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Protection of Civilians Symposium: The Obligation to Protect Civilians     

by Siobhan Wills

[Siobhán Wills is a Professor of Law at the Transitional Justice Institute, Ulster University, Northern Ireland. This post is a part of the Protection of Civilians Symposium.]

In 2014 the UN Office of Internal Oversight Services published an ‘evaluation of the implementation and results of Protection of Civilians mandates in United Nations peacekeeping operations’ which:

noted a persistent pattern of peacekeeping operations not intervening with force when civilians are under attack…Partly as a result…civilians continue to suffer violence and displacement in many countries where United Nations missions hold protection of civilians mandates.

One of the many questions arising from this report is whether UN peacekeepers that have a mandate authorizing them to use force to provide protection are legally obliged to take action to protect civilians that are being attacked or about to be attacked.

My chapter in Protection of Civilians (eds Haidi Willmot, Ralph Mamiya, Scott Sheeran, and Marc Weller), argues that peacekeepers do have protection obligations but they are not obliged to use force to protect civilians even if the Security Council resolution mandating the mission authorizes them to do so, and even if the mission is well positioned to be able to use force in the particular circumstances. This is not a shortcoming in the legal regulation of peacekeeping. If peacekeepers routinely avoid using force to protect civilians when to do so would save lives, host state residents are unlikely to hold the mission in high regard; but to legally oblige a commander to use force to protect civilians on every occasion on which it would be feasible to do so, would likely cause serious operational problems and might prompt attacks on civilians in order to tie up mission personnel.

Traditionally peacekeeping mandates have been regarded as having a powers-creating character that does not create any obligation to act. Some peacekeeping mandates contain paragraphs that it would be difficult to interpret as merely powers-creating. For example S/Res 1996 authorized the UN Mission in South Sudan (UNMISS) to ‘report immediately’ gross violations of human rights to the Security Council. It makes no sense to interpret ‘report immediately’ as purely powers-creating unless the addressee is normally prohibited from reporting immediately – otherwise the adverb ‘immediately’ would be redundant.  But, such inconsistences notwithstanding, Security Council resolutions as a whole do not appear to be drafted with a view to creating obligations. The phrase ‘all necessary means,’ which is used to authorize force, is a euphemism and hence inherently opaque as to the scope and nature of the obligations that follow from its use. But the fact that a Chapter VII mandate authorizing use of force to protect of civilians does not create an obligation to use force (even if it is the only means of saving lives), does not mean that the mission has no obligation to provide protection pursuant to the ‘all necessary means’ authorization set out in the mandate.

Although the UN is not a party to any international treaties, it has a duty to uphold the human rights principles promulgated through the human rights regime it has created. At a minimum the UN is bound by peremptory norms, by its Charter, and by its own human rights undertakings as reflected in the resolutions and bulletins it has promulgated concerning itself. Troop-contributing states are directly bound by the human rights treaties to which they are party but a troop contributing state’s positive obligations under those treaties only apply extraterritorially to the extent that the state’s jurisdiction extends to the situation, which for the most part is based on whether the state has control over territory or over persons. But the human rights obligations of the UN itself (as distinct from the obligations of its member states) are not limited by territory – it has none. Provided the UN’s protection activities do not exceed the authorization set out in the mandating resolution, the Security Council mandate counters any ‘sovereignty’ based objections from the host state.

The Aide Memoire to the Secretary-General’s Human Rights Up Front (HRUF) Plan of Action states that  ‘[p]rotecting human rights is a core purpose of the United Nations and defines our identity as an organization.’ The HRUF Plan of Action ‘is designed primarily for settings where the UN does not have a political or peacekeeping mission’ but ‘its spirit can and should also be applied to “mission settings”’. The HRUF Plan of Action states that the UN will ‘put the imperative to protect people, wherever they may be, at the heart of UN strategies and operational activities.’ This is a clear positive commitment on the part of the UN to protecting human rights and protecting people from gross violations of those rights. In the case of Chapter VII mandated peacekeeping missions this commitment is usually backed up by Security Council authorizations to use ‘all necessary means.’ S/Res1894 states that ‘mandated protection activities must be given priority in decisions about the use of available capacity and resources.’

