Chapter 5

Chapter 5

Humanitarian considerations—responsibility to protect

5.1        When considering a proposed peacekeeping operation, the Australian Government clearly takes account of the connection between Australia's international reputation and its ability to influence the regional and global agenda in ways that promote the national interest.[1] In this regard, the government considers Australia's reputation as 'an important foreign policy asset' when deciding whether or not to commit to a peacekeeping operation. However, apart from considerations about Australia's interests, including security concerns, there is also a humanitarian element in the decision to contribute to a mission. Ms Gillian Bird, DFAT, said:

One of the key points of most peacekeeping operations is to improve the situation for the lives of the individuals, the citizens, of the countries into which they are going. So, by their very nature, that humanitarian dimension is quite important...particularly so in the more complex operations...where there is a much broader dimension...When you are talking about peacekeeping operations, which often have a significant nation-building capacity, humanitarian considerations are almost at the fore of that. That is a very important part of why we went to the Solomon Islands, for example. It was our desire to improve the condition of life for the majority of citizens in that country.[2]

5.2        In this chapter, the committee examines the humanitarian imperative that influences Australia's decision to participate in a peacekeeping operation. The committee first explores in some detail the development of the Responsibility to Protect doctrine (also known as R2P) before turning to its implications for Australian decision-makers.

 

Humanitarian intervention

5.3        Since the end of the Cold War, the nature of many conflicts has changed from between states to within states, including the involvement of non-state combatants, such as irregular forces and militias, terrorists and their organisations.[3] According to the former UN Secretary-General Kofi Annan, this changing nature of conflict has had 'a profound impact on respect for civilian status and the safety and well-being of civilian populations'.[4] For example, in 1999, the President of the Security Council noted that 'civilians now account for the vast majority of casualties in armed conflict and are increasingly directly targeted by combatants and armed elements'.[5]

5.4        Failures in UN peacekeeping operations in the mid-1990s, most notably the 1994 genocide in Rwanda and the 1995 massacre in Srebrenica (Bosnia and Herzegovina), underlined the plight of civilians caught up in conflict. Referring to Rwanda, the Secretary-General said in 1998:

That experience highlighted the crucial importance of swift intervention in a conflict and, above all, of political will to act in the face of a catastrophe. The horrifying suffering of the Rwandan people sends the clear and unmistakable message that the international community must never again tolerate such inaction.[6]

5.5        These failures led to a period of self-examination in the UN about the effectiveness of its peacekeeping operations.[7] They also prompted a wider debate in the international community characterised by two key concepts—respect for state sovereignty and the humanitarian imperative to intervene in internal conflicts to prevent or limit the impact of violence against civilians.

Sovereignty and non-intervention

5.6        Under Article 24 of the UN Charter, the Security Council has 'primary responsibility for the maintenance of international peace and security'. Also, any Contracting Party to the UN Convention on Genocide may call upon the competent organs of the UN to take appropriate action under the UN Charter for the prevention and suppression of acts of genocide.[8] The well-established international principle of sovereignty, however, restricts the ability of the UN to intervene in the domestic affairs of a state. It is enshrined in Article 2(7) of the UN Charter which states:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.[9]

5.7        Furthermore, the UN Charter prohibits member states from using or threatening to use force against each other except:

5.8        The recognised obligation of the UN to observe a country's sovereignty does not always sit easily with its responsibility to maintain international peace and security and to prevent acts of genocide. Indeed, the UN has grappled with finding a way to reconcile these two potentially competing principles.

 

Responsibility to Protect doctrine

5.9        The lack of an accepted framework for intervention to prevent future humanitarian crises led the then UN Secretary-General Kofi Annan to challenge member states to find a new consensus.[12] In his 2000 Millennium report he asked:

...if humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica, to gross and systematic violations of human rights that offend every precept of our common humanity?...

Humanitarian intervention is a sensitive issue, fraught with political difficulty and not susceptible to easy answers. But surely no legal principle —not even sovereignty—can ever shield crimes against humanity...

...Armed intervention must always remain the option of last resort, but in the face of mass murder, it is an option that cannot be relinquished.[13]

International Commission on Intervention and State Sovereignty (ICISS) report 2001

5.10      In response to the problem posed by the Secretary-General, the Canadian Government established the independent ICISS to examine the question of humanitarian intervention. The ICISS presented its report, The Responsibility to Protect, to the Secretary-General in December 2001.

