The Protection Paradox: How the UN Can Get Better at Saving Civilian Lives 3031274261, 9783031274268

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HUMAN RIGHTS INTERVENTIONS

conor fol e y

Human Rights Interventions

Series Editors Chiseche Mibenge, Stanford University, Stanford, CA, USA Irene Hadiprayitno, Leiden University, Leiden, Zuid-Holland, The Netherlands

The traditional human rights frame creates a paradigm by which the duty bearer’s (state) and rights holder’s (civil society organizations) interests collide over the limits of enjoyment and enforcement. The series departs from the paradigm by centering peripheral yet powerful actors that agitate for intervention and influence in the (re)shaping of rights discourse in the midst of grave insecurities. The series privileges a call and response between theoretical inquiry and empirical investigation as contributors critically assess human rights interventions mediated by spatial, temporal, geopolitical and other dimensions. An interdisciplinary dialogue is key as the editors encourage multiple approaches such as law and society, political economy, historiography, legal ethnography, feminist security studies, and multi-media.

Conor Foley

The Protection Paradox How the UN Can Get Better at Saving Civilian Lives

Conor Foley Pontifical Catholic University of Rio de Janeiro Rio de Janeiro, Brazil

Human Rights Interventions ISBN 978-3-031-27426-8 ISBN 978-3-031-27427-5 (eBook) https://doi.org/10.1007/978-3-031-27427-5 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Mikhaylova Liubov shutterstock.com This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For Gláucia and Daniel

Acknowledgements

This book is based on three decades of working in conflict and postconflict zones. It draws on previous books that I have written, my work as a journalist and, more recently, evaluating programs related to justice, human rights, legal reform and protection in Iraq, Afghanistan, Syria, Tajikistan, the Democratic Republic of Congo, Darfur, Liberia, Haiti, Mali, the Central African Republic, Uganda and South Sudan for a variety of UN and non-governmental agencies. I draw on material gathered during this time but have not cited directly from or named any individuals interviewed during these as the purpose of the work was different from the research undertaken for this study. I have also not used any documents that are not publicly available. The views expressed in the book are my own and should not be attributed to anyone else. I am nevertheless grateful to the staff of UN OHCHR, UN DPO, UN Habitat and UNHCR as well as the Centre for Civilians in Conflict (CIVIC), Geneva Call, the International Consortium on Legal Assistance (ILAC), Ceasefire and the International Peace Institute whose work I refer to and draw on.

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Contents

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Introduction

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Understanding Protection

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Understanding Peacekeeping

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Understanding the Applicable Legal Framework

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Understanding Peacebuilding

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Protection and Situational Awareness

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Conclusions

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Bibliography

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Index

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About the Author

Conor Foley teaches at the Pontifícia Universidade Católica do Rio de Janeiro and works as a consultant on legal reform, human rights and humanitarian protection in conflict zones. His previous books include UN Peacekeeping Operations and the Protection of Civilians, (Cambridge University Press, 2017), The Thin Blue Line, How Humanitarianism Went to War (Verso, 2008) and In Spite of You, Bolsonaro and the new Brazilian resistance (OR Books, 2019).

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Abbreviations

A4P AARs ADF ANSAs AQT ASG AU BINUH C34 C5 CAR CIVIC CONOPS CRSV CSOs DCO DDRRR DOF DPO DPPA DRC ECHR ECJ ECOWAS

Action for Peacekeeping After-Action Reviews Allied Democratic Forces-National Army for the Liberation of Uganda Armed Non-State Actors Al Qaeda Taliban Sanctions Committee Assistant Secretary General African Union UN Integrated Office in Haiti UN Special Committee for Peacekeeping Operations UN Budget Committee Central Africa Republic Centre for Civilians in Conflict Concept of Operations Conflict-Related Sexual Violence Civil Society Organizations Development Coordination Office Demobilization, Disarmament, Repatriation, Resettlement, and Reintegration Directives on the Use of Force Department of Peace Operations Department of Peacebuilding and Political Affairs Democratic Republic of the Congo European Convention on Human Rights European Court of Justice Economic Community of West African States xiii

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ABBREVIATIONS

EOSG ERT EU FARDC FPUs FSA GFP GPC HC HIPPO HLP HPG HQ HRA HRC HRDDP HRMMU HRUF HRW IASC ICC ICG ICISS ICJ ICRC ICTR ICTY IDPs IEDs IFIs IHL IHRL IIIIM Syria IIMM IMF IRA ISAF ISIS JHRO JPTs KFOR

Executive Office of the Secretary General Emergency Response Team European Union Forces Armées de la République Démocratique du Congo Formed Police Units Free Syria Army UN Global Focal Point for the Rule of Law Global Protection Cluster Humanitarian Coordinator High Level Panel on Peace Operations Housing, Land and Property Rights Humanitarian Policy Group Headquarters Human Rights Advisor Human Rights Council Human Rights Due Diligence Policy Human Rights Monitoring Mission in Ukraine Human Rights Up Front Human Rights Watch Inter-Agency Standing Committee International Criminal Court International Crisis Group International Commission on Intervention and State Sovereignty International Court of Justice International Committee of the Red Cross International Criminal Tribunals for Rwanda International Criminal Tribunals for Yugoslavia Internally Displaced Persons Improvised Explosive Devices International Financial Institutions International Humanitarian Law International Human Rights Law International, impartial and independent mechanism investigating crimes in Syria Independent Investigative Mechanism for Myanmar International Monetary Fund Irish Republican Army International Security Assistance Force Islamic State Joint Human Rights Office Joint Protection Teams Kosovo Force

ABBREVIATIONS

KLA LRA LTTE M&E M23 MINUCI MINUJUSTH MINUSCAR MINUSMA MINUSTAH MONUC MONUSCO MSF NATO NGO NHRIs NRC OCHA ODI OHCHR OIOS ONUC OROLSI P5 PBF PBSO PKK PKO PNG POC PRTs PWGs R2P RC RMRs ROCA RoE SADC SDF SDGs SEA

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Kosovo Liberation Army Lord’s Resistance Army Liberation Tigers of Tamil Eelam Monitoring and Evaluation 23 March Movement UN Mission in Côte d’Ivoire UN Mission for Justice Support in Haiti UN Multidimensional Integrated Stabilization Mission in the Central African Republic UN Multidimensional Integrated Stabilization Mission in Mali UN Stabilization Mission in Haiti UN Mission in the Democratic Republic of Congo UN Organization Stabilization Mission in the Democratic Republic of Congo Médecins Sans Frontiers North Atlantic Treaty Organisation Non-Governmental Organization National Human Rights Institutions Norwegian Refugee Council UN Office for the Coordination of Humanitarian Affairs Overseas Development Institute UN Office of the High Commissioner for Human Rights UN Office of Internal Oversight Services UN Mission in the Congo Office of Rule of Law and Security Institutions Five Permanent Members of the UN Security Council Peacebuilding Fund Peace Building Support Office Kurdish Workers Party Peacekeeping Operation Persona Non-Grata Protection of Civilians Provincial Reconstruction Teams Protection Working Groups Responsibility to Protect Resident Coordinator Regional Monthly Reviews Regional Office for Central Asia Rules of Engagement Southern African Development Community Syrian Democratic Forces Sustainable Development Goals Sexual Exploitation and Abuse

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ABBREVIATIONS

SIDA Sit Cen SLMM SOFA SOMA SOP SPM SRSG-SVC TCCs TOE UK UN UN AFPs UN DFS UN DPA UN DPKO UNAMI UNAMIR UNAMSIL UNCT UNEF UNHCR UNICEF UNITAD UNITAMS UNMIK UNMIL UNMIS UNMISS UNOCA UNOCC UNOCI UNODC UNOL UNOMSIL UNOPS UNOSOM UNPROFOR UNSMIL

Swedish Development Agency Situation Center Sri Lanka Monitoring Mission Status of forces agreement Status of mission agreement Standard Operating Procedure Special Political Mission Special Representative of the Secretary General on Sexual Violence in Conflict Troop Contributing Countries UN Team of Experts on the Rule of Law and Sexual Violence in Conflict United Kingdom United Nations Agencies Funds and Programs Department of Field Support Department of Political Affairs Department of Peacekeeping Operations UN Assistance Mission for Iraq UN Assistance Mission in Rwanda UN Mission in Sierra Leone UN Country Team UN Emergency Force UN High Commissioner for Refugees UN Children’s Fund UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL UN Integrated Transition Assistance Mission in Sudan UN Mission in Kosovo UN Mission in Liberia UN Mission in Sudan UN Mission in South Sudan UN Office for Central Africa UN Operations and Crisis Centre UN Operation in Côte d’Ivoire UN Office on Drugs and Crime UN Office in Liberia UN Observer Mission in Sierra Leone UN Office for Project Services UN Operation in Somalia UN Protection Force—Mission Deployed to the Former Yugoslavia UN Support Mission in Libya

ABBREVIATIONS

UNSOM UNV US WFP WHO WPAs YPG/YPJ

UN Assistance Mission in Somalia UN Volunteer United States World Food Programme World Health Organization Women Protection Advisors People’s and Women Defense Units

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CHAPTER 1

Introduction

Abstract The UN is currently transitioning out of some of its largest peacekeeping operations (PKOs) and cutting back these budgets. POC mandates largely arose from the experiences of the UN peacekeeping missions which failed to prevent genocides in Rwanda and BosniaHerzegovina in the mid-1990s. The costs of the missions also increased dramatically, and the UN is under pressure to wind up some more of those that remain. As the UN has cut back its physical footprint, it has also been rethinking how it envisages itself providing protection to civilians under threat. POC was, until recently, primarily seen as a military task, but the UN is now placing more emphasis on Prevention, situational awareness and analysis of the human rights violations that often drive and accompany conflicts. The UN is ‘a complex network of entities’ and is also operationally very decentralized with significant authority delegated to senior officials in headquarters and the field. Getting the right information to the right place, at the right time and in the right format can be crucially significant in a particular crisis. Keywords Transitions · Haiti · Syria · United Nations

In February 2020, a couple of weeks before the world began to lock down in the face of the COVID pandemic, I made a long round trip from my © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Foley, The Protection Paradox, Human Rights Interventions, https://doi.org/10.1007/978-3-031-27427-5_1

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home in Brazil to first Syria and then Haiti. I was travelling in my capacity as a consultant working on justice, human rights and legal protection issues. It was a depressing journey from a professional perspective. In Syria I was evaluating a project implemented by an international legal consortium that was trying to build the capacity of a justice sector system in rebel-held areas, by then reduced to their last redoubts in the north-western provinces of Idlib northern Hama and western Aleppo. In Gaziantep, a Turkish border town crammed with refugees from the by now levelled city of Aleppo, I met with the ‘Minister for Justice’ of the Syrian government-in-exile. We exchanged pleasantries while he explained their needs for legal textbooks, funds for salaries, fuel for generators and transport and training for judges and prosecutors. Both of us kept up the awkward pretence that their fictional structures were real, and the world would somehow ‘do something’ to stop President Assad—and his Russian and Hezbollah allies—continuing to pulverize the Syrian people into submission with chemical weapons and barrel bombs.1 A few days later, disorientated by travel across multiple time and temperature zones, I landed in Haiti to assess the UN’s progress in downsizing its peacekeeping operation (PKO) into the United Nations Integrated Office in Haiti (BINUH) a small advisory mission with no military component. While I was there, the mission released a joint report with the UN Office for the High Commissioner for Human Rights (OHCHR)—for whom I was working as a consultant—detailing the involvement of the Haitian national police force in gang violence in Haiti’s capital city Port-au-Prince.2 On the day of its release, I interviewed BINUH’s senior Police Advisor, who explained the capacity-building support the mission had provided to state institutions in recent years. On the way back to my hotel, my car was forced off the road by gunfire as mutinous police officers raised roadblocks and burnt tires as part of their routine campaign of physical intimidation against the government and people that they were supposed to be serving.

1 Conor Foley, Evaluation of the International Legal Assistance Consortium Syria program 2017–2019, ILAC, June 2020. 2 Rapport sur les allégations de violations et abus des droits de l’homme lors des attaques dans le quartier de Bel-Air, à Port-au-Prince, du 4 au 6 novembre 2019, Bureau intégré des Nations Unies en Haïti (BINU) et le Haut-Commissariat des Nations Unies (OHCHR), UN, Février 2020.

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Syria and Haiti are among the most high-profile countries in the world where the UN has tried—and largely failed—to deliver peace with justice in recent years. There is no shortage of both journalistic and academic accounts of these failures. Without detracting from them, this book tries to do something different. It is written not about what the UN ought to do—or how it could have behaved differently in an abstract or theoretically ideal world—but what the UN is doing to fulfil the fundamental purposes set forth in its Charter: to save succeeding generations from the scourge of war … to reaffirm faith in fundamental human rights … and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.3

That the practice of the UN, its member states, and the five permanent members (P5) of its Security Council—in particular—has often deviated from these noble aspirations is not in doubt. Nevertheless, the concepts of ‘saving civilians’, ‘reaffirming fundamental human rights’ and promoting ‘justice under international law’ have become central to the work of UN PKOs in recent decades. The UN has developed concepts and practices, to provide this protection, through various successes and failures and is currently re-thinking its ‘protection responsibilities’ within this overall framework. The protection of civilians (POC) has a particular meaning within the lexicon of UN terminology. Similar phrases are often used by different actors to mean different things, which can cause confusion about who is to be protected, by whom, from what, for how long, and by what means. The answers to these questions are not necessarily obvious and this is part of the ‘protection paradox’ referred to in the title of this book. It can also mean that discussions about ‘protection strategies’ take place in uncomprehending parallel because different participants mean entirely different things when talking about them. These divergences will be explained and explored more fully in Chapter 2, but it is also important to situate these debates within the context of the UN’s own structures, which are also in considerable flux and development. Mark Malloch Brown, a former UN Deputy Secretary General, whose career spans several decades, estimates that for only 10% of the UN’s 3 UN Charter, preamble.

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history has it functioned as its founders intended.4 For the remaining 90% ‘success has come despite - not because of - member state unanimity’. He notes that the vast expansion of UN humanitarian relief assistance in the 1980s was largely accomplished by side-stepping the Security Council and its P5 vetoes, citing the bewilderment of a Secretary General he met in a UNHCR refugee camp on the Thai-Cambodia border who had no idea of the scale of the operations being carried out in his name. Early innovations such as using the ‘Uniting for Peace’ resolution and Article 99 of the UN Charter to authorize the first PKOs in the 1950s and ’60s also happened at a time when the Security Council was paralyzed by Cold War divisions. The UN is ‘a complex network of entities’.5 The Security Council, Secretary General and Secretariat interact with subsidiary organs created by the General Assembly, such as the Human Rights Council, as well as UN Agencies Funds and Programs (AFPs) such as the UN High Commissioner for Refugees (UNHCR), the UN Development Programme (UNDP), the UN Children Fund (UNICEF) and the World Health Organization (WHO). The combined budgets of these AFPs are considerable. For example, the annual budgets of UNHCR and the World Food Programme (WFP) are over $9 billion each, WHO’s is $6.7 billion, UNICEF’s over $7 billion. Most of the UN AFPs are based in Geneva, as is OHCHR, while the Security Council, Secretary General and most of the Secretariat are based in New York. Different parts of the system have different mandates, funding streams and governance arrangements and interact differently with different member states in different circumstances. While the Security Council and the Executive Office of the Secretary General (EOSG) direct the Secretariat, their authority over the UN AFPs is more limited. The UN is also operationally very decentralized with significant authority delegated to senior officials in headquarters and the field. Getting the right information to the right place, at the right time and in the right format can be crucially significant in a particular crisis.

4 Mark Malloch-Brown, ‘UN at 75: Slow Death or a New Direction’, United Nations University/World Institute for Development Economics Research, 2021. 5 Haidi Willmot, Improving UN Situational Awareness, Enhancing the U.N.’s Ability to Prevent and Respond to Mass Human Suffering and to Ensure the Safety and Security of Its Personnel, Stimson Centre, August 2017.

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The work of the UN is ‘extensive and fast paced’. The Security Council meets daily with almost fifty items on its agenda. The Secretariat manages thirteen sanctions regimes, sixteen PKOs, and nine special political missions (SPMs). There are also 131 UN Country Teams (UNCTs) delivering humanitarian and development assistance in 161 countries.6 Willmot has noted that: The organization operates in many complex and high-threat environments. It is sometimes asked to use force to protect civilians from attack, and sometimes U.N. staff and buildings themselves are targeted. Yet despite such high-tempo, high-stakes, and complex operations, after 70 years the organization still does not have a robust situational awareness system.7

Many of the UN’s worst failures were partly due to poor situational awareness and some of these will be discussed later in this book. Recent years have seen initiatives to improve this awareness, which will also be discussed. It might seem obvious to state that if the UN could become better at anticipating where humanitarian crises and conflicts are about to break out and then mobilizing its considerable resources, prestige and leverage to take ameliorative action, more civilian lives could be saved. Getting to this goal, however, requires some discussion of the journey that the UN has been on, which this book sets out to explore. POC mandates largely arose from the experiences of the UN peacekeeping missions which failed to prevent genocides in Rwanda and Bosnia-Herzegovina in the mid-1990s. In 1999 the Secretary General published his first report on POC and the Security Council stated that the UN mission to Sierra Leone (UNSAMIL) ‘may take the necessary action to ensure the security and freedom of movement of its personnel and, within its capabilities and areas of deployment, to afford protection to civilians under imminent threat of physical violence taking into account the responsibilities of the Government of Sierra Leone’8 [emphasis added]. In the same year the Secretary General issued a Bulletin on the applicability

6 Ibid. 7 Ibid. 8 Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, S/1999/957, 8 September 1999; Security Council Resolution 1270 of 22 October 1999, para. 14.

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of International Humanitarian Law (IHL) to PKOs.9 The UN Office for the Coordination of Humanitarian Affairs (OCHA) was, and remains, the ‘penholder’ responsible for drafting the Secretary General’s reports on POC. Since 2002, OCHA has also produced an Aide Memoire on POC, which serves as a reference tool on the Security Council’s practice and is periodically updated. This lists the main POC themes, sub-themes and broader pertinent issues and proposes model language for the Security Council to address these. In 2007, the Security Council also established an Informal Expert Group on POC, to consider a wide range of protection issues, based on briefings by relevant UN agencies and departments. This group includes experts from Security Council members with inputs from relevant UN Secretariat departments, agencies, Humanitarian Coordinators (HCs), and non-governmental organizations (NGOs). Since 2013 representatives from other UN entities have also been invited to address these meetings. Parallel to this, a Friends of POC group has been established, which coordinates similar work with UN member states. The cautious wording of the Security Council’s first POC mandate was gradually expanded upon, and multi-dimensional missions expanded in size and complexity taking on ever more extensive ‘protection related’ tasks and duties. By 2015 there were over 100,000 uniformed peacekeeping personnel (police and soldiers) with legal permission to enter the territory of other states and protect people from certain grave violations of international human rights law (IHRL) and IHL.10 In my own book, UN Peacekeeping Operations and the protection of civilians , published in 2017, I described POC as a challenge to basic concepts of state sovereignty and international law that was as significant as the original concept on UN peacekeeping itself.11 The records of these missions, however, also came under increasing criticism. As two observers noted, ‘“protection” is often vague and undefined, particularly in the more challenging, non-permissive

9 Secretary General’s Bulletin, Observance by UN Forces of International Humanitarian

Law, ST/SGB/1999/13, 6 August 1999. 10 Monthly Summary of Military and Police Contributions to United Nations Operations, 2010–2022, https://peacekeeping.un.org/sites/default/files/00-front_page_msr_ september_2022.pdf, accessed 21 November 2022. 11 Conor Foley, UN Peacekeeping Operations and the Protection of Civilians, Cambridge University Press, 2017.

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environments where mass killing is likely to occur … Deploying peacekeepers without either a clear vision of how to protect civilians or the means and authority to do so may result in a tragic shortfall’.12 The costs of the missions also increased dramatically and the UN’s total approved peacekeeping budget peaked at just over $8.4 billion for the fiscal year 2014/2015.13 This trend has more recently gone in reverse. The UN has opened no new PKOs since the creation of its missions in Mali (MINUSMA) in 2013 and the Central African Republic (MINUSCA) in 2014. It is also under pressure to wind up some more of those that remain and all of them are now required to develop exit strategies. The total UN-approved budget for the 2020/2021 peacekeeping year was $6.3 billion, a $2 billion cut compared to its peak, although it rose slightly in 2022, to $6.45 billion, the first increase in seven years. The UN has closed, or significantly downsized many of its largest missions in Côte d’Ivoire, Liberia, Haiti and Darfur all of which had POC mandates. Its mission in the Democratic Republic of Congo (DRC) is also drawing down troops and closing field offices. Some PKOs have been replaced by SPMs without a military component or robust POC mandate, while in others the only remaining UN presence has been the UNCT led by a Resident Coordinator (RC). By October 2022, the total number of peacekeeping police and soldiers deployed in PKOs was around 75,000.14 There are currently six PKOs with POC mandates covering DRC, CAR, Mali, South Sudan, Lebanon and the Abyei region between Sudan and South Sudan. Around 90% of UN peacekeepers are currently deployed in these six missions and they absorb the vast majority of the UN peacekeeping budget. It is, however, questionable whether this represents the best use of resources for protection purposes. According to the UN Secretary General’s 2022 report on POC, there were over 11,000 12 Victoria Holt and Tobias Berkman, The Impossible Mandate? Military Preparedness, the Responsibility to Protect and Modern Peace Operations, The Stimson Center, 2006, pp. 5 and 50. 13 UN General Assembly, Approved Resources for Peacekeeping Operations for the Period from 1 July 2021 to 30 June 2022—Note by the Secretary-General, UN Doc. A/C.5/75/25, June 29, 2021; UN General Assembly, Approved Resources for Peacekeeping Operations for the Period from 1 July 2014 to 30 June 2015, A/C.5/69/17, 14 January 2015. 14 Monthly Summary of Military and Police Contributions to United Nations Operations, 2010–2022, https://peacekeeping.un.org/sites/default/files/00-front_page_msr_ september_2022.pdf, accessed 21 November 2022.

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civilian deaths in armed conflict the previous year, with the largest number of fatalities occurring in Afghanistan, Nigeria, Ethiopia, DRC, Yemen and Syria. Almost half of this total occurred in Afghanistan, followed by Nigeria and Ethiopia.15 These figures do not include the death toll caused by Russian’s invasion of Ukraine during 2022. With the exception of the DRC, it is notable, however, that the UN does not have PKOs deployed in the countries where civilian casualties are highest and are deploying them to places where the threats to civilians appear—at least at first glance—to be lower. There is, therefore, an obvious prime facie case that the UN should transition its largest PKOs out of places where they are less needed and concentrate efforts where civilians are more vulnerable. As the UN has cut back its physical footprint, it has also been rethinking how it envisages itself providing protection to civilians under threat. PKOs were always, by their very nature, short-term palliatives and, despite their increasingly ambitious mandates, were never designed to conclusively resolve the diverse structural causes of conflict. It is widely agreed that the most effective, sustainable way for the UN to protect civilians is to support the capacity and good governance of mission-hosting states. In 2017, the UN restructured its peace and security architecture as part of a broader agenda to make conflict prevention a cross-pillar priority and to foster an integrated approach to human rights and development. This restructuring explicitly aimed to ‘build resilience, prevent crises, ensure human rights are a lived experience and sustain peace’.16 The Department of Peace Operations (DPO) and the Department of Peacebuilding and Political Affairs (DPPA) were created out of the merging of existing parts of the Secretariat. New institutions were also created such as the Development Coordination Office (DCO) and the UN Operations and Crisis Centre (UNOCC). The Secretary General’s 2020 report on POC insisted that it ‘will remain a priority for United Nations peacekeeping operations, in accordance with the mandates provided to them by the Security Council’ but

15 Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/2022/381, 10 May 2022. 16 UN General Assembly, Repositioning the United Nations Development System to Deliver on the 2030 Agenda: Our Promise for Dignity, Prosperity and Peace on a Healthy Planet Report of the Secretary-General, A/72/XXX, 20 December 2017.

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called for ‘a more structured approach to protecting civilians during transitions’.17 The report noted that SPMs ‘are generally not mandated to use force and leverage military and police components to protect civilians’. There would also be ‘cases in which civilians remain at risk during and after the reconfiguration, drawdown and closure of a peacekeeping operation’. Nevertheless, it asserted that: In seeking long-term and sustainable peace, peacekeeping operations will align their political engagement and support for peace processes with military, police and community-level approaches to protection, thereby ensuring a coherent, integrated and whole-of-mission approach. Peacekeeping operations will ensure that risks to civilians as a result of their presence and actions are identified and mitigated.

Transitions used to be conceived as simply handing over mission responsibilities to the host state, but they are now framed more in terms of the reconfiguration of the UN’s presence from peacekeeping towards peacebuilding. This represents a significant shift from conceptualizing POC in physical, military terms to seeing it as located fundamentally within the cross-cutting themes of human rights and development. As the Secretary General’s 2018 Report, Peacebuilding and Sustaining Peace, notes the international human rights framework provides a critical foundation for protecting the most vulnerable and preventing a relapse into conflict.18 Some UN missions are transitioning away from large PKOs in contexts where peace is fragile and human rights challenges persist. According to the UN’s policy on transitions, these should be ‘first and foremost a response to significant change in a country’s political and security situation and its economic and social development … [their] goal is for post-conflict countries to reach a point where no further UN presence is required’ because the responsibilities that the UN had previously assumed have been handed over to national actors.19 I had been in Haiti to assess

17 Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/2020/366, 6 May 2020. 18 Peacebuilding and Sustaining Peace Report of the Secretary-General, A/72/707– S/2018/43, 18 January 2018. 19 UN Policy on UN Transitions in the Context of Mission Drawdown or Withdrawal, 4 February 2013, para 3. See also The Secretary-General’s Planning Directive for the

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how OHCHR was dealing with the UN’s transition from a PKO to an SPM and over the course of 2019/2020 I visited several more missions.20 The picture that emerged, though, was not encouraging. In Haiti, the mission’s own report released while I was there, had warned that members of the Haitian National Police had actively and passively colluded in violence in working-class neighbourhoods, that had resulted in the deaths of at least three people and the burning of 30 families out of their homes. The report found that one of the country’s most notorious gang leaders, former police officer Jimmy Cherizier, was the main actor in the attacks and that the violence was characterized by: the impunity of criminal gang members who commit human rights abuses, the alleged collusion between them and certain political and economic actors, the links between gang members and some Haitian National Police officers, as well as the lack of police intervention to protect the population.21

The UN Stabilization Mission in Haiti (MINUSTAH) had been established in 2004 with a military component of up to 6,700 troops and an initial budget of around $200 million. It was given a POC mandate by the Security Council under the Chapter VII powers of the UN Charter, and the mission’s mandate was extended after the 2010 earthquake, which devastated the island. It was then renewed periodically until 2017 when it was replaced by the UN Mission for Justice Support in Haiti (MINUJUSTH). This contained Formed Police Units (FPUs) but no peacekeeping soldiers, and was itself replaced by BINUH, in 2019, an even smaller SPM. Even as the transition was taking place, UN reports were detailing the deteriorating security situation. In July 2021, Haiti’s prime minister was assassinated in the culmination of a series of political killings and the UN warned that violence had reached ‘unprecedented

Development of Consistent and Coherent UN Transition Processes, in Line with Executive Committee Decision 2018, UN internal, 25 February 2019. 20 Conor Foley and Ibrahim Wani, Evaluation of Transitions from Human Rights Components in UN Peace Operations to Other Types of Field Presences, OHCHR, June 2020. 21 Rapport sur les allegations de violations et abus des droits de l’homme de 13 et 14 de novembre 2018 dans le quartier de La Saline, Port au Prince, MINUJSTH et OHCHR, Juin 2019.

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levels’.22 The following July, turf wars between rival gangs killed over 300 people, forcing thousands to flee their homes and leaving many more trapped without enough food, water or medical supplies.23 In October 2022 the Security Council established a sanctions regime, including a targeted assets freeze, travel ban and arms embargo measures against individuals deemed to have engaged in or supported ‘criminal activities and violence involving armed groups and criminal networks, including recruitment of children, kidnappings, trafficking in persons, homicides and sexual and gender-based violence’ supported ‘illicit trafficking and diversion of arms and related materiel’ obstructed the delivery of humanitarian assistance or attacked UN personnel or premises’.24 The first named target of these sanctions was Cherizier, but the Council made clear that further individuals could also be sanctioned and it established a procedure for reviewing such measures—according to fair and transparent procedures—so that they met minimum due process procedures for anyone listed. This was the first time that the Security Council had established a sanctions regime since 2017 when similar measures were put in place for Mali.25 At the time of writing, it seems likely that the Security Council will authorize the deployment of a ‘non-UN international security assistance mission’ to the country. I visited Liberia at the end of 2019 as part of the same OHCHR assessment. I had previously helped to set up a legal aid project there, in 2006, for the Norwegian Refugee Council (NRC) when the UN mission (UNMIL) was still in operation. UNMIL had been established as a PKO with a POC Chapter VII mandate in 2003, following the ousting of Liberia’s former President, Charles Taylor, after a brutal civil war gripped it and neighboring Sierra Leone in the 1990s. He was replaced by Ellen Johnson Sirleaf, a US-educated economist and Africa’s first-ever female head of state. A new President, George Weah, replaced Johnson Sirleaf, in 2018, the first completely democratic transfer of power in the country’s history. UNMIL transitioned out of the country in the same year.

22 Al Jazeera, ‘Haiti Gang Leader Declares ‘Revolution’ as Violence Spreads’, 21 June 2021. 23 International Crisis Group, Crisis Watch, Worldwide, July 2022. 24 Security Council Resolution 2653, 21 October 2022. 25 Security Council Resolution 2374, 5 September 2017.

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Returning to Liberia 13 years after first working there, and one year after the transition, I found it largely unchanged in surface appearances People remained desperately poor, with a barely functioning subsistence economy. Corruption was emerging as an increasing problem, but there was a free press and a weak but functioning civil society where the government could be criticized openly. While some people I interviewed said that they felt more insecure travelling at night without the peacekeeping soldiers a more common complaint was the damage done to the local economy since the departure of high-spending UN personnel. We also found a small OHCHR Country Office, struggling to sustain itself without sufficient funding from either the UN regular budget or OHCHR headquarters (HQ). In Sierra Leone, a single Human Rights Advisor (HRA) position had been left to support the RC and UNCT when the mission wound down. It was filled by a young UN Volunteer (UNV) for a short period and then left vacant when she found another job. When we interviewed UN staff there, we discovered that they had no dedicated in-country capacity to carry out basic human rights monitoring and reporting in a country that had been a by-word for the most gruesome violations of IHL and IHRL—child abductions and forced conscription, mass rape, amputation of limbs and even cannibalism—just a few short years before. It is not hard to make a prime facie case that if the billions of dollars spent on large PKOs with POC mandates in the last two decades had instead been used to finance state-building, economic development and social assistance in the countries to which these were deployed more could have been done to break the vicious cycle between poverty and conflict.26 The UN’s own policy on transitions states that: ‘sustaining political support and mobilizing predictable donor funding for ongoing peacebuilding programs is critical during and beyond UN mission transition processes. Where possible, the lead department at UNHQ should encourage the creation and/or continuation of Member States fora such as “groups of friends” and “contact groups” that can help sustain coordinated support to host countries … The UN leadership should work closely with the World Bank and other partners to encourage that national planning and budgeting processes prepare for financial and capacity gaps

26 United Nations and World Bank, Pathways for Peace: Inclusive Approaches to Preventing Violent Conflict, 2018.

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that national institutions are likely to experience due to the drawdown and withdrawal of a mission’.27 In practice, though, the reverse often happens. UNCTs are often expected to assume responsibility for a wide array of substantive tasks without sufficient increases in resources. Unlike missions, which have guaranteed funding from the UN regular budget, UNCTs are generally dependent on the resources of its large AFPs, which are in turn reliant on donor preferences, as well as on changing priorities of the countries concerned. At the same time, the withdrawal of a PKO often causes huge economic destabilization in the host state as the departure of a large number of UN personnel has a negative impact on the local economy, reducing consumption expenditure, local staff hires and potential tax revenues, and increasing unemployment. The UN’s Advisory Group of Experts noted in a 2015 Review of the UN’s Peacebuilding Architecture that the drawdown of PKOs are ‘frequently poorly timed and poorly managed’ and usually results in invisibly diminished political attention and a rapid drop-off in financing.28 In some cases, the failures are down to the UN’s own planning processes to leave a viable field presence behind able to carry out monitoring, reporting and advocacy on the political and human rights situation. In others, although formal support is provided by the UN the creation of such a structure is hindered either by a lack of consent by the former mission-hosting state or by a lack of international donor support. Security Council resolutions on transitions tend to focus disproportionately on the withdrawal of troops and police and security-oriented tasks such as the handover to national security institutions and security sector reform because host-state governments use transitions as an opportunity to consolidate their own security services while minimizing scrutiny over their—often limited—progress on peacebuilding. The result is that: mandates have not consistently focused on preparing for the civilian transition. When they have—usually during the penultimate or final mandate— the emphasis has been on transferring mission tasks to the UNCT, national

27 UN Policy on Transitions, 4 February 2013, paras 35–36. 28 Report of the High-Level Independent Panel on Peace Operations, 16 June 2015;

and Report of the Advisory Group of Experts for the 2015 Review of the United Nations Peacebuilding Architecture. The Challenge of Sustaining Peace, 29 June 2015.

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government, and other stakeholders. Not only is this too late in the transition process, but it also masks a critical tension: transitions are not linear processes, and other actors cannot carry out the mission’s tasks in the same way. As a result, this approach can strain both missions and UNCTs, which must substitute rapid responses for long term planning processes and operational transformations.29

Clearly, everyone would agree, in the abstract, on the need for early and integrated planning during transitions and that missions should identify clear objectives and associated performance measures, such as benchmarks and capacity gap analyses. Decreased international attention among donors and partners that often accompanies the ending of a mission at a stage when the country requires targeted financial and technical support for rebuilding critical institutions can be devastating. The drawdown or closure of a mission without appropriate mechanisms for engagement in place risks undermining the accomplishments attained and even a relapse into conflict. Yet, it did not take the 20:20 vision of hindsight to predict some of failures to do this that we witnessed during the course of our evaluation.30 In Sudan we were repeatedly warned by civil society groups that the Security Council’s decision to wind-down the hybrid UN/African Union mission (UNAMID) and replace it with a small SPM, the UN Integrated Transition Assistance Mission in Sudan (UNITAMS) could be a ‘murderous mistake’.31 While UNAMID planners correctly highlighted reductions in the scale and geographic scope of the violence over recent years, some of our interviewees argued that they failed to pay sufficient attention to the continuing existence of the underlying conflict drivers and the vulnerability of nearly two million internally displaced persons (IDPs). Some stated that their concerns were dismissed as ‘alarmist’ and some UN mission human rights officers were even accused of trying to obstruct the transition or ‘save their own jobs’.32 A few months after

29 Daniel Forti and Lesley Connolly, Pivoting from Crisis to Development: Preparing for the Next Wave of UN Peace Operations Transitions, International Peace Institute, July 2019. 30 Foley and Wani, 2020. 31 Niemat Ahmadi, ‘Pulling Peacekeepers from Darfur Will Be a Murderous Mistake’,

PassBlue, 27 May 2020. 32 Interviews conducted with former UNOCI and UNAMD staff members.

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our visit, 72 people were killed and 109 wounded in a raid on a camp for IDPs in Darfur, in December 2019, several months after UNAMID withdrew troops from the area. As UN troops pulled out many of their former bases were ransacked by looters, some of whom wore national police and army uniforms.33 In October 2021 a military coup overthrew the elected government, ending the country’s extremely brief period of democracy. In Burundi the closing down of the UN mission, in 2015, coincided with a big increase in violence and human rights violations and was followed by the forced closure of both the OHCHR Country Office and most independent monitoring organizations.34 In Côte d’Ivoire during the transition from the UN PKO to a UNCT, in 2017, the government vetoed the establishment of a follow-up OHCHR Country Office in case it ‘sent the wrong signal to foreign investors’.35 Reports from Amnesty International and Human Rights Watch (HRW) still warn of ‘entrenched impunity, a politicized judiciary, and longstanding political and ethnic tensions in the country’ while reporting that the security forces have ‘used excessive force with impunity against peaceful protesters’ and that ‘political activists, journalists and human rights defenders were arbitrarily arrested and detained’.36 The best case that can be made for many transitions is that the alternative—trying to maintain PKOs indefinitely—is worse. As well as being financially expensive these missions have been costly in peacekeeping lives. The UN and its troop contributing countries (TCCs) have also suffered reputational damage in a series of scandals ranging from allegations of sexual exploitation and abuse (SEA) to a failure to prevent civilian massacres despite their POC mandates. In November 2016 the UN sacked its Force Commander of the UN Mission South Sudan (UNMISS) for failing to protect civilians.37 The previous August it requested the resignation of the Head of MINUSCA over his negligence in dealing

33 UN News, ‘UNAMID Strongly Condemns the Looting of Its Former Headquarters in Nyala, South Darfur’, 29 December 2020. 34 Foley and Wani, 2020. 35 Ibid. 36 Human Rights Watch, World Report, 2019, Côte d’Ivoire and Amnesty International, Country Page, Côte d’Ivoire, Overview, 2020. 37 Independent Special Investigation into the Violence Which Occurred in Juba in 2016 and UNMISS Response, 1 November 2016.