The existence of a protection of civilians mandate gives rise to the presumption that the mission is aware that civilians are at risk. In the event of a mission’s failure to protect, it will not be enough for the UN to say after the event that it tried to uphold the commitment it has made to ‘protecting people wherever they may be:’ it must be able to show it by producing evidence of the protection plan drawn up in response to the know threat to civilians and the efforts made to implement it. UN missions, as traditionally conceived, were thought of as having predominantly negative obligations, essentially to do no harm – and therefore they had considerable flexibility within the confines of its mandate as to how that mandate should be implemented, and also as to how decisions relating to the mandate are made, documented, and communicated. But an obligation to protect cannot be achieved simply by refraining from action. In order to fulfil a positive obligation to protect, in a situation where it is known that that attacks on civilians are likely, the mission must assess the probability, seriousness, and location of likely attacks; draw up plans to counter the risks to civilians that it has concluded are likely; document those plans; and pass that information up the chain of command to a level of seniority that can take responsibility for approving the effectiveness of the plans in light of the scale of likely harm. The mission is not obliged to use force; but it is obliged to carry out its protection plans, unless there is some intervening reason that renders the original response plan ineffective or harmful. Therefore, if the UN undertakes to protect people from violence and the Security Council has mandated the mission to use ‘all necessary means’ to provide that protection, that undertaking should shape the way the mandate is carried out both at the macro level (e.g. initial assessment of risks and operational planning in light of them) and at the micro-level (e.g. documenting and reporting of protection plans and of the steps taken to implement them at local level), and the continuous updating of protection plans in light of the continuous assessment of risks, assessed at both local and general level.

http://opiniojuris.org/2016/09/06/protection-of-civilians-symposium/
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Protection of Civilians Symposium: An Overview of Legal and Practical Challenges of Protecting Civilians in Peacekeeping

by Ralph Mamiya

[Ralph Mamiya is team leader for the Protection of Civilians Team in the UN Department of Peacekeeping Operations but writes here in a purely personal capacity, and the views expressed do not represent official positions of his Department or the United Nations.]

The protection of civilians is both a well-established topic in international law and also a relatively new and controversial phenomenon in practice. It incorporates aspects of international humanitarian law, international human rights law, international refugee law, as well as the law of jus in bello and the use of force.

Protection of Civilians, a new volume from Oxford University Press co-edited by Haidi Willmot, Scott Sheeran, Marc Weller and me, examines the range of law of practice that impact this topic. The book brings together a number of respected scholars and practitioners, including Jean-Marie Guéhenno, Andrew Clapham, Patrick Cammaert and Hugo Slim, to discuss the protection of civilians from a variety of perspectives. An important aim of this volume is to provide a comprehensive set of views on civilian protection, gathering together views from the often-disparate worlds of international law, humanitarian practice, diplomacy and peacekeeping, and to forge greater coherence.

The full spectrum of civilian protection, however, may be too much to cover in a brief symposium, and we chose to focus discussion on a highly topical but rarely discussed (from a legal perspective) issue: the protection of civilians by peacekeepers. This is topic particularly important to me in work on peacekeeping, though everything in this symposium is written in a personal capacity and does not necessarily reflect the views of the United Nations.

The Security Council first provided a mandate “to protect civilians from the imminent threat of physical violence” in 1999 for the UN Mission in Sierra Leone. Since that time, the Council has provided nearly every UN peacekeeping mission with a protection mandate and today more than 95 per cent of the approximately 100,000 blue helmets around the world work in missions with this mandate. The UN, the United States and NATO have all recently adopted protection of civilians doctrine.

Recent years have highlighted the challenges posed by the protection of civilians mandate, however. Incidents in South Sudan have highlighted the potentially devastating consequences for civilians when peacekeepers are unable to protect them. A 2014 evaluation of the UN Office of Internal Oversight Services found challenges in command and control and confusion over roles and responsibilities. Many of these challenges are practical and operational, as detailed in a recent report from the High-level Independent Panel on Peace Operations; they challenges are inherent to assembling an expansive and diverse set of military and civilian actors from different countries, often working in hugely difficult situations.

