Emerging Voices: Protecting the World’s Children: R2P and Measures Less-Than-Force

[Stacey Henderson is a PhD Candidate and Teaching Fellow at Adelaide Law School, The University of Adelaide, South Australia]

Children are among the most vulnerable during armed conflict.  The existence of special protections for children in the 1949 Geneva Conventions, and the existence of the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, all attest to the special vulnerability of children.  The security of children during armed conflict has even been recognised by the Security Council as being a matter of international peace and security (see for example: SCR 1261, SCR 1314, SCR 1379).  Given the importance of protecting children and other vulnerable groups during armed conflict, does the concept of the Responsibility to Protect (‘R2P’) clarify the principles governing international responses to atrocity crimes?

At its heart, R2P is about duty – the primary duty of states to protect their populations from atrocity crimes and the secondary duty of the international community to ‘use appropriate diplomatic, humanitarian and other peaceful means’ to help protect against atrocity crimes and to take action through the Security Council when the state ‘manifestly fails’ to protect its population.  Even if it is R2P-lite (.pdf), this formulation of R2P and the duty of the international community which flows from it, in practice appears to allow considerable scope for the international community to take significant steps to intercede in armed conflicts where atrocity crimes are being committed, provided those measures do not cross the threshold of use of force in the absence of a Security Council resolution.  In order to distinguish these less-than-force measures from the baggage that comes with the term “intervention,” in my view they are better described as “intercession.”  Although in its early stages, my research indicates that these less-than-force measures (intercession) include unilateral sanctions, trade restrictions, diplomacy, withdrawal of aid funding and even non-lethal support to rebel groups (.pdf).  These are measures taken by states, without Security Council authorisation, which are less than the use of force, but which appear to be the site of the most significant opportunities for change that protects the most vulnerable, including children.

The increasing use of intercession by the international community in response to modern armed conflicts reveals an emerging norm in international law which recognises that there are international obligations to protect human rights, particularly the human rights of the most vulnerable such as children, and humanitarian ideals that are more important than, and overtake, sovereignty when atrocity crimes are being committed.  This emerging norm is revealing itself through state practice, for example, the prevalent use of sanctions in many African conflicts.  The European Union (‘EU’) sanctions (.pdf) in force against Sudan includes travel bans on individuals who ‘commit violations of international humanitarian law or human rights law or other atrocities.’  Among the EU sanctions (.pdf) in force against the Democratic Republic of Congo (‘DRC’) are travel bans and freezing of funds and economic resources of ‘individuals and entities recruiting or using children in armed conflict’ or who are ‘involved in the targeting of children or women in situations of armed conflict.’  Further, in relation to Syria, the EU has adopted an array of less-than-force measures designed to put pressure on the Assad regime.  These measures include ‘a ban on the import of arms and related material from Syria, export restrictions on equipment that could be used for repression, an import ban on crude oil and petroleum products from Syria, the freezing of the Syrian central bank’s assets, asset freezes on a number of entities and persons, and travel restrictions for a specific list of individuals associated with repression.’  At the same time as utilising these less than force measures (intercession), through its EU Children of Peace initiative, the EU has provided humanitarian assistance for the education of children in conflict zones, including among others the DRC and Syria in 2013.  This is entirely consistent with the duty of the international community flowing from R2P to ‘use appropriate diplomatic, humanitarian and other peaceful means’ to help protect against atrocity crimes.  It evidences an emerging norm in international law which recognises that there are international obligations to protect human rights, particularly the human rights of the most vulnerable such as children.

This emerging norm is also finding expression in treaty texts.  For example, the preamble to the Arms Trade Treaty (‘ATT’) (not yet in force) (.pdf) expressly refers to respect, and ensuring respect, for international humanitarian law and international human rights law as being key principles.  If it enters into force (at the time of writing it requires 9 more ratifications before it does so), the ATT will place a duty on states parties to take into account the risk of conventional arms being used ‘to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children’ prior to exporting those arms (Art 7(4)).  Further, states parties will have a duty to consider the ‘overriding risk’ of serious violations of international humanitarian law or international human rights law being facilitated or committed before they authorise any export of conventional arms (Art 7(1)).  This is entirely consistent with the duty on the international community under R2P.  It will require states parties to consider the impact or likely impact of an export of conventional arms in light of its duty to the international community and the most vulnerable, including children.  Whether it ultimately leads to a reduction in the commission of atrocity crimes or not, the fact that an international treaty regulating the trade in conventional arms exists at all indicates significant normative change.  It is consistent with an emerging international legal consciousness which requires states to take into account considerations of international human rights law, international humanitarian law and the duty flowing from R2P in decision making.  It is indicative of the idea, flowing from R2P, that there are international obligations to protect the human rights of the most vulnerable, especially children, which become more important and trump sovereignty when atrocity crimes are being committed.

The increasing use of intercession by the international community suggests that R2P is more than clever marketing.  R2P-lite is not too weak to matter.  It is the site of dynamic and important modern practice which presents the most significant opportunities for change that protects the most vulnerable, including children.  It has led to states reimagining what their duties are.  It has resulted in states developing new understandings of what is permissible conduct in response to atrocity crimes with an increasing array of less than force measures (intercession) being available and utilised.  It is no longer a simple binary choice between doing nothing, and the use of force.  The international community can intercede in armed conflicts to protect the most vulnerable.  Whether it chooses to do so is another question entirely.