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R2P and POC in the UN Security Council
Hugh Breakey
6 March 2013
(…)A primer: R2P and POC
In brief, R2P is a commitment to stop atrocities: genocide, ethnic cleansing, war crimes and crimes against humanity. R2P was formed in response to two events—the genocide in Rwanda in 1994 where there was little effective international action, and NATO’s military action with respect to Kosovo in 1999, where there was military intervention, but the action occurred without Security Council authorization, and therefore seemingly in violation of international law. The intention behind the development of R2P was to create a norm that could ensure that the international community could respond to looming atrocities—but also that such responses were made consistent with international law. R2P has three parts (three ‘pillars’ as the Secretary-General terms them):  1) States have a responsibility to protect their own populations from atrocity crimes. 2) The international community should work consensually with states to help them build the capacity to protect their populations. 3) In the event that the state is manifestly failing to protect its population, the international community through the United Nations Security Council has a backup responsibility to protect the population. R2P was unanimously accepted by the UN General Assembly in 2005, and then ‘reaffirmed’ by the Security Council in 2006 in Resolution 1674.
For its part, POC began as that part of the laws of war (International Humanitarian Law, including the Geneva Conventions of 1949 and the Additional Protocols of 1977) that aimed to protect non-combatants from the more egregious harms to which armed conflict exposes them. In this form POC is a matter of law. Over the last couple of decades however, POC has become more than restrictions on combatant actions and tactics. The norm that the unarmed should be protected from widespread, lawless, brutal violence informs the actions and decisions of the Security Council, of peacekeepers and of humanitarian agencies. POC can also become a part of military doctrine when the objectives are to save civilians from other combatants.
Given their different origins, each principle is evaluated rather differently. Formed in the crucible of Rwanda and Kosovo, R2P is inherently controversial. It directly confronts state sovereignty and allows (indeed, it morally obliges) the international community to act with coercive force against states if necessary to protect populations. After R2P’s acceptance by the UN in 2005 and 2006, many nations became increasingly concerned about its capacity for being a vehicle for neo-colonialism and regime change. In response, R2P’s consensual aspects were emphasized by its proponents. R2P was not merely about military responses, it was propounded, but also about preventive action and support to states that wanted to protect their populations but were unable to do so. In short, R2P began its existence as highly controversial, and has tried (with mixed success) to journey away from those beginnings to a less contentious status.(…)
What then, of the relationship between R2P and POC?
Several months before our research team released its Policy Guide, the Secretary-General put out his 2012 Report to the Security Council on POC. In its Operative Paragraph 21 the Secretary-General squarely confronted the question of the relationship between R2P and POC. He drew a stark distinction between the two norms, asserting that POC was a ‘legal concept’ and R2P a ‘political concept’ and declaring that POC only applies in armed conflict.(…)
First, their inaccuracy. To be sure, POC was initially a legal concept, defined by International Humanitarian Law. But it has since grown beyond this to a policy framework, guiding the Security Council, peacekeepers, humanitarians and the international community more generally. The commitment to positively protect civilians taken on by each of these actors is not a legal concept. None of these actors are legally obliged to protect civilians, except perhaps in very, very rare situations. To say POC is based on a legal concept is fair enough, so far as it goes. But to say itis a legal concept, as if peacekeepers and the Council are directly bound by law to protect civilians, is false and misleading.
The characterization of R2P as a ‘political concept’ is also flawed. Some aspects of R2P are straightforward law; the duties states have not to perpetrate atrocities are plainly legal ones. States also have some legal duties not to be complicit in genocide occurring in other countries, as the ICJ determined in the Bosnia Genocide Case. Asserting R2P to be a ‘political concept’, while appropriately acknowledging R2P's politicized aspects, risks distracting attention from its legal elements and its larger basis in international law.(…)
If this is right, then it opens the question: Why did the Secretary-General make this assertion in the first place? After all, Secretary-General Ban Ki-Moon has been a great supporter of the United Nation’s attempts to protect civilians. Why would he make any assertion liable to roll back reforms he himself has achieved? The answer, I think, is that the intention was simply to try and make POC appear less controversial. Especially in the wake of the regime-change in Libya, and also the use of French military assets in Côte D’Ivoire to protect civilians, there was increased suspicion about POC and substantial pushback against what had previously been widely accepted POC inclusions in Security Council resolutions and peacekeeping mandates. The wish to make POC more acceptable drove the drafters of the Secretary-General’s report to present a bright-line distinction between R2P (controversial/political) and POC (acceptable/legal). While the drafters’ intentions were no doubt laudable, however, the result was unhelpful.
What does the future hold?
Following the Secretary-General’s report, in the 2012 Open Debate on POC, the ‘Group of Friends on POC’ (and some member-states as well) used the Secretary-General’s ‘legal concept’ language. Representing fifteen UN member-states, with three current members of the Security Council, the Group stated: “In our endeavor to re-establish confidence, it is of the utmost importance to reaffirm the basic tenets of the protection of civilians as a legal concept based on international humanitarian law, human rights refugee law and international criminal law.”
It was in the context that our research team launched the Policy Guide, and presented our findings to delegations at the United Nations in New York in November 2012.(…)
Security Council resolutions carry serious and sometimes far-reaching consequences, and every word matters. It could prove a serious setback to subsequent protection efforts if the Council unwittingly entrenched a concept of POC that is an inaccurate and enervated characterization of its current substance. While it is always tempting to make policies and practices seem as uncontroversial as possible, in the context of civilian protection clarity and determination are crucial. There is little point in trying to achieve consensus on POC if that threatens to return the United Nations civilian protection agenda to its status during the dark days of Rwanda and Srebrenica. 
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