Barber 2009

JOUP
Journal of International Peacekeeping 13 (2009) 294–326 brill.nl/joup
Reflections on the Peacekeeping Failure in Darfur: Is

There Any Substance to the ‘Responsibility to Protect’?
Rebecca Barber*
Faculty of Law, University of Melbourne, Carlton, Victoria 3010, Australia
r.barber@pgrad.unimelb.edu.au
Abstract
This paper examines the failure of the African Mission in Sudan (AMIS) to provide protection
to civilians in Darfur, and considers the relevance, in this context, of the emerging doctrine of
responsibility to protect. It is argued that while the existence of the responsibility to protect has
been widely endorsed, there has been relatively scant attention paid to its content. In the context
of the AMIS intervention in Darfur, this paper considers the question of what the responsibility
to protect actually entails: for peace-support operations, for the states that send them, and most
importantly, for the civilian population that expects to be protected by the soldiers sent to pro-
tect them. Because the responsibility to protect (as described by the International Commission
on State Sovereignty (ICISS) and endorsed by the UN Secretary General, the General Assembly
and the Security Council) says little as to positive obligations, such as might require peace-
support operations to actively protect, this paper considers whether there are obligations that can
be drawn from international human rights or international humanitarian law that may assist in
locating a substantive content for the responsibility to protect. It is suggested, in conclusion, that
it is in the law of occupation that we come closest to finding a legal responsibility to protect.
Keywords
responsibility to protect; human rights law; international humanitarian law; Darfur; African
Union; peace-support operations
1. Introduction
The crisis in Darfur is one of the worst humanitarian disasters taking place
in the world today. The current conflict broke out in 2003, when rebel forces
*) Country Program Coordinator, World Vision Australia; Masters Candidate, Faculty of Law,
University of Melbourne. This paper draws on the experiences of the author with the International
© Koninklijke Brill NV, Leiden, 2009 DOI 10.1163/187541009X12463418050696
R. Barber / Journal of International Peacekeeping 13 (2009) 294–326 295
scaled up their attacks on Sudanese police and military targets, and the
government responded with a counter-insurgency operation, employing mili-
tias drawn from Arab tribes now commonly referred to as the Janjaweed.1
Since 2003, an estimated 200,000–400,000 people have been killed, and two
and a half million people have been displaced. Until late 2007 the protection
of civilians fell to the poorly staffed and under resourced African Union (AU),
which proved tragically inadequate to the task, and the expectations of civil-
ians that the international community would protect them were failed again
and again. The conflict has been aptly described by the UN High Commissioner
for Refugees as a ‘case study of how difficult it is to protect internally displaced
persons.’2 In April 2005, referring to the peacekeeping failure in Bosnia and
Herzegovina, then UN Secretary General Kofi Annan asked ‘are we now going
to stand by and watch a replay in Darfur?’3
This paper explores the failure of the African Mission in Sudan (AMIS) to
provide meaningful protection to civilians in Darfur, and considers the rele-
vance, in this context, of the emerging doctrine of responsibility to protect.
Insofar as the responsibility to protect exists as an emerging norm of interna-
tional law, this paper considers the question of what that responsibility
actually means: for peace-support operations, for the states that send them,
and for the civilian population that expects to be protected by the soldiers
sent to protect them. It will be shown that while the existence of the responsi-
bility to protect has been widely endorsed, there has been relatively
scant attention paid to its content. Because the responsibility to protect (as
described by the International Commission on State Sovereignty (ICISS) and
endorsed by the UN Secretary General, the General Assembly and the Security
Council) says little as to positive obligations, such as might require peace-
support operations to actively protect, this paper considers whether there are
obligations that can be drawn from international human rights or humanitar-
ian law that may assist in locating a substantive content for the responsibility
to protect.
Rescue Committee in Darfur in 2006–2007. With thanks to Bruce Oswald (University of

