Tag Archives: R2P

Penal Humanitarianism: Jus Puniendi in the International? (Part VI)

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This is the sixth and final post in a series on ‘Penal Humanitarianism’, edited by Kjersti Lohne. The posts center around Mary Bosworth’s concept and Kjersti Lohne’s development of penal humanitarianism, and how penal power is justified and extended through the invocation of humanitarian reason. The blog posts were first posted on the “Border Criminologies” blog, and are re-posted here. This post argues that the 2011 Nato intervention in Libya mimics a reaction similar to that of the state, suggesting that the ‘right to punish’ is re-articulated outside the state and within the international.

Jus Puniendi in the International?

Penal humanitarianism – the combination of punitive sentiments and humanitarian ideals – is increasingly moving the ‘power to punish’ beyond the state – not only in relation to migration and international criminal justice; but also in relation to the use of military force to protect vulnerable populations facing systematic violence. Since the 1990s, the use of military interventions has been increasingly launched following humanitarian sentiments towards far away populations subjected to mass violence and in conjunction with human rights imperatives, conveying the idea of ‘doing justice’ through war. This inscription of war among the tools to sanction wrong-doing is linked to the increased status of human rights as global norms for the protection of individuals from violence.

Nato warships in Cardiff Bay. Image by Gareth James.

In this post, I argue that the 2011 Nato intervention in Libya shows how human rights are treated with a mix of political condemnation, judicial proceedings, and military might, to indicate wrong-doing within the international- and thus mimic  a criminal justice reaction similar to that of the state. This suggests that the ‘right to punish’ of the state – its ‘jus puniendi’- is now re-articulated outside the state and within the international.  

Under international law, sovereign states are autonomous and in control of their territory and their population. In this line of thought, the international community has no power to interfere with what happens within the borders of a state. However, against the context described above, in the last 30 years the individual, not the state, has moved to the centre of the protection afforded by international law. Therefore, the international society has the duty to protect individuals when states fail; thus, legitimising military operations. These military practices operate outside state power and often feature multiple states and actors, in ways that change our understanding of what counts as punishment, intersecting with humanitarian sentiments, foreign policy, and postcolonial practices.

The 2011 military intervention in Libya was launched with the approval of the UN Security Council under the Responsibility to Protect (R2P), a rule that sanctions the international community’s ‘collective responsibility to assist populations’ under threat of, or actually experiencing, mass violence in situations where the host state fails to protect them (art 138-139). The UN Resolution authorising military intervention under R2P came as a response to accusations by various power figures, including UK Prime Minister Cameron and French President Sarkozy, of gross human rights violations by the Gaddafi regime against civilians protesting his regime. In this way, powerful actors in the Global North passed a judgment on Libyan elites and their criminality. NATO, swiftly took the lead and intervened militarily, claiming its role as protector of the Libyan people, and framing itself as the authority in charge of enforcing human rights in the region. In other words, it established its jurisdiction over local events. The Libyan leaders – i.e. Gaddafi, his son, acting Prime Minister Salif Al Islam, and former intelligence chief Al Senussi – were indicted by the International Criminal Court’s prosecutor Moreno Ocampo, evidencing that military operations now function within a criminal justice framework.

Linking military might with legal prosecution (or at least court activation) shapes our understanding of war as an ethical mechanism that censures human rights violations perpetrated by individual criminals. As argued by Lohne, these manifestations of penal humanitarianism require more consideration on the effects that these practices have on our understanding of punishment and sovereignty and on the sort of tension these may engender.  

These punitive military operations launched to sanction and end mass violence are often followed by practices of peacekeeping aimed at getting local populations to accept specific rules of coexistence, establishing the local sovereign state and its criminal justice systems through human rights and international standards. After the NATO victory and the death of Gaddafi in controversial circumstances, the UN sent a small contingent to the country to assist with the establishment of peace. These representatives of international society operated on the ground as experts on democratic institutions, training the locals in human rights norms, encouraging them to adopt specific institutional structures, laws and international standards. The UN Secretary General Reports show how these international experts watched and judged local authorities on their institutional practices. UN officials not only urged new authorities to adopt human rights standards as norms, but also constantly monitored their exercise of power making sure it is informed by international best practices. These international experts effectively attempt to operate some sort of pedagogy of liberal institutions, to shape the local sovereign state, at the same time as they tie its power to the Global North; thus, incorporating the new sovereign and its population in its remit. In doing so, the Global North expands its reach; it shapes governance through sovereign structures at the local level while re-articulating sovereign power at the global level. These two sovereign powers should not be seen as hierarchically constituted but as uncomfortably intersecting. The new norm of responsibility to protect re-articulates the principle of protection within the international society, in turn relocating the state’s power and right to punish, as envisioned within the well-known Hobbesian Leviathan idea. This is symptomatic of an international society increasingly thought of as united through reference to humanity, in which the individual is at the centre of protection. However, this framework problematically renders war and in general military force the best instrument to protect life and create order, at the same time as it legitimates neo-colonial enterprises. While not unprecedented, this way of conceptualising war is odd, given that war used to be thought of as the epitome of disorder (anomie), with military strategists confirming that ‘you know how a war may start but never how it ends’.

