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:
- in self-defence under Article 51;[10]
and
- for operations authorised under Chapter VII of the Charter.[11]
Such operations allow for the threat or use of force beyond self-defence and do
not require the consent of the host state.
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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