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with the SEA of children by international peacekeeping soldiers.38 In the DRC, where the Security Council has been planning a transition since 2020, at least 17 people were killed in two separate incidents, in August 2022, in protests demanding that the UN mission (MONUSCO) leave the country. There were similar protests against MINUSTAH in Haiti before its transition. The Government of Mali has also become increasingly obstructive of MINUSMA’s presence since a military coup in 2021 and some TCCs have begun to withdraw their personnel from the mission early. Both the Malian and CAR governments are increasingly reliant on Russian mercenaries from the notorious Wagner group as an alternative to UN and western forces. The UN PKOs in DRC, Mali, CAR and Haiti were all charged with ‘stabilization’ in both their mission tasks and titles. ‘Traditional’ UN peacekeeping missions focused on upholding peace agreements between warring parties and were bound by the three ‘core principles’ of consent, neutrality and minimum use of force. ‘Stabilization’ operations, by contrast, are supposed to help to extend the authority of the government, assert the primacy of state institutions based on the rule of law and face down violent challengers. There is a fine line between the ‘robust peacekeeping’ of these operations and the warfighting of regular combat troops which will be discussed in subsequent chapters. As PKOs have moved closer to that line—and in some cases stepped over it—their tasks have also become more dangerous. In December 2017 a UN report co-written by the Brazilian Lieutenant General Carlos dos Santos Cruz, former Force Commander of the UN missions in Haiti and the DRC, noted that 195 personnel in peacekeeping missions had been killed by acts of violence since 2013, more than during any other five-year period in the UN’s history.39 By August 2022, MONUSCO had suffered a total of 250 fatalities, MINUSMA 287 and UNAMID 295, most of which had occurred in the previous 10 years.40

38 Taking Action on Sexual Exploitation and Abuse by Peacekeepers: Report of an Inde-

pendent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic, 17 December 2015. 39 Improving Security of United Nations Peacekeepers: We Need to Change the Way We Are Doing, United Nations, 19 December 2017. 40 UN Peacekeeping Home Page, Fatalities, https://peacekeeping.un.org/en/fatalities, accessed 26 August 2022.

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Some PKOs have undoubtedly saved lives, as the hundreds of thousands of civilians who sheltered on UNMISS bases during the worst phases of South Sudan’s civil war can attest. Their records should also be balanced against the places where UN Security Council has failed to act at all in recent years, such as in Ethiopia, Sri Lanka, Yemen, Syria, Venezuela, Myanmar, and Ukraine. That the UN could do better at protecting civilians is widely recognized; that the absence of any UN field presence at all is far worse is indisputable. POC emerged at a particular moment in world history when the end of the Cold War enabled the UN Security Council to authorize PKOs to take action to protect civilians from violations of IHL and IHRL. As the Security Council has increasingly grid-locked again, the space within which the UN can now act for POC purposes has become narrower and requires a more creative approach to activism and innovation that will be discussed subsequently. Although it is downsizing many of its PKOs, the Security Council still possesses a formidable array of instruments to promote compliance with IHRL and IHL. These include diplomatic and economic pressure, referrals to the International Criminal Court (ICC) and individual sanctions such as travel bans and asset freezes, which have recently been used in Mali and Haiti. Prior to the creation of the ICC by the Rome Statute of 1998, the Security Council had created two ad hoc criminal tribunals— for Yugoslavia and Rwanda—in the 1990s. Since then, it has created a variety of criminal justice monitoring and investigative bodies, such as the Special Courts for Sierra Leone and Lebanon, the extraordinary Chamber for Cambodia and a special investigative team on crimes committed by the Islamic State in Iraq and Syria. In 2005, the Security Council created a Peacebuilding Commission to provide financial and technical support states emerging conflicts to address the political, socio-economic, and security challenges in conflict-affected settings.41 In 2009, it created a Team of Experts (ToE) on the Rule of Law and Sexual Violence in Conflict to strengthen the national capacity to combat these crimes.42 In the Secretary General’s 2021 POC report it noted that PKOs were leveraging ‘the full range of tools and capabilities to protect civilians, including political engagement and good offices’. It stated that: ‘Missions

41 UN Security Council Resolution 1645, 20 December 2005. 42 UN Security Council Resolution 1888, 30 September 2009.

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in Mali and South Sudan have increasingly established temporary operating bases as forward staging points for civilian personnel, enabling them to launch and conduct more protection activities, including dialogue, community engagement and investigations in otherwise out-of-reach areas’. It also claimed that: ‘Technical advice by peacekeeping operations contributed to efforts towards enhanced accountability, including through the operationalization of the Special Criminal Court in Bangui, the progress of the Gender-based Violence and Juvenile Court in Juba and the deployment of mobile courts throughout South Sudan, and the prosecution of several perpetrators of serious crimes in the Democratic Republic of the Congo’.43 The report highlighted several efforts by PKOs to use ‘data analysis to identify and anticipate threats to civilians, make evidence-based decisions and assess mission performance related to the protection of civilians’. It noted that the missions in the DRC, Mali and South Sudan, and Abyei, had all worked to strengthen early warning and rapid response systems for the protection of civilians. In a handbook published the previous year DPO emphasized that POC in peacekeeping was part of the Security Council’s broader agenda, utilizing a range of different tools and approaches and that PKOs should ‘understand and be aware of’ this broader context and to ‘consider the need to complement and align with other ongoing UN approaches and activities that contribute to the implementation of the Security Council’s POC agenda’.44 Most UN PKOs have mandates that include action to promote and protect human rights through activities such as monitoring and reporting and building the capacity of host-state institutions and civil society organizations (CSOs).45 In fact, the human rights sections of PKOs are OHCHR’s largest types of field presences, by far and some of their activities will be discussed further in subsequent chapters of this book. The human rights sections of PKOs are generally financed out of the UN’s regular budget and usually have double-line reporting to the head of the mission—who in turn reports directly to the UN Security Council and Secretary General—as well as to OHCHR in Geneva. As the UN transitions out of these missions, it is 43 S/2022/381,10 May 2022. 44 The Protection of Civilians in United Nations Peacekeeping Handbook, UN Depart-

ment of Peace Operations, 2020. 45 Conor Foley, Human Rights and Protection by UN Peace Operations, Discussion Paper, International Peace Institute, January 2022.

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not just reducing the physical footprint of its peacekeeping soldiers but its capacity to conduct human rights monitoring and analysis as well. OHCHR was created by a UN General Assembly Resolution in December 1993, a few months after a world conference on human rights in Vienna. Headquartered in Geneva it was initially mainly geared to monitoring and servicing the Human Rights Council (HRC) and the various human rights treaties and special procedures that detail states obligations under international law and their records of compliance.46 Its work spans the full range of human rights—civil and political as well as economic, social and cultural—and it works in development as well as humanitarian contexts, although the focus of this book is restricted to human rights crises and conflicts. Some of its first Human Rights Officers were deployed to the field during the Rwandan genocide and this type of field-based monitoring, reporting has become increasingly important to its work. My first contact with OHCHR was in 1995 when I travelled to Geneva to present an Alternative Report to the UN Human Rights Committee.47 I was working for Liberty, the national council for civil liberties, at the time and we brought with us various victims of miscarriages of justice, such as Judy Ward who had spent almost 19 years in a British prison after being wrongly accused of an IRA bombing and Michael Finucane, whose father had been shot dead in front of him by British agents working in a loyalist paramilitary gang. Our trip was facilitated by Michael O’Flaherty, then working for OHCHR in Geneva, who was later to become a member of the Human Rights Committee himself. O’Flaherty also headed two of OHCHR’s earliest field presences in Sierra Leone and Bosnia-Herzegovina and his description of their work sets out the template that other missions were subsequently to adopt: Often, I arrived on a scene to find mutilated bodies, wounded or deeply traumatised survivors and smouldering buildings. A few times I was a direct witness to atrocity, like the summary execution of “rebels” in the streets of Freetown, the capital of Sierra Leone. In that country the perpetrators were sometimes just teenagers, many of whom had themselves been abducted

46 The Human Rights Commission became the Human Rights Council in 2006. 47 Conor Foley, Human Rights, Human Wrongs: The Alternative Report to the UN

Human Rights Committee, Liberty/Rivers Oram, 1995.

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years beforehand … More than once I came close to being killed, sometimes by being in the wrong place at the wrong time but more often for such stupid reasons as driving a faulty jeep or begging a lift on an ancient helicopter. My main job was to chronicle what was going on, frame it in terms of the relevant international human-rights law and get the reports up the line to UN decisionmakers in New York and Geneva. The work sometimes seemed futile, even cruel, fuelling false expectations among people who co-operated with us … What kept my colleagues and I going were the small achievements: protecting some people simply because of our presence, improving conditions in detention facilities, helping to ensure that food and aid were distributed equitably, seeking to keep the situation of innocent victims of war to the forefront of peacemakers’ attention. The chronicling also had its successes, especially for the delivery of post conflict justice. It was very satisfying for me many years later to present my reports and give evidence at the trials in which the Liberian president Charles Taylor and others were convicted of crimes against humanity.48

Although OHCHR has expanded its field presences in recent years, deploying and sustaining specific expertise to where and when it is needed is a constant challenge. It has 19 Country and stand-alone Offices, 12 Regional Offices, 11 human rights components in PKOs and SPMs and 54 HRAs, working with UNCTs and RCs.49 The mandate of an OHCHR field presence will typically include tasks such as human rights monitoring, analysis and reporting, interaction with and the provision of technical assistance to the host Government and national authorities, and capacitybuilding and support to CSOs, victims and other relevant counterparts. OHCHR has also supported the work of commissions of inquiry, factfinding missions and investigations such as the Independent Investigative Mechanism for Myanmar (IIMM) and the Human Rights Monitoring Mission in Ukraine (HRMMU). In some cases—such as the IIMM and HRMMU—these have been created by the UN General Assembly or Human Rights Council because the Security Council has been unable to act due its P5 vetoes. OHCHR is part of the UN Secretariat, but its annual budget is far smaller both than that of DPO or AFPs such UNHCR. It receives 48 The Irish Times, Michael O’Flaherty, Book Review, ‘Human Rights Work in the Face of Atrocity: Violence All Around, by John Sifton’, 18 July 2015. 49 OHCHR Homepage, accessed October 2022.

https://www.ohchr.org/en/about-us/where-we-work,

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around $130 million from the UN’s regular budget (about 3% of the total for the Secretariat) and additional voluntary contributions from member states and external donors, which bring it to about $350–400 million a year. Much of the funding from donors comes from earmarked funding for specific projects. OHCHR also interacts with other parts of the UN system which are attempting to deliver human rights, justice sector reform, rule of law assistance and humanitarian protection in the field. These include the special courts, chambers and investigative teams mentioned above, DPO’s Office of Rule of Law and Security Institutions (OROLSI) and its Justice and Corrections Standing Capacity (JCSC) that deploys police and rule of law experts to the field; the UN Global Focal Point for the Rule of Law (GFP), which is a coordination mechanism that includes various UN Secretariat Departments and AFPs; as well as the Global Protection Cluster (GPC), which works primarily in humanitarian settings. These will be discussed in more detail in subsequent chapters of this book. I spent most of my time between 2019 and 2022 evaluating programs, processes and practices that are designed to deliver human rights, justice and legal protection to people living under threat in conflict and postconflict zones. Sometimes I was working for NGOs and sometimes for different parts of the UN system. During one evaluation a senior UN official likened the back-and-forth negotiations and interactions that take place between the UN’s decision-making fora in New York and Geneva and its implementing mechanisms in the field to ‘an elaborate dance ritual with its own steps, sequencing and rhythm that take time to master’.50 He noted that in this process of focussing on the UN’s policymaking organs, the Budget Committee (C5) was often neglected, but that getting the right information to it at the right time and in the right format was crucial in turning policy recommendations and strategy discussions into actual changes at the field level. Another complained that ‘sometimes member states mandate us do one thing in the HRC in Geneva and then the same ones block the funding that we need to do it in C5 in New York’.51 50 Dr. Conor Foley (Team Lead), Dr. Cecilia Deme (Co-Team Lead), Dr. Friedarike Santner, Horia Mosadiq, Syed Kazim Baqeri, Richie Lontulungu Nsombola and Gina Matalatala, Mid-Term External Evaluation of CIVIC Program: Promoting the Protection of Civilians in Conflict in Afghanistan and UN Peacekeeping Operations, CIVIC, May 2021. 51 Interview conducted, July 2022.

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Deadlock in the Security Council, and the P5 vetoes, have prevented effective action in dozens of recent conflicts—from Syria, Ethiopia, Ukraine, Yemen and Myanmar to more long-standing crises such as the Occupied Palestinian Territories and Tibet. Yet, even when the Security Council is not effectively functioning, other parts of the UN system have been used to provide relief and assistance, highlight protection concerns and strive for accountability against the perpetrators of violations of IHL and IHRL. Initiatives such as the creation of UNOCC and the DCO, as well as Human Rights Up Front (HRUF), the Human Rights Due Diligence Policy (HRDDP) and the Prevent agenda, which will be discussed later in this book, are partly ad hoc responses to particular crises in the field. They also, though, contain within them the seeds of a different way of envisaging how the UN can better protect civilian lives.

CHAPTER 2

Understanding Protection

Abstract The term protection is often used by different actors to mean different things, which can cause confusion about who is to be protected, by whom, from what, for how long, and by what means. Since 1999 the UN Security Council has been using the peace enforcement mechanisms contained in Chapter VII of the UN Charter to give POC mandates to some of its peacekeeping missions and there have been numerous debates, reviews and evaluations about how they are accomplishing this. There is also an ongoing debate about the circumstances in which groups of states may physically intervene in other states to protect their civilian populations from grave violations of international human rights law (IHRL) and international humanitarian law (IHL). It is generally accepted that the best way to protect people is to tackle the root causes of the violent conflicts that threaten them and build resilient societies based on the rule of law. When such conflicts arise, though, how can people be ‘protected’ in the meantime, given the obvious limitations of the short-term palliative responses of neutral humanitarian agencies? Keywords Human rights · Humanitarian · Protection · Interventions · UNHCR · Kosovo

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Foley, The Protection Paradox, Human Rights Interventions, https://doi.org/10.1007/978-3-031-27427-5_2

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On 24 March 1999, the British House of Lords ruled that the extradition of Augusto Pinochet, the former dictator of Chile, could go ahead on charges of torture, a crime of universal jurisdiction. That night, the North Atlantic Treaty Organization (NATO) began its military operations over Kosovo, a 78-day bombing campaign that eventually resulted in the withdrawal of Serbian forces and the placing of the territory under the international administration of a UN mission (UNMIK). A few weeks after the bombing campaign started, I received a call from the Council of Europe asking if I could travel to Kosovo, at short notice, to run training courses on IHRL and IHL in Kosovan refugee camps. I was working as a mid-level manager in the Campaigns Department of Amnesty International UK. I had direct responsibility for our work on ‘combating impunity’ and so had followed closely both the Pinochet case and the debates that had led to the Rome Statute of the ICC the previous June. Amnesty had run ‘arrest now’ campaigns, calling for action against the indicted war criminals by the International Criminal Tribunal for Yugoslavia (ICTY). There were media reports that up to 100,000 Kosovo Albanians were missing and presumed dead.1 It seemed likely that ICTY would soon issue more indictments for war crimes and investigators would need help from Kosovan civil society activists in gathering evidence. Slobodan Milosevic, President of Serbia and the Federal Republic of Yugoslavia, was in fact indicted in May of that year. I spent a few weeks working in Albania and Macedonia and returned, in August 1999, to Kosovo itself. I made another trip in October of that year and was then appointed as a UNHCR Protection Officer based in Kosovo’s capital Pristina.2 UNHCR had led the early relief and reconstruction efforts while UNMIK was being hastily put together. Much of the actual work involved was sub-contracted out to the huge number of international NGOs that had flooded into Kosovo after the conflict and were soon providing most essential services in the health, education and social services sectors. UNHCR effectively became the conduit between these NGOs and the emerging UN administration. UNMIK had been mandated by the Security Council, under Chapter VII of the UN Charter, to ‘provide an

1 See, for example, CNN News, 23 March 1999 and Washington Post, 15 May 1999. 2 For my own personal account see Conor Foley, The Thin Blue Line: How

Humanitarianism Went to War, Verso, 2008, pp. 68–93.

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interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration’ pending the establishment of ‘democratic self-governing institutions’.3 UNMIK’s tasks included ‘maintaining civil law and order, including establishing local police forces and meanwhile through the deployment of international police personnel to serve in Kosovo’.4 The same resolution essentially ‘blue-hatted’ NATO as UNMIK’s military wing, KFOR. By the time I arrived, UNHCR had been given responsibility for ‘minority protection’, which basically meant sustaining these communities through humanitarian relief, detailing the violence directed against them and advocating for greater protection on their behalf. UNMIK and KFOR’s fairly obvious failure to provide this protection was a human tragedy but also a huge international embarrassment, given the high profile that Kosovo had assumed in the debate about ‘humanitarian interventions’. Over 100,000 Kosovan Serbs fled their homes after its ‘liberation’ by NATO and hundreds were murdered or simply ‘disappeared’. The only Serbs still there were living in enclaves under 24-hour protection from KFOR troops, while a steady attrition of attacks and intimidation against them continued. Given that most of Kosovo’s police and judiciary had fled with the departing Serbs, UNMIK was faced with the challenge of building a new justice system from scratch. This also had to be done while the paramilitaries of the Kosovo Liberation Army (KLA) were effectively consolidating their control over the province in preparation for independence.5 The KLA was responsible for much of the ‘ethnic cleansing’ against Kosovo’s minorities and many of its senior commanders were also under investigation for war crimes, drug trafficking and even organ harvesting. My first task on arrival, in September 2000, was to convene a Protection Working Group (PWG). Absolutely no one turned up for the first meeting. A more high-level PWG had previously existed bringing together UNMIK’s civilian and military leadership, UN agencies and 3 UN Security Council Resolution 1244 of 10 June 1999, preamble and Article 10. 4 Ibid., Article 11 (i). 5 William O’Neill, Kosovo: An Unfinished Peace, New York: International Peace Institute, Occasional Paper Series 2001; John Cerone, ‘Minding the Gap: Outlining KFOR Accountability in Post-conflict Kosovo’, European Journal of International Law, Vol. 12, No. 3, 2001, pp. 469–488.

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prominent international NGOs. This came to an end long before I got to Kosovo when KFOR objected to the attendance of NGOs whose advocacy efforts included using information obtained at these meetings to criticize the mission’s protection failures. The military, understandably, was reluctant to discuss sensitive operational issues in such a public environment and so instead began to brief UNMIK and UNHCR behind closed doors. The NGOs, equally understandably, resented being excluded and saw no reason to continue to attend PWG meetings where nothing of substance was likely to be discussed. Faced with an almost completely dysfunctional justice system, UNMIK and KFOR frequently resorted to using Executive Orders to overturn judicial decisions, particularly in relation to detentions of KLA activists. I was a member of the Juvenile Justice Task Force, which tracked the detention of juveniles by KFOR and UNMIK Police, and it was clear that they were using administrative detentions because they did not trust the Kosovan judiciary. One observer, Clive Baldwin, who served with me in the mission, noted that its civilian and military components ‘declared themselves above regulation, overturning even the most basic of human rights laws, that of requiring all detention to be by order of a judge’.6 David Marshall and Shelly Inglis, who were also colleagues, commented that: ‘UNMIK’s and KFOR’s executive actions have clearly contravened human rights standards but remained beyond any legal challenge’.7 In one case, which eventually resulted to an appeal to the European Court of Human Rights, KFOR detained an alleged KLA activist for several months although the Kosovan courts had previously ordered his release.8 The European Court declined to hear the case on the basis that KFOR had been created by the UN Security Council under its Chapter VII powers and so its actions could not be judicially reviewed. The implications of this will be discussed further in subsequent chapters. My last day as a UNHCR Protection Officer was 12 September 2001, one day after the terrorist attacks of 9/11. At our morning briefing 6 Clive Baldwin, Minority Rights in Kosovo Under International Rule, Minority Rights

Group International, 2006, p. 3. 7 David Marshall and Shelly Inglis, ‘The Disempowerment of Human Rights-Based Justice in the United Nations Mission in Kosovo’, Harvard Journal of International Law, Vol. 16, 2003, p. 96. 8 Saramati v. France, Germany and Norway, Appl. No. 78166/01, (Grand Chamber) Decision on Admissibility, 2 May 2007.

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the Head of Mission announced the names of the first staff who would be dispatched to Afghanistan in anticipation of the humanitarian crisis that was to come. I did not get to Afghanistan until early 2003, having rejected an offer to work for UN OHCHR in Iraq, where several of my former colleagues were subsequently killed. I became instead the Program Manager of a legal assistance project for the Norwegian Refugee Council (NRC), dealing mainly with disputes about land and property rights (HLP) among returning refugees and IDPs. My experiences in first Kosovo and then Afghanistan introduced me to what is commonly referred to as ‘protection’ by those involved in humanitarian action. This phrase is commonly used to describe humanitarian ‘activities, aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law (i.e. human rights, humanitarian and refugee law)’.9 This catch-all definition was drafted in the 1990s, through the Inter-Agency Standing Committee (IASC), which coordinates the work of the main humanitarian agencies. It specifies that human rights and humanitarian actors ‘shall conduct these activities impartially’ and without discrimination but is otherwise silent on its precise meaning. It is doubtful that a single definition of ‘protection’ could ever encompass what the phrase brings to mind when it is heard respectively by a lawyer, a humanitarian aid worker or a soldier. Nor should this matter, given the vastly different nature of their activities and purposes. In UNHCR we often distinguished between ‘protection’ and ‘assistance’, partly because different staff in the organization performed these different functions. Refugee law provides ‘protection’ to those who meet its legal definition and so protection officers are often lawyers with a background in advocacy, while program officers put together projects to supply all those displaced from their homes with humanitarian assistance—including those who would not meet the legal definition of a ‘refugee’. Similar distinctions are sometimes also used by other international organizations, such as the UN Children Fund (UNICEF) and the International Committee of the Red Cross (ICRC) whose mandates derive from the protection provisions of IHL and IHRL. The voluntary return of displaced people to their original homes, in conditions of safety and dignity, is widely viewed as the best long-term 9 ICRC, Strengthening Protection in War: A Search for Professional Standards, International Committee of the Red Cross, 2001.

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durable solution to refugee crises.10 Creating the conditions for this has become an increasingly important part of the work of UNHCR. Its activities in refugee-producing countries, along with its support for IDPs and role as a provider of humanitarian assistance, is one of the principal reasons for the expansion of its field presence. In many places, particularly where they have migrated to urban areas, IDPs simply do not want to return to their original homes and in places where the highly unequal land tenure relations were a major driver of the original conflict, it is neither possible nor desirable to restore land ownership patterns to the original status quo ante. Sometimes land reform or urban planning strategies need to be developed as part of a sustainable peace process to facilitate refugee return. The phrase ‘protection’ can, therefore, take on an ever-widening set of issues of economic, social and cultural issues. Our common understanding of the phrase can perhaps best be summed up by Francoise Bouchet-Saulnier, former legal counsel for Médecins Sans Frontières (MSF), who argues that: Protecting means recognizing that individuals have rights and that the authorities who exercise power over them have obligations. It means defending the legal existence of individuals, alongside their physical existence. It means attaching the juridical link of responsibility to the chain of assistance measures that guarantee the survival of individuals … When providing relief in times of conflict, humanitarian organizations therefore must not separate the provision of assistance from protection.11

As discussed in the previous chapter, the UN is in the process of rethinking how it defines and implements its own POC policy as it moves away from large multi-dimensional Chapter VII mandated PKOs that have characterized its efforts in recent decades. There is now almost unanimous support among both theorists and practitioners for the view that the best way to protect civilians is to ‘build resilience, prevent crises, ensure human rights are a lived experience and sustain peace’.12 Severine 10 UNHCR, Handbook on Voluntary Repatriation: International Protection, United

Nations High Commissioner for Refugees, Geneva, 1996. 11 Francoise Bouchet-Saulnier, The Practical Guide to Humanitarian Law, MSF and Rowman & Littlefield, 2002, p. 308. 12 UN General Assembly, Repositioning the United Nations Development System to Deliver on the 2030 Agenda: Our Promise for Dignity, Prosperity and Peace on a Healthy Planet Report of the Secretary-General, A/72/XXX, 20 December 2017.

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Autesserre, now a Professor of Political Science at Columbia University and a world authority on peacebuilding, but who I first met when we were both aid workers in Kosovo, has observed: Dominant peace building culture shapes the intervenors understanding of what the causes of violence are, how peace is made and what the intervention should accomplish. These understandings enable international peacebuilders to ignore the micro-level foundations that are so necessary for sustainable peace. The resulting inattention to local conflicts leads to inadequate peacebuilding in the short term and potential war resumption in the longer term. In addition to top-down interventions, bottom-up grass roots peacebuilding must be supported.13

Disputes over land rights are well known to be one of the ‘micro-level foundations’ of conflicts that can fuel disputes of ‘greed and grievance’ leading to fresh outbreaks of violence.14 Many humanitarian agencies run programs that include dealing with HLP rights and for several years after I left Afghanistan I worked as a consultant on these issues helping to set up similar programs in Colombia, Sri Lanka, Liberia, Aceh and northern Uganda. I have also carried out assessments for, or evaluations of, a variety of other programs associated with ‘protection’, focused on strengthening IHRL, justice sector reform and the particular needs of vulnerable groups. Such programs are clearly, by virtue of their humanitarian nature, short-term, palliative, crisis response measures. Yet they almost all require long-term financial and political investment, and their potential results and impact will take years, if not decades, to become apparent. This could be described as part of the ‘protection paradox’. If it is accepted that the best way to protect people is to tackle the root causes of the violent conflicts that threaten them—which most people do—but that, when such conflicts arise, these threats must be faced before such measures have created sufficiently resilient societies to mitigate them and prevent their reoccurrence, how then do we ‘protect’ people in the meantime?

13 Severine Autesserre TED Talk, Rio de Janeiro, 25 May 2017, https://www.ted.com/ talks/severine_autesserre_to_solve_mass_violence_look_to_locals?language=pt, accessed 17 October 2022. 14 Paul Collier, The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done About It, Oxford University Press, 2008.

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Humanitarian aid, by its very nature, must be given ‘without distinction’ for purely humanitarian purposes.15 This precludes its use for ‘political objectives’ such as ‘stabilization’. In Afghanistan we watched with horror as NATO had deployed Provincial Reconstruction Teams (PRTs) in the country with the overt aim of using reconstruction aid for counter-insurgency purposes, ‘buying’ the support of communities and isolating ‘extremists and spoilers’ who opposed their efforts. The utterly predictable outcome was to turn all aid workers into targets and at least a dozen of my friends and colleagues were kidnapped or murdered while I was working in the country. As Bouchet-Saulnier has noted: Using humanitarian assistance to influence a given military confrontation may indeed offer levers to affect positive changes in a country. Yet while this may be politically efficient or expedient; it jeopardizes the necessary political independence of humanitarian action. The unacceptable result is that humanitarian activities are de facto subordinated to high-level and honourable concerns that are other than humanitarian. This in itself distorts the very meaning of these actions and imperils the presence of humanitarian actors in the field by blurring their image and the respect due to their work and intentions.16

Yet, as she also notes: ‘In the past there was a clear distinction between development aid, actions of solidarity in cases of disasters, and humanitarian action in times of conflict. Today we seem to have entered a period of chronic crisis and conflict in which emergency humanitarian action has become the only available form of political expression’.17 Professor Mary Anderson, who I also first met in Kosovo, argues that: ‘Although [humanitarian] aid agencies often seek to be neutral or non-partisan towards the winners and losers of a war, the impact of their aid is not neutral regarding whether conflict worsens or abates’.18 She says that the presence of international aid agencies will inevitably impact the politics of the society in which they are working and so they should ensure that their assistance is provided in ways that actively contribute to ‘justice, peace 15 Nicaragua v United States, International Court of Justice, 1986, para 242. 16 Bouchet-Saulnier, p. 6. 17 Ibid. 18 Mary Anderson, Do No Harm: Supporting Local Capacities for Peace Through Aid,

The Collaborative for Development Action Inc., 1996, p. 1.

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and reconciliation’. In theory, it is possible to draw a line between the delivery of humanitarian assistance based on purely neutral needs-based principles and the nexus of issues around development and human rights where aid can be used to help establish resilient societies, based on liberal peace theory. In practice, though, it was impossible to feign ignorance of the politicized nature of the programs that I was involved in setting up, managing or evaluating. HLP rights had become hugely politically contentious during the wars in the former Yugoslavia because of its association of what became known as ‘ethnic cleansing’, the terrorization of different communities to drive them from their homes and re-draw the physical demographic boundaries of the new states. Whole villages and neighbourhoods were burned to the ground, displaced people were detained in barbed wire camps where they were starved, raped, tortured and brutalized by their guards. Cities were besieged and finally, in Srebrenica, genocide again unfolded in Europe for the first time since the Second World War. Ethnic cleansing was also sometimes accomplished by judicial and administrative means. People who had fled their homes due to intimidation were declared to have made themselves ‘intentionally homeless’ by their local council and their properties were allocated to other people of the dominant ethnic grouping—who might often have been driven from their own homes elsewhere in the region. The Dayton Accords, which formally brought an end to the conflict in Bosnia-Herzegovina, had specified that all displaced people had a right to return to their original homes and UNHCR, with the support of international donors funded several legal aid projects in the Balkans, including one run by NRC, to provide assistance to those making such claims. NRC set up a similar project in Kosovo, where the destruction of homes during the war created a housing crisis exacerbated by a huge influx of international aid workers. Rents shot up making even modest apartments an extremely valuable asset; thus, the issue of property ownership assumed an economic as well as political significance. Most of the homes abandoned by the hundreds of thousands of minorities who had fled at the end of the war were now either occupied by neighbours or seized by other homeless people or KLA fighters and their families. UNMIK decided to remove disputes over property from the jurisdiction of the local court system and created a Housing Property Directorate to deal with these cases. Delays in its establishment, together with a decision made for international staff to verify all claims individually, since the

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impartiality of local staff was considered suspect, meant that each statement and document had to be translated. In practice, this meant that for several years no one displaced from their home had any effective legal remedy. In Afghanistan, the program that I managed faced problems of a different magnitude. Over the previous 40 years, Afghanistan had gone from feudalism to communism, to civil war, Islamic fundamentalism and then neoliberal capitalism. Each successive regime change had led to abrupt changes in state ideology related to the ‘right to private property’ and a succession of consequently different laws were applied at different periods of time. Millions of people had been driven from their homes and land during this period. Families coming back to places that they may have left decades ago were now different in size and composition. New generations had grown up in the refugee camps in Pakistan and Iran, married and had children themselves, while heads of households had died and now war widows were disproportionately represented amongst the returnees. What had once been a nuclear family of five to ten people might now be an extended one of 50 or 60, all claiming space on a patch of land that might have physically changed in the interim. Global warming had exacerbated Afghanistan’s desertification and chronic lack of water. Disputes between neighbours about the precise borders of their land and its proximate location to the nearest water supply or between children about their inheritance rights—particularly in female-headed households—were exacerbated by a lack of reliable cadastral records, forged documents, corrupt officials and land-grabbing war lords. The official law in Afghanistan is based on Sharia, which gives women fewer rights. In the absence of a functioning judicial system, though, most disputes were settled through Afghan customary law, which gives them virtually none. Our program relied mainly on community mediation to settle disputes managed through traditional Shuras and Jirgas but conducted by exceptionally well-qualified Afghan lawyers who patiently educated me as to the applicable law in each period under dispute.19 Yet our program could not function in isolation from the official Afghan legal system, which needed to be strengthened and capacitated in line with the standards of justice laid down in IHRL. The courts’ decisions also needed to be enforced fairly and through a functioning rule of system sufficiently robust to tackle

19 Conor Foley, A Guide to Property Law in Afghanistan, UNHCR/NRC, 2004.

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corruption and ensure accountability. This in turn required a competent, honest and effective national police force and army capable of upholding state authority. While the immediate goals of the program were humanitarian, it obviously operated in a particular political context. I continued to visit Afghanistan after leaving the NRC program, working on land rights and justice sector reform through programs that explicitly focused on state-building. Most of these were funded either by the European Union (EU) or the United States (US) and made no claims to ‘humanitarian neutrality’, since the donors were active participants in the conflict being fought for control of the country. I had just finished evaluating a POC project run by the Centre for Civilians in Conflict (CIVIC), in August 2021, when the Taliban recaptured Afghanistan. The program was impressive and is discussed further later in this book. It had documented and strongly criticized the killing of civilians by NATO and Afghan government forces and reached out to armed non-state actors (ANSAs), such as the Taliban, to persuade them to limit activities that threatened civilian lives. Nevertheless, our report recommended preparing for the immediate evacuation of the program’s Afghan staff in anticipation of the government’s collapse.20 We were under no illusions that the humanitarian nature of the program would protect them given the politicized nature of their POC work. As discussed in the introduction of this book, I spent part of 2020 evaluating a program in Syria, implemented by an international legal consortium, that was trying to build the capacity of a justice sector system in rebel-held areas. One of the program’s Outputs had been to issue new identity documents to IDPs who had lost these when they had been forced to flee their homes due to the conflict. The NRC legal assistance projects that I had managed or helped to establish elsewhere in the world often carried out similar activities. Such documents are often extremely important for refugees and IDPs in accessing social services and obtaining assistance. Yet even these have a political significance as the program found when it stamped the documents with the authority of

20 Dr. Conor Foley (Team Lead), Dr. Cecilia Deme (Co-Team Lead), Dr. Friedarike Santner, Horia Mosadiq, Syed Kazim Baqeri, Richie Lontulungu Nsombola and Gina Matalatala, Mid-Term External Evaluation of CIVIC Program: Promoting the Protection of Civilians in Conflict in Afghanistan and UN Peacekeeping Operations, CIVIC, May 2021.

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Syria’s government exile, making their possession a virtual death sentence for anyone found with them in areas controlled by the regime.21 An obviously important principle of humanitarian aid programming is ‘do no harm’; aid should not be delivered in a way that inadvertently endangers the recipient. But can it, as Anderson and others argue, be used to enhance humanitarian protection without compromising humanitarian neutrality? UNHCR is responsible for leading the Global Protection Cluster (GPC), created in 2005 as part of a broader humanitarian reform process, which can activate national and regional Protection Clusters during particular crisis under the overall direction of the IASC. The clusters are designed to ensure that named agencies take on responsibility for specific sectoral areas of work during a humanitarian emergency—such as food security, health, nutrition or logistics—to enable good coordination and reduce gaps or overlaps during the humanitarian response. The GPC highlights Child Protection, SGBV, HLP and Mine Action among its thematic areas of ‘protection programs’ and many donors have ‘protection’ budget lines which fund this type of activity. A 2022 review by the Humanitarian Policy Group (HPG), of the implementation of the IASC’s Protection Policy, however, stated that rather than being viewed as a ‘sectoral activity’ protection should be viewed as the ‘collective responsibility of the entire humanitarian system’. It stated that protection needed to be framed as ‘an outcome that humanitarian actors should seek to achieve in terms of reducing risks to violence, coercion and deliberate deprivation’ of affected populations ‘rather than just an activity to be undertaken’ by certain humanitarian actors. This, it stated, ‘required a shift in how risks are analysed and how interventions are designed to address them’.22 The IASC had adopted a policy reaffirming the importance of protection in 2016, after a previous review, which had noted that there was ‘very little common understanding as to what that means in practice’.23 The 2022 review of the policy found that while ‘partial progress has been made towards its implementation’, there was ‘still a significant gap 21 Conor Foley, Evaluation of the International Legal Assistance Consortium Syria

Program 2017–2019, ILAC, June 2020. 22 J. Cocking, G. Davies, N. Finney et al., Independent Review of the Implementation of the IASC Protection Policy, HPG Commissioned Report, ODI, 2022. 23 Norah Niland, Riccardo Polastro, Antonio Donini, and Amra Lee, Independent Whole of System Review of Protection in the Context of Humanitarian Action, Norwegian Refugee Council, May 2015, pp. 22–28.

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between policy and practice’ which remained ‘incoherent, inadequate and ineffective’. It noted that ‘Protection is interpreted differently across the humanitarian sector’ and that while ‘some organisations have demonstrated their commitment by developing policies and practices to explain what it means for their work, the majority have not’.24 It also stated that the current ‘architecture’ for ‘leading and coordinating protection in the humanitarian system’ is ‘overly complex and fragmented’ the ‘protection strategies’ produced by Humanitarian Country Teams (HCTs) ‘have been costly, time-consuming and ineffective’ while current set-up of the Protection Cluster ‘is not fit for purpose’.25 Much of what humanitarians might refer to as ‘protection programming’ includes issues with which anyone from a background in IHRL would find themselves comfortable and familiar. Human rights monitoring, reporting and advocacy is not bound the constraints of humanitarian neutrality, yet it is not difficult to see how this type of work, in certain contexts, can be fitted into a broader ‘protection’ agenda. As the UN Secretary General’s annual report on POC, published in 2022, notes: ‘The most effective way to protect civilians is to prevent the outbreak of armed conflicts and settle them peacefully. Where conflicts cannot be prevented or settled, compliance with international humanitarian law and human rights law contributes significantly to the prevention and alleviation of human suffering’.26 Two years earlier the Secretary General had used his POC report to reiterate an ‘appeal for an immediate global ceasefire in order to help create conditions for the delivery of humanitarian assistance, open space for diplomacy and bring hope to those most vulnerable to COVID-19’. He had noted that ‘an effective response to the pandemic’ required ‘protecting health-care workers, essential infrastructure and transport; reducing conflict-related injuries among civilians and, in turn, relieving pressure on overstretched health-care systems’.27 Clearly the more encompassing the definition of humanitarian ‘protection’ the more difficult it will be to develop a coherent policy around what it means in practice. The right to health care, for example, is clearly 24 J. Cocking et al., 2022. 25 Ibid. 26 Protection of Civilians in Armed Conflict, Report of the Secretary-General, S/2022/381, 10 May 2022. 27 Protection of Civilians in Armed Conflict, Report of the Secretary-General, S/2020/366, 6 May 2020.