5.11      The ICISS found that the language of past debate such as 'humanitarian intervention' and 'right to intervene' was unhelpful.[14] Instead, it introduced the term 'responsibility to protect'. It reframed the debate from competing principles (of sovereignty and human rights) to the idea that sovereignty entails responsibility. Its central theme was that a sovereign state has primary responsibility to protect its own people, but where a state is unwilling or unable to do so, it becomes the responsibility of the international community to act in its place.[15]

5.12      The commission developed a comprehensive framework for the responsibility to protect, with prevention as the single most important dimension. It recognised that when preventative measures fail, intervention by the international community may be required. The ICISS envisaged such intervention as a continuum from diplomatic and economic sanctions through to military intervention as a last resort in extreme and exceptional cases.[16]

5.13      The ICISS developed six criteria to be satisfied before a military intervention takes place. It also identified a number of broad operational principles for carrying out a successful military intervention based on the responsibility to protect.[17] The ICISS found that 'there is no better or more appropriate body than the Security Council to authorise military intervention for human protection purposes'.[18] In its view, 'it is the Security Council which should be making the hard decisions in the hard cases about overriding state sovereignty'.[19]

5.14      In 2002, the Secretary-General submitted the ICISS report to the General Assembly in order to bring it to the attention of the broader membership of the UN.[20]

High-level Panel on Threats, Challenges and Change

5.15      In December 2004, the Secretary-General's High-level Panel on Threats, Challenges and Change endorsed the R2P norm in the following terms:

...there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of international humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.[21]

5.16      It proposed guidelines, which could form the basis for Security Council deliberations, to maximise the possibility of achieving Security Council consensus as to when it is appropriate to use force. Based on those in the ICISS report, it identified the following five criteria: seriousness of threat; proper purpose; last resort; proportional means; and balance of consequences.[22] For details of the criteria originally proposed in the ICISS report, see Appendix 5.

5.17      In his report to the General Assembly on the agenda for the 2005 World Summit, the Secretary-General recommended that the Security Council 'adopt a resolution that sets out principles for the use of force and expresses its intention to be guided by them when deciding whether to authorise or mandate the use of force'.[23]

2005 World Summit

5.18      The 2005 World Summit, the name given to the high-level plenary meeting of the 60th session of the General Assembly, was held in September 2005. It endorsed the concept of the responsibility to protect which was formally adopted by the General Assembly in October 2005. The UN resolution recognised that 'each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity'. It noted that 'the international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations' from such acts. The resolution went further to state:

In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.[24]

5.19      While this commitment to the R2P doctrine was generally regarded as a landmark resolution, a number of commentators observed that the summit did not endorse guidelines for the use of force.[25] Negotiations on the five criteria, recommended by the Secretary-General,[26] did not progress during the debates due to concerns that universally applicable criteria would limit the actions of states or that they would be applied arbitrarily or subjectively.[27]

Security Council resolutions

5.20      In April 2006, the Security Council reaffirmed the responsibility to protect provisions from the World Summit outcome in its resolution on the Protection of Civilians in Armed Conflict—Resolution 1674.[28]

Darfur

5.21      Security Council Resolution 1706, which authorised a UN peacekeeping force for Darfur in August 2006, was the first country-specific resolution to make a direct reference to the responsibility to protect provisions.[29] The resolution invited 'the consent' of the Sudanese Government which was not forthcoming.[30] Some months later, the Secretary-General again cited the 'tragedy of Darfur' stating that 'we have still not summoned up the collective sense of urgency that this issue requires'.[31] Even after the adoption of UN Resolution 1769 in July 2007, which established the African Union–United Nations Hybrid Operation in Darfur (UNAMID), progress toward deploying a peacekeeping operation has been slow (see also paragraphs 3.34–3.36). In February 2008, the Secretary-General appealed for 'more troops and vital equipment to support the critically under-strength UNAMID stem the violence'.[32]

5.22      The humanitarian situation in Darfur highlights the difficulties in implementing the R2P doctrine.[33] The ICISS itself acknowledged that 'unless the political will can be mustered to act when action is called for, the debate about intervention for human protection purposes will largely be academic'. It suggested that the 'most compelling task now is to work to ensure that when the call goes out to the community of states for action, that call will be answered'.[34] In this regard, the committee notes Kofi Annan's plea for the international community to do better and 'develop the responsibility to protect into a powerful international norm that is not only quoted but put into practice, whenever and wherever it is needed'.[35]

Committee view

5.23      The committee recognises that even where the protection of civilians is a major and urgent concern, governments remain hesitant to commit forces or funding to a peacekeeping operation where a state's sovereignty is at issue.

