Research Report

Cross-Cutting Report No. 4: Protection of Civilians in Armed Conflict

Summary and Conclusions • Background • Key Developments at the Thematic Level • Statistics • Developments in Council Sanctions Regimes • Country-Specific Reporting by the Secretary-General • Assessment of Council Action: Three Case Studies • Issues Involving UN Peacekeeping Operations • Council Dynamics • Future Options for the Council

Cross-Cutting Report in PDF

Security Council Report published its first Cross-Cutting Report on Protection of Civilians in Armed Conflict in October 2008. It provided background on relevant provisions of international humanitarian law and on Security Council involvement in the issue of protection of civilians starting in the 1990s. It also analysed the way that the Council had implemented its thematic decisions on protection of civilians in specific cases following the adoption of its first thematic decisions in 1999 through to the end of 2007 and examined protection issues in the context of implementation of UN peacekeeping mandates.

This 2009 Cross-Cutting Report builds on this historical background and analysis and looks specifically at developments since the end of 2007, both at the thematic level and in country-specific situations. As this year marks the 10th anniversary of the Council’s first thematic decision on protection of civilians as well as the 60th anniversary of the 1949 Geneva Conventions, there has clearly been greater focus on the Council’s role in relation to protection issues. Several ongoing and recent crises have also highlighted the wider implications of attacks against civilians for international peace and security.

In addition to analysing recent Council action related to the protection of civilians agenda, including through case studies of the situations in the Democratic Republic of the Congo (DRC), Gaza and Sri Lanka, and identifying key challenges, the present report suggests some possible future options for the Council. This and future annual cross-cutting reports on protection of civilians should enable stakeholders to begin to systematically track progress in the Council’s handling of this issue.

1. Summary and Conclusions
While it seems generally agreed that ten years of Council involvement in protection of civilians as a thematic issue have yielded substantial results in establishing a normative framework, there is also recognition that this progress has not been matched by a corresponding improvement in actual situations where civilians are affected by conflict. There is a growing awareness that more focus is needed on the operational aspects of protection of civilians. How to ensure that words uttered in New York are translated into effective action in real cases is a key issue.

This is confirmed by our analysis of recent Council action. Findings include:

Despite these problems there are some potentially positive developments that need to be acknowledged. First, in the Sri Lanka case the Council found both the political will and practical evolution of its working methods to address a protection of civilian issue per se, as opposed to taking up the wider political and military dimensions of the conflict and, equally important, did so in respect of a case not otherwise on its agenda. While some would argue that in the Sri Lanka case this was “too little, too late” serious acknowledgement must be made of the precedent value of what was achieved by meeting in the new informal interactive dialogue mode. It suggests a way ahead for the future in terms of “depoliticising” Council action to protect civilians, or at least limiting the political factors which otherwise tend to block effective focus on protection issues.

A second positive development can be seen in the cases of Mauritania and Guinea. The importance of these cases is that the Council action on them responds to the criticism by China and others regarding protection of civilians that prevention should be given greater priority. This, of course, implies early action before a situation degenerates. The fact that the Council has shown political will to address the Guinea and Mauritania cases at an early stage is significant. Equally significant is the “working methods” approach which allowed the issues to be taken up without the stigma of putting Guinea or Mauritania, as such, on the Council agenda.

There have also been some encouraging new developments on issues related to UN peacekeeping. New initiatives which specifically address implementation of protection mandates have been launched within the current UN-wide discussion on improving peacekeeping. Much work remains, but there seems to be a heightened awareness of the importance of establishing protection guidelines for peacekeeping missions and matching mandates with resources.

The November 2009 open debate will offer an opportunity for the Council to address some key challenges and consolidate its recent efforts at the thematic level. This could include:

More detailed options are suggested in section 10 below.

Recent practice seems to suggest that strengthening protection of civilians will only be possible if Council members can mobilise the necessary political will to act quickly and without political agendas. Further progress on protection of civilians in actual cases will require a less politicised approach, willingness to give equal treatment to protection of all civilians on both sides of conflict, and developing recent initiatives to allow the Council to address a situation not formally on the Council’s agenda with a focus just on the civilian issue.
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2. Background
An important methodological question which was addressed in detail in the 2008 cross-cutting report is what is meant by the term protection of civilians. For reasons of continuity and comparability of data this report maintains the same definitions. However, it might be useful to recall that the concept, as used in these reports, is derived from the protection norms set out in the 1949 Geneva Conventions and subsequent protocols. These core treaties of international humanitarian law identify the rights of civilians and the obligations of combatants during time of conflict. As discussed in our 2008 report, the concept has subsequently evolved to include the responsibilities of other actors with capacity to impact the civilian population affected by conflict, including peacekeeping and similar missions.

The main thematic decisions by the Security Council on the protection of civilians include five resolutions, notably resolutions 1265 (1999), 1296 (2000), 1502 (2003), 1674 (2006) and 1738 (2006) and eight presidential statements. They address:

The Security Council is now involved in protection of civilians in five main areas of action.

This report contains statistical analysis of Council decisions and reports of the Secretary-General for the year 2008. In terms of country-specific situations data is only included if it can reasonably be assumed that the decision in question might include a protection dimension either because of the existence of a relevant mandate for a UN peacekeeping mission, or because of the nature or history of the conflict. Council decisions of a purely technical nature such as decisions renewing mandates for sanctions expert groups were excluded. Furthermore, thematic decisions on other issues were also excluded from the statistical analysis, but where relevant are referred to in other parts of the report.

In this regard it should also be noted that the present report does not analyse in-depth Council action on children and armed conflict or sexual violence. While these are important protection issues, they are discussed in separate SCR reports. (Our most recent Cross-Cutting report on Children and Armed Conflict was published on 15 April 2009. For an update on issues related to women, peace and security please refer to our October 2009 Forecast.) Decisions on these issues, however, are reflected in the overall statistics.

Information was obtained through research interviews with members of the Council, UN experts and NGO representatives, as well as from publicly available documents. It should be noted that SCR does not have any field presence, and that no field missions were conducted as part of the research for this report.
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3. Key Developments at the Thematic Level
Since our October 2008 report the Council has held two open debates on protection of civilians, one on 14 January (S/PV.6066 and Res. 1) and the other on 26 June (S/PV.6151 and Res. 1). It adopted a presidential statement following the January debate which was an important new decision because it updated one of the Council’s tools: the aide-mémoire on protection of civilians. In addition, the Council also decided to create a new tool—an informal Council expert group on protection.

The January open debate took place with the conflicts in the DRC and Gaza as an important backdrop. The briefing by the Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator John Holmes focused on the conduct of hostilities and the need for strict compliance with international humanitarian law. He made particular reference to the Gaza situation, along with the eastern DRC, Afghanistan, Somalia and Sri Lanka.

Holmes pointed to the need to engage with all parties to a conflict (including non-state actors like the Taliban, Hamas and Al-Shabaab) to ensure access and promote respect for international humanitarian law. He noted the need to respond to protection challenges in a more consistent and comprehensive way, including in peacekeeping operations and for better efforts to combat sexual violence.

The presidential statement issued at the end of the debate not only reaffirmed the Council’s previous commitments but also, as noted above, updated the aide-mémoire that the Council first adopted in March 2002 (and revised in 2003) “as a means to facilitate its consideration of issues pertaining to protection of civilians.” The aide-mémoire lists key objectives for Council action and specific questions for consideration in meeting those objectives. The new expanded 2009 version contains substantial additional provisions and covers the issues in more detail, reflects new priorities and offers a more user-friendly format by providing a list of protection language from previous Council decisions.

Also in January 2009 the Council held a private meeting on respect for international humanitarian law, addressing this key element of protection of civilians as a separate issue for the first time. It was a French initiative with the stated purpose of starting a process focusing on possible measures that the Council could consider in order to more effectively prevent or end violations of international humanitarian law. The Office for the Coordination of Humanitarian Affairs (OCHA) as well as the UN’s Office of Legal Affairs, Office of the High Commissioner for Human Rights and Office of the High Commissioner for Refugees were invited to brief the Council, as was the International Committee of the Red Cross. France initially floated the idea of a presidential statement. However, there was no outcome. (For more details, see our Update Report of 27 January 2009.) To some extent this was because the issues became subsumed in the work which was underway on the broader issues of protection of civilians and in particular one significant new development—the launch of an informal Council expert group on protection of civilians.