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enshrined in IHRL, but what level of provision is acceptable in an emergency and who is responsible for its provision? After visiting sites where civilians were sheltering on UN bases in South Sudan, in 2014, for example, the Executive Director of MSF Canada noted that living conditions were abysmal and people ‘suffer from violence, malnutrition and cholera’ with ‘wires and barricades designed to keep violence out, the people inside’.28 The UN mission, he concluded, had accepted a new ‘definition of protection’, which ‘appears to apply in only the most narrow sense’. Maus has similarly argued that ‘human rights protection cannot and must not be reduced to protection against violence and oppression, against death or torture, but always has to be protection against basic deprivation like hunger, sickness or lack of shelter’.29 One of the dilemmas surrounding the precise definition is whether it should apply to the protection against violations of the full spectrum of rights contained within IHRL or simply focus on protecting civilians from acute physical and mental harm? Humanitarians sometimes argue both positions in different contexts. A paper published by the HPG, in 2012, for example, stated that ‘it is generally accepted that protecting civilians in armed conflict and other situations of violence relates to violations of international humanitarian and human rights law, and is not limited to mere physical security but rather encompasses the broader spectrum of human security and human dignity’.30 Five years previously, however, an HPG paper had stated that humanitarian agencies were seeking to develop ‘more accessible working definitions which emphasize safety rather than rights … Put simply, protection is about seeking to assure the safety of civilians from acute harm’.31 Others have questioned the usefulness of the concept itself. Marc DuBois of MSF, for example, has argued that

28 Stephen Cornish, ‘The Struggle to Protect Civilians in South Sudan’, Medecins sans Frontieres, 29 August 2014. 29 Sylvia Maus, ‘Human Rights in Peacekeeping Missions’, in Hans-Joachim Heintz and Andrej Zwitter (eds), International Law and Humanitarian Assistance, Berlin: Springer, 2011, p. 112. 30 Victoria Metcalfe, Protecting Civilians? The Interaction Between International Military and Humanitarian Actors, HPG Working Paper, Overseas Development Institute, August 2012. 31 Sorcha O’Callaghan and Sara Pantuliano, Protective Action: Incorporating Civilian Protection into Humanitarian Response, HPG Policy Brief 29, Overseas Development Institute, December 2007.

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claims by humanitarians that they can ‘develop truly practical programming that protects people from all forms of violation, exploitation, and abuse during war and disaster’ amount to ‘delusions of grandeur’ and a ‘sort of self-flagellation in the humanitarian community over the death and destruction of our beneficiaries … the protection of civilians during periods of violent crisis (in the sense of providing physical safety) is not our job’.32 Humanitarian actors are unarmed and so can never provide ‘physical protection’ to civilians. Yet their advocacy work could include calling for such protection from other actors. Humanitarians are also likely to be amongst the first to observe the violations that civilians are suffering and to be providing life-saving assistance in places where a denial of access to affected populations can have catastrophic consequences. Some, nevertheless, seek to ‘bear witness’ to egregious violations, while others argue that the ‘humanitarian imperative’ may sometimes require more discretion. As an HPG study, in relation to Darfur, in 2007 noted: ‘Advocacy by operational aid actors is frequently juxtaposed with programming, with speaking out, weighed against potential costs to programmes, staff and beneficiaries’.33 More recently, a series of HPG papers have noticed a growing ‘risk averseness’ on the part of many humanitarian actors. Metcalfe-Hough argues that ‘international humanitarian actors are generally not effectively leveraging these areas of added value and in practice most have only limited influence over the behaviour of conflict parties and conflict actors’.34 Davies and Bowden argue that: ‘Courageous, empowered leadership of protection is required to ensure that protection is central to humanitarian action, so that the atrocities and abuses that crisis-affected populations face are not ignored’.35 The debate about whether, when and how humanitarians should engage in this sort of ‘protection advocacy’ is almost as old as the debate about humanitarianism itself. Controversies about it encompass the failure 32 Marc DuBois, ‘ Protection: Fig-Leaves and Other Delusions’, Humanitarian Exchange Magazine, HPG, Issue No. 46, March 2010. 33 ODI, Humanitarian Advocacy in Darfur: The Challenge of Neutrality, HPG Policy Brief 27, Overseas Development Institute, October 2007. 34 Victoria Metcalfe-Hough, Advocating for the Better Protection of Civilians : From Stagnation to Action, Overseas Development Institute, October 2022. 35 Gemma Davies and Mark Bowden, Leadership of Protection in the Humanitarian Sector, HPG Policy Brief, Overseas Development Institute, November 2022.

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of the ICRC to denounce the Nazi Holocaust—while providing some individual assistance to some of its Jewish victims—to the subsequent split of the organization—and the creation of MSF—during the Biafra war in the 1960s and the role that Live Aid played during the conflict in Ethiopia in the 1980s. A similar debate has played out around the concept of ‘humanitarian intervention’ when one state, or group of states, intervenes within the borders of another, violating its sovereignty, in order to alleviate extensive suffering or prevent or respond to widespread violations of IHL and IHRL. The genocides of the 1990s led the then UN Secretary-General, Kofi Annan, to famously pose the question that ‘if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to Rwanda, to Srebrenica’.36 NATO’s military intervention in Kosovo, without an explicit Chapter VII Security Council resolution, was justified by some at the time under this doctrine and the International Commission on Intervention and State Sovereignty (ICISS) was established in response, with the expressed aim of fostering a global political consensus on the issue.This published a report entitled the Responsibility to Protect (R2P) in 2001, which argued that: ‘The notion that there is an emerging guiding principle in favour of military intervention for human protection purposes is also supported by a wide variety of legal sources – including sources that exist independently of any duties, responsibilities or authority that may be derived from Chapter VII of the UN Charter’.37 It suggested that when the Security Council ‘fails to act’ the ‘responsibility’ may pass to the General Assembly or Regional Organisations, including occasions when the latter act outside their area of membership. As an interim measure, it suggested that the Security Council’s P5 adopt a voluntary code of conduct restricting the use of their veto power during genuine humanitarian emergencies.

36 We the People’s, the Role of the UN in the 21st Century, Millennium Report of the Secretary General of the United Nations, New York: UN, 2000, p. 48. 37 Gareth Evans and Mohamed Sahnoun (Co-Chairs), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre, 2001, para 2.26.

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In September 2005, a reference to R2P was incorporated into two paragraphs of the 2005 General Assembly World Summit Outcome Document.38 This included a commitment ‘to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. The UN Security Council ‘reaffirmed’ these principles in 2006.39 Proponents of R2P commonly describe it as ‘an emerging international norm’, yet the wording adopted at the UN summit amounted to saying little more than that the Security Council should continue authorizing, on an ad hoc basis, the type of interventions that it had been authorizing for many years.40 Professor Alex Bellamy, a strong supporter of R2P, has acknowledged that: Five years ago a majority of academic papers on R2P failed to distinguish between what the ICISS proposed in 2001 and what the UN General Assembly had adopted four years later. It was also extremely common to see R2P described as a new norm of humanitarian intervention or a new legal principle, despite the fact that what emerged in 2005 was neither.41

Part of the reason for the ‘retreat’ from the original conception of a ‘responsibility’ on the Security Council to act, which could be exercised by others if it failed to do so, was a growing awareness about the problems surrounding NATO’s intervention in Kosovo and the subsequent UNMIK administration. At Amnesty International we had watched with considerable frustration as the casualty figures that we had meticulously tried to document at the start of the Kosovo crisis were grossly

38 General Assembly Resolution 60/1, of A/RES/60/1, 24 October 2005, paras 138 and 139. 39 UN Security Council Resolution 1674, of 28 April 2006, para 4. 40 Simon Chesterman, ‘Leading from Behind’: The Responsibility to Protect, the Obama

Doctrine, and Humanitarian Intervention After Libya, New York University School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 11-35, June 2011. 41 Alex Bellamy, Responsibility to Protect: A Defence, Oxford University Press, 2015, p. 12.

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inflated by the British and US administrations to make the cause for military airstrikes. More fundamentally, as Gareth Evans, one of its driving forces, has argued, the ‘spectacular misuse of R2P principles by the USled coalition, supported particularly in this respect by the UK, in the case of the 2003 invasion of Iraq – and the suspicion that R2P will be just another excuse for neo-colonialist and neo-imperialist interventions’.42 Indeed, the fallout from the invasion of Iraq helped to re-polarize the world on Cold War lines and effectively ended the possibility of achieving a global political consensus on ‘protection issues’. In 2006, for example, a Security Council resolution authorizing the extension of the UN mission to Sudan (UNMIS) to include Darfur within its scope, contained an oblique reference to R2P in its preamble—the first and only such reference the Security Council has ever made when mandating a peacekeeping mission.43 Sudan rejected both the resolution and the way in which it had been drafted.44 Russia and China indicated that they would veto a deployment without host state consent and the resolution was withdrawn. This marked the first time in history that a UN peacekeeping mission has been authorized but subsequently failed to deploy—and was consequently included in a list of the ‘ten worst ever Security Council resolutions’ by Foreign Policy magazine.45 The international outcry about the violations of IHL and IHRL in Darfur had led to the formation of a large advocacy movement, particularly in the US, calling for ‘humanitarian intervention’ from 2004 onwards. The US Secretary of State, Colin Powell, officially accused the Sudanese government of genocide in 200446 and this description was codified into US law by the Darfur Peace and Accountability Act in 2006.47 Both US President George Bush and British Prime Minister Tony Blair also implied they might take unilateral military action to protect 42 Gareth Evans, ‘Hypocrisy, Democracy, War and Peace’, Harvard University Weatherhead Center for International Affairs Conference on Democracy in Contemporary Global Politics, Talloires, 16 June 2007. See also Statement by Professor Noam Chomsky to the United Nations General Assembly Thematic Dialogue on the Responsibility to Protect United Nations, New York, 23 July 2009. 43 UN Security Council Resolution 1706 of 31 August 2006. 44 UN Security Council, 5520th meeting, 11 September 2006, S/PV.5520. 45 Foreign Policy, ‘Ten Worst Security Council Resolutions Ever’, 21 March 2010. 46 BBC News, ‘Powell Declares Genocide in Sudan’, 9 September 2004. 47 Darfur Peace and Accountability Act, 2006, H.R. 3127/S. 1462.

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civilians if the Security Council did not approve the deployment of a strong peacekeeping mission. The Sudanese government responded that supporters of intervention were vastly exaggerating the casualty figures to make the case for another unilateral western military invasion. In November 2006, for example, President Al Bashir said there was no humanitarian crisis in Darfur and accused Western countries of inflating statistics to justify a military intervention. He claimed that: The figure of 200,000 dead is false and the number of dead is not even 9,000. All the figures have been falsified and the child mortality rate in Darfur does not exceed that in Khartoum.48

There undoubtedly were exaggerations of the total death toll, particularly by the Save Darfur Coalition, an advocacy group, which at one point ran newspaper advertisements claiming that ‘400,000 innocent men, women and children have been killed’ as part of a deliberate policy of genocide by the Sudanese government.49 The ICC did find sufficient evidence to indict Sudan’s President for war crimes and genocide— although the latter charge was legally controversial—and there is little doubt that the Sudanese armed forces and associated militia groups did commit a range of serious violations of IHL and IHRL. The vast majority of conflict-related deaths, though, as in most conflicts, were, caused by disease and hunger. The humanitarian aid agencies who flooded into Darfur at the start of the crisis found their efforts to alleviate these often frustrated by the efforts of the ‘protection advocacy’ activists whose work we considered ill-informed and irresponsible. In April 2007 the ICC issued arrest warrants for the first two suspects: Ahmad Muhammad Harun, a Sudanese government minister, and Ali Kushayb, an alleged Janjaweed leader. Harun was charged with having recruited, armed and funded the Janjaweed, and incited them to conducting a reign of terror against civilians between August 2003 and February 2004.50 Kushayb was charged with 504 assassinations and 48 See for example, Islamweb English, ‘Al-Bashir Rejects Darfur Genocide’, 29 November 2006, http://www.islamweb.net/emainpage/articles/137023/newguest.php, accessed 22 June 2015. 49 Foley, 2008, pp. 8–12. 50 Warrant of Arrest issued for Ahmad Harun, ICC Pre Trial Chamber I, ICC-02/05-

01/07-2, 27 April 2007; and Warrant of Arrest issued for Ali Kushayb, ICC Pre Trial

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20 rapes, which resulted in the forced displacement of 41,000 people. Kushayb was allegedly twice taken into custody by the Sudanese authorities in 2007 and 2008 but released both times.51 In July 2008, the ICC Prosecutor, Luis Moreno Ocampo, submitted an application for the issuance of a warrant of arrest for the Sudanese President al Bashir on charges of war crimes, crimes against humanity and genocide.52 Some observers, however, have questioned both the substance and the timing of the charges. Rony Baumann, a former President of MSF, for example, has noted that the Prosecutor’s case was that the genocide had been committed in two consecutive stages: the first, through direct violence, during the first eighteen months of the conflict and then a second ‘camp’ stage where ‘the extermination process continued’.53 He notes that: Yet in these camps, located near Darfur’s major cities as well as army garrisons, the largest emergency relief operation since the Second World War was set up. Tens of thousands of people were saved from probable death and over two million received essential aid. Health indicators are much better there than elsewhere in the country … Yet the ICC speaks of ‘living conditions that will lead to physical destruction’ – a sort of Auschwitz of the desert … The ICC’s accusation is not only inept, but also an insult to humanitarian, foreign and Sudanese workers, who retrospectively become unknowing accomplices to genocide.

In 2009 Sudan expelled most of the main international humanitarian agencies working in Darfur, accusing them of being ‘spies for the ICC’. I was working in Timor Leste at the time, for one of the expelled organizations and we heard that it had been forced to sign over its assets to the Sudanese government at gunpoint. Writing for the Guardian newspaper I recalled: ‘My first concern was for the safety of friends and colleagues and the plight of millions of people who had been entirely dependent on them for food aid and were now being in effect abandoned my second thought was what on earth did the ICC Prosecutor hope to achieve by Chamber I, ICC-02/05-01/07-3, 27 April 2007. Between them they were charged with 51 counts of war crimes and crimes against humanity. 51 New York Times , ‘Sudan Arrests Militia Chief Facing Trial’, 13 October 2008. 52 ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC Pre Trial Chamber I,

ICC-02/05-01/09-1, 4 March 2009. 53 Rony Brauman, ‘Darfur: The International Criminal Court Is Wrong’, Médecins sans Frontières , 10 October 2010.

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the indictment?’54 Controversies surrounding the work of the ICC and other international legal mechanisms will be discussed further later in this book, so it is sufficient to note here that the ‘protection provisions’ of international law require enforcement mechanisms and there is obviously a debate to be had about when and how these are most effectively used for POC purposes. I travelled from Timor Leste to Sri Lanka that spring arriving in time to witness the closing bloody months of the country’s civil war where government forces encircled and besieged the remaining forces of the Tamil Tiger rebels (LTTE) and up to 300,000 civilians who they were effectively holding as hostages. For over three months an area the size of New York’s Central Park, packed with people, was systematically bombed and starved by Sri Lankan soldiers while those of us working there effectively remained silent. In one Guardian article I wrote at the time I noted that: Access to the war zone itself is tightly restricted, although the area is close enough to hear the occasional shelling and missile strikes. The Red Cross has been able to evacuate a few thousand of the worst injured from the Vanni, but many more remain inside. Food and supplies have almost run out. Medical supplies are depleted. Civilians who try to leave are unable to do so, and are instead forced to shelter in rain-filled trenches, exposed to the elements, in a desperate attempt to escape the fighting. No one knows the current death toll, but the situation is getting worse every day. Many of those attempting to flee are being prevented by the LTTE. The government has also rejected pleas from international observers for a ceasefire and the creation of a humanitarian corridor to allow for the evacuation of civilians. Many other aid workers in Vauvuniya still have friends and family trapped in the area and hear their daily phone call reports of the deteriorating situation with mounting anguish. People quite often break down in tears as they are talking and the strained tension during many meetings is palpable… There is also a political storm brewing about the longer-term fate of the hundreds of thousands of people who have been displaced from their homes. For now, though, aid workers can only do what they can to try and help people, hope that the meagre aid that they are providing can actually get to those who need it most and pit hope against fear that

54 Guardian, Conor Foley, ‘Darfur: A Disaster for Justice’, 20 April 2009.

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another day does not bring news of the death of another colleague, friend or loved one.55

The first time I had visited Sri Lanka was in 2005, to set up the NRC legal assistance project. Although there was no UN PKO or SPM, we had worked alongside a Norwegian-led Sri Lanka Monitoring Mission (SLMM) which had been created by the ceasefire agreement of 2002 between the government and LTTE rebels and was able to provide information about alleged ceasefire violations. The government disbanded this in 2008 and so there was no independent way to verify what was happening. While in Darfur, protection advocacy activists had massively over-estimated the number of victims of the conflict, in Sri Lanka we made the opposite mistake. A UN appointed panel subsequently estimated that government forces killed around 40,000 people in the closing months of the conflict.56 This was far more than even our worst fears at the time. The government systematically shelled UN food distribution points and hospital points despite the fact that their locations were known. It used heavy weapons in the so-called ‘no fire zones’ where it had encouraged civilians to congregate. It deliberately deprived civilians of food and medical equipment, by underestimating the number of people there and soldiers then raped, tortured and executed many of the survivors of the massacre after they had been herded into what were effectively concentration camps. The panel argued that had the UN publicized the casualty figures it was collecting this ‘would have strengthened the calls for the protection of civilians’ while the massacre was unfolding.57 It noted that the UNCT ‘did not adequately invoke principles of human rights that are the foundation of the UN but appeared instead to do what was necessary to avoid confrontation with the government’.58 Some UN agencies even cooperated in the construction of ‘closed camps’ into which the survivors were 55 Guardian, Conor Foley, ‘Dire Times in Sri Lanka’s War Zone’, 19 March 2009. 56 UN, Memorandum from the Panel of Experts on Accountability in Sri Lanka to the

Secretary-General, 12 April 2011; UN, Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011. 57 UN, Memorandum from the Panel of Experts on Accountability in Sri Lanka to the Secretary-General, 12 April 2011; UN, Report of the Secretary General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011. 58 Memorandum of 12 April 2011 from the Panel of Experts to the Secretary-General.

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herded for screening. As the panel noted: ‘There were persistent allegations of human rights violations at the screening points and in IDP camps, but the UN was not permitted fully independent protection monitoring access … UN officials said they were confronted with a dilemma over whether to hold back and insist on respect for principles or to provide urgently needed assistance through camps that were operating in violation of international standards. The UN chose to support the camps’.59 Sri Lanka was to be my last field mission. I found out that my wife was pregnant while I was working there and my son was born, in August 2009, shortly after my return. I now teach at a University in Rio de Janeiro while continuing to work as a consultant on justice, human rights, and legal protection issues. My ten years in the field coincided with the decade in which POC had established itself as a normative feature in UN peacekeeping. The UN also commissioned an independent review on POC in 2009 whose report found that while progress had been made over the previous decade, there were considerable deficiencies ‘from the earliest planning to the implementation of mandates by peacekeeping missions in the field’.60 It recommended, among other things, that the UN design a set of scenario-based training exercises on how POC mandates should be implemented by PKOs in practice. I was hired the following year by the Department of Peacekeeping Operations (now DPO) to work with both the HQ in New York and four of its largest missions at the time: MONUSCO, UNAMID, UNMISS and UNOCI. My experiences during the years that followed inform the next chapter of this book.

59 Report of the Secretary-General’s Internal Review Panel, on United Nations Action in Sri Lanka, New York: United Nations, November 2012, para 32. 60 Victoria Holt and Glynn Taylor, Protecting Civilians in the Context of UN Peacekeeping Operations, DPKO and OCHA, 2009.

CHAPTER 3

Understanding Peacekeeping

Abstract Neither peacekeeping nor POC is anywhere listed as explicit responsibilities in the UN Charter. They emerged and developed through innovations in the UN Secretariat and Security Council in response to particular crises. These led to the development of peacekeeping’s ‘core principles’, but also an awareness of the UN’s own responsibilities under IHL and IHRL. The UN had been criticized both for how it reacted to serious violations of both bodies of law and for failures of its situational awareness systems to anticipate and respond to the human rights and security crises involved in a timely and effective manner. In 2017, the UN restructured its peace and security architecture as part of a broader agenda to make conflict prevention a cross-pillar priority and to foster an integrated approach to human rights and development. As the UN has increasingly been downsizing its large PKOs and transitioning its field presences into smaller Special Political Missions (SPMs) or UN Country Teams (UNCTs), there is a growing awareness of the importance of the monitoring, reporting and advocacy mechanisms of IHRL both in preventing conflicts and providing early warnings of their likely occurrence. Keywords Peacekeeping · Kurds · Somalia · Genocide · POC · DPO

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Foley, The Protection Paradox, Human Rights Interventions, https://doi.org/10.1007/978-3-031-27427-5_3

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The UN was set up ‘to keep the peace, not to change the world’ to paraphrase Gerald Fitzmaurice a former Judge of the International Court of Justice (ICJ) and the European Court of Human Rights.1 There is no explicit basis for peacekeeping in the UN Charter and this specifies that it is for the Security Council rather than the General Assembly to decide on what ‘actions’ are necessary for the preservation of international peace and security. In its Advisory Opinion, in 1962, on Certain expenses of the United Nations , however, the ICJ ruled that while ‘primary responsibility’ for the maintenance of international peace and security was conferred upon the Security Council, the Charter made it ‘abundantly clear’ that the General Assembly could also make decisions on such ‘important questions’.2 Only the Security Council, using its Chapter VII powers, had the authority to ‘require enforcement by coercive action’, but the General Assembly had been given powers to ‘recommend measures for the peaceful adjustment of any situation’. The Court reasoned that ‘the word “measures” implies some kind of action’ and the only specified limitation was that it should not act while the Security Council was dealing with the same matter. This case arose due to the reluctance of some UN Security Council members to pay the costs incurred during the UN’s first two largescale PKOs: the UN Emergency Force (UNEF) sent to Sinai during the ‘Suez crisis’ and the mission to Congo (ONUC) to help prevent the break-up of the country at independence. The Security Council was highly polarized at the height of the Cold War and the General Assembly had used the Uniting for Peace procedure to support the then UN Secretary General, Dag Hammarskjold, in his deployment of both missions. ONUC had initially been authorized by the Security Council, with Hammarskjold using his ‘good offices’ powers, derived from Article 99 of the UN Charter to ‘bring attention’ to the issue, but he fell back on the General Assembly when the Council deadlocked.3 This reaffirmed previous Security Council Resolutions and gave broad support to the

1 Legal Consequences for States of the Continued Presence of South Africa in Namibia Notwithstanding Security Council Resolution 276 (1970). Advisory Opinion, Dissenting Opinion, Sir Gerald Fitzmaurice, ICJ Reports (1971) para 294. 2 Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962. 3 UN General Assembly Resolution ES-1474 of 16 September 1960.

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Security Council and Secretariat, whose directives authorized UN soldiers to ‘protect civilians’ and disarm those who threatened them.4 The debt incurred from these operations nearly bankrupted the UN and the reluctance of France and the Soviet Union to pay these costs led to the ICJ issuing an Advisory Opinion on the legal basis of peacekeeping. While UNEF was widely considered a success, ONUC was a disaster, with the UN getting sucked into the country’s civil war, losing hundreds of peacekeepers and failing to protect the lives of up to a million Congolese as the country slid into an authoritarian dictatorship. Gray has argued that the ‘former operation [UNEF] led to agreement on the basic principles underlying what later became known as peacekeeping operations; the latter [ONUC] revealed the difficulties that arise when these principles are compromised’.5 The financial crisis also led to the UN establishment of a Special Committee for Peacekeeping Operations (C34) to undertake a comprehensive review of these missions and tasks. The annual reports of the C34 have repeatedly reaffirmed that peacekeeping is based on three fundamental principles: consent of the parties, impartiality and non-use of force except in self-defence. With the ending of the Cold War a newly assertive Security Council authorized missions to Angola in 1988, Namibia in 1989 and Cambodia in 1992. In April 1991 Operation Provide Comfort was established to protect the Kurds in northern Iraq following their failed uprising at the end of the first Gulf war.6 The Security Council adopted Resolution 688, by 10 votes to three, which condemned the Iraqi government’s repression of its Kurdish population as a threat to international peace and security and demanded humanitarian access. The resolution was not adopted under Chapter VII of the UN Charter, but it did use similar language, describing the Iraqi government’s actions, inside its own borders, as a threat to international peace and security. American, French and British troops established a ‘safe haven’ in the north of the country, occupying 1,500 square miles of Iraq including the northern cities of Batufa, Sirsenk,

4 Operations Directive No. 6 of 28 October 1960. 5 Christine Gray, Use of Force in International Law, Third Edition, Oxford: Oxford,

University Press, 2008, p. 262. 6 Helena Cook, The Safe Haven in Northern Iraq, Essex Human Rights Centre and Kurdish Human Rights Project, 1995.

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Al-Amadiyah, Deralock and Suriya.7 The Iraqi military withdrew from these areas without offering military resistance. It had not returned three years later, when I visited, as a journalist, in May 1994.8 The Turkish military, by contrast, made frequent military incursions into the area and dropped bombs near a refugee camp outside Zhako during my visit. We also got pinned down on a mountain ridge as Kurdish Workers Party (PKK) guerrillas fought a pitched battle with Turkish ground forces who made periodic cross-border incursions throughout the 1990s. Operation Provide Comfort also involved a huge humanitarian assistance program in which agencies cooperated closely with allied military forces to distribute life-saving supplies in the Kurdish mountains. In December 1991 the UN General Assembly adopted a resolution on ‘strengthening of the coordination of humanitarian emergency assistance of the United Nations’.9 This established the IASC and also contained a set of principles relating to the distribution of humanitarian assistance’. It emphasized respect for ‘the sovereignty, territorial integrity and national unity of States’ and that ‘humanitarian assistance should be provided with the consent of the affected country and, in principle, on the basis of an appeal by that country’. It ‘stressed’ that humanitarian assistance should be provided ‘in accordance with the principles of humanity, neutrality and impartiality’. However, it also stated that: The magnitude and duration of many emergencies may be beyond the response capacity of many affected countries … States whose populations are in need of humanitarian assistance are called upon to facilitate the work of these organizations in implementing humanitarian assistance, in particular the supply of food, medicines, shelter and health care, for which access to victims is essential.

In early 1992 three new UN Departments: DPKO, the Department of Political Affairs (DPA) and the Department of Humanitarian Affairs (later to become the UN Office for the Coordination of Humanitarian

7 Marjoleine Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis, Martinus Nijhoff Publishers, 1997, p. 180. 8 New Statesman and Society, Conor Foley, ‘Letter from Kurdistan’, May 1994. 9 General Assembly Resolution 46/182, A/RES/46/182, 19 December 1991.

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Affairs—OCHA) were created in a major internal restructuring.10 UN agencies such as the UNHCR, WFP and UNICEF also significantly expanded their field presence from the start of the 1990s. In the same year, the UN published Agenda for Peace which can be seen as marking the transition from the first to the ‘second phase’ of UN peacekeeping operations.11 Agenda for Peace also noted that the recently adopted UN General Assembly on humanitarian assistance, stressed ‘the need for access to those requiring humanitarian assistance’ and claimed that ‘a Government’s request for United Nations involvement, or consent to it, would not be an infringement of that State’s sovereignty or be contrary to Article 2, paragraph 7, of the Charter’. In December 1992 the UN launched Operation Restore Hope, in response to famine in Somalia. The Security Council unanimously adopted a resolution stating that ‘the magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by the obstacles being created to the distribution of humanitarian assistance, constitutes a threat to international peace and security’.12 Acting under Chapter VII the resolution authorized the Secretary General and member states to ‘use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations’ and that anyone interfering with the distribution of relief assistance, in accordance with international law, ‘will be held individually responsible in respect of such acts’. This was the first time that the Security Council had invoked its Chapter VII powers with respect to a purely internal conflict. But Operation ‘shoot-to-feed’, as it was subsequently dubbed, was a disaster. UN forces entered into an increasingly violent series of confrontations with Somali war lords and civilians. Thousands of people were arbitrarily detained, killed or injured by UN forces. In one incident US helicopters attacked a house in which a group of Somali elders had gathered, killing 73 people and in another, they fired on a crowd killing 60 civilians. In July 1993 Africa Rights published a report detailing atrocities committed 10 Review of the Efficiency of the Administrative and Financial Functioning of the United

Nations: Restructuring of the Secretariat of the Organization: Report of the Secretary General, A/48/882, of 29 September 1992. 11 Report of the Secretary-General: An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping, A/47/277–S/24111, 17 June 1992. 12 UN Security Council Resolutions 794 of 3 December 1992; and 733 of 23 January 1992.

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by UN forces, including killing of unarmed people, the bombing of a hospital, beating civilians and theft.13 MSF published a further detailed communiqué on violations of IHL by UN troops.14 Graphic photographs also subsequently emerged of UN soldiers torturing people. These included two Belgian soldiers dangling a child over an open fire and another urinating on a dead body, Canadian soldiers posing beside the battered and bloody corpse of a boy with his hands tied behind his back, and Italian soldiers torturing a Somali boy and abusing and raping a girl. Other reported violations included a child being forced to eat pork and drink salt water, and then eat his own vomit, and another boy being placed in metal containers and left in the boiling sun for days without food or water where he died.15 In October 1993 two US Black Hawk helicopters were shot down and 18 American soldiers killed. Over a thousand Somalis are thought to have died during the battle to rescue the surviving US troops. Three days later US President Bill Clinton publicly announced that all US forces would withdraw from Somalia no later than 31 March 1994. The ‘Black Hawk Down’ incident came two days before the Security Council discussed the size of the UN peacekeeping force to dispatch to Rwanda (UNAMIR) and it was scaled back as a direct result.16 It also effectively ended US participation in UN PKOs, which was to also fatally weaken the UN mission deployed to the former Yugoslavia (UNPROFOR) in the mid-1990s. The experiences of UNAMIR and UNPROFOR have been well documented elsewhere. The UN’s failure to prevent these two genocides led to the Security Council starting to use its Chapter VII powers to explicitly include POC tasks in mission mandates from 1999. When the Security Council failed to authorize a

13 African Rights, Somalia: Human Rights Abuses by the United Nations Forces, African Rights, London, 1993. 14 Médecins sans Frontières, Communication on the Violations of Humanitarian Law

in Somalia During UNSOM Operations, MSF, Paris, 23 July 1993. 15 See Village Voice, Front page cover 24 June 1997 and Village Voice, 15 July 1997; The Seattle Times, ‘U.N. Peacekeepers Accused of Atrocities’, 25 June 1997; and Daily Telegraph, ‘Belgian UN Troops Admit to ‘Roasting’ Somali Boy’, 14 June 1997. 16 Samantha Power, ‘Bystanders to Genocide: Why the United States let the Rwandan Tragedy Happen’, The Atlantic Monthly, September 2001.

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Chapter VII intervention in Kosovo, the same year, due to a threatened Russian veto, NATO simply bypassed the Council altogether and intervened unilaterally. One month before this, the UN Security Council held an open meeting on the protection of civilians in armed conflict and requested the Secretary General submit a report on how this could be improved.17 The report was published in September 1999 and, in welcoming its publication, the Security Council adopted the first in a series of resolutions on the Protection of Civilians in Armed Conflict.18 This noted, in its preamble, the ‘importance of taking measures aimed at conflict prevention and resolution’ and the ‘need to address the causes of armed conflict in a comprehensive manner in order to enhance the protection of civilians on a long-term basis, including by promoting economic growth, poverty eradication, sustainable development, national reconciliation, good governance, democracy, the rule of law and respect for and protection of human rights’. More specifically it expressed its ‘willingness to consider how peacekeeping mandates might better address the negative impact of armed conflict on civilians’ and to ensure that all UN personnel involved in peace-making, peacekeeping and peacebuilding activities received ‘appropriate training in international humanitarian, human rights and refugee law’. The following month, as previously discussed, the Security Council gave a POC mandate to UNAMSIL. The first UN missions to be given POC mandates—UNAMSIL, UNMIL, MONUSCO, UNMIS and UNOCI—were all ‘traditional’ PKOs set up to monitor the implementation of ceasefire peace agreements but with specific references to Chapter VII inserted into their POC tasks. The size of their military components was gradually increased, and successive Security Council resolutions became more detailed and ambitious in setting out their tasks. In the same year that the UN adopted its first POC resolutions it also published two reports on the failure of its missions to prevent genocide in Rwanda19 and Srebrenica.20 In August 2000 the 17 Statement by the President of the Security Council, S/PRST/1999/6, 12 February 1999. 18 UN Security Council Resolution 1265 of 17 September 1999. 19 Report of the Independent Inquiry into the Actions of the United Nations During the

1994 Genocide in Rwanda, S/1999/1257, 16 December 1999. 20 Report of the Secretary-General Pursuant to General Assembly Resolution 53/35, The Fall of Srebrenica, A/54/549, 15 November 1999.

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UN published the Report of a Panel, chaired by Lakhdar Brahimi, (the Brahimi Report ), which is widely seen as marking the start of the ‘third phase’ of UN peacekeeping.21 This noted that there ‘are hundreds of thousands of civilians in current United Nations mission areas who are exposed to potential risk of violence, and United Nations forces currently deployed could not protect more than a small fraction of them even if directed to do so’. Nevertheless, it argued that: Once deployed, United Nations peacekeepers must be able to carry out their mandate professionally and successfully … Rules of engagement should not limit contingents to stroke-for-stroke responses but should allow ripostes sufficient to silence a source of deadly fire that is directed at United Nations troops or at the people they are charged to protect.

In the light of Brahimi’s recommendations, in 2002, the UN revised its rules on the use of force to permit all missions, regardless of their mandate to use force ‘to defend any civilian person who is in need of protection’. PKOs became increasingly multi-dimensional. The Capstone Doctrine, published in 2008, for example, lists as a part of the ‘Core Business’ of UN peacekeeping the ‘[creation of] a secure and stable environment while strengthening the State’s ability to provide security, with full respect for the rule of law and human rights’. The first Secretary General’s report on POC, in 1999, included a recommendation that ‘regional or international military forces’ must be ‘prepared to take effective measures to protect civilians, which could include compelling disarmament of the combatants or armed elements’ and, as a measure of last resort, establishing ‘temporary security zones and safe corridors for the protection of civilians and the delivery of assistance’.22 The two subsequent reports on POC, published in 2001 and 2002, however, failed even to mention the POC role of internationally-mandated forces instead emphasizing the primary responsibility of governments to protect their own people, with the role of the UN limited to advocating that these fulfil their responsibilities.23 The 21 Report of the Panel on United Nations Peace Operations, A/55/305–S/2000/809, 21 August 2000. 22 Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, S/1999/957, 8 September 1999, para 35. 23 S/2001/331, 30 March 2001; and S/2002/1300, 26 November 2002.

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only ‘direct protection’ tasks envisaged for missions were coordinating and facilitating the delivery of humanitarian aid and negotiating access to vulnerable populations. Other ‘measures to enhance protection’ were included, however, such as prosecutions for violations of international criminal law, denial of amnesty for serious crimes, effective use of national criminal justice systems and the role of truth and reconciliations efforts. In 2004 the report, more assertively, stated that ‘the stronger protection focus in peacekeeping mandates has been complemented by swifter deployments of peacekeeping troops when needed to avert an immediate crisis of protection and to restore order’.24 UN peacekeeping forces in the DRC were said to be ‘holding local militias in check and maintaining the peace in a precarious situation’. In 2005 it noted that UN peacekeepers ‘can provide the necessary security environment to prevent displacement and facilitate an early return’.25 The 2007 report again referred to the UN’s DRC mission as illustrating the ‘critical role that peacekeepers can play in protecting civilians, through a concept of operations that prioritizes the provision of security by a deterrent military presence and direct involvement to prevent and end violations of human rights and humanitarian law’.26 The report also recommended the establishment of an Informal Expert Group on the Protection of Civilians to consider a wide range of protection issues, based on briefings by relevant UN agencies and departments. The group is serviced by OCHA and includes experts from Security Council members with inputs from relevant UN Secretariat departments, AFPs, HCs and NGOs. When the Security Council revised MONUC’s mandate the same year, it stated that ‘the protection of civilians must be given a priority in decisions about the use of available capacity and resources’.27 The following year POC was made MONUC’s highest priority while, in 2009, the Security Council stressed, for all missions, that ‘mandated protection activities must be given priority in decisions about the use of available capacity and resources’.28

24 S/2004/431, 28 May 2004, para 9. 25 S/2005/740, 28 November 2005, para 23. 26 S/2007/643, 28 October 2007, para 14. 27 Security Council Resolution 1794 of 21 December 2007. 28 Security Council Resolution 1894 of 11 November 2009.

