It would be unreasonable to argue that there are inherent contradictions between the idea of protecting “civilians” and protecting “populations”—and yet today there is an effort to separate these terms for political reasons. In this essay, we look at some of the subtle differences between these two subjects of mass atrocities, and address why, at the UN, protecting “civilians” is increasingly treated as incompatible with protecting “populations.”
A civilian is called into existence by war. Defined in opposition to combatants, those who take up arms, the civilian is a negative concept; someone who is, in theory, not a rightful target of armed combat. The enemy during war is thereby differentiated into those who may and may not be killed. The legal protections for civilians in international humanitarian law were crafted in 1949 and 1977, and assert that “civilians and all persons not taking part in combat may under no circumstances be the object of attack and must be spared and protected.” The guidance provided by crimes against humanity and war crimes (which address “civilian population”), however, takes this language as its starting point.
As Hugo Slim writes:
…this modern version of a timeless moral sense gives rise to what we might call the civilian ethic in war—a certain morality now enshrined in international law which spells out how this special group must be cared for and protected (Killing Civilians, 1).
As such, the starting point for a concept of “civilians” as the subject of atrocities is the fact of war and attempts to legally regulate it. This “subject” is not defined by identity, but rather by action (or the lack of certain actions that would identify a person as a combatant). As such, it offers a response to the challenges of homogenizing or reifying group identity; it flattens out the concept of who is to be protected, offering a more equal embrace of all of those who, legally, are to be deemed outside of the conflict. It is therefore a more general concept that the groupness of genocide, but in some ways more limited by the underlying presumption of armed conflict.
By the same token, “civilian” fails to address the ways that risks of violence can be differentiated by group, gender or other markers. It also fails to capture and perhaps even obscures the extent of harm that inflicted on people as part of the larger consequences of war, beyond the legal categorization of crimes: displacement, malnutrition, disease, impoverishment, and non-lethal violence, like rape. As example: there are cases where domestic violence, including rape increases during and after armed conflict; this harm may have a direct relationship to the experience of war, but defies the types the civilian/combatant distinction. Further, the contribution of equalizing protection also can overlook the ways response to the harms of war can be related to pre-existing power hierarchies—in other words, both vulnerabilities and reconstruction efforts take place within power relations that are never equal. Finally, as many others have pointed out, it can also be very difficult to apply to the complexities of many conflicts.
Recall the Libyan revolution, for instance. The term “protesters” dominates English-language reporting of the events during the first week of coverage (February 16-28, 2011). However, by February 28, “rebels“ and “protesters” were used intermingled, reflecting both new conditions on the ground and a different interpretation of the expectations for the crisis. A week later, the term “rebels” took clear hold and the National Transitional Council had established itself as the central voice of the movement. By the time that UNSC resolution 1973 was passed on March 17, 2011, it referenced the “Libyan people” and “civilians,” but most newspapers, like the New York Times, has largely converted their descriptors from “protesters” or “civilians” to “rebels.”
On February 26, 2011, not ten days after the first shots were fired in Libya and with human rights organizations estimating a death toll of between 200 and 300, the United Nations Security Council passed Resolution 1970. Harshly criticizing the Libyan government’s response to protests, the resolution imposed a suite of non-military punitive measures: a travel ban, asset freeze, economic sanctions, arms embargo, and referral to the International Criminal Court. Three weeks later, the death toll was estimated at over 1,000, and an attack on rebel-stronghold Benghazi was imminent.Acting with remarkable speed, the UNSC passed resolution 1973, that authorized coercive military action in the name of protecting civilians. France, Britain and the U.S. then joined the hostilities, becoming a belligerent in a war that would ultimately kill an estimated 30,000, before achieving its goal of regime change.
Did the protesters, or some among them, become rebels on a certain day? Did some civilian sites become military headquarters? Some of the differentiations remain quite clear throughout; but during this transformation, this is considerable grey zone for when a target loses its legal protections.
This is very cursory foray into the concept of civilians, for which there is a wealth of legal analyses, historical, sociological and anthropological treatments, and important new work on counting civilian causalities. The one note that is interesting to make in relation to the subjects of atrocities, is that it is not the subject for genocide nor is it the subject of responsibility to protect.