Melbourne) for helpful discussion during the course of writing this paper.
1)
Report of the High-Level Mission on the Situation of Human Rights in Darfur pursuant to Human
Rights Council Decision S-4/101, UN Human Rights Council, paras. 24-28, UN Doc.
A/HRC/4/80, 2007.
2)
United Nations High Commissioner for Refugees, The State of the World ’s Refugees, 2006,
p. 162.
3)
Kofi Annan, ‘Billions of Promises to Keep’, New York Times, 13 April 2005.
296 R. Barber / Journal of International Peacekeeping 13 (2009) 294–326
2. The African Union in Darfur and the Failure to Protect
A. The Framework for Intervention in Darfur
Despite the escalation in the conflict in 2003 and a rapidly deteriorating

human security situation, the international community initially struggled to
define an entry point for intervention in Darfur. It was thus left to the AU,
acting within the ambit of Chapter VIII of the UN Charter relating to regional
arrangements, to oversee peace negotiations and deploy an intervention force
with a view to resolving the conflict in Darfur.4
The initial authorisation for the deployment of the AU mission in Darfur
was set out in the Communiqué of the Solemn Launching of the 10th Meeting of
the Peace and Security Council, adopted by the Peace and Security Council
(PSC) in May 2004.5 The Communiqué authorised the Chairperson of the
Commission of the AU to take all steps necessary ‘to ensure effective monitor-
ing of the Humanitarian Ceasefire Agreement, in particular through the
deployment of an AU observer mission, with the required civilian component
and if necessary the protection element, to support the work of the Ceasefire
Commission.’6 The AU then entered into an Agreement with the Sudanese
Parties on the Modalities for the Establishment of the Ceasefire Commission and
the Deployment of Military Observers in the Darfur, which established the AU
Monitoring Mission and provided that in the event the parties were unable to
protect the military observers, a request could be made for the deployment of
the protection element.7
The effectiveness of the initial AU deployment (60 military observers) was
constrained by its size and by considerable logistical challenges, and it was
soon agreed that the mission should be strengthened.8 In July 2004 the
Assembly of the AU increased the number of military observers to 80,
and authorised the immediate deployment of the protection force.9 Shortly
4)
Sally Chin and Jonathan Morgenstein, ‘No Power to Protect: The African Union Mission in
Sudan’, Refugees International, 2005, p. 1.
5)
Communiqué of the Solemn Launching of the 10th Meeting of the Peace and Security Council, AU
PSC, 10th mtg, PSC/AHG/Comm (X), 2004.
6)
Ibid., para. 6.
7)
Agreement with the Sudanese Parties on the Modalities for the Establishment of the Ceasefire
Commission and the Deployment of Observers in Darfur, 28 May 2004, art. 2.
8)
AMIS Background and Chronology, http://www.amis-sudan.org/history.html, 18 April 2008.
9)
Decision on Darfur, AU Assembly, 3rd ord. sess., Assembly/AU/Dec.54 (III), 2004, para. 7.
thereafter, the AU Commission proposed the transformation of the nature,

scope and composition of the mission, calling for an increased number of
troops and enhanced mandate. The proposal was approved by the PSC in
October 2004. The PSC decided that the enhanced AMIS, comprising 3,320
personnel, would be deployed for one year with a mandate to:
monitor and observe compliance with the Humanitarian Ceasefire Agreement … [and] to
contribute to a secure environment for the delivery of humanitarian relief and, beyond
that, the return of IDPs and refugees to their homes, in order to assist in increasing the level
of compliance … with the Humanitarian Ceasefire Agreement and to contribute to the
improvement of the security situation throughout Darfur.10
The enhancement of AMIS was completed in July 2005, but the increased
number of troops and enhanced mandate did not lead to a significant increase
in its effectiveness.11 This was due to a number of factors, including a lack of
funding and equipment, but also, critically, to a lack of understanding by
AMIS personnel at all levels of what it was that AMIS was authorised to do –
particularly as regards the civilian protection component of its mandate.12
This issue will be discussed below.
While the AU was engaged in strengthening AMIS, peace talks between the
parties to the conflict were taking place. In November 2005 the parties entered
into their seventh round of peace talks, and these concluded in May 2006
with the signing of the Darfur Peace Agreement (DPA). The DPA stipulated
additional responsibilities for AMIS, and in response to this, in June 2006
AMIS’s mandate was expanded to encompass the ‘protection of civilians
within existing strength and capacity.’13
In August 2006 the Security Council passed Resolution 1706, authorising
the deployment to Darfur of the UN Mission in Sudan (UNMIS), with
a mandate to ‘use all necessary means … to protect civilians under threat of
physical violence.’14 Resolution 1706 was rejected by the Government
10)
Communiqué of the 17th Meeting of the Peace and Security Council, AU PSC, 17th mtg, PSC/
PR/Comm. (XVII), 2004, para. 4.
11)
See Seth Appiah-Mensah, ‘The African Mission in Sudan: Darfur Dilemmas’, African Security
Review, vol. 15, no. 1, 2006, pp. 2-19, p. 4.
12)
Ibid.
13)
MIN/Comm. (LVIII), 2006, para. 11 (approving the additional tasks recommended in the
Report of the Chairperson of the Commission: Report of the Chairperson of the Commission on the
Situation in Darfur, AU PSC, 58th mtg, PSC/MIN/2 (LVIII), 2006, para. 33(b)).
14)
Resolution on Sudan, SC Res. 1706, para. 12(a), UN Doc. S/Res./1706, 2006.
of Sudan,15 and in the absence of international political will to push ahead

