Tomorrow, the African Union’s Kampala Convention (officially the Convention for the Protection and Assistance of Internally Displaced Persons in Africa) will come into force. This is an important step forward for providing internally displaced persons (IDPs) with rights in international law.
Like refugees, IDPs have been forced to flee their own homes. Unlike refugees, however, they remain within their own state. This means that rather than having protections in international law like refugees (through the 1951 Refugee Convention), primary responsibility for their protection continues to rest with their own state. But this can be problematic, especially in cases where the state cannot or will not protect its own population or is even responsible for their displacement (such as in Darfur). Further, while refugee numbers have remained relatively stable (at 15.2 million in 2012), IDP numbers have continued to grow. In 2011, there were 26.4 million IDPs in some 53 countries, only a little below the record number of 27 million IDPs recorded the year before.
IDPs were not even recognized as an international problem until the early 1990s (a story I told in a 2010 article). In 1998, the then-Representative of the Secretary-General for Internally Displaced Persons, Dr. Francis Deng, proposed a set of guiding principles on internal displacement. While these were non-binding on states, they used as their foundation existing international human rights law, humanitarian law, and refugee law. As Walter Kälin, the head of the legal team which drafted them and Deng’s successor as Representative of the Secretary-General for the human rights of internally displaced persons, argued: “It is possible to cite a multitude of legal provisions for almost every principle…”
This has meant that the guiding principles have had a much different outcome than a lot of other soft law initiatives. Within a few years of their drafting, they had been acknowledge by all the major UN organs, by a range of regional and sub-regional organizations, and brought into domestic law in a number of countries. In 2005, the UN World Summit declaration recognized the principles as “an important international framework” for IDP protection.
As a cornerstone for IDP protection, the guiding principles do a number of interesting things. First, they define IDPs as people “who have been forced or obliged to flee or to leave their homes” not just due to human rights violations, but also due to situations of armed conflict, generalized violence, and natural or human-made disasters. As such, they provide a much broader definition for IDPs then the 1951 Refugee Convention does for refugees. In addition, they lay out a wide range of rights for IDPs including rights against arbitrary displacement and forced return. They also establish that international humanitarian organizations have a right to offer their services and that “consent thereto shall not be arbitrarily withheld.”
The Kampala Convention brings these rights into international law, including the wide-ranging IDP definition. But it also requires signatories to introduce domestic laws and institutions to protect and assist IDPs, and introduces (at least on paper) strong monitoring provisions, including a dispute mechanism which refers issues to the African Court of Justice and Human Rights. While a number of African countries already have domestic policies, this will ensure better oversight and greater information on how the policies are actually working.
More broadly, for international relations scholars, this is also a very interesting story of norm emergence. As I discussed in the above article, a lot this literature focuses on hard law conventions as a clear sign of norm institutionalization (a good example of this process is the landmines convention). But the guiding principles have followed a very different route. While they were introduced at the international level, they have followed a much more bottom-up approach, gaining traction first through domestic implementation. As such, they show that there are many paths to norm institutionalization at the international level.
Dr. Phil Orchard is a Lecturer in International Relations and Peace and Conflict Studies at the University of Queensland and a research associate with the Asia-Pacific Centre for the Responsibility to Protect. With Alexander Betts, he is completing an edited volume on ‘Implementation in World Politics: How Norms Change Practice.’ He tweets @p_orchard.
Australian Foreign Minister Bob Carr with Ambassador Charles Thembani Ntwaagae, Permanent Representative of Botswana to the UN (Photograph: Rick Bajornas). Source: http://bobcarrblog.wordpress.com/
On 18 October 2012, the Sixty-Seventh Session of the United Nations General Assembly voted to appoint five Member States to a two-year non-permanent term on the United Nations Security Council.
Argentina, Australia, Luxembourg, Rwanda and South Korea will replace outgoing South Africa, Colombia, Germany, India and Portugal. Azerbaijan, Guatemala, Pakistan, Togo and Morocco will remain until the end of 2013.
The UN Charter gives the Security Council primary responsibility for international peace and security. The Charter gives the Council wide discretion to determine its own agenda and Articles 41 and 42 awards the Council a very broad range of measures to use in pursuit of its primary responsibility. The International Court of Justice has ruled that the Council’s decisions are not subject to judicial review.