As the lead country in the Council on the issue of protection, the UK convened the first meeting of the expert group in January to discuss the mandate renewal for the UN Operation in Côte d’Ivoire (UNOCI). The expert group has continued to meet in connection with mandate renewals for UN missions with an existing protection dimension. OCHA is invited to brief on behalf of the entire UN system, focusing on what are considered to be the most pressing protection issues for the mandate under discussion. Based on the revised aide-mémoire, OCHA is also invited to make suggestions on agreed language that the Council might want to include in the mandate resolution. In addition to discussing UNOCI, the group has met in connection with the mandate renewals for the UN Assistance Mission in Afghanistan (UNAMA), the UN Mission in Sudan (UNMIS) the AU/UN Hybrid Operation in Darfur (UNAMID), and the UN Assistance Mission for Iraq (UNAMI). China has so far not participated in any of the meetings.

The Secretary-General’s seventh report on protection of civilians, which the Council requested in a May 2008 presidential statement, was issued in May 2009. The report provided an assessment of the ten years of Council action since it first addressed the issue of protection of civilians thematically in a presidential statement in February 1999 which led in September that same year to the adoption of resolution 1265.

The 2009 report of the Secretary-General points to some important Council achievements, both through the establishment of a normative framework based on resolutions and statements and in the mandates of peacekeeping operations. But it also stressed that progress in the normative framework had not been matched by results on the ground. Five key challenges were outlined:

The report also detailed a list of recommendations and contained an annex on humanitarian access which provided the Council with information on key trends in access constraints and possible measures to improve the situation. Three types of constraints were identified as the most challenging: bureaucratic constraints; the scale of hostilities; and violence against humanitarian personnel and theft. (Please refer to Annex III for a list of recommendations to the Council from the Secretary-General’s reports.)

At the June 2009 open debate Holmes’s briefing focused on some of the key conclusions of the report. He noted the lack of progress on the ground in spite of significant achievements in the normative protection framework resulting from ten years of Council involvement in the issue, making specific references to the situations in Afghanistan, the DRC and Somalia. He urged much greater efforts to ensure compliance with international humanitarian law and accountability for violations of the law. Holmes also noted that the choice of weapons was critical in reducing the impact of hostilities on civilians and called for further discussions on the widespread use of improvised explosive devices in densely populated areas.

Holmes called on the Council to:

Holmes also raised issues related to implementation of protection mandates in peacekeeping operations, noting that a joint Department of Peacekeeping Operations (DPKO) and OCHA study on implementation of protection mandates in peacekeeping operations was close to completion. (At press time the findings of the study were expected to be released in early November.)

Finally, Holmes promised that OCHA would consult with member states on how to take the report’s recommendations forward, as well as any additional proposals that members wanted to make, and present the results of these consultations at the open debate in November.
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4. Statistics
In our 2008 report we looked at Council implementation of protection commitments (as established by its thematic resolutions) in country-specific situations covering the period from 2004 to 2007 and concluded that civilian protection issues had become a key feature in a growing number of items on the Council’s agenda. In the following 12 months this trend has continued. In Council decisions on situations with a protection dimension there were only a few cases with no reference to protection issues. In most conflicts discussed by the Council protection concerns were among the key issues.

4.1 Resolutions
The Council adopted 65 resolutions in 2008 of which 36 could reasonably be expected to contain language on protection of civilians. Of these, thirty dealt with protection issues to some extent. Six of the resolutions did not make reference to any protection issues. (Click here to see a graph of resolutions from 2004 – 2008.)

About half of the relevant decisions pertained to the seven situations on the Council’s agenda where there is currently a UN peacekeeping operation with an explicit protection mandate. They include the DRC, Sudan (where there are two operations: UNMIS and UNAMID), Chad, Liberia, Côte d’Ivoire, Haiti and Lebanon. (Please refer to Annex II for a list of current protection mandates in UN peacekeeping operations.) However, there is a marked difference in the intensity of the conflict in these situations. This is also reflected in the Council’s involvement and focus on protection issues. In the cases of Liberia, Côte d’Ivoire and Haiti the Council mostly reiterated previous decisions. It condemned violations of international humanitarian law and called on the parties to fulfill their obligations. In the case of Lebanon there was no specific protection reference in the resolution renewing UNIFIL’s mandate.

There was much more focus on protection in the Council’s decisions on Sudan, the DRC and Chad. When renewing the mandate of UNMIS the Council stressed the need for action on disarmament, demobilisation and reintegration and the importance in that regard to pay particular attention to the protection of children. It also called upon the parties to ensure humanitarian access and encouraged efforts to facilitate the return of internally displaced persons and refugees. In the case of UNAMID, the Council both underlined the need for UNAMID to make full use of its current protection mandate and capabilities and demanded an end to all attacks against civilians, peacekeepers and humanitarian personnel and other violations of international humanitarian law, as well as safe and unhindered humanitarian access. It also emphasised the need to bring to justice those responsible for violations.

The most noteworthy Council decisions, however, related to the UN Organization Mission in the DRC (MONUC). In November 2008 the Council authorised a temporary increase in personnel of more than 3,000 troops with the aim of “enabling MONUC to reinforce its capacity to protect civilians.” When renewing its mandate in December the Council listed protection of civilians as MONUC’s first priority and extended the troop increase. It also stressed the need to fight impunity.

Of the other situations on the Council’s agenda, Somalia, in particular, and the resurgence in violence there, involved grave violations of international humanitarian law. It occupied much more time on the Council’s programme of work in 2008 than in recent years. The Council adopted ten resolutions on Somalia and all except two (mandate extensions for the Sanctions Monitoring Group which, because of its technical nature, are not included in the statistical analysis) had a reference to protection of civilians issues. They focused in particular on the need for all parties to the conflict to respect international humanitarian law, condemning all violations, and the need to ensure safety and security for the AU Mission in Somalia (AMISOM) and humanitarian personnel and unhindered humanitarian access, including in the context of the increase in piracy. It is important to note, however, that some Council members had pushed for the deployment of a UN peacekeeping operation in Somalia, arguing that the need to protect civilians justified such a decision. Nevertheless that proposal failed to gain support.

Afghanistan was another situation where protection of civilians became a key issue. The Council adopted three resolutions on Afghanistan. A resolution calling for action to curb opium production did not contain any protection related language. When the Council renewed the mandate for UNAMA in March 2008, however, it decided on a significant clarification and enhancement of the mission’s tasks, including in the areas of monitoring the situation of civilians and coordination of humanitarian assistance and efforts to protect civilians. It also condemned attacks against civilians and called for compliance with international humanitarian law. In addition the Council adopted a resolution extending the authorisation of the International Security Assistance Force (ISAF) in Afghanistan with stronger language on protection of civilians. It called on ISAF and other international forces to take additional robust measures to minimise the risk of civilian casualties.

4.2 Presidential Statements
The Council adopted 48 presidential statements in 2008. (Click here to see a graph of presidential statements from 2004 – 2008.)

Of the thirty country-specific statements 23 could be expected to contain language on protection of civilians. Of these, 17 referred to protection issues whereas six did not. These six included:

Overall, therefore, the Council appeared fairly consistently to include civilian protection concerns in its statements.

Looking at the details of the statement, however, it becomes clear that most of the Council’s protection language was focused on a few situations in Sudan, the DRC, Chad and the Great Lakes Region (which includes the issue of the Lord’s Resistance Army, or LRA). In most cases the Council called for respect for international humanitarian law (Sudan, Chad, Sudan and the Great Lakes Region). It also expressed concern over the security of UN and humanitarian personnel and addressed issues of humanitarian access. In a few specific cases (the DRC and the Great Lakes Region) it condemned recruitment of child soldiers and gender-based violence. In some situations it expressed willingness to impose targeted measures against violators of humanitarian law (Sudan and Chad) and emphasised the need to end impunity (Sudan and the Great Lakes Region).

In 2008 the Council also adopted statements on Kenya and Zimbabwe containing strong protection language. Neither situation was previously on the Council’s agenda, but they were discussed under the item “peace and security in Africa”.

In the case of Kenya the Council adopted a presidential statement in February responding to the political, security and humanitarian crisis that followed the December 2007 elections. The statement expressed concern about the situation for civilians and urged Kenya’s political leaders to find a negotiated solution to the crisis and immediately end all violence. It also expressed concern at the humanitarian situation and the safety of humanitarian workers and UN personnel and called for their protection. In addition, the statement included language on impunity, calling for those responsible for violence to be brought to justice.