with a non-consensual intervention, efforts to deploy UNMIS personnel in
Darfur were stalled. The task of protecting civilians remained with AMIS for
a further eleven months until July 2007, when the government finally con-
sented to the deployment of a hybrid AU/UN peacekeeping force, with a
mandate to take the necessary action to protect civilians.16 This paper focuses
on the experience of AMIS in Darfur, and particularly the difficulties faced in
the interpretation and implementation of the civilian protection component
of its mandate, in the years leading up to the Security Council’s authorisation
of the hybrid mission.
B. The Failure to Protect
The failure of peacekeeping operations can often be linked to one of three

underlying problems: mandates that are inappropriate to the context in which
the peacekeeping forces are deployed; mandates that are ambiguously worded
and thus not fully understood by force personnel; and/or lack of capacity to
carry out peacekeeping mandates. This section discusses each of these issues
with reference to the situation in Darfur. The focus of the discussion will be
the second issue – mandate not fully understood by those with responsibility
for its implementation – and on the critical role such a misunderstanding
played in limiting the ability of AMIS to protect civilians in Darfur.
1. Mandates Inappropriate to Context

The problem of inappropriate mandates often arises in the context of a failure
to distinguish appropriately between the need for peacekeeping and the need
for peace-enforcement. As described in the Draft Manual for African Military
Practitioners,
a peacekeeping force bases its operations on the consent of the parties and is not capable of
exercising force beyond that required for self-defence. … Only a peace-enforcement force
prepared for combat and capable of effective coercion should be deployed into a potentially
hostile environment.17
15)
United Nations Office for the Coordination of Humanitarian Affairs, Integrated Regional
Information Network, ‘Sudan: Stop Bombing North Darfur Villages – Former Rebels’, Press
Release, 7 September 2006.
16)
Resolution on Sudan, SC Res. 1769, UN Doc. S/Res./1769, 2007.
17)
‘Peace-support Operations: A Working Draft Manual for African Military Practitioners’
(Produced as a result of a workshop held in Harare, 24-26 August 1999), para. 0204.
The manual notes that in circumstances where there is little inclination by

conflicting parties to agree to a peace process, or where there is a strong
possibility that parties will withdraw consent, ‘a combat capable peace-
enforcement force will be needed to ensure compliance with the operation’s
mandate.’18
While the problems experienced by AMIS in Darfur were more closely
linked to the interpretation rather than the wording of the mandate, it is argu-
able that the initial AMIS mandate (to monitor and observe compliance with
the ceasefire agreement and to contribute to a secure environment19) was ill-
suited to a situation in which there did not appear to be any immediate pros-
pect of sustainable peace. At the time of the initial mandate described by the
PSC in October 2004, there was no peace agreement in place in Darfur, but
rather, a 45-day ceasefire pursuant to which the parties had agreed to cease
hostilities, facilitate the delivery of humanitarian assistance and combine their
efforts in order to establish peace.20 The DPA was not entered into until May
2006, and even then by only some of the parties to the conflict.21 The context
in October 2004 was not one in which it could appropriately be said that
there was a peace to keep in Darfur. It is possible that a more robust protection
mandate, explicitly authorizing the use of deadly force to protect civilians,
might have eliminated some of the problems of interpretation and better
equipped AMIS personnel to offer substantive protection to civilians in
Darfur.
2. Mandates Misunderstood by Force Personnel