Today, the Council has a packed agenda. Its members meet on an almost daily basis; diplomats of Council members converse informally several times a day. As we write major issues on the Council’s agenda include the continuing situation in Syria that will be familiar to most Australians, but a host of others.
Not least, the Council is responsible for mandating and overseeing sixteen UN peacekeeping operations, with around 120,000 uniformed personnel deployed around the world. All of these missions need to be closely monitored by Council members, with particular attention paid to hotspots such as eastern DRC, South Sudan and Darfur. Seven UN peacekeepers have been violently killed in these countries in the past month alone.
One of the situations not relating to UN peacekeeping (yet) on the Council’s agenda is that in Mali. The Toureg rebellion in northern Mali has provoked widespread displacement and there are concerns that the Islamist rebels might target vulnerable groups (recent reports are that unmarried mothers are being singled out by the rebels); the Economic Community of West African States (ECOWAS) has proposed intervention to support the government of Mali and invited the Council’s support. The Council must decide whether ECOWAS has a viable strategy, what it would take to protect civilians and build peace in Mali, what sort of exit strategy is needed, and the best way of navigating around Mali’s complex politics. A similar set of questions and challenges are evident in Somalia, too.
But the deployment of force is not all the Security Council does: it deals with the whole range of international security issues, including terrorism and the proliferation of weapons of mass destruction; it protects the international rule of law; it fosters an end to impunity with its power to refer situations to the International Criminal Court; it can manage, limit and prevent the flow of arms; protect and promote the specific rights of children in armed conflict, fight against terrorism. It has also championed new ways of thinking about – and practicing – international politics in relation to the protection of civilians in armed conflict, climate change, displacement, the empowerment of women in relation to armed conflict and much more besides.
As a price tag for persuading the world to grant Australia a seat at this table, $25 million since 2007 to secure what one called a ‘big, juicy decisive win’ is money very well spent. Indeed, as the Foreign Minister, it is money that should have been spent anyway in pursuit of the promotion and building of core values and support for others less fortunate. Claims that the bid has skewed or inflated Australia’s foreign aid are well off base and not consistent with basic facts. Most notably, that the pledge to increase Australia’s foreign aid budget occurred well before the Council bid. Indeed, it was Liberal Foreign Minister Alexander Downer who promised to raise foreign aid to 0.5% of GDP to meet Australia’s obligations towards the 2015 Millennium Development Goals. The fact that Australia now sits around 0.33% would suggest that there has been no dramatic Council induced aid spend.
Diplomats and others were surprised that Australia secured 140 votes, winning election in the first round of voting by a margin of 11. Even the most optimistic among them believed that it would be much tighter. Both Luxembourg (who was also elected) and Finland (who was not) presented very strong cases. Member states that voted Australia have done so with the expectation that it will be a responsible and innovative member of the Security Council that will work hard to deliver on some of the key policy areas that have characterized Australia’s engagement with the UN in recent years: strong support for the Responsibility to Protect, the promotion and development of the protection of civilians, the empowerment of women and protection of women’s rights, the strengthening of global arms control (especially in relation to small arms and WMD), the strengthening of UN peacekeeping, the building of international policing capacity, the strengthening of assistance to states and societies, and the strengthening of peacebuilding.
Having won the election, thought now turns to what Australia should do with it. Part of the job, of course, will be contributing to the day-to-day management responsibilities of the Council. But non-permanent members can leave an indelible mark: in the 1990s, Venezuela created a new meeting format that allowed the Council to consult with civil society groups and others; these so-called ‘Arria meetings’ provided the setting for one of the Council’s first discussions about the conflict in Darfur more than a decade later; Canada’s tenure in 1999-2000 bestowed the Council with an ongoing thematic engagement with the protection of civilians which has delivered many practical advances and various methods for significantly improving the effectiveness of sanctions and embargoes. Australia will, of course, have the honour of serving as Council president. Unusually, by virtue of alphabetical order it will get this privilege twice – in August 2013 and late 2014.