On Zimbabwe the Council addressed the instability and violence that followed the March 2008 presidential and parliamentary elections. In a presidential statement adopted in June it condemned violence against the political opposition and expressed concern at the humanitarian situation and called on the government to allow access for humanitarian organisations. (However, a draft resolution imposing an arms embargo as well as targeted sanctions against key government officials which was introduced in July failed to be adopted because of the vetoes of China and Russia; there were also additional negative votes from Libya, South Africa and Viet Nam; and Indonesia abstained.)
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5. Developments in Council Sanctions Regimes
Imposition of targeted sanctions is an important tool at the Council’s disposal to influence compliance with international humanitarian law. When the Council singles out perpetrators by placing them on a sanctions list, subject to either an international travel ban or assets freeze, it has an important symbolic effect and also sends a strong message about accountability. It can force a change in behaviour or have an incapacitating effect (because the individual or group is unable to conduct usual activities such as foreign travel or business deals). In the case of commodity embargoes, it cuts off the source of income fueling the conflict and in the case of traditional weapons embargoes, it makes conducting the war much more difficult. Sanctions can also serve as a deterrent to prevent future violations.

It should be remembered, however, that once a resolution is adopted imposing targeted sanctions and defining the designation criteria it does not become effective in practice until the Council is able to agree on the list of individuals and entities subject to the new measures. This designation process is often lengthy, both because of documentation and evidence requirements and also because of divisions within the Council. Council committees are usually charged with this role and are often the cause of delay because they normally operate by consensus—which in effect gives all 15 members a veto. In the case of Darfur the sanctions committee in charge was unable to reach agreement and the list of names subject to sanctions was adopted by majority vote through adoption of a resolution (Russia, China and Qatar abstained).

At the beginning of 2008 three of the 13 sanctions regimes established by the Council included targeted measures related to violations of international humanitarian law. In light of the serious violations committed in at least two of these situations in 2008, one might have expected new initiatives to enhance the effectiveness of the sanctions regimes, but the picture was mixed.

In Côte d’Ivoire the Council imposed individually targeted sanctions for the first time in November 2004. The list of criteria for designating individuals to be subject to the targeted financial and travel-related sanctions includes “any person determined as responsible for serious violations of human rights and international humanitarian law in Côte d’Ivoire on the basis of relevant information”. These measures became effective in February 2006 when the sanctions list was established by the Côte d’Ivoire Sanctions Committee.

In 2008, despite the past history of serious violations in Cote d’Ivoire, when the Council renewed the Côte d’Ivoire sanctions, it did not seriously address the issue of adding new names to the list. The list currently contains three individuals, one of whom was designated on the basis of having committed acts “contrary to human rights conventions and to international humanitarian law”. The 2008 reports to the Council from the Group of Experts tasked with monitoring the implementation of the regime did not address any violations as specified above.

In the case of Darfur, Sudan the Council established a targeted sanctions regime in March 2005. (These sanctions have no expiration date.) The criteria specified in the resolution for designation of individuals to be targeted includes those “who impede the peace process, constitute a threat to stability in Darfur and the region, commit violations of international humanitarian or human rights law or other atrocities, violate the [arms embargo]…or are responsible for offensive military overflights”. The sanctions regime became effective in April 2006 when the Council adopted a resolution, as already referred to, designating four individuals as subject to the targeted measures, including one for violations of international humanitarian law.

In 2008 the only action taken by the Council on the Sudan sanctions regime was to renew the mandate of the Panel of Experts. In its report transmitted to the Council in November 2008, the Panel pointed to the incessant violations of international human rights and international law in Darfur and recommended that the Council “significantly enhance the capacity of the Panel of Experts in order to conduct a greater number of in-depth investigations into allegations of international humanitarian and human rights law”. Despite this recommendation and ongoing serious attacks on civilians, no additions were made to the sanctions list, which has not changed since it was first established.

The targeted sanctions regime in the DRC was first established in 2005 and was expanded in 2006 to include in the designation criteria “political and military leaders recruiting or using children in armed conflict in violation of applicable international law” and also “individuals committing serious violations of international law involving the targeting of children”. Still, at the beginning of 2008 none of the individuals on the sanctions list had been designated based on these criteria.

In 2008 the Council strengthened the protection aspect of the regime twice, first to include “individuals operating in the DRC and committing serious violations of international law involving the targeting of children or women”, and then to also include “individuals obstructing the access to or the distribution of humanitarian assistance in the eastern part of the DRC”. The Group of Experts on the DRC sanctions made specific protection recommendations on children in its last report to the Council in 2008. However, there were no additions to the DRC sanctions list in 2008, but one deletion. In March 2009, however, four individuals were added to the sanctions list, three of them for violations targeting children. But no designation has yet been made for violations targeting women although the scale of sexual violence in the east of the DRC is unprecedented and the Council in resolution 1820 of June 2008 adopted strong language calling for an end to impunity for such atrocities and indicated its readiness to consider applying sanctions against those responsible for such acts.

In addition to taking action on existing sanctions in 2008, the Council established a new targeted sanctions regime for Somalia. While there has been an arms embargo on Somalia since 1992, it has largely been seen as ineffective. The new regime adopted in November 2008 imposes targeted measures on individuals or entities designated by the Somalia Sanctions Committee “as obstructing the delivery of humanitarian assistance to Somalia, or access to, or distribution of, humanitarian assistance in Somalia.” However, the regime has yet to become effective, as the Committee has been slow in establishing the list of individuals/entities to be subject to sanctions.
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6. Country-Specific Reporting on Protection of Civilians by the Secretary-General
In resolution 1674 on protection of civilians the Council invited the Secretary-General to provide relevant information and analysis and also requested him “to continue to include in his written reports to the Council…as appropriate, observations relating to protection of civilians in armed conflict”. This flowed from the belief that better targeted reports from the Secretary-General could constitute a key element in the Council’s decision making process.

In total 95 reports were issued by the Secretary-General to the Council in 2008. Of these we found that 48 reports addressed country-specific conflict situations with a protection dimension. Almost all of the reports in which one might expect protection issues to be addressed did contain some kind of reference.

Our analysis attempts to find out if there was consistency in the way protection issues were addressed, whether the protection related elements were aggregated under a separate heading for protection issues and how frequently protection of civilians was referred to in the Secretary-General’s observations and whether any recommendations were made.

Only a few reports had a separate protection of civilians section. Moreover, there did not seem to be any consistent approach to protection reporting, including in reports from the same mission. A minimum of consistency might have been expected. Of the three 2008 reports on the DRC one had a separate heading on protection of civilians whereas two did not (but did have a human rights, sexual violence or child protection section). Of the four reports on UNMIS three had a separate protection section, and one did not. In the case of Somalia, all the reports had a joint section on human rights and protection of civilians.

None of the nine reports on UNAMID treated protection of civilians as a separate issue even though it is a key part of its mandate. Of the Secretary-General’s other reports only the two regular reports on Afghanistan contained a separate protection of civilians section.

This lack of reporting consistency did not mean, however, that concerns about the situation for civilians were not reflected. Reports on MONUC and UNAMID had a particularly strong focus on protection issues and also drew attention to challenges in implementing protection mandates in peacekeeping missions. In his reports on MONUC the Secretary-General repeatedly emphasised that the mission’s resources were stretched to the limit, making it difficult to fulfill its mandated tasks. The Secretary-General’s UNAMID reports consistently pointed to the deteriorating situation for civilians and also emphasised the mission’s difficulties in carrying out its protection mandate because of resource constraints. The Secretary-General called on the Sudanese government to comply with its obligations under international human rights and humanitarian law, especially with regard to the protection of civilians and to cooperate with the ICC.

The reports on Chad discussed, in particular, the situation for refugees and internally displaced persons. They called on the government to stop impunity and expressed concern over reports of recruitment of child soldiers and the continued threat to humanitarian workers. On Somalia the Secretary-General repeatedly pointed out that the deteriorating security situation had grave consequences for the civilian population, in particular with regard to humanitarian access. He also drew attention to the issue of impunity and called for the establishment of a mechanism to investigate human rights violations and bring perpetrators to justice. In a report on Iraq the Secretary-General addressed the issue of conduct of hostilities, calling on all involved to respect their legal obligations and minimise the impact on civilians.

