THE DOCTRINE OF PROTECTION OF CIVILIANS; A CASE FOR SOMALIA:
POSSIBILITIES, LIMITATION AND RECOMMENDATIONS
by
SUSAN MWANGA
11098295
A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE
REQUIREMENTS FOR THE DEGREE OF
MASTER OF ARTS
in
INTERNATIONAL AND EUROPEAN LAW
THESIS SUPERVISOR: PROF. DR. T.D. GILL
AMSTERDAM LAW SCHOOL
UNIVERSITY OF AMSTERDAM
2016
ii Abstract
It is undeniable the increase in number of civilian displacements and deaths as battlefields, strategies and frontlines change, exacerbated by disrespect for laws of war and human rights. It is also undeniable that the United Nations peace operations no longer find solidity in political and State reconstruction alone. In the spirit of saving generations from the dangers of war, the United Nations now extends its peace operations to the protection of civilians (PoC) as an integral part of peacekeeping and building. The protection of civilians within Security Council mandates solidifies United Nations‟ legitimacy, credibility and perhaps relevance as it rises to the challenges of peace and security, especially after the gruesome genocides in Rwanda and Srebrenica, and the mass atrocities in Congo. It is an absurd fact that such atrocities occurred partly because there was no written authority within the mandates for the United Nations troops to protect civilians. The Security Council sought to salvage the image of UN by giving the first direct authority to peacekeepers to protect civilians in Sierra Leone in 1999, followed by a multitude of others. Likewise, having first deployed in 2007, AMISOM adopted the protection of civilian strategy in 2013. Prior to that, the only relationship AMISOM had with the civilian population was either through the initiative of the commanders or through civil-military activities. However, even with this Protection of Civilians strategy in place, challenges continue to exist, including practicability of implementation and the legal consequences thereof. The ability of a State such as Somalia to carry out its obligations and responsibility to preserve and ensure continued protection of its civilian population is greatly impeded. Armed groups, including some members of the national forces, pry on civilians for various reasons including absence of or a weak rule of law on the ground. The thesis seeks to analyse the legal and operational practicability, and the effectiveness of the doctrine of PoC by looking at its general overview as developed by the UN, its legal basis and framework, the challenges and possible practical recommendations in a volatile environment such as Somalia, its impact in minimizing the excesses of armed groups on civilians and effect on the overall mission.
iii Table of Contents
Abstract ... ii
Table of Contents... iii
List of Abbreviations... v
Acknowledgements... ……....vii
Dedication ... viii
Chapter 1 General Introduction 1.1. The Doctrine of Protection of Civilians ... 1
1.2. The Legal Status ... 3
1.3. The Dilemmas to the Protection of Civilians in Operational Context………. 4
1.4. Essence of the Research……… 4
1.5. Problem Statement... 5
1.6. Key Research Questions... 5
1.7. Secondary Research Questions... 5
1.8. Methodology…... ...5
1.9. Provisional Outline……… ...6
Chapter 2 General Overview of the Doctrine of Protection of Civilians 2.1. Introduction... 9
2.2. Origin... ...11
2.3. Development of the Doctrine of Protection of Civilians... ...13
2.4 Objectives... 15
2.5 Applicable Law... ...16
2.5.1. Introduction... 16
2.5.2. The General Legal Instruments on Protection of Civilians in Armed Conflict Situations... 17
2.5.3. Approaches through Thematic and Situation-Specific Resolutions... 19
Chapter 3 The Legal Practicalities and Challenges to Protection of Civilians 3.1. Introduction... 22
iv
3.2. The Legal Status, Obligation and Prohibitions arising from the Doctrine
of Protection of Civilians... 22 3.3. General Practical Challenges... 26 3.4. Practicality of Protection of Civilians in the Context of Somalia
and the Challenges Peculiar to AMISOM... 31 3.4.1. General Constaints... 31 3.4.2. The Parallels of Secular and Sharia Law, and Tribal Divides... 33
Chapter 4 General Conclusion and Recommendations
4.1. General Conclusion... 36 4.2. Recommendations... 39
Bibliography ... 43
v
List of Abbreviations
AMISOM African Union Mission in Somalia
AOR Area of Responsibility
AU African Union
CEDAW Convention on Elimination of All Forms of
Discrimination against Women
CRC Convention on the Rights of the Child
DDR Disarmament Demobilization and Reintegration
DFS Department of Field Support
DPKO Department of Peacekeeping Operations
DRC Democratic Republic of Congo
IASC Inter-Agency Standing Committee
ICC International Criminal Court
ICRC International Committee of the Red Cross
ICCPR International Covenant on Civil and Political Rights
IDPs Internally Displaced Persons
IHL International Humanitarian Law
IHRL International Human Rights Law
MINUSMA United Nations Multidimensional Integrated
Stabilization Mission in Mali
MONUSCO United Nations Organization Stabilization Mission
in the Democratic Republic of the Congo
NATO North Atlantic Treaty Organization
UN United Nations
UNAMIS United Nations Mission in Sudan
UNAMSIL United Nations Mission in Sierra Leone
UNSC United Nations Security Council
OCHA Office for the Coordination of Humanitarian Affairs
ONUC United Nations Operation in the Congo ((known by
the French acronym ONUC: “Opération des Nations Unies au Congo”
vi
PoC Protection of Civilians
RoL Rule of Law
vii
Acknowledgements
My deep gratitude goes first to my supervisor, Prof. Dr. Terry D. Gill, who expertly guided me through a legally and operationally difficult concept and inspired interest in the doctrine and challenges of United Nations system in the protection civilians in armed conflicts, amidst dynamic frontlines. I‟m thankful to him for the invaluable advice, time and patience he gave, and for encouraging me to include my own experience in order to enrich this thesis.
Inestimable thanks is expressed to the Amsterdam Law School, Netherland Ministry of Defence, the Holland Scholarship Team and the Ministry of Defence Uganda, for the invaluable support committed to this programme, and for their trust and confidence in me.
I express my sincere gratitude to Prof. Dr. Marjoleine Zieck for the warm welcome and professional guidance that she gave throughout my study.
My gratitude goes to the International office for committed guidance during my application to this programme; Ms. Wieteke De Jong, thank you; to Mrs. Irith Kist my Academic Advisor, encouraging warmth and availability sailed me through the year.
I offer my thanks to the administration of Marine Establishment Amsterdam, for the warm hospitality they gave throughout the period of my study.
I extend my gratitude to Arthur te Lintelo and Yvette Folliant for endless guidance and friendship. I sincerely thank Rosa Beats and Jantine Verkaik, graduate students, for their warm friendship; a reflection I will carry with me as a representation of the Netherlands. I am profoundly grateful to Momo Lee for her priceless support, patience and the comfort she gave through a challenging time. I thank Sarah Mukashaba, Glorious Natukunda and Maurine K Nagadya for the innumerable acts of kindness throughout the year.
