Protection of Civilians Symposium: Will an Improved Legal Framework Affect the Situation on the Ground?

[Ray Murphy is a Professor at the Irish Centre for Human Rights, School of Law, National University of Ireland Galway. This post is a part of the Protection of Civilians Symposium.]

Although there have been many pronouncements and reports on the need to protect civilians, it is debatable if this has translated into increased security on the ground. The emphasis seems to have been placed on the principle of protection rather than the actual result. This is a consequence of the gap between rhetoric and reality in many instances.

The legal framework for the protection of civilians in armed conflict can be found in international humanitarian law and international human rights law. I agree with the legal analysis outlined by Prof. Wills. Much of what she outlined was qualified, as many of the legal issues are not so clear-cut. Although it is evident that peacekeeping operations must comply with international human rights obligations, the scope and extent of the obligations is ambiguous. Nevertheless, human rights law has potentially more relevance for the protection of civilians.

I am not convinced that a ‘paper trail’ of security assessments and responses will necessarily have a huge impact. My fear is that it will be manipulated by military and other mission components and a policy of ‘cover yourself’ will be adopted by those on the ground. In this way a paper trail could even facilitate inertia rather than spur components to real action.

At the same time, the issues raised by Mona Khalil have much validity. Command and control of multinational operations and the related issue of attribution or responsibility also remain fundamental to UN peacekeeping. Operations can also be characterised by bureaucracy and a top-down approach to decision making that is cumbersome and inefficient. This can often be invoked as an excuse for inaction.

Obviously we all want to see a more effective PoC policy implemented. The UN human rights due diligence policy and launch of Human Rights Up Front campaign have helped. However, some of the confusion might be resolved by a Secretary-General’s bulletin setting out the applicability of human rights provisions to peace operations. Military components prefer to evaluate situations through the prism of international humanitarian law as this is more familiar territory in most cases. However, mainstreaming human rights in peace operations should be the priority and an international human rights framework outlined governing all UN operations. A bulletin could help clarify a range of issues, including the use of force and the positive obligation to protect, along with detention and reporting, and investigating violations and abuses.

When the UN finds itself confronting armed criminals, the human rights framework is the most appropriate. This does not preclude the triggering of international humanitarian law if and when a situation escalates to that of armed conflict.

Robust forms of peacekeeping involving the use of force, whether in self-defence or defence of the mandate, are common today. While there is a link between neutralizing armed groups and protection of civilians, they are not the same thing and offensive military operations risk retaliation against vulnerable civilians.

The so called Brahimi report had expressed dissatisfaction with the inability of peacekeepers to prevent violence and attacks on civilians. It deployed the ‘mismatch between desired objectives and resources’ and recommended the adoption of a PoC mandate and the capacity to enforce this in future operations (United Nations, Report of the Panel on UN Peacekeeping Operations, UN, A/55/305-S/2000/809, 23 August 2000, paras. 62-63). In so doing it was also blurring the distinction between traditional peacekeeping and peace enforcement operations. Many of the major contributing states were open to such a policy shift as it had become evident that they would no longer agree to participation in inadequately prepared and supported operations. This was especially so among the powerful states that had traditionally avoided participation in UN led operations and had a preference for UN approved missions led by NATO or a selected lead nation.

Any reasonable interpretation of the mandate and series of UN resolutions prior to the creation of the Force Intervention Brigade (FIB) in the DRC provide ample authority for coercive measures beyond the traditional self-defence mode. Unlike the creation of the FIB, the special measures (e.g. joint protection teams, community alert mechanisms, mobile operating bases) adopted by MONUC/MONUSCO, albeit with limited effectiveness, did not meet with opposition from humanitarian agencies or other third parties and did improve the situation for civilians.   It will be interesting to see how the Regional Protection Brigade in South Sudan interprets its PoC mandate and implements this on the ground. How will it distinguish itself from the FIB in the DRC?

A recurring flaw in missions to date has been the lack of commitment of the troop contributing states to the mandate. There appears to be a similar situation with regard to some contingent part of UNMISS in South Sudan. Furthermore, as discussed by Mona Khalil, contingent commanders consult with national governments before carrying out military operations or following the orders of the Force Commander. Such behaviour is common in all peacekeeping operations and is often to ensure that the action being pursued by the UN operation is not inconsistent with national policy as much as interests. Separate or parallel chains of command are not conducive to military effectiveness.

I am not sure that making commanders and other senior personnel criminally accountable for their failure to act would work in practice. But I would suggest adopting the human rights mechanism of naming and shaming contingents or components that failed to take appropriate action to fulfil the PoC mandate when they had the means and opportunity to do so. I would suggest that national authorities take disciplinary measures against commanders for dereliction of duty where appropriate, but looking at the response to sexual abuse and exploitation to date, this is not likely to be very successful.

After the widespread killings at the village of Mutarule in the DRC in 2014, the MONUSCO Force Commander was reported to have become very engaged and instructions were issued telling contingents that such atrocities were not acceptable and should be stopped. Such inaction reflects the broader culture of lack of commitment and even indifference displayed by military contingents part of the Force.

What is most needed is engagement and commitment by all those military, police and civilians in positions of authority. Without that, an improved legal framework is unlikely to change the situation on the ground.