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In 2009 UN DPKO and OCHA commissioned an independent review whose report marked a significant milestone in the mainstreaming of POC into peacekeeping.29 In 2010 DPKO produced its first Operational Concept on the Protection of Civilians, and this has been used as the basis for subsequent policies.30 This paper noted that the term protection was understood differently by different actors, but that for ‘the purposes of this operational concept, it is not necessary to fully reconcile these paradigms’. POC was conceived as encompassing three ‘tiers’ of activities: (i) protection through political process; (ii) protection from physical violence; and (iii) establishment of a protective environment. The tasks listed in Tiers I and III were described as ‘well-established activities in UN peacekeeping’. Activities listed in Tier II included ‘preventive measures, such as political engagement with parties to the conflict by senior mission leadership, preventive tactical deployments of the peacekeeping force in areas where civilians are potentially at risk, as well as direct use of force in situations where serious international humanitarian law and human rights violations are underway, or may occur’. It was stressed that protection of civilians from physical violence should not just been seen as a military task and that other mission components and activities contributed to this. Only when a threat of physical violence was apparent and all measures had been exhausted should the deployment ‘of police and/or direct military action … be considered as an option, such as the interposition of peacekeepers between a vulnerable population and hostile elements or the use of force as a last resort when the population is under imminent threat of physical violence’. The paper also noted that: A number of senior mission leaders, mission personnel and troop and police contributors now feel that the absence of a clear, operationallyfocused and practical concept for protection of civilians … has contributed to the disconnect between expectations and resources … a wide range of views regarding what protection of civilians means for UN peacekeeping 29 Victoria Holt and Glynn Taylor, Protecting Civilians in the Context of UN Peacekeeping Operations, DPKO and OCHA, 2009. 30 Draft Operational Concept on the Protection of Civilians in United Nations Peace-

keeping Operations, DPKO/DFS, 2010; Policy on the Protection of Civilians in United Nations Peacekeeping, DPKO/DFS, 1 April 2015; and Protection of Civilians : Implementing Guidelines for Military Components of United Nations Peacekeeping Missions, DPKO/DFS, February 2015; UN DPO, The Protection of Civilians in United Nations Peacekeeping, November 2019.

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missions has taken root. Troop and police contributors, Member States, the Security Council, bodies of the General Assembly, as well as staff within the missions, DPKO and DFS, often understand POC in ways that may contradict one another.31

I was hired by DPKO that August to design a scenario-based set of exercises as part of a pre-deployment training package for military and civilian UN personnel. We unveiled the first set of exercises at the UN regional training centre in Entebbe, Uganda, in March 2011. Our presentation coincided with the Security Council’s authorization of military action in Libya, to protect civilians, while UNOCI launched Operation Protect the Civilian Population in Côte d’Ivoire, which helped to overthrow the country’s President.32 I was then re-hired in early 2012 to design mission-specific training for MONUSCO, UNOCI, UNMISS and UNAMID. My book on UN peacekeeping and POC was largely based on those two years of work, which involved hundreds of interviews in HQ and the field, a review of the ‘grey literature’ of each mission’s reports, and direct observation of the PKOs activities on the ground.33 In 2012, I visited an IDP camp on the Côte d’Ivoire-Liberia border shortly before it was overrun by a group of nearly one thousand armed men while UN troops stationed nearby failed to protect the civilians who burned it down. I was in Goma in eastern DRC as the rebels of the M25 movement advanced on the town, taking it without a fight shortly after I had left. I was also in South Sudan’s capital Juba, a few weeks before the start of the country’s brutal civil war, which saw hundreds of thousands of civilians desperately flee to UN facilities to seek shelter from the massacres taking place outside. For obvious reasons of professional confidentiality, I am restricted from discussing any operational details, but what I saw and heard has strongly influenced the overall analysis in this chapter and is complemented by publicly available sources. In March 2014 the UN Office for Internal Oversight (OIOS) published an evaluation on the UN’s POC record. This stated that while POC mandates create a ‘legal obligation’ on missions to ‘use force, 31 Ibid. 32 UN Security Council resolutions 1973, 17 March 2011 (Libya) and 1977 of 30

March 2011 (Côte d’Ivoire). 33 Conor Foley, UN Peacekeeping Operations and the Protection of Civilians, Cambridge University Press, 2017.

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including deadly force … within their capabilities when civilians are in imminent physical danger or actually being attacked in their areas of deployment’ they routinely avoided doing so, intervening in only 20% of cases.34 Of the 507 incidents involving civilians reported in Secretary General’s reports from 2010 to 2013, only 101, or 20%, were reported to have attracted an immediate mission response. Conversely, missions did not respond to 406 (80%) of incidents where civilians were attacked. Only four missions indicated that they had ever fired a warning shot, and only three indicated that they had ever fired a shot with lethal intent. The report also noted that: ‘Interviews revealed widespread understanding in missions concerning the host Government’s primary responsibility to protect civilians, but less understanding concerning the mission’s legal obligation to act, including with force, when host Governments cannot or will not do so’. Interviewees also referred to gaps at the tactical level on the issue of how to respond to complex and ambiguous situations that might require the use of force. They included issues such as intervening in fighting between two or more armed groups when civilian casualties were likely; when armed groups were openly visible in communities, committing extortion through fear but without physical violence; when the imminence of the threat could not be evaluated; when troops were outnumbered; when reinforcements were unavailable; when it would be difficult or impossible to reach the site; or when the use of force might provoke more violence or cause more civilian casualties. Guidance, official documents, including Rules of Engagement, and training, despite considerable efforts, including scenario-based training, do not seem to adequately address such situations.35

The problem was not actually that our guidance was not sufficiently detailed, but that it was contradictory. UN police and soldiers were told that they had jus ad bellum authority to use force to implement their POC mandates, through Chapter VII, but this should be done in conformity with the three ‘core principles’ of peacekeeping: consent of the parties, impartiality and minimum use of force. For many mission personnel that

34 Evaluation of the Implementation and Results of Protection of Civilians Mandates in United Nations Peacekeeping Operations, Report of the Office of Internal Oversight Services, UN Doc A/68/787, 7 March 2014, para 55. 35 Ibid., para 52.

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I interviewed at the time, this was equivalent to fighting with one hand tied behind your back. The specific legal framework governing the use of force by a peacekeeping operation can be found in the rules of engagement and directives on the use of force of the mission’s police and military components, as well as its status of forces agreement with the host state, standing operating procedures, and Security Council mandate, which can vary between missions. TCCs are also likely to have their own ‘national caveats’ about where and when they will deploy and the specific circumstances in which they will use force. These must, however, comply with the overall framework established by international law, which will be discussed in the next chapter. Part of the sensitivity surrounding this issue is that while the mandates for peacekeeping missions continue to be written by a Security Council, dominated by the P5, most TCCs and mission-hosting states are not part of this body’s decision-making processes. The overwhelming majority of the peacekeeping soldiers are drawn from what is often referred to as the Global South. In April 2016, for example, when the total number of peacekeeping soldiers was at its highest, Ethiopia was contributing over 8,000 soldiers and police to UN PKOs, Bangladesh, India and Pakistan over 7,000 each, Rwanda over 6,000, Nepal over 5,000, Senegal and China over 3,000 each. Several others, including Uruguay, Togo, Tanzania, South Africa, Senegal, Nigeria, Niger, Morocco, Mauritania, Kenya, Jordan, Indonesia, Ghana, Egypt, Chad, Cameroon, Burundi, Burkina Faso, Benin and Brazil were all contributing over 1,000 each.36 The US, by contrast, was contributing a total of 74 soldiers and police, Canada 79, Australia 44, Russia 91, Belgium 13, Denmark 41, Germany 334, France 875, the Netherlands 512, New Zealand 11 Poland 12 and Portugal 4. Italy was the only NATO state to be contributing over 1,000 troops and police, while Spain was the next biggest contributor with 612. Britain was contributing a total of 302, slightly fewer than Ireland which was contributing 368. China was the only permanent member of the Security Council in the top ten TCCs which was actually sending its own personnel on peacekeeping missions in any significant numbers.

36 UN Peacekeeping Homepage, Police, UN Military Experts on Mission and Troops, as of 30 April 2016, https://peacekeeping.un.org/en/troop-and-police-contributors, accessed 30 December 2022.

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By 2022, with overall numbers considerably lower, Bangladesh had become the biggest TCC, with around 7,000 police and soldiers, India, Nepal and Rwanda were contributing over 5,000 each while Pakistan, Egypt, Ghana, Indonesia, Senegal and China were all contributing over 2,000. Most NATO powers were continuing to contribute roughly similar proportions to previously and the US and Canada were contributing 32 and 55 respectively.37 This meant that as the number of PKOs started to grow after 1999, and their mandates became increasingly extensive, the UN member states on the Security Council that were most centrally involved in shaping these bore the least responsibility for their physical implementation. TCC national contingents were often understandably reluctant to put their own soldiers in harm’s way as the Security Council appeared to depart from peacekeeping’s ‘core principles’ for POC purposes. It also meant that PKOs were ever more dependent on TCCs whose military forces are often less well-trained and equipped than NATO forces and where pre-deployment vetting, background checks and disciplinary and monitoring systems may often be weaker. It was against this background that a series of shocking cases of alleged SEA cases against UN mission personnel caused such reputational damage to peacekeeping. In 2017 it was reported that more than 100 UN peacekeepers had run a child sex ring in Haiti over a 10-year period and none were ever jailed.38 It was also claimed that there had been almost 2,000 allegations against UN peacekeeping personnel, in the previous 12 years. In 2016, it was claimed that soldiers in, or alongside, the mission from France, Gabon, and Burundi had sexually abused at least 130 women and children in a single province in the CAR over the previous two years.39 The Security Council voted in the same year to give the Secretary General the right to repatriate entire units if the TCC concerned failed to prosecute alleged perpetrators of sexual misconduct within six months and to ensure their replacement from troop- or police-contributing countries

37 UN Peacekeeping Homepage, Police, UN Military Experts on Mission and Troops, as

of 30 September 2022, https://peacekeeping.un.org/en/troop-and-police-contributors, accessed 22 November 2022. 38 Associated Press, ‘More than 100 UN Peacekeepers Ran a Child Sex Ring in Haiti. None Were Ever Jailed’, 12 April 2017. 39 Foreign Policy, ‘UN Sex Abuse Scandal in Central Africa Republic Hits Rock Bottom’, 8 April 2016.

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that upheld standards of conduct and discipline.40 The Secretary General also requested the resignation of the Head of MINUSCA over his negligence in dealing with SEA cases against children following the publication of a damning independent inquiry.41 A detailed breakdown of the UN’s figures shows that, contrary to commonly held perceptions, around half of the total number of complaints of SEA have been made against police and civilian UN staff, rather than its peacekeeping soldiers, which is particularly significant when their overall totals in the field are compared.42 The UN has put in place extensive provisions to prevent, monitor and take action against cases of SEA by its personnel and there is some evidence that its complaints system is becoming more effective.43 There is, however, an obvious legal problem holding the perpetrators of such abuse to account. The UN published a ‘comprehensive strategy’ to tackle SEA in 2005 (the Zeid Report ), which noted that the UN often operates ‘in areas where there was no functioning legal system or where the legal system was so devastated by a conflict that it no longer satisfied minimum international human rights standards.44 In such cases, it ‘would not be in the interests’ of the UN to waive immunity ‘because its Charter requires it to uphold, promote and respect human rights’. Handing over its own civilian or military personnel to justice systems where they might face an unfair trial would obviously violate these provisions. The UN also cannot obligate its TCCs to prosecute their own soldiers. Most military penal codes do classify most SEA acts as disciplinary offences, although some omit offences such as ‘sexual harassment’. Police and civilians, however, can only be prosecuted if their home state has 40 UN Security Council Resolution 2272 of 11 March 2016. 41 Taking Action on Sexual Exploitation and Abuse by Peacekeepers: Report of an Inde-

pendent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic, 17 December 2015. 42 Reports of the Secretary General on Preventing Sexual Exploitation and Abuse, https://www.un.org/preventing-sexual-exploitation-and-abuse/content/secretarygenerals-reports, accessed 8 November 2022. 43 Conor Foley and Sarah Blakemore, Safeguarding Children from Sexual Exploitation and Abuse in the Context of UN Peacekeeping Operations, Keeping Children Safe, 2016. 44 UN General Assembly Resolution A/59/710, 24 March 2005. See also General Assembly Resolution 59/300 on Comprehensive Review of a Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations, A/RES/59/300, 22 June 2005.

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legislation that asserts extraterritorial criminal jurisdiction for these particular actions and if sufficient evidence for a successful prosecution can be gathered. This can be a challenge, as national laws and military codes do not always fully reflect the UN’s own best practices with regard to zero tolerance of SEA. For instance, not all TCCs have the same minimum age of consent for sexual relations or the same approach to prostitution. As Ferstman has noted: Whether conduct will be subject to criminal proceedings will depend on the legal framework of the state seeking to exercise jurisdiction. The offensive conduct will therefore lead to different results, depending on local laws and how they are applied. Complicating matters further, some troop-contributing countries prosecute only if the conduct constitutes a comparable crime in the host state, thus making prosecutions contingent on the legislation of countries with fragile legal systems emerging from conflict.45

The next chapter of this book will discuss the applicable legal framework governing POC—and in particular the use of force for protective purposes—in more detail. This might seem a rather abstract way to approach the issue, but a lack of clarity about the overlapping legal obligations and immunities that surrounded the PKOs that I observed in the field raised very real practical obligations. It also highlights the ‘protection paradox’ in another form. If civilians at risk in a violent conflict are to have some expectation of rescue from the threats to which they are subject, what are the corresponding responsibilities of the UN when it is charged with providing them with protection? Who guards the guards? In 1999, the same year that the Security Council gave its first POC mandate to a PKO, the Secretary General had issued a Bulleting on the applicability of IHL. Most soldiers are trained in the jus in bello provisions of IHL and understand its basic principles such as the need to distinguish between military and civilian targets and to apply concepts such ‘reasonable precautions’ and proportionality while attacking the former in order to minimize the ‘collateral damage’ suffered by the latter. IHL also contains ‘positive obligations’ to both avoid violations of its provisions and fully investigate all alleged breaches. It does not, however, contain

45 Carla Ferstman, Special Report, Criminalizing Sexual Exploitation and Abuse by Peacekeepers, US Institute for Peace, September 2013.

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an obligation to ‘protect civilians from other actors’, although this can be found in the emerging jurisprudence of IHRL.46 There is no equivalent Secretary General’s Bulletin on the applicability of IHRL, although there are an increasing number of references to it in the more recent guidance that the UN has produced on POC. Soldiers also receive less training in IHRL’s specific provisions. For example, immediately after the storming of the IDP camp in Côte d’Ivoire that I had visited in 2012, the UN Special Rapporteur on the Human Rights of Internally Displaced Persons, Chaloka Beyani, made a visit and interviewed the UN soldiers stationed there. When he asked them why they had not used force to protect the civilians, in accordance with their mandate, they told him that the ‘rules of engagement of UN peacekeeping forces do not allow them to open fire if civilians are attacking other civilians ’.47 This claim does not appear in his official report of the incident, and the UN explicitly denied that this reflected their rules of engagement, but I heard similar statements from a number of mission personnel at the time, as will be discussed in the next chapter. In February 2016, a similar issue arose when at least 30 civilians were killed and more than 120 injured in an attack on an IDP camp in South Sudan. According to a report published by CIVIC, UNMISS troops ‘responded slowly and ineffectively throughout much of the attack’, and some did not appear to understand their legal authority to use force to protect civilians.48 Soldiers from at least one troop-contributing country asked for written confirmation from their national government to respond in this manner. The report also quoted a UNMISS military official as saying, ‘It’s very, very difficult. You have a guy who’s shooting [wearing] a football jersey. He throws his gun away, and now he’s a civilian’.49 In the CAR, in the same year, it was noted that MINUSCA had ‘adopted a robust posture’ in one incident—sending attack helicopters and reinforcements to defend a town and its civilians—but it had earlier: 46 ECtHR Mahmut Kaya v. Turkey, Appl. No. 22535/93, Judgment 28 March 2000, para 86. See also Osman v. UK , Appl. No. 23452/94, Judgment 28 October 1998, paras 115–116. 47 Inner-City News, ‘UN Peacekeepers Inaction on IDP Killings in Cote d’Ivoire Due to DPKO Rules?’, 23 October 2012. 48 CIVIC, Under Fire: The July 2016 Violence in Juba and UN Response, 2016; and CIVIC, A Refuge in Flames: The February 17–18 Violence in Malakal POC, 2016. 49 Ibid.

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failed to halt a deadly attack on a displacement site in October 2016, which left at least 37 people dead and forced thousands to seek shelter around a UN base … Peacekeepers left their posts near a hospital, which was later occupied by armed groups and the site of deadly clashes outside its gates. As civilians suffered during the height of the violence, UN peacekeepers largely stayed in their bases.50

In March 2013, in response to the M23’s capture of Goma, the UN Security Council authorized a Force Intervention Brigade to undertake military operations against armed groups in the DRC.51 This was to be the UN’s ‘first-ever “offensive” combat force, intended to carry out targeted operations to “neutralize and disarm” the notorious 23 March Movement (M23), as well as other Congolese rebels and foreign armed groups’.52 The rebellion ended that November 2013 following heavy fighting in which the Intervention Brigade provided direct support to the Congolese armed forces, using artillery and attack helicopters.53 The Intervention Brigade was created ‘on an exceptional basis and without creating a precedent or any prejudice’.54 Nevertheless, its formation was significant. When UNOCI had mounted Operation Protect the Civilian Population in March 2011, it explicitly denied that it had become a party to the armed conflict, despite using attack helicopters to destroy government weaponry.55 The UN seems, however, to have accepted that the actions of the Force Intervention Brigade may have done so in the DRC. In May 2013 Patricia O’Brien, the UN Under Secretary General for Legal Affairs, stated that: ‘By virtue of the tasks foreseen for the Intervention Brigade, it would appear that MONUSCO may end up becoming a party to armed hostilities in the DRC, thus triggering the application

50 CIVIC, The Primacy of Protection: Delivering on the MINUSCA Mandate in the

Central African Republic, 2017. 51 UN Security Council Resolution 2098, 28 March 2013. 52 ‘UN News, ‘United Nations, ‘Intervention Brigade’ Authorized as Security Council

Grants Mandate Renewal for United Nations Mission in Democratic Republic of Congo’, 28 March 2013. 53 Reuters, ‘U.N. Helicopters Strike Rebel Posts in Congo’, 18 November 2012. 54 Security Council Resolution 2147, of 28 March 2014. 55 Secretary-General Statement, Expressing Concern Over Violence in Côte d’Ivoire, Informing That the United Nations Has Undertaken Military Operation to Prevent Heavy Weapons Use Against Civilians, Office of the Secretary General, 4 April 2011.

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of international humanitarian law.56 Lieutenant General Babacar Gaye, when he was the UN Military Adviser for Peacekeeping Operations similarly noted that: ‘When we are asked to provide the Congolese army with support in disarming armed groups, some consider that we become parties to the conflict. But at some stage, it becomes necessary to be a party to the conflict in order to resolve it’.57 In October 2014 Lieutenant General Dos Santos Cruz, MONUSCO’s Force Commander, made a forthright defence of this position stating that: The United Nations should not wait for armed groups to come and terrorize communities; it should not give them freedom of movement … Conceptually, troops remain mindful of the United Nations principles of peacekeeping, namely, the consent of the parties, impartiality and the non-use of force except in self-defence and defence of the mandate. Those principles may not always apply against armed criminal groups in contemporary missions. Their application could be reviewed and adjusted to contemporary threats and to the context of violence that innocent civilians and peacekeeping personnel face in conflict areas … The assumption that military action may create collateral damage should not prevent us from taking the necessary action. On the contrary, there are many examples that prove that action against armed groups brings huge benefits to the population.58

O’Brien noted that MONUSCO could lose its protected status under the Convention on the Safety of United Nations and Associated Personnel by becoming a party to the conflict and this loss of legal protection appears to have also been implicitly recognized by the Security Council when, in condemning the killing of a MONUSCO peacekeeping soldier in August 2013, it noted that ‘intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations,

56 Patricia O’Brien, Statement by the Under-Secretary-General for Legal Affairs and UN Legal Counsel Delivered to the International Law Commission, Geneva, 23 May 2013, p. 18. 57 ‘Interview with Lieutenant General Babacar Gaye United Nations Military Adviser for Peacekeeping Operations’, International Review of the Red Cross, Vol. 95, No. 891/892, Autumn/Winter 2013, p. 490. 58 UN Security Council debate on UN Peacekeeping Operations, S/PV.727, 9 October 2014, pp. 2–3.

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as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict, constitutes a crime under international law’.59 The OIOS Protection Evaluation of 2014 welcomed the formation of the Intervention Brigade and the inclusion of the words ‘targeted offensive operations’ in the mandate, which it stated marks ‘a decisive change from the past’ in relation to the use of force.60 The following year, however, the UN High Level Panel on Peace Operations (HIPPO) argued that UN peacekeeping missions are not suited to engage in military counter-terrorism operations, due to their composition and character, and urged the Security Council to exercise ‘extreme caution’ before giving missions such mandates’.61 It emphasized that lasting peace is ‘achieved not through military and technical engagements, but through political solutions. Political solutions should always guide the design and deployment of United Nations peace operations’. Sheeran and Case have warned that the formation of the Intervention Brigade ‘reflects UN forces moving toward a more traditional warfighting, rather than peacekeeping, posture’, with significant implications for the legal protection and obligations of peacekeepers.62 Others have noted that on purely pragmatic grounds, the UN should not relinquish ‘any pretence of neutrality or impartiality’, when it ‘lacks the requisite resources and structures to play a comprehensive or clearly strategic stabilisation role’.63 Jackson notes that peacekeeping missions are ‘fundamentally ill-suited to the enforcement-type tasks being asked of them’ as they are almost always under-funded, under-equipped and reliant on troops who are under-trained.64 The establishment of the Intervention 59 UN News Centre, ‘Security Council Press Statement on Democratic Republic of Congo’, 29 August 2013. 60 OIOS, Evaluation of the Implementation and Results of Protection of Civilians Mandates in United Nations Peacekeeping Operations, Report of the Office of Internal Oversight Services, UN Doc A/68/787, 7 March 2014, para 28. 61 Report of the High-Level Independent Panel on Peace Operations, A/70/95– S/2015/446, June 2015. 62 Scott Sheeran and Stephanie Case, The Intervention Brigade: Legal Issues for the UN

in the Democratic Republic of the Congo, International Peace Institute, November 2014. 63 Sarah Collinson, Samir Elhawary and Robert Muggah, ‘States of Fragility: Stabilization and Its Implications for Humanitarian Action’, Disasters, Vol. 34, Suppl. 3, October 2010, p. 290. 64 James Sloan, The Militarisation of Peacekeeping in the Twenty-First Century, Hart Publishing, 2011.

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Brigade was ‘met with outcry from many aid agencies and human rights groups over concerns that it would ultimately result in greater harm to civilians and questions around accountability’.65 Mackintosh observed that as MONUSCO increasingly appeared to be becoming a party to the conflict, humanitarian NGOs in the DRC ‘started to paint their cars different colours: yellow, pink, anything’ to distinguish themselves from UN vehicles.66 Nevertheless, this more ‘militarized’ approach to POC is clearly a potential model for future PKOs. In April 2013, a few weeks after the creation of the Intervention Brigade, the Security Council created MINUSMA with ‘robust rules of engagement’ to operate alongside French forces in implementing a POC mandate as well as the ‘extension of state authority’ in Mali.67 In April 2014, it mandated the deployment of MINUSCA, which was also deployed alongside French combat forces in the Central Africa Republic (CAR).68 In July 2015 MINUSTAH deployed a ‘departmental brigade for operations and intervention’ in one the most violent neighbourhoods in Port-au-Prince, the capital city of Haiti.69 As discussed in the introduction, MINUSCA and MINUSMA were the UN’s last two PKOs with to be created and, since then, the trend has been to downsize and transition out of such operations. International troops backed by UN Security Council Chapter VII mandates have also failed to quell insurgencies in Afghanistan, Somalia, Libya and Iraq in recent years. The HIPPO report of 2015 stated that there was a growing expectation on UN missions to protect civilians, but that while these ‘have at times responded with conviction to prevent such threats from materializing or worsening, and to provide safety to civilians, at other times, they have failed to show sufficient resolve and action’.70 This may also reflect a 65 Ashley Jackson, Protecting Civilians: The Gap Between Norms and Practice, Humanitarian Policy Group, Policy Brief 56, Overseas Development Institute, April 2014. 66 Kate Mackintosh, ‘Beyond the Red Cross: The Protection of Independent Humanitarian Organisations’, in Hans-Joachim Heintz and Andrej Zwitter (eds), International Law and Humanitarian Assistance, Springer, 2011, p. 46. 67 Security Council Resolution 2100 of 25 April 2013. 68 Security Council Resolution 2149 of 10 April 2014. 69 Report of the Secretary-General on the United Nations Stabilization Mission in Haiti,

S/2015/667, 31 August 2015. 70 Report of the High-Level Panel on Peace Operations, 2015.

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dichotomous approach to the use of force for POC purposes: that PKOs must either maintain the traditional ‘core principles’ of peacekeeping or become a party to the conflict that they were sent to help resolve in order to protect those that they were sent to help.

CHAPTER 4

Understanding the Applicable Legal Framework

Abstract Debates continue about the UN’s own ‘protection obligations’ under international law and how it can be held to account when it fails to fulfil its protection responsibilities. In 2013, the UN launched two landmark initiatives—Human Rights Up Front (HRUF) and Human Rights Due Diligence Policy (HRDDP). Both policies arose directly out of challenges that had faced the UN’s field presences (FPs), in 2009, during the conflicts in Sri Lanka and the Democratic Republic of Congo (DRC), respectively. HRUF and HRDDP stress the centrality of human rights to the UN’s work and the obligations that IHRL and IHL place on the Organization. They also show the need for it to take positive action to protect, promote and fulfil the rights encapsulated. The practicalities of this have become increasingly demanding as the complexity of UN PKOs has increased. This chapter will prove an overview of the legal framework and particular issues arising from these debates. Keywords UN Charter · IHL · IHRL · MONUSCO · HRDDP · HRUF · UNMISS

In December 2009, the New York Times carried an article stating that UN officials had been ‘explicitly warned months ago by their legal advisers not to participate in combat operations with the Congolese Army if © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Foley, The Protection Paradox, Human Rights Interventions, https://doi.org/10.1007/978-3-031-27427-5_4

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there were a risk that Congolese soldiers might abuse human rights … But the mission went forward and the abuses took place as feared.’1 It noted that ‘Congolese government soldiers, who had been supplied with ammunition and food by United Nations peacekeepers, killed hundreds of civilians, gang-raped girls and even cut the heads off some young men’. It also revealed that DPKO had sought this legal advice due to ‘the level of internal debate and discomfort about working hand in hand with the Congolese Army, which over the years has been widely blamed for looting, raping and killing the very population it is responsible for protecting.’ MONUSCO (previously named MONUC) was originally established in August 1999 as a small, unarmed, observer force to monitor a ceasefire signed between the Government of DRC, one rebel group and five regional States in Lusaka, Zambia.2 Widespread fighting continued and, in February 2000, the Security Council increased the mission’s strength and gave it a POC mandate using language similar to that agreed for UNAMSIL the previous October.3 MONUC initially took a very cautious approach to this mandate. Mission reports emphasized that its tasks were mainly focused on monitoring and investigating ceasefire violations and encouraging disarmament, demobilization, repatriation, resettlement and reintegration (DDRRR).4 It was emphasized that while UN forces could guard UN facilities, they would ‘not be able to extract’ UN personnel, ‘or accompany humanitarian convoys’, nor ‘extend protection to the local population’.5 UN troops failed to protect civilians during massacres in 2002 and 2003. After once incident, an internal report by MONUC’s first Force Commander stated bluntly that:

1 New York Times , ‘U.N. Told Not to Join Congo Army in Operation’, 9 December 2009. 2 Security Council Resolution 1258 of 6 August 1999. 3 UN Security Council Resolution 1291 of 24 February 2000. 4 Ninth Report of the Secretary-General on the United Nations Organization Mission in

the Democratic Republic of the Congo, S/2001/970 of 16 October 2001. UN Security Council Resolution 1376 of 9 November 2001 approved the new CONOPS and force structure. 5 Sixth Report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, S/2001/128 of 12 February 2001, para 77.

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Faced with the band of killers who were sowing death and devastation in town, [the contingent] refused to react by opening fire after proper challenge and in accordance with the mandate to protect the population and in accordance with quite unambiguous rules of engagement. Instead, they persisted in only firing into the air, declaring that they could only act under Chapter VII and engage in combat with prior authority of [their parliament].6

The mission’s strength was gradually increased, reaching 17,000 troops by 2007. The language of its mandates toughened, and this was reflected in more robust concepts of operation (CONOPS) and rules of engagement (RoE). The UN formed Brigades in the provinces of Ituri and the Kivus which undertook more aggressive action against militia and rebel groups. A CONOPS issued in 2005, however, stated that: ‘While MONUC can use force to protect civilians, and, in this connection, will do so against the foreign armed groups, the very nature of peacekeeping prohibits peacekeepers from engaging in targeted warfare.’7 MONUC also had one of the earliest PKO human rights field sections, which started deploying multi-disciplinary monitoring and investigation teams alongside the mission’s military component and provided capacitybuilding support for the justice sector in Ituri. In 2008 this was merged with the OHCHR Country Office to form the Joint Human Rights Office (JHRO), an integrated part of the mission, with a dual reporting line to OHCHR in Geneva. It continued to be closely involved in developing the mission’s POC strategy including innovations, such as the deployment of Joint Protection Teams (JPTs) where specialist civilian staff are deployed to the field for extended periods, to interview vulnerable groups and investigate particular allegations. The JHRO produced regular reports detailing human rights violations carried out by rebel groups but also those committed by the Congolese armed forces (FARDC) and police.8 It reportedly submitted a list of FARDC commanders accused of committing violations to MONUC’s leadership in 2008 and asked that they be 6 End of Tour Report, 31 December 2003, pp. 8–10, cited in Victoria Holt and Glynn

Taylor, Protecting Civilians in the Context of UN Peacekeeping Operations, DPKO and OCHA, 2009, pp. 251–252. 7 Military Concept of Operations for MONUC, 2005, Annex C, p. 14. 8 UN Joint Human Rights Office, Consolidated Investigation Report on Goma and

Kanyabayonga, 2009; and UN Joint Human Rights Office, Consolidated Investigation Report on Kiwanja, North Kivu, 2009.

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removed. It then briefed the UN Human Rights Council’s treaty and non-treaty mechanisms and raised concerns with the UN Office for Legal Affairs.9 In May and July 2009, the FARDC launched an operation, entitled Kimia II, against a ‘Hutu Power’ Rwanda militia. MONUC assisted through ‘planning’ and ‘logistical support, including tactical helicopter lift, medical evacuation, fuel and rations’ as well as ‘providing fire support to FARDC operations when deemed essential by MONUC commanders.’ The mission report acknowledged that: Despite the enhanced and innovative measures taken by MONUC to protect civilians, the operations also took a heavy toll on civilians, who were displaced and subjected to reprisal attacks by retreating armed groups. Furthermore, the actions of undisciplined and recently integrated FARDC elements seeking to settle old ethnic scores resulted in serious violations of international humanitarian law, including killings of civilians.10

A Human Rights Watch (HRW) report estimated that more than 1,400 civilians had been killed in the operations that took place around this time: half by rebels and half by the Congolese and Rwandan armed forces and allied militia.11 Around 7,500 women were raped, and 900,000 people forced to flee their homes. The MONUC mission report acknowledged: ‘international non-governmental organizations reported alleged or confirmed massacres and gross human rights violations committed by elements of FARDC against civilian populations … some components of the United Nations system called for an immediate end to Kimia II and for the withdrawal of MONUC support for FARDC.’ In October 2009 the UN Special Rapporteur on Extrajudicial Executions described the results of the Kimia II operation as ‘a disaster’.12 He 9 Gisela Hirschmann, ‘Cooperating with Evil? Accountability in Peace Operations and the Evolution of the United Nations Human Rights Due Diligence Policy’, Cooperation and Conflict, SAGE Journals, 15 February 2019. 10 Thirtieth Report of the Secretary-General on the United Nations Organization Mission

in the Democratic Republic of the Congo, S/2009/623, 4 December 2009. 11 Human Rights Watch, ‘You Will Be Punished’: Attacks on Civilians in Eastern Congo, HRW, December 2009. 12 Press Statement by Professor Philip Alston, UN Special Rapporteur on Extrajudicial Executions. Mission to the Democratic Republic of the Congo, 5–15 October 2009, 15 October 2009.

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said that in many areas the FARDC ‘posed the greatest direct risk to security’ for Congolese civilians. It was in this context that the UN’s Legal Counsel was asked to produce the internal memorandum that was leaked to the New York Times . This stated that if the mission had reason to believe that the Congolese armed forces were committing violations of IHL, IHRL or refugee law: MONUC may not lawfully continue to support that operation, but must cease its participation in it completely … MONUC may not lawfully provide logistic or ‘service’ support to any FARDC operation if it has reason to believe that the FARDC units involved are violating any of those bodies of law … This follows directly from the Organization’s obligations under customary international law and from the Charter to uphold, promote and encourage respect for human rights, international humanitarian law and refugee law.13

The fall-out from the Kimia II operation came at the same time that the UN was coming to terms with its failures during the massacres in Sri Lanka in the same year. The result was two new initiatives Human Rights Up Front (HRUF) and the Human Rights Due Diligence Policy (HRDDP), both of which were formally endorsed by the UN in 2013. The HRDDP stipulates that all UN entities, including PKOs, must provide support to non-UN security forces in a way that is ‘consistent with the Organization’s … obligations under international law to respect, promote and encourage respect for international humanitarian, human rights and refugee law,’ with a view to bringing violations by non-UN security forces to an end.14 HRUF states that ‘human rights and the protection of civilians’ should be seen as a ‘system-wide core responsibility’ and that the UN should ‘take a principled stance’ and ‘act with moral courage to prevent serious and large-scale violations.’15

13 Confidential note, leaked by the New York Times , from the UN Office of Legal Affairs to Mr. Le Roy, Head of the Department of Peacekeeping Operations, 1 April 2009, para 10. 14 United Nations Secretary-General, Human Rights Due Diligence Policy on United Nations Support to Non-United Nations Security Forces, A/67/775, S/2013/110, 5 March 2013. 15 Human Rights Up Front , http://www.un.org/sg/rightsupfront/, accessed 30 July 2015.

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The HRDDP requires UN missions to carry out early risk assessments when considering whether to give support to or undertake joint operations with national forces and to monitor the compliance of these forces with IHL and IHRL, and actively intervene to draw attention to violations.16 Its most immediate impact was that MONUC suspended all support to the FARDC Brigades who had been implicated in the violations reported by the JHRO.17 Since then, language referring to HRDDP has been explicitly included in the mandates of UNMISS, MINUSCA, UNAMID, MINUSMA and MONUSCO, as well as the missions in Somalia (UNSOM) and Libya (UNSMIL). The policy has also led to the establishment of screening and selection processes and background checks of units or individuals taking part in operations. It has been used to ensure that all those receiving UN support receive adequate training and mentoring on IHRL and IHL. In 2014 UNSOM objected to the nomination of a new national Police Commissioner by the Government of Somalia after reports that he had previously been involved in acts of torture. In 2015 the government of the DRC suspended joint military operations with MONUSCO for a year after it withdrew support to forces under the command of two new generals in light of their human rights records. In June 2017, the UNSMIL suspended its contribution to trainings of the Libyan Naval Coastguard after concerns from the UN Committee against Torture about their treatment of migrants and refugees. In other missions, including Guinea, Guinea Bissau, Mali and CAR, the HRDDP has led the UN to call for the investigation, dismissal and prosecution of serving national police officers and soldiers.18 The initial impact of the HRUF was less noticeable. At its launch, UN Deputy Secretary-General Jan Eliasson stated that it was designed not only to prevent the UN from repeating its failures in Sri Lanka but also to continue ‘the learning process’ that began in the wake of the genocides in Rwanda and Bosnia-Herzegovina where the UN failed to protect

16 A/67/775, S/2013/110, 2013, para 2. 17 Hirschmann, 2019. 18 Human Rights Due Diligence Policy on UN Support to Non-UN Security Forces (HRDDP), 2018 Review of Implementation, Report of the Co-Chairs of the HRDDP Review Group, ST/SGB/2007/6.

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civilian populations.19 In 2015 a whole of system review of protection in humanitarian action noted that HRUF was still ‘widely seen as a UN headquarters agenda’ with ‘little knowledge or buy-in to it in the field.’20 The adoption of HRUF and HRDDP nevertheless, signified an increasing mainstreaming of human rights concepts into the work of the UN as it started to conceptualize its POC responsibilities within this framework. In June 2014, for example, the new ICC Prosecutor, Fatou Bensouda, expressed her concern that UNAMID’s reports ‘had been subject to manipulation, with the intentional effect of covering up crimes committed against civilians and peacekeepers’.21 A subsequent UN investigations into the allegations found no evidence of intentional cover-ups but stated that the mission did not always provide its own headquarters with full reports on the circumstances surrounding incidents and was ‘dysfunctional and deeply divided’ about what to publicly report.22 It noted that initial reports from the field identifying attackers as suspected government or pro-government forces were often changed at some point in the official reporting chain to ‘unidentified assailants’. UN Secretary-General Ban Ki-moon said that ‘the lapses in the reporting standards’ were ‘very troubling.’ He stated that: ‘Ensuring that the United Nations speaks out consistently against abuses and identifies the perpetrators is a key goal of my Human Rights Up Front initiative. I therefore intend to ensure that all missions are provided with additional guidance on the fulfilment of their reporting obligations, particularly with regard to human rights and the protection of civilians.’23 The Secretary General’s 2018 Action for Peacekeeping (A4P) initiative and his 2018 report on Peacebuilding and Sustaining Peace both contain numerous references to IHRL in the context of peacekeeping

19 UN News, ‘Deputy Secretary-General’s Remarks at Briefing of the General Assembly on Rights Up Front’, 17 December 2013. 20 Norah Niland, Riccardo Polastro, Antonio Donini, and Amra Lee, “Independent Whole of System Review of Protection in the Context of Humanitarian Action,” Norwegian Refugee Council, May 2015. 21 UN News Centre, ‘Justice for Darfur’s Victims Mired in Political Expediency—ICC Prosecutor’, 17 June 2014. 22 Letter Dated 29 October 2014 from the Secretary-General Addressed to the President of the Security Council. Annex ‘Executive Summary of the Report of the Review Team on Allegations of Manipulation of Reporting on Darfur’. S/2014/771, 29 October 2014. 23 Ibid.

