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Protection of civilians Jus Post Bellum: In search of a normative framework jus post bellum for effective, purposive, and sustainable protection of civilians in United Nations peace operations

Lamont, Carina (2019) Protection of civilians Jus Post Bellum: In search of a normative framework jus post bellum for effective, purposive, and sustainable protection of civilians in United Nations peace operations. Doctor of Philosophy (PhD) thesis, University of Kent,. (Access to this publication is currently restricted. You may be able to access a copy if URLs are provided) (KAR id:82108)

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Language: English

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Abstract

The protection of civilians is vital to the creation and maintenance of peace and security. Peace operations have become the primary tool for the United Nations (UN) Security Council to fulfil its task of maintaining and restoring international peace and security, while the task of protection has become the raison d'être of peace operations. Yet, UN guidance on protection still lacks sufficient details to enable effective, purposive and sustainable protection. Most importantly, there is a lack of legal guidance, which likely has contributed to uncertainty on how to deliver on the protection mandate in field realities. This, in turn, has resulted in both inadequate protection, and protection approaches that risk undermining long-term aims. This thesis contributes to both the enhancement of legal clarity on the task to protect civilians and the enablement of effective, purposive, and sustainable protection of civilians. It does do by identifying a normative framework for protection that is specifically designed for post-conflict, transitional environments. The primary research question asks: Can law guide peace operations in providing effective, purposive and sustainable protection of civilians in transitional environments, and if so, how? The research finds that although the protective nature and function of the law that is applicable in armed conflicts- International Humanitarian Law (IHL)-, enables effective protection against the most serious threats, namely those stemming from armed conflicts, it does little to contribute to sustainable peace and security. International Human Rights Law (IHRL), on the contrary, is insufficient to counter the most serious threats present in transitional environments, but contributes to successful transitions to peace and security. As a result, it is argued that, to deliver on the aims pursued, a regime specifically designed for transitional settings is both warranted and required. The research shows that IHL and IHRL provide different forms of protection. While IHRL contains obligations to take positive action to protect civilians, the protection afforded civilians under IHL is merely indirect, offered primarily through restrictions on force rather than positive obligations to protect. The positive obligations entailed in IHRL resemble the protection mandate afforded peace operations, whereas the ambitions reflected in the mandate to protect is poorly mirrored in IHL. It is suggested that while IHRL should be afforded primacy, field realities in transitional environments dictate that IHL cannot be entirely disregarded as a protective regime. Key to adequate protection, thus, is a purposive dividing line between IHL and IHRL. A dividing line specifically designed for transitional environments is crucial to enable effective and sustainable protection of civilians. Towards that aim, it is submitted that a distinction between non-international armed conflicts to which Common Article 3 (CA3) of the Geneva Conventions and customary international law apply, and those to which also Additional Protocol II (APII) of the Geneva Conventions apply, contributes to enhancing protection of civilians in complex environments. The difference in severity characterised by the CA3 and APII thresholds, it is further submitted, warrants a difference in the temporal and geographical scope of application of the IHL rules on conduct of hostilities. To ensure successful transitions, it is also suggested that having different thresholds for application of IHL is warranted for situations of a resumption of the original conflict, and the rise of a new armed conflict

Item Type: Thesis (Doctor of Philosophy (PhD))
Thesis advisor: Arai, Yutaka
Uncontrolled keywords: jus post bellum, international humanitarian law, international human rights law, protection of civilians, United Nations, peace operations
Subjects: K Law
Divisions: Divisions > Division for the Study of Law, Society and Social Justice > Kent Law School
SWORD Depositor: System Moodle
Depositing User: System Moodle
Date Deposited: 20 Jul 2020 09:53 UTC
Last Modified: 16 Feb 2021 14:14 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/82108 (The current URI for this page, for reference purposes)
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