The issue of a mandate not properly communicated to those responsible for its
implementation – resulting in soldiers being unclear as to what they are sup-
posed to do – was one of the most significant problems affecting the perform-
ance of the AU in Darfur. In November 2004, an AMIS official told an
interviewer from the International Crisis Group (ICG):
We need Addis to tell us how we should interpret this mandate. Currently, everyone is
making their decision independently, each time they go to the field. It’s a recipe for disaster.
Addis needs to tell us if we should be proactive in engaging with armed elements attacking
18)
Ibid., para. 0231.
19)
Communiqué of the 17th Meeting of the Peace and Security Council, para. 4.
20)
Humanitarian Ceasefire Agreement on the Conflict in Darfur, 8 April 2004.
21)
International Crisis Group, ‘Getting the UN into Darfur’, Crisis Group Africa Briefing
no. 43, October 2006, p. 18.
civilians, or if we should back down. The mandate is sufficiently ambiguous that we can
justify our actions, but they need to provide us with the vision for solving the problems.22
The mandate was widely misunderstood by AMIS personnel, resulting in a

situation in which AMIS personnel frequently asserted to government author-
ities, humanitarian workers and civilians that they did not have a protection
mandate and were only authorized to fire in self-defence.23 Such assertions
sent a clear message to civilians that AMIS was unable to protect them, and
this not only failed the expectations of civilians but – inevitably – undermined
the credibility of the AU and the international community.
In peacekeeping (or peace-enforcement) operations, there are commonly
three sets of rules that must be read together to understand the scope of what
mission personnel are authorised to do: mandate, mission tasks and rules of
engagement. The mandate provides the legal basis for the mission, while the
mission tasks define the military activities required to give effect to the mandate.
Rules of engagement provide guidance to personnel regarding how they are sup-
posed to go about implementing the mandate and mission tasks. Specifically,
rules of engagement usually define the circumstances in which force may be
applied to accomplish mission tasks. Before turning to a consideration of the
way in which this mandate was interpreted by AMIS personnel, it is relevant to
consider briefly AMIS’s mission tasks and rules of engagement in Darfur.
(a) AMIS Mission Tasks and Rules of Engagement

The Communiqué of the 17th Meeting of the Peace and Security Council (October
2004) states that within the framework of the mandate, AMIS shall ‘protect
civilians whom it encounters under imminent threat and in the immediate
vicinity, within resources and capability.’24 The mandate of AMIS at this time
(to contribute to a secure environment) must be read together with this more
22)
International Crisis Group, ‘Darfur: The Failure to Protect’, Africa Report no. 89, March
2005, p. 18.
23)
This statement is based on the experiences of the author in Darfur from August 2006 – May
2007. See also Festus Aboagye, ‘The AU/UN Hybrid Operation in Darfur: Challenges, Lessons
and Implications for Regional Peacekeeping Training’ (Paper presented at the SADC Workshop
on Peace-support Operations, SADC Regional Peacekeeping Training Centre, Harare, 3-5
November 2007); Chin and Morgenstein, ‘No Power to Protect: The African Union Mission in
Sudan’; Human Rights Watch, ‘Sudan: Imperatives for Immediate Change, The African Union
Mission in Sudan’, vol. 18, no. 1(A), 19 January 2006; International Crisis Group, ‘Darfur: The
Failure to Protect.’
24)
specific task of protecting civilians under imminent threat. The so-called