I owe the greatest thanks to my parents and sister-Juli. I don‟t know any one more loving or sacrificing.
There are many people important to me that I haven‟t mentioned, but I will remain forever grateful.
viii Dedication
1
CHAPTER 1 General Introduction 1.1. The Doctrine of Protection of Civilians
The doctrine of protection of civilians emanates from the increased number of civilians as victims of armed conflict, which has prompted the United Nations Security Council to mandate a number of peacekeeping operations with the protection of civilians (PoC) from physical violence; the first of its kind being United Nations Mission in Sierra Leone (UNAMSIL),1 others included United Nations Mission in Sudan (UNMIS)2, and the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO)3to name but a few. Since its inception in 1999, an increasing number of United Nations peacekeeping missions have been expressly mandated to protect civilians, but not without a struggle to turn that ambition into reality on the ground.4 The concept of Protection of Civilians involves United Nations mandates which authorize peacekeeping troops to take action in the protection of civilians whose lives are under imminent threat of physical violence.5 Protection broadly encompasses United Nations Security Council sanctioned-activities,6 aimed at obtaining full respect for the rights of all
1
United Nations Peacekeeping, Protection of Civilians, available at: http://www.un.org/en/peacekeeping/ issues/civilian.shtml [accessed on 12 April 2016]
UN Security Council, Security Council resolution 1270 (1999) [on establishment of the UN Mission in Sierra Leone
(UNAMSIL)], 22 October 1999, S/RES/1270 (1999) available at: http://www.refworld.org/docid/ 3b00f22814.html[accessed 12 April 2016]
2 UN Security Council, Security Council resolution S/RES/1590 (2005) [Supporting the implementation of the
Comprehensive Peace Agreement] available at: http://www.un.org/en/peacekeeping/missions/past/unmis/ [accessed
12 April 2016]
3 UN Security Council, Security Council resolution 1925 (2010) [on extension of the mandate of the UN
Organization Mission in the Democratic Republic of the Congo (MONUC)], 28 May 2010, S/RES/1925(2010),
available at: http://www.refworld.org/docid/4c174e522.html [accessed 12 April 2016] <http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1925%282010%29>
4 V. Holt et al, Protecting Civilians in the Context of UN Peacekeeping Operations; Successes, Setbacks and
Remaining Challenges, 2009, United Nations <https://docs.unocha.org/sites/dms/Documents/Protecting [accessed
on 12 April 2016]
5 Hasnat M. M. Karim, Understanding the ‘Protection of Civilians’ Doctrine in the Context of Un Peacekeeping
Operations, Abstract, available at: https://www.academia.edu, [accessed on 12 April 2016]
6 n. 1
2
individuals in accordance with international law which includes International Humanitarian Law, International Human Rights Law and Refugee Law without discrimination.7
According to the Department of Peacekeeping Operations (DPKO) and Department of Field Support (DFS), protection of civilians in the UN peacekeeping operations context involves three major areas, to wit; protection through extension of support to political processes in order to establish a safe and secure environment, guaranteeing respect for human rights of all individuals, and collaborating in conflict management and national reconciliation.8 Secondly, protection from physical violence; which can be attained through establishing a deterrent presence by means of military and civilian police deployments, carrying out day and night patrols in vulnerable communities and targeted locations, setting up physical defensive positions or cordons around a community, IDP or refugee sites, as well as responding to violent attacks with all necessary means including the use of force.9 The third activity involves establishing a protective environment aimed at creating conditions conducive to the delivery of humanitarian assistance, promotion and protection of human rights, reduction of forcible displacements and creating conditions suitable for return, reforming the police, judicial and defense sectors of the Host Country as well as conducting Disarmament Demobilization and Reintegration (DDR) of former non-state fighters and Mine Action activities.10 However, for the purpose of this thesis, physical protection forms the theme of the research; especially since protection of civilians has become one of the main operational pillars for lasting mission success.
In areas where the United Nations peacekeepers are the only neutral force on ground, civilians have looked to it for protection. Having failed to prevent or halt mass atrocities in Rwanda, Srebrenica and Congo, the United Nations peacekeeping principles and capabilities were examined and critically assessed resulting in the need for reform, whereby the United Nations was called on to do more than mere observers of peace processes.11 It is these past failures that have prompted the UN to extend its operation to the protection of civilians, in order to improve its effectiveness in the world order through Security Council„s authorization in peacekeeping 7 Hasnat M.M.Karim, p. 4 8 n. 5, p. 6 9 ibid 10 ibid 11 n. 4, p. 2
3
mandates to include protection of civilians as part of the mission priorities.12 These mandates explicitly permit peacekeepers „to take all necessary measures to protect civilians under imminent threat of violence.‟13 In so doing, they strengthening the legitimacy and credibility of the UN peacekeeping missions, thereby making the UN relevant and purposeful in modern situations of armed conflict, as it continues to promote international peace and security.14 In the case of Somalia, the African Union Mission in Somalia (AMISOM) is mandated by the UN Security Council to develop further an effective approach to the protection of civilians and establish a civilian casualty tracking, analysis and response cell,15 possibly to guide the operations in the best way to prevent harm to civilians and ensure their protection. PoC issues are now being included in AU peace support operations standard operating procedures as part of the mandate of future AU missions.16
1.2. The Legal Status
The concept of protection of civilians has gained legitimacy as it is founded on the universally accepted rules of international humanitarian law, human rights law and refugee law that are set out in a range of international legal instruments,17 which is elaborated in the thesis chapter on applicable law. However, in summary, the UN Security Council documents provide the starting point for PoC, to wit; the Secretary General‟s report S/1999/957 (1999) formed the basis for adoption of Security Council resolution 1265 on PoC in conflict. The Security Council has also resorted to addressing the issue through thematic approaches on „who is at-risk‟ and therefore
12 ibid, p. 2 13 ibid 14
ibid
15 UN Security Council, Security Council resolution 2182 (2014) [on the renewal of the provisions of para. 2 of
resolution 2142 (2014) until 30 Oct. 2015 concerning the arms embargo on Somalia and on extension of the mandate of the African Union Mission in Somalia (AMISOM) until 30 Nov. 2015], 24 October 2014, S/RES/2182
(2014) , para. 31. <http://www.refworld.org/docid/546dfdf94.html>
16 Williams, P.D., (2013) The African Union Mission in Somalia and Civilian Protection Challenges. Stability:
International Journal of Security and Development. 2(2), and art. 39. DOI: p. 4 <http://doi.org/10.5334/sta.bz >
17 UN Security Council Report, Cross-Cutting Report, Protection of Civilians in Armed Conflict, December 2013, p. 3 <www.securitycouncilreport.org>
4
requires protection;18 the acknowledgement of the basis for protection in IHL and in human rights law during in armed conflict. In addition to resolution 1674 (2006) on the protection of civilians in armed conflict, other examples include UNSC: resolutions 1325 (2000) and 1889 (2009) on women, peace and security. The UN Capstone Doctrine recognizes resolution 1674 as reaffirming „the Council‟s commitment to ensuring that the mandates of peacekeeping operations, where appropriate and on a case by case basis, including but not limited to provisions regarding the protection of civilians under imminent threat of physical danger within their zones of operation.19 PoC in the Context of UN Peacekeeping Operations and security includes resolutions 1612 (2005) and 1882 (2009) on children and armed conflict; and resolutions 1820 and 1888 (2008) on sexual and gender-based violence. The Capstone Doctrine provides guidance to peace-keeping missions. In this way, with limited number of troops, thematic approaches may relatively address some PoC challenges.
