Introduction

This paper will explore how the Protection Cluster, as part of the new United Nations led cluster approach in emergency environments, can serve to implement the international community’s responsibility to protect civilians in the field and will make a policy recommendation to ensure the international community is better able to carry this responsibility out and fulfill it. The paper is divided into five sections: first, tracing the emergence and content of the ‘Responsibility to Protect’ (R2P) framework and its burgeoning acceptance as an international norm; second, the development of the cluster approach and the Protection Cluster as a means for improving the international community’s protection response on the ground; third, a review and analysis of how the implementation of the Protection Cluster on a pilot basis in South Kivu, Democratic Republic of Congo (DRC) has started to implement the R2P framework in the field as well as some challenges it faces in providing adequate protection response; fourth, a policy recommendation to the UN to institutionalize the international community’s responsibility to protect citizens in the field by mandating the Protection Cluster with the responsibility to protect directly according to the R2P framework, with specific actions recommended for a new leadership structure and guidelines to make this a reality; and last, a conclusion on what this policy with the new structure and guidelines could mean, if heeded and instituted, for the international community’s ability to protect citizens in complex emergencies around the world as well as today’s major obstacle hindering this from becoming reality.

The Responsibility to Protect: The framework and its burgeoning acceptance

The concept of security is now increasingly recognized to extend to people as well as to states. It is certainly becoming increasingly clear that the human impact of international actions cannot be regarded as collateral to other actions, but must be a central preoccupation for all concerned…there is growing recognition worldwide that the protection of human security, including human rights and human dignity, must be one of the fundamental objectives of modern international institutions (International Commission for Intervention and State Sovereignty 2001, p. 6)

In 2001, the International Commission for Intervention and State Sovereignty (ICISS) published its watershed report the “Responsibility to Protect”. The commission responded to former UN Secretary-General Kofi Annan’s challenge to the international community to chart a more consistent and predictable course of action when responding to humanitarian crises, particularly when international intervention on humanitarian grounds and the violation of state sovereignty are at odds. As a result, ICISS developed a framework for the international community to employ at the global level in determining its actions against states, including the deployment of military force, whose civilian populations are suffering grave harm.1

The Commission sought to address the political impasse between the principles of sovereignty and noninterference in the affairs of sovereign nations on the one hand and when the international community has the authority to supercede these basic principles and intervene in order to protect the lives of citizens that are victims to large scale loss of life and/or large scale ‘ethnic cleansing’ on the other. The Commission, however, went further than solely providing a solution to this impasse by proposing a comprehensive set of principles that elucidates a new policy which should dictate what actions the international community should take in its response to mass human suffering and slaughter in states that are either complicit in such acts of terror or are unable to control the eventuality that such terror will fall upon its citizens. In its framework the Commission put forward a new approach advocating that the international community actually has the responsibility to protect citizens in grave danger and that this responsibility entails the responsibility to prevent such occurrences from happening, the responsibility to react when they do happen, and the responsibility to rebuild once the international community has reacted.

In presenting the new R2P approach the Commission aptly summarized “What is at stake here is not making the world safe for big powers, or trampling over the sovereign rights of small ones, but delivering practical protection for ordinary people, at risk of their lives, because their states are unwilling or unable to protect them.” (ICISS 2001, p.11) In doing so, the Commission advocates that sovereignty means responsibility, that if a state is recognized as a sovereign entity within the international community it ultimately has the responsibility to protect its citizens according to international laws governing human rights and established international norms defining human security.2 In essence, the Commission proposed a change in terminology and perspective from the common prior-to-publication reference of the international community’s “right to intervene”, which was inherently flawed according to the principles of state sovereignty,3 to newly understanding it as their “responsibility to protect”, which substantively makes it incumbent on the international community with the responsibility to provide “life-supporting protection and assistance to populations at risk.”4 (ICISS 2001, p.17)

In the “Responsibility to Prevent” component the Commission advocates that the responsibility to protect implicitly implies a strong commitment by the international community to preventing conflicts from escalating thus reducing the likelihood of large scale human catastrophes from occurring. A key objective of the Commission is to encourage more serious and sustained efforts to understand and address the root causes of conflicts that put populations at risk as well as more effective use of direct prevention measures. (ICISS 2001, p.20) The Commission notes the dire need for a more structured and institutionalized early warning and analysis mechanism, as opposed to the present essentially ad hoc system comprising many disparate actors (UN, NGOs, government bodies, regional bodies), in order for the international community to effectively identify and be held accountable for responding to burgeoning crises where masses of human lives are at stake. Seeing as conflict is almost always extremely complex with several root causes at play the Commission supports broad-based prevention strategies that specifically promote human rights and protect minority rights and more generally address the political, economic, military, and social intricacies in any given conflict context that can lead to the potential of a human catastrophe. (ICISS 2001, p.23) The Commission ultimately states (2001, p.27) “what is necessary is for the international community to change its basic mindset from a ‘culture of reaction’ to that of a ‘culture of prevention”.

When discussing the “Responsibility to React” the Commission argues that the R2P approach above all else requires that the international community reacts immediately to cases of compelling need for human protection. As its fundamental premise, the responsibility of the international community to react should take place when prevention measures fail and deadly conflict erupts imperiling the lives of thousands. The Commission strongly states that all measures other than the deployment of military force (diplomacy, sanctions, arms embargoes, etc) should be duly and comprehensively undertaken in an effort to resolve the population’s suffering prior to considering military intervention. When all attempts fail, however, and military intervention is the last resort to protecting lives, the Commission advocates that a ‘first do no harm’ approach should be adopted understanding that intervening in the domestic affairs of states is often harmful and can have disastrous outcomes if the utmost prudence in not taken.5

In the final major component of fulfilling the R2P approach, the “Responsibility to Rebuild”, the Commission notes (2001, p.39):

…there should be a genuine commitment to helping to build a durable peace, and promoting good governance and sustainable development. Conditions of public safety and order have to be reconstituted by international agents acting in partnership with local authorities with the goal of progressively transferring to them authority and the responsibility to rebuild.