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and POC.24 In 2020 the Secretary General launched a Call to Action for Human Rights with a commitment to develop an ‘Agenda for Protection’ which stated that all UN field presences should be ‘informed by a human rights risk and opportunity analysis.’25 When the UN Security Council endorsed HRUF it noted that serious human rights abuses are not only a consequence of conflict but ‘can be an early indication of a descent into conflict or escalation of violence’ and that the domestic implementation of human rights obligations can ‘contribute to timely prevention of conflicts.’26 While such statements might seem unexceptional they indicate a considerable shift in how some perceive the role of IHRL in peacekeeping. In a CIVIC report, published in 2020, on MONUSCO’s integration of HRDDP into its own mission strategy, for example, it was stated that: Perceptions that MONUSCO is withholding support to the FARDC because of human rights considerations —whether valid or not—may also provoke anti-Mission sentiment among civilians. Several civilians interviewed for this brief interpreted a lack of visible coordination between MONUSCO and FARDC operations as stemming from the Mission’s unwillingness to protect communities under threat … One civilian in the area told CIVIC that cooperation between the FARDC and the Mission would only be good if MONUSCO’s Force Intervention Brigade (FIB) “was able to put aside its human rights and neutralize all threats.” Another civilian in the region lamented, “MONUSCO is good in observation but not in action. They are trying more to record abuses committed by the FARDC instead of supporting them to fight the enemies of peace.”27 [emphasis added]

24 Secretary-General’s Remarks to Security Council High-Level Debate on Collective Action to Improve UN Peacekeeping Operations’, 28 March 2018; General Assembly and Security Council, “Peacebuilding and Sustaining Peace—Report of the Secretary-General,” A/72/707–S/2018/43, 18 January 2018, para 21. 25 UN Secretary-General, The Highest Aspiration: A Call to Action for Human Rights, 2020. 26 UN Security Council Resolution 2171, 21 August 2014. 27 CIVIC, Policy Brief, Enabling Support by Mitigating Risk, MONUSCO’s Implemen-

tation of the Human Rights Due Diligence Policy in the Democratic Republic of the Congo, June 2020.

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As previously discussed, POC was initially mainly seen as a military task. UN PKOs had Chapter VII authority from the Security Council to use force inside the territory of other states for protective purposes— which provided them with the jus ad bellum authorization—while the particular rules regulating this force could be found in the jus in bello provisions of IHL. This is increasingly seen as inadequate and it is now widely accepted that where force is used by UN peacekeepers, even when directly involved in armed conflict, IHL must be applied concurrently with the more restrictive provisions of IHRL. While many violations of IHL are also violations of IHRL, the two legal frameworks take an entirely different approach to the use of force and also treat concepts such as necessity and proportionality very differently. IHRL applies to all human beings at all times in all places within a state’s jurisdiction.28 It imposes both ‘negative’ and ‘positive’ obligations. A ‘negative’ obligation is a duty to ‘respect’, or not to directly violate, a particular right. A ‘positive’ obligation is a duty to ‘ensure’ its protection.29 During a ‘public emergency which threatens the life of the nation’, it is possible for states to derogate from certain rights, but each derogation, for each right, must be justified by the extent that is strictly required by the exigencies of the situation. Some rights are considered so fundamental that they are non-derogable. These include protections against torture, the right to life, the right not to be held in slavery, freedom of conscience and the right to non-discrimination. Other rights have a potentially non-derogable core.For example, while the right to liberty is potentially derogable, the right to challenge the lawfulness of a detention may be non-derogable.30 IHL prohibits attacks on civilians and civilian objects but permits combatants in an international armed conflict to directly engage in hostilities without this being considered a criminal act. It also permits troops to launch a surprise attack on an enemy military base and ‘military targets,’

28 Report of the Secretary-General on Respect for Human Rights in Armed Conflicts, 25, UN Doc. A/8052 (1970); ‘Vienna Declaration and Programme of Action’, World Conference on Human Rights, Vienna, 14-25 June 1993. 29 Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law, Oxford: Oxford University Press, December 2013. 30 ECtHR Aksoy v. Turkey, Appl. No. 21987/93, Judgment 18 December 1996; Brogan and others v. UK , Appl. No. 11209/84, Judgment 29 November 1988; and Brannigan and MacBride v. UK, Appl. No. 14553-4/89, Judgment 24 May 1993.

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even if this involves ‘collateral damage’ to civilians and civilian objects (subject to the necessary precautions and proportional to the military benefit). During a situation of armed conflict, a soldier may also shoot an enemy soldier, so long they are not hors de combat , even if he or she is unarmed and does not pose an ‘immediate threat.’31 IHRL permits authorized security force personnel to use lethal force, but only as a last resort, when strictly necessary, and for specified purposes, usually in the context of law enforcement operations. IHRL does not distinguish between ‘civilians’ and ‘combatants,’ and the proportionality and precautionary principles apply to the target of the use of force as well as to any other victims. Therefore, warnings should be given before lethal force is used to allow the subject an opportunity to surrender. There is no equivalent to the IHL concept of ‘collateral damage’ in IHRL. IHRL also imposes positive obligations on the appropriate authorities to prevent, investigate and punish grave rights violations and to provide redress to those who have suffered, even if the violations are carried out by private persons or entities.32 Thus, the lack of an effective investigation could itself be a violation of the right to life and the right to be free from ill-treatment.33 Similarly, while IHRL requires an effective investigation into the circumstances surrounding the use of lethal force in all cases, IHL only requires investigations of potential war crimes. IHL does require ‘immediate’ investigations into the death of prisoners and internees but offers little detail about the nature of these investigations (which can be found in IHRL). Unlike IHRL, IHL also does not expressly provide victims the right to an effective remedy. Nor does it contain ‘positive obligations’ on states to protect the rights to life and physical integrity of people within their jurisdiction. The soldiers who failed to defend the

31 Noam Lubell, Extraterritorial Use of Force Against Non-state Actors, Oxford University Press, 2010, p. 7. 32 Finucane v. UK , Appl. No. 29178/95, ECHR, 2003; Osmano˘glu v. Turkey, Appl. No. 488804/99, ECHR, 2008; and Koku v. Turkey, ECHR, 2005. See also: VelásquezRodríguez v. Honduras , Inter-American Court of Human Rights, 1988. 33 Kelly and Others v. UK , Appl. No. 30054/96, ECHR, 2001; Ö˘gur v. Turkey, Appl.

No. 21594/93, ECHR, 1999; Seidova and Others v. Bulgaria, Appl. No. 310/04, ECHR, 2010; Kaya v. Turkey, Appl. No. 158/1996/777/978, ECHR, 1998; Salman v. Turkey, Appl. No. 21986/93, ECHR, 2000; Tanrıkulu v. Turkey, Appl. No. 23763/94, ECHR, 1999; Ya¸sa v. Turkey, Appl. No. 22495/93, ECHR, 1998; Çakıcı v. Turkey, Appl. No. 23657/94, ECHR, 1999.

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IDP camp attacked in Côte d’Ivoire which I visited in 2012 were probably reflecting their training in IHL when they stressed its emphasis on distinction, rather than the ‘protective responsibilities’ of IHRL. In its Advisory Opinion on Legality or Threat of Use of Nuclear Weapons , in 1996, the ICJ observed that the protection of IHRL ‘does not cease in times of war’, and remains applicable, subject to any derogations that States may make.34 A series of subsequent cases have attempted to define the extent to which IHRL can be applied extraterritorially and concurrently with the provisions of IHL in international jurisprudence.35 In Bankovic, the European Court found that IHRL’s jurisdiction was ‘primarily territorial’ and highlighted the difficulties of applying its ‘positive obligations’ on an extraterritorial basis.36 In Al-Skeini v. UK , however, it stated that, ‘in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction’.37 As one legal scholar has noted after ‘years of ebbs and flows’, the most recent jurisprudence makes clear that IHRL ‘will indeed apply to the actions of a States’ armed forces in situations of extraterritorial military action either where a State exercises effective control over a particular area, or where State agents in fact exercise control over an individual.’ The question is not ‘whether the ECHR applies to extraterritorial military action’, but ‘how it should apply’.38

34 ICJ Reports, 8 July 1996, para 25. See also The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (the Wall ), ICJ Reports, 9 July 2004; and Armed activity on the territory of the Congo, ICJ Reports, 19 December 2005. 35 Inter-Am Com HR, Abella v. Argentina, Case 11.137, Report No. 55/97, OEA/Ser.L./V/II.9, doc. 6 rev. P 161 (1998); Inter-Am CtHR: Bámaca-Velásquez v Guatemala (2000), Series C No. 70 [Merits]; ECtHR Loizidou v. Turkey, Appl. No. 15318/89, Merits, 18 December 1996; Hassan v. UK , Appl. No. 29750/09, Judgment (Grand Chamber), 16 September 2014. 36 Bankovic v. Belgium and 16 Other Contracting States , Appl. No. 52207/99, (Grand

Chamber) Decision on Admissibility, 19 December 2001, paras 35–37 and 43–57. 37 Al-Skeini and Others v. UK, Appl. No. 55721/07, Judgment (Grand Chamber) 7 July 2011, para 136. 38 Silvia Borelli, ‘Jaloud v Netherlands and Hassan v United Kingdom: Time for a Principled Approach in the Application of the ECHR to Military Action Abroad’, Questions of International Law, QIL-QDI, Zoom-In, 12 May 2015, p. 26.

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The provisions of IHL are only relevant to situations of armed conflict since in all other situations, the conduct of the security forces is exclusively governed by the rules of IHRL. Once a conflict has started, IHL continues to apply beyond the cessation of hostilities until a general conclusion of peace has been reached or, in the case of a non-international armed conflict, until a peaceful settlement has been achieved. Most peacekeeping operations are deployed in the context of armed conflicts following ceasefire agreements, though there have been some situations where the mission has become a party to an ongoing conflict and others where there was no armed conflict at the time of deployment. Clearly, if UN forces do become a party to a conflict, they are subject to the Secretary General’s bulletin on the applicability of IHL. However, its qualification that IHL applies only ‘to the extent and for the duration of their engagement,’ seems to indicate that UN peacekeeping soldiers are otherwise entitled to the protection that IHL gives to civilians who are not directly participating in hostilities. Intentionally attacking peacekeepers or humanitarian aid workers is listed as a war crime under the statute of the ICC.39 There is no equivalent Secretary General’s Bulletin on IHRL although, as already discussed, references to it are becoming increasingly frequent in debates about POC. Most of these, however, are comparatively recent. When I was working in the field as a consultant for DPKO, in 2012, our basic understanding of the legal framework governing the use of force was that while Chapter VII provided UN soldiers with the jus ad bellum to use military force for POC purposes, the rules regarding how they used it would be drawn from the jus in bello provisions of IHL. The UN Infantry Battalion of 2012, for example, authorized peacekeeping soldiers to use lethal force ‘in any circumstance in which they believe that a threat of violence against civilians exists’ [emphasis added] and a threat is considered ‘imminent’ from ‘the time it is identified as a threat, until such a time the mission can determine that the threat no longer exists.’40 It does not take much legal training to spot that this gives very extensive discretionary authority to UN soldiers charged with making life and death decisions in particular situations. My own introduction to IHRL

39 Rome Statute of the International Criminal Court, 17 July 1998, Article 8, sect. iii. 40 United Nations Infantry Battalion Manual Volume I , Department of Peacekeeping

Operations/Department of Field Support, August 2012, para 6.4.3.

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had largely arisen out of challenges to the alleged shoot-kill-operations carried out by the security forces in Northern Ireland.41 It seemed to us, at the time, that British soldiers and police were using something akin to an IHL concept of ‘legitimate targets,’ when shooting suspected IRA volunteers, even if they did not pose an immediate threat at that particular moment or there were less lethal alternatives available. That this was not permitted under the more stringent requirements of IHRL was subsequently proved at a series of cases in front of the European Court of Human Rights, which found violations related to these operations.42 I could also understand, though, why my UN colleagues were trying to encourage a more ‘robust’ approach to POC on the ground, given the risk-averse attitudes of many PKOs and it was not difficult to see why my arguments about IHRL’s applicability were not particularly well received. There are also two practical problems in attempting to apply IHRL provisions to the ‘protection provisions’ of UN POC operations. First of all, the UN is not a state. It is not a party to any treaties of IHRL or IHL. The UN Charter specifies that its provisions take precedence over all other international treaties. There is no mechanism to judicially review the Security Council’s actions and the legal immunities that cover UN missions, makes it extremely difficult to scrutinize their records for compliance. Individual states may, however, in certain circumstances, be challenged for their own actions implementing Security Council resolutions and this has led to controversy over whether these acts should be attributable to the implementing state or the UN. Secondly, human rights are often declared to be ‘universal, indivisible and interdependent and interrelated’.43 There are a number of both civil and political rights and economic, social and cultural rights that will be of obvious relevance during the type of humanitarian crises in which UN PKOs often operate. This poses the question as to whether the UN should consider itself responsible for protecting the full spectrum of all the rights and freedoms contained in the corpus of IHRL, or if a narrower set of ‘core’ 41 Independent, Conor Foley, ‘They Thought I Was an IRA Bomber’, 28 September

1996. 42 ECtHR, McCann and others v. UK , Appl. No. 18984/91, (Grand Chamber) Judgment of 5 September 1995; Kelly and Others v. UK , Appl. No. 30054/96, Judgment 4 May 2001; Finucane v UK , Appl. No. 29178/95, Judgment, 1 July 2003. 43 Vienna Declaration and Programme of Action, Adopted by the World Conference on Human Rights in Vienna on 25 June 1993.

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obligations can be derived from the ‘purposes, functions and practices’ of a particular PKO with a POC mandate and an assessment of its ‘effective control’ in a particular situation. As discussed in Chapter 2 of this book, the European Court of Human Rights declined to hear a case related to the allegedly illegal detention by KFOR of an alleged KLA activist.44 In the same hearing it also dismissed a complaint related to the death of a young Kosovan boy, allegedly due to the negligence of KFOR soldiers in failing to clear or mark unexploded ordinance left over from NATO’s air strikes in 1999. The Court declared that because UNMIK and KFOR had been created by the UN Security Council under its Chapter VII power its actions could not be judicially reviewed. This decision was controversial, particularly since the NATO forces that had initially launched military action in Kosovo without UN authorization, were essentially ‘blue hatted’ by the Security Council and remained under NATO’s operational command.45 The Court also noted that: ‘the primary objective of the UN is the maintenance of international peace and security. While it is equally clear that ensuring respect for human rights represents an important contribution to achieving international peace … the [European] Convention cannot be interpreted in a manner which would subject the acts and omissions… to the scrutiny of the Court.’46 In the case of Al-Jedda v. UK , however, an Iraqi with dual British citizenship who was detained without trial in Baghdad for several years, the European Court took quite a different approach.47 The British government accepted that the applicant’s detention in a British facility brought him within the extraterritorial jurisdiction of the European Convention, but in the light of Al-Skeini, it argued that his detention was authorized by the Chapter VII Security Council resolutions, which set out the mandate of the UN Assistance Mission for Iraq (UNAMI).48 The 44 Saramati v. France, Germany and Norway, Appl. No. 78166/01, (Grand Chamber) Decision on Admissibility, 2 May 2007. 45 Kjetil Mujezinovic Larsen, The Human Rights Treaty Obligations of Peacekeepers, Cambridge Studies in International and Comparative Law, Cambridge University Press, 2012. 46 Saramati v. France, Germany and Norway, Appl. No. 78166/01, ECHR, 2007, paras 148–150. 47 Al-Jedda v. UK, Appl. No. 27021/08, Judgment (Grand Chamber) 7 July 2011. 48 Security Council Resolutions 1511, of 16 October 2003 and 1546 of 8 June 2004.

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Court, however, noted that there was no explicit authorization in the Security Council mandate to detain people without charge or access to domestic legal redress and the UN mission had also repeatedly expressed its concern to the Occupying Powers at the large number of people who were being detained without trial.49 It also appeared to give considerably more weight to the human rights obligations contained in the UN Charter: As well as the purpose of maintaining international peace and security … the United Nations was established to ‘achieve international cooperation in … promoting and encouraging respect for human rights and fundamental freedoms’. Article 24(2) of the Charter requires the Security Council, in discharging its duties … to ‘act in accordance with the Purposes and Principles of the United Nations’. Against this background, the Court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights … it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.50

From the start of the 1990s the Security Council began to make increasing use of its Chapter VII powers, both to give POC mandates to its PKOs, but also to impose arms embargos and economic sanctions in response to specific crises. Increasing concerns about the impact of these on the people of the countries concerned led some to argue that the UN may be committing grave collective violations of economic, social and cultural rights.51 UNICEF estimated that the rate of malnutrition for children under five almost doubled in Haiti, in the mid-1990s, during the three years in which the sanctions were in place while sanctions against Iraq may have contributed to the death of up to half a million children

49 Ibid. 50 Al-Jedda v. UK, Appl. No. 27021/08, para 102. 51 Mary Ellen O’Connell, ‘Debating the Law of Sanctions’, European Journal of Inter-

national Law, Vol. 13, 2002, pp. 63–79; Matthew Craven, ‘Humanitarianism and the Quest for Smarter Sanctions’, European Journal of International Law, Vol. 13, No. 1, 2002, pp. 43–61.

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under the age of five.52 In response to criticisms, the UN began to devise ‘smarter’ individual sanctions, which have been used against rebel groups in Liberia, Sierra Leone and Angola as well as to target regime leaders in Haiti, Libya, Iran and North Korea. It has recently imposed similar sanctions on individuals associated with rebel or criminal groups in Haiti and Mali. In 1999 the Security Council established the Al Qaeda Taliban (AQT) Sanctions Committee and this stepped up its work considerably after the terrorist attacks of 11 September 2001.53 Individual sanctions are also increasingly being used by the Security Council for POC purposes. The initial listing process, however, was widely criticized as being too secretive and subjective. There was no clear procedure within the original mechanism for listed individuals to seek a review of their case, or to be de-listed.54 In October 2008, the UN Human Rights Committee found in the case of Nabil Sayadi and Patricia Vinck v. Belgium, that a travel ban against the complainants by the AQT Sanctions Committee was disproportionate and constituted a violation of their right to freedom of movement.55 In 2011, the European Court of Justice (ECJ) also annulled measures implemented in accordance with a POC Security Council resolution, on Côte d’Ivoire which had frozen the assets and imposed a travel ban on the wife of Côte d’Ivoire’s former President.56 In September 2012, the European Court of Human Rights found a violation, in the case of Nada v. Switzerland,but noted that the ‘presumption’ in favour of human rights set out in Al-Jedda, had been ‘rebutted’ because the Security Council resolutions in question contained ‘clear and explicit language,

52 UNICEF, State of the World’s Children, 1996 and 1997; and UNICEF Newsline, ‘Iraq Surveys Show ‘Humanitarian Emergency’’, 12 August 1998. 53 Security Council Resolutions 1267 of 15 October 1999; 1333 of 19 December 2000; 1363 of 30 July 2001; 1373 of 28 September 2001; and 1390 of 16 January 2002. 54 Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, UN Doc. A/67/396, 26 September 2012. 55 Sayadi and Vinck v. Belgium, CCPR/C/94/D/1472/2006, Communication No. 1472/2006, Views adopted on 22 October 2008. 56 Bamba v. Council , Case T-86/11, Judgment of the General Court (Fifth Chamber, Extended Composition) 8 June 2011; and Morokro v. Council, Case T-316/11 Judgment of the General Court (Fifth Chamber) of 16 September 2011.

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imposing an obligation to take measures capable of breaching human rights’.57 The Security Council has responded with a series of resolutions towards ensuring fairer and clearer procedures.’58 In 2009, an Office of the Ombudsperson was established, which can help individuals to obtain a delisting.59 A delisting proposal is now automatically adopted after sixty days unless the AQT Sanctions Committee decides by consensus to uphold the listing or unless a member State takes the matter to the Security Council. Although it falls short of providing a formal judicial review of the Committee’s decisions, the authority ceded to the Ombudsperson has been described as ‘unprecedented and extraordinary’.60 The most recent sanctions regimes imposed by the Security Council in Haiti and Mali, incorporate these safeguards based on IHRL provisions. In 2019, the UN issued a new policy on POC, which noted that this ‘takes place alongside broader UN efforts, including the promotion and protection of human rights and humanitarian protection, which seek to prevent, mitigate and stop threats to individuals’ human rights and fundamental freedoms, ensure that these rights are respected and protected by duty bearers and ensure access to basic services and humanitarian assistance.61 A report issued by OCHA the same year, to mark the twentieth anniversary of the first POC mandate also noted that: Human rights monitoring, civilian casualty recording, and civilian casualtytracking capabilities can facilitate advocacy and contribute to a decrease in civilian casualties… recording of and reporting on civilian casualties has facilitated crucial engagement with parties to conflict on their behaviour. This engagement, in combination with measures adopted by parties to the conflict to reduce the impact of their operations on civilians, including 57 Nada v. Switzerland, Appl. No. 10593/08, Judgment (Grand Chamber), 12 September 2012. 58 Security Council Resolutions 1617 of 29 July 2005; 1730 of 19 December 2006; and 1822 of 30 June 2008. 59 Security Council Resolutions 1904 of 17 December 2009; 989 of 17 June 2011;

2083 of 17 December 2012. 60 Sue Eckert and Thomas Biersteker, Due Process and Targeted Sanctions: An Update of the “Watson Report”, Watson Institute for International Studies, Brown University, Rhode Island, December 2012. 61 UN DPO, The Protection of Civilians in United Nations Peacekeeping, November 2019.

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through the establishment of dedicated civilian casualty tracking mechanisms, demonstrably mitigated civilian casualties in Afghanistan. Similarly, in the DRC, regular human rights reporting by the UN served as a basis for encouraging parties to conflict to improve their compliance with international law.62

The legal obstacles involved in actually holding the UN accountable under IHRL are formidable and go beyond the scope of this book to discuss fully. Legal scholars such as Verdirame and Freedman have documented the disturbing lack of accountability for SEA of women and children in UN PKOs and others alleged IHRL violations in camps run by UNHCR.63 The UN’s invocation of its absolute immunity to block a civil case brought on behalf of victims of cholera outbreak in Haiti also raises similar concerns.64 Nevertheless, the Secretariat has sought to develop mechanisms to address its own short comings. The advice of its legal counsel, reviews, evaluations and lessons-learned exercises, changing wording of mission mandates, the adoption of Secretary General’s Bulletins, and policies such as HRDDP and HRUF can all be seen as part of a process by which the UN seeks to ensure that it remains within the constraints of international law.65 The more extensive and multi-faceted a UN mission mandate in a particular territory, the greater its potential responsibilities under IHRL are likely to be. In Kosovo, where UNMIK was the de facto governing power, it established a detention review committee to provide some

62 OCHA, Building a Culture of Protection: 20 Years of Security Council Engagement on the Protection of Civilians, May 2019. 63 Rosa Freedman, ‘UN Immunity or Impunity? A Human Rights Based Challenge’, European Journal of International Law, Vol. 25, No. 1, 2014, pp. 239–254; and Guglielmo Verdirame, Who Guards the Guardians? UN Accountability for Violations of Human Rights, Cambridge University Press, 2011, pp. 230–299. 64 UN Secretary General Press Release, ‘Haiti Cholera Victims’ Compensation Claims ‘Not Receivable’ Under Immunities and Privileges Convention, United Nations Tells Their Representatives’, 21 February 2013. 65 Scott Sheeran, ‘A Constitutional Moment? United Nations Peacekeeping in the Democratic Republic of Congo’, International Organisations Law Review, Vol. 8, No. 1, 2011, pp. 55–135. See also Verdirame, 2011, pp. 320–393.

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scrutiny over these decisions, although this fell far short of the international standards required for independence and effectiveness.66 The Ombudsman Institution also struggled with the ‘blanket lack of accountability’over KFOR and UNMIK, noting that immunity was being granted to what was an effective surrogate State.67 UN PKOs have been repeatedly criticized for failing to fulfil their POC responsibilities, both in official UN documents and the reports of independent monitoring organizations and the media. This leaves, though, a dilemma when considering what alternatives are available when civilian lives are at threat. When I visited South Sudan, shortly before the outbreak of its civil war in December 2012, there were already tens of thousands of civilians sheltering in or near to the UN’s bases. These were not designed to house large numbers of civilians and the conditions in the ones that I visited could best be described as ‘basic.’ As the fighting spread civilians sought protection on UNMISS bases and by August 2015 there were an estimated 200,000 in what were to become known as POC sites.68 One MSF worker described the sites as ‘horrifying and an affront to human dignity,’ saying that most of the camp was ‘knee-deep in sewage, thousands of people cannot lay down and therefore sleep standing up with their infants in their arms.’69 Nevertheless, UNMISS can claim credit for protecting the lives of hundreds of thousands of civilians. By December 2014 Security Council referred to the civilian death toll as being in the ‘tens of thousands’ and the displacement total at two million.70 UNMISS reconfigured its

66 Gjylbehare Bella Murati, ‘The Ombudsperson Institution vs. the United Nations Mission in Kosovo (UNMIK)’, in Jan Wouters, Eva Brems, Stefaan Smis and Pierre Schmitt (eds), Accountability for Human Rights Violations by International Organisations, Antwerp: Intersentia, 2010, pp. 373–398. 67 Ombudsperson Institution in Kosovo, Special Report No. 1 on the Compatibility with Recognized International Standards of UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (18 August 2000) and on The Implementation of the Above Regulation, no date. 68 Report of the Secretary-General on South Sudan, S/2014/537, 24 July 2014, para

27; and Report of the Secretary-General on South Sudan, S/2014/821, 18 November 2014. 69 Médecins sans Frontières , ‘Living Conditions an Affront to Human Dignity in Bentiu Camp, South Sudan’, 8 August 2014. 70 Statement by the President of the Security Council, S/PRST/2014/26, 15 December 2014.

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forces in response, concentrating on defending its bases as well as those sheltering in them.71 It also suspended capacity-building support for the South Sudanese government, in line with the HRDDP, as both sides deliberately targeted civilians.72 In June 2015 the mission reported that: ‘South Sudanese armed forces may have committed widespread human rights abuses, including the alleged raping and immolation of women and girls’ and ‘killing civilians, looting and destroying villages and displacing over 100,000 people.’73 UNICEF also reported that boys had ‘been castrated and left to bleed to death,’ and that ‘children were bound together before having their throats slit, and while ‘others had been thrown into burning buildings.’74 The South Sudanese authorities dismissed any allegations of wrongdoing and stated that they would welcome an investigation into them. UNMISS responded that its human rights officers had been routinely denied access to locations of interest by the South Sudanese armed forces. In July 2016 UNMISS Headquarters and its two adjacent POC sites, which housed more than 27,000 IDPs, were caught in the cross-fire of intense fighting in the capital Juba.75 Artillery, tanks and helicopter gunships were all used, sometimes within metres of the UN HQ and both sides fired indiscriminately, striking UN facilities and POC sites, resulting in the deaths of more than 20 IDPs in the POC sites and injuries to dozens more. UN personnel, aid workers and local staff were also robbed, beaten and raped by armed soldiers and an internal inquiry found that UNMISS soldiers and police failed to protect these in several circumstances owing to poor leadership and coordination and ‘a risk-averse’ and ‘inward-looking’ posture.’ In November 2016, the UN sacked the UNMISS Force Commander in response to the report’s criticisms.76

71 S/2014/821, 18 November 2014. 72 UN Security Council Resolution 2155 of 27 May 2014. 73 UN News Centre, ‘South Sudan: UN Alleges ‘Widespread’ Human Rights Abuses

Amid Uptick in Fighting’, 30 June 2015. 74 UNICEF Media Centre, ‘Unspeakable Violence Against Children in South Sudan— UNICEF Chief’, 17 June 2015. 75 Independent Special Investigation into the Violence Which Occurred in Juba in 2016 and UNMISS Response, 1 November 2016. 76 BBC News, ‘UN Sacks South Sudan Peacekeeping Chief over Damning Report’, 1 November 2016.

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I was back at home when these events were unfolding with all the luxury of safety that the UN’s critics often enjoy. As I scrolled through mission reports of conditions in its POC sites, though, I came across another criticism being made of UNMISS that reminded me of the dilemma that UNMIK and KFOR had faced while attempting to protect minorities in Kosovo, in the absence of functioning justice system. In April 2015, a mission report had noted that: Inter-communal tensions, community leadership struggles, youth gang violence and threats against humanitarian service providers and UNMISS staff continue to pose serious challenges in many of the UNMISS protection sites. During the reporting period, a total of 410 security incidents were reported, including incidents of murder, theft, assault, domestic violence and public disorder … Of particular concern is sexual, genderbased and domestic violence, including the exploitation of young girls and women, by male internally displaced persons.77

UNMISS responded by attempting to separate those identified as having committed such crimes from the general camp populations in ‘holding facilities’ until ‘their referral to community-led informal mitigation and dispute resolution mechanisms’ could be effected.78 One mission report noted that it ‘continued to administer four holding facilities for the temporary isolation of internally displaced persons suspected of having committed serious crimes, at the UNMISS protection sites in Juba, Bentiu, Malakal and Bor.’79 Initially detainees were held in makeshift detention areas, such as containers, which an UNMISS spokesperson admitted fell far below international standards.80 In May 2014, UNMISS began to erect ‘holding facilities’ and set up a fenced-in area with airconditioned trailers, but according to a report by the Stimson Center, UN staff initially believed that they could not use force to keep detainees

77 Report of the Secretary-General on South Sudan, S/2015/296, 29 April 2015, para

31. 78 Report of the Secretary-General on South Sudan, S/2014/821, 18 November 2014, paras 12 and 35. 79 Ibid., para 32. 80 UN Radio, ‘UN Mission in South Sudan Battles Crime in Its IDP Camps’, 25

January 2010.

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inside and so some simply walked out.81 In February 2015, the mission stated that: ‘Since the establishment of the holding facilities in May 2014, a total of 856 offenders have been temporarily detained. Most of the offences are being handled under community-led informal mitigation and dispute resolution mechanisms. In isolated instances, offenders were expelled from the protection sites.’82 By April 2015 there were a total of 63 ‘suspects’ being held in these facilities, but UNMISS had ‘yet to agree with the government on a framework for the transfer of detainees to national authorities.’83 Some detainees had been released and their cases handled under community-led informal mitigation and dispute resolution mechanisms. The report also stated that ‘nine offenders representing a significant threat to UNMISS staff and their communities were expelled from the protection site, after a detailed human rights risk assessment confirming they were not under threat of violence outside the site.’ HRW, however, claims that at least two civilians were handed over to authorities without a proper assessment of the ‘very real risks to these individuals’.84 UNMISS was caught in a double legal bind. As one former UN staff member noted, the detainees had committed offences under South Sudanese law, but the UN could not hand them over the national police, given the likelihood that they would be mistreated.85 The mission apparently briefly considered whether it could rely on the provisions of the Fourth Geneva Convention, requiring the occupying power to ‘maintain the orderly government of the territory’ and ensure ‘the effective administration of justice’.86 It decided, however, that ‘while relations between UNMISS and the Government of South Sudan no doubt reached a nadir

81 Jenna Stern, Establishing Safety and Security at Protection of Civilians Sites, Stimson, September 2015, p. 14. 82 Report of the Secretary-General on South Sudan, S/2015/118, 17 February 2015, para 33. 83 S/2015/296, 29 April 2015, para 32. 84 Human Rights Watch, South Sudan’s New War: Abuses by Government and Opposition

Forces, HRW, 11 August 2014. 85 Ralph Mamiya, ‘Legal Challenges for UN Peacekeepers Protecting Civilians in South Sudan’, American Society of International Law, Vol. 8, No. 26, December 2014. 86 Geneva Convention IV, Article 64.

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during this period’, the legal authority of the mission still rested on hoststate consent.87 It chose instead to utilize ‘the narrow authority provided under its SOFA to maintain safety and security within its premises’ as the legal basis for its detention policy. Clearly, though, as in Kosovo, the mission was using administrative detention with no judicial safeguards in clear violation of the standards laid down in IHRL. In 2020 UNMISS decided to redesignate many of its POC sites as regular IDP camps under the protection authority of the South Sudanese government.88 The head of mission announced that improvements in the political and security situation, since the signing of a peace deal in 2018, had enabled UNMISS to refocus its POC strategy, redeploying peacekeeping soldiers away from the camps to increase patrolling in areas of greater civilian vulnerability. Soldiers would be accompanied by UN civil affairs and human rights officers aiming to ‘bring communities together, deter violence and address underlying causes.’ He also stated that: Peacekeeping is just one means of providing protection. More important in the long term, is to help create a protective environment where all citizens benefit from the rule of law so, we are looking to redeploy staff and resources to build the capacity of important justice institutions. That puts the onus and responsibility for protection where it should be – with the South Sudanese. These efforts include building the capacity of the national police, courts, and justice system, prioritizing technical support for security sector reform, and assisting preparations for elections.

Since 2020, these sites have been increasingly redesignated as IDP camps under the protection authority of the government, which has sought the logistical and practical support of UNMISS in facilitating their return home.89 Large-scale population movements, though, can affect South Sudan’s ethnic-political map, which was considerably ‘reshuffled

87 Mamiya, 2014. 88 ‘UNMISS Refocuses Peacekeeping Approach to be Fit-For-Purpose in South Sudan,’

United Nations Mission in South Sudan, 3 March 2021, https://unmiss.unmissions.org/ unmiss-refocuses-peacekeeping-approach-be-fit-purpose-south-sudan, accessed 17 October 2022. 89 Daniel Deng, ‘Land, Conflict and Displacement in South Sudan: A Conflict-Sensitive Approach to Land Governance’, Conflict Sensitivity Resource Facility, 21 November 2021.

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and redrawn’ by local political elites during the conflict.90 While UNMISS initially conducted security risk assessments to determine the particular protection concerns of redesignating each of the POC sites, humanitarian agencies became increasingly vocal about the need to consider the broader political dynamics of unresolved disputes over HLP rights as a potential driver of future conflicts.91 Clearly the ‘definition of protection’ used here by UNMISS was different to that of the humanitarians, as discussed in Chapter 2. The UN was adopting a short-term reactive approach to the issue, while the humanitarians were scenario-mapping, horizon-scanning and thinking both more long-term and holistically about possible outcomes. This is probably a reverse of the usual expected division of roles between the UN Secretariat and humanitarian agencies and is another example of the ‘protection paradox.’ UNMISS was faced with difficult decisions about how to deploy limited resources while considering both immediate and longer-term potential threats and the political reality that it needed the agreement of the South Sudanese authorities to transition out of running its POC sites, which had become an increasingly fraught responsibility. A CIVIC briefing, published in August 2022, noted that much of UNMISS’s support had been valuable in promoting stability and preventing security from deteriorating, but warned that the security forces were still not trusted by communities and were responsible for continuing violations of IHRL. It stated that capacity-building support particularly of UNsupported mobile courts and the provision of technical advice regarding legal reforms could help to strengthen justice and accountability mechanisms, but this needed to be conditioned on rigorous assessments and monitoring.92 It noted that UNMISS needed to develop common strategies with other key justice support actors, such as UNDP to ensure that its programs are complementary, given funding limitations, to simultaneously address weaknesses throughout the justice chain. As discussed in Chapter 1 of this book, the precipitate draw-down of PKOs has often ranged between negative and catastrophic for the civilians they were protecting, yet, clearly transitioning out of these operations 90 Daniel Sullivan, ‘No Confidence: Displaced South Sudanese Await Real Peace’, Refugees International, October 2019. 91 CIVIC, Protecting Civilians While Avoiding Harm: The Implementation of “Do No Harm” by UN Peacekeepers in South Sudan, CIVIC, August 2022. 92 Ibid.

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provides the best long-term basis for sustainable protection. The Security Council started giving missions POC mandates, due to its failures in Rwanda and Bosnia-Herzegovina in the mid-1990s and initially these were seen as primarily a military task. The experiences of the last 20 years, though, shows the limitations of this approach. There may be occasions where the deployment of UN soldiers at specific times, to specific places and with specific tasks will contribute to civilian protection. In general, though, there are better ways to stop civilians getting killed, through a more holistic, forward-looking and preventive action. This can be done by building the capacity of justice sector state institutions, combating corruption, promoting accountability, supporting conflict resolution processes, empowering CSOs and gender-mainstreaming. Occasionally, it will also require exerting pressure on recalcitrant states or armed opposition groups. The next chapter of this book will look in more detail at some examples of where such programs have been successful at strengthening justice and accountability mechanisms, building on the provisions of IHRL and IHL. The following chapter will discuss how that UN is seeking to become better at anticipating where humanitarian crises and conflicts are about to break out and taking ameliorative action, through conflict prevention, based on greater situational awareness within the UN system as a whole.

