Protection of Civilians and the Responsibility to Protect: Perspectives and Precedents in the Asia-Pacific Working Paper No. 2 Program on the Protection of Civilians Asia-Pacific Centre for the Responsibility to Protect Charles T. Hunt [email protected] October 2009 Copyright © 2009 Asia-Pacific Centre for the Responsibility to Protect Building 91, 54 Walcott Street University of Queensland St Lucia QLD 4072 Australia Tel: +61 07 3346 6443 Fax: +61 07 3346 6445 Email: [email protected] POC & R2P: Perspectives and Precedents in the Asia-Pacific 2 Contents 1 Executive Summary 4 2 Introduction 5 2.1 The Responsibility to Protect 5 2.2 Protection of Civilians 7 2.3 Protection of Civilians and the Responsibility to Protect 8 2.4 Asia-Pacific 9 3. Security Council Open Debates on the Protection of Civilians in Armed Conflict – May 2008 – January 2009 10 3.1 China 10 3.2 Indonesia 12 3.3 Viet Nam 14 3.4 Australia 16 3.5 Japan 17 3.6 Myanmar 18 4 Summary 20 5 Conclusion 23 6 References 25 POC & R2P: Perspectives and Precedents in the Asia-Pacific 3 1. Executive Summary Governments in the Asia-Pacific are often referred to as skeptics or spoilers in conversations about deepening and harnessing global consensus on the „Responsibility to Protect‟ (R2P). This working paper argues that, on the contrary, there exists a broad constituency within the region for moving the principle from rhetoric to reality at the United Nations (UN). Based on contributions to Security Council debates on the protection of civilians in armed conflict (POC), regional states have been both receptive to and promoters of tangible measures to operationalise institutional mechanisms to prevent and halt mass atrocity crimes. Statements in the two most recent meetings are of particular significance given that they represent one of the last opportunities to gauge regional positions ahead of the forthcoming General Assembly debate on the R2P. In conclusion, I suggest that the Asia-Pacific region is much more receptive to the R2P principle than has hitherto been acknowledged. The first section of the working paper walks through the development of the R2P principle and the history of the UN Security Council‟s thematic interest in POC. The subsequent section unpacks and clarifies the relationship between the R2P and POC. The paper then proceeds to analyse the contributions of Asia-Pacific states to the two lattermost Council debates on POC, emphasising the significance of these statements for the institutional future of the R2P at the UN, as well as normative traction and increased ownership of the R2P in and by the region. Finally, the paper concludes by recommending the way ahead if Asia-Pacific states are to remain constructive partners in moving the principle towards praxis. POC & R2P: Perspectives and Precedents in the Asia-Pacific 4 2. Introduction “Enshrined in all major moral, religious, and legal codes, and not specific to any particular culture or tradition, the protection of civilians is a human, political and legal imperative that recognizes the inherent dignity and worth of every human being. It is a cause that unites us all in the responsibility to protect civilians from abuse, to mitigate the impact of warfare and to alleviate their suffering.”1 2.1 The Responsibility to Protect Genocide, crimes against humanity, war crimes and ethnic cleansing are all too prevalent as the first decade of the twenty-first Century comes to a close. The fanciful belief that failures to protect civilians from mass atrocities is now a story of the twentieth century – of Rwanda and Srebrenica – is violently contradicted by the continued systematic violence against civilians today. In recent years, the international community has found common ground in the conviction that all states have a responsibility to protect their populations from these egregious abuses. Furthermore, that the international community must support states in meeting their responsibilities and, if the state manifestly fails, take appropriate measures to protect vulnerable populations.2 Since its genesis in the work of Francis Deng et al3 and subsequent development in the Canadian-sponsored International Commission on Intervention and State sovereignty (ICISS),4 the Responsibility to Protect (R2P) has travelled an extraordinary long way, in an unusually short space of time. Following extensive deliberations, the outcomes document of the 2005 United Nations World Summit captured the consensus reached by world leaders, unanimously adopting the R2P.5 Paragraphs 138 and 139 declared that: 138. Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter of the United Nations, to help protect populations from war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared 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 organisations as POC & R2P: Perspectives and Precedents in the Asia-Pacific 5 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. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. United Nations Secretary-General, Ban Ki-moon, has made a strong commitment to the R2P and has stated that the above consensus rests on three pillars: 1. The responsibility of each state to protect its own population from genocide, war crimes, ethnic cleansing and crimes against humanity, and from their incitement. 2. The commitment of the international community to assist states in meeting these obligations. 3. The responsibility of United Nations Member States to respond in a timely and decisive manner, using Chapters VI (Pacific Settlement of Disputes), VII (Action with Respect to Threats to the Peace), and VIII (Regional Arrangements) of the UN Charter as appropriate, when a state is manifestly failing to provide such protection. Secretary-General Ban has vowed to „operationalise‟ the R2P and translate the principle from „words to deeds‟. He indicated that his support for what he describes as the „concept‟ of the R2P is „deep and enduring‟ but recognised that it is not yet a policy or reality. It should be noted that whilst many refer to the R2P as a doctrine or norm, and the Secretary-General himself refers to it as a „concept‟, I will use the term „principle‟ as I feel this better reflects the unanimous endorsement of the R2P by world leaders in the aforementioned paragraphs of the World Summit Outcome Document. The Secretary-General also recognises the „controversy and doubts‟ that the R2P generates.6 This reflects enduring misunderstandings surrounding the R2P. Despite the inclusion of R2P language in relation to the UN-AU hybrid peace operation in Darfur, as well as the labelling of the response to post-election violence in Kenya as the first instance of the R2P in practice, the principle‟s scope and meaning remains contested. On the one hand, some states and commentators continue to view the R2P as a threat to norms of non-intervention and sovereign equality; whilst on the other, some have argued that the consensus that emerged in 2005 constitutes a dilution of the principle, diminishing its deterrent value and reducing the principle to „R2P-lite‟.7 That being said, the Special Adviser to the UN Secretary-General argues that the R2P “represents the application of human security perspectives to a specific area of public policy that has long vexed publics and policymakers alike.”8 It is in this context that the Secretary-General submitted his report, „Implementing the Responsibility to Protect‟ to the General Assembly in January this year.9 It is expected that this will be the basis for further debate by the 63rd General Assembly. POC & R2P: Perspectives and Precedents in the Asia-Pacific 6 2.2 Protection of Civilians Despite an overall reduction in the quantity of armed conflict across the globe, the character and victims of contemporary warfare have changed dramatically. Saliently, the 2007 Human Security Brief affirmed that the targeting of civilians has become increasingly prevalent in the post-Cold War era.10 The reasons for this are not entirely straightforward, but involve a plethora of causal factors which are well documented elsewhere.11 In this light, „Protection of Civilians‟ (POC) has come to mean many things to many people. Often conflated with similar and overlapping concepts such as human security or humanitarian intervention, POC has its roots firmly in established and universal principles of international humanitarian law (IHL) as well as human rights and refugee law.12 In the midst of competing definitions, the concept of „Civilian Protection‟ should be understood broadly as the full range of activities that intergovernmental organisations, countries, international and local NGOs, and individuals can pursue to advance the legal and physical protection of civilians.