaps embarrassed by its own lack of sustained attention, the Council seems to shy away from pressure and criticism against combatants, often justifying inaction by concern with delicate transitional governing arrangements and peace processes, with little regard for civilian issues.
The absence of political will and consensus results in a failure by the Council to insist on a minimum level of “humanitarian space”. Such concrete action by the Council would allow humanitarian actors, notably those outside the UN family, to better protect civilians even where larger political solutions remain under negotiation.
Improving Physical Security in the Field for Civilians and Humanitarians: The Council has been much more proactive and assertive in this area, resorting to peacekeeping operations, regional deployments and multinational forces to improve physical civilian protection. The mandates of UN peacekeeping operations have also included many of the aspects envisaged in resolutions 1265 and 1296, such as demining, small arms, disarmament, demobilisation and reintegration, media strategies, and special needs of women and children.
However, recent experience in Darfur and Chad has resulted in peacekeeping with protection mandates but circumscribed by the barely concealed opposition of host countries to the protection mandates. In Somalia, it remains unclear just how willing the TFG would be to accept an impartial mandate in support of civilian protection and a genuine inclusive power-sharing agreement.
Despite repeated Council pledges to provide clear mandates and resources, practical issues continue to plague UN peacekeeping in support of civilian protection from MONUC to UNIFIL, UNMIS and UNAMID. Pressure from cost-conscious members has meant that, at least in the case of the DRC and Timor-Leste, troop strength decisions were more a function of cost than protection requirements on the ground.
Missions also face increasing implementation challenges arising from inconsistent interpretations of protection mandates, concepts of operation and rules of engagement. And some protection aspects such as action against sexual violence still remain to be fully implemented.
Missions have further suffered with lack of Council oversight and political support, per the UNAMID and UNMIT examples. As with the issues highlighted above, strong divisions have meant that, in the case of UNAMID, deployment issues are left to ad hoc groups such as the “Friends of UNAMID” and direct negotiation between the Secretariat and Khartoum.
When members are unwilling or unable to act decisively, as in the Somalia example, peacekeeping can be seen as a panacea. The lack of feasible options has led some to conclude as the UN did disastrously in the 1990s that peacekeeping where there is no peace to keep is better than nothing—a conclusion that glosses over critical lessons learned.
Rule of Law and IHL Monitoring: UN peacekeeping operations have increasingly been mandated to undertake tasks on law enforcement and monitoring. These are important, emerging aspects of protection applied to post-conflict peacebuilding needs. Nonetheless, such missions face difficulties particularly the lack of qualified personnel.
Important gaps also remain on fully integrating the various components of multidimensional operations and ensuring coherent and well-resourced action, especially in the field of human rights monitoring. An ongoing challenge, as UN capacities develop, will be to ensure that the existing monitoring work of other actors outside the UN continues to be recognised for its value and seen as complementary.
Justice and Accountability: Council involvement on justice and accountability for violations of IHL seems to have decreased since the 1990s. The momentum that informed the establishment of tribunals in the former Yugoslavia, Rwanda and Sierra Leone seems to have waned, and the Council only occasionally includes mention of accountability issues in its resolutions and statements.
The only major exception was the referral of crimes committed in Darfur to the ICC in 2005. But the dynamics at the time suggest that, stronger than the desire to see accountability for abuses against civilians, was the desire to be seen to be doing something.
There is strong aversion from China, Russia, and among some African and Asian Council members against the Council’s use of such tools. Those members prefer that such issues be addressed domestically and certainly that they not be used as political tools while an effective peace agreement remains elusive. The recent ICC request for an arrest warrant against Sudanese President al-Bashir seems to have galvanised this position.
Sanctions: The Council has largely abandoned recourse to full-scope economic sanctions, preferring instead targeted measures with limited impact on civilians. Sanctions have been developed in some cases to incorporate protection dimensions, particularly through the imposition of arms embargoes, measures against illegal trade in natural resources—as in Liberia and Sierra Leone, albeit with the notable exception of the DRC—and targeted sanctions against IHL violators—as in the DRC, Darfur and Côte d’Ivoire.
However, as the latter examples show, these targeted measures can remain un-implemented and ineffective. Furthermore, the effectiveness of the arms embargoes has been severely questioned in the cases of Somalia, the DRC and Darfur. There are, as exemplified in the Darfur case, real political limitations in expanding sanctions for this purpose.
Regional Action: There is an argument in the Council about the relative roles on prevention and protection issues between the UN and regional organisations. Contrary to much conventional wisdom we have found that in virtually all the case studies and in the 34 cases included in Annex I, at least 28 regional organisations and ad hoc groups of states have performed key leading tasks on mediation, enforcement and peacekeeping, and often in all three areas.
