The Politics of Protection

The Limits of Humanitarian ActionBy Elizabeth G. Ferris

Brookings Institution Press

Copyright © 2011 THE BROOKINGS INSTITUTION
All right reserved.
ISBN: 978-0-8157-2137-6

Contents

Acknowledgments…………………………………………………………………ixIntroduction……………………………………………………………………xi1 Humanitarian Principles and International Law…………………………………….12 Human Rights and Protection…………………………………………………….403 Protection and Humanitarian Assistance: Communities and Governments…………………624 The UN and NGOs in Humanitarian Operations……………………………………….915 Global Governance……………………………………………………………..1266 Humanitarian Dilemmas………………………………………………………….1747 Natural Disasters and Protection………………………………………………..2008 Paying for Protection: Humanitarian Financing…………………………………….2289 Future Challenges for Humanitarian Actors………………………………………..24510 Concluding Observations and Recommendations……………………………………..270Notes………………………………………………………………………….287Index………………………………………………………………………….345

Chapter One

Humanitarian Principles and International Law

Protect: To defend or guard from danger or injury; to support or assist against hostile or inimical action; to preserve from attack, persecution, harassment, etc.; to keep safe, take care of; to extend patronage to: to shield from attack or damage.

The concept of protection is an ancient one, cited liberally in the Hebrew Scriptures and later in the New Testament, the Koran, and other religious writings. The word “protect” comes from the Latin protegere, meaning to shield, cover, protect, defend. Over the ages in Western civilization, the term has been used in various ways: God’s protection, royal protection, diplomatic protection, self-protection, protection under the law, and, more recently, equal protection, trade protection, consumer protection, social protection, environmental protection, copyright protection, and so on. “Protection” is a nice word, a noble word. It is used by historians, political scientists, anthropologists, lawyers, politicians, and even theologians with somewhat different meanings. But it always has a positive connotation.

Since the establishment of the modern international system based on nation-states, usually dated from the Treaty of Westphalia in 1648, it is a recognized responsibility of states to protect their citizens from harm, to defend them from danger, to save them from persecution—in short, to keep them safe. The ability to protect one’s citizens is intrinsic to the very definition of a state. If a state cannot protect its people, it has failed as a state.

But there are times when states are not able to protect all of their people and when international law—particularly international humanitarian law, human rights law, and refugee law—provides for protection by others. Most recently the 2005 World Summit adopted the doctrine of “responsibility to protect,” which affirms the centrality of the state as the protector of its people but also sets out a series of measures to be taken by the international community when a state is unable or unwilling to protect its citizens.

This book focuses on the understandings and practice of protection in the international humanitarian system, but humanitarians have no monopoly on the term. Protection has become central to UN discussions—and decisions—on on peacekeeping. All but one of the eleven peacekeeping missions initiated in the past decade have included the protection of civilians in their mandate. Protection of civilians has become a UN-wide priority.

Protection in the Humanitarian World

The concept of protection was central to the development of international humanitarian law (IHL), the first component of the concept of protection, which initially stemmed from the need to protect soldiers who were wounded, captured, or otherwise hors de combat. IHL was expanded in 1949 to include measures to protect civilians, and since then the International Committee of the Red Cross (ICRC), the guardian of IHL, has tried to provide guidance on such thorny issues as distinguishing civilians from combatants and the question of the responsibility of nonstate actors to uphold IHL, including protection of civilians. ICRC also has moved to respond to new forms of warfare and has played a leadership role in the campaign to ban antipersonnel land mines. In other words, over the past 150 years or so, IHL has expanded its original remit to protect prisoners of war and wounded soldiers into a broad range of activities designed to protect civilians who are affected by but are not direct participants in conflicts.

The development of a second fundamental component of the concept of protection occurred in the aftermath of the European wars of the twentieth century, when protection of refugees emerged as a response to the plight of individuals who had fled their countries because of those wars or because of persecution. Because their governments were no longer able to protect them, it was the responsibility of host governments and the international community to do so. Just as the International Committee of the Red Cross became the guardian of international humanitarian law, the United Nations High Commissioner for Refugees (UNHCR) became the custodian of international refugee law. Still later in the twentieth century, the growing recognition that people who were displaced from their communities but remained within the borders of their countries also needed protection led to the development of international norms for protecting internally displaced persons.