expansion of the AMIS mandate in June 2006 was not in fact an expansion of
the mandate at all, but rather an expanded list of mission tasks which specifi-
cally included (again) the protection of civilians under imminent threat.25
Rules of engagement for the AMIS military component were drafted in
February 2005 for the mission tasks as set out in October 2004, including civil-
ian protection.26 Human Rights Watch (HRW) notes that the rules were ambig-
uous concerning the use of force, and did not stipulate how they were to be
applied to protect civilians ‘under imminent threat.’27 Specifically, there was
‘no rule explicitly stipulating the use of deadly force to protect civilians under
such circumstances – only non-deadly force [was] mentioned.’28 AMIS’s own
interpretation of its rules of engagement appears on the AMIS website, which
states that:
[t]he mandate via the Rules of Engagement allows AMIS troops to fire in self defence, but
it is not to aggressively intervene between the parties for the protection of civilians.
Likewise, neither the AMIS force or [AMIS civilian police] may arrest or detain Sudanese
from any party unless they are directly threatening AMIS personnel or property controlled
by AMIS …29
The draft rules of engagement placed control of the decision to use deadly
force with the Force Commander, but as noted by HRW, such decisions often
could not be delegated ‘in critical situations or where time [was] of the
essence.’30 Thus, even though the AMIS mandate allowed for the protection of
25)
The PSC, in its Communiqué of the 58th Meeting of the Peace and Security Council, stated that
‘the Council approves the additional tasks and the new mandate of AMIS, including the protec-
tion of civilians within existing strength and capacity’: Communiqué of the 58th Meeting of the
Peace and Security Council, para. 11. The ‘additional tasks and new mandate’ referred to are those
described in the Report of the Chairperson of the Commission on the Situation in Darfur, which
states that: ‘the MSC also recommended that the AMIS mandate be reviewed to include the
following tasks:…(b) protection of civilians, including women and children, under imminent
threat within capabilities and resources’: Report of the Chairperson of the Commission on the
Situation in Darfur, para. 33(b). The Chairperson of the Commission urged Council to approve
‘the proposed … adjustments to the mandate’: at para. 34.
26)
Human Rights Watch, ‘Sudan: Imperatives for Immediate Change, the African Union
Mission in Sudan’, p. 26.
27)
Ibid., p. 27.
28)
Ibid.
29)
AMIS Mandate, http://www.amis-sudan.org/amismandate.html, 18 April 2008.
30)
Human Rights Watch, ‘Sudan: Imperatives for Immediate Change, the African Union
civilians under imminent threat, this authorization was undermined by rules

of engagement which failed to explicitly authorise the use of deadly force, and
which denied sector level commanders sufficient authority. In the face of a
deteriorating security situation and continued attacks on civilians, this ambi-
guity was a critical factor in AMIS’s failure to effectively carry out the civilian
protection component of its mandate.
(b) Interpretations of the AMIS Mandate

Throughout the period of the AMIS intervention in Darfur, a criticism fre-
quently made by the international community, AMIS personnel and the civil-
ian population was that the AMIS mandate was insufficient to allow adequate
protection of civilians. The statement ‘we do not have a protection mandate’
was frequently made by AMIS personnel31 – surprising in light of the repeated
references in the Communiqués of the PSC to the protection of civilians.32
This section describes the way in which the civilian protection component of
the AMIS mandate was commonly interpreted by AMIS personnel in Darfur.
Because most actors discussed in this section do not commonly distinguish
between mandate, mission tasks and rules of engagement, the term ‘mandate’
is used here in the manner in which the term is most commonly understood
in the field – as an all-embracing concept encompassing mandate, mission
tasks and rules of engagement, that answers the question of what the soldiers
are authorised to do.
AMIS’s interpretation of its mandate is described on its website in the
following terms:
The mandate of … AMIS [under the Ceasefire Agreement] was to observe and monitor the
[Ceasefire Agreement], and to report alleged violations … AMIS personnel were not per-
mitted to intervene between the parties on the ground, whatever their actions, and were
only able to fire in self defence if directly threatened.33
While the above statement purports to describe only the mandate prior to the
October 2004 enhancement, and to this extent is largely accurate, the descrip-
tion goes on to say that in October 2004 an enhanced AMIS was deployed
31)
Conversations between the author and AMIS personnel in Darfur, August 2006 – May
2007.
32)
Communiqué of the 17th Meeting of the Peace and Security Council, para. 6; Communiqué of
the 58th Meeting of the Peace and Security Council, para. 11.
33)
AMIS Background and Chronology, 18 April 2008.
‘with an extension of the same mandate, but more extensive reach in the
field.’34 The website later sets out the additional tasks imposed upon AMIS
after June 2006, including the protection of civilians.35 What is implied is that
prior to June 2006 the mandate did not allow for the protection of civilians,
and did not permit AMIS personnel to open fire except in self-defence ‘if
directly threatened.’
The narrow interpretation on the AMIS website is reflected by statements
made by AMIS personnel in the field. HRW reports that AMIS personnel told
an independent assessment team that ‘they wanted to protect civilians but
under the current mandate this was not practically possible.’36 One com-
mander told HRW: ‘I need a stronger mandate, like a peace enforcement
mandate.’37
Internal confusion regarