UNITED NATIONS SECURITY COUNCIL

Protection of Civilians in Armed Conflict

Statement by H.E. Gary Quinlan, Ambassador and Permanent Representative of Australia to the United Nations

Mr President

Thank you for convening this debate. Your presence here today is itself a highly-visible statement of Portugal's strong commitment to progressing the protection of civilians agenda.

The importance of that agenda cannot be overstated. Protection of civilians is intrinsic to the purpose and identity of the UN. Over the last decade or so the term "PoC" has gained currency and we have developed new strategies to provide protection. But we should not lose sight of the fact that the goal of protecting civilians is as old as the UN.

In recent years, a generation's experience has been used to craft a normative protection framework. As the Secretary-General stated in his 2010 Report on the protection of civilians, there is room to develop this framework further. Our emphasis, however, must be on making progress in enhancing protection on the ground. More can and must be done to prevent harm being done to civilians.

Australia's work towards operationalising PoC in peacekeeping operations will be well known to the members of the Council. We have worked with the UN and regional organisations, principally the African Union (AU), to assist the critical transition from policy to practice. Last Thursday, we launched a new documentary, jointly developed by the Australian Government and UNITAR, entitled "Mandated to Protect: PoC in Peacekeeping Operations", which we hope will be an important educational tool for those involved in protection mandates.

Enhancing the capacities of peacekeeping and other missions to provide protection is, though, just one of the core PoC challenges first identified by the Secretary-General in his May 2009 report. We must work simultaneously to address the other challenges: to enhance compliance with international humanitarian law by the parties to conflicts; to enhance compliance in particular by non-State armed groups; to enhance humanitarian access; and to enhance accountability for violations of the law.

I would like to focus my statement today on the challenge of enhancing accountability.

Accountability for serious international crimes is necessary, as the Council put it in Resolution 1894, 'in order to prevent violations, avoid their recurrence and seek sustainable peace, justice, truth and reconciliation.'

Mr President

Justice is best achieved at the national level. Achieving accountability for the many, rather than the few, hinges on individual Member States fulfilling their responsibility to investigate and prosecute those responsible for serious international crimes.

In this context, our role – as the international community – must be to assist States to fulfil this responsibility. We can do this by working to enhance the capacity of national rule of law institutions. Strengthening security and judicial institutions is not only key to accountability and deterrence. It is also, as highlighted in the 2011 World Development Report, critical to breaking cycles of violence and instability.

In the post-conflict setting of Solomon Islands, the Australian-led Regional Assistance Mission to Solomon Islands (RAMSI) has worked assiduously to support the Solomon Islands Government to strengthen its judicial system. The focus has been not simply on investigation and prosecution of those responsible for crimes committed during the 1998-2003 ethnic conflict, but on strengthening the entire system – as evidenced by the assistance that has been directed to the Office of the Public Solicitor to ensure that accused persons have robust legal representation. RAMSI provides an important example of south-south and triangular cooperation, with a range of Pacific islands personnel deployed in support of the Solomon Islands law and justice sector.

Mr President

UN peacekeeping and special political missions can play a key role in strengthening local capacities to hold perpetrators of serious crimes accountable in the countries in which they are deployed. In Timor-Leste, the UN Mission has been assisting the Government with ongoing efforts to strengthen accountability mechanisms within the Defence and Police forces. We welcome the increase in resources the mission has allocated to the Serious Crimes Investigation Teams, working under the supervision of Timor-Leste's Prosecutor-General to advance the goal of completing all these investigations before the end of 2012.

Of course, fostering accountability in a State is not just about institutions. It is also about communities – and building community engagement in the rule of law. This strengthens local ownership and supports a culture of long-term protection. Communities need to be aware of mechanisms available to them, and victims need to be aware of their rights. Equally important is ensuring that community views and concerns are fed into the process. Experience has shown that listening to communities strengthens the effectiveness of rule of law work. We urge States to support local groups that are empowering communities to participate in the accountability decisions of conflict-affected states.

Mr President

Unfortunately, there are cases in which States are unwilling or unable to act. In such cases, the ICC and ad hoc international courts and tribunals have a vital role to play.

The challenge for the ad-hoc international tribunals in Rwanda, the former Yugoslavia and Sierra Leone is to ensure they leave a legacy of strengthened national legal capacity behind them. The International Criminal Tribunal for the former Yugoslavia has fostered the development of national courts through its extensive capacity building outreach program and the transfer of cases of indictees to competent national jurisdictions. Similarly, we hope that the Extraordinary Chambers in the Courts of Cambodia, which are part of the national legal system but have a mix of international and national personnel, will both ensure accountability for atrocities committed during the Khmer Rouge period and contribute, over time, to the building of national judicial and administrative capacity.

Through their outreach activities, the international tribunals have created the space for public engagement on questions of accountability and demonstrated that the pursuit of justice is not a threat to peace.

Mr President

Appropriate action must be informed by the facts. The Secretary-General has recommended – and we agree – that this Council should systematically request reports on violations and consider mandating commissions of inquiry to examine alleged violations of the law, with a view to identifying those responsible and their being held accountable at the national level, or subjected to targeted measures and/or the situation being referred to the ICC.

While we tend to focus on fact-finding mechanisms deployed during or after the conclusion of a conflict, it is also important for the Council to consider requesting such mechanisms in emerging situations of concern to complement other prevention tools.

Given the preventive role such mechanisms can play, it is important to maximise the speed with which they can deploy. The three following aspects are crucial:

First, deployable expertise. This requires well-qualified experts who are ready to deploy, and streamlined administrative procedures to be in place. We hope that the follow-up to the Review of Civilian Capacities will play an important role in this regard. We also note that Justice Rapid Response provides a pool of expertise from which these mechanisms can draw.

Second, methodology. While fact-finding mechanisms need to be situation-specific and have sufficient flexibility, more work could be done to standardise fact-finding methods, particularly in relation to empirical research and field investigation.

Finally, resourcing. Proper financing is obviously key to speed of deployment, as well as to the effectiveness and independence of mechanisms.

It is important that the results of fact-finding missions are properly considered and followed up, including, if appropriate, by referral to the ICC.

Mr President

It is paramount that this Council act when there is clear evidence of violations of international law. Victims and affected communities must be confident that when their own State fails in its responsibilities, because it is either unwilling or unable, the Council will act as guardian of their interests – wherever they happen to live. The Council's unanimous referral of the situation in Libya to the ICC signalled a recognition of its important role in ensuring accountability for serious violations of the law.

In conclusion, Mr President

Australia recognises that in our lifetime there have been great strides in
relation to individual accountability for serious violations of international
law. The establishment of the ad-hoc tribunals, the establishment of the ICC,
the recognition by States of the duty to investigate and prosecute crimes occurring
in their territory: the international community is right to be proud of these
achievements. But we cannot let these achievements overshadow the fact that
we have a long journey ahead of us in order to end impunity for violations of
the laws agreed to by states to protect civilians. Only by establishing accountability
as the norm and not the exception will we fulfil the promise of the rule of
law.