A third component of the notion of protection comes from international human rights law. The Universal Declaration of Human Rights refers to “protection” ten times: “Human rights should be protected by law, “All are entitled to equal protection under the law,” and so on. In fact, much of the modern human rights movement is about expanding the scope of protection: protection of the rights of racial and ethnic minorities, of children, of women, and of gay and lesbian people; protection of the cultures of indigenous people; and so on. The expansion of the groups in need of protection paralleled the expansion of the understanding of human rights from its early, almost exclusive focus on the civil and political rights of individuals to its inclusion of the economic, social, and cultural rights of both individuals and communities. By the end of the 1990s, explicit reference to the protection of civilians emerged in UN Security Council resolutions.

As universal human rights broadened to include more groups, so too the concept of protection expanded in human rights discourse. Protection meant not only physical protection of people from violence and legal protection of refugees from deportation but also protection from hunger, illness, and discrimination. Similarly, one can trace the expansion of protection in the humanitarian field from protection of soldiers (hors de combat) to protection of refugees, to protection of children in armed conflict, to protection of internally displaced persons, to protection of women against sexual and gender-based violence, to protection of civilians.

The intersection of the concepts of protection, humanitarian response, and human rights is a close and mutually reinforcing one, although the actors in these three spheres often seem to function in their own particular “territories,” with few genuinely collaborative efforts.

Protection in the Wider World

It is useful before jumping into the historical development of concepts of protection and current practices to step back for a moment to look at the big-picture developments on the international scene.

The current international order is in transition, and what the future order will be is unclear. There are new possibilities for global governance and renewed interest in multilateral efforts to address climate change, resolve conflicts, and hold war criminals accountable. On many different fronts, conceptual developments are occurring on parallel tracks, often without much cross-fertilization, but all represent a desire to do more to protect people whose governments cannot—or will not—protect them. It is almost as if there is a universal yearning for a global system that can keep people safe.

Development. The concept of economic development has expanded from the emphasis on national economic growth in the 1950s to include concerns about equitable distribution of resources; community empowerment; rule of law; environmental issues; and, most recently, human security. Human security moves away from the focus on national security to consider what causes individuals to feel secure. Although the concept remains a bit ambiguous and is interpreted in different ways, it generally refers to “freedom from threat to the core values of human beings, including physical survival” but also to community, economic, environmental, food, health, personal, and political security and to health and access to education. The concept of human security, it is important to recall, originated with the United Nations Development Program, but it parallels the expanded notion of protection evident in both the humanitarian and human rights worlds.

Security. Military approaches to security have broadened dramatically in recent decades, from launching interstate wars to responding to insurgencies, failed states, and terrorism. The U.S. military’s current emphasis on stabilization operations recognizes that issues such as rule of law and humanitarian response are as important to security as combat operations. Security is not just about fighting and winning wars any more, it is about embracing a whole range of actions that are actually quite similar to those incorporated in the expanded notions of human security and human rights. “Winning hearts and minds” is seen as key to defeating insurgencies. In July 2008 the U.S. secretary of defense, Robert Gates, declared, “We cannot kill or capture our way to victory” in the long-term campaign against terrorism, arguing that military action should be subordinate to political and economic efforts to undermine extremism.”

International Accountability. The movement to bring perpetrators of war crimes and other atrocities to justice gathered momentum in the 1990s, with the establishment of international tribunals in the former Yugoslavia and Rwanda, the prosecution of war criminals by domestic courts in other countries, and the adoption of the Rome Statute in 1998, which was the basis for the establishment of the International Criminal Court. Such measures to increase accountability and establish new judicial mechanisms were not only intended to punish those guilty of war crimes, genocide, and crimes against humanity but also to deter combatants from committing mass atrocities and hence to protect civilians.

Security Council, Peacekeeping, and Responsibility to Protect. Since 1948, there have been sixty-four UN peacekeeping operations, and since the end of the cold war, the number of those operations has expanded dramatically. Today there are more than 100,000 UN peacekeeping troops, working in fifteen missions, most of whom are charged not only with keeping the peace (a bit of a misnomer in many of the newer missions) but also with protecting civilians. Protection of civilians has emerged front and center in Security Council deliberations. And when the 2005 World Summit unanimously adopted the responsibility to protect doctrine, it suggested that the governments of the world were committed to ensuring that war crimes, ethnic cleansing, and genocide would be prevented through an effective international response.