With the international community having the responsibility to rebuild, pending adequate political and financial support from UN member states, it essentially assures to the extent possible that all efforts will be taken to mitigate a relapse into the conditions that brought about the conflict and large-scale human suffering in the first instance. In order to achieve an improvement of conditions and avoid a relapse the Commission notes that ground level reconstruction efforts in the domains of security, justice, and overall development (education, health, infrastructure, etc), should be pursued with vigor with the end goal of creating a state and society that will in the long term effectively function on its own, protect its citizens according to the rule of law, and sustain and improve upon the peace that has been created.

While all of the aforementioned – the responsibility to prevent, the responsibility to react, and the responsibility to rebuild – are significant to the overall R2P framework the Commission’s single most important contribution, as eluded to, was the reconceptualisation of the core concept of the international community’s “right to intervene” on humanitarian grounds as, rather, “the responsibility to protect” civilian populations at risk. This change in conceptualization and interpretation has ultimately shifted the focus from those exercising state power to the actual victims of conflict.6 As a result, the R2P framework since its publication has gained widespread international accreditation with: the Secretary General’s High Level Panel on Threats, Challenges, and Change in 2004 endorsing the emerging norm of a responsibility to protect civilians from large-scale violence7; the Secretary General encouraging in 2005 in his “in larger freedom: Towards Security, Development, and Human Rights for All” report for all to embrace the responsibility to protect and act on it8; the latest UN Security Council resolutions (17389 and 167410) to protect civilians in conflict plainly noting the responsibility to protect beholden to the international community; UN Peacekeeping missions increasingly being mandated with a Chapter 7 mandate to aggressively protect civilians in conflict11; and statements to the Security Council by former Undersecretary General for Humanitarian Affairs and Emergency Relief Coordinator Jan Egeland (04/12/0612 and 28/06/0613) calling for more predictable response by the international community to execute its responsibility to protect civilians in need. While these are all significant accomplishments in accepting the R2P framework as an international norm the landmark legitimizing moment to date came in 2005 at the World Summit when all governments clearly and unambiguously accepted the collective international responsibility to protect populations from crimes against humanity firmly embedding the concept as part of the international civilian protection lexicon.14

While these developments have been significant in internationally validating the R2P framework as a standard in which the international community should be held to account, scant attention has been paid by the Commission and policy making institutions since on how the objectives of the R2P framework can be holistically structured and employed so that the international community (military, humanitarian, and development actors) can effectively carry it out at the field level, thus concretely enabling it as a whole to target civilian protection activities where they are most in need; where civilians are at real risk for their lives. At the field level challenges are immense with often a plethora of international and national actors working for the same end to prevent, react, and rebuild states and societies that could be or have been ravaged by conflict but who are often fiercely independent with differing organizational mandates, philosophies, and methods of work. Referring to this the Commission notes (2001, p.61-62):

Coordination is a topic that is a perpetual concern but which is extremely difficult to achieve satisfactorily, since coordination implies independent authorities attempting to cooperate with each other… and that… Improved coordination and collaboration between military forces, political civilian authorities, and humanitarian agencies will likely continue to be an issue of particular significance.

Until recently, this hodgepodge of disparate actors in the field has not been compelled by a well conceived system – that offers improved coordination, synergy, direction, and operational support – to come together in all of their individual capacities with the joint purpose of attempting to fulfill the ICISS’s R2P framework on the ground itself. However, with the advent of the Humanitarian Response Review15 and its evolution into new humanitarian reform initiated and led by the United Nations that has begun implementation in select pilot countries in Africa16 a system has been put in place for the purpose of improving overall coordination and humanitarian response in the field. The following section will elaborate on this reform in general and particularly as it relates to protection.

The Protection Cluster as part of the Cluster Approach: A means to improve protection response in the field

In international responses to humanitarian crises it has become evident over the years that the international community has had deficiencies in its system to adequately respond to all prevalent needs in the field, with some sectors or categories of people benefiting from the assistance of distinct international organizations mandated to serve their interests (ex. refugees/UNHCR, children/UNICEF) while others have not. As a result, response in almost all instances has been ad hoc with little predictability and often serious response gaps in some areas and to some groups of people (ex. the internally displaced). In order to rectify this, in 2005, as part of the UN reform process and overall humanitarian reform agenda,17 member states to the UN called for more predictable, efficient, and effective humanitarian action, and for greater accountability, when responding to humanitarian crises, especially in situations of mass internal displacement.18 (IASC Sept. 2005) To concretely respond to this the Principals of the Inter-Agency Standing Committee (IASC)19 in September 2005 agreed to a ‘cluster leads’ system where different UN Agencies were appointed as leads in nine sectors or areas of activity according to their areas of specialization,20 and in December 2005 the ‘cluster approach’ was officially welcomed as a “mechanism that can help to address identified gaps in response and enhance the quality of humanitarian action.” (IASC Nov. 2006)

The intention of the cluster approach is to essentially provide predictable action in analyzing needs, addressing priorities, and identifying gaps in specific sectors in the field. (www.ochaonline.org) “It is about achieving more strategic responses and better prioritization of available resources by clarifying the division of labour among organizations and better defining the roles and responsibilities of humanitarian organizations within the sectors.” (IASC Nov. 2006) The approach essentially represents a raising of standards in humanitarian response by ensuring all sectors have clearly identified and accountable lead agencies that are mandated to be the ‘first port of call’21 and ‘provider of last resort’22 for their respective sectors. These responsibilities ultimately entail mobilizing relevant actors in a specific sector, developing response strategies based on needs, priorities, and gaps in that sector, and implementing projects/activities in order to respond to those areas deemed important by the cluster membership. In addition, it is each cluster lead’s responsibility to ensure that operational priorities shift with the context, such as from emergency relief to early recovery to development.