1.3. The Dilemmas to the Protection of Civilians in Operational Context
It is noted that with the increased number of civilians requiring protection, so is there an increase in possible challenges.These range from limits paused by the legal provisions, regarding what is permissible or not permissible, sometimes, unclear mission intent regarding PoC,20 or misconceived directives or rules, or insufficient preparation of the legal advisors on one hand, and on the other hand, the limited number of troops, making it impossible to provide physical protection to all at-risk. For instance, the African Peace and Security Council made a communiqué, requiring AMISOM force units to concentrate on consolidation of effort, and control over recovered territories and extension of State authority since the troops had reached their operational limits and were unable to conduct expansion operations as envisaged in the AU-UN Strategic Concept for future operations in Somalia.21 Some of the commanders on the ground interpreted this to mean an order for no further offensive beyond their camps, even within their own areas of responsibility (AOR). This misinterpretation reduced proactivity. In the
18 n. 4, p. 57 19 n. 4, pp. 57-58 20 ibid, p. 6
21 African Union Peace and Security Council, Communiqué of the 379th Meeting of the Peace and Security Council,
PSC/PR/COMM(CCCLXXIX), 13 June 2013, para. 7, <
5
meantime, the non-state armed groups continued to terrorize the communities, conduct sporadic attacks on some civilians and government officials as well as AMISOM forces, who would only react against direct fire.
1.4. Essence of the Research
This thesis provides an overview, origin and the different levels of the doctrine of protection of civilians as developed by UN, and how the doctrine may be applied in volatile environments such as Somalia. It is stated that the United Nations must focus its efforts on enhancing protection where and for whom it matters most on the ground, in the midst of conflict and for the hundreds of thousands of civilians who are, on a daily basis, at risk of, or fall victim to, serious violations of international humanitarian law and human rights law.22 The thesis analyzes the
legal status and basis for protection of civilians and the operational perspective within which the doctrine operates. It also provides an analysis of the practicability, challenges and the possible way forward on the basis of a discussion of the role and experience of AMISOM forces. It then makes a general conclusion on the possible recommendations on mission-rules clarity and the applicable legal basics. The thesis acknowledges that written down authority for PoC provide certainty and clarity, but the absence of written authority in the mandate should not be an impediment to PoC,23 because preservation of human lives is also guided by dictates of humanity. Further, acts of genocide violate jus cogens, and therefore raise an erga omnes obligation, which UN or States have the responsibility to channel to their contingents on ground. The challenge then is that the number of troops on ground may be overwhelmed by perpetrators, who may kill them as well, as was the case in Rwanda in 1994, especially if Member States are
22
M. G. Smith et al, The Protection of Civilians in UN Peacekeeping Operations: Recent Developments, Security Challenges, Vol. 7, No. 4 (Summer 2011), p. 27, quoting the Secretary General of the United Nations Ban Ki moon, <https://www.academia.edu/3360919/The_protection_of_civilians_in_UN_
peacekeeping_operations_Recent_developments>
23 UN. Report of the Panel on United Nations Peace Operations. UN document A/55/305 and S/2000/809, 21 August 2000 <http://www.un.org/documents/ga/docs/55/a55305.pdf>, also UN General Assembly, Identical letters
dated 21 August 2000 from the Secretary-General to the President of the General Assembly and the President of the Security Council : report of the Panel on United Nations Peace Operations, 21 August 2000, A/55/305–S/2000/809,
6
unwilling to intervene.24 Protection mechanisms are not „one fits all‟, therefore the thesis also notes the possible challenges to the suggested recommendations, which may provide basis for further study on the topic.
1.5. Problem Statement
The protection of civilians, though a State obligation and responsibility, still faces challenges in contemporary armed conflicts.
1.6. Key Research Questions
1.6.1. Primary Research Questions:
1.6.1.1. What is the legal basis and status of the doctrine of Protection of Civilians
1.6.1.2. How can the doctrine of Protection of civilians best be integrated into the operational context of contemporary peace operations
1.7. Secondary Research Questions:
1.7.1. How has the United Nations doctrine on protection of civilians developed?
1.7.2. What are the challenges to the protection of civilians on the ground?
1.7.3. What are the possible practical recommendations to improve the effectiveness of the implementation of the doctrine?
1.8. Methodology
The methodology applied by the research is three fold. It starts with a description of the doctrine of the protection of civilians as developed by the United Nations, giving an overview of the doctrine‟s origin, its goal, why and how it has developed over time. It then brings in a legal doctrinal approach through an analysis of the legal status and framework within which the protection of civilians is operated. And thirdly, it looks at the application of the doctrine to the operational perspective by considering the practicability, challenges and the possible way
24United Nations, Outreach Progamme on the Rwanda Genocide and the United Nations, <http://www.un.org/en/preventgenocide/rwanda/education/rwandagenocide.shtml>
7
forward in light of AMISOM forces. Reference is made to various United Nations and Security Council documents, the various relevant international legal regimes, and works of various writers on the subject in the field, journals, articles, reports and commentaries.
1.9. Provisional Outline
The present research paper comprises four chapters. Chapter one comprises the introduction within which are the preliminaries on the doctrine of protection of civilians under the United Nations, its legal status and a brief on the dilemmas encountered in the operational context. The essence of the research and its methodology are also included. Chapter two tackles the origin, development and objectives of the doctrine as well as the legal framework within which the protection of civilians is applied, bearing in mind that the doctrine does not stand alone but is hinged on existing international laws; with focus on general and specific applicable legal regimes.