 

Australia and Responsibility to Protect doctrine

5.24      For many years, the Australian Government has called on the international community to do more to protect civilians from human rights abuses. For example, in June 2004, Australia, Canada and New Zealand called on the Security Council to consider 'adopting a new resolution on the protection of civilians in armed conflict'. They also indicated that they would 'remain actively engaged and supportive of these efforts'.[36]

5.25      In the lead up to the 2005 World Summit, the Australian Government 'worked to gain support from UN member states for the Responsibility to Protect doctrine'.[37] It regarded the summit as 'an opportunity to gain strong endorsement by leaders' for this emerging norm.[38]

Implementing the doctrine

5.26      While evidence to the inquiry roundly endorsed the Responsibility to Protect doctrine, there were different views on what the adoption of this principle means for Australia in practice.

Views of non-government organisations (NGOs)

5.27      The NGO sector expressed strong support for the Responsibility to Protect doctrine, with Oxfam Australia and Christian World Service (CWS) welcoming the Australian Government's endorsement of it.[39] A number of NGOs, however, argued that the doctrine should be afforded greater prominence in Australia's decision to participate in peacekeeping operations and in shaping the structure and implementation of operations. There was strong consensus among NGOs that one of the main issues to be addressed, including by Australia, is how to put the Responsibility to Protect doctrine into practice.[40]

5.28      CWS recommended that Australia adopt a human protection operation framework to replace existing peacekeeping discourse. The framework would:

...reinforce existing Australian best practice policies while providing a robust and predictable set of deployment guidelines. It should also be noted that while this is a rules-based, as opposed to ad hoc, approach it remains able to flexibly and appropriately adapt to each unique deployment climate.[41]

5.29      Austcare also highlighted the need for 'the development of operational doctrine' and suggested that 'Australia should aim to be at the forefront in developing this doctrine'.[42] It urged the Australian Government to do more to implement the doctrine so that it is 'reflected in a consistent manner in government policies and white papers on foreign policy, defence and aid'.[43]

5.30      Oxfam Australia encouraged the Australian Government 'to develop a strategy to implement the principle of the responsibility to protect, inclusive of all relevant government departments'. It argued that such a strategy would provide a clear policy framework for the deployment of Australian peacekeepers.[44]

5.31      The Australian Government is aware of the view that it should find ways to ensure that the Responsibility to Protect doctrine is translated into action. It should be noted that NGOs themselves are yet to reach agreement on a common R2P 'operational doctrine' that would apply to NGOs, especially in relation to the responsibility to react.[45]

Australian Government's view

5.32      DFAT believed that the adoption of the Responsibility to Protect doctrine was a significant step forward, particularly as it was endorsed by consensus and enshrined by reference in a Security Council resolution. Mr Michael Potts, DFAT, observed, however, that while ostensibly there is an international consensus for the R2P concept, matters have to be developed as to how 'you operationalise it, particularly on the preventative side'. He stated:

I think the international community these days is not bad at reacting to difficult political humanitarian situations, although it can be slow as in Darfur and you would always want improvement in terms of rebuilding. ...While the adoption of it [R2P] was very much an achievement, operationalising it is going to be very much a challenge.[46]

5.33      With regard to R2P, the Australian Government in 2007 publicly recognised that 'transforming international legal norms into practice and commitments into action is no easy task'.[47] It has called on the Security Council to 'develop a practical approach to implement the responsibility to protect'.[48] To this end, Australia recently announced that it will become a founding donor of the new Global Centre for the Responsibility to Protect which will conduct research and coordinate advocacy to identify, prevent or respond to populations under threat.[49] Australia welcomed the Secretary-General's intention to appoint a special advisor for the responsibility to protect.[50] In February 2008, Edward C. Luck, of the independent International Peace Academy in the United States, was appointed to this position.[51]

Committee view

5.34      The committee recognises that the Australian Government has been working in the international community to promote the R2P concept. It also notes the Australian Government's support for the new Global Centre for the Responsibility to Protect. The committee understands, however, that the international community has difficulties putting R2P into practice and there is a real concern that its adoption may not translate into action. In this regard, the committee believes that the government should continue to encourage the international community to move forward by adopting guidelines for the implementation of the doctrine.