A key element in the cluster approach’s design is to strengthen strategic partnerships between NGOs, international organizations, UN agencies, and the International Red Cross and Red Crescent Movement in the field. The IASC Guidance Note on Using the Cluster Approach (Nov. 2006) notes that “humanitarian partnerships may take different forms, from close coordination and joint programming to looser associations based on the need to avoid duplication and enhance complementarity.” This goal ultimately makes it incumbent on the lead agencies to find ways of involving all relevant sectoral actors in a collaborative and inclusive process so that they are given the opportunity to fully participate in setting and participating in the direction, strategies, and activities of the cluster. If this is done issues of common interest and agreed needs amongst actors should surface leading to the potential of developing joint programming initiatives, which will duly enable a more holistic response to gaps in the sector.

Referring to the potential efficacy of the cluster approach to respond to protection issues UNHCR’s Assistant High Commissioner for Protection Erika Feller (Dec. 2006, p.12) recently noted that “the ‘cluster approach’… has been formulated as a means of operationalising the notion of the ‘responsibility to protect’”. While the overall cluster approach arguably goes beyond this objective in that it should respond to issues beyond the cross-cutting sector of protection Feller’s statement rings true when considering that the IASC has attributed a distinct cluster devoted to protection in order to exclusively respond to protection issues. The fact that protection has been accorded a specific cluster should ensure that – if led properly in relation to the above intentions and provided with adequate financial and human resources – protection needs, priorities, and gaps are identified and that agreed strategies and operations are put in place by all relevant international protection actors to respond to them, thus showing genuine results in improving the protection of those concerned.

While the IASC has established the need for an exclusive cluster devoted to protection issues this has in most instances resulted from the fact that the protection of internally displaced people (IDPs) has not been adequately carried out by the international community in their past emergency responses. Indeed, the International Council of Voluntary Agencies (ICVA) notes in their Talk Back newsletter (Oct. 2005) that “IDP protection has always been one of the biggest gaps in the response to IDPs.” As a result, the Protection Cluster, which UNHCR has been appointed as and has agreed to lead,23 has been developed with the particular objective of responding to the glaring gap of improving response in protecting IDPs,24 that is ensuring their legal rights are respected according to the Guiding Principals on Internal Displacement25 and that their physical integrity in situations where they are acutely vulnerable is assured to the extent possible. However, while in principle all of these reforms and intentions sound promising in protecting civilians and IDPs alike the litmus test of how they work will come from evaluating the real impact on the ground, seeing exactly if and how the Protection Cluster is tangibly responding to protect all of concern in the field and what results its efforts concretely yield. It is in this light that the next section is devoted, understanding how the Protection Cluster is operating in the field, in this case in South Kivu, DRC, and if it is starting to make inroads in improving the international community’s protection response to those who are most in need on the ground itself.

The Protection Cluster in South Kivu, DRC: Starting to implement the R2P framework in the field

The Protection Cluster, as part of the cluster approach, in the DRC was initiated at the beginning of 2006. While the Protection Cluster as a whole was designed to improve the international community’s protection response, particularly related to IDPs, the fact that displacement was or could be a reality for the majority of the population in eastern DRC26 induced the country’s Humanitarian Coordinator27 and Humanitarian Action Group (HAG) to mandate the Protection Cluster with the responsibility of responding to the protection needs of the entire civilian population, not solely IDPs. Based on this the Protection Cluster throughout the country set out to provide predictable action in analyzing protection needs, addressing protection priorities, and identifying protection response gaps to the Congolese civilian population as a whole.

The leadership of the Protection Cluster in the DRC was appointed to the United Nations High Commissioner for Refugees (UNHCR), following its global Protection Cluster responsibility assigned to it by the Inter Agency Standing Committee Principals, and the UN peacekeeping mission in the DRC MONUC, due to its mandate and unique capacity and capabilities (military) to protect civilians in the country.28 This co-lead decision ultimately brought one of the UN’s largest politically neutral humanitarian agencies with significant operational humanitarian experience, UNHCR, in direct partnership with a UN peacekeeping mission that has a solely politico-military mandate. This is significant in that it created a first-of-its-kind joint leadership responsibility between a UN humanitarian agency and UN peacekeeping mission to apply their respective capacities together, both humanitarian and military, in being the ‘first port of call’ and ‘provider of last resort’ in responding to the protection needs of the DRC populace.

In South Kivu, one of four provinces in the DRCs tenuous eastern region where civilian protection needs are most acute, the Protection Cluster was initiated in February 2006. With little background and guidance on how to implement the Protection Cluster UNHCRs Deputy Representative of Protection and national lead of the Protection Cluster Ralf Gruenert initiated the first meeting noting that it was the international community’s protection actors in South Kivu that needed to chart the course of the cluster predicated on the specific civilian protection context in the province. As a result, it was clear that for the South Kivu Protection Cluster to achieve results in improving protection response to the civilian population relevant international actors with protection activities on the ground would need to be mobilized and engaged. Thus, the first step taken was to convoke meetings with many of the pertinent protection actors in the province to solicit their participation and engagement in the Protection Cluster so that together, representing the international community on the ground, they could discuss specific civilian protection issues and develop appropriate responses to them.