It then gives some overall strengths and weaknesses, and challenges encountered during the application of the thematic approaches to situation-specific issues. For instance, protection of one group may undermine the protection or increase exposure and vulnerability of that group or another group which may not be receiving protection. For the case of Somalia, after a conflict caused IDPs and establishment of a camp outside an AMISOM camp, another group not involved in that specific conflict arrived and demanded that another camp be setup for them because they were also facing threats from armed groups. It is believed the situation like that of Somalia has a lot on the plate requiring a variety of approaches including trainings on human rights, right from the local leadership to the most senior level of government administration,. It is more challenging given the cultural setup
Chapter three provides a brief overview and an analysis of the practical possibilities and challenges faced in the context of the AU Peace Operation in Somalia; describing the situation on the ground with regard to the Somali local legal systems and its impact on security vis-a-vis protection of civilians, based on the divide of accepted legal order under the hybrid of Sharia law, the customary practices on clan lines on one hand, and the practices by armed groups such as Al-Shabaab on the other hand. The chapter also analyses the possibilities of the application of the doctrine (which is basically international law) and the practical challenges on ground, giving
8
some of the experience being faced by AMISOM troops in an effort to protect civilians within the mandate. The fourth and last chapter answers the main research questions and provides recommendations which may be adopted to address the challenges arising and finally, gives the general conclusion on the findings based on the foregoing chapters to come up with a central view on the possibility of the protection of civilians in situations of armed conflicts.
9
CHAPTER 2
2. General Overview of the Doctrine of Protection of Civilians 2.1. Introduction
The doctrine of Protection of Civilians appears within the broad working definition of the United Nations which builds upon the definition provided by the International Committee of the Red Cross. Both the ICRC and the UN‟s Inter Agency Standing Committee (IASC) accept that the concept of protection of civilians encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of the relevant bodies of law, including international humanitarian law, human rights law and refugee law.25 This encompasses a wider definition than the meaning provided by international humanitarian law in its standard form; which specifically limits protection as that against the effects or consequences of war.26 The defining elements of protection of civilians under the United Nations doctrine and those under international humanitarian law are similar in that they seek to protect the civilian from violations of civilian immunity from attack, especially given the fact that the notion of protection of civilians in situations of armed conflict derives its origin from international humanitarian law and other relevant bodies of law or norms.27 However, since the research is more about the physical protection of civilians in a broader context, here, the defining parameters involve what is required to be done; such as ensuring safety of civilians from the effects of physical violence, through preventive measures such as political engagement with parties to the conflict by senior mission leadership, preventive tactical deployments of the peacekeeping force as well as direct use of force in areas where civilian lives are at risk.28 Reliance on the military
25
S. Gordon, The Protection of Civilians: An Evolving Paradigm? Stability: International Journal of Security & Development, 2013, p. 2. <www.stabilityjournal.org/articles/10.5334/sta.cb/>
26 ibid
27 ICRC Protection Policy, Reports and Documents, Volume 90 Number 871 September 2008, International Review of the Red Cross, 2008, pp. 751-752
<https://www.icrc.org/eng/assets/files/other/irrc-871-icrc-protection-policy.pdf>
28 Draft DPKO/DFS Operational Concept on the Protection of Civilians in United Nations Peacekeeping
Operations, p. 4,
10
component in physical protection emanates from the “imminent threat” clause, but other important mission components include the police, who contribute to both force projection and response through high visibility and increased patrolling,29 in relatively pacified areas. It is also important to mention that physical protection goes hand in hand with other forms of protection, therefore the doctrine also includes issues pertinent to the Rule of Law (RoL), Security Sector Reform (SSR), and Disarmament, Demobilization and Reintegration (DDR); intended to help the State establish an environment for the full respect of physical security and rights of civilians.30
Protection of civilians in all situations is first and foremost the obligation and responsibility of the State within whose territory or jurisdiction such civilians are located.31 However, where the State is unable or unwilling to render such protection, entities such as the United Nations have, through mandates of the Security Council, come in to salvage the situation; either in form of peacekeeping or peace enforcement operations. It is noted that in the Preamble to its Charter, the United Nations pledged to act to “save succeeding generations from the dangers of war, which have brought untold sorrow to mankind, to reaffirm faith in fundamental human rights, to establish conditions under which such rights can be maintained, and to do so through maintenance of international peace and security”32
It is in the spirit of these efforts that has seen the United Nations extend its peace operations to the protection of civilians, as an integral part of peacekeeping and building.
The Security Council has primary responsibility for maintenance of international peace and security, including by means of the establishment of peacekeeping operations.33 The protection of civilians has been adopted through the language of the Security Council mandates provided to UN peacekeeping missions.34 Such language encompasses explicit direction for peacekeepers to protect civilians under „imminent threat of physical violence‟, or support the provision of a safe and secure environment such as the direction to the United Nations Protection Force in Bosnia
29
n. 28, p. 5 30ibid, pp. 5-6
31 International Covenant on Civil and Political Rights, 1966, art. 2 32 The Charter of the United Nations, 1945
33 n. 4, p. 33 34
11
and Herzegovina,35 to „deter attacks against the safe areas‟, effected through use of direct fire power against armed groups who attack civilians.36 Other protection mechanisms include respect of human rights and the promotion of adherence to international humanitarian law (IHL), refugee law, and humanitarian principles, protection of UN personnel, safe returns of refugees and internally displaced persons (IDPs), the protection of women, children and other vulnerable groups such minorities, by authorizing specific tasks such as cordon and search operations, and patrolling.37
2.2. Origin
The Protection of civilians theme though not explicitly included in Security Council mandates immediately after the inception of the United Nations, was implicit right from the start; when States pledged to never allow future generations to suffer the scourges of war.38 The original perception of UN peacekeeping operations as international military forces deployed to carry out observation and ceasefire monitoring, have since the end of the Cold War shifted with more peacekeeping missions being deployed with significant expansion in tasks, redirected towards addressing the root causes of conflict through supporting peace building activities such as assistance in State reconstruction.39 The earliest notable involvement of UN peace operations in protection of civilians was under UN Operation in the Congo ((known by the French acronym ONUC: "Opération des Nations Unies au Congo") 1960.40
Originally mandated to provide the Congolese Government with the military and technical assistance following the collapse of State structure and the military intervention by Belgian troops and other foreign elements, ONUC assumed other responsibilities beyond normal
35
United Nations, Security Council Resolution, S/RES/836 4 June 1993, http://www.un.org/Docs/scres/1993/ 36
ibid 37 n. 4 38 n. 31
39 Willmot. H and Sheeran. S., The protection of civilians mandate in UN peacekeeping operations: reconciling
protection concepts and practices. International Review of the Red Cross (2013), 95 (891/892), pp. 519-520,
available at: <https://www.icrc.org/en/international-review/article...>
40 UN Security Council, Resolution 143 (1960)of 14 July 1960, 14 July 1960, S/RES/143 (1960), available at: http://www.refworld.org/docid/3b00f00d50.html
12
peacekeeping duties; such as police function, to restore law and order.41 ONUC Operational Directive No. 8 provided an authority; „where feasible, every protection was to be afforded to unarmed groups subjected by any armed party to acts of violence likely to lead to loss of life; thus providing a legal basis for UN troops to use armed force, if necessary, to prevent such loss of life. It was in light of this protection that the then Secretary-General Dag Hammerskjold,, cleverly crafted a legal basis for temporary disarmament of some elements of the Congolese National Army who were reported to pose a threat to the civilian population,42 under resolution 169 (1961), to ensure maintenance of law and order,43 in spirit of the Universal Declaration of Human Rights and the Convention on Genocide.44 Notably, after 1960, protection of civilians was revisited in 1999,45 after the UN had realized its importance as a vital component to the success of its missions and relevance in a wider scope as the custodian of international peace, security and the protection of human rights.