PoC as a concept for UN peacekeeping

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The Protection of Civilians (POC) has gradually become central to UN peacekeeping both in policy formulation, in mandates, and in practice. Yet, the concept is broad, and few actors agree on its meaning. Such a broad understanding hinders coordination on issues across agencies, and makes the implementation of POC challenging. Few agree on whether POC is a specific task of peacekeeping mandates, or it should be an overall concern across all tasks.

The issue is further exacerbated by the lack of differentiation between POC and the Responsibility to Protect (R2P). The somewhat contested status of R2P thus contributes to undermine the inclusion of POC concerns in peacekeeping mandates. The introduction of a related system-wide agenda, Rights Up Front (RUF) is not about to make that more clear. An essential task at the policy level is therefore now to clarify the status and meaning of POC both vis-à-vis other tasks and other broader protection concerns.

Entering the UN peacekeeping system from Kofi Annan’s emphasis on the need for a “culture of protection” as a remedy to the failures of peacekeeping in the mid-1990s, the POC has since become an established part of the peacekeeping vocabulary and repertoire of actions. Today, while not a central concern to all UN agencies involved in peacekeeping operations, POC is nevertheless a factor taken into consideration by most of them. While it was for long seen as the prerogative of OCHA, it is now also an equally important concern to DPKO. The prominence given to POC in UN documents is symptomatic of a growing awareness of protection issues within the international community. However, these good intentions and interventions have not always led to the security and peace desired. Effective implementation of POC still involves practical challenges at the operative level as well as resolving the conceptual muddle characterizing POC today.

For the UN is routinely accused of not protecting when expected to in practice, and at the conceptual level little has been done to clarify what POC actually entails, and the extent to which it should figure in peacekeeping: is POC but one aspect of a vast array of measures, and should it therefore be compartmentalized alongside other policy areas, or is it an overreaching or cross-cutting concern for peacekeeping operations as a whole? In which case, should it also guide the work of agencies not formally part of the operation?

Yet, the past years have seen an increasing number of policy and doctrinal processes aimed at streamlining POC. Combining the UNs military capacities with the humanitarian ethics of protection produces both opportunities and challenges. On the one side it makes the PoC framework more robust, putting greater political (and military) capital behind preventive protection efforts, while also enabling actual physical protection of civilians. On the other side, it risks politicising protection, and conflate the UNs political-military agenda with the humanitarian, in turn jeopardising the humanitarian principles so central for the legitimacy of PoC.

The PoC is central to peacekeeping operations in seeking to manage war-to-peace-transitions. This involves both civilian and military entities, and a critical problem is their lack of a shared understanding of what PoC means in and entails for practices. This is partly due to the UNSC who feared defining and operationalising PoC would make it too binding for member states and override the UN’s lack of resources. Hence it was never properly defined and instead the UNSG opted for mainstreaming a ‘culture of protection’ throughout the UN system. The problem here is that distinct actors interpret this culture differently and contextually, thus making interagency harmonisation difficult. The paradox of this is that while mainstreaming POC would seem to require a simplification of the concept, so to speak, in order to make it more tangible, this in turn would run the risk of undermining the aim of POC, which is to be malleable enough as to provide protection in all situations.

There is a crucial need for more grounded reflection on how to provide effective protection. As long as understandings of “protection” vary, ranging from the provision of direct physical protection to the wider framework adopted by the UN, greater flexibility should be shown in which interpretation of protection is taken as the point of departure, depending on the aim of the case in question.

POC is broad, lacks tangibility, and is still elusive to many involved in peacekeeping. Accordingly, it has become a conceptual battlefield with little agreement of the status of POC, ether as a legal principle rooted in International Humanitarian Law, guidelines for humanitarian action, or a comprehensive doctrine including coercive means. This confusion is due to the fact that POC is vague and open for interpretation and contextualisation. This inherent feature of POC has been exacerbate by the fact that a number of actors eager to further legitimize the Responsibility to Protect (R2P) have been deliberately confusing the two concepts. While both the POC and R2P concepts are related in terms of aims, there are clear differences between them. R2P is interventionist, POC is not.

R2P faces the problem of legitimizing humanitarian intervention which POC does not face, and its disciples have therefore sought to attach or confuse the two in order to take a share in the broad legitimacy POC has enjoyed, but which R2P has lacked.

Even so, these distinct concepts are routinely referred to as synonymous and used interchangeably in the same contexts. This is not likely to change with the recent launch of the Rights Up Front (RUF) Action Plan, yet another concept aimed at remedying the failures of peacekeeping. If no concerted and central effort is made within the UN to conceptually clarify how POC, R2P and RUF relate to different agencies, contexts, policies and actions, UN peacekeeping will have to deal with three related, often competing, ideas or cultures of protection – all good intentioned, yet not clearly defined as to enable action. Such a reflection must take the field as its starting point, as the key to understand protection in any given context is to understand how it translates into practice, and the extent to which its application addresses the needs on the ground.