CHAPTER 5

Understanding Peacebuilding

Abstract The UN has created a set of organizational structures under the broad heading of ‘peacebuilding’ that build support for rule of law and justice sector reform under the transitional arrangements between ‘peace’ and ‘war.’ Much of what passes for peacebuilding in conflict and post-conflict zones is ineffective, because it is not locally owned or driven. Nonetheless, some small-scale human rights and humanitarian projects, have negotiated access, provided training on the international legal obligations that exist and established mechanisms for monitoring and reporting violations. The UN has also sometimes been able to use its influence to leverage support for these efforts and an increasing number of international legal mechanisms are also being created to hold both states and armed non state actors (ANSAs) to account for violations of IHL and IHRL. Strengthening these mechanisms and getting support to where it is needed, when it is needed, to promote legal accountability demands both political will and technical coordination. Keywords Peacebuilding · Afghanistan · Iraq · Syria · Rule of law

In the summer of 2004, while managing the NRC’s legal assistance program in Afghanistan, I was woken early one morning by a phone call from our Jalalabad office in Nangahar. Our Team Leader had received a © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Foley, The Protection Paradox, Human Rights Interventions, https://doi.org/10.1007/978-3-031-27427-5_5

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credible death threat the previous night and I needed to make an urgent decision. Our options were to evacuate him to Pakistan, drop the legal case that we had been working on, or carry on and risk the consequences. What was my instruction? In my entire time in the field, this was always my worst fear. Working in war zones is, by definition, stressful. It is obviously scary when you get shot at, hear bombs go off, see people die in front of you, or lose friends to assassinations. Most of the time, though, my role was limited to that of a passive observer, whose decisions will make little difference, at the macro or micro level, to anyone but myself. That summer morning, though, it was my responsibility to decide something which clearly could have got one of my own colleagues killed. My first reaction was to vomit. Security protocols were still comparatively lax in those days and so I asked a driver to take me to Nangahar immediately. Attacks against foreign aid workers were climbing steeply, but we were still able to drive from Kabul in unescorted single vehicle convoys at my own authority. We had not fitted radios in our vehicles yet and so before setting out I called my colleagues in UNHCR to discuss tactics. UNHCR Afghanistan had an exceptionally good senior leadership, headed by Filippo Grandi, who is now its global High Commissioner and he had surrounded himself with excellent senior protection staff. I explained the situation and told them that I wanted to face the threat down, while looking for a way out of the confrontation. I obviously needed to gauge the opinion of my office staff and discuss it more fully, but how much support could they give us, how high up could they take things and how quickly could they let me know? Arriving in Jalalabad, a few hours later, we had an emergency NRC staff meeting. The death threat arose out of a case of land-grabbing committed by a local Mujahedin warlord who was also now a corrupt district official. He had stolen people’s land during the civil war period and forged documents to claim it was his. He had fled the province when the Taliban advanced through Nangahar in 1996, but had returned to office, following their ouster by the US invasion in 2001. Now he was back in swaggering, self-enriching authority. Everything in the tragedy that was subsequently to engulf Afghanistan and lead to the Taliban’s return to power was encapsulated in that case. I told my staff that we could evacuate them all, if necessary. I had recently had to get a young woman team member from another office out of the country and so we had procedures in place. My first plan, though, if they agreed, was to invite the official to a meeting with me and the senior

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UN staff in the province, together with his hierarchical superiors in the district administration. The purpose of the meeting was simply introductions, formalities and pleasantries. We would drink tea, talk generalities and congratulate one another. There would be no reference to the death threat, but its significance, the day after this had been issued, was lost on no one. The meeting went ahead as planned and the following day the official sought out my staff member and told him the whole situation had been a ‘misunderstanding.’ We carried on with the case, although it had not been resolved by the time that I left the country. I still do not know whether I got any of my judgement calls right that day, but that is also not really the point of the anecdote. I had leverage because I was an international. I could use it to protect a staff member and had no hesitation in doing so. Clearly, this was not peacebuilding, it was a top-down intervention. Yet, as previously discussed, the presence of international agencies will inevitably impact on the politics of the society in which we are working and that gives us influence. When I headed to Jalalabad that morning, I knew that I had the backing of the head of UNHCR, the largest UN agency in Afghanistan at the time and it was this influence that I was trading on when I tried to organize the meeting. Without Grandi’s leadership it probably would not have been possible to assemble a group of senior UN field-level functionaries at such short notice for what must have seemed to some of them to have been a very obscure, and perhaps risky, purpose. The UN is a diplomatic organization whose presence in any country is based on host-state consent. It understandably seeks to avoid giving offence or creating diplomatic incidents. I subsequently found out in other situations in other parts of the world that some UN personnel would not consider this type of intervention appropriate or a good use of their time. Indeed, five years later, in Sri Lanka, the local UN leadership completely failed to use whatever influence they might have had to denounce the biggest mass murder of civilians since the Rwandan genocide. As also discussed, the NRC legal assistance program that I was managing in Afghanistan involved activities that are often referred to as ‘protection’ within the general humanitarian discourse. We partnered with UNHCR because disputes over HLP rights can often be a barrier to the sustainable return of refugees and IDPs.1 In a post-conflict context where

1 Conor Foley, Land disputes in Eastern Nangahar, NRC, 2004.

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land rights are disputed, comprehensive ownership records are lacking, and land disputes are often deeply connected to ethnic and political cleavages, the return of large numbers of people to places from which they have been displaced is often fraught. Protection monitoring, sometimes carried out to determine whether or not ‘conditions are conducive for sustainable voluntary return,’ effectively involves UNHCR staff in reporting and advocacy on potential violations of IHL and IHRL as well as working on issues such as HLP rights. This had political implications in the context of ‘reversing ethnic cleansing’ in the Balkans and also intersected with discussions on POC in South Sudan as previously discussed. ‘Protection programs’ tend to be short-term, palliative, crisis response measures and the agencies implementing them are constrained by the provisions of humanitarian neutrality. Nevertheless, their potential to be integrated into peace building and conflict prevention is becoming increasingly recognized throughout the UN system. In the original Agenda for Peace report, published in 1992, the Secretary General traced a continuum between ‘preventive diplomacy’—to prevent the outbreak of conflicts—‘peace making’—where the parties agree to call a halt through a ceasefire or peace agreement—‘peacekeeping’—through the inter-positioning of UN troops between the parties, to de-escalate tensions—and ‘peacebuilding’—aimed at addressing the conflict’s root causes.2 In practice, though the progress from ‘war’ to ‘peace’ is rarely linear and the ad hoc and adaptive nature with which UN presences in the field have faced these challenges also works against definitional neatness. In December 2005, the UN created a Peacebuilding Commission, with a rule of law unit within its Peace Building Support Office (PBSO) in response to recommendations made in two Secretary-General’s reports In Larger Freedom and A More Secure World.3 The Commission was mandated to ‘bring together all relevant actors to marshal resources and to advise on and propose integrated strategies for post-conflict

2 Boutros Boutros-Ghali, Report of the Secretary-General an Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping, UN Doc. A/47/277 - S/24111, 17 June 1992. 3 In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005, 21 March 2005; and A More Secure World: Our Shared Responsibility: Report of the High-Level Panel on Threats, Challenges and Change, United Nations, 2004.

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peacebuilding and recovery’.4 A Peacebuilding Fund (PBF) was established the following year, in response to criticism that the existing access to these funds was often insufficient, slow and inflexible at critical moments of transition. The PBF aims to provide ‘impactful, jump start or bridge financing for UN preventive and peacebuilding programmes’ and supports: programs and projects in the area of the rule of law in countries where a conflict analysis has identified this sector as an area of continuing tensions or a potential conflict trigger or where the legitimate structures for settling legal disputes need to be restored, following the return to peace. As a result, PBF projects in this area tend to focus on legal reform and on strengthening the national and local judicial institutions and police … The objective of this support is to ensure that the targeted legal institutions and entities are effective, inclusive and accountable to laws that are publicly promulgated, equally enforced, independently adjudicated and consistent with international human rights standards. There is a particular emphasis on supporting human rights, including through harmonisation of existing constitutional, legal and policy frameworks; human rights education and training; strengthening capacity of and access to judicial and law enforcement systems; monitoring and protecting human rights; and supporting transitional justice mechanisms.5

In 2007 an Office of Rule of Law and Security Institutions (OROLSI) was created in DPO, which supports the rule of law components in PKOs and—to a lesser extent—SPMs to provide specialist support in these areas. OROLSI is headed by a UN Assistant Secretary General (ASG) and deploys approximately 15,000 personnel globally. In 2011 it created a Justice and Corrections Standing Capacity (JCSC) which regularly deploys rule of law experts on short-term missions to UN PKOs. OROLSI has standing in-house capacities with expertise in policing, justice and corrections and can deploy teams within seven days to support

4 Security Council Resolution 1645, 20 December 2005; and General Assembly Resolution 60/180, 20 December 2005. 5 United Nations and the Rule of Law, Homepage, Peacebuilding Support Office, https://www.un.org/ruleoflaw/un-and-the-rule-of-law/peacebuilding-support-off ice/, accessed 19 October 2022.

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new operations, in crisis response situations and to help provide surge capacity to missions.6 In 2012 the UN created Global Focal Point for Police, Justice and Corrections Areas in the Rule of Law in Post-Conflict and Other Crisis Situations (GFP). As its lengthy full name indicates, there was significant internal debates about the GFP’s initial scope and composition. It is jointly convened by DPO and UNDP and brings together both UN agencies and departments that deploy during Peace Operations and those involved in long-term development. Key partners include: the EOSG, PSBO, DPPA, OHCHR, UNHCR, UN Women, UNICEF, the UN Office on Drugs and Crime (UNODC), the UN Office for Project Services (UNOPS) and the UN Team of Experts on Rule of Law and Sexual Violence in Conflict (TOE). Its entities retain their own mandates, functions and reporting lines and it was created on a ‘cost neutral’ basis, given the UN’s overall financial constraints. Its aim is to ‘strengthen the UN’s ability to fill critical civilian capacity gaps in the aftermath of conflict, facilitate collaborative work from the early planning phase onwards, leverage resources, draw on external assets and avoid duplication of efforts.’7 If the number of entities and acronyms listed seems excessive it is because they are. As discussed in the first chapter of this book, the UN can best be thought of as a network of semi-connected organizations, whose structure is shaped by a variety of past and current pressures. New bodies may be created in response to the perceived importance of a particular issue at a particular time or to bring greater coherence to particular areas of work. When the UN restructured its peace and security architecture in 2017, for example, it was hoped that by locating police and military components in a ‘single political-operational structure to support stabilization and help to carry out protection-related tasks’ this could strengthen the necessary links in planning, force generation,

6 UN Peacekeeping Homepage, Building Rule of Law and Security Institutions, https://peacekeeping.un.org/en/building-rule-of-law-and-security-institutions, accessed 15 March 2019. 7 UN Rule of Law Homepage, UN Coordination of Rule of Law Activities, https://www.un.org/ruleoflaw/what-is-the-rule-of-law/coordination-of-rule-of-lawactivities/, accessed 15 March 2019.

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deployment and protection-related activities.8 This seems so obvious, that it is staggering it had not been done before. In 2010 the UN General Assembly created UN Women, by merging and building upon the work of other UN entities. This followed the adoption of a series of resolutions by the UN Security Council mapping out what became known as the Women, Peace and Security (WPS) agenda.9 The first of these, Resolution 1325, noted that women are often excluded from, peace processes and negotiations despite their obvious contribution to making these more resilient, their role in conflict prevention and their specific needs and vulnerabilities in conflicts and humanitarian crises. Subsequent resolutions noted that conflict related sexual violence (CRSV) when used as a tactic of war can be both a crime under international law and a threat to international peace and security.10 They also created a Special Representative of the Secretary-General on Sexual Violence in Conflict (SRSG-SVC), together with the TOE, and called for the deployment of Women Protection Advisors (WPAs) in PKOs. Separately, in 2007, the UN created Action Against Sexual Violence in Conflict, a coordinating body of 23 different UN entities, endorsed through the Secretary-General’s Policy Committee and now chaired by the SRSG-SVC. Given the multiplicity of different organizations involved with overlapping—and sometimes competing—mandates, donors, work programs and funding streams getting the right support to where it is needed, when is needed and in an effective, efficient and sustainable manner can be challenging. The TOE, for example, is itself a coordinating mechanism for its four co-lead entities, DPO, UNDP, OHCHR and the EOSG. It has only six core-staff and relies wholly on extrabudgetary resource mobilization to sustain both itself and its field deployments. Its Security Council mandate is for the ‘timely deployment’ of suitably qualified technical specialists to ‘situations of particular concern with respect to sexual violence in armed conflict... with the consent of the host government, to assist national

8 Restructuring of the United Nations Peace and Security Pillar Report of the SecretaryGeneral, A/72/525, 13 October 2017, para 32. 9 Security Council Resolutions 1325 (2000), 1820 (2008), 1888 (2009), 1889 (2009), 1960 (2010), 2106 (2013), 2122 (2013), 2242 (2015), 2467 (2019), 2493 (2019). 10 Security Council Resolutions 1820 (2008), 1888 (2009), 1960 (2010), 2106 (2013) 2467 (2019).

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authorities to strengthen the rule of law.’11 In practice, though, the preparation, negotiation and administration required to navigate international bureaucracies, recruit and deploy suitably qualified technical specialists, provide logistical support to them in the field and ensure that their efforts complement and add-value to those of others, without duplication, makes ‘timely’ global action extremely challenging.12 It is not difficult to imagine how this complexity multiplies given the number of different thematic issues, countries and organizations involved within the broad banner of ‘protection.’ One senior UN official working on human rights and protection once described her work to me as playing multiple games of chess, with different opponents, in three dimensions, each on boards with a different number of squares and governed by slightly different rules. The UN has, in fact, been implementing ‘rule of law’ activities in its Peace Operations since its very first peacekeeping missions, although often in a rather haphazard manner. The UN Emergency Force (UNEF) sent to respond to the Suez crisis in 1956, for example, included ‘measures to protect civilian life and public and private property.’13 The first international police officer was deployed to the UN Mission in the Congo (MONUC) in 1960 and civilian police officers have regularly been deployed on missions after that, mainly to monitor and report on the behaviour of the local police.14 De Coning has noted that as UN PKO mission mandates became increasingly extensive as the Security Council has added extra tasks to them, the conflicts that they were supposed to be helping to resolve also proved increasingly drawn out and intractable.15 PKOs are funded from the UN regular budget and so can sometimes access UN funds more easily than AFPs, who depend on voluntary funding. As a result:

11 Security Council Resolution 1888, 30 September 2009. 12 Conor Foley, Review of the United Nations Team of Experts on the Rule of Law and

Sexual Violence in Conflict Field Support Work, TOE, June 2022. 13 Report of the Secretary General, Summary of the Experiences Derived from the Establishment and Operation of the Force, A/3943, 9 October 1958. 14 Kari M. Osland, ‘UN Policing: The Security–Trust Challenge’, in Cedric de Coning and Mateja Peter (eds), United Nations Peace Operations in a Changing Global Order, Palgrave Macmillan, 2019. 15 Cedric de Coning in De Coning and Mateja, 2019.

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The kind of peacebuilding activities that were undertaken by peacekeeping operations in the DRC, Sierra Leone, and Haiti gradually expanded over the last two decades to include: supporting trust- and confidencebuilding among the parties to a peace or political process; national dialogue initiatives; reviewing or drafting new constitutions; supporting transitional justice and national reconciliation processes; supporting reforms of, and capacity building for, rule of law and security institutions; supporting the development of local mechanisms for conflict resolution and reconciliation; disarmament, demobilization and reintegration; protecting and promoting international human rights laws and standards; among many other areas.16

It is now generally accepted that this type of activity around a nexus of rule of law issues such as: reform of security institutions, the extension of state authority and the capacity of sub-national authorities to prevent and manage conflict will be supported by UN field presences under the broad heading of peacebuilding. Typical tasks often include training and capacity-building of the police and prison services, monitoring court procedures, inspecting prisons, reviewing criminal laws and procedures, liaising with CSOs and National Human Rights Institutions (NHRIs) and more general human rights training of public officials and monitoring of the overall human rights situation. In its 2020 report on Peacebuilding and sustaining peace, the UN Secretary General noted increasing cooperation between UN field presences and the World Bank and International Monetary Fund (IMF), citing the appointment of a World Bank focal point to UNITAMS in Sudan as well as the operationalization of the PSBO’s Humanitarian-Development Peacebuilding and Partnership Facility to support collaboration between the World Bank and UN Field presences in Burkina Faso, Cameroon, the Niger, Sierra Leone and Togo.17 It might be argued that none of this really constitutes ‘peacebuilding’ because peace processes must be locally driven and locally owned if they are to have any hope of succeeding. In my own book, The Thin Blue Line, published in late 2008, I noted that the huge inequalities of wealth and power between the humanitarian aid industry and those we are supposed to be helping almost always precludes us from meaningful involvement 16 Cedric de Coning, ‘What Peacekeeping Can Learn from Peacebuilding: The Peacebuilding Dimensions of the A4P, Complexity 4 Peace Operations, 23 July 2018. 17 Peacebuilding and Sustaining Peace Report of the Secretary-General, A/74/976– S/2020/773, 30 July 2020.

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in these processes.18 Humanitarian aid workers would do better to stick to the principles of neutrality and independence, I argued. Much of what passes for peacebuilding in conflict and post-conflict zones was ineffective precisely because it involves international UN and humanitarian staff trying to leverage their status and influence into getting local actors to sit around tables and sign up to externally driven agreements and processes. In her book, Front Lines of Peace, Autesserre is also extremely critical of what she describes as the ‘well-intentioned but inherently flawed peace industry’ and she cites numerous examples where the UN, in particular, has done peacebuilding very badly. Drawing considerably on her time in the DRC, first as an aid worker and then as a doctoral researcher and the author of three critically acclaimed books, her overall argument on the need to combine both top-down and bottom-up initiatives is hard to fault.19 One of the examples of good practices that she highlights is based on the work of a Swedish-based NGO, the Life and Peace Institute (LFI) which she credits with promoting local peace processes, mediation and inter-community dialogue in several parts of eastern DCR. By focusing on grass-roots peace building initiatives, managed and led by local people, she argues, it is an example which could be promoted and brought to scale. One mark of its impact she notes is that when the NGO eventually folded, due to alleged financial mismanagement, many of its staff went on to work for MONUSCO’s Stabilization Unit, implementing a multimillion-dollar, multi-donor, multi-organization strategy based on these principles. Within months of my own book’s publication, in early 2009, I found myself in Sri Lanka in the midst of one of the worst massacres in the UN’s history and one where we, yet again, failed to advocate for the protection of civilians. UN AFPs on the ground did their best to implement programs, as did the NGO agencies working alongside them. Those that spoke out found national staff being imprisoned on trumped up charges, while international staff were forced to leave the country when their visas came up for renewal. Some senior UN staff were simply declared persona non-grata (PNG) by the government. Many organizations stayed silent arguing that maintaining ‘humanitarian access’ to those most in

18 Conor Foley, The Thin Blue Line: How Humanitarianism Went to War, Verso, 2008. 19 Severine Autesserre, The Frontlines of Peace: An Insider’s Guide to Changing the

World, Oxford University Press, 2021, pp. 64–65.

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need meant accepting the restrictions placed on us and perhaps we could provide some ‘protection by presence’ through our quiet diplomacy. As discussed in Chapter 2, this strategy proved to be grotesquely misguided. Among the most significant reforms adopted within the broad restructuring of the UN’s peace and security architecture, in 2017, were the creation of UNOCC, to improve the UN’s situational awareness and the de-linking of the RCs functions from those of the UNDP Resident Representative. The RCs had previously focused on the relatively uncontentious issues of long-term development and neutral humanitarian assistance, sometimes shying away from monitoring and reporting on violations of IHRL, on the grounds that this might antagonize host-state governments or jeopardize program activities.20 The RCs reporting responsibilities were reassigned to the DCO, which now supports a network of RCs covering 162 countries, as well as serving as secretariat of the UN’s Sustainable Development Goals (SDGs). On paper at least, this gives the UN Secretariat a global reach to all its field presences in both mission and non-mission settings, spanning the continuum of situations from longterm development to crisis response and full-scale conflict. The Secretary General also announced the launching of an ‘integrated prevention platform’ to build on and harness ‘diverse prevention tools and capacities across the system, at HQ and in the field.’21 The architecture that is, in effect, being created is a line of information monitoring, reporting and action for each UN field presence that more closely resembles an SPM than any other UN field structure. The term SPM is commonly used to denote field operations with political mandates funded through the special political mission provision of the regular budget. It encompasses UN Country Offices, peacebuilding offices, integrated offices and commissions and assistance missions. SPMs can include special and personal envoys, special advisers, special coordinators and personal representatives of the Secretary General as well as sanctions monitoring teams, groups and panels. They are usually— although not always—based directly in the field. Unlike PKOs, SPMs have no military components, Chapter VII authority, or POC mandates. Yet 20 Rodrigo Saad, The Human Rights Implications of the New UN Resident Coordinator System, Universal Rights Group, 13 March 2019. 21 United Nations, Home page Antonio Guterrez, ‘Meeting the Prevention Challenge’, October 2017, https://www.un.org/en/chronicle/article/meeting-prevention-challenge, accessed December 2022.

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they have all been formally established either by a decision of the Security Council or the Secretary General, following an exchange of letters between the Secretary General and the Council President, and report directly to UN HQ in New York.22 Field-based SPMs are usually established as an immediate response to a specific situation in a given country or region, alongside the existing UNCT. Typical examples would be BINUH, in Haiti, the UN Transition Assistance Mission in Sudan (UNITAMS) or the UN peacebuilding offices in Liberia (UNOL) and Sierra Leone (UNIPSIL). These all replaced PKOs after their draw-down, while the UN assistance missions in Afghanistan (UNAMA) and Iraq (UNAMI) and the support mission Libya (UNSMIL) were created as ‘light footprint’ alternatives to PKOs. The size and functions of these SPMs varies considerably. For example, The UN Office for Central Africa (UNOCA), which was established in Gabon in 2011, had 26 staff, and a budget of $3.5 million for its initial year. UNSMIL, which was created the same year, had just under 200 staff and a $32.5 million budget. UNAMI has around 800 staff and a budget of around $1 billion. UNAMA has over 1,000 staff, eleven regional offices and a budget of around $1.3 billion.23 When I worked in Afghanistan from 2003–2005, UNAMA’s regional presence was much smaller, and it only had a single Human Rights Officer to cover the entire country. Its Civil Affairs Officers performed some similar functions but were extremely thinly spread. The protection staff of UN AFPs, such as UNHCR and UNICEF performed the nearest equivalent functions to human rights monitoring, reporting and advocacy at the field level—as did NGOs, such as the NRC legal assistance program. As humanitarian agencies, though, our view of what constituted ‘protection’ was well expressed by UNHCR Note on International Protection, issued in 1998: While human rights monitoring missions must investigate and encourage prosecution of human rights violations, action in support of refugees and

22 Special Political Missions (SPMs) Start-Up Guide, UN Department of Political Affairs, 2012. 23 UN Advisory Committee on Administrative and Budget Questions, Programme Budget by Section/Subject, https://www.un.org/ga/acabq/subjects/509, accessed 26 October 2022.

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returnees is essentially humanitarian, encouraging confidence-building and creation of conditions conducive to peace and reconciliation.24

UNAMA had no military component although NATO provided a UN-mandated International Security Assistance Force (ISAF) and US and British special forces conducted counter-insurgency operations in the south and east of the country under an operation entitled Enduring Freedom. Since 2008, UNAMA has been an ‘integrated mission,’ which means that all of the UN AFPs in the country work within an overall coordination framework set by the mission head. Two deputy mission heads oversee the main pillars of the mission—political and developmental issues, which includes sections specializing in issues such as political analysis, reporting and outreach—as well as the coordination of AFPs according to nationally defined priorities agreed with the Government of Afghanistan. The mission’s human rights component has also steadily increased to cover most of its regional offices. Its Human Rights Officers perform the same types of functions as in a PKO and also have a doublereporting line to the head of the mission and OHCHR HQ. Their work soon became a model for what other UN field presences could potentially achieve given the resources and political backing. In 2008 UNAMA and OHCHR produced their first report on civilian casualties for the previous year.25 This broke down the statistics in detail, listed all the individual incidents and included as much information about them as could be independently verified. These reports became annual and then quarterly. They were shared with the parties to the conflict on an impartial basis and used as the basis for advocacy with both sides, who were publicly reminded of their obligations under IHL and IHRL. In 2012, their production became an official part of UNAMA’s Security Council mandate under the heading of POC. UNAMA also noted that: in the context of the war in Afghanistan, all parties are prone to issue tendentious pronouncements. UNAMA, as an impartial and independent body, will continue to establish reliable and accurate data that it will share

24 UNHCR, ExComm Note on International Protection, UN Doc. A/AC.96/989, 3 July 1998. 25 UNAMA, Civilian Casualties During 2007 , Human Rights Unit, 2008.

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with parties and the public as part of an advocacy-orientated approach to reduce civilian casualties to zero.26

At its peak between 2010 and 2012 ISAF had over 130,000 troops in Afghanistan and about 400 military bases. A fresh surge of US troops started in 2009, but the bulk of these were withdrawn by 2012. By 2014, the conflict in Afghanistan was classified as one of the deadliest in the world with over 10,000 civilian casualties almost every year.27 By the summer of 2018, the government controlled just over half of the country, with another 30% contested and around 15% under Taliban control.28 It is difficult to obtain accurate statistics for the overall number of casualties during the conflict because both sides tend to minimize their own and exaggerate those of their opponents. As discussed in Chapter 2, misleading claims about the scale of violations of IHL and IHRL in particular conflicts have made the development of POC strategies both difficult and controversial. UNAMA’s POC reports, however, became a credible, reliable measure of this aspect of the conflict. UNAMA reported that more civilians were killed in the Afghan conflict in 2018 and 2019 than at any time since 2009 when it began recording casualties.29 In 2019 alone, the US military dropped 7,243 munitions, resulting in the killing of 559 civilians.30 In 2020, however, the overall number of civilian casualties of 8,820 (3,035 killed and 5,785 injured) fell below 10,000 for the first time since 2013 and was down 15% compared to the previous year. The reduction was mainly due to fewer suicide attacks by ANSAs in urban areas, and a stark drop in casualties attributed to international military forces, particularly due to air strikes. Civilian casualties due to air strikes had massively alienated ordinary Afghans for

26 UNAMA website, Protection of Civilians Reports, https://unama.unmissions.org/ protection-of-civilians-reports, accessed 21 October 2022. 27 Afghanistan: Protection of Civilians in Armed Conflict, Annual Report 2020, UNAMA/OHCHR, February 2021. 28 SIGAR, Quarterly Report of the Special Inspector General for Afghanistan Reconstruction, April 2018. 29 UNAMA, Afghanistan Annual Report on Protection of Civilian in Armed Conflict, 2018 and 2019. 30 Sahr Muhammedly and Marc Garlasco, ‘Reduction of Civilian Harm in Afghanistan: A Way Forward’, Just Security, 25 February 2020.

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much of the 20-year war and so this reduction was significant. In 2008 I had written for the Guardian: A couple of days [ago] a massive suicide bomb had struck the Indian embassy in the Afghan capital, killing 41 people, injuring 150 and shattering the windows of our office, a justice and legal support organization, a few streets away. In the aftermath of the blast, jittery US troops fired on a car, which had driven too close to them, killing at least one person…. The day before the embassy attack, US forces bombed a wedding party, killing 47 civilians, including the bride and 38 other women and children. Another military strike in the same region killed 22, most of whom are also believed to have been civilians. The US apologized for the first incident, but has so far refused to do so for the second. I had been visiting a friend and former colleague, [name removed] who now heads up the Afghan Independent Human Rights Commission eastern region, where the killings occurred, and listened to his anger and frustration as he took statements from the victims and witnesses. It was the culmination of one of Afghanistan’s bloodiest weeks which, according to the Red Cross, saw 250 people killed or injured. Last month also saw a new record for the number of foreign soldiers killed in Afghanistan, 42, which surpassed that of Iraq for the first time. Clearly the repeated claims of western politicians - and credulous journalists - that we are "winning the war" in Afghanistan bear almost no relation to reality. The US suffered one of its heaviest blows on Sunday when nine troops were killed in a Taliban attack in the eastern region. Another 24 people were killed in a suicide bombing.31

Marc Bowden was the Humanitarian Coordinator (HC) for UNAMA from 2012 to 2017. He was responsible during this time for overall engagement with the Taliban on commonly identified POC issues of concern.32 Discussions were conducted with senior Taliban officials with delegated authority from the leadership and used IHL and IHRL provisions as an initial starting point. Their talks focused on defining who was as a combatant or non-combatant, the legitimacy of humanitarian action, maintaining the protection and integrity of health facilities, the rights to all for primary education and the protection of girls attending schools. None of these issues were uncontentious, he told me, but progress 31 Guardian, Conor Foley, ‘Afghans Want a Peace Deal and Force Cannot Provide It’, 15 July 2008. 32 Gemma Davies and Mark Bowden, Leadership of Protection in the Humanitarian Sector, HPG Policy Brief, Overseas Development Institute, November 2022.

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was made at a leadership level, which gradually appears to have filtered down to more local levels.A similar dialogue was maintained with ISAF about the need to avoid civilian casualties and the broad sustained and transparent dialogue, based on humanitarian neutrality.33 The Taliban captured Kabul in August 2021, and one reason why they may have become more receptive about the POC agenda was that violations of it was negatively affecting perceptions of them as a government-in-waiting. Perhaps they could also see some benefits of reciprocal adherence to an internationally defined legal rules-based system. I was leading an evaluation of a project run by CIVIC in the months leading up to the Taliban victory and we had a team of Afghan nationals in the country at the time. Our researchers travelled extensively through five provinces and spoke to over 300 people through a mixture of interviews and focus groups to give us a better idea of what was happening on the ground.34 While the reports that they sent us provided a depressing premonition of the disaster that was about to befall the country, this was combined with some surprisingly optimistic accounts of local successes. CIVIC had been set up in Iraq in 2003 to advocate on behalf of Iraqi civilians who had been killed or injured during US military operations. Its founder Marla Ruzicka was subsequently killed in a bombing in Baghdad, in 2005. Its specialism is to provide detailed strategic and tactical advice on how militaries around the world can reduce civilian casualties during their operations and it works in most of the world’s worst conflict zones. In 2020, CIVIC in Afghanistan produced two landmark studies—one on air strikes and one on assistance to victims—that provided concrete recommendations to prevent and ameliorate civilian harm.35 The report on airstrikes highlighted many of the challenges faced by the international forces, including that air assets were not always suited

33 Interview conducted October 2022. 34 Dr. Conor Foley (Team Lead), Dr. Cecilia Deme (Co-Team Lead), Dr. Friedarike

Santner, Horia Mosadiq, Syed Kazim Baqeri, Richie Lontulungu Nsombola, and Gina Matalatala, Mid-term External Evaluation of CIVIC Program: Promoting the Protection of Civilians in Conflict in Afghanistan and UN Peacekeeping Operations, CIVIC, May 2021. 35 CIVIC, Afghan Airstrikes: Good Practices and Challenges to Protect Civilians, August 2020; CIVIC, Unacknowledged Harm: Hurdles to Receiving Victims’ Assistance in Afghanistan, December 2020.

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to Afghanistan’s rugged mountain terrain, poor ground-to-air coordination, outdated maps and a heavy reliance on human intelligence and informants when calling in airstrikes. It recommended the introduction of After-Action Reviews (AARs) so that mistakes could be learnt from, and good practices built on.36 The report was used for subsequent advocacy with both the Afghan army and international forces. When we interviewed CIVIC’s Afghan staff they were able to give numerous specific examples of where airstrikes had subsequently been aborted due to concern about civilian casualties.37 Perhaps even more impressive was CIVIC’s work with local communities negotiating between government forces and the Taliban in particular localities. Our researchers were able to verify these accounts with visits to the places concerned and interviews with the residents. In October 2020, for example, a CIVIC supported group, along with community elders in Kunduz reached out to Taliban local commanders to share their concerns about military operations during the rice harvesting season, basing their arguments on respecting Sharia law and local traditional norms. The Taliban commander agreed to do this as long as the Afghan armed forces also agreed not to use heavy weapons, during the same period. In August 2020, another group in Nangahar met the Taliban several times, to successfully urge them to stop planting improvised explosive devices (IEDs), using residential areas as a shield, and mistreating civilians. The CIVIC supported group and tribal leaders in Kandahar also met with the pro-Taliban governor to raise concerns about preserving access to markets for farmers during the harvest season. The Taliban governor promised to clean IEDs along the public roads in response. In July 2020, the Herat and Baghlan CIVIC supported groups held rallies, calling on all armed to reduce violence and for the UN to investigate civilian casualties and hold the perpetrators to account. In Herat, they also met with the head of the UNAMA to make similar demands.38 None of these initiatives changed the course of the war and, however, carefully we triangulated our sources of information proving causality when attempting to evaluate a project of this nature is always fraught.

36 CIVIC, August 2020. 37 Foley et al., CIVIC, May 2021. 38 Ibid.

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There were other community-based groups, supported by other international donors, working on similar issues at the same time, including my former colleagues at NRC. The ‘credit’ for each of the above initiatives should presumably be shared quite broadly. The Taliban had even set up their own civilian casualties’ complaints commission, which created a standard operating procedure outlining investigations, procedures to express condolences, and directives against killing, injuring and torturing civilians, in 2019. This was widely seen as ineffective, in practice, and we received no reports of how it handled complaints. A case could be made, though, that this type of initiative combing top-down and bottom-up monitoring and advocacy, and supported by the overall UN system, along with international humanitarian agencies and local CSOs has provided tangible protections to civilians in a conflict zone. I spent part of 2020 evaluating another project in Syria run by another international NGO, Geneva Call, which has been working in oppositioncontrolled areas since 2012.39 Geneva Call has developed a particular specialism in working with ANSAs to increase their knowledge and understanding of IHL and IHRL, as it applies in armed conflicts. The program that I was evaluating—against the usual criteria of relevance, effectiveness, sustainability and impact—had been working primarily with the Kurdish ANSAs, the People’s and Women Defense Units (YPG/YPJ) and Syrian Democratic Forces (SDF), in the northeast of Syria and the Islamic Frontaffiliated ANSAs, including the Free Syria Army (FSA), in the northwest. In one of its initial project documents, Geneva Call noted: Initial training was conducted on the key tenets of IHL, international human rights law and specific issues such as anti-personnel mines, child protection and sexual violence in armed conflict. These trainings addressed mainly ANSA commanders from the FSA, the YPG and YPJ, and Islamic Front-affiliated ANSAs. During training, participants realized that neither IHL nor the Islamic sets of rules were respected during their fighting. Geneva Call made use of ANSA-specific training manuals and methodologies, which had been developed and tested worldwide. In 2013, Geneva Call launched a new worldwide ‘Fighter not Killer’ media campaign, addressing the 15 key rules of the law of armed conflict. The campaign was intensively broadcasted and disseminated on different media outlets

39 Conor Foley, External Evaluation of Geneva Call’s Programme: Protecting Civilians from the Effects of Armed Conflict in Syria 2019-20, Geneva Call, May 2020.

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and social media. Geneva Call developed the campaign further, through video and radio messages as well as the illustrated booklet.40

The human cost of the conflict in Syria has been enormous, with over half million people killed, the displacement of over half the country’s population and the creation of over six million IDPs in Syria and similar number of refugees outside the country.41 All sides have committed violations of humanitarian norms, although the Syrian government is clearly responsible for the vast majority of atrocities and civilian deaths. Government forces have credibly been accused of using chemical weapons, deliberately attacking civilian targets and torturing tens of thousands of detainees.42 Both ANSAs and the Syrian government’s armed forces have used child soldiers and tens of thousands of boys and young men were forcibly recruited. Almost all involved ANSAs have recruited children, either by accepting their voluntary membership, or through organized recruitment processes targeting both local and refugee/IDP communities. Children aged from eight to 14 have been documented as bringing food and ammunition to the fighters, while children aged 16 years were actively involved in fighting. The recruitment of child soldiers is a war crime and has been condemned as such by the ICC.43 Unlike regular armies, though, most ANSA commanders are unlikely to have received training on IHL and so may not be aware of the precise age limits for recruitment and deployment. Of course, most war crimes are committed due to malice rather than ignorance, but, as with regular armies, training and sensitization of combatants of their duties and rights under international law can be a useful first step in engaging with them.

40 DCA, Towards Improved Protection of Civilians in the Internal Armed Conflict in Syria, ECHO Proposal, 2016. 41 Internal Displacement Monitoring Centre, ‘Country Overview: Syria, Figures Given for December 2018’, https://www.internal-displacement.org/countries/syria, accessed 8 April 2020. See also Global Trends, Forced Displacement in 2019, UNHCR and Regional Strategic Overview, 2019–2020, UNHCR. 42 For details see UN Human Rights Council, Independent International Commission of Inquiry on the Syrian Arab Republic, Homepage, https://www.ohchr.org/en/hrb odies/hrc/iicisyria/pages/independentinternationalcommission.aspx, accessed December 2022. 43 The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06.

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Geneva Call has developed a training methodology based on its global experiences, which can then be tailored to specific country and regional situations. It also conducts follow-up engagement with the ANSAs that it has provided training to and monitors their subsequent behaviour to see whether or not their compliance has increased. Its field monitors use a variety of techniques to gather information, from direct observation, to interviews with civilian populations and witnesses of violations to monitoring the media and social messaging groups for reports of individual incidents.44 Finding entry points for this type of work is obviously challenging. The ANSAs selected for engagement by Geneva Call were generally chosen on the basis that they had clear, functioning command chains to ensure that commitments from the top could be disseminated to their rank and files, that access could be negotiated safely and that they were perpetrators of violations of humanitarian norms. The community and religious leaders and politicians were selected because they had influence, with the capacity to inspire others. Some also had access to ANSAs, which was used to facilitate Geneva Call’s engagement. Measuring the impact of this type of work is extremely difficult. As one humanitarian aid worker said to me ‘Unless you can establish a connection between them identifying specific violations based on general training and then specific action coming out of general reports, then what is the added value of their work?’45 Another, though, commented: Our staff might come across a checkpoint when they were on a field visit and see one of the soldiers there who looked under 18 years old or notice that a school was being used by an ANSA as a barracks. I would relay this information to my counterpart in Geneva Call and a month later the child was no longer at the checkpoint and the ANSA had evacuated from the school. Obviously, there are other organisations like UNICEF and Save the Children that work on this issue as well, so we cannot be sure who caused the change, but Geneva Call do have a good reputation.46

44 Geneva Call Strategy 2020–2023, https://www.genevacall.org/, accessed 16 July 2020. 45 Foley, Geneva Call, May 2020. 46 Ibid.

