ICRC works to protect individuals by ensuring that states live up to their international human rights responsibilities. Its prison visits seek to accomplish similar goals, Forsythe points out, while “In relief protection there can be an element of supervision and representation, along with the central effort to provide the goods and services necessary for minimal human dignity in conflict situations.”
Oxfam, an NGO that frequently works in the midst of conflict situations, recognizes the limits of its protection capabilities: “Oxfam … is not a specialist protection organisation…. For us, protection means improving the safety of civilians in our humanitarian programming. In practice, it means trying to reduce the threats of violence, coercion and deliberate deprivation to civilians, and reducing their vulnerability to these threats.”81 As an NGO, while it wants to contribute to the protection of civilians under its care, it is constrained in what it can actually accomplish. It further constrains itself by significantly restricting its interactions with peacekeeping and other military forces that may sometimes be needed to deliver assistance—and thus protection.82
Thus, humanitarian action can include both traditional (legal) protection and relief (material) protection. Both are necessary for maintaining human dignity and both are responsibilities of the international community. Yet the international community frequently chooses to emphasize humanitarian protection, which, while immediate, only provides partial protection and does not address longer term protection issues, at the expense of root cause, longer term options. Further, while the terminology of protection may be used, such organizations do not have the mandate or capabilities to actually physically protect people. They are not armed and, if an army or group of rebels decides to enter an IDP camp, there is little they can do to stop them. Indeed, as noted above, such activities might more properly be described as palliation rather than protection in that in the context of genocide or ethnic cleansing they may mitigate suffering but do little to provide robust, and long-term, action to stop the killing. Such activities are frequently undertaken by nonstate entities that do not have the capabilities or mandate to do anything other than deliver food and water and medical care—obviously worthwhile endeavors, but not backed up by the full authority and force of the UN or individual states. And, even when the authority of the UN is present, if it is not backed up by the power of the UN, that authority may be meaningless.
Prosecution Protection
Does the increasingly elaborate international criminal justice regime, with its courts in The Hague and practices of universal jurisdiction, protect people? We consider the rule of law to be a cornerstone of a peaceful and just society. We have domestic courts and legal proceedings designed to punish wrongdoers. This legal edifice is also assumed to deter people from committing crimes in the first place. Thus, through deterrence it protects people from harm, and by putting criminals behind bars it keeps criminals from harming anybody else. The deterrent effect of domestic legal systems is difficult to measure.83 Further, the legal system relies on police officers to arrest wrongdoers, as well as be a presence on the street to deter wrongdoing and physically protect people. It is far from perfect, but domestic criminal justice systems do provide protection, if by no means total. The international criminal justice regime works very differently. It was conceived of as a retrospective system that would deal with people after they had committed their atrocities, which is of little comfort to the thousands or millions of civilians who might die in a conflict. Further, compared to the crimes committed and lives lost, extraordinarily few people have been tried before international courts or domestic universal jurisdiction proceedings. And it can be no other way. Indeed, the first Prosecutor of the ICC stated that his aim was to go after maybe a half dozen of those most responsible in a particular conflict.84 This will leave hundreds and thousands of people who have committed serious crimes in a conflict to go free. The ICC has no resources to extend beyond that small number of people. Nor does it have the ability to get its hands on any more. It is completely reliant on states and the UN to deliver suspects to its door in The Hague, and unlike domestic contexts where there is a police force whose job is to do exactly that, the Prosecutor does not have his or her own police force to go out and arrest people. They are completely reliant on a very ad hoc process that only functions when states or other actors decide it is in their interest to arrest somebody,85 and even if it is in their interest, they may not have the means. The fact that it took sixteen years to arrest Ratko Mladic indicates that justice is far from automatic. The protective effect of deterrence, unsure as it is in domestic contexts, is, at the present time, close to nonexistent, and will only have a chance of having any significant value after a long record of successful prosecutions in The Hague is assembled, with alleged perpetrators coming to trial in much less than sixteen years.
Although international criminal justice is retrospective in nature, there are now attempts to use it to affect the course of conflicts in which the crimes are being carried out. The involvement of the ICC is sought by parties or observers to the conflict as a conflict management strategy.86 Initial experience in places such as Darfur and Libya indicate the extreme limits of the ability to use threats of being sent to The Hague to alter perpetrators’ behavior. And without stopping the killing, it is difficult to make the case for the protective effect of international criminal justice. At the same time, invoking the ICC can make the protection of people even more difficult. Yet it is difficult to fault the advocates of the ICC and similar mechanisms, for certainly we do want the purveyors of atrocity to be held accountable. But, again, we must be modest in our expectations.
Military Protection
R2P includes many activities, but if we are interested in keeping people from being killed in an atrocity situation, it is the reactive, or active, element that is crucial. While the term humanitarian intervention has fallen out of favor, this is the type of activity that could—possibly—protect people. While humanitarians can keep people alive—at least those to which they have access—if a group is intending to kill people in a refugee or IDP camp, for example, there is little they can do. Food will not stop the janjaweed in Darfur. Nor will all the international legal principles advocated by the committed people at the ICRC or UNHCR or, for that matter, the legal machinations and pronouncements emanating from The Hague. No, what is sometimes needed is a soldier (or a brigade) with a gun standing at the entrance to a refugee camp with a mandate and a will to use it against those who want to rape or kill the people in the refugee camp. And they must be there night after night, and at times they must go after the people intent on massacres and either bring them to justice or—and let’s be clear about what is required—kill them. We have seen instances where the international community has the will to countenance and support such activity. However, the overall record is dominated by abject failure, the Srebrenica massacre and the Rwandan genocide being only two of countless examples where those with the ability to intervene forcefully have not recognized and acted on their responsibilities.
Further, the “hard edge” of R2P is hardly without problems. There are legal issues, although these are becoming less important, especially with regard to UN action. There are practical issues. You need to find the right people and the right equipment and get them to the right place at the right time. The people—and those commanding them—have to be willing to use that equipment. The resources deployed must be appropriate for the job at hand. And you need to make sure you do not make the situation worse, by inflaming the situation, killing the wrong people, or affecting, for example, the delivery of humanitarian assistance. These are not easy things to address, and there are constant prudential debates about the appropriateness of a particular response in a particular situation. And there may be situations where you just cannot do what is needed—or at least all of it. You need to recognize that not every situation can be addressed. In other words, there are limits. Too often, however, the international community has not demonstrated a willingness to explore those limits.
Protection of Civilians
R2P is an inherently political construct. It gets to the heart of core issues of sovereignty and war and peace and global power politics. And while it has been superficially accepted by the World Summit, the UN Security Council, and in other fora, it is still highly controversial. It attracts suspicion in parts of the world that have experienced colonialism and military intervention for less than humanitarian reasons—even if the notional balance