The further development of United Nations doctrine on the protection of civilians was triggered by the genocides and mass atrocities in Srebrenica, Rwanda and Somalia.46 The atrocities happened as peacekeepers were ill-prepared or failed to prevent or stop the slaughter of civilians. These acts and omissions directly challenged both UN peacekeeping operations, putting to test the fundamental principles and capabilities of peace operations preceding the collapse of peace agreements, resumption of armed confrontations, and the consent of the parties to the presence of a mission disappeared.47 This was worsened by outright violation of humanitarian rules and principles by combatants who directly targeted civilian populations.48 The inability of the United Nations to protect civilians not only tested its credibility and legitimacy, but also its relevance in
41 United Nations, Summary of AG-008 United Nations Operation in the Congo (ONUC) (1960-1964), Archives and Records Management Section. Available at: https://archives.un.org/sites/archives.un.org/files...
42 United Nations, Art. 98, Repertory, Suppl. 3, vol. IV (1959-1966), pp. 75-76, available at: http://legal.un.org/repertory/art98/english/rep_supp3_vol4-art98_e.pdf
43
ibid, p. 75 44
ibid, p. 76
45 UN Security Council, Security Council resolution 1270 (1999) [on establishment of the UN Mission in Sierra
Leone (UNAMSIL)], 22 October 1999, S/RES/1270 (1999), para. 14
available at: http://www.refworld.org/docid/3b00f22814.html [accessed 30 April 2016] 46 n. 4, p. 35
47 n. 4, p. 35 48
13
contemporary armed conflicts, where peacekeepers were and increasingly continue to be caught up in or forced to adjust to prevailing armed security conditions.
In the initial stages, the failure of peacekeeping troops to protect civilians was due to lack of authority within the mandate for them to engage in combat operations to protect civilians. On the verge of losing credibility and legitimacy, the Security Council transitioned to a more explicit language directing peacekeepers to specifically “afford protection to civilians under imminent threat of physical violence, within its capability and area of deployment”.49 However, it can be seen that this language still seems ambiguous as to what constitutes „area of deployment‟, as shall be expounded upon in the practical challenges and limitations under chapter three of this thesis.
Direct authorization for the use of force under Chapter VII to protection civilians in a peace operation setting was made under the UN Mission in Sierra Leone (UNAMSIL) mandate.50 In the Security Council‟s Meeting S/PV.4054 of 22 October 1999, the Sierra Leonean populations expected the Security Council to bear its responsibility to provide solutions to the safety of civilians as a core value of its obligations,51 with zero tolerance to violation of jus cogen norms.52
2.3. Development of the Doctrine
The development in the doctrine of protection of civilians may be best seen and understood by comparing the language as used in the mandate in 1999 and what changes if any, have been made to the doctrine by the year 2016. Other developments include; Security Council‟s introduction of thematic protection approaches; the call upon the Secretary-General to make a report on the situation every 18 months (S/PRST/2013/2), the development in the sanctions regime relative to protection notably resolution S/RES/2078 of 28 November 2012 in DRC,53
49 n. 45, also n. 4, p. 36 50ibid
51UN Security Council, Security Council’s Meeting S/PV.4054 of 22 October 1999, Agenda: Situation in Sierra
Leone, Eighth report of the Secretary-General on the United Nations Observer Mission in Sierra Leone (S/1999/1003), p. 5, available at: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.4054 [accessed 2
May 2016] 52 ibid, p. 38 53
14
and following resolution 2002(2011), Al-Shabaab was listed in relation to civilian protection criteria.54 Other developments include endorsement of an Aide-mémoire by the President of the Security Council in 2002, as a practical tool that provides a basis for improved analysis and diagnosis of key protection issues, particularly during deliberations on peacekeeping mandates.55 The Council has an established practice to hold biannual open debates on the issues of protection; there is also established an Informal Expert Group (2009) on protection of civilians in connection with the renewal of relevant UN mandates, receiving briefings by the Office for the Coordination of Humanitarian Affairs (OCHA) in respect of the drafting of country-specific resolutions.56
Further developments, to be expounded upon in Chapter Three include; adoption of resolution 2068 (2012) on protection of children and bringing to book perpetrators of violence against children in armed conflict, plus issues pertaining protection of women (S/PRST/2012/23), and other vulnerable groups in armed conflict, and the recognition of women‟s potential in preventing, conflict resolution and peace negotiations.57
Since its inception in 1999, the concept of protection of civilians has not changed in terms of the intent of the Security Council but there has been noticeable eliminations and addition of words to the initial language on protection of civilians as used in the UNAMSIL mandate; „to afford protection to civilians under imminent threat of physical violence‟, was preferred.58 The word „to afford’ sounds passive, uncertain, and limiting. However, it does not seem to have been among the causes of challenges in UNAMSIL.59 From 2000 through 2009, the language in the mandate
54 ibid, p. 15
55 UN Security Council, Statement [made on behalf of the Security Council, at the 6917th meeting, 12 Feb. 2013, in
connection with the Council's consideration of the item entitled "Protection of civilians in armed conflict"], 12 February 2013, S/PRST/2013/2, p. 5 at para. 4, available at: http://www.refworld.org/docid/5200e39e4.html
[accessed 15 May 2016] 56 n. 60, p. 4
57 ibid, p. 8 58 n. 45
59 N. Lamp and D. Trif (PhD Candidates), United Nations Peacekeeping Forces and the Protection of Civilians in
Armed Conflict, Hertie School of Governance Working Papers , No. 47, November 2009, p. 42, available at:
15
became more authoritative and proactive with the addition of the words; „to take necessary action‟, as was the case of United Nations Mission in Sudan under Security Council resolution 1590 (2005)60 or „to use all necessary means‟ under Chapter VII.61 In protection of civilians mandates, it is well established that protection is mandatory, however one may wonder; why the variance in language, especially where the words „all necessary measures‟, were included in some mandates and excluded in others. For all intents and purposes, the Security Council is required to deliver62 by providing mandates which ensure effective protection of civilians in armed conflict situations through progressive and flexible interpretation.63
Significant progress has been made within the normative including collective steps taken to foster compliance and accountability through ratifying or acceding to or signing of some important treaties such as the Arms Trade Treaty;64 to prevent the diversion or the flow of arms and ammunition especially to areas affected by conflict and violence.65 However, though there are remarkable improvements in the normative framework on the task of protecting civilians, these have not yet fully applied in the field, for various reasons such as lack of mandate clarity or political will,66 among others, more of which are expounded upon in Chapter Three.