The UN’s Quest for Coherence. UN reform efforts over the past decade are evidence of dissatisfaction with piecemeal approaches to the world’s problems and a desire to find a coherent, holistic approach. Rather than having a dozen different UN agencies (and their supporting constituencies) embark on programs to respond to particular needs in a given country, the reasoning goes, the UN could increase its impact and effectiveness through a coherent and coordinated approach. Thus the idea of integrated missions, the one-UN initiative, the capstone doctrine on UN peacekeeping, the Peacebuilding Commission, and the doctrine of responsibility to protect emerged—all recognizing that development, humanitarian response, politics, security, and peace are fundamentally linked. All of those reform initiatives represent a desire for the United Nations to become more effective, more coordinated, and more relevant in addressing the world’s problems. It is almost as if, having been blocked by cold war rivalries for so long, the UN is now searching for its place in the world, and the question of the protection of civilians is central to that quest.

Different developments concerning protection are explored in greater detail in ensuing chapters, but it is important to note here the convergence that has emerged in many diverse fields toward a holistic focus on protection. As concepts, protection, human rights, and human security have much in common. They all have moved beyond a concern with physical protection of the individual to a more expansive understanding—that to protect people, uphold their rights, and provide for their security means to address their social, economic, cultural, and political needs. In their efforts to be all-inclusive, these three concepts—human rights, human security, and protection— also have expanded so much that they are ambiguous, vague, and difficult to put into operation.

Origins of the Modern International Humanitarian System

The understanding of protection in modern political discourse has been shaped by three historical strands. In the middle of the nineteenth century principles of humanitarianism and international humanitarian law, which was intended to protect persons affected by war and armed conflict, began to emerge. In the middle of the twentieth century, refugee law was developed to protect people who had left their countries because of fear of persecution and whose governments were unable or unwilling to protect them. After World War II, international human rights law developed as a cornerstone of the new international order. Governments were now obliged to protect their citizens during times of peace as well as during conflict, and that obligation was a matter of international law, not just a private matter between a state and its citizens. All three of these legal traditions originated in Europe in response to particular historical events, and all served the political interests of the major powers of the time. All three were codified as universal legal obligations, and they have since been accepted by the vast majority of the world’s governments. Although implementation of the binding legal instruments has been (and probably always will be) uneven, the concept that people have a right to protection has become central to the international system.

While international humanitarian law regulates the protection of persons and the conduct of hostilities in armed conflict, international refugee law focuses specifically on protecting persons who have fled their countries because of persecution. International human rights law imposes standards that governments must adhere to in their treatment of persons in times of both peace and war.

Each of the three strands included binding international agreements identifying the persons to be protected, the standards of protection, and the parties responsible for providing the protection. All of them chip away at the notion of state sovereignty, the cornerstone of the international system since the Peace of Westphalia in 1648. Moreover, each strand is identified with a particular international institution: the International Committee of the Red Cross is the guardian of international humanitarian law; the United Nations High Commissioner for Refugees has a supervisory role in the 1951 United Nations Convention Relating to the Status of Refugees; the UN Commission on Human Rights, reconstituted in 2005 as the Human Rights Council, oversees various mechanisms concerned with implementation of various human rights legal instruments.

The normative framework represented in the three legal traditions has led to new political initiatives from various quarters—from calls for humanitarian intervention in the early 1990s to unanimous endorsement of the concept of responsibility to protect by the 2005 World Summit. The recognition that certain groups have particular unmet needs for protection has led to new policies, norms, and initiatives. In 1998, the representative of the secretary-general on internally displaced persons presented to the UN Commission on Human Rights the Guiding Principles on Internal Displacement, which uphold the rights of people who, although forced to flee their communities, remain within the borders of their own country. Over the past decade there has sometimes been tension between those advocating on behalf of particular groups, such as women, children, and internally displaced persons, and those arguing that singling out groups for special attention means that others are left out. The evolution of the concept of protection of civilians and the increasing emphasis on vulnerability analysis at the operational level is a response to some of the criticisms.

While it probably is true that the existing instruments for ensuring protection—the conventions and covenants, the ICRC, UNHCR, and UNICEF (United Nations Children’s Fund)—could not have come into being without the support of powerful governments that saw some political advantage in creating them, it also is true that the concept of protection has become a powerful tool in defending some of the most vulnerable members of society from actions of their own governments.

This chapter traces the historical emergence of two of these three historical strands: international humanitarian law and refugee law. International human rights law is discussed in chapter 2.

(Continues…)

Excerpted from The Politics of Protectionby Elizabeth G. Ferris Copyright © 2011 by THE BROOKINGS INSTITUTION. Excerpted by permission of Brookings Institution Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.