Overall, however, it seemed that the impact of the information on protection was probably low because it was often dispersed in different sections of the reports. Specific recommendations to the Council for action were extremely rare. One exception could be found in the Secretary-General’s October report on UNMIS, in which he suggested that the Council “consider holding a thorough debate on provisions related to the protection of civilians in imminent danger under Chapter VII of the Charter of the UN.”
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7. Assessment of Council Action: Three Case Studies
Analysing relevant decisions adopted by the Council provides only part of the picture of its commitment to protection issues. In order to get a better sense of Council involvement and some key challenges we looked at Council response to some recent civilian protection crises: the DRC, Gaza and Sri Lanka.

7.1 DRC
The crisis in the eastern part of the DRC that erupted in the fall of 2008 was an important test for UN peacekeeping and for the Council. Protection of civilians became a key issue. MONUC is one of the largest UN operation currently deployed with 17,000 troops and has protection of civilians at the core of its mandate.

Several events with huge impact on civilians took place in the second half of 2008. Large scale fighting erupted in August between the Armed Forces of the DRC (FARDC) and the forces of renegade general Laurent Nkunda, Congrès National pour la Défense du Peuple (CNDP). In just a few days over 100 people were killed and 100,000 displaced. There was also renewed tension between the DRC and Rwanda. Nkunda, who claimed initially to have taken up arms solely to protect his Tutsi community from attacks by Rwandan Hutu rebels (i.e., the Forces démocratiques de libération du Rwanda or FDLR/ex-Far Interahamwe, some of whom are accused of carrying out the 1994 Rwandan genocide) now called for a rebellion against the Congolese government.

On 12 September the Council was briefed on the situation by Edmond Mulet, Assistant Secretary-General for Peacekeeping Operations, and issued a press statement expressing serious concern over the renewal in fighting and its humanitarian consequences and called on CNDP to cease offensive operations. It heard another briefing on 3 October by Alan Doss, the Special Representative of the Secretary-General and head of MONUC. Doss called for temporary additional troops (two battalions) to mitigate the immediate security challenges. He also proposed an adjustment of the current troop configuration of MONUC within the current mandate and troop ceiling in order to enhance the mission’s efficiency and urged the Council to support his proposals.

Meanwhile, the clashes in eastern DRC continued to escalate. The Council did not immediately respond. It was not until 21 October that the Council adopted a presidential statement. But it only repeated concerns about the resurgence of violence in the DRC and its humanitarian consequences. It welcomed the intention of MONUC to reconfigure its forces to optimise their deployment within the current troop ceiling and mandate. It noted, but did not act on the request for reinforcements. Instead it asked for a comprehensive analysis of the situation from the Secretary-General and recommendations for the renewal of MONUC’s mandate in the next report for the Council’s consideration.

On 28 October the Council heard another briefing, this time by Alain Le Roy, Under-Secretary-General for Peacekeeping Operations. The CNDP had by then advanced to within a few kilometers of the regional capital Goma with government forces fleeing the offensive. Le Roy informed the Council that the situation on the ground was very critical and reiterated the request for MONUC reinforcements that had been made in early October. Le Roy also raised the option of a multinational force being deployed to assist in securing Goma.

On 29 October, the Council adopted yet another presidential statement. It condemned the CNDP offensive in the eastern DRC and demanded that it bring its operation to an end. It also expressed grave concern about the dramatic humanitarian consequences of the fighting and urged all parties to respect fully their obligations under international humanitarian law to protect civilians. The Council expressed its full support for MONUC and called on the mission to continue to implement fully its mandate, especially “by robust actions to protect civilians at risk and to deter any attempt to threaten the political process by any armed group”. But the Council stopped short of authorising any additional troops. Once again it noted the request for reinforcement of MONUC and said it would “study expeditiously that request in view of developments on the ground”.

Meanwhile, calls for action to enhance MONUC’s capacity to protect civilians continued to mount from humanitarian aid organisations, human rights groups and others amid reports of a worsening humanitarian situation in the eastern DRC. Human Rights Watch, Amnesty International and a coalition of Congolese NGOs appealed directly to the Council to authorise an increase in MONUC’s troop strength. On 27 and 28 October Congolese protesters attacked the UN headquarters in Goma over what they saw as insufficient protection of the population and insufficient support to Congolese government forces against Nkunda’s offensive. In the town of Kiwanja, some sixty miles from Goma, on 4 November, according to Human Rights Watch, an estimated 150 civilians were killed, most of them summarily executed by CNDP forces, with MONUC present within a few miles without taking any action.

In an initial response to the criticism Alain Le Roy rejected accusations that MONUC had failed to carry out its protection mandate. He said the mission was doing its utmost within available resources and that the situation would have been much worse had it not been present. He admitted, however, in a 7 November statement that MONUC should have done more to protect civilians in Kiwanja.

In a briefing to the Council on 11 November Le Roy, who had just visited the DRC, reiterated yet again the Secretary-General’s request for additional peacekeepers to MONUC. On 20 November the Council finally responded to the request by authorising in a resolution a temporary increase of the mission’s troop strength of up to 3,085 personnel to enable MONUC to “reinforce its capacity to protect civilians”. It also expressed concern at the deteriorating humanitarian situation and urged all parties to ensure timely, safe and unhindered humanitarian access and to comply fully with their obligations under international law.

By the time the Council authorised the temporary increase, the situation in the eastern DRC was already changing following a series of regional diplomatic initiatives that resulted in a unilateral ceasefire declaration by Nkunda on 16 November. Some claimed that MONUC’s reputation had been damaged; both from its handling of the CNDP offensive on Goma and its inability to effectively protect civilians. In his November 2008 report to the Council providing recommendations on MONUC’s future mandate and configuration, the Secretary-General defended the UN’s actions to protect civilians and pointed out that the mission’s capacity was stretched beyond its limits. At the same time, in the course of discussions among Council members in preparation for MONUC’s mandate renewal, there were recriminations between Council members. Some argued that the mandate was not sufficiently clear, others questioned the willingness of some MONUC units to robustly address the complex situation on the ground and still others were concerned about the Council indecisiveness and lack of systems to adequately monitor protection issues in real time.

On 22 December the Council adopted a resolution renewing MONUC’s mandate and extending the temporary increase in troop levels authorised in October. In the revised mandate protection of civilians was given priority over all other mission tasks, including in decisions about the use of available resources and capacity. (The previous mandate had not indicated a clear order of priorities for the mission.) It also asked the Secretary-General to ensure that MONUC’s concept of operations and rules of engagement were updated to bring them in line with the revised mandate.

The Council’s reluctance to respond to Doss’s request for MONUC reinforcements in early October seems to have been related to doubts among Council members about the feasibility of obtaining requisite funding and generating troops, especially in a situation with UN peacekeeping resources already overstretched and facing competing demands for similar capabilities from other missions (e.g. Darfur). The force of the outcry of international public opinion along with the unsettling prospect of a deteriorating regional military situation seemed to play a key role in eventually convincing Council members, especially the UK and the US, to authorise the additional troops. The persistent efforts by the Secretariat to get the Council to strengthen MONUC also appear to have been an important factor.

The decision to reinforce MONUC did not, however, have any immediate effect on the ground. Skeptics among Council members were proven right in their doubts about troop-contributing countries’ willingness to provide the needed capacities. It became clear early on that there would be a considerable lead time before the arrival of any new troops. The Secretary-General repeatedly appealed to the EU to provide an interim bridging force to temporarily support MONUC. The major European powers including Council members France and the UK were opposed, however, and no EU agreement could be reached. It was not until August 2009 that the first elements of the additional troops authorised by the Council were deployed, but even then key aerial capacities necessary to ensure their effectiveness had yet to be pledged.

The civilian population in the eastern DRC continued to suffer even after the CNDP ceased military operations. The FDLR and the LRA were still taking predatory action against civilians in the area. (The LRA had moved into previously peaceful parts of the DRC after being forced out of Uganda by the Ugandan military.) Several new military offensives were launched by the Congolese army with support from neighbouring countries and in some cases also with assistance from MONUC. But these joint campaigns did little to improve the situation for the civilian population. On the contrary, they led to reprisal attacks both from the LRA and FDLR. There were also widespread reports of Congolese army soldiers committing abuses against civilians. Human Rights Watch estimated in May that at least 200 civilians had been killed since the start of the joint campaigns against FDLR, and in June that more than 1,000 had been killed, 600 abducted and 140,000 displaced by LRA reprisal attacks.

Once again MONUC was called upon to do more to protect civilians and also faced criticism from some humanitarian organisations for participating in a campaign that only led to an increase in attacks against the population. In addition, human rights groups raised concerns about the role played by known human rights abusers in the military operations supported by UN peacekeepers, in particular Bosco Ntaganda, a former CNDP leader who has a leadership role in the Congolese army despite being under an arrest warrant by the ICC.