2.4. Objectives
In UN peace operations missions with a mandate to protect civilians, such protection is said to be an objective in itself, as part of the overall mission objectives. Thus the mission may be to assist
60 n. 4, p. 44 61 ibid
62 UN Security Council, The Security Council and UN Peace Operations: Reform and Deliver, Research Report
2016, No. 2, 5 May 2016, available at: www.securitycouncilreport.org [accessed 3 May 2016]
63
UN General Assembly, Identical letters dated 17 June 2015 from the Secretary General addressed to the
President of the General Assembly and the President of the Security Council, Report of the High level Independent Panel on Peace Operations on uniting our strengths for peace: politics, partnership and people, A/70/95 S/2015/446, 17 June 2015 , p. 12, available at: www.un.org/sg/pdf/HIPPO_Report_1_June_2015.pdf, [accessed 3
May 2016]
64 The Arms Trade Treaty, 2014, United Nations Office for Disarmament Affairs, available at: http://www.un.org/disarmament/ATT/ [accessed 3 May 2016]
65 n. 67, p. 15 66
16
the State‟s military and police restore law and order,67
monitor a peace process,68 and also protect civilians. This means protection of civilians is a secondary objective whose achievement is part and parcel of the overall mission success.69 However, as a standalone, the protection of civilians also has its own objectives, which if achieved, boost the whole mission. But it is noted that the mission and protection of civilians are symbiotic; one cannot be divorce from the other. The language adopted by the Council for peacekeeping mandates defines the objectives.70 Thus were protection of civilians is part of the mission mandate, its objectives may include provision of support for the security of civilians directly and indirectly; support the provision of a „safe and secure environment‟; respect of human rights and the promotion of adherence to international humanitarian law (IHL), refugee law, and humanitarian principles, to enable delivery of humanitarian assistance, protection of UN personnel, safe returns of refugees and internally displaced persons (IDPs). The objectives also include the prevention of sexual and gender-based violence, and the protection of women and children,71 all of which are rights, obligations and prohibitions provided by the relevant legal regimes.
2.5. Applicable Law 2.5.1. Introduction
The concept of protection of civilians is founded on the universally accepted rules of international humanitarian law, human rights law and refugee law that are set out in a range of international legal instruments.72 In a bid to illustrate a clear picture on the legal regimes applicable to the doctrine of protection of civilians, this section considers the general legal instruments in the first part (Section 2.5.2), the substantive legal basis for protection of civilians. The second part (Section 2.5.3), considers some of the specific approaches through which the Security Council tries to address protection issues, on the basis of the relevant legal instruments.
67 ONUC, n. 40 68 MINUSMA, n. 118 69 n. 37, p. p. 518 70 Holt, et al, p. 33 71 ibid, pp. 33-34
72UN Security Council, Protection of Civilians in Armed Conflict, Cross-Cutting Report, 2013, No. 3, 20 December 2013, p. 3. available at: securitycouncilreport.org [accessed 3 May 2016]
17
Thus legitimize Security Council‟s resolutions. The approaches include the thematic resolutions and situation-specific approaches, which seek to effect certain legal instruments on protection of certain vulnerable groups; for instance the Convention on the Elimination of All Forms of Discrimination against Women,73 the Convention of the Rights of the Child74 and its Optional Protocol.75
2.5.2. General Legal Instruments on Protection of Civilians in Armed Conflict Situations
The Charter to United Nations provides the overarching legal protection of civilians in all situations; with regard to fundamental human rights76 and authority of the Security Council regarding maintenance of international peace and security.77
The direct notion of protection of civilians in armed conflict in itself can be traced first and foremost in international humanitarian law rules; that is, the Geneva Conventions of 12 August 1949, in particular the Fourth Convention, whose applicability extends to all situations of case of inter State war,78 or occupation79 Where relevant, these provisions are to be implemented in
addition to those applicable in peacetime including customary international rules providing for protection in non-international armed conflict for persons not actively taking part in combat operations but find themselves in the hands of a Party to the conflict.80 In this regard, the law ensures that protection is to be provided by the State troops as well as prohibit both State troops
73 UN Women, Convention on the Elimination of All Forms of Discrimination against Women (1981), available at: http://www.un.org/womenwatch/daw/cedaw/ [accessed 11 May 2016]
74 UN Office of the High Commissioner, Convention on the Rights of the Child (1989), available at: http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf [accessed 11 May 2016]
75 UN Office of the High Commissioner, Optional Protocol to the Convention on the Rights of the Child on the
Involvement of Children in Armed Conflict (2002), available at: http://www.ohchr.org/EN/Professional Interest/
Pages/OPACCRC.aspx [accessed 11 May 2016] 76 n. 31
77 ibid, art. 24 (1); (2) and (3)
78 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, art. 2 para. 1 available at:
http://www.refworld.org/docid/3ae6b36d2.html [accessed 11 May 2016] 79 ibid, art. 2 para. 2
80 n. 78
18
and non-state armed groups from attacking civilians by virtue of the 1977 Additional Protocol II.81
It may relatively be stated that the failures or challenges in the application and implementation of, or disrespect for international humanitarian rules applicable to civilian protection provided the ground for the emergence of the doctrine of the protection of civilians, deeply rooted in other international legal regimes.