We want to end by highlighting five things in particular that Australia could prioritise and that would make a lasting impression. In no particular order, they are:
First, promote measures to strengthen the limitation and control of arms, especially through an arms trade treaty. Advancing progress on the arms control treaty was one of the key goals emphasized by Australia as part of its bid. Clearly, Australian advocacy on this issue played a major role in securing votes in conflict affected regions of the world. Australia has a good track record on this issue and is a good position to argue for a meaningful treaty. In addition, the Council seat gives Australia to advance thinking and practice on related issues, especially:
- Strengthening implementation of the UN Programme of Action on Small Arms and Light Weapons;
- Developing measures to strengthen compliance with Security Council imposed arms embargoes that binds states to the implementation of laws and regulations surrounding the sale and purchase of small weapons, including firearms, and the enforcement of sanctions on weapon providers, buyers and transport carriers to prevent the escalation of ongoing conflicts.
Second, promote practical steps to implement Resolutions 1325, 1820, 1888, 1889 and 1960 on Women, Peace and Security and the empowerment of women in all aspects of peace and security. Australia has already played a leading role on these issues – not least through its fund to the Pacific region for women’s empowerment in politics, its National Action Plan on the implementation of Resolution 1820, and its work on the role of female policing and peacekeeping personnel in UN missions. To take one example, Resolution 1889 called for greater participation of women at all levels of UN field missions and measures to ensure the participation of women in peace processes. Some specific things that Australia could do include:
- Promoting the Women Protection Advisor (WPA) role in UN field missions. This role was trialed successfully in Chad and should be incorporated into all mandates that include protection duties or involve deployments into areas of risk of sexual and gender based violence. It has been difficult, however, to put this initiative on a sustainable footing. Australia could play a leading role on this through its contributions to discussion about mandates and funding.
- Encouraging the participation of women in conflict resolution and peace processes. Australia could lead work aimed at overcoming the practical obstacles to this objective.
- Promoting practical steps to increase the number of female peacekeepers and uniformed police officers serving in UN missions
- Encouraging the appointment of more women to senior roles in UN peacekeeping and other missions. Australia has led the way in some respects by, for example, appointing a woman to command its police contingent in Timor-Leste – a world first. As a member of the Security Council, Australia will have some influence over the composition of the pool of candidates for positions such as Special Representatives of the Secretary-General and force commanders.
- Promote the security of all vulnerable groups from sexual violence before, during and after conflict – this means a concerted focus on prevention as well as protection, as called for in UNSC Resolution 1960
Third, promote the strengthening of contributions to UN peacekeeping operations. The UN is currently facing critical challenges in relation to sustaining its peacekeeping operations and improving their effectiveness. Australia could use its tenure on the Security Council to encourage the Council to think creatively about:
- Persuading members of the Western European and Others Group to contribute more military, policing and civilian personnel to UN missions;
- How the Security Council might help to nurture and support the potential major contributors to UN peacekeeping of the future, including many contributors in Southeast Asia;
- Facilitating the establishment of a more reliable and effective force generation system for UN peacekeeping;
- Identifying and closing critical capability gaps, including through promotion of the use of gaps lists and further development of these initiatives.These agendas may be pursued through the Council’s working group on peacekeeping as well as through its ongoing consideration of management and mandate issues.
- Continuing to advance conceptual and doctrinal thinking about the protection of civilians by peacekeeping operations, and to advance the practice of prevention.
Fourth, strengthen the Council’s work in protecting humanitarian workers and humanitarian access. In relation to the Syrian crisis, Foreign Minister Bob Carr has been actively working to progress recognition and actualization of the legal rights to immunity and access bestowed upon humanitarian workers by International Humanitarian Law. The Security Council has repeatedly addressed this issue under the rubric of the protection of civilians but more is work needed to translate the Council’s demands for compliance into practice. The immunity of humanitarian workers from attack and granting of humanitarian access are core principles of law that are regularly violated in contemporary conflict. The Foreign Minister’s calls for a right to access medical care in conditions of armed conflict are not vague ideals but hard law. It is not easy to see how the Council might be used to advance this agenda, but it is one that should feature in Australia’s ongoing contribution to protection debates.
Fifth, encourage the Security Council to advance implementation of the Responsibility to Protect principle. Australia has been at the forefront of the global campaign in support of the Responsibility to Protect – RtoP – the idea that states should protect their own people from genocide, war crimes, ethnic cleansing and crimes against humanity, that the international community should assist them to that end, and that the world should take timely and decisive action – through the Council – to protect populations from these crimes. It is now in a position to think innovatively about how it might use its position on the Council to advance and deepen that body’s engagement with RtoP. Possibilities include:
- Seeking inclusion of RtoP language in resolutions, where appropriate;
- Encouraging the Council to explore the use of non-coercive measures at an earlier stage of a crisis to stop the descent into violence;
- Encouraging the Council to explore, perhaps informally, the conditions that make RtoP crimes more likely and pathways of escalation, to better equip the Council to pick situations likely to produce atrocities at an early stage;
- Encourage ongoing consideration about the way in which mandates are framed to achieve RtoP objectives in light of recent controversies;
- Explore possibilities (such as an informal working group) for encouraging the Council to deepen its own engagement with the implementation of RtoP, in tandem with the General Assembly
Alex Bellamy and Sara Davies, Human Protection Hub
What should we be hoping for when we look at the ongoing crisis in Syria? I don’t really know anymore.
The most interesting book that I have read this year is Why Civil Resistance Works: The Strategic Logic of Non-Violent Conflict, by Erica Chenoweth and Maria J. Stephan (Columbia University Press, 2011). The book has profoundly altered my feelings and challenged my thinking about Syria. The argument of the book, if correct, would seem to have extraordinary implications for the Syrian rebels’ campaign of violent resistance, not only in terms of the likelihood of success, but perhaps more tragically the likelihood that success will lead to a sustainable peace.
The argument of the book, developed through a combination of statistical analysis and detailed case studies, is straightforward: Non-violent campaigns of resistance are more than twice as effective as violent insurgencies in achieving their stated goals. A primary reason for this is that “the moral, physical, informational, and commitment barriers to participation are much lower for non-violent resistance than for violent insurgency” (10). Higher levels of participation create enhanced resilience and greater opportunities for tactical innovation and civic disruption, and encourage shifts in loyalty of individuals including members of the security forces away from the existing regime. These factors greatly increase the likelihood of success. Moreover, the authors argue, campaigns of non-violent resistance, when successful, are much more likely to lead to the establishment of durable and internally peaceful democracies than are successful violent insurgencies which are often followed by regress into civil war within a few years.
The book went to press shortly after the beginning of the revolutionary wave of popular movements known as the “Arab Spring.” The authors penned an epilogue in the wake of the overthrow of authoritarian regimes in Tunisia and Egypt by non-violent resistance movements in early 2011. Based on their statistical analysis developed in the book, they offered an estimate of the likelihood that Egyptians would be able to establish peaceful and durable democracy. Their conclusion is sobering, partly because of what they say about the hopes for Egypt, but even more so because of what they say about the hopes for violent insurgencies such as that which has emerged in Syria since the book was published:
“Controlling for other factors, if Egypt follows the pattern of other successful nonviolent campaigns, our estimates indicate that it has more than a 30 percent chance of being a democracy. Although that figure may sound uninspiring, the probability would be much closer to zero percent if the revolution had been violent or if it had not occurred at all” (230-31).
The implications for Syria (and similarly for Libya) are distressing. Of course the statistics of past cases do not guarantee particular outcomes in the future. But neither in this instance do they provide much ground for hope. The decision by elements of the Syrian resistance movement (which remained peaceful for longer than did the equivalent movement in Libya) to turn from a campaign of non-violence to violent insurgency may ultimately prove tragic. Even if they are successful in overthrowing Assad’s regime, there is a danger that they will have inaugurated a period of violence and instability leading to greater civilian suffering and death than was experienced even while the tyrannical Assad wielded power unopposed.
Of course, this is not to excuse the Assad regime for its brutal response to the resistance campaign – a response which has already led to as many as 20,000 deaths including many civilians. Similarly, it is not to rebuke the rebels for desiring freedom from oppressive rule. But, having read Chenoweth and Stephan’s book, I find it difficult to hope that the rebels successfully achieve a violent victory.
Human Protection Hub
To what extent has RtoP been effective as a ‘rallying call’ to action in the face of mass atrocities? Is RtoP just ‘hot air’ as some of its critics have suggested?
In order to examine whether RtoP adds value as a rallying call, I created a list of cases of ‘mass atrocities’ for the period 2006-mid2011 based on the Uppsala Conflict Data Project’s (UCDP) database on ‘one-sided violence’ and incorporating data from its ‘armed conflicts’ dataset that included conflicts with high rates of intentional civilian killing. This was augmented with data on the ‘Arab Spring’ to establish a list of twenty-six cases. This included nineteen cases where RtoP was referred to and seven where it was not. There were around ten cases in which RtoP was invoked but which did not actually involve the commission of mass atrocities. Sometimes this was done by states, as in the case of the Russian government in relation to Georgia and the French government in relation to Myanmar after Cyclone Nargis, but more often this was done by civil society actors as in the invocation of RtoP in relation to crises in Gaza, Zimbabwe, North Korea, South Africa and the Philippines.
