Tailoring Protection of Civilians to State Capacity: The Role of Regional Human Rights Protection Measures

The 2016 UN Agenda for Humanity states that minimizing human suffering and protecting civilians requires strengthening compliance with international law. In response to this call, a new PRIO policy brief offers a complementary vision of protection of civilians (PoC) as a spectrum of possibilities that includes local self-protection efforts, legal strategies, and the practice of judicial and quasi-judicial bodies. The approach is illustrated by the life-cycle of the protection measures ordered for the Colombian Kankuamo by the Inter-American human rights system.

Today, many contemporary armed conflicts and threats to civilians coexist with existing state bureaucracies and civil societies, however fragile. Hence there is a more general need for a better understanding of legal protection measures in relation to the goal of protecting civilians in armed conflicts and the goal of strengthening state capacity to abide by the rule of law.

The PoC agenda arrived at the scene of international politics as a central normative ambition only at the end of the Cold War. When picked up in reaction to the civilian suffering in civil wars and genocide throughout the 1990s, PoC was transformed from a set of limited legal regulations and a doctrine pertaining to the conduct of the military into an organizing principle for international engagement in conflict-ridden countries.

Historically, PoC was understood as a legal principle, within the application of international humanitarian law, as promoted by the International Committee of the Red Cross. From the 1990s, PoC has evolved into a guideline for the intervention of humanitarian organizations. Despite a high international profile, the realization of the PoC agenda has been hampered by conceptual confusion, operational difficulties, and insufficient understanding of how normative developments and the self-protection efforts of civilians can best be aligned. Moreover, the ‘humanitarian imperative’ to protect has involved an increasing militarization of PoC, whereby PoC has become identified with increasingly robust UN peacekeeping activities.

In the 2016 Agenda for Humanity, the Secretary General calls for a concerted global effort to prevent the erosion of international humanitarian and human rights law, demand greater compliance with them and uncompromisingly pursue the protection of civilians.

Responding to this call for a recentring of law in the struggle to protect civilians, we argue that PoC should be imagined as a spectrum of possibilities, with an emphasis on subsidiarity and state capacity. When tailoring PoC to state capacity, international and national legal bodies are the means for holding states with the capacity to protect civilians accountable for their security. PoC is then operationalized through state action and civil society efforts to shape and monitor implementation. This requires an expansion of territorial control by the state, especially by a state bound by the rule of law, and not just the extension of control by state armed forces and paramilitary allies acting outside the rule of law.

Taking a bottom-up approach to this process makes visible how grassroots actors strategically use legal protection as part of their self-protection efforts, and how state response is entangled in its own interests. To that end, this brief makes reference to the successful experience of the Kankuamo people in Colombia, and the complex relation between protection measures and actions taken by both the state and Kankuamo authorities to curb violence against civilians.

Note: This entry is a preview of the authors’ policy brief ‘Tailoring Protection of Civilians to State Capacity’ (2016), published by PRIO and an output from the project Protection of Civilians: From Principle to Practice. You can read this policy brief here.