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The idea that a few training courses and some general awareness-raising publicity campaigns can have much impact on the overall level of suffering at the macro-level in conflicts such as Afghanistan and Syria, is obviously fanciful. Nevertheless, there is an increasing body of evidence that international humanitarian actors can strengthen the efforts of conflictaffected civilians in advocating for their own protection.47 Indeed, as the IASC policy on protection has noted, engagement with state and nonstate actors to persuade them to uphold their obligations under IHL and IHRL is a core tenet of international humanitarian action.48 The Secretary General’s POC report for 2022, for example, noted that: ‘in 2021, Geneva Call’s engagement with non-State armed groups on the promotion of international humanitarian law resulted in an armed group in the Syrian Arab Republic moving some military bases outside civilian areas, an armed group in Yemen signing a unilateral declaration on the protection of health care, and over 1,000 members of non-State armed groups being trained on the protection of children, education and the prohibition of sexual violence.’49 The number of conflicts and the number of parties to those conflicts has risen dramatically in recent years.50 In Libya in October 2011, for example, 236 separate armed groups were registered in the city of Misrata alone, and the Carter Center counted over 1,000 armed groups fighting in Syria in 2014.51 As the ICRC has noted, ANSAs have become more fragmented and less hierarchically disciplined making it increasingly difficult to transmit, and train their members in, the rules of IHL or persuade them to adopt humanitarian norms.52

47 Victoria Metcalfe-Hough, Advocating for the Better Protection of Civilians: From Stagnation to Action, Overseas Development Institute, October 2022. 48 Inter-Agency Standing Committee, Policy: Protection in Humanitarian Action, IASC, 2016, https://interagencystandingcommittee.org/iasc-protection-priority-globalprotection-cluster/iasc-policy-protection-humanitarian-action-2016, accessed 26 October 2022. 49 Protection of Civilians S/2022/381, 10 May 2022.

in Armed Conflict Report of the Secretary-General,

50 ICRC, The Roots of Restraint of War, International Committee of the Red Cross, June 2018. 51 Carter Center, Syria: Countrywide Conflict Report No. 5, Carter Center, February 2015. 52 ICRC, June 2018.

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I spent the last two months of 2018 designing and delivering a training course on IHL and IHRL, in northern Iraq for Kurdish lawyers from Syria. Many of these were now refugees who had fled from the Turkishsponsored FSA, now an Islamist aligned part of the opposition among the increasingly multi-faceted set of protagonists fighting Syria’s civil war. We talked about the work of the ICC, the ad hoc and mixed tribunals, the international, impartial and independent mechanism investigating crimes in Syria (IIIIM Syria) and the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD). My colleague, Ken Scott, was a former senior prosecutor for ICTY and the Special Tribunal for Lebanon. I ended up giving an impromptu presentation on how to bring a case to the European Court of Human Rights, based on the one I had delivered in the refugee camps of Kosovo almost twenty years before. Afterwards the participants took us to the Lalish Temple, one of the most holy places of the Yazidis, who suffered a genocidal attack by Islamic State (ISIS) in 2014, in which around 5,000 people were massacred, and an unknown number of women were raped and sold into sexual slavery. I was presenting at the workshop for Ceasefire, the Centre for Civilian Rights, a small international NGO that develops civilian-led monitoring and reporting of IHL and IHRL to provide access to national and international justice mechanisms for the victims. Ceasefire was set up by one of my former colleagues at Amnesty International, Mark Lattimer, and its main innovation has been to equip and empower local civilian activists on the ground to ‘ensure that reliable and up-to-date information on violations is made widely available, in a secure manner, from countries or territories where the security situation makes existing reporting inadequate.’53 Ceasefire is one of a dozen or so groups that I have worked with which uses of a combination grass-roots activism and secure mobile phone information technology access to get first-hand information about violations of IHL and IHRL directly from the field to the international legal and monitoring mechanisms that, in theory, have the power to intervene directly to protect people. In the Secretary General’s 2021 POC report, for example, it was noted that:

53 https://www.ceasefire.org/, accessed 26 October 2022.

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In Sweden, prosecutors charged the chair of a private company with complicity in war crimes committed in southern Sudan between 1999 and 2003 … A United States court found a Liberian former colonel liable for war crimes and crimes against humanity during a 1990 massacre of 600 civilians. In the first universal jurisdiction trial in Switzerland, a former rebel commander was convicted of war crimes committed during the civil war in Liberia. In Germany, a court determined that a Da’esh member had committed acts of genocide in connection with the enslavement and death of a Yazidi child. A French court sentenced a Rwandan former taxi driver for complicity in genocide and crimes against humanity. In Argentina, a court authorized an investigation into war crimes allegedly committed against the Rohingya…. The ICC awarded $30 million in reparations to victims of war crimes and crimes against humanity committed in Ituri, Democratic Republic of the Congo, in 2002–2003. It also charged a former rebel leader with crimes against humanity and war crimes committed in the Central African Republic in 2013…. The Office of the United Nations High Commissioner for Human Rights and the Ethiopian Human Rights Commission, in their joint investigation into the conflict in the Tigray region of Ethiopia, found reasonable grounds to believe that violations of international human rights and humanitarian law had been committed by all parties. The Independent Fact-Finding Mission on Libya established by the Human Rights Council found reasonable grounds to believe that war crimes had been committed in the country.54

In late 2021, I returned to Iraq, although only virtually this time, to carry out another evaluation of a project being implemented by the human rights office of UNAMI. The project, Accountability for Abduction, Torture and enforced disappearance in Iraq, focused on the aftermath of a series of brutal attacks carried out by the Iraqi security forces and pro-state militias who violently suppressed peaceful demonstrations in late 2019 killing well over 500 people.55 The protests were the most widespread and longest-lasting social movement in Iraq since the US invasion of 2003 and transcended—at least to some limited extend— the sectarian, communalist divisions that have dominated politics since that date.56 They succeeded in bringing down the Iraqi government by 54 S/2022/381, 10 May 2022. 55 Conor Foley, Mid-term Evaluation, Accountability for Abduction, Torture and

Enforced Disappearance in Iraq, OHCHR, November 2021. 56 International Crisis Group, Iraq’s Tishreen Uprising: From Barricades to Ballot Box, 26 July 2021.

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the end of that year although, inconclusive elections in 2021 plunged the country into a huge political crisis, as rival Shiite militias have paralyzed the state’s institutions and brought the country back to the brink of civil war.57 The project that I was evaluating sought to enhance and develop the capacity of UNAMI’s human rights office through hiring four international native Arab-speaking UNV staff to conduct outreach work with those who have been directly affected and to engage with both alleged victims and government officials where required. The office’s leadership had previously worked in Afghanistan, where our paths had crossed, and are part of a new generation of OHCHR staff who have spent most of their careers in the field, rather than its Geneva HQ. The UNVs, who were mainly women, mainly came from neighboring Arab countries. This was important because they were not seen as either ‘westerners’ nor as allied to particular ethnic or religious groups in Iraq. In this sense, they combined political neutrality with cultural affinity. They were also the same generation as the protesters and had been involved in human rights activism in their own countries, where women are increasingly taking the lead. This meant that they were used to the dangers of operating in semiclandestine conditions, the sensitivities of interviewing people who had suffered grave human rights violations and the potential power of the mobile phone as an instrument of research, information dissemination and protest. When I asked one of them about the difficulties of conducting so many interviews and meetings remotely, she told me that this was how she was used to working in her own country because it was now too dangerous for human rights activists to maintain physical offices. UNAMI had been established as an SPM, in August 2003, shortly after the US invasion. Its initial Security Council mandate was contained on a single page, which simply instructed it to ‘support the SecretaryGeneral in the fulfilment of his mandate.’58 Five days after its issuance UNAMI’s first head, Sergio Viera de Mello, was killed in the Baghdad bombing along with several of my former colleagues from Kosovo. UNAMI’s human rights office was created the following year, and this has been carrying out monitoring, reporting and advocacy functions as well providing technical assistance to the Iraqi authorities ever since.

57 International Crisis Group, A Way Out of the Iraqi Impasse, 10 August 2022. 58 UN Security Council Resolution 1500, 14 August 2003.

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The reports produced as part of the project I was evaluating had all been detailed, precise and well documented. They also set out extensive recommendations intended to encourage further government efforts in the areas of investigations, accountability and protection, with a view to ensuring effective redress for victims and their families and preventing further violations. The project seemed to me to be a model of the type of human rights monitoring, reporting and advocacy that UN field presences should be doing elsewhere, and I had no problems positively evaluating it. What struck me, both at the time and since, was why it had been necessary to raise external funding from a donor and create a project that needed to be externally evaluated by a consultant. If the UN could not find the funds from its regular budget to hire four UNVs for a project like this in Iraq of all places, what did this say about its global situational awareness, decision-making and prioritization processes?

CHAPTER 6

Protection and Situational Awareness

Abstract Despite the adoption of a range of initiatives to improve the UN’s response to human rights crises it often seems to still be repeating the same mistakes. The usual prognosis is that this is partly due to poor situational awareness. If the UN could become better at anticipating when and where crises and conflicts are about to break out and then mobilize to take ameliorative action, more civilian lives could be saved. While this analysis is undoubtedly true, the problem is not simply a lack of data, technical information-gathering or analytical capacity. How can the UN become better at integrating human rights analysis into its early warning, early action capacity? In 2017 the UN Office of the High Commissioner for Human Rights (OHCHR) launched the first of its Emergency Response Teams (ERTs). Although the program is still comparatively young and small it points in a potential direction that the UN could develop to provide greater protection to civilians in the field. Keywords Situational awareness · Prevent · Early warning · Early action · ICRC · Emergency response teams · OHCHR

On 24 March 2021 Islamic fundamentalist insurgents in northern Mozambique began a four-day assault on the town of Palma that killed at least 87 people. Many of the victims were publicly decapitated. The © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Foley, The Protection Paradox, Human Rights Interventions, https://doi.org/10.1007/978-3-031-27427-5_6

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insurgents have killed over 4,000 people since 2017 and led to the forced displacement of around a million. Women are kidnapped and held as sex slaves; boys are forced to become child soldiers. Beheadings and torture are used to instil terror. The attacks have all occurred in Cabo Delgado, a Muslim-majority province bordering Tanzania and some of the insurgency leaders are from neighboring countries. Most, though, are disenfranchised local youth, unemployed, marginalized and frustrated that they have seen so little benefit from one of the world’s most lucrative deposits of liquified national gas, thought to be the third largest in Africa.1 The main insurgency group, Ansar al-Sunna, has an overtly Islamist agenda but the roots of the conflict are more complex and diverse. Many of the attacks have been opportunistic or criminal and government forces have also committed atrocities. Although the violence had been well documented by human rights organizations for several years it only began to receive widespread international attention after the Palma attacks, many of whose victims were international staff of Total Oil company, which suspended operations in response. I had worked in Northern Uganda on an HLP project for UN Habitat in 2006 and 2007 when it was undergoing a similarly vicious insurgency.2 This one was led by Joseph Kony of the Lord’s Resistance Army (LRA). It was Africa’s longest-running civil war at the time, displacing some 90% of Northern Uganda’s Acholi population. The LRA made extensive use of sexual slavery, and torture, kidnapping Ugandan children, some of whom were forced to murder members of their own families. Like Ansar alSunna, the LRA gave a semi-mystical twist to very real ethnic and political grievances and inequities. Kony’s avowed aim was to create a state-based literally on the Bible’s 10 commandments. He promised his followers he could make them invulnerable to bullets by sprinkling them with holy water. In the years that followed, the LRA spread its terror through northeastern DRC South Sudan, and the CAR, killing around 100,000 people and enslaving a similar number of child soldiers. The Ugandan government responded by physically driving the Acholi civilian population into ‘protected camps’ where conditions were harsh, SGBV frequent and 1 Washington Post, ‘ISIS Fighters Terrorize Mozambique, Threaten Gas Supply Amid Ukraine War’, 20 October 2022. 2 Conor Foley, A Guide to Property Law in Uganda, UN-Habitat/USAID, December 2007.

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diseases such as cholera, Ebola, and HIV/AIDS rampant. Some villages were destroyed by the Ugandan armed forces where their populations resisted relocation. At the height of the conflict, just before I arrived, 1.8 million people lived in the camps and roughly 1,000 were dying in these each week. In September 2005 the ICC had issued arrest warrants for Kony and four other LRA leaders. This was the first country to be investigated by the ICC, following a state referral by its own government. The indictments were hailed by UN Secretary-General, Kofi Annan, at the time as ‘a powerful signal around the world that those responsible for such crimes will be held accountable for their actions.’3 In my book, The Thin Blue Line, I noted, though, that: Inside Uganda itself, however, the move was met with outright hostility from a range of human rights and civil society organizations and traditional leaders. The condemnation was strongest in the north of the country, among those who have worked with people most affected by the conflict…. Everyone I spoke to expressed the same view, that the ICC’s intervention was ill-thought-out and counter-productive…. the ICC was an out-of-touch international body meddling in affairs it did not understand.4

I visited Mozambique briefly at around the same time, researching on the country’s impressive response to a flooding and cyclone in 2007. Local people had taken the lead in this, evacuating affected communities with virtually no loss of life. I wrote up a paper for the HPG praising the government’s Ministry for State Administration.5 The government had refused to declare a state of emergency during the crisis—although this would have given it access to more funding. It also insisted that international aid agencies coordinate their activities through its own ministerial departments rather than the humanitarian cluster system that the IASC had just created, and which I was theoretically there to evaluate. Mozambique is a poor country and desperately needs international assistance, 3 UN News, ‘Statement Attributable to the Spokesman for the Secretary-General on

ICC Arrest Warrants Against LRA Leaders’, 14 October 2005. 4 Conor Foley, The Thin Blue Line: How Humanitarianism Went to War, Verso, 2008, p.172. 5 Conor Foley, Mozambique: A Case Study in the Role of the Affected State in Humanitarian Action, Overseas Development Institute, Humanitarian Policy Group, 24 September 2007.

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but its government made a conscious decision to rely first on its national capacity to ‘break a cycle of international dependency.’ Mozambique had scored very well, at the time, on its progress towards meeting the Millennium SDGs: it had reduced infant mortality, increased school attendance, reduced inequality and cut military expenditure. Its former Prime Minister, Joaquim Chissano was the first ever recipient of the Mo Ibrahim Prize, for governing honestly and then stepping down at the end of his term of office. I argued that Mozambique provided a good example of how international organizations had helped a country, develop its national capacity, while Uganda was an example of where they had got it wrong. The ICC chief prosecutor, Luis Moreno Ocampo, had announced the initial investigation at a joint press conference in London with Ugandan President Yoweri Museveni, despite the obvious incongruity of sitting with someone who might turn out to be a chief war crime suspect. From the outset this meant the investigation was seen as politically biassed, based on the assumption that only one side had committed crimes of sufficient gravity to fit within the ICC’s remit. The court was subsequently to face criticisms from those concerned that a criminal trial might cut across local peace processes and jeopardize the neutrality of humanitarian aid agencies, who were accused of collecting information on its behalf.6 Similar concerns have followed other ICC investigations, particularly in relation to Darfur. The ICC quickly rowed back from the initial perception it had given in Uganda, announcing that it would investigate alleged crimes by both the LRA and government forces and setting up an ‘information and outreach’ program to dispel misinformation. Amnesty International responded by welcoming the ‘clarification’ but warning that: more will need to be done, especially since the ICC only has jurisdiction to investigate and prosecute crimes committed since 1 July 2002. A longterm national action plan is urgently needed to end impunity for all crimes under international law committed in Uganda, no matter how long ago and no matter what the official status is of those who committed them. The action plan should ensure that courts can function effectively in all parts of the country, that the safety of victims and witnesses are protected,

6 Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army, Zed Books, 2006.

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and that victims and their families can obtain the full reparation to which they are entitled under international law and standards.7

One of the five LRA indictees eventually surrendered himself to the ICC, while the cases against three were dropped after confirmation of their deaths. Kony’s whereabouts remain unconfirmed. Museveni became increasingly hostile to the ICC along with a number of other African leaders. In 2012 Uhuru Kenyatta was indicted for his alleged role in a wave of violence during election in Kenya in 2007. He had been elected as the country’s President in the interim and the case against him eventually collapsed, in December 2014, when key witnesses withdrew their evidence. In the same month, the ICC Prosecutor, Fatou Bensouda, also informed the Security Council that she had ‘no choice but to hibernate investigative activities in Darfur’ to ‘shift resources to other urgent cases’.8 The announcement was hailed as a triumph over ‘colonialist courts’ by al Bashir.9 Museveni, also took the opportunity to call on African countries to withdraw from the ICC, saying that it had become a ‘tool to target’ the continent.10 In October 2016 three African States—South Africa, Gambia and Burundi—announced that they were withdrawing from the ICC statute, accusing the Court of focusing solely on Africa and ignoring crimes committed by western nations.11 Returning to Uganda in 2018, I found that Museveni, remained firmly in power, having quashed all challenges to his increasingly authoritarian rule. The LRA had gradually disintegrated into a faction-ridden criminal group, of only a couple of hundred members.12 In its place, though, 7 Amnesty International , ‘Uganda: International Criminal Court Investigation an Important Step Toward Ending Impunity’, 29 July 2004. 8 Prosecutor of the International Criminal Court, ‘Statement to the United Nations Security Council on the Situation in Darfur, Pursuant to UNSCR 1593 (2005)’, 12 December 2014. 9 Guardian, ‘Omar al-Bashir Celebrates ICC decision to halt Darfur investigation’, 14 December 2014. 10 The Telegraph, ‘International Criminal Court is ‘hunting’ Africans’, 27 May 2013;

and Washington Post, ‘Is the International Criminal Court Really Targeting Black Men?’, 17 June 2005. 11 Independent, ‘Gambia joins South Africa and Burundi in exodus from International Criminal Court’, 26 October 2016. 12 Deutsche Welle, ‘The Last Throes of Uganda’s Lord’s Resistance Army’, 24 January 2022.

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Islamist-orientated ANSAs had carried out bombings in the capital Kampala, leading to a crackdown on the country’s Moslem community. The most serious of these, in 2010, had killed almost 100 people while watching the World Cup final. It was claimed by the Al-Shabaab movement, which is linked to al-Qaeda, protesting against Uganda’s participation in the UN sanctioned PKO in Somalia. A government crackdown against Uganda’s Moslem community followed, and I witnessed the arbitrary detention of a prominent Islamic cleric by Ugandan police, in direct contradiction to the order of a High Court judge whom I had just interviewed. There were a series of bomb attacks across Uganda, in 2021, targeting police stations, restaurants and other public places, including a foiled bomb attack on the funeral of a Ugandan general and the attempted assassination of a government minister.13 According to the International Crisis Group (ICG), these were linked to the Allied Democratic ForcesNational Army for the Liberation of Uganda (ADF) which, like the LRA, was founded as a Ugandan anti-Museveni rebel group in the 1990s. Also, like the LRA, the ADF partially relocated itself to the DRC under pressure from the Ugandan armed forces.14 Since 2013 the ADF has shifted bases between North Kivu and Ituri provinces, developing alliances with other local militias and armed groups, including sometimes the Congolese army. It is also believed to have killed thousands of Congolese civilians. The ADF has carried out some joint training with its Mozambican counterparts, since 2021, and recruited from neighbouring countries drawing Burundians, Kenyans, Congolese and Tanzanians into its ranks. Both the ADF and Ansar al-Sunna are increasingly allied with Islamic State (ISIS) and claim to be fighting for a Caliphate. In July 2021, Rwanda deployed an initial force of 1,000 combat troops to Mozambique’s Cabo Delgado to drive back the insurgents. Angola, Botswana and South Africa contributed more troops under the aegis of a Southern African Development Community (SADC) regional intervention force. The US and EU also announced that they would be providing specialist forces and training to the Mozambican army. A US Congressional Briefing noted that: ‘In addition to military efforts, many observers 13 Reuters, ‘Uganda Links Islamist Rebels to Attempted Murder of Minister’, 1 July 2021. 14 International Crisis Group, The Kampala Attacks and Their Regional Implications, 19 November 2021.

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contend that ending the insurgency would require programs to increase social cohesion, including in religious contexts, and restore livelihoods and social services, followed by longer-term development investments.’15 In April 2022, US President Joe Biden announced that Mozambique would be one of the first countries to receive an aid package under a new Global Fragility Act of 2019, which supports an ‘integrated, evidence-based, prevention-focused, coherent and field-driven approach to address drivers of fragility that can threaten U.S. national security.’16 The government also launched a national development plan for the northern provinces backed by the World Bank and international financial institutions (IFIs) that explicitly sought to analyze and address the drivers of conflict. Reading through some of the reports and program documents related to Mozambique in 2022 reminded me of similar approaches applied in Afghanistan and Iraq almost two decades previously. It is difficult to avoid weary feelings of déjà vu at the international reaction to another jihadi insurgency. A study by the ICRC, in 2018, noted that some 40% of states experiencing armed conflict the previous year were confronting jihadi groups, and the vast majority of all foreign interventions are currently against armed groups with a jihadist agenda.17 Some of the insurgents in Mali and CAR, confronting MINUSMA and MINUSCA, are also Islamists. The brutal and sometimes indiscriminate violence that extremist Islamist groups often practice are almost designed to provoke harsh responses and so exacerbate initial grievances based on injustices, corruption and humiliation from which they draw their core bases of support. The final ‘protection paradox’ in this book’s title, though, is that the ‘non-interventionist alternative’ is so often likely to be worse. The frustration I heard about the ICC prosecution in Uganda was not because

15 Nicolas Cook, ‘Insurgency in Northern Mozambique: Nature and Responses’, US Congressional Research Services, July 2022. 16 US Department of State, 2022 Prologue to the United States Strategy to Prevent Conflict and Promote Stability, 1 April 2022, https://www.state.gov/2022-prologueto-the-united-states-strategy-to-prevent-conflict-and-promote-stability/#:~:text=The%20l andmark%202019%20Global%20Fragility,more%20peaceful%20and%20stable%20world, accessed 2 November 2022. 17 ICRC, The Roots of Restraint of War, International Committee of the Red Cross, June 2018.

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people did not want to see the LRA leadership go to prison; they just wanted a fair, impartial and independent investigation. The Afghans who complained to me about civilian deaths from coalition airstrikes did not want the Taliban to return to power. Threatened civilians in countries hosting UN PKOs want to see more—not less—effective action by peacekeeping soldiers. It is doubtful if the Tamils besieged in Sri Lanka, in 2009, or the victims of the Kurdish, Rwandan, Bosnian or Yazidi genocides would have been overly concerned about the jus ad bellum legitimacy of a ‘humanitarian intervention’ to rescue them. For all the failures of such interventions in recent year, the alternative of simply allowing mass slaughters to proceed unchecked is morally unconscionable. Despite the adoption of a range of initiatives to improve the UN’s response to crises already discussed, more recent large-scale violations of IHRL—such as the Rohingya crisis in Myanmar in 2017 and the outbreak of conflict in Tigray, Ethiopia, in late 2020—UNCTs appear to still be repeating the same mistakes. Damian Lilly, a senior POC officer whom I first met in Southern Sudan, notes that: As in Sri Lanka, the UN country team in Myanmar failed to acknowledge the seriousness of the violations occurring, prioritized quiet diplomacy over public advocacy to maintain support for the political transition even when it was no longer working, and assumed that development cooperation could address the human rights concerns even without a coherent political strategy … Most recently, the UN has struggled to contend with protection challenges following with accusations of UN officials downplaying reports of sexual violence. Reviews of the UN’s role in providing protection in the context of peacekeeping and humanitarian action have highlighted similar issues.18

The usual prognosis about many of the UN’s worst failures to protect civilians is that they are partly due to poor situational awareness. If the UN, or ‘international community’ more broadly, could become better at anticipating when and where crises and conflicts are about to break out and then mobilize to take ameliorative action, more civilian lives could be saved. While this analysis is undoubtedly true, it also entirely unoriginal. A recent academic study noted that there are well over 30

18 Damian Lilly, The UN Agenda for Protection: Policy, Strategic, and Operational Priorities, International Peace Institute, March 2022.

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‘separate systems and datasets addressing issues of violent conflict, state failure, genocide, mass atrocities, humanitarian emergencies related to natural disasters, and other threats to political stability. Some conflict early warning systems are overseen by governments and international/regional organizations while others are administered by think tanks, universities, and private actors.’19 This suggests that the problem is not a lack of data, nor, necessarily, technical information-gathering or analytical capacity. Paula Sima Magalhães is a Brazilian OHCHR Human Rights Officer, who currently Heads the Emergency Response Team (ERT) for South America. The ERT program was set up by OHCHR in 2017 and is designed to identify trends that could lead to conflict or serious violations and to establish the basis for timely, targeted, preventive action. Magalhães set up the first ERT for Southern Africa in 2017. She was based out of Pretoria for the first two years but moved to Mozambique in 2019 as OHCHR expanded its presence in country and human rights context became more complex. She coordinated the Human Rights Working Group in Mozambique until the end of 2021 and was there during the worst days of the insurgency. The Working Group was mainly used to coordinate submissions to the HRC’s treaty and non-treaty reporting mechanisms, which included considerations of the growing violence. Magalhães was also among the first advocates inside the UN system urging international action before the situation escalated, providing briefings through the Protection Cluster and humanitarian actors working in the north of the country. She described to me her frustration as she lobbied the UNCT, RC and HC as well as UN AFPs, such as UNHCR, who all seemed initially reluctant to accept the growing evidence of a descent into conflict. ‘We started mapping the incidents of violence, but also a whole range of socioeconomic indicators, progress on the SDGs and violations of IHRL. It really was clear that the country was going into reverse.’20 The ERT program currently consists of six, two-person teams—a human rights officer and an information manager—and they are located in OHCHR’s regional offices in Central and South America, Southern, West and Central Africa, and Southeast Asia. The program is located 19 Robert Muggah, and Mark Whitlock, Reflections on the Evolution of Conflict Early Warning, Stability: International Journal of Security and Development, Vol. 10, No. 1, 2022, p. 2. 20 Interview, Rio de Janeiro, 4 November 2022.

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in OHCHR’s Emergency Response Section, in Geneva, which is led by Roberto Ricci, who formerly headed MONUC’s Human Rights Unit and has a strong background in working to strengthen OHCHR’s field presences in crisis situations. It is entirely funded by external donors, principally the Swedish development agency (SIDA), with smaller sums from other countries. Given the scope of what they are attempting to do, the resources of the ERTs are tiny. Their basic task is to produce human rights risk analyses for the wider UN system at the HQ and field level. They are deployed in regions whose countries span the spectrum from full-scale conflict to post-conflict, fragile and developing states. It is difficult to evaluate the impact of the ERT program—although I tried to in 2022—partly because it is so small and so recently established.21 There are still many important regions of the world where crises are occurring and where the ERTs do not have an effective presence. There are currently no ERTs deployed in the Middle East and Northern Africa, Central Asia and Southeast Europe, despite the obvious relevance of the program to many of the countries in these regions. One ERT is also covering both Southeast Asia and South Asia, which are hugely different contextual situations. The ERTs also do not cover countries where OHCHR has a Country Office, which are the strongest of its stand-alone presences. Nor would the ERTs duplicate the work of the human rights component in a SPM or PKO—which include some of OHCHR’s largest field presences in terms of staff deployed. More broadly, though, it is clearly challenging to try and assess a success that can only be measured in negative terms. What contribution, if any, might the efforts of a two-person team, operating in an entire region within a far wider context of variable factors have made to preventing something that did not happen? To scale up from there, is it possible to ask how many conflicts the UN system as a whole has helped to prevent or how many lives it has saved that otherwise might have been lost? It is almost an exercise in futility to pose such hypotheses at the macrolevel. Yet, there are micro-level indicators of progress, which should not be ignored, however, tentative any conclusions that are drawn from them can be. While the Southern Africa ERT failed to prevent the outbreak of conflict in Mozambique, for example, it may credibly have helped to head off widespread civil conflict in Malawi in a post-election crisis in 2019. 21 Conor Foley and Joaquin de la Concha, Evaluation of OHCHR’s Emergency Response Teams Programme 2017–2022, OHCHR, October 2022.

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Malawi was once described by the Economist as the poorest ‘peaceful’ country in the world.22 it almost lost that epithet, in May 2019, when protests over a rigged election turned violent and were viciously suppressed by the police. These gang-raped at least 18 women as well as beating and shooting the protesters. Malawi’s Constitutional Court annulled the results and ordered a fresh poll. The UNCT began preparing for how to deal with an all-out conflict. The ERT had previously helped the RC and UNCT to set up a Prevention Platform. It then provided support to the HRA in Malawi with remote monitoring, the use of information management tools and the production of analysis, including graphs and visuals, which were used to produce weekly briefings for the UNCT and to inform UN decision-making in the country. The platform also brought together the various parts of the UN field presence in crisis response mode. As well as being brutal, the Malawian police were badly equipped and ill-trained. By working together, and in liaison with their respective HQs, OHCHR, UNDP and DPPA, were able to bring in police trainers and equipment, set up local mediation and focus diplomatic attention on the issue. A fresh poll was held in June 2020, which the opposition won, and which election observers concluded had been free and fair.23 Prior to her work for the ERTs Magalhães had worked in the field for the UN in Haiti, Palestine and Uganda. In 2013 she became a Coordination Officer of the UN Operations and Crisis Centre (UNOCC), which was set up in the same year. This was initially established as the UN peacekeeping situation centre (Sit Cen) set up to service DPKO and the UN’s PKOs and SPMs at field level. Its remit was expanded to include the EOSG and to take on a greater information management function for the whole UN system. This accompanied the wider restructuring of the UN system that took place around 2017. As previously discussed, this was part of a broader agenda to promote situational awareness, make conflict

22 Economist, ‘Malawi Has Saved Its Democracy But Not Its Economy’, 22 September 2022. 23 Al Jazeera, ‘Malawi Presidential Election: Lazarus Chakwera Declared Winner’, 27 June 2020.

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prevention a cross-pillar priority and to foster an integrated approach to human rights and development.24 UNOCC produces daily briefing notes, drawing together information from across the system, intended to support decision makers in UN operational departments and agencies. it hosts the crisis response discussions of UN leadership and prepares briefings based on field information for these meetings. It also hosts the Secretariat of the UN’s Regional Monthly Review (RMR) process which uses a combination of development, political, human rights and humanitarian analyses to define recommendations for strengthening conflict prevention action. UN entities participate in the RMR at Director level, considering early warning information and agreeing upon possible preventive measures to support the relevant UN field presence in responding to evolving situations. UNOCC also prepares background data analytics and materials for the UN Executives and Deputies Committees, which oversee the RMRs. OHCHR has a Human Rights Analyst embedded in the UNOCC who works directly with the ERTs and other parts of its emergency response system. OCHA, UNDP and DPPA have also developed Early Warning, Early Action mechanisms and crisis dashboards which function in a similar manner to the ERTs. In theory this means that the UN should be able to get ‘in front of the curve’ when it comes to crisis response and, in Malawi in 2019, there is some evidence that it managed to do this. In Zimbabwe, crackdowns on political protests in August 2018, and then again in January and August 2019, led to a similar mobilization. OHCHR’s reports fed into the UN’s early warning tool and RMR risk factor framework and Zimbabwe was included in a high-level discussion in UN HQ in New York. This recommended, among other things, that an inter-agency mission deploy to the country, in March 2020, to provide visible support to a newly appointed RC. Two UN human rights Special Rapporteurs—one on the right to freedom of assembly and association and one on the right to food— also visited the country and OHCHR used the visits to highlight the connection between violations of economic, social and cultural rights and grievances as drivers of violence and unrest. Similar approaches have been used in Gambia, Benin, Senegal, Zambia, Côte d’Ivoire Botswana, Lesotho and Eswatini. The ERT program 24 UN General Assembly, Repositioning the United Nations Development System to Deliver on the 2030 Agenda: Our Promise for Dignity, Prosperity and Peace on a Healthy Planet Report of the Secretary-General, A/72/XXX, 20 December 2017.

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seems particularly relevant to sub-Saharan Africa where poverty, political instability and weak state capacity mean that protests, or religious and communal tension have a very strong potential to turn from civil unrest into conflict. Southern Africa is also experiencing an increase in humanitarian disasters due to climate change, further increasing its fragility. In Southeast Asia, OHCHR has faced far more problems gaining access to more closed countries, although the ERT was able to provide some information management support to the OHCHR team working on Myanmar, in tracking human rights issues following the coup of 2021. It also highlighted the violent crackdown on pro-democracy protesters in Thailand. The most recently established ERTs are in Central and South America where heavily armed narco-traffickers and the police are involved in clashes of such violence in some countries that the distinction between ‘war’ and ‘peace’ have become increasingly difficult to draw.25 As discussed in the first chapter of this book, the best way to protect people is to tackle the root causes of the violent conflicts that threaten them. Yet when such conflicts arise, humanitarians face the difficult dilemma of whether or not to jeopardize ‘humanitarian access’ by speaking about the violations of IHL and IHRL that they witness and directly engage with the perpetrators. Clearly there are often no easy options here, but as Victoria Metcalfe-Hough notes in a HPG report published in October 2022: Advocacy on protection issues presents a wide array of risks but it is also evident that not all risks are particularly acute. There are surprisingly few examples of a direct link between advocacy (conducted privately or publicly) and restrictions imposed upon, attacks against, or threats made to international humanitarian organisations or their staff or partners. Instead, as evidenced throughout this research, the international humanitarian’s understanding of the risks involved are often based on ill-informed assumptions rather than a thorough assessment, are often overstated, and are rarely considered in relation to the risks to local partners or to affected populations if internationals stay silent.26

25 Conor Foley, Legitimate Targets: What Is the Applicable Legal Framework Governing the Use of Force in Rio de Janeiro? Stability: International Journal of Security & Development, Vol. X, No. X, 2022, pp. 1–19. 26 Victoria Metcalfe-Hough, Advocating for the Better Protection of Civilians : From Stagnation to Action, Overseas Development Institute, October 2022.

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The acknowledged leading expert in this field is the ICRC, founded over 150 years ago and which now has almost 100 million supporters worldwide. The ICRC has a long history of working with both state armed forces and ANSAs to foster respect for IHL and IHRL rules at the strategic, operational and tactical levels. It works with senior commanders, policymakers, and front-line fighters to promote the integration of humanitarian norms into their training and decision-making. Indeed, many of the initiatives, innovations and good practices described in the previous chapter have their roots in models that the ICRC has pioneered. In a summary of its work on understanding the sources of influence on soldiers and fighters when it comes to respect for humanitarian principles and norms, published in 2018, the ICRC notes that both the number of conflicts and the number of parties to those conflicts has risen dramatically in recent years.27 Armed conflicts are also increasingly fought in urban areas, which tend to be densely populated, so explosive weapons kill more civilians and have a knock-on effect when they lead to the destruction of vital infrastructure such as power grids and water-treatment plants. Powerful states are also ‘outsourcing warfare... to maintain a geographical distance from the battlefield and ease the domestic costs of direct involvement.’28 This may be done by providing logistical, training, intelligence, advisory, air or other support to state or non-state military proxies, hiring private security companies or mercenaries, or through the increasing use of cyber warfare, remote technologies such as surveillance and combat drones, and autonomous weapon systems. Despite these attempts to ‘dilute responsibility for battlefield conduct,’ the international legal framework governing such actions established around the concurrent and extraterritorial application of IHL and IHRL remains clear. As discussed in previous chapters, there are an increasing number of monitoring, reporting and advocacy mechanisms being developed to promote legal accountability for violations. In its findings from its study the ICRC notes that: An exclusive focus on the law is not as effective at influencing behavior as a combination of the law and the values underpinning it. Linking the law to local norms and values gives it greater traction. The role of law is vital 27 ICRC, The Roots of Restraint of War, International Committee of the Red Cross, June 2018. 28 Ibid., p. 14.

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in setting standards, but encouraging individuals to internalize the values it represents through socialization is a more durable way of promoting restraint. Understanding the structure of armed groups is a first step in identifying potential sources of influence over their behavior. The more decentralized the armed group, the more the sources of influence are external to the group. By focusing on restraint as well as violence, we broaden our understanding of who or what influences behavior. Analyzing patterns of violence can help to pinpoint instances where restraint has been exercised. Youth make up the bulk of present and future fighters. Finding innovative and locally adapted ways to reinforce norms of humanity among them, including via digital media, is essential. External entities are able to influence the behavior of armed forces and armed groups.29

This suggests a more expansive approach to the ICRC’s mandate than was traditionally the case. When the Red Cross was first established, after the Battle of Solferino in 1859, it did not seek to ‘prevent wars’ let alone address their root causes. It is an impartial, neutral and independent organization, whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and internal violence and to provide them with assistance.30 It was formed when conflicts were mainly fought between states and the benefits of obeying the rules of IHL were mainly reciprocal. As conflicts have become increasingly non-international and the differences between a non-international armed conflict and a situation of protracted violence that does not meet this threshold have narrowed, the ‘purist’ distinction between the legal frameworks of IHL and IHRL has declined in practical significance. One of the weak points that we noted in our evaluation of the ERT program, was that its objective of: ‘Working with humanitarian actors to ensure that their responses are informed by a human rights-based analysis’ had not really been accomplished, due to a lack of resources.31 Although there were some examples of good cooperation, it was clear that human rights and humanitarian workers still largely inhabit different worlds and that OHCHR is a minor and recent player in the humanitarian field. This is not particularly surprising as it is a newer and smaller entity within the overall UN system. Until comparatively recently, the main focus of

29 Ibid., p. 9. 30 ICRC Homepage, https://www.icrc.org/en, accessed 10 November 2022. 31 Foley and dela Concha, October 2022.