There has been a qualitative change since the late 1990s, however. At that point, regional involvement—as in DRC, Sierra Leone, Liberia and Côte d’Ivoire—was often at least partially a result of the Council’s lack interest.
But the recent cases of Zimbabwe, Kenya, Darfur and Chad in fact show a reversal of that state of affairs. Nowadays, it seems more likely that some governments will resist Council involvement and the implementation of any protection agenda. These governments—often with the sympathy of regional players—will prefer the involvement of regional and subregional organisations such as the AU or SADC. These preferences are reflected in the resulting divisions in the Council, with some members—as the Zimbabwe example shows—prepared to go only as far as regional organisations are.
Regional involvement and support, on the one hand, seems to be productive. Quite often, the participation of a regional player ensures access to and influence over the parties. On the other hand, serious concern about outcome, especially for civilians, remains a driving factor for those who support a strong UN role. This is the case especially when the mediator is perceived as having interests in the conflict. It is argued that such situations will lead to unsustainable agreements or be prone to unhelpful political pressure, as with the peacemaking processes in Somalia and Darfur in 2006.
The broader trend therefore seems to be one in which the Council navigates between either getting involved or “subcontracting” to regional organisations and coalitions of the willing.
To some extent, the divisions in the Council on this issue are a symptom of the politicisation of protection of civilians noted above. Governments involved in a conflict—or facing the imminent threat of violence, and allied Council members—have been increasingly resistant to Council involvement in protection activities, perhaps feeling that this will limit their options.
Within NAM, there clearly seems to be some of that, as noted by the Egyptian representative during a 2005 Council debate on protection:
“the Council should not expand its authority by establishing general policies for dealing with humanitarian issues and human rights. The elaboration of such general policies falls within the mandates of the General Assembly and its Main Committees.”
Moreover, the experiences in Iraq and the lack of meaningful Council involvement in Israel-Palestine or timely action in Lebanon in mid-2006, as well as overreach on the sanctions proposed for Zimbabwe in 2008 seem to have reinforced the scepticism and suspicion of some members, in particular within NAM, and encouraged a perception of double-standards and a preference for regional leadership.
Prospects at the thematic level are currently not encouraging. Proposals such as the establishment of an expert group on protection or stepping up the Council’s normative involvement in advancing IHL seem unlikely to bear fruit in the near future. The only option that may have relatively fewer difficulties is an update to the 2003 aide-memoire.
Perhaps one promising thematic area is the issue of cooperation with regional organisations. Given the increasing participation of such bodies in peacemaking and peacekeeping, one option would be to develop a concrete package—especially with the AU—that improves commitment on all sides to the importance of civilian protection, improves capacities in both areas and ensures transparency, accountability and meaningful Council oversight in accordance with the provisions of Chapter VIII of the Charter. Such an initiative would, however, require close cooperation with the General Assembly, especially as a means of ensuring the broadest support among the membership.
Within this option, members could also take on the Secretary-General’s recommendation for the “establishment of a framework within which the United Nations could engage with regional organizations more systematically on humanitarian issues related to protection and access and better address those issues at the regional intergovernmental level.” That proposal was acknowledged in presidential statement 2004/46.
Country-specific action offers ongoing avenues, as has been the case in the past few years in some non-contentious cases. The risk of overall politicisation of protection issues remains, however.
One possible area is improving attention to mediation, which is often raised as probably the most important measure to improve civilian safety. The cases of Darfur and Uganda demonstrate that mediation initiatives suffer from lack of resources and political support. The Council could add its voice consistently and strongly to securing more resources for mediation and add its political weight to negotiation processes at key points, including through Council missions and sending small delegations. Fact-finding missions and very regular Secretariat briefings, including from DPA on a systematic basis, could be a useful option.
Informal support for mediation through Arria-style meetings and giving the parties a buy-in and a stake in success may also be a possible tool. An important option might be for the Council to improve the quality and frequency of interactions with the parties in a neutral and impartial manner.
In the long run, however, there seems to be a critical need to depoliticise these issues through a new commitment by member states. Such a wide objective requires new approaches going beyond the Security Council to encompass the General Assembly and other UN bodies. The shared commitment by states to the fundamental rules of IHL may provide some traction for renewed cooperation. 2009, as the sixtieth anniversary of the adoption of the Geneva Conventions, to which all UN member states have become parties, could provide an occasion for assessment of the collective commitment to ensure protection of civilians through greater respect for the rules of IHL.
At the time of writing, achieving such a “recommitment” seems like a major and difficult political task. But it seems clear that, if the toll on civilians from conflict in the twenty-first century is to be significantly less than in the past century, much more concerted and innovative efforts will be needed, sooner rather than later.