From its first meeting the South Kivu Protection Cluster has included participation of almost all significant international protection actors in the province (UNHCR, MONUC, UNICEF, OCHA, INGOs, ICRC as an observer, etc). The regular participation and contribution of these actors has enabled the cluster on one hand to develop into a forum where the international community is able to discuss the protection context in the province and identify existing protection gaps and needs, and on the other hand, come together to devise a broad-based protection strategy to respond to them through joint actions and activities. In meetings, it has emerged that two types of response are regularly raised: first, the civilian protection crises of the moment and how the cluster can immediately react to them in order to avert continued human rights violations and/or population displacement; and second, how the cluster can develop activities to address the widespread structural weaknesses and institutional lack of capacity of Congolese institutions (army, police, and judicial system) in order to rebuild them so that they will one day have the basic capacity needed to protect the civilian population on their own. On the whole, the evolution of this approach of focusing on short-term issues that require an immediate response and medium to long-term issues that require a sustained response has shaped the cluster into an action-oriented entity that is in a position to attempt to concretely respond to protecting the civilian population in the province.

When the cluster discusses issues where immediate action is required it has normally been in the context where the physical protection of civilians, that is their physical integrity, is at grave risk. Instances such as these include the human rights violations of rape, indiscriminate killing, looting, torture, and arbitrary arrest, among others. In order to respond to such violations the Protection Cluster has acknowledged that the only concrete action to protect civilians in the face of such physical harm is through the show and action, if necessary, of military force. As a result, the Protection Cluster held a specific meeting with MONUCs military, facilitated by MONUCs civilian sections, to solicit their direct participation in the cluster. Due to MONUC’s Protection Cluster co-lead responsibility and recognition of the Protection Cluster’s raison d’être the military assigned a representative to participate in all cluster meetings.

With an active presence of MONUC, civilian and military sections, the Protection Cluster has had a direct line of contact with the sole entity in the international community that can physically ensure the deterrence of violations from taking place. While concerns of collaborating with the military were raised by some humanitarian actors in the Protection Cluster in relation to maintaining their humanitarian principles of neutrality and impartiality this cooperation has borne many fruits as the cluster has been privy to the extensive security information that MONUC possesses, could discuss protection/prevention/reaction issues that would be communicated to the MONUC command structure, and has been able to directly solicit the support of MONUC on occasions where civilian populations were at risk. In fact, on a few occasions, such as in the areas of Bunyakiri and Nyamharege which were of concern to the Protection Cluster,29 MONUC often responded with either short-term to semi-permanent deployments or increased military patrols to these areas, often to significant effect.30 While these have been notable achievements in terms of MONUCs willingness to deploy to areas that are deemed important by the Protection Cluster it is proving that the synergy between the overall Protection Cluster and the MONUC military, in particular, is increasing with time, familiarization with one other, and the understanding of the individual capacities that each can offer in attempting to protect the civilian population in areas where they are in peril.

This maturing collaboration between the humanitarian component of the Protection Cluster and the military component has been no more apparent than in 2007 where plans of a joint strategy to try and maximize all cluster capacities to attempt to better protect the civilian population in the Kaniola area have commenced.31 After discussions between UNHCRs Protection Cluster focal point, MONUC’s Civil Affairs Section, and the MONUC General in the province, an agreement was reached to see how the military with the rest of the protection cluster participants, through the UNHCR and MONUC focal points, could develop a strategy to attempt to protect the civilian population in the area. The initial aspects of this joint strategy involved the deployment of a MONUC force, pending appropriate reconnaissance, to deter violations from continuing and gathering detailed information on the precise security situation in the area and for the other actors in the Protection Cluster, either as a whole or as the willingness of individual actors dictate, to see what additional actions/programs they could take in conjunction to try and improve the protection of civilians in Nindja in the short, medium, and long-term. This attempted strengthening Protection Cluster dynamic between the international humanitarian and military actors is in the first instance starting to realize some of the objectives of strengthened collaboration that the cluster approach intended and is beginning to implement some of the R2P framework in the field itself – a trend that will be further shown – in this case with the responsibility of the international community to react to immediate violations in a specific locale.

When the cluster discusses issues where medium to long-term action is required it has most commonly been in relation to tackling the problem of impunity, namely exploring how to promote a rights-based culture by building the capacity of Congolese institutions to respect and enforce the rule of law, thereby protecting citizens through the justice system. In doing this the Protection Cluster identified specific projects and UNHCR as the cluster lead has commenced developing and/or implementing some such as training the Congolese army on basic human rights standards and professional military-civilian behavior; protection monitoring to monitor, report, and follow-up on protection violations in the province; a public information campaign to disseminate international and national legal civilian protection standards; and initiatives to build the capacity of the judiciary to enable them to better enforce the rule of law.

For the project designed to train the Congolese army (FARDC) on human rights standards and professional military-civilian behaviour the Protection Cluster agreed a major protection gap in the province was the fact that the Congolese army, representing the most common perpetrators of human rights violations, were offered no consistent and coordinated training on international civilian protection standards and on professional behavior vis-à-vis the civilian population. As a result, in order to respond to this gap, the Protection Cluster approved the development of a project to be implemented by the international NGO Search for Common Ground, funded and managed by UNHCR on behalf of the Protection Cluster, to train the army on international civilian protection standards. When the project was ready to pilot, towards the end of 2006, it coincided with a MONUC training of the army on combat and military skills. Seeing as the MONUC training brought army elements to one location the Protection Cluster leadership deemed that it was an ideal opportunity to try and pilot the project. With close collaboration between MONUC, UNHCR, and Search for Common Ground, the project’s activities were allotted time within the MONUC training to train the Congolese army on some general civilian protection standards. Building on this, there has been ongoing discussion on how other Protection Cluster actors specialized in specific aspects of international human rights law, such as the United Nations Children’s Fund (UNICEF) and MONUC’s Human Rights Section among others, can offer their expertise to Search for Common Ground to strengthen the Congolese army training. This, in addition to the willingness of another Protection Cluster participant, The Life and Peace Institute, to foster contact and collaboration between one of its local partners active in training the Congolese army and the Protection Cluster’s Search for Common Ground project, is in the second instance strengthening strategic partnerships to attempt to improve protection response and starting to implement the R2P framework in the field, in this case the responsibility to prevent.

