Evolving practice in the field: informing the international legal obligation to "protect".

• Author: Howland, Todd

1. INTRODUCTION

   This article highlights the need for greater scholarly and practitioner attention to what legal obligations "to protect" exist for a range of actors that are not States. The obligation to protect can be defined as a duty to maximize the respect for the rights of individuals.

   The idea that many actors--beyond the State--have obligations under human rights law is not particularly new. (1) Of particular interest to academics and practitioners have been United Nations (UN) bodies (e.g., peacekeepers), international financial institutions (e.g., World Bank) and multinational corporations. Slightly more innovative is the idea that there is a sliding scale of responsibility to protect human beings from numerous entities depending on the level of influence they exert in the situation. (2) While this idea is not new in terms of a legal concept, (3) in that one's duty to another varies depending on the circumstance, its application to international human rights law has been seen as controversial. One main reason for this is the dated idea that international law is limited to relations between or among States. This limitation has been difficult for human rights law to shake. (4)

   This article is developed from my own personal experience as member and leader of the Human Rights Division (HRD) of the UN mission to Angola. (5) During my time there, it became clear that many people, non-governmental organizations (NGOs), diplomats, and even UN entities spoke of the need to protect individual Angolans, but most seemed to be assuming different legal frameworks. While an incredible number of scholars and practitioners continue to hold onto the idea that only the State has a legal obligation to protect, they did not experience the shrill and significant criticism from human rights groups, humanitarian organizations, and other UN entities that the HRD was not meeting its obligations to protect Angolans.

   Oddly, the staff of the HRD was being held accountable to protect Angolans, but those further up our food chain--those diplomats and bureaucrats enjoying views of the Hudson River at UN headquarters--have not yet fully grasped the legal nature of the UN's obligations to protect. This reaction by UN officials is not new. Legal protections and actions to protect (or to take one's legal obligations seriously) do not usually get much, or any, attention in circumstances of ongoing human rights abuses. In situations of massive human refugee flows or genocide, there is usually at least some discussion related to the obligations of the international community to intervene. (6) But beyond that point, the idea that any entity other than the State has obligations to protect is seen by most mainstream scholars at the UN as a bit odd, given that there is not yet even agreement on when there is an obligation to intervene in cases of massive refugee flows or genocide. (7) These scholars obviously did not spend much time with me as a UN employee in Angola being criticized for failing to protect Angolans. (8)

   This article is not about shifting blame, but about highlighting the need to better define what obligations to protect exist for entities other than States (e.g., a UN field operation). Further definition will lead to clearer legal obligations, which will hopefully maximize each entity's contribution to improving the level of respect for human rights.

2. THE ELUSIVE NATURE OF THE TERM "PROTECTION"

   Protection of human beings, through international law and international actions, should be well understood given that the stakes are high. If anything in international law should grab attention, it should be the failure to protect which violates human rights, humanitarian, or refugee law.

   Human rights law defines duty or obligation as follows: respect, promote, protect, and fulfill (9) with many treaties using these terms as the operative language in their text. (10) Too many entities holding legal obligations prefer to focus on respect however, given that it allows them to narrowly define obligation as a duty to not take a specific action that violates the law. (11) By focusing on this duty to respect, as opposed to protect or fulfill, and by hiding behind the State as the holder of primary responsibility to protect its citizens from abuses, these entities have managed to create a collective mystification about their level of responsibility, even when they exercise real influence in a situation.

   Although non-state actors tend to focus on the word 'respect' to define their obligations under international law, the term 'protect' seems to actually be a higher duty, one demanding action to insure no violation occurs. (12) Violation makes us think of the victim. Framing the discussion of human rights violations as a failure to protect should make us think about not only the perpetrator but also who has the ability and obligation to respect the rights of the victim.

   From domestic laws, (13) to human rights law, (14) to refugee law, (15) to humanitarian law (rules of war), (16) all provide human beings "protection" from others. In addition, there are international instruments that clarify protection for various individuals and groups, from the internally displaced (17) to children. (18) There is some interesting academic work that shows how individuals are covered by multi-layers of legal protections, given that the concentric spheres of influence of these areas overlap. (19) In fact, some scholars see the area of overlaps between these spheres as growing overtime. (20) So we should wonder with all this legal protection each individual on the planet is packing, why do human rights violations persist? The answer lies, in part, with the glacial pace of change regarding who is responsible for protection.

3. DIFFERING CONCEPTS OF PROTECTION

   How one speaks of the obligation to protect varies. (21) Two scenarios are discussed frequently, the third much less so even though it perhaps occurs most frequently.

   1. Massive Refugee Movements

      The legal framework for addressing massive refugee movements is established by the Convention on the Status of Refugees. (22) The UN High Commissioner for Refugees (hereafter referred to as HCR) is the lead organization created by the members of the UN to respond to these types of situations. (23) Its primary objective is the protection of the rights of the refugee.

      International NGOs working in the context of massive refugee flows normally work under the HCR's umbrella. (24) In this case, HCR acts like a quasi-state entity and normally spends little time working with the host government. (25)

      Although HCR has extensive experience working with refugees crossing national boarders, attempts to transfer these working methods to massive movements of people that remain in their own country, or internally displaced persons (IDPs), have created some confusion in relation to the international community's obligations to protect within the borders of a UN Member State in relation to its own population. While the "Guiding Principles on Internal Displacement" are careful to compile laws and obligations already owed to IDPs as human beings, (26) those working in IDP camps most often come from a background with HCR and refugee camps. Thus, their desire and demand for a more robust international response to protect the rights of IDPs is natural. International actors' ability and understanding is normally limited in these situations, but they may in fact exercise enough influence to have real obligations to protect. It is unlikely, however, that the obligation will be the same in refugee camps or even from one IDP camp to another.

   2. Massive Human Rights Abuse--Genocide and Crimes Against Humanity

      In the case of massive human rights abuses, both humanitarian law and human rights law are relevant, but most often discussions for action are usually framed in terms of humanitarian law. (27)

      Typically the forum for discussion is the UN Security Council and the method for intervening is sending blue helmets, or UN peacekeepers. Most often this type of intervention occurs when the home country is unwilling or unable to protect its own citizens. The issue of whether there is a responsibility to protect in this case is hotly debated (28) and examples include the intervention in Rwanda and Darfur. (29)

      Massive human rights abuses attract both press and academic treatments, but often more noise is created than action. Too often the concept of protection is reduced to the debate surrounding whether in these cases there is an obligation to intervene or protect, or simply that states or quasi-state entities have a right to a humanitarian intervention to stop massive violations if they should so choose. (30)

      The Secretary General of the UN is attempting to reframe the ongoing debate about humanitarian intervention into a discussion about the responsibility to protect. (31) This shifts the debate to defining when events qualify to kick-in the UN Member State's obligation to act. Clarity in this area is long overdue; therefore, the success of this reform is critical to finally defining the circumstances when the international community has an obligation to intervene to stop massive human rights violations. The idea that States, through the UN, have an obligation to protect or intervene during massive human rights violations is already supported by a number of States, such as Canada (32) and the Nordic countries. (33)

   3. Systematic Human Rights Violations

      In this third case, human rights law provides a framework for protection, but which entity has what obligation to protect is not well understood and defined. While the State maintains the prime duty, there is a growing recognition of a collective duty or a duty that applies to entities other than the State-citizen scenario. (34) Although this area is vastly understudied and discussed, surprisingly, it is the scenario most frequently faced by the international community and an area which...