In a press statement on 9 April 2009 on the situation in the DRC the Council expressed support for joint operations by Congolese government forces and MONUC against armed groups, including FDLR and the LRA. MONUC was by then conducting a joint operation with the Congolese army (Kimia II) against FDLR. In a nod to protection concerns the statement also stressed that such operations should be planned jointly with MONUC and in accordance with international humanitarian, human rights and refugee law, and should include appropriate measures to protect civilians. Also, during a Council mission to Africa in May 2009, a Council delegation met with top DRC leaders, including the prime minister and the president, in Kinshasa and raised the issue of five specific former rebel commanders having been absorbed into the Congolese army despite their documented abuses against civilians. The delegation received assurances that the matter would be addressed. (MONUC had first brought the names to the DRC judicial authorities’ attention in early 2008, in letters sent by the Deputy Special Representative of the Secretary-General. In October 2009 the Congolese authorities informed the UN that two of the commanders in question were in prison in Kinshasa and the other three had been relieved of their duties, of which one had fled and the other two were awaiting further proceedings.)

While key players both in the UN and in the Council have acknowledged that the increase in reprisal attacks against civilians is an issue, they emphasise the long-term gains for the population in the eastern DRC if the FDLR and LRA are defeated. The perspective from the Secretariat’s side has been that MONUC has been doing all it can to protect civilians against reprisal attacks and has also been aiming to ensure that all Congolese army units involved in joint operations abide by international humanitarian law and protect civilians.

Several measures were taken to enhance MONUC’s implementation of its protection mandate. Multidisciplinary joint protection teams have been deployed to the main conflict-affected areas in North Kivu. The teams, which include political affairs, civil affairs, disarmament, demobilisation, repatriation, resettlement or reintegration, human rights and child protection staff are tasked with helping MONUC improve communications with local communities to promote information-sharing and analyse situations to improve protection interventions. The mission has also put in place a more effective early warning system to detect potential threats against civilians through a network of contacts with the local population and has established a rapid response cell and military quick reaction units in deployment locations.

Challenges related to MONUC’s resource limitations, as well as the threat from armed groups in eastern DRC, are not new issues for the Council. In fact, they have dominated Council discussions on the DRC for years as we saw in our first cross-cutting report on this issue when analysing Council action on the DRC over a longer time period. While the Council’s approach has always had a strong protection aspect, in particular on child protection and sexual violence as increasingly important issues, concerns about the cost of the operation and doubts about the feasibility of robust peacekeeping in the DRC and capacities of troop-contributing countries have also influenced discussions. There are also different views on whether more troops on the ground will help, or whether only a robust force with the required capabilities can make a difference, in particular for civilians. Discussions are likely to continue on MONUC’s mandate and resource requirements as the Council prepares for the mission’s mandate renewal in December.

7.2 Gaza
The Israeli military operation against Gaza was launched on 27 December 2008 after the expiry of the ceasefire between Israel and Hamas that had previously established a relative calm. Israel’s announced purpose was to exercise its right of self defense in response to Hamas’s firing rockets against civilian targets on Israeli territory.

The Council held an emergency meeting that same day and adopted a press statement on 28 December, proposed by the US and negotiated with the Arab Group, expressing serious concern at the escalation of the situation in Gaza and calling for an immediate halt to all violence. It also called on all parties to ensure continuous provision of humanitarian supplies. However, it did not address the obvious risks to civilians.

Arab foreign ministers met in Cairo on 31 December in an emergency session of the Arab League to discuss the crisis. They agreed to push for a Council resolution strongly condemning all military attacks and calling for an immediate ceasefire. With the civilian impact in mind, the proposed draft also condemned excessive, disproportionate and indiscriminate use of force by Israel.

Libya introduced the draft resolution to the Council which held a debate on New Year’s Eve with the participation of the Secretary-General and the representatives of Israel and Palestine. The Secretary-General condemned both indiscriminate rocket attacks by Hamas and the disproportionate response of the Israeli military. However, the US and some other members called the draft resolution unbalanced because it made no mention of halting Hamas rocket fire.

Another Council meeting on the situation was held on 3 January, once again at the request of Libya, who also introduced for urgent adoption a draft presidential statement with similar language to the 28 December press statement. Despite apparent wide support for Council action and an initial agreement between the P5 and Libya on the format and content of the text, adoption was blocked due to American objections to the timing. The Council president instead made an oral statement to the press emphasising Council members’ concern at the escalation of violence and the humanitarian situation, their expressions of support for diplomatic efforts to resolve the crisis and to resume peace talks, and the need for an immediate ceasefire and for the parties to protect civilians.

Meanwhile, pressure on the Council to act continued. On 5 January the foreign ministers of Saudi Arabia, Jordan, Syria, Qatar, Lebanon, Libya, Egypt and Morocco and Arab League Secretary-General Amr Moussa arrived in New York to push for the adoption of a resolution. In parallel, France, after consulting with the US and the UK, proposed elements of a presidential statement to be adopted immediately. Those elements included a call for an immediate and durable ceasefire and for the opening of crossing points; the provision of humanitarian assistance; the establishment of a monitoring mechanism to ensure that there would be no further weapons smuggling; and the return to the peace process. While it seemed that the Arab ministers were in principle not opposed to elements along those lines, they insisted that the format be a resolution.

Following another open Council debate on 6 and 7 January (it stretched over two days because of the number of speakers which was 38), and difficult discussions among Arab foreign ministers and France, the UK and the US, agreement was finally reached on a draft resolution (S/PV.6061 and resumption 1). The resolution was adopted by the Council on 8 January with 14 votes in favour and the US abstaining. It called for an immediate, durable and fully respected ceasefire leading to the full withdrawal of Israeli forces from Gaza and condemned violence against civilians and acts of terrorism. It also called for the unimpeded provision and distribution throughout Gaza of humanitarian assistance.

In spite of the grave situation for civilians in Gaza, the Council had tremendous difficulties reaching agreement on a resolution. It was only on day 13 of the military offensive that a resolution was adopted. Most Council members were ready to act quickly in view of the increasing civilian casualties and grew increasingly frustrated with the delay in reaching an agreement. It seems that the initial problem was the US reluctance to agree to any resolution at all. By contrast, the Arab Group, with Libya as its spokesperson in the Council, was adamant that the Council should adopt nothing less than a binding resolution. This struggle over the form of a Council decision was given priority by both sides over an immediate focus on the protection of civilians—which could have been addressed substantively in any format.

When the Council finally adopted resolution 1860 on 8 January many welcomed the shift in the US position. US moved to an abstention—instead of a traditional veto. It was the first time in many years that the US did not block Council action which might constrain Israel’s options. There was disappointment, however, over the resolution’s language on protection. While it condemned violence against civilians, there was no reference to international humanitarian law or the importance of accountability.

Both Hamas and Israel rejected the resolution. Israel continued its operation in Gaza. Israeli shelling of several UN facilities led to further strong international reactions. At least forty people were killed in the Jabaliya refugee camp by Israeli shelling near a UN school on 6 January. The UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) headquarters in Gaza was partly destroyed on 15 January after being hit by Israeli shells. Secretary-General Ban Ki-moon expressed outrage and demanded an investigation. France, Germany and the UK condemned the attack and the EU also expressed concern. The Council received a briefing on the incident from Assistant Secretary-General Haile Menkerios. However, no formal Council statement was issued although the Council president, French Ambassador Jean-Maurice Ripert, said to the media after the meeting that all Council members expressed grave concern at the situation and called on all parties to respect international humanitarian law and to ensure the protection of civilians.

On 17 January Israel declared a unilateral ceasefire and on 21 January completed a full troop pullout from Gaza. Also on 21 January, following a briefing by the Secretary-General, the Council adopted a press statement welcoming the ceasefire and reiterating concern for the humanitarian situation in Gaza, stressing the need for unimpeded provision and distribution of humanitarian aid and recalling the obligations of all parties to ensure respect for international humanitarian law—somewhat late in the process given that by then the fighting had subsided.

Following the establishment of a ceasefire, focus shifted to the importance of accountability and the need to investigate violations of international humanitarian law and also to open up Gaza’s border crossings (a blockade was imposed in 2007 when Hamas took control of Gaza). Approximately 1,300 Palestinians were killed as a result of the Israeli operation, including 700 civilians (about 400 of them children), and more than 5,300 were injured, according to Gaza medical officials. (Amnesty International reported similar numbers.) The fighting caused huge damage to civilian infrastructure. More than 40,000 Gazans were displaced to UNRWA camps. On the Israeli side, 13 people died, including ten soldiers. There was renewed pressure on the Council to act.