The protection monitoring project and public information campaign on international civilian protection standards were two other key projects that the South Kivu Protection Cluster agreed were priorities. The cluster identified a gap in obtaining relevant and reliable protection information, particularly related to internally displaced persons, in all areas in the province thus warranting the need for a comprehensive and accountable protection monitoring and reporting project. It is expected that this project will act as an early warning and protection analysis and reporting system in the province effectively enabling the Protection Cluster to develop suitable responses in instances where civilian protection is at risk. This project is expected to be operational in 2007/early 2008. With regard to the public information campaign on civilian protection standards the Protection Cluster identified a gap in the lack of overall attention and awareness on human rights and the rule of law, which it was deemed if developed could play a role in preventing violations from occurring and be a part of the larger fight to change the existing culture of impunity towards a culture of respect for the rule of law. This project is expected to be implemented in 2007. These two projects are the beginning of likely more strategic partnerships that will form once they are implemented, which should also serve to commence realizing the international community’s responsibility to prevent protection violations in the field, as laid out in the R2P framework.

The last activities/operations that the South Kivu Protection Cluster has targeted to date has been the development of programs to support the better functioning of the justice system in adjudicating cases and ensuring those found guilty are punished before the rule of law. In its present state, the Congolese justice system does not function effectively resulting in virtually no recourse for victims of human rights violations, thus sending the message that violations are permissible. Identifying the lack of capacity of the justice system to adjudicate, convict, and incarcerate perpetrators of human rights violations as a major protection gap in protecting the civilian population the Protection Cluster is currently exploring pertinent activities to pursue. Attempting to collaborate with MONUCs Human Rights Section and various international NGOs a coherent strategy is hoped to be developed to respond to this gap. Once operations are in place the cluster will likely commence realizing the third facet of the R2P framework, the responsibility to rebuild to protect civilians in the long-term and in so doing attempting to ensure a durable peace.

While these are concrete examples of how the Protection Cluster in South Kivu is trying to respond to particular protection issues in the province and in doing so how it is starting to implement the R2P framework on the ground it has been apparent that serious challenges remain for adequate protection response to be delivered to civilians in need. Unfortunately, due to the scope of this paper a more comprehensive review and analysis cannot be provided on all of the many challenges that the South Kivu Protection Cluster has faced, however, the following is a synopsis of three primary challenges thus far encountered. These challenges are: first, the difficulty the Protection Cluster has had in responding to the wide ranging nature of civilian protection needs and required actions in South Kivu; second, the challenge that the multitude of actions needed requires committed, accountable, and skilled human resources of which presently is not adequate; and third, the fact that issues causing civilians to be at risk are inherently political ultimately requiring the highest level political intervention to develop strategies and find durable solutions to them.

A significant challenge is the fact that protection is a huge cross-cutting sector with enormous needs and ranges of targeted response to improve the overall protection of the civilian population. It has been evident in South Kivu that each situation where civilians are in need requires a specifically tailored response to respond to those particular needs. For example, there are situations where civilians are at greater risk in some areas than civilians in others due to the concentration of foreign militias that threaten their well being; there are areas where ethnic tensions are high and where one minority community (the Banyamulenge), due to political and historical reasons, is at acute risk; there are institutional problems that either directly threatens the population, such as the indiscipline of the Congolese army, or don’t do enough to ensure civilian protection, such as the inadequate functioning of the justice system; and there are whole groups of people who are particularly vulnerable, such as the internally displaced, children, and women, that require clear, comprehensive, and sustained individual responses in order to better ensure their protection. This, of course, is just on the surface level, as each area or group of people is studied in greater depth the complexity of their protection risks is more clearly revealed, which in turn clarifies the need for well thought out comprehensive, coordinated response strategies to their particular plight. Without going into detail the scale of this situation, simply put, renders it impossible both in capacity and specialization for the co-leads of the Protection Cluster, UNHCR and MONUC, to develop strategies and lead the comprehensive tailored responses that every group and every area requires for improved protection. This challenge is an enormous one which ultimately requires that policies be considered to explore how the Protection Cluster can have more capacity and ability to respond to the full variety of issues that requires its attention.

A second major challenge has been the reality that to attempt to develop the appropriate responses to the situations and groups of people requiring the protection attention of the international community sufficient and experienced human resources that can skillfully mobilize the international community, work with one another, develop clear strategies, and lead actions is desperately needed. The success of the Protection Cluster depends on the ability of the leads and key contributors in critical protection agencies as well as other actors to build trust with one another and develop a collaborative spirit where the end goal of providing protection response to improve the conditions of those in need is of paramount importance. A firm commitment from protection workers on the ground to use their individual specializations and capacities together to form a joint response will create improved results however the right efforts need to be taken to ensure this happens. Without agencies prioritizing putting the right qualified staff in the right positions in relation to its cluster leadership responsibilities all hopes are in vain for a well coordinated and dynamic cluster that can capably respond to civilians in need of their response.

Even if these actions are taken to improve the Protection Cluster’s response perhaps the most significant challenge is that resolving root causes of protection violations in South Kivu, such as the presence of foreign armed groups and local rebel groups requires, a high level political strategy. The South Kivu Protection Cluster, while having made some achievements, has been unsuccessful and lacked efficacy in addressing root causes because simply put it is not positioned highly enough to do so. Only through analysis, strategy, and sustained engagement from the highest political agents in the international community can root causes of civilian protection threats realistically be resolved. Until that happens, the Protection Cluster will ultimately be unsuccessful in protecting civilians at risk.