Legal aspects of the protection of civilians mandate are rarely discussed, however. Does the Security Council’s language, which is often emphatic, create legal obligations for peacekeepers? If so, of what kind? Recent cases in European courts (see here) have begun to address failures by peacekeepers, including the Mothers of Srebrenica decision that held Dutch peacekeepers responsible under national jurisdiction. Notably, however, these cases did not involve the modern protection of civilians mandate.

Our panelists will address these issues in the coming week. We will begin with posts from two contributors to the book, Siobhan Wills, Professor of Law at the University of Ulster, and Mona Khalil, Legal Advisor to the diplomatic advisory firm Independent Diplomat and a former UN Senior Legal Officer. We will also hear from Professor Ray Murphy of NUI Galway, Marten Zwanenburg, Legal Counsel for the government of the Netherlands, and Professor Kjetil Mujezinović Larsen of the University of Oslo.

On behalf of the other editors, let me express my gratitude to Opinio Juris for what I have no doubt will be an interesting symposium, and many thanks to the esteemed panelists we will have with us for the next few days.

http://opiniojuris.org/2016/09/05/protection-of-civilians-symposium-an-overview-of-legal-and-practical-challenges-of-protecting-civilians-in-peacekeeping/
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Protection of Civilians Symposium

by Jessica Dorsey

This week, we are hosting a symposium on the Protection of Civilians, a volume recently published by Oxford University Press, edited by Haidi Willmot, United Nations Department of Peacekeeping Operations; Ralph Mamiya, team leader, Protections of Civilians at the United Nations’ Department of Peacekeeping Operations; Scott Sheeran, Senior Lecturer, Director of the LLMs and MAs in International Human Rights, School of Law and Human Rights Centre, University of Essex; and Marc Weller, Professor of International Law and International Constitutional Studies, at the University of Cambridge, and the Director of the Lauterpacht Centre for International Law.

The volume’s description:

The protection of civilians is a highly topical issue at the forefront of international discourse, and has taken a prominent role in many international deployments. It has been at the centre of debates on the NATO intervention in Libya, UN deployments in Darfur, South Sudan, and the Democratic Republic of the Congo, and on the failures of the international community in Sri Lanka and Syria. Variously described as a moral responsibility, a legal obligation, a mandated peacekeeping task, and the culmination of humanitarian activity, it has become a high-profile concern of governments, international organisations, and civil society, and a central issue in international peace and security.

This book offers a multidisciplinary treatment of this important topic, harnessing perspectives from international law and international relations, traversing academia and practice. Moving from the historical and philosophical development of the civilian protection concept, through relevant bodies of international law and normative underpinnings, and on to politics and practice, the volume presents coherent cross-cutting analysis of the realities of conflict and diplomacy. In doing so, it engages a series of current debates, including on the role of politics in what has often been characterized as a humanitarian endeavour, and the challenges and impacts of the use of force.

The work brings together a wide array of eminent academics and respected practitioners, incorporating contributions from legal scholars and ethicists, political commentators, diplomats, UN officials, military commanders, development experts and humanitarian aid workers. As the most comprehensive publication on the subject, this will be a first port of call for anyone studying or working towards a better protection of civilians in conflict.

In addition to Ralph Mamiya’s introductory and concluding remarks, there will be posts from Siobhan Wills, Mona Ali Khalil, Ray Murphy, Marten Zwanenburg and Kjetil Mujezinović Larsen. We look forward to the discussion from our contributors and the ensuing commentary from our readers.

http://opiniojuris.org/2016/09/05/32756/
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Weekly News Wrap: Monday, August 29, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • A ceasefire to end the 52-year-old war between the Colombian state and FARC fighters has gone into effect, with a full peace agreement expected to be signed in September.
  • Eight Paraguayan soldiers have been killed by a roadside bombing, according to the government, in an attack blamed on a Marxist armed group.

Oceania

UN/World

http://opiniojuris.org/2016/08/29/32752/
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Weekly News Wrap: Monday, August 22, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

http://opiniojuris.org/2016/08/22/weekly-news-wrap-monday-august-22-2016/
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Weekly News Wrap: Monday, August 15, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

  • Britain’s exit from the European Union could be delayed until at least late 2019 because the government was too “chaotic” to start the two-year process early next year, the Sunday Times reported, citing sources it said were briefed by ministers.
  • The European Union should grant Turks visa-free travel in October or the migrant deal that involves Turkey stemming the flow of illegal migrants to the bloc should put be put aside, Foreign Minister Mevlut Cavusoglu told a German newspaper.