I have already addressed the idea of groupness from genocide, and so here will explore why R2P uses the term “population.” The choice stems from the original conceptualization of sovereignty as responsibility, articulated by Francis Deng in his capacity as the Special Rapporteur on Internally Displaced Persons for the UN Secretary General. The term “population” is foremost defined by a people’s existence in a shared geography—hence its relationship to sovereignty as the parallel concept of a political geography. It helpfully avoided the presumption of citizenship, as not all populations on one’s territory have such status. Deng concentrated on working with governments and focused on building domestic capacity for responding to the humanitarian (material and legal) consequences of internal conflicts. Framing the question as how sovereignty could be reconfigured, Deng’s work tried to link sovereignty constructively to the protection of the rights of vulnerable “populations.”
“Population” remains the crucial term as the idea of “sovereignty as responsibility” emerges from the ICISS report and into its elaboration at the UN. The work of the UN Special Advisor on Responsibility to Protect (R2P) is founded on three pillars related to “responsibility for protecting populations.” As a concept, R2P is used by its advocates and detractors in a number of different ways: as a theory of sovereignty; as a way of elaborating the interconnections between prevention, response to and rebuilding after conflicts and extreme crises; and a set of guidelines for when coercive international military action can be deemed legitimate. Within the first and second uses of the phrase, there are significant overlaps with how civilian protection is conceptualized and enacted.
However, the more that the concept of R2P is reduced to a set of guidelines for international coercive military action, the further its political value strays from civilian protection. For instance, in resolution 1894 (2009) adopted by the UNSC on 11 November 2009, the Security Council treats protecting of civilians and R2P as synonymous. It reaffirmed the 2005 World Summit Outcome document “regarding the protection of civilians in armed conflict, including paragraphs 138 and 139 thereof regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” But by May 22, 2012, UN Secretary General Ban Ki Moon released a report that asserted the two ideas were entirely separate.
He noted that the intervention in Libya went beyond civilian protection, potentially causing harm to the idea of protecting civilians. Then he offered two distinctions between protecting civilians and R2P that are curious: First, he argued that civilian protection is based on legal grounds, whereas R2P is “a political concept” (para 21). He then attempted to make legal and contextual argument for why the terms are different, asserting that R2P refers to very specific crimes which occur at a higher level (true, if one only pays attention to acts that might trigger coercive action, something most R2P advocates argue is a simplification of the principle) and then claimed that protection of civilians refers very broadly to a range of legal commitments during armed conflict:
The protection of civilians relates to violations of international humanitarian and human rights law in situations of armed conflict. The responsibility to protect is limited to violations that constitute war crimes or crimes against humanity or that would be considered acts of genocide or ethnic cleansing. Crimes against humanity, genocide and ethnic cleansing may occur in situations that do not meet the threshold of armed conflict. I urge the Security Council and Member States to be mindful of these distinctions. [para 21]
In the course of different types of military action, the idea of civilian protection varies significantly. Damian Lilly analyzes the place of civilian protection in peace enforcement (ex: ISAF in Afghanistan) and peacekeeping (even robust missions like MONUC) and argues that the core missions are, as suggested by UNSG fundamentally different:
When discharging its protection mandate, the key principle of impartiality applicable to all UN peacekeeping operations still applies in theory. The parties to a conflict may not see it that way, but even when using force, the mission is not taking sides, it is merely protecting civilians from harm.
The same cannot be said of peace enforcement operations whose primary objective is to defeat a belligerent party. Their role is not to remain impartial but rather to take sides in order to achieve a military outcome, namely to enforce peace, or win a war. The protection of civilians might be an integral part of achieving such an outcome, but it is a means to an end rather than an end in itself as in the case of peacekeeping missions (632).
Debates over the Libya intervention revealed that there are significant international differences between how the protecting civilians and responsibility to protect populations would be activated. The shift at the UN to emphasize differences between these terms represents an attempt to create a firewall separating them so that consensual peacekeeping with civilian protection mandate, the more common and increasingly proven approach to reducing the killing of unarmed people during conflicts is not fatally compromised by its regime-changing cousin, R2P.
There is no exceptional conceptual difference between the activities, but today the choice in language has taken on intensely politicized meaning.
 “Specter of Rebel Rout Helps Shift U.S. Policy on Libya” Mark Landler and Dan Bilefsky, New York Times, March 17, 2011.
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