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OHCHR’s work was also in servicing the Geneva-based international legal norm-setting and treaty and non-treaty reporting mechanisms of IHRL rather than field work. In 2014, I had carried out my first evaluation of an OHCHR field program—the Regional Office for Central Asia (ROCA)—which also the first ever external evaluation of an OHCHR field presence.32 It proved to be a steep learning curve for both of us. ROCA had been established in 2008, building on previous OHCHR initiatives in the region. It had two international and five national staff. Central Asia was widely seen as a strategically important region in geo-politics and human rights terms. NATO had formally disengaged from Afghanistan in 2012, although its forces continued to be involved, by proxy, in what was by then the world’s most deadly conflict. Russia had illegally invaded and annexed Crimea in the same year and its own proxy forces, ‘the little green men,’ were actively destabilizing eastern Ukraine. The head and deputy head of ROCA had been redeployed to the monitoring mission in Ukraine just before we arrived. From the interviews that we conducted it seemed that the OHCHR staff on the ground had showed the type of ‘courageous, empowered leadership of protection’ that recent HPG reports have called for.33 Or as one interviewee put it to me ‘we had the right people, in the right place at the right time.’ Although ROCA nominally covered Kazakhstan, Kyrgyzstan, Tajikistan and Turkmenistan (while Uzbekistan was covered by OHCHR-HQ since the government refused to allow an in-country presence) it focused much of its activities in Kyrgyzstan, where its main office and most of its staff are based. In April 2010, social unrest in Kyrgyzstan led to the overthrow of the country’s President in a wave of violence that resulted in over 400 deaths and the destructions of around 3,000 properties. Around 300,000 people were driven from their homes while over 700,000 had their livelihoods destroyed and were left dependent on humanitarian assistance.34 The violence was fueled by economic, social and cultural rights grievances. Ethnic Uzbeks had traditionally been underrepresented in 32 Conor Foley and Katerina Stolyarenko, Evaluation of the Regional Office for Central Asia, OHCHR, October 2014. 33 Gemma Davies and Mark Bowden, Leadership of Protection in the Humanitarian Sector, HPG Policy Brief, Overseas Development Institute, November 2022. 34 A Study of the OHCHR Response to the Humanitarian Emergency in Kyrgyzstan, OHCHR, Europe and Central Asia Section, August 2013, paras 18–22.

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public life, but played a significant role in the private sector, running small businesses. Disputes over HLP rights and unequal access to political power had simmered below the surface for years, and previously erupted into violence at the time of the break-up of the Soviet Union. A new caretaker government was formed in July 2010 with national elections scheduled for the end of that year. While the national political scene stabilized relatively quickly, widespread violence broke out in June in the southern provinces of Osh and Jalal-Abad between ethnic Kyrgyz and ethnic Uzbeks.35 The UN responded by appointing its Kyrgyzstan RC as HC, forming a HCT and rolling out the cluster system. Two Flash Appeals were launched, which by the end of June 2011, had raised some USD $133 million. Some humanitarian agencies, such as the ICRC and MSF, began delivering aid immediately, but the humanitarian phase of the crisis was actually quite brief. By the end of June 2010, almost all refugees and IDPs had returned home, except for a few hundred who remained hospitalized in Uzbekistan. The displacement crisis, however, was replaced by a human rights crisis as the authorities responded to the initial violence with sweeping security operations, primarily targeting ethnic Uzbeks.36 In July 2010, the first UN inter-agency protection assessment confirmed earlier reports of violations and identified access to justice and legal services as a key ‘protection gap’. A Situation Report (Sitrep) concluded that there was an urgent need for protective measures primarily to address arbitrary arrest, ill-treatment and torture in detention and a need for increased accountability of the law enforcement agencies and other public authorities.37 ROCA had already been playing a leading role in the protection sector, focused on contingency planning for a natural disaster, and initially led the response to the evolving crisis. Its offer to co-lead the Protection Cluster, however, was declined and the HC instead designated it as a lead of a human rights sub-cluster, under UNHCR’s overall leadership. The arrangement appears to have worked well as, in

35 See, for example, ‘UN Experts Alarmed by Ethnic Violence in Kyrgyzstan Call for Restraint and Dialogue’, 15 June 2010, http://www.ohchr.org/en/NewsEvents/Pages/ DisplayNews.aspx?NewsID=10152&LangID=E, accessed 30 December 2022. 36 OHCHR Response, August 2013. 37 Kyrgyzstan Protection Cluster, Situation Report, July 2010.

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practice, UNHCR focused its projects on the restoration of legal documents, and HLP rights, while OHCHR focused on other violations of IHRL and the administration of justice. The UN and most international agencies were unable to access the field until July 2010, which meant that most information about what was happening came from local human rights NGOs. ROCA already had good contacts with many of these and so could provide the HC and the HCT with regular, consistent and credible information about the human rights situation from the start of the crisis. As our evaluation report noted: ROCA’s reputation prior to the 2010 crisis in Kyrgyzstan made it a credible institution to play a leading role in the humanitarian protection sector and to develop its subsequent peace-building activities. OHCHR-ROCA emerged from the crisis with its reputation considerably enhanced and its response showed to donors that it was a credible institution to implement project activities. Subsequent projects have enabled ROCA to expand a number of its activities and promote its visibility in Kyrgyzstan, as well as covering some of its core costs. ROCA now has one of the largest budgets of an OHCHR field presence, due its success at local project fundraising from a variety of donors. Between 2010 and 2013, ROCA implemented four large projects - two funded by the UN Peace-building Fund (PBF) and two by the European Union (EU).38

Administratively, however, this proved problematic. At the time of the evaluation, OHCHR’s Regional Offices did not have their own bank accounts and depended upon UNDP for support. Administrative delays were frequent, and procedures slowed down during the emergency, because of an increase in workload. The lack of delegation of authority also meant that most financial reporting had to go through OHCHR headquarters in Geneva, rather than being handled directly by ROCA. The financial systems used by OHCHR did not match the EU’s and so HQ staff had to keep separate budgets for reporting purposes. OHCHR also had rather restrictive procedures for the disbursement of funds and local organizations had to submit proposals, budgets as well as reports on project implementation to be approved by an internal oversight mechanism in Geneva. All financial reporting and disbursements also had to be approved, which meant that ROCA’s local partners sometimes had

38 Foley and Stolyarenko, 2014.

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to work for months on the promise of a later payment. ROCA’s acting deputy head estimated that she spent 80% of her time working on financial and administrative issues, although her professional background was as a human rights lawyer not a program officer. It had taken three months for OHCHR to recruit its team for the ROCA crisis response, while UNHCR completed a similar process in a few weeks. OHCHR had attempted to fill the gap with temporary contracts, emergency deployments and short-term missions, but relocated staff could only be deployed for a month at a time, since their posts in Geneva were uncovered. Our evaluation also noted that ‘some linemanagers had been reluctant to release their staff for the field even where their applications to the Roster had been duly signed. One interviewee stated that, in contrast to other UN agencies, time spent in the field was not considered beneficial in career terms.’39 Extrapolating from the particular to the general is always problematic. Basing a book on too many personal anecdotes also raises obvious ethical as well as analytical issues—particularly given the subject matter tackled here. My own subjective account is obviously partial, selective and essentially random, since it focusses on places where I happened to have worked at particular points in time. Another author who had worked for other entities or on other issues in other places might come to different conclusions or take issue with some of the simplistic summaries of specific situations throughout the book. Yet, the lack of a comprehensive summary of good practices and lessons learned also illustrates the fragmented, overlapping and incomplete nature of the UN ‘system’ for responding to and preventing human rights crises and conflicts. Simply aligning the different parts of an international bureaucracy so that it can minimally deliver basic ‘protection’ to people’s whose lives are in danger has been the work of a generation of international civil servants. Using it to support emergent peace processes or effective conflict prevention where the voice of local people is heard at the diplomatic negotiating table seems almost far-fetched. The cozy comfort of cynicism, however, also has moral implications. There is a broad international consensus on how societies can reduce violence. If a government succeeds in increasing living standards, reducing inequality, improving universal health care, opening access to education,

39 Ibid.

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protecting the environment, tackling corruption, strengthening justice and accountability mechanisms and ensuring macro-economic stability, it is unlikely to experience a significant internal conflict. The specific goals and the mechanisms needed to achieve this are succinctly expressed in the SDGs, which have been repeatedly endorsed by the nations of the world at the UN General Assembly. They have been spelled out in detail in the jurisprudence of IHRL—covering social, economic and cultural as well as civil and political rights. It is also widely accepted that only national governments can achieve these goals and that societal attitudes will differ about how to go about this. This is the stuff of domestic political alignments and division. ‘Peacebuilding’ obviously cannot be imposed from the outside and the best that the ‘international community’ can do is provide specific support, at specific times, in specific situations. Sometimes this might mean deploying peacekeeping soldiers, sometimes it might involve national capacity building and sometimes supporting civil society. Acknowledging the overall inadequacy of these efforts does not mean that the UN should not try to get better at doing what it is already starting to do.

CHAPTER 7

Conclusions

Abstract This book sets out to discuss how the UN can get better at protecting the lives of civilians in conflict, based on the premise that is getting better at doing so. There is nothing particularly complicated or mysterious about what needs to be done to continue this process. Indeed, much can already be found in the reports and resolutions that the UN has already adopted in recent years. More significantly, there are good practices to draw on from what is already working in the field. The UN needs to significantly increase funding to OHCHR’s field presences, streamline the Protection Coordination structures of the humanitarian sector and integrate OHCHR into this at the field and HQ level. It needs to develop a UN wide situational awareness system, through a pooling of information and good practices in existing models and it needs to ensure that a human rights analysis is fully integrated into all UN decision-making, lessons-learned and after-action reviews. Keywords Security Council reform · Peace · Coordination · Funding

Although neither peacekeeping nor POC are anywhere listed as explicit responsibilities in the UN Charter, the record of a UN mission in protecting civilians is widely viewed as indicative of its broader success or failure. From Rwanda and Srebrenica to Darfur, DRC and South Sudan, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Foley, The Protection Paradox, Human Rights Interventions, https://doi.org/10.1007/978-3-031-27427-5_7

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the UN’s failures to prevent massacres of civilians or grave violations of IHL and IHRL have caused huge reputational damage. Conversely, even while accepting that it is far harder to measure, a ‘protection success’ by a UN mission deserves a wider appreciation. A central argument of this book is that the UN is getting better at this task. The UN Charter is often compared to a constitution as it sets out the legal powers, roles and inter-relationships of its constituent components. The UN’s purposes are set out in Article One and include the maintenance of international peace and security, the promotion of human rights, and the development of friendly relations among nations based on humanitarian cooperation and respect for equal rights and selfdetermination.1 The Security Council has the ‘primary responsibility for the maintenance of international peace and security’. Its members agree that it ‘acts on their behalf’ in ‘carrying out duties under this responsibility’ and to abide by and implement its decisions.2 Under Chapter VII the Council may ‘determine the existence of any threat to the peace’ and ‘take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.’3 ‘In the event of a conflict between their obligations under the Charter and those under any other international agreement,’ their Charter obligations shall prevail.4 The UN Charter does not incorporate the ‘checks and balances’ that are often associated with constitutional theory, and nor does it provide for a clear separation of powers. There are no obvious means to judicially review Security Council decisions or limit its discretion to use its Chapter VII powers in a variety of situations.5 This has led to controversies, both when the UN has acted and when it has failed to act in the face of humanitarian crises. Several small libraries could already be filled with the debates about two central aspects of the UN’s role in protecting civilians: ‘humanitarian interventions’ and reform of Security Council. As one

1 UN Charter Article 1. 2 UN Charter Articles 24 and 25. 3 UN Charter, Article 42. 4 UN Charter Article 103. 5 Case Concerning Questions of Interpretation and Application of the Montreal Conven-

tion Arising Out of the Aerial Incident at Lockerbie (Libya v UK), Provisional Measures Order of 14 April 1992, ICJ Reports 1992.

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legal scholar has noted, raising these subjects ‘in a room full of philosophers, legal scholars and political scientists is a bit like crying “fire” in a crowded theatre.’6 Proposals for Security Council reform have mainly focused on expanding its permanent membership—with Brazil, Germany, Japan and India most usually mentioned as candidates—and getting rid of its P5 vetoes, or at least limiting their use. But there has been little substantive progress on these issues and the attempts to foster a new ‘global political consensus’ around R2P have also largely failed. The UN’s POC agenda has, however, necessitated continued considerations of pragmatic reform in both the Security Council and Secretariat in recent decades. As Willmot and Mamiya have observed: ‘While the international community struggled with the revolutionary strategic concepts of humanitarian intervention and the Responsibility to Protect, a quiet evolution was taking place in UN peacekeeping, through the development of POC.’7 The concept was first adopted as a result of failures by UN missions to protect civilian lives in the 1990s. It was originally thought of primarily in terms of military strategy and tactics—the actions of a particular group of peacekeeping soldiers, in a particular scenario, to defend civilians from particular threats, using the particular tools available to them in a PKO. But as it is increasingly being viewed more broadly and holistically, how do we define and record its achievements? What examples of good practices are there to discuss, analyze, learn from and integrate into future planning? If the UN is getting better at protecting civilians, how is it doing so? In 2009, a decade after the issuing of the first POC mandate, UN Secretary-General Ban Ki-moon hailed ‘ten years of normative progress’ and stated that it had ‘increasingly permeated the country-specific deliberations and decisions of the Council’, resulting in ‘concrete proposals and decisions’ to improve protection.8 While a decade previously ‘members of the Security Council questioned whether situations of internal armed 6 Robert Keohane, in Holzgrefe and Keohane (eds), Humanitarian Intervention:

Ethical, Legal and Political Dilemmas, Cambridge University Press, 2003, p. 1. 7 Haidi Willmot and Ralph Mamiya, ‘Mandated to Protect: Security Council Practice on the Protection of Civilians’, in Marc Weller (ed), The Oxford Handbook on the Use of Force in International Law, Oxford: Oxford University Press, 2014, pp. 375–399. 8 Report of the Secretary-General on the Protection of Civilians in Armed Conflict, S/2009/277, 29 May 2009.

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conflict constituted a threat to international peace and security’, this was now ‘firmly recognized’ by all. His report warned, though, that POC ‘remains largely undefined as both a military task and as a mission-wide task.’ There was a need for a ‘broader policy framework that includes clear direction as to possible courses of action, including in situations where the armed forces of the host State are themselves perpetrating violations against civilians, as well as indicative tasks and the necessary capabilities for their implementation.’ It noted that POC ‘is not a purely humanitarian task; rather, it is a task that requires focus and action in the peacekeeping, human rights, rule of law, political, security, development and disarmament fields.’ Just over a decade later, in 2020, when the UN Secretary-General António Guterres launched his Call to Action for Human Rights, he committed the UN to develop an ‘Agenda for Protection’ in which all UN field presences should be ‘informed by a human rights risk and opportunity analysis.’9 Initiatives such as HRUF and HRDDP, which had developed directly in the meantime out of challenges facing the UN at the field level. These have reinforced a ‘cultural change’ in how the UN is becoming more responsive to developing potential and actual human rights crises. By identifying trends, assessing risks and planning prevention efforts, various parts of the UN are helping to promote both situational awareness and Early Warning, Early Action and encouraging greater UN inter-entity cooperation around the Prevention agenda. Some examples of good practices in the field have been highlighted in this book, although the list is obviously partial, subjective and sometimes superficial. The UN also needs to become better at developing monitoring and evaluation (M&E) systems to measure how its activities strengthen human rights and conflict prevention. At the same time, there will be situations in which the only meaningful way to implement a POC mandate is to give UN peacekeeping soldiers authority to use force to protect people in mission-hosting states. This gives rise to another set of legal and practical questions. When should soldiers open fire against third parties for ‘protective purposes’? When should they arrest and detain? What are the rights of those deemed to be a threat in particular circumstances? What is the system of accountability when mistakes are made? The detailed Rules of Engagement (RoEs) or 9 UN Secretary-General, The Highest Aspiration: A Call to Action for Human Rights, 2020.

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Directives on the Use of Force (DOF) of individual missions or the broader policy advice and training provided by UN HQ give overall guidance. But the very structure of the UN militates against formal effective legal accountability, for the reasons set out in the Charter itself as summarized above. In the absence of this, the UN has sought to develop ad hoc mechanisms to address its own short comings. The Secretariat also regularly carries out its own reviews and ‘lessons learned’ exercises, from the field, which, as Sheeran argues, have become an important process by which the UN ensures that it remains within the constraints of international law.10 The growing number of resolutions, reports, policy documents and guidance that refer to the centrality of IHRL ensure that this is now widely recognized to be part of the normative framework guiding the Organization and an ‘interpretative constraint’ in any cases of conflict about its international legal obligations. What is missing is a systematic institutional framework which ensures that IHRL’s negative and positive obligations are integrated into all decision-making processes from the field to headquarters where civilians are threatened in conflicts. Human Rights Officers are increasingly playing this role in PKOs, but as the UN is downsizing and transitioning these missions and as an increasing number of violations of IHRL occur in non-mission settings, how can the UN get better at responding to these crises? Human rights, peace and development have been the three central Pillars on which the UN was founded when its Charter was first signed in 1945. Yet OHCHR was not constituted until almost 50 years later and it still receives only a fraction of the resources devoted to the peace and development Pillars. It is headquartered in Geneva, which puts it close to the UN AFPs, such as UNHCR, UNDP and UNICEF, but means that it is physically separated from the rest of the UN Secretariat, the Security Council and the Secretary General’s office in New York. As POC became increasingly central to the planning, design and work of all UN field presences the need to better integrate these three Pillars has become increasingly apparent as the UN’s own internal restructuring in recent years recognizes.

10 Scott Sheeran, ‘A Constitutional Moment? United Nations Peacekeeping in the Democratic Republic of Congo’, International Organisations Law Review, Vol. 8, No. 1, 2011, pp. 55–135.

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This book sets out to discuss how the UN can get better at protecting the lives of civilians in conflict, based on the premise that is getting better at doing so. There is nothing particularly complicated or mysterious about what needs to be done to continue this process. Indeed, much can already be found in the reports and resolutions that the UN has already adopted in recent years. More significantly, there are good practices to draw on from what is already working in the field. The UN needs to significantly increase funding to OHCHR’s field presences, streamline the Protection Coordination structures of the humanitarian sector and integrate OHCHR into this at the field and HQ level. It needs to develop a UN wide situational awareness system, through a pooling of information and good practices in existing models and it needs to ensure that a human rights analysis is fully integrated into all UN decision-making, lessonslearned and after-action reviews. Such reforms are deliberately incremental and modest, but they would help to save civilian lives.

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Index

A Abella v. Argentina, 79 Aceh, 29 Acholi, 122 Action for Peacekeeping (A4P), 75, 103 Afghanistan, 8, 27, 29, 30, 32, 33, 67, 86, 95–97, 106–110, 115, 118, 127, 136 Africa, 11, 122, 125, 133 African Union (AU), 14 Agenda for Peace, 51, 98 Aksoy v. Turkey, 77 Al-Amadiyah, 50 al Bashir, Omar, 41, 42, 125 Al-Assad, Bashar, 2 Aleppo, 2 Al-Jedda v. UK , 82 Allied Democratic Forces-National Army for the Liberation of Uganda (ADF), 126 Al Qaeda, 126 Al Qaeda Taliban (AQT) Sanctions Committee, 84

Al-Skeini and Others v. UK , 79 Alston, Philip, 72 Amnesty International, 15, 24, 39, 116, 124, 125 Anderson, Mary, 30, 34 Angola, 49, 84, 126 Annan, Kofi, 38, 123 Ansar al-Sunna, 122, 126 Argentina, 117 Armed activity on the territory of the Congo, 79 Armed non-state actors (ANSAs), 33, 108, 112–115, 126, 134 Asia, 129, 130, 133, 136 Australia, 59 Autesserre, Severine, 29, 104 B Baghdad, 82, 110, 118 Baghlan, 111 Baldwin, Clive, 26 Balkans, 98 Bámaca-Velásquez v Guatemala, 79 Bamba v. Council , 84

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 C. Foley, The Protection Paradox, Human Rights Interventions, https://doi.org/10.1007/978-3-031-27427-5

161

162

INDEX

Bangladesh, 59, 60 Bankovic v. Belgium and 16 Other Contracting States , 79 Batufa, 49 Baumann, Rony, 42 Belgium, 59 Bellamy, Alex, 39 Benin, 59, 132 Bensouda, Fatou, 75, 125 Bentiu, 89 Biden, Joe, 127 Blair, Tony, 40 Bor, 89 Bosnia-Herzegovina, 5, 19, 31, 74, 93 Botswana, 126, 132 Boutros-Ghali, Boutros, 98 Brahimi Report , 54 Brannigan and MacBride v. UK , 77 Brazil, 2, 59, 143 Brogan and others v. UK , 77 Burkina Faso, 59, 103 Burundi, 15, 59, 60, 125 Bush, George, 40

C Cabo Delgado, 122, 126 Çakıcı v. Turkey, 78 Call to Action for Human Rights , 76 Cambodia, 17, 49 Cameroon, 59, 103 Canada, 36, 59, 60 Capstone Doctrine, 54 Carter Center, 115 Case concerning questions of interpretation and application of the Montreal Convention arising out of the Aerial incident at Lockerbie, 142 Ceasefire, 35, 43, 44, 53, 70, 98, 116 Central African Republic (CAR), 64, 117

Centre for Civilians in Conflict (CIVIC), 21, 33, 63, 64, 76, 92, 110, 111 Certain expenses of the United Nations , 48 Chad, 59 Chapter VII, 10, 11, 24, 26, 28, 38, 39, 48, 49, 51–53, 58, 67, 71, 77, 80, 82, 83, 105, 142 Cherizier, Jimmy, 10, 11 China, 40, 59, 60 Chissano, Joaquim, 124 Clinton, Bill, 52 Colombia, 29 Congolese armed forces (FARDC), 64, 71–74, 76 Convention on the Safety of United Nations and Associated Personnel, 65 Côte d’Ivoire, 7, 64, 84 Council of Europe, 24 D Darfur, 7, 15, 37, 40–42, 44, 124, 125, 141 Dayton Accords, 31 Democratic Republic of Congo (DRC), 7, 8, 16, 18, 55, 57, 64, 67, 70, 74, 86, 103, 104, 122, 126, 141 Denmark, 59 Department of Peacebuilding and Political Affairs (DPPA), 8, 100, 131, 132 Department of Peacekeeping/Peace Operations (DPKO/DPO), 8, 45 Deralock, 50 Derogable/ non-derogable, 77 Development Coordination Office (DCO), 8 Dos Santos Cruz, Carlos, 16, 65 DuBois, Marc, 36, 37

INDEX

E Egypt, 59, 60 Eliasson, Jan, 74 Emergency Response Team (ERT), 129–133, 135 Eswatini, 132 Ethiopia, 8, 17, 22, 38, 59, 117, 128 Europe, 31, 130, 136 European Convention on Human Rights (ECHR), 78, 79, 82 European Court of Human Rights, 26, 48, 81, 82, 84, 116 Evans, Gareth, 40 Executive Office of the Secretary General (EOSG), 4, 100, 101, 131 F Finucane, Michael, 19 Finucane v. UK , 78, 81 Force Intervention Brigade (FIB), 64, 76 Foreign Policy magazine, 40 Formed Police Units (FPUs), 10 France, 49, 59, 60 Free Syria Army (FSA), 112, 116 Freetown, 19 Front Lines of Peace, 104 G Gabon, 60, 106 Gambia, 125, 132 Gaye, Babacar, 65 Gaziantep, 2 General Assembly, 4, 7, 8, 20, 28, 38, 39, 48, 50, 51, 57, 101, 132, 140 Geneva, 4, 18–21, 28, 65, 71, 112, 118, 130, 136, 138, 139, 145 Geneva Call, 112–115 Geneva Conventions, 90

163

Germany, 59, 117, 143 Global Protection Cluster (GPC), 21, 34 Goma, 57, 64 Grandi, Filippo, 96, 97 Guardian newspaper, 42 Guinea, 74 Guterres, António, 144

H Haiti, 2, 3, 7, 9, 10, 16, 17, 60, 67, 83–86, 103, 131 Hama, 2 Hammarskjold, Dag, 48 Harun, Ahmad Muhammad, 41 Hassan v. UK , 79 Herat, 111 Hezbollah, 2 High Level Panel Report on Peace Operations (HIPPO), 66, 67 Hors de combat , 78 Housing, Land and Property Rights (HLP), 27, 29, 31, 34, 92, 97, 98, 122, 137, 138 Humanitarian Coordinators (HCs), 6, 55 Humanitarian Policy Group (HPG), 34, 36, 37, 67, 109, 123, 133, 136 Human Rights Advisor (HRA), 12, 131 Human Rights Council (HRC), 4, 19, 20, 72, 113, 117 Human Rights Due Diligence policy (HRDDP), 22, 72–74, 76 Human Rights Monitoring Mission in Ukraine (HRMMU), 20 Human Rights Up Front (HRUF), 22, 73, 75 Human Rights Watch (HRW), 15, 72, 90

164

INDEX

I Ibrahim, Mo, 124 Idlib, 2 Independent Investigative Mechanism for Myanmar (IIMM), 20 India, 59, 60, 143 Indonesia, 59, 60 Infantry Battalion, 80 Inglis, Shelly, 26 In Larger Freedom and A More Secure World, 98 Inter-Agency Standing Committee (IASC), 27, 34, 50, 115, 123 Internally displaced persons (IDPs), 14, 15, 27, 28, 33, 63, 88, 89, 97, 113, 137 International Commission on Intervention and State Sovereignty (ICISS), 38, 39 International Committee of the Red Cross (ICRC), 27, 38, 115, 127, 134, 135, 137 International Court of Justice (ICJ), 48, 49, 79, 142 International Criminal Court (ICC), 17, 24, 41, 42, 75, 80, 113, 116, 117, 123–125, 127 International Criminal Tribunals for Yugoslavia (ICTY), 24, 116 International Crisis Group (ICG), 11, 117, 118, 126 International humanitarian law (IHL), 6, 12, 17, 22, 24, 27, 35, 38, 40, 41, 52, 56, 62, 65, 72–74, 77–81, 93, 98, 107–109, 112, 113, 115, 116, 133–135, 142 International human rights law (IHRL), 6, 12, 17, 22, 24, 27, 29, 32, 35, 36, 38, 40, 41, 63, 73–81, 83, 85, 86, 91–93, 98, 103, 105, 107–109, 112, 115,

116, 128, 129, 133–136, 138, 140, 142, 145 International, impartial and independent mechanism investigating crimes in Syria (IIIIM Syria), 116 International Monetary Fund (IMF), 103 Iraq, 17, 27, 40, 49, 67, 83, 106, 109, 110, 116–119, 127 Irish Republican Army (IRA), 19, 81 Islamic State (ISIS), 17, 116, 126 Islamist, 116, 122, 126, 127 Italy, 59 Ituri, 71, 117, 126 J Jalal-Abad, 137 Jalalabad, 95–97 Jihadi, 127 Joint Human Rights Office (JHRO), 71, 74 Joint Protection Teams (JPTs), 71 Jordan, 59 Juba, 15, 18, 57, 63, 88, 89 jus ad bellum, 58, 77, 80, 128 jus in bello, 62, 77, 80 Justice and Corrections Standing Capacity (JCSC), 21, 99 K Kabul, 110 Kaya v. Turkey, 63, 78 Kazakhstan, 136 Kelly and Others v. UK , 78, 81 Kenya, 59, 125 Kenyatta, Uhuru, 125 Ki-moon, Ban, 75, 143 Kony, Joseph, 122, 123, 125 Kosovo, 24–27, 29–31, 38, 39, 53, 82, 86, 87, 89, 91, 116, 118

INDEX

Kurdish Workers Party (PKK), 50 Kurds, 49 Kushayb, Ali, 41 Kyrgyzstan, 136–138

165

L Lalish Temple, 116 Lattimer, Mark, 116 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 79 Legality or Threat of Use of Nuclear Weapons , 79 Lesotho, 132 Liberation Tigers of Tamil Eelam (LTTE), 43, 44 Lilly, Damian, 128 Lord’s Resistance Army (LRA), 122–126, 128 Lusaka, 70

N Nabil Sayadi and Patricia Vinck v. Belgium, 84 Namibia, 48, 49 Nangahar, 95, 96, 111 Nepal, 59, 60 Netherlands, 59 New York, 4, 20, 21, 43, 45, 106, 132, 145 New York Times newspaper, 42, 69, 70, 73 New Zealand, 59 Niger, 59, 103 Nigeria, 8, 59 North Atlantic Treaty Organisation (NATO), 24, 25, 30, 33, 38, 39, 53, 59, 60, 82, 107, 136 Northern Ireland, 81 North Kivu, 126 Norwegian Refugee Council (NRC), 11, 27, 34, 75

M Magalhães, Paula Sima, 129, 131 Malakal, 89 Mali, 7, 11, 16–18, 67, 74, 84, 85, 127 Marshall, David, 26 Mauritania, 59 McCann and others v. UK , 81 Médecins sans Frontières (MSF), 28, 36, 38, 42, 52, 87, 137 Metcalfe-Hough, Victoria, 37, 115, 133 Middle East, 130 Misrata, 115 Moreno Ocampo, Luis, 42, 124 Morocco, 59 Mujahedin, 96 Museveni, Yoweri, 124, 125 Myanmar, 17, 22, 128, 133

O O’Brien, Patricia, 64, 65 Occupying Powers, 83 Office for the Coordination of Humanitarian Affairs (OCHA), 6, 45, 51, 55, 56, 71, 85, 86, 132 Office for the High Commissioner of Human Rights (OHCHR), 2, 4, 10–12, 15, 18–21, 27, 71, 100, 101, 107, 117, 118, 129–133, 135–139, 145, 146 Office of Rule of Law and Security Institutions (OROLSI), 21, 99 O’Flaherty„ Michael, 19, 20 Ö˘gur v. Turkey, 78 Operation Kimia II, 72, 73 Operation ‘Protect the Civilian Population’, 57, 64 Operation Provide Comfort, 49, 50 Operation Restore Hope, 51

166

INDEX

Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), 16, 45, 53, 57, 64, 65, 67, 70, 74, 76, 104 Osh, 137 Osman v. UK , 63 Overseas Development Institute (ODI), 34, 36, 37, 67, 109, 115, 123, 133, 136

P P5, 3, 4, 20, 22, 38, 59, 143 Pakistan, 32, 59, 60, 96 Palestine, 131 Palma, 121, 122 Peacebuilding and Sustaining Peace, 9, 75, 76, 103 Peace Building Support Office (PSBO), 98 People’s and Women Defense Units (YPG/YPJ), 112 Pinochet, August, 24 Poland, 59 Port-au-Prince, 2, 67 Portugal, 59 Powell, Colin, 40 Protection of civilians (POC), 3, 5–12, 15, 17, 18, 21, 28, 33, 35, 37, 43–45, 52–58, 60, 62, 63, 66–68, 70, 71, 73, 75–77, 80–85, 87–89, 91–93, 98, 104, 105, 107–110, 113, 115, 116, 128, 133, 141, 143–145 Protection Working Group (PWG), 25, 26 Provincial Reconstruction Teams (PRTs), 30

R Regional Monthly Review (RMR), 132 Resident Coordinator (RC), 7, 12, 129, 131, 132, 137 Responsibility to Protect (R2P), 38–40, 58, 143 Ricci, Roberto, 130 Rohingya, 117, 128 Russia, 40, 59, 136 Ruzicka, Marla, 110 Rwanda, 5, 17, 38, 53, 59, 60, 72, 74, 93, 126, 141 S Salman v. Turkey, 78 Saramati v. France, Germany and Norway, 26, 82 Sayadi and Vinck v. Belgium, 84 Scott, Ken, 116 Secretary General, 3–9, 17, 18, 35, 38, 48, 51, 53, 54, 60–64, 75, 76, 80, 86, 98, 103, 105, 106, 115, 116, 123, 143–145 Security Council, 3–6, 8, 10, 11, 13, 14, 16–18, 20, 22, 24–26, 38–41, 48, 49, 51–53, 55, 57, 59–62, 64–67, 70, 76, 77, 81–85, 87, 93, 99, 101, 102, 106, 107, 118, 125, 142, 143, 145 Seidova and Others v. Bulgaria, 78 Senegal, 59, 60, 132 Serbia, 24 Sexual exploitation and abuse (SEA), 15, 16, 60–62, 86 Sharia, 32, 111 Sierra Leone, 5, 11, 12, 17, 19, 84, 103, 106 Sirleaf, Ellen Johnson, 11 Sirsenk, 49 Solferino, 135

INDEX

Somalia, 51, 52, 67, 74, 126 South Africa, 59, 125, 126 Southern African Development Community (SADC), 126 South Sudan, 7, 17, 18, 36, 57, 63, 87, 88, 90, 91, 98, 122, 141 Soviet Union, 49, 137 Special Committee for Peacekeeping Operations (C34), 49 Special political missions (SPMs), 5, 7, 9, 20, 99, 105, 106, 131 Srebrenica, 31, 38, 53, 141 Sri Lanka, 17, 29, 43–45, 73, 74, 97, 104, 128 Sri Lanka Monitoring Mission (SLMM), 44 Stimson Center, 7, 89, 90 Sudan, 7, 14, 40–42, 103, 117 Suez Crisis, 48, 102 Suriya, 50 Sweden, 117 Swedish development agency (SIDA), 130 Switzerland, 117 Syria, 2, 3, 8, 17, 22, 33, 34, 112, 113, 115, 116 Syrian Democratic Forces (SDF), 112

T Tajikistan, 136 Taliban, 33, 96, 108–112, 128 Tanzania, 59, 122, 126 Taylor, Charles, 11, 20 Thailand, 133 The Thin Blue Line, 24, 103, 104, 123 Tibet, 22 Tigray, 117, 128 Timor Leste, 42, 43 Togo, 59, 103 Total Oil company, 122

167

Troop contributing countries (TCCs), 15, 59–62 Turkmenistan, 136 23 March Movement (M23), 64

U Uganda, 29, 57, 122–127, 131 Ukraine, 8, 17, 22, 136 UN/AU Mission in Darfur (UNAMID), 14–16, 45, 57, 74, 75 UN Assistance Mission for Iraq (UNAMI), 82 UN Assistance Mission in Afghanistan (UNAMA), 106–109, 111 UN Assistance Mission in Rwanda (UNAMIR), 52 UN Assistance Mission in Somalia (UNSOM), 74 UN Children’s Fund (UNICEF), 4, 27, 51, 83, 84, 88, 100, 106, 114, 145 UN Country Teams (UNCTs), 5, 35 UN Emergency Force (UNEF), 48, 49, 102 UN Global Focal Point for the Rule of Law (GFP), 21, 100 UN High Commissioner for Refugees (UNHCR), 4, 20, 24–28, 31, 32, 34, 51, 86, 96–98, 100, 106, 107, 113, 129, 137–139, 145 UN Integrated Office in Haiti (BINUH), 2, 10, 106 UN Integrated Transition Assistance Mission in Sudan (UNITAMS), 14, 103, 106 UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD), 116 United Kingdom (UK), 24, 40

168

INDEX

United States (US), 11, 33, 40, 51, 52, 59, 60, 62, 96, 107–110, 117, 118, 126, 127 Uniting for Peace, 4, 48 UN Mission for Justice Support in Haiti (MINUJUSTH), 10 UN Mission in Sierra Leone (UNAMSIL), 53, 70 UN Mission in South Sudan (UNMISS), 15, 17, 45, 57, 63, 74, 87–92 UN Mission in the Congo (ONUC), 48, 49 UN Mission in the Democratic Republic of Congo (MONUC), 55, 70–74, 102, 130 UN Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), 7, 16, 67, 74, 127 UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCAR), 7 UN Office for Central Africa (UNOCA), 106 UN Office in Liberia (UNOL), 106 UN Office of Oversight Services (OIOS), 57, 66 UN Operations and Crisis Centre (UNOCC), 8, 22, 105, 131, 132 UN Organization in Cote d’Ivoire (UNOCI), 14, 45, 53, 57, 64 UN Protection Force (UNPROFOR), 52 UN Secretariat, 6, 20, 21, 55, 92, 105, 145 UN Stabilization Mission in Haiti (MNIUSTAH), 10

UN Support Mission in Libya (UNSMIL), 74, 106 UN Team of Experts on the Rule of Law and Sexual Violence in Conflict (ToE), 17, 100, 102 Uruguay, 59 Uzbekistan, 136, 137

V Vanni, 43 Vauvuniya, 43 Velásquez- Rodríguez v. Honduras , 78 Viera de Mello, Sergio, 118

W Ward, Judy, 19 Weah, George, 11 Women Protection Advisors (WPAs), 101 World Bank, 12, 103, 127 World Food Programme (WFP), 4 World Health Organization (WHO), 4 World Summit Outcome Document, 39

Y Yazidis, 116 Yemen, 8, 17, 22, 115

Z Zambia, 70, 132 Zeid Report , 61