Americas

Oceania

  • The devastating trauma and abuse inflicted on children held by Australia in offshore detention has been laid bare in the largest cache of leaked documents released from inside its immigration regime.

UN/World

http://opiniojuris.org/2016/08/15/weekly-news-wrap-monday-august-15-2016/
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Weekly News Wrap: August 8, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • A member of an Australian anti-immigration group accused of planning an attack may face additional charges in what the government said was the first time federal terrorism laws had been used to target such right-wing groups.

UN/World

http://opiniojuris.org/2016/08/08/weekly-news-wrap-august-8-2016/
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Weekly News Wrap: Monday, August 1, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

  • United Nations children’s agency UNICEF said it is continuing its aid work in northeastern Nigeria, a former stronghold of Islamist militant group Boko Haram, despite an attack on a humanitarian convoy earlier this week.
  • Several people have been killed in an assault on a police base in the Somali capital, Mogadishu.
  • An aircraft wing part found in Tanzania is “highly likely” to be part of missing Malaysia Airlines flight MH370, an Australian government minister said on Friday, in what would be the second confirmed piece of the jetliner.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • The head of an Australian inquiry into the abuse of children in detention resigned on Monday, four days after being appointed to investigate prison video of aboriginal boys being abused, citing his lack of support from the country’s indigenous leaders.
  • Australians have rallied against the alleged mistreatment of young people in detention, including the hooding and physical restraint of teens, amid calls for an inquiry into the abuse to be expanded and the United Nation High Commission on Human Rights called on Australia on Friday to compensate children abused in prison.

UN/World

http://opiniojuris.org/2016/08/01/weekly-news-wrap-monday-august-1-2016/
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Weekly News Wrap: Monday, July 25, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

  • Several people have been killed when a mortar bomb hit a restaurant in the government-controlled ancient quarter of the Syrian capital Damascus on Sunday, a monitor and a witness said.
  • As the war rages on, Syrian children are starving to death.

Asia

  • Southeast Asian nations failed to agree on maritime disputes in the South China Sea on Sunday after Cambodia blocked any mention to an international court ruling against Beijing in their statement, diplomats said.
  • Chinese Foreign Minister Wang Yi has criticized South Korea’s move to deploy an advanced U.S. anti-missile defense system to counter threats from North Korea, saying it harmed the foundation of their mutual trust, news reports said on Monday.

Europe

Americas

Oceania

UN/World

http://opiniojuris.org/2016/07/25/weekly-news-wrap-monday-july-25-2016/
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Weekly News Wrap: Monday, July 11, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

  • The Overseas Development Institute (ODI) warned in a report that slow implementation of the U.N.’s global goals, the Sustainable Development Goals (SDGs), would stall advances against rising global inequality.
  • Candidates for the United Nation’s top job will for the first time in the organisation’s history hold a live debate, which will be broadcast live to audiences worldwide on television and digital platforms.
http://opiniojuris.org/2016/07/11/weekly-news-wrap-monday-july-11-2016/
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Weekly News Wrap: Tuesday, June 28, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

  • The United States and France supported Hissène Habré, the former Chadian dictator who was convicted of atrocity crimes on May 30, 2016, throughout his rule, Human Rights Watch said in two reports released today.
  • The Eighth Africa Carbon Forum will focus on ensuring that countries put in place polices that are conscious of environmental sustainability and climate change resilience.
  • Hundreds of gun-toting Al Shabaab fighters in pick-ups have taken back a town in Goof-Gadud area, located some 30Km north of Baidoa in Somolia on Sunday after SNA and AMISOM troops withdrew the town.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • During the 32nd session of the Council Plenary, the UN Special Rapporteur on the right to freedom of peaceful assembly and association, Maina Kiai, zeroed in on Papua.

UN/World

http://opiniojuris.org/2016/06/28/weekly-news-wrap-tuesday-june-28-2016/
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Weekly News Wrap: Monday, June 6, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

http://opiniojuris.org/2016/06/06/weekly-news-wrap-monday-june-6-2016/
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