The Way Forward – Institutionalizing the Responsibility: Mandating the Protection Cluster with the responsibility to protect according to the R2P framework

This paper has thus far shown how the ICISSs R2P framework has burgeoned into an international norm, becoming institutionalized at the global level with reference to it in several UN documents, addresses, and resolutions, as well as its unprecedented acceptance at the 2005 World Summit. While this is significant, it has been acknowledged that the international community mobilizing and engaging in protecting lives on the ground in accordance with the R2P framework – to prevent, react, and rebuild – is another matter all together. The intention of the recently developed UN-led cluster approach and the Protection Cluster within it as mechanisms to better coordinate actors and actions on the ground to improve the international community’s humanitarian and protection response was then explained. And lastly, the piloting of the Protection Cluster in South Kivu, DRC, has demonstrated how the R2P framework – preventing, reacting, and rebuilding – has started to be implemented with the commencement of real coordination between protection actors and protection actions being tangibly carried out as well as some challenges to providing the response needed. So, where does that leave us?

If the international community is indeed fully intent in carrying out its responsibility to protect and protecting the lives of people in serious need, as earlier noted it is responsible for, it must fully commit to institutionalizing this responsibility in the field itself, so that tailored responses can be developed giving people at risk the best chance of being protected by actors on the ground. Without taking clear high level policy decisions to institutionalize the responsibility to protect as cogently laid out in ICISSs framework people suffering grave harm in any corner of the world, even where the international community is in full force such as in the DRC, will continue to be victims of the international community having not done enough to ensure that its responsibility is carried out to protect them. Therefore, to accomplish this, it is recommended that the Protection Cluster, as a mechanism to mobilize the international community and develop specific protection actions to respond to the particular contexts that threaten people on the ground itself, be fully mandated with the responsibility to protect according to ICISSs R2P framework – that is to prevent, react, and rebuild – so that the best prospect possible is provided for a unique response by the international community. The following are recommendations for policy actions that the highest levels of the international community (Inter Agency Standing Committee + the larger UN family) should take to ensure that the appropriate structures, arrangements, and guidelines are put in place to make this a reality:

Leadership
A Coordinated Leadership Structure

* The most pressing need, as eluded to in the implementation and evolution of the Protection Cluster in South Kivu, is for coordinated leadership amongst all UN protection entities (humanitarian and military) in the field to ensure the capacity of the Protection Cluster is enhanced and that response is made accountable and comprehensive. Due to the sheer scale of response that is needed in fulfilling the responsibility to protect in the field each UN protection agency and the Department of Peacekeeping Operations (DPKO) should be assigned global protection leadership responsibilities with the “port of first call” and “provider of last resort” according to their areas of specialization and competence so that they are held accountable in their domains to provide the responsibility required of them. The following are recommended protection leadership responsibilities for a new Protection Cluster leadership structure:

UNHCR – lead actions in protecting refugees and IDPs
UNICEF – lead actions in protecting children
UNHCHR – lead in all human rights, rule of law, and justice system actions
UNICEF/UNFPA/UNIFEM – lead in actions to protect people from sexual and gender based violence and lead actions to protect women
DPKO missions (when present) – lead in deploying to areas where civilian protection is at risk taking military action only when absolutely necessary according to the ‘do no harm approach’

The decision on who to chair these Protection Cluster structure meetings will need to be established. A humanitarian agency should chair to not exclude international NGOs from participating. UNHCR could continue in this capacity as is the case in the current pilot countries or other arrangements could be made such as OCHA specially assigning a protection coordinator solely devoted to protection cluster chairing and coordination. One agency would likely be better to ensure consistency, predictability, and the development of institutional capacities to manage this role.

Appropriate human resources for the mandate to be realized

* It is essential that sufficient and skilled staff are appointed to all lead Protection Cluster agencies/departments. All lead cluster personnel should be properly trained on how to effectively mobilize, coordinate, collaborate, and operationalise their responsibilities within the Protection Cluster. Staff should be selected particularly on their commitment and ability to build positive collaborative relationships with all stakeholders otherwise the Protection Cluster will not realize its potential to achieve the results on the ground it could achieve.

Guidelines/Standard Operating Procedures (SOPs) for implementing the R2P framework

Each agency and/or department should develop their own guidelines in relation to how to lead their individual Protection Cluster responsibilities to prevent, react, and rebuild. With each individual protection lead agency/department having guidelines to carry out its responsibilities in preventing, reacting, and rebuilding in their specific mandated areas guidelines for the overall Protection Cluster should then be developed. The overall Protection Cluster guidelines should consolidate all lead agency/department guidelines and be developed with the goal of clearly directing and making accountable the Protection Cluster to carry out all of the international community’s protection responsibilities in preventing, reacting, and rebuilding in the field. In all three components specific actions should be included that draw upon what ICISS stressed for the international community in carrying out its responsibility to protect (ex. prevention – early warning and analysis system; reaction – principles governing the use of military force; rebuilding – security sector and justice reform).

Conclusion – What could this mean? And today’s major obstacle

If the Protection Cluster is mandated with the responsibility to protect according to the R2P framework and these specific actions to start with are heeded and instituted the United Nations and the international community as a whole will have a fundamentally new and accountable bottom-up approach in responding to citizens in the field in need of their response. Having such a clear and unambiguous mandate with specific guidelines/SOPs for the actions of all key protection leadership agencies and departments within the new coordinated Protection Cluster leadership structure as well as for the overall Protection Cluster will revolutionize the way the international community organizes itself to implement actions on the ground. This will almost certainly mark a breaking point from the old ad hoc way of responding to situations with each actor in the field more or less working within the confines of its individual mandate without any overall global goal or direction to a new era where all actors, under the leadership of the UN, will have a common goal of the responsibility to protect and with time interpret and perhaps even institutionalize how its specific activities relate to that common goal.