5.35      The committee also acknowledges suggestions by some NGOs that the Australian Government should take steps to implement the R2P doctrine domestically. It agrees with Austcare's suggestion that the requirements for protection should be 'reflected in a consistent manner in government policies and white papers on foreign policy, defence and aid'.[52]

5.36      On this matter of formulating policy, the committee noted in the previous chapter that peacekeeping is a whole-of-government, whole-of-nation undertaking but that there is not one policy document that covers the joint efforts of all contributors. It has recommended that the Australian Government should produce a white paper on Australia's peacekeeping operations. The development of this paper would provide an opportunity for the government to articulate its position on R2P, and the implications for, and how it applies to, Australian participation in peacekeeping operations. This is further explored in Chapter 24.

Responsibility to prevent

5.37      There are three components to the responsibility to protect—the responsibility to prevent, the responsibility to react and the responsibility to rebuild.[53] The committee now turns to look at the responsibility to prevent as an important element of the responsibility to protect, and its significance for Australia's contribution to peacekeeping operations.

5.38      A number of witnesses stressed the importance of the prevention aspect of the R2P doctrine. World Vision Australia noted the attention given to the 'pointy end around military intervention', arguing that if more were done at the prevention end, there would be 'a lot less need to react'. It suggested that a whole range of things 'can be undertaken and should be undertaken by governments and others before military intervention is even constructed as a notion of where we might end up'. Emphasising the importance of the responsibility to prevent, it argued that the doctrine is much fuller than military intervention and it 'would like to see the fullness of the responsibility to protect actually investigated'.[54]

5.39      Similarly, Christian World Service argued that 'the majority of the action that would be taken under an...R2P framework would be non-military'. It emphasised that R2P looks at prevention, which comprises a range of measures, including diplomacy, to prevent conflicts arising and looks 'more at the responsibility to rebuild a situation to ensure that it does not lapse again'.[55] Oxfam Australia observed that the R2P doctrine can have a preventative effect in terms of getting governments to recognise their own responsibilities and the consequences of not fulfilling them. Mr James Ensor, Director of Public Policy, Oxfam Australia, gave an example of a keynote address given recently by the International Crisis Group in Sri Lanka on the applicability of R2P:

That dialogue and discussion gave Sri Lankan civil society a much broader understanding of what the responsibilities of the Sri Lankan government and the LTTE [Liberation Tigers of Tamil Eelam] were in terms of their conduct and of some of the international norms and the implications if those conflicting parties—and in particular the government—did not live up to their responsibilities in relation to the protection of civilians in conflict.[56]

5.40      AusAID explained to the committee that its approach to peacekeeping operations 'is premised on the principle that primary responsibility for protection of crisis-affected communities rests with the government of that territory'. According to AusAID, its role is to 'assist the state and its authorities to assume this responsibility in accordance with international standards and norms'.[57]

5.41      To help states fulfil their obligations to protect, AusAID emphasised that it takes a two-pronged approach—remedial, to halt abuses; and preventative, to promote dissemination of key legal instruments. It reflects several of the core principles of the Good Humanitarian Donorship Initiative to which Australia and 23 other institutional donors have committed.[58]

 

Conclusion

5.42      The committee recognises that Australia has given strong support to the adoption of the Responsibility to Protect doctrine. It notes, however, the call by Kofi Annan for the international community to do better and 'develop the responsibility to protect into a powerful international norm that is not only quoted but put into practice, whenever and wherever it is needed'.[59] It believes that Australia's role now is to help ensure that the doctrine extends beyond lofty rhetoric to action where required. In this regard, the committee makes the following recommendation:

Recommendation 2

5.43      The committee recommends that the Australian Government continue to actively support the R2P doctrine and, through its representations in the UN, ensure that international deliberations continue to be informed by the doctrine.

5.44      The committee also recommends that in the committee's proposed white paper on peacekeeping (Recommendation 37), the Australian Government include a discussion on, and an explanation of, Australia's current position on this evolving doctrine.

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