A valuable source for human protection is the 1948 Universal Declaration of Human Rights (UDHR). Basically as stated in its title, the UDHR provides for universal human rights from which emanate other instruments including; the 1966 International Covenant on Economic, Social and Cultural Rights and the 1966 International Covenant on Civil and Political Rights; calling on State Parties to protect and respect the rights for all those within their territory and jurisdiction, and the fulfill their obligations under the Covenants. In line with this thesis, special attention is drawn to the obligation of States to protect the inherent right to life82 provision of freedom of liberty and security of person.83 Other legal instruments include 1951 Convention Relating to the Status of Refugees and its 1967 Optional Protocol for the protection of refugees; the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1989 Convention on the Rights of the Child and its Optional Protocol on the Involvement of Children in Armed Conflict, 2002; the 1994 Convention on the Safety of UN and Associated Personnel and its 2005 Optional Protocol for the Protection of UN Personnel; the 1998 Rome Statute of the ICC with jurisdiction over persons for the most serious crimes of international concern hence ensure accountability.84 Further, customary
81 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977,
1125 UNTS 609, art. 4. available at: http://www.refworld.org/docid/3ae6b37f40.html [accessed 14 May 2016] 82 International Covenant on Civil and Political Rights, 1966, Preamble and art. 2 (1), 2 (2), and art. 6 83 ibid, art. 9(1)
84 The Rome Statute of the International Criminal Court, 1998, art. 1. available at: http://legal.un.org/icc/statute/ romefra.htm[accessed 14 May 2016]
19
international law is also applicable to human rights protection when it comes to issues of universal concern, especially jus cogens norms and erga omnes.85
2.5.3. Approaches through Thematic and Situation-Specific Resolutions
This section provides an account of how the Security Council addresses the doctrine of protection of civilians through specific resolutions. For instance the protection and promotion of the safety of women and children in armed conflict situations. While resolution S/RES/1265 of 17 September 1999 bore the first direct authority for peacekeepers to protect civilians, the idea first appeared in the UN Congo mission of 1960. Following 1999, the Council adopted the first thematic text on the protection of civilians under resolution 1296 (2000), emphasizing the need to look at the issues on case-by-case basis, allocation of resources, planning and rapid deployment.86 It also emphasized protection of jus cogens norms through setting up temporary security zones and safe humanitarian corridors.87 The protection of civilians provides a broader but not standalone theme under Security Council‟s general responsibilities.88
From this emanates other themes serving as implementation measures for the protection of civilians. Such sub-themes include priority given to at-risk groups such as children, women and other vulnerable groups,89 such as those belonging to minorities.
Other specific resolutions include 1325 (2000) and 1889 (2009) on women, peace and security which not only looked at the vulnerability of women, but also emphasized their important role in preventing and managing conflicts with specific need to have more women in the field.90; Resolutions 1820 (2008) and 1888 (2008) called upon the Security General to develop mandates with effective guidelines and strategies for peacekeepers on the protection of civilians against
85 n. 72
86 UN Security Council, Security Council resolution 1296 (2000) [on protection of civilians in armed conflicts], 19
April 2000, S/RES/1296 (2000), para. 1; S/RES/1674 (2006), available at: http://www.refworld.org/docid/3b00e
fb824.html [accessed 14 May 2016] 87 n. 4, p. 53 at 54
88 n. 72
89 UN Security Council Resolution 1296 (2000), paras. 9 and 10 90
20
sexual violence.91 Resolution 1612 (2005) places emphasis on protection of children in armed conflict and requires peacekeeping operations to monitor and report to the Secretary General. Resolution 1882 (2009)92 on children and armed conflict reaffirms resolution 1612(2005).93 To further boost protection, the relevant UN agencies such as UNHCR have called upon to play their part in developing effective mechanisms for protection of civilians from violence, in particular sexual violence against women and girls in and around UN managed refugee and internally displaced persons camps, as well as in all disarmament, demobilization, and reintegration processes.94
At this stage, it is perhaps important to shed some light on the strengths and weaknesses of the thematic approach to the protection of civilians. Regarding strengths, the legal provisions within which themes apply are specific and clear. More so, in focusing special attention to a specific need, the peace operations are able to concentrate possibly minimum resources and time to those at-risk. However, a dilemma arises where, as is the case of Somalia, attacks on civilians are not limited in space but spread all over the country, such that providing protection to women in camps excludes women in other areas who face the same risks. Or expose the ones at risk to more risk because they may be singled out or targeted by non-state armed groups. More still, some of the thematic approaches involve a longer term process yet the immediate need is physical protection on ground against attacks by armed groups. This is not to say that the protection component is eroded. The problem arises where some implementers may be blinded with what is trending; in which case, themes may be applied whole sale in practice without due regard to situation specific needs, thereby resulting in inconsistencies between the thematic and
91UN Security Council, Security Council resolution 1820 (2008) [on acts of sexual violence against civilians in
armed conflicts], 19 June 2008, S/RES/1820 (2008), para. 9 available at: http://www.refworld.org/docid/485bbca
72.html [accessed 14 May 2016]
92 UN Security Council, Security Council resolution 1882 (2009) [on children and armed conflict], 4 August 2009,
S/RES/1882 (2009), para. 2. available at: http://www.refworld.org/docid/4a7bdb432.html [accessed 13 June 2016]
93 UN Security Council, Security Council resolution 1612 (2005) [on children in armed conflict], 26 July 2005,
S/RES/1612 (2005), available at: http://www.refworld.org/docid/43f308d6c.html [accessed 13 June 2016]
94
21
situation-specific resolutions,95 when a situation-specific resolution fails to adapt the relevant
components of the thematic language, leading to the ineffectiveness of the Security Council‟s goal
95 OCHA, Security Council Norms and Practice on the Protection of Civilians in Armed Conflict: Analysis of
Normative Developments in Security Council Resolutions 2009-2013, OCHA Policy and Studies Series, May 2014 |
22
CHAPTER 3 The Legal Practicalities and Challenges to Protection of Civilians 3.1. Introduction
This Chapter focuses on the legal status of protection of civilians, its implication, the nature of obligations the law places upon the relevant players, and what kind of prohibitions exist. In this context, the scope of the relevant law includes international humanitarian law, human rights and refugee law, and the institutional frameworks in place to ensure physical protection of civilians in situations of armed conflict. The Chapter then proceeds to give the position on the application of the doctrine to a country-specific situation focusing on the AMISOM mission in Somalia. The challenges faced in this regard are also considered, with observations from personal experience while serving with AMISOM in 2013 to 2014.
3.2. The Legal Status, Obligations and Prohibitions Arising from the Doctrine of Protection of Civilians
The legal status of the doctrine of protection of civilians derives from relevant regimes of international law. First to be discussed is the recognition of the importance of civilian protection during armed conflict as a cornerstone of international humanitarian law, which identifies and protects particularly vulnerable civilian groups such as women, children and the displaced.96 Noteworthy here is that most of the instances giving rise to protection of civilian issues arise from non-international conflicts. While the basic principles of the law of armed conflict entail distinction, proportionality, military necessity, humane treatment, limitation and good faith, time and space do not allow for covering all in detail, hence limiting this section of the thesis to the principles of distinction, discrimination, precaution and proportionality.