In a briefing on 27 January, John Holmes said that the use of civilian installations by Hamas and the indiscriminate firing of rockets by Hamas against civilians were clear violations of international humanitarian law. He also said that the Israeli Defense Forces had failed to protect civilians and humanitarian workers in Gaza. In addition, Israel’s operations also raised questions about respect for international humanitarian law, in particular respect for the principles of distinction and proportionality. Holmes underlined that there must be accountability. This was followed by a briefing from UNRWA Commissioner-General Karen Koning AbuZayd, the first ever UNWRA briefing to the Council. AbuZayd stressed the need for further action, in particular to ensure the opening of all Gaza borders and to investigate violations of international law, especially attacks directed at the UN. On 16 March a group of eminent persons, including Desmund Tutu and Mary Robinson, wrote to the Secretary-General and Council members calling for the establishment of a UN commission of inquiry to investigate all serious violations of international humanitarian law committed by all parties to the conflict and provide recommendations on prosecution of those responsible.

On 21 January, after recognising the jurisdiction of the ICC, the Palestinian Authority requested the court to investigate war crimes committed by all sides during the conflict. The ICC is examining whether it can accept this request in view of the fact that the Palestinian Authority is not a state party to the court.

On 3 April the Human Rights Council established a fact-finding mission headed by Richard Goldstone, a former prosecutor of UN ad hoc tribunals for Rwanda and the former Yugoslavia, to “investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009.” The appointment followed the adoption of a resolution by the Human Rights Council at a special session on 12 January. The resolution strongly condemned the ongoing Israeli military operation in Gaza, called for the immediate cessation of military attacks and the withdrawal of Israeli forces, demanded that the occupying power stop the targeting of civilians and medical facilities and decided to dispatch an independent fact-finding mission. It also requested the Secretary-General to investigate the targeting of UNRWA facilities in Gaza.

Meanwhile, the Security Council was clearly divided on whether to take any action on the question of accountability. In February the Council welcomed the Secretary-General’s decision to establish a UNBoard of Inquiry led by Ian Martin (of the UK, former head of the UN mission in Nepal) to investigate all incidents involving death and damage at UN premises in Gaza between 27 December and 18 January. But the Council did not take up the conclusions of the Board of Inquiry’s report when these were submitted to it on 5 May.

The Board concluded that in six cases Israel was responsible for deaths, damages and injuries at UN premises. It also found Palestinian factions responsible for physical damage in one incident. The Board recommended that the UN seek formal acknowledgement by Israel, accountability and reparations, and obtain guarantees from Israel against the repetition of such incidents. It also recommended future establishment of a stand-by arrangement to deploy trained investigators rapidly to any UN presence. Finally, it recommended that all allegations of international humanitarian law violations in Gaza and southern Israel be investigated by an impartial inquiry.

The Council failed to agree on holding consultations on the report. It did agree, however, on 13 May under “other matters”, to discuss a draft resolution which had been introduced by Libya welcoming the report, condemning Israel for its actions in Gaza, calling for accountability and reparations and calling for further investigation into humanitarian law violations by Israel. But the divisions on the substance of the issue remained and there was no agreement on a draft. In remarks to the press, the Council’s president said that Council members had expressed their appreciation for the information provided by the Secretary-General. They had also expressed concern about the report’s findings and general interest in being kept abreast of progress as the Secretary-General deemed appropriate.

On 15 September the report of the fact-finding mission established by the Human Rights Council, or the Goldstone report, was released. It recommended that the Security Council should require Israel to conduct its own investigation and report back to the Council within three months and that the Council should establish an independent committee to monitor proceedings undertaken by Israel or by relevant Gaza authorities and report back within six months. If the Council deemed these proceedings inadequate, the situation should then be referred to the ICC.

The Goldstone report was formally presented to the Human Rights Council on 29 September but a decision on a Palestinian draft resolution endorsing the report’s recommendations in full was deferred until March 2010. Following the deferral, Libya requested a meeting of the Security Council to discuss the report, but failed to gain enough support. Instead, the Council agreed to move its monthly meeting on the Middle-East forward on the Council’s programme of work from 20 October to 14 October. At the 14 October open debate an overwhelming majority of Council members said that it would be premature to consider the Goldstone report until it had been acted upon by the Humans Rights Council.

The Human Rights Council meanwhile, at the request of Palestine, reversed its previous decision and convened a special session on 15-16 October where a resolution was adopted which endorsed the Goldstone report’s recommendations. It called on all parties concerned, including relevant UN bodies, to ensure their implementation and requested the Secretary-General to submit a report to the next session of the Human Rights Council on the status of implementation.

Security Council members have clearly been very cautious on the issue of accountability in relation to the Gaza crisis. Some delegations have made statements emphasising the importance of respect for humanitarian law and addressing impunity and seemed open to a Council follow-up to the UN Inquiry, but have not been willing to take any initiative. Others, including France, the UK, Japan, Turkey and Uganda seem to believe that, while accountability is important, it might not be timely to address this issue as it might hamper the peace process. The US clearly does not want the Council to get further involved.

The Israel/Palestine question has historically been a very divisive issue in the Council. It should therefore have come as no surprise that it would prove very difficult to reach agreement on any strong language to address the military conflict itself. But it is less clear why more agreement could not have been pursued by all sides on the more limited and focused question of civilian protection. The Council clearly missed an opportunity to send a strong signal about the importance of international humanitarian law and protection of civilians at the outbreak of the fighting.

The Gaza case underlines a key question for protection of civilians in the future. Can Council practice evolve so as to allow for a less politicised track involving decisions on protection of civilians in imminent danger at a much earlier stage and separate these elements from its discussion of the other more controversial dimensions of a conflict?

7.3 Sri Lanka
The intensified conflict in Sri Lanka in late 2008 and the first part of 2009 provides an example of a case where civilians were at risk and protection of civilians norms were relevant but where the conflict situation itself was not on the Council’s agenda. The Council first became engaged in the situation in Sri Lanka in a humanitarian context when on 27 February 2009 it heard a briefing by John Holmes following a visit to the country. It took place in closed consultations under “other matters”. By then the risks for civilians trapped in the fighting between the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE), had already reached a critical stage.

Following the breakdown in 2006 of the 2002 ceasefire agreement between the government and LTTE there had been a steady escalation of the conflict between the two sides. In July 2007 the Sri Lankan government announced a new military campaign to take control of LTTE’s stronghold in the north of the country, the Vanni. By the end of 2008 government forces had succeeded in capturing most of the territory formerly occupied by LTTE, confining the rebel group’s control to a small area. But this area also contained a very large number of civilians. In September 2008, Sri Lankan Defense Secretary Gotabhaya Rajapaksa ordered the UN and international humanitarian aid organisations to leave the Vanni area claiming this was necessary for security reasons. Restrictions were also put on the media and human rights groups.

The fighting in Vanni demonstrated the significant risks that these civilians were facing, as they were trapped in the conflict zone in an ever shrinking space. In September 2008 the Secretary-General had issued a statement expressing deep concern over the increased hostilities in northern Sri Lanka and the grave humanitarian consequences for civilians. He also recalled the importance of humanitarian access and the obligation to respect international humanitarian law. There were also several statements from NGOs such as Amnesty International and Human Rights Watch warning of the risk of large-scale civilian casualties if the conflict continued to escalate. There were reports that LTTE fighters were hiding among civilians, using them as human shields and preventing them from leaving the conflict zone while the government was criticised for indiscriminate shelling with heavy artillery of areas with a high concentration of civilians. However, because of restrictions on access, few independent sources of information were available.

In spite of these developments, the Council did not respond either to the protection crisis facing these civilians or the need for a resolution of the conflict. By the time Holmes briefed the Council in February humanitarian organisations estimated that 250,000 people trapped in the conflict zone were in need of protection and that the combination of its small area and the intensity of the fighting was creating disproportionate risks for civilians. The Secretary-General had spoken to the Sri Lankan president, reiterating his concerns. The Sri Lankan government had rejected calls by the US, the UK, Japan and the EU for a negotiated truce, stating as its objective the unconditional surrender of LTTE.

There were strong objections from the Sri Lankan government against any formal Council involvement whether focused on the conflict or on the risks to civilians. Despite Holmes’s briefing Council members remained divided. The situation therefore continued to be discussed outside the Council for a further month. Eventually, agreement was reached that the Council members should take up the issue of the civilian protection crisis. But this would take place in a new informal format called an “interactive dialogue” in which the Sri Lankan ambassador was invited to participate. The first of these took place on 26 March 2009. The members met in a closed informal meeting in a regular UN conference room rather than one of the Security Council meeting rooms.

A further such meeting was held on 22 April. This time the Council was also briefed by the Secretary-General’s Chief of Staff, Vijay Nambiar, on his recent trip to Sri Lanka and by Catherine Bragg, Assistant Secretary-General for Humanitarian Affairs. After the meeting the president of the Council, Mexican Ambassador Claude Heller, in speaking to the press said that Council members had expressed deep concern about the humanitarian situation in the Vanni region and the plight of civilians. They also condemned LTTE for its use of civilians as human shields and urged all parties, including the government, to abide by their obligations under international humanitarian law. However, it was not a formal press statement, which Council members had been unable to agree on, but was termed “informal remarks to the press.”

A third session of the interactive dialogue on Sri Lanka took place on 30 April. Finally, on 13 May, the Council issued a formal press statement on Sri Lanka after having met in closed consultations to discuss the humanitarian situation under “other matters.” (It was preceded by a meeting in New York on 11 May, hosted by the foreign ministers of the UK, France and Austria, of humanitarian organisations and concerned UN members, including eight Council members.) The statement expressed grave concern over the humanitarian crisis in northeast Sri Lanka and called for urgent action by all parties to ensure the safety of civilians. It condemned the LTTE for terrorism and the use of civilians as human shields, and demanded that it lay down its arms and allow civilians to leave the conflict zone. It also expressed deep concern at reports of continued use of heavy caliber weapons (because of the risks of such weapons to civilians in the circumstances) and called on the Sri Lankan government not to use such weapons.

Throughout this process several factors contributed to the Council’s failure to become effectively involved in the protection of civilians situation in Sri Lanka at an earlier stage. There were clear divisions among Council members. Some, such as China, viewed the conflict strictly as an internal matter. Others, such as Russia, defended the government’s right to fight domestic terrorism as it saw fit. But many argued that even in such cases the Council had a responsibility to address the risks to civilians and should take action to address the humanitarian situation and press the parties to comply with their legal obligations towards civilians. European and Latin-American members in particular were pushing for a Council discussion on the Sri Lankan crisis several weeks before Holmes’s first briefing in February. But the inability to separate the protection of civilians from wider issues regarding the status and management of the conflict was an obstacle for many months.

NGOs were particularly active in lobbying Council members to have the situation in Sri Lanka formally put on the Council’s agenda and adopt a presidential statement or other formal action. In a joint letter to the Japanese prime minister on 11 May Human Rights Watch, Amnesty International, International Crisis Group and the Global Centre for the Responsibility to Protect called on Japan to support efforts to consider Sri Lanka formally in the Council, in particular to ensure humanitarian access and create a UN commission of inquiry to examine violations of international humanitarian law by all sides. (Japan is the largest international donor to Sri Lanka and, although supportive of informal Council discussions, was seen as reluctant to have it on the formal agenda.)

Many Council members also supported inclusion of Sri Lanka on the Council’s formal agenda. Members like the UK, France and Austria said very clearly in press briefings that they believed Sri Lanka should be formally considered. Latin-American members also appeared to support this view. The 13 May Council press statement came about as a result of increasing pressure for action from UK and France in particular, as well as from public opinion in many countries and recognition by all fifteen members that there was a real protection of civilians issue. However, no Council member seemed to be willing to trigger a request under the provisional rules of procedure of the Council for a formal meeting. A decision to hold such a meeting would almost certainly have required a procedural vote. There were probably the necessary nine votes for such a decision but perhaps members held off in the knowledge that this might have caused bitterness which would work against securing sufficient votes for any substantive action.

It seems that members were persuaded that the option of the informal interactive dialogue with the Sri Lankan ambassador held greater prospects for impacting events on the ground. Certainly it was an important innovation that allowed for discussions of a divisive issue that otherwise might not have taken place. More specifically, it created a mechanism for Council members to directly impact the Sri Lankan government and call for specific action, albeit informally.

The military conflict ended on 18 May when the Sri Lankan government declared that the LTTE had been defeated. But concerns about the protection of civilians remained. Civilians who escaped the fighting and entered government-controlled territory were put in strictly controlled camps with limited humanitarian access. There were serious concerns about access to the camps, about the need to initiate a process of national reconciliation and for the establishment of a commission of inquiry to investigate violations of international humanitarian law by both the government and LTTE forces during the conduct of hostilities. On 5 June the Council heard another briefing on Sri Lanka, this time by the Secretary-General following his visit to the country on 23 May. However, there was a general sense that these issues should be addressed, at least initially, in other UN fora than the Security Council. At press time, concerns continued to be raised about the extent of humanitarian law violations during the military offensive and about the continuing inability of many civilians held in camps to return home.
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8. Protection of Civilians Issues Involving UN Peacekeeping Operations
UN peacekeeping operations constitute one of the major tools for Council action on protection of civilians. In addition to providing physical protection, these operations carry out a number of other important protection tasks including promotion and protection of human rights, especially for women and children, rule of law capacity building, disarmament of ex-combatants and security sector reform assistance, as well as coordination of humanitarian agencies.

However, there are real challenges for peacekeeping missions in implementing protection mandates. The issues in this regard that we identified in our 2008 report have not yet been resolved. There is still an absence of overall protection guidelines and of a common understanding of what protection of civilians actually entails in spite of the Council’s intention expressed in 2006 in resolution 1674 to ensure that missions have clear guidelines. Operations continue to suffer from a mismatch between mandates and expectations on the one hand, and resources on the other, not least because of the increasing complexity of conflicts and the multidimensional nature of UN involvement.

The increasing demand for UN peacekeeping operations has only exacerbated these problems as global resources become further overstretched. It has become increasingly difficult to generate additional personnel and necessary military capabilities. Fifteen peacekeeping operations with a total of 83,000 uniformed personnel, almost 12,000 police and 23,000 civilian staff are currently deployed (as of 31 August 2009). Political, military and financial challenges resulting from the scale and complexity of these operations have led to a wider debate on peacekeeping within the UN system over the past year and several new initiatives have been launched.

In late 2008 DPKO and OCHA together commissioned an independent study to be conducted by outside researchers on implementation of protection of civilians mandates in UN peacekeeping operations. The objective was to analyse the actual impact on the ground of including protection mandates in peacekeeping operations, examine steps taken by relevant actors to implement these mandates and make recommendations on how the UN can enhance its ability to protect civilians. The study included field trips to Sudan, the DRC and Côte d’Ivoire. The final report, which was originally anticipated in July this year, is scheduled for publication in early November. There seem to be expectations that the recommendations will provide new insights on how to enhance protection.

Other initiatives have also addressed the issue of implementing protection mandates. The DPKO and the Department of Field Support launched an internal review of peacekeeping under the name “New Horizon”. The conclusions and recommendations of the review were presented in July in a non-paper which also provided an assessment of key challenges confronting UN peacekeeping. It was intended as a contribution to the wider debate on peacekeeping and was meant to stimulate discussion among all stakeholders on the future of UN peacekeeping.

The non-paper identified protection of civilians as one of three cross-cutting peacekeeping tasks that present particular challenges. (The other two were robust operations and peacebuilding.) It noted that there had been some progress in addressing the gap between expectations and capacity to protect. Some missions had started developing practical guidance and testing techniques for responding to civilian protection challenges. Other initiatives included development of mobile operating bases, integrated protection teams and integrated planning processes. The paper argued, however, that a more comprehensive approach was needed, in particular to integrate activities of police, rule of law, human rights and humanitarian actors in the field which go beyond mere physical protection. It concluded that the UN should take the lead in developing a clear and comprehensive concept and appropriate guidance for the implementation of protection of civilians mandates and identify the required capacities, equipment and training. This work is expected to draw on the findings of the independent study on implementation of protection mandates.

In the Council, France and the UK initiated a peacekeeping review process during France’s presidency in January 2009 to improve the way the UN system and the Council in particular handle peacekeeping issues. It focuses on three challenges: effective strategic oversight (preparation, planning and evaluation of operations); resource constraints; and mandate implementation. Following a 5 August open debate on UN peacekeeping the Council adopted a presidential statement which identified areas where further discussion was needed to improve the effectiveness of peacekeeping operations. It also recognised that further work on protection of civilians mandates was necessary, including in the General Assembly’s Special Committee on Peacekeeping Operations (C-34). The next step in the review process is planned for early 2010.

The Security Council Working Group on Peacekeeping Operations under the chairmanship of Japan (which joined the Council in January) has been actively involved in the peacekeeping review process. The Working Group has been meeting more frequently and has agreed to revitalise its work by discussing challenges facing troop contributing countries in the context of specific missions. The key issue being discussed is the gap between mission mandates and implementation. Japan seems keen also to address implementation of protection mandates and the issue has already been part of the discussions in the Working Group.

There was also an important development relating to protection of civilians in the General Assembly. In March 2009, the Special Committee on Peacekeeping Operations, which meets annually to “conduct a comprehensive review of all issues related to peacekeeping” for the first time addressed protection of civilians in its report, acknowledging that protection of civilians is one of the mandated tasks of UN peacekeeping operations, requiring integration and a comprehensive approach. The Special Committee also asked the Secretary-General to present proposals to improve the ability of existing peacekeeping operations to respond to situations where civilians are under threat and provide information on resources, training and concepts of operation with regard to protection mandates.

It remains to be seen whether these new developments will lead quickly to better guidelines on protection tasks for UN peacekeeping operations. While the signs are encouraging, bringing all these strands together and creating a common understanding on protection of civilians between all stakeholders involved, including the Council, troop-contributing countries, the General Assembly and host countries will be a significant challenge. A related question is whether the Council should itself seek to drive the process or develop detailed operational guidance to UN missions on the consistent interpretation and implementation of protection mandates or whether this should be done in a partnership with the Special Committee on Peacekeeping Operations, or indeed even left to the Secretary-General. An important next step in the process of establishing guidelines is likely to be the next session of the Special Committee, taking place in early 2010, when the Secretary-General will have an opportunity to present new ideas on protection of civilians in peacekeeping operations.
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9. Council Dynamics
In our 2008 cross-cutting report we concluded that prospects for better progress on protection issues in the Council were not very encouraging. However, several factors seem to have contributed to a different atmosphere this year.

First, the change in Council membership at the beginning of the year created a new dynamic. The new members (Austria, Japan, Mexico, Turkey and Uganda) seem to have shifted the balance in the Council in favour of more focus on protection issues. The establishment in January of the informal Council expert group on protection of civilians, which seemed unlikely only a year ago, was seen as an important step forward.

Secondly, the innovative thinking that has emerged on peacekeeping challenges during 2009 has led to increased focus on the importance of implementing protection mandates and in particular the need for agreed guidelines on protection tasks.

Also, the kinds of crises that have challenged the Council in 2008 and 2009 have had an important impact. Events in Gaza, the DRC and Sri Lanka have galvanised public opinion and increased pressure on Council members to improve their performance.

But despite all these developments the Council has still seemed to demonstrate a persistent inability to act effectively in some of the worst situations for civilians. Council dynamics and Council working methods seem to combine to limit members’ ability to find ways to translate thematic principles into effective action in specific conflict situations. Recent crises have clearly demonstrated the tension between members’ political interests and their protection commitments. In other cases lack of political interest, including lack of willingness to contribute resources to peacekeeping operations or other missions with a protection mandate also proved to be part of the problem. Yet another difficulty that was demonstrated during the year was the absence of effective mechanisms to alert the Council to crises in situations not yet on its agenda.

Divisions remain among Council members on the general approach to the issue of protection of civilians. There are still fundamental differences between those members with strong national positions on protection, such as European and Latin American countries that are generally supportive of more Council involvement both at the thematic level and in country-specific situations, and other countries, most notably China and Russia and some Non-Aligned Movement (NAM) members that take a more cautious approach. The latter emphasise that protection responsibilities first and foremost should be assumed by national governments and that international involvement, including Council action, must respect territorial integrity and the will of national governments exercising their sovereignty. China and others argue that there should be more focus on prevention and peaceful conflict resolution and emphasise that actors other than the Council must be more involved, including the General Assembly, the Economic and Social Council, the UN Development Programme, the World Bank and regional organisations. These divisions tend to translate from the thematic approach into the country-specific issues.

On the question of accountability, China, Russia and some NAM Council members argue that the main avenue for fighting impunity and ensuring justice must be national authorities. They are therefore very reluctant to refer situations to the ICC or authorise other international investigations and are also hesitant about threatening to use or impose sanctions in the case of violations of international humanitarian law.

Libya has taken a strong position on protection issues this year, but focusing almost exclusively on Gaza. In the open thematic debates on protection, both in January and June, Libya called for more international involvement to ensure accountability for violations of international humanitarian law, including through referral to the ICC. (At the same time, however, Libya has been strongly opposed to the ICC arrest warrant for Sudanese President Omar al-Bashir.)

Some Council members are very sensitive about the issue of enhancing compliance with international humanitarian law by non-state armed groups through increased engagement, which was one of the recommendations in the Secretary-General’s last report on protection of civilians. The report concluded that there was an urgent need to develop a comprehensive approach towards improving compliance by such actors, including through engagement, as well as enforcement and proposed the convening of an Arria formula meeting to discuss past experience with engagement and measures to improve compliance.

A key dynamic at work within the Council relates to the tension between protection of civilians and counter-terrorism. Some members, including Russia, China and Turkey, are concerned that engagement with or even the Council discussing conflicts involving certain non-state armed groups would risk legitimising and giving comfort to terrorist organisations. Russia has argued that any contact between humanitarian organisations and non-state actors can be established only with the consent of the relevant government and must be approached with great caution. Both China and Turkey have emphasised that combating terrorism is the right and obligation of national governments and even implied that rules relating to armed conflict have no application. Other members, however, take a different view. And on the specific issue of engagement with combatants, they seem persuaded that the Secretary-General’s recommendations, including for organising an Arria formula meeting, make sense. Many, notably France, argue that respect for international humanitarian law is always relevant and cannot be subordinate to combating terrorism.

Implementation of protection mandates in peacekeeping operations is an issue which most Council members support. Some members are focusing on how to enhance implementation. But others appear more concerned about the need for first developing a common understanding among UN member states about what peacekeeping operations should be mandated to do and what they should not do. Members are also mindful that the Council should not infringe upon the role of the General Assembly’s Special Committee on Peacekeeping Operations, in particular on the issue of protection guidelines.

Most Council members seem to find the informal expert group on protection a very useful beginning, both as a means to improve information to the Council on protection issues and as a way to enhance internal coordination between thematic and geographic experts, in particular by bringing thematic expertise more into the negotiation process. Russia seems to be positively but cautiously engaged, but is perhaps not yet fully convinced of the added value. China’s non-participation is not yet seen as a major issue. Most members seem happy to keep the informal nature of the group for now.

The UK, which has the chair of the group, seems to favour a cautious evolutionary approach. DPKO has been invited to attend the meetings in addition to OCHA. A proposal to allow OCHA to distribute written documentation was not accepted; mainly it seems because of concerns by some that it might have given the appearance of formalising the group.
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10. Future Options for the Council
To date the Council has received over 100 recommendations from the Secretary-General in his reports on protection of civilians. Some of these recommendations overlap and some have been implemented or have become part of Council practice, but many have not and are still relevant as options for the Council to consider. In fact, most of the recommendations in the Secretary-General’s 2009 report on protection of civilians are not new, but are similar to those in previous reports. (Please refer to Annex III for a complete list of the Secretary-General’s recommendations to the Council.)

There are also a number of other options available to the Council to improve its performance on protection of civilians, in particular in country-specific situations.

10.1 Improving the Tools at the Council’s Disposal

A first possible option is to consider ways to improve the tools at the Council’s disposal to address protection of civilians issues. These tools comprise the revised aide-mémoire, the informal expert group on protection of civilians, the reporting by the Secretary-General and other UN actors (for example the Human Rights Council or the General Assembly), briefings to the Council and deployment of peacekeeping missions. Possible options for improvement of these tools include:

10.2 Enhancing Compliance in Country-Specific Situations
At the country-specific level, a key issue seems to be ensuring compliance with Council decisions and other legal obligations, as well as accountability for violations. Options for the Council might include:

10.3 Strengthening Action on Mediation and Regional Cooperation
In addition the Council could consider the following options on some other issues that could have a significant impact.

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