In the future, as this new Protection Cluster leadership structure becomes operational in environments requiring its response (ideally emergency as well as non-emergency), the international community could for the first time begin a consolidated, comprehensive, and coordinated global effort to concretely protect civilians in every corner of the world. This development would likely enable a transition from the current culture of reaction to conflict and threats to civilian protection to a culture of prevention and rebuilding, which will ultimately significantly contribute to moving towards a true global culture of civilian protection.32 In this eventuality, the United Nations could have its most realistic and best chance to making the long-standing rhetoric of “never again”33, which has followed virtually every gross crime against humanity since the World War Two holocaust, a reality.

However, while this would be a major paradigm shift in the way the international community conducts its business the likelihood of this policy recommendation being heeded and instituted in today’s world is unlikely. In the present day’s current political environment many states are still very much opposed to the R2P framework becoming operational even though all have pledged in principle to respecting and instituting the responsibility to protect citizens from gross human rights violations at the 2005 General Assembly World Summit. When it comes to practically instituting and operationalising any notion of the R2P framework into policy and action on the ground the majority of states have many reservations and fears that this mandate will encroach on the way they conduct their affairs thus impinging upon their state sovereignty or what they see as their sovereign right to govern more or less as they see fit. Until this gap between the United Nations operationalising the R2P framework and states refusing that from taking place is concretely bridged – or at least common understandings and guidelines are reached between how the United Nations and states can work together to implement this so as to respect the state’s as well as the UN’s authority – the day when the international community has the distinct possibility of giving ‘never again’ a chance at becoming reality is unfortunately far off.

Bibliography

An Independent Report Commissioned by the United Nations Emergency Relief Coordinator and Under Secretary-General. “Humanitarian Response Review”. Aug. 2005.

Evans, Gareth, “Banishing the Rwanda Nightmare: The Responsibility to Protect”. March 2004. http://www.pbs.org/wgbh/pages/frontline/shows/ghosts/etc/protect.html

Feller, Erika “UNHCRs Role in IDP protection: opportunities and challenges” in FMR Special Issue Dec. 2006, p.11-12.

Feller, Erika “Towards a Culture of Protection” at the 8th Annual Forum on Human Rights, Dublin, Ireland: Global Human Rights Protection – the way forward. June 2006.

General Assembly Resolution A/Res/60/1. Oct. 24, 2005.

ICVA talk back Newsletter Vol.7-3, Oct. 2005. “Humanitarian Reforms What is All This “Cluster” Talk?”

Inter-Agency Standing Committee: “Guidance Note on using the Cluster Approach to Strengthen Humanitarian Response”. Nov. 2006.

Inter-Agency Standing Committee: Ad Hoc Principals’ Meeting “Strengthening Humanitarian Response”. Sept. 2005.

International Commission on Intervention and State Sovereignty (ICISS), “The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty”. Dec. 2001.

Morris, Tim “UNHCR, IDPs, and clusters” in the Forced Migration Review 25. May 2006, p. 54-55)

Report of the Secretary-General of the United Nations for decision by Heads of State and Government “In Larger Freedom: Towards Security, Development and Human Rights for All”. Sept. 2005.

Report by the United Nations High-Level Panel on Threats, Challenges, and Change. “A More Secure World: Our Shared Responsibility”. Dec. 2004.

Security Council Resolution 1738, UN. Doc. S/Res/1738 (Dec. 23, 2006)

Security Council Resolution 1674, UN. Doc. S/Res/1674 (April 28, 2006)

Statement of Emergency Relief Coordinator and Under Secretary-General Jan Egeland to the Security Council on the Protection of Civilians in Armed Conflict. Dec. 4, 2006.

Statement of Emergency Relief Coordinator and Under Secretary-General Jan Egeland to the Security Council on the Protection of Civilians in Armed Conflict. June 28, 2006.

