Conflict Prof Macharia

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University of Nairobi College of Education and External StudiesMASTERS IN PROJECT PLANNING AND MANAGEMENT

Conflict Analysis and ResolutionTHE RESPONSIBILITY TO PROTECT1.

Introduction: The Concept of Sovereignty

How did the concept of the nation state come about? Why and how does it have a responsibility towards its citizens?

Key points:a) 1648 Peace of Westphalia (based on territorial integrity, order and

stability guaranteed by a state monopoly on the use of force1). The basic principles of self determination, legal equality among states, nonintervention in internal affairs of another state. In other words, a countrys Sovereignty was to be sacrosanct.

And to prevent for the future any Differences arising in the Politick State, all and every one of the Electors, Princes and States of the Roman Empire, are so establish'd and confirm'd in their antient Rights, Prerogatives, Libertys, Privileges, free exercise of Territorial Right, as well Ecclesiastick, as Politick Lordships, Regales, by virtue of this present Transaction: that they never can or ought to be molested therein by any whomsoever upon any manner of pretence.21

Marc Saxer, Security Governance in a post Sovereign World, in International Politics and Society, Security Governance issue, 3/3008, 28. 2 Article LXIV, Treaty of Westphalia, International Relations and Security Network, 15.


In other words, anyone who paid loyalty to the state was in return protected by the state.b) 1948 UN Charter Article 2:1 - 1. The Organization is based on the

principle of the sovereign equality of all its Members.

c) Kenyan Constitution Chapter 1 Wako Draft - All sovereign

authority belongs to the people of Kenya and exercised only in accordance with this Constitution.

Through their own volition, the people enter into a CONTRACT through which they surrender some of their sovereignty to the government in exchange for agreed services. QUESTION 1: Use the example of post election violence. Why did the government try to stop the violence first with the police and then the military? QUESTION 2: Is sovereignty such a wonderful thing?

2. What is the Responsibility to Protect?

An emerging legal norm It could be argued that the peacekeeping operations (all

generations) were an earlier form of R2P, in as much as they were foreign interventions to breaches of and threats to international peace and security. Resulted from a challenge by former SG Kofi Annan on how we are to address gross violations of human rights2

war crimes need a war, and can be committed by civilians or

military. crimes against humanity can be in peacetime, committed by

civilians or the state.

Statute of the International Criminal Court in Rome, July 1998, after adhoc courts International Criminal Tribunal for the former Yugoslavia ICTY (1993) and International Criminal Tribunal for Rwanda - ICTR (1994).

Article 8 of the Rome Statute: War crimes include: rape, sexual slavery, enforced prostitution, forced pregnancy or other forms of sexual violence; using children under the age of 15 to participate actively in hostilities.

Article 7 of the Rome Statute: Crimes against humanity include: murder; extermination; enslavement; deportation or forcible transfer of the population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in Article 7 of the Statute or any crime within the jurisdiction of the Court; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Article 6: (reiterates 1948 Convention of Prevention and Punishment of the Crime of Genocide)3

Genocide is defined as any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.

Canadian Govt formed International Commission on Intervention and State Sovereignty (ICISS) which brought together eminent international personalities such as Cyril Ramaphosa (South Africa), Gareth Evans (Australia), Mohamed Sahnoun (Algeria), Michael Ignatieff (Canada) etc, who consulted on every continent and resulted in the 2001 Report of the ICISS on the Responsibility to Protect.

It states that when a population is

suffering serious harm resulting from internal war, insurgency,

repression or state failure, and the state is unable or unwilling to act to prevent or protect its

peoples, the international community has a moral (note, not legal) duty to intervene to halt or avert the atrocities.3 R2P also broadens the responsibility of the international community to encompass the responsibility to prevent armed conflict,3

International Commission on Intervention and State Sovereignty, The Responsibility to Protect - Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre, (December 2001), XI.


react to the situation in the event that prevention has failed, and

finally to rebuild after the conflict has subsided


Criteria for military intervention:

Right authority (Security Council), Just cause (large scale loss of life, ethnic cleansing), Right intention (not for resources, expansion of borders, regime

change (though some disabling is ok) coalition, if locals want it,), Last resort (when all else fails and violence is imminent or occurring), Proportional means (scale, duration, intensity)

Reasonable prospects (of success, the principle of Do No Harm4)


1. Large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or 2. Large scale ethnic cleansing, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.

Ethnic cleansing includes the systematic killing of members of a particular group in order to diminish or eliminate their presence in a particular area;4

Paris Declaration on Aid Effectiveness -


the systematic physical removal of members of a particular group from a particular geographical area; acts of terror designed to force people to flee; and the systematic rape for political purposes of women of a particular group (either as another form of terrorism, or as a means of changing the ethnic composition of that group.

PRINCIPLES OF MILITARY INTERVENTION: a. Clear mandate and resources (unlike peacekeeping)b. Unity of command and clear and unequivocal communications (unlike

Somalia in 92)c. Acceptance of limitations, incrementalism and gradualism in the

application of force, the objective being protection of a population, and not

defeat of a state. d. Rules of engagement are precise; reflect the principle of proportionality; and involve total adherence to international humanitarian law. e. Acceptance








objective. (MANDATE) f. Maximum possible coordination with humanitarian organizations.


What IS protection?

a) Over the past decade, the UN has been talking about and moving

toward a culture of protection and covers rule of law,6

respect for refugees, sustainable livelihoods, access to justice, etc.

b) 2001 - In his second report to the Security Council on the Protection of

Civilians in Armed Conflict former UN Secretary General Kofi Annan defines protection as a wide range of activities that may include the delivery of humanitarian assistance; the monitoring and recording of violations of international humanitarian and human rights law, and reporting these violations to those responsible and other

decision makers; institution-building,

governance ultimately,

and the

development deployment of



peacekeeping troops.5

c) In 1999, the ICRC brought together in Geneva a wide group of

humanitarian and human rights agencies that arrived at a definition of protection by consensus. They concluded that protection is all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the


United Nations, Report of the Secretary-General to the Security Council on the protection of civilians in armed conflict, 30 March 2001 (available at 385256c8700549672!OpenDocument, downloaded 29 November 2007)


spirit of the relevant bodies of law, i.e. human rights law, international humanitarian law and refugee law. These activities include the preservation of a persons