Was the Security Council was more likely to act when RtoP was invoked ? There appears to be a very clear connection between the use of RtoP and the likelihood that the Council will pass a resolution. In a little over half (53%) of the cases of mass killing where RtoP was invoked by any actor, the Security Council adopted resolutions in relation to that crisis. This compares to only 14% of cases where RtoP was not invoked. At face value, this suggests that the Council is much more likely to adopt measures when a situation is framed in RtoP terms than in relation to similar events that are not so framed.
It might be contended that it is the gravity of the crisis and not RtoP that is doing the work in creating this clear difference. In other words, the worse the situation, the more likely it is both that actors will use RtoP language and that the Security Council will adopt measures. According to this account, RtoP and Council resolutions are both products of the gravity of the problem. However, there is no clear relationship between the number of deaths and the likelihood that RtoP will be invoked. In the period examined, the median estimated number of deaths in cases where RtoP was invoked was 750, compared with 727 for cases where it was not. The median estimated number of deaths for cases where RtoP was invoked and the Security Council adopted measures was 788, higher again but not sufficiently so to suggest that casualty rates were a determining influence. There were two cases of mass killing (Pakistan and India) where RtoP was not invoked and the Council took no action in which the estimated death tolls were greater than in six other cases where RtoP was invoked and the Council did adopt measures. Alternatively, of the ten deadliest episodes of anti-civilian violence 2006-2011 – RtoP was invoked only in relation to seven and the Security Council acted in only five of the cases.
Expressed this way, it appears that RtoP has a type of ‘securitizing’ function in that invocation of the principle elevates a particular crisis above ‘normal politics’ and demands that the Security Council respond. The principle’s capacity to generate the will and consensus to act is limited (in only half of the relevant cases was invocation followed by a Resolution) but comparing cases where it was invoked with those where it was not clearly indicates that it adds value.
Alex Bellamy – Human Protection Hub
By Hugo Slim
Even the most zealous ideologues have been challenged approaching Damascus. Thrown from their horse, they have been left dazed and partially sighted, forced to re-examine their norms.
Damascus has presented such a challenge once again in recent months. This time, it is the new norm in international relations known as R2P—the responsibility to protect—that has been temporarily unseated. It is a simple formula. This important new norm contends that it is the international community’s responsibility to protect civilians when a state fails in its responsibility to do so.
R2P has made swift progress in the international community since its adoption (in a watered-down form) at the United Nations Summit in 2005, gaining acceptance at the same time as the rise in indictments by the International Criminal Court. Together, this combination offers hopes of real progress in setting limits to crimes against humanity, genocide and war crimes.
But they are not yet everybody’s norm. The Syrian government’s brutal and indiscriminate attack on its own civilian population in response to pro-democracy demonstrations seems an easy call for the swift application of R2P. The UN Security Council might well be expected to agree on firm measures that would prevent further atrocities, or go further to intervene militarily if prevention does not work.
But it can’t. Alas, R2P is not the only norm in international relations. The current situation in Syria is strong evidence of a more ancient and enduring norm from imperial and Cold War days: when a strong repressive state has one or two very powerful allies it can easily resist the wider will of international society and public morality. As is well reported, Syria has seemingly unwavering Russian backing and China has no desire to see international military intervention into the Middle East again. Indeed, if truth be told, nor do most other states, even the ones most vocally condemning Syria.
What this shows is that in some places, like Sierra Leone and Libya, R2P is do-able. In places like Darfur and Syria it is not. Why? Places with successful R2P application tend to have very small populations, with regimes bereft of a major ally and where popular backing for international action is nearly unanimous. A non-military R2P approach can also work at times. In Kenya in 2007-2008, Kofi Annan worked to create a negotiated solution and prevent a protracted civil war. But in this case, most major powers (and particularly the USA) put real pressure on their Kenyan ally. In Syria, even the deft but highly leveraged ‘Annan method’ is failing. The Syrian government has no incentive to abide by it, nor is the plan leveraged enough by major powers.