Websites

www.ochaonline.org

www.ochaonline.un.org/humanitarianappeal/webpage.asp?MenuID=7229&Page=1355

www.monuc.org

  1. See Int’l Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Dec. 2001). The Commission members were Gareth Evans (Australia), Mohamed Sahoun (Algeria), Gisèle Coté-Harper (Canada), Lee Hamilton (United States), Michael Ignatieff (Canada), Vladimir Lukin (Russia), Klaus Naumann (Germany), Cyril Ramaphosa (South Africa), Fidel Ramos (Phillipines), Cornelio Sommaruga (Switzerland), Eduardo Stein (Guatemala), Ramesh Thakur (India). [return]
  2. ICISS (2001, p.16) notes “there is a large and accumulating body of law and practice which supports the notion that, whatever form the exercise of that responsibility may properly take, members of the broad community of states do have a responsibility to protect both their own citizens and those of other states as well.” [return]
  3. ICISS (2001, p. 12) notes “A condition of any one state’s sovereignty is a corresponding obligation to respect every other state’s sovereignty: the norm of non-intervention is enshrined in Article 2.7 of the UN Charter. A sovereign state is empowered in international law to exercise exclusive and total jurisdiction within its territorial borders. Other states have the corresponding duty not to intervene in the internal affairs of a sovereign state.” [return]
  4. ICISS (2001, p17) notes the R2P “implies an evaluation of the issues from the point of view of those seeking or needing support, rather than those who may be considering intervention… acknowledges that the primary responsibility rests with the state concerned and that it is only if the state is unable or unwilling to fulfill this responsibility, or is itself the perpetrator, that it becomes the responsibility of the international community to act in its place… means not just the ‘responsibility to react’ but the ‘responsibility to prevent’ and the ‘responsibility to rebuild’ as well.” [return]
  5. The ICISS (2001) established a set of principles that should be used by the international community in the event that military intervention is required. These principles are: the just cause threshold; the precautionary principles of right intention, last resort, proportional means, and reasonable prospects; right authority; and operational principles. For explanation see p.31-37. [return]
  6. See Evans, Gareth, Banishing the Rwanda Nightmare: The Responsibility to Protect (March 2004) http://www.pbs.org/wgbh/pages/frontline/shows/ghosts/etc/protect.html [return]
  7. See The United Nations High-Level Panel on Threats, Challenges, and Change report “A More Secure World: Our Shared Responsibility” (2004). See http://iisdb.stanford.edu/pubs/20806/A_More_Secure_ World _ .pdf [return]
  8. See http://www.un.org/largerfreedom/ [return]
  9. See S.C. Res. 1738, UN. Doc. S/Res/1738 (Dec. 23, 2006) [return]
  10. See S.C. Res. 1674, UN. Doc. S/Res/1674 (April 28, 2006) [return]
  11. A Chapter 7 Peacekeeping mandate is authorized under Chapter 7 of the UN Charter and provides for a range of enforcement actions with respects to civilian protection and keeping the peace including actions by air, sea, or land as may be necessary to maintain or restore international peace and security and protect civilians under the imminent threat of physical violence. [return]
  12. See Statement of USG Jan Egeland to the SC on the Protection of Civilians in Armed Conflict, (Dec. 4, 2006) [return]
  13. See Statement of USG Jan Egeland to the SC on the Protection of Civilians in Armed Conflict, (June 28, 2006) [return]
  14. See G.A. Res. A/Res/60/1 (Oct. 24, 2005) [return]
  15. An independent report commissioned by former Undersecretary General for Humanitarian Affairs and Emergency Relief Coordinator Jan Egeland in 2004. See www.reliefweb.int/library/documents/2005/ocha-gen-02sep.pdf [return]
  16. The cluster approach, the mechanism developed from the Humanitarian Response Review, was initially piloted starting Jan.1 2006 in the DRC, Uganda, and Liberia. The Somalia IASC requested shortly after that it be added to these pilot countries with the purpose of improving response in Somalia and today many other countries including Cote d’Ivoire and Chad are rolling out the approach. [return]
  17. Namely: 1. Strengthening response capacity, including clearer sectoral responsibility and accountability; 2. Ensuring more predictable and timely funding of operational UN agencies and their NGO implementing partners in undertaking emergency activities; and 3. Strengthening coordination both at the field and HQ levels. [return]
  18. See http://www.ochaonline.un.org/humanitarianappeal/webpage.asp?MenuID=7229&Page=1355 [return]
  19. The IASC is an inter-agency forum for coordination, policy development, and decision-making involving the key UN and non-UN humanitarian partners. The IASC Principals are the heads of all IASC members or their representatives. [return]
  20. The nine clusters – cluster leads are: 1. Nutrition – UNICEF 2. Health – WHO 3. Water/Sanitation – UNICEF 4. Emergency Shelter – UNHCR (for IDPs from conflict) and IFRC (for IDPs from disaster situations) 5. Camp Coordination/Management – UNHCR (for IDPs from conflict) and IOM (for IDPs from disaster situations) 6. Protection – UNHCR (for IDPs from conflict) and UNHCR/OHCHR/UNICEF (for disasters/civilians affected by conflict) 7. Early Recovey – UNDP 8. Logistics – WFP 9. Emergency Telecommunications – OCHA/UNICEF/WFP [return]
  21. The lead agency is responsible for the planning and implementation of response and serving as the first point of contact for the Humanitarian Coordinator (see endnote 24) and humanitarian community regarding emergencies in that sector. [return]
  22. Where there are critical gaps in the humanitarian response it is incumbent on the lead agency to call upon all relevant actors to address these and ensure an adequate and appropriate response. The lead agency is accountable to the Humanitarian Coordinator to provide response in the last instance if no other actor is able to. [return]
  23. Due to its specialized knowledge and capacity of working with population displacement in refugee protection issues and in some instances IDP protection issues. [return]
  24. See Morris, Tim “UNHCR, IDPs and clusters” in the Forced Migration Review 25, (May 2006, p.54-55) http://www.fmreview.org/FMRpdfs/FMR25/FMR2531.pdf [return]
  25. Principles, which are based upon existing international humanitarian law and human rights instruments, that are to serve as an international standard in guiding governments and international humanitarian and development actors in providing protection and assistance to IDPs. [return]
  26. Virtually the entire eastern DRC has pockets of insecurity that could result in population displacement at any time. [return]
  27. The Humanitarian Coordinator (HC) is the most senior UN humanitarian official in any given country in an emergency. The HC is responsible for ensuring a quick, effective, and well coordinated assistance. In the DRC, the HC is MONUC DSRSG Ross Mountain. [return]
  28. MONUC has a Chapter 7 mandate under the UN Charter (see endnote 9). Its mandate authorizes it to use all means deemed necessary, within the limits of its capacities and in the areas of deployment of its armed units, to protect civilians under imminent threat of physical violence; and to contribute to the improvement of security conditions. MONUC has 16,475 military personnel and 320 police personnel in the DRC. See www.monuc.org [return]
  29. Both of these areas are insecure with the presence of foreign and local armed militias. Human rights violations have been numerous in both areas with civilians often the victims of attacks. [return]
  30. In these instances it has been observed that violations in the vicinity of MONUC have reduced relative to pre-MONUC deployment and patrols. Equally, it has appeared that tensions have reduced even though still present. [return]
  31. Kaniola/Walungu has been the location of several human rights abuses over the past several years but particularly over the last year. During this time at least 47 kidnappings for ransom, over 50 killings, and 89 cases of sexual and gender based violence have been reported in the area. [return]
  32. See Erika Feller’s Keynote Address “Towards a culture of protection” at the 8th Annual Forum on Human Rights, Dublin, Ireland. See http://www.unhcr.org/admin/ADMIN/44aba8d54.html [return]
  33. ‘Never Again’ has been said by the international community after mass human rights atrocities and crimes against humanity in the German holocaust, the “killing fields” in Cambodia, the massacre in Srebrenica, and the Rwandan genocide, among others. [return]

 

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