Article 3 common to the four Geneva Conventions of 1949 establishes the minimum standards that all parties involved in a non-international armed conflict should observe concerning the treatment and protection of civilians. It explicitly prohibits violence to life and person (in particular murder, mutilation, cruel treatment or torture), the taking of hostages, outrages upon personal dignity (in particular humiliating or degrading treatment) and the passing of sentences
96 ICRC, Civilians protected under international humanitarian law, 29-10-2010 Overview, available at: https://www.icrc.org/eng/war-and-law/protected-persons/civilians/overview-civilians-protected.htm [accessed 27 May 2016]
23
and the carrying out of executions without previous judgment of a regularly constituted court, affording all judicial guarantees which are generally recognized as obligatory.97
Worth the mention are several norms within the Geneva Conventions of 1949 and Additional Protocols I and II of 1977, which have reached the status of customary international law, meaning that they are binding on all parties involved in armed conflicts.98 Chapters 1-8, 11, 17 and Part V,99 provide for categories of people protected under customary international humanitarian law. Chapter 32 specifically provides for “fundamental guarantees” because they apply to all civilians in the power of a party to the conflict and who do not or have ceased to take a direct part in hostilities, as well as to all persons who are hors de combat.100 These rules partly form the legal foundation for PoC doctrine. However not all can be expounded here. Therefore, specific regard is hard to physical protection of the civilian person and principles such as distinction, which requires parties to distinguish between civilians and combatants and direct attacks only against combatants.101 In light of this, it may be noted that there are three major parties involved in the physical protection of civilian persons in a conflict situation and therefore obligated to respect IHL and human rights law. These are; the host State with primary responsibility to protect its population, the non-state armed groups and the foreign troops in liberated areas.
97 Uhler et al., The Geneva Conventions of 12 August 1949 - Commentary Common Article 3: IV Geneva
Convention Relative to the Protection of Civilian Persons in Time of War , p.3, as cited by OCHR in: Report on the
Protection of Civilians in the Non-International Armed Conflict in Iraq: 5 June – 5 July 2014, available at:
http://www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_POC%20Report_FINAL_18July2014A.pdf 98 ICRC, Customary International Humanitarian Law, ed. Jean-Marie Henckaerts and Louise Doswald-Beck (CUP/ICRC, Cambridge 2005) 19 as cited in OCHR Report, ibid, p. 5
99 Henckaerts J. M., and Beck L. D., Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press, 2005 availble at: https://www.icrc.org/eng/assets/files/other/customary- international humanitarian-law-i-icrc-eng.pdf [accessed 21 June 2016]
100 Jean-Marie Henckaerts, Study on customary international humanitarian law: a contribution to the understanding
and respect for the rule of law in armed conflict, International Review of the Red Cross, Volume 87 Number 857
March 2005 01 May 2011, p. 195 available at: https://www.icrc.org/eng/assets/files/other/icrc_002_0860.pdf [accessed 21 June 2016]
101
24
Since foreign forces normally deploy in a country where State structure has broken down, peacekeepers or peace enforcement forces have found themselves exercising some kind of de facto occupation power by analogy. Where such power is exercised, the occupying power is under an obligation, according to Article 43 of the Hague Regulations of 1907, to take all the measures in its power to restore, and ensure, as far as possible, public order and safety in the occupied area;102 to secure respect for the applicable rules of international human rights law and international humanitarian law, to protect the inhabitants of the occupied territory against acts of violence, and not to tolerate such violence by any third party.103 In Somalia, this has taken ground partly through Civil-Military activities manifested by the provision of basic services such as medical care, water and security in liberated areas as a means to regulate their relationship with civilian population which aids the success of the overall mission.
Further, parties to an armed conflict situation are required to take all necessary precautions when carrying out attacks and afford to civilians the general protection against the dangers arising from military operations. It is an obligation to spare civilians and to take all feasible precautions with the “view to avoiding, and in any event to minimizing, incidental loss of civilian life or injury to civilians....”104 If violation occurs, it may constitute war crimes. Not however that, in contemporary armed conflicts, civilian casualties are unavoidable. To this end, the principle of proportionality sets the standard for minimizing civilian casualties alongside the prohibition of indiscriminate attacks.105 Warring parties have however grossly exceeded the limits of these rules. This point is important to note because though relative loss of lives is permitted, standards (mechanical or enforced discipline) for the protection of civilians may need to be set higher than ordinary, with serious consequences in the event of breach so as to guarantee some sort of respect for the rules of IHL relating the subject of PoC.
102
International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo V. Uganda) Judgment of 19 December 2005, para. 178 available at: http://www.icj-cij.org/
docket/files/116/10455.pdf [accessed 21 June 2016] 103 ibid
104 ibid, rule 15 and International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, article 13(1) and (2), available at: http://www.refworld.org/docid/
3ae6b37 f40.html [accessed 28 May 2016] 105
25
In addition to IHL, international human rights law vests the responsibility to protect civilians first and foremost on the State. Article 2 of the International Covenant on Civil and Political Rights places the primary responsibility to protect on the State in whose territory or under whose jurisdiction the civilians are found.106 The Document of the 2005 World Summit Outcome,107 resulting in resolution A/RES/60/1/2005, emphasized the responsibility of States to protect their populations from violations of jus cogens norms.108 It also acknowledged the responsibility of the international community to protect through the United Nations, where the State is unwilling or unable to protect its populations,109 or where it is the perpetrator of such violations; as was the case in Rwanda in 1994. Also worth mentioning are the laws relating to thematic responses to specific protection guarantees. These include for example, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)110 which opens with a remark, "...the full and complete development of a country, the welfare of the world and the cause of peace require the maximum participation of women on equal terms with men in all fields"111 On the basis of this are resolutions on women, peace and security, and prohibition of sexual violence against women.112 The Convention on the Rights of the Child (CRC),113 including its Optional Protocols provides the legal foundation for protection of children in armed conflict.114
106 International Covenant on Civil and Political Rights (1966), available at: http://www.ohchr.org/en/professional interest/pages/ccpr.aspx [accessed 27 May 2016]
107 United Nations, The 2005 World Summit High-Level Plenary Meeting of the 60th session of the UN General
Assembly, (14-16 September 2005), available at: http://www.un.org/en/events/pastevents/worldsummit_2005.
shtml [accessed 27 May 2016]
108 United Nations General Assembly, Resolution adopted by the General Assembly on 16 September 2005: 60/1. 2005 World Summit Outcome, p. 30, para. 138, available at:https://documents-dds-ny.un. org/doc/UNDOC/ GEN/N05/487/60/PDF/ N0548760.pdf?OpenElement [accessed 27 May 2016]
109
ibid, para. 139
110 3 September 1981 available at: http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm [accessed 27 May 2016]
111 United Nations Women, As noted by United Nations Entity for Gender Equality and Empowerment of Women, available at: http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm [accessed 27 May 2016]
112 n. 83 and n. 88; SC resolutions 1325 (2000), 1820 (2008) and 1888 (2008), 1889 (2009), n. 4, p. 57 at 60-62 113 (1990), art. 38 (4) available at: http://www.ohchr.org/en/professionalinterest/pages/crc.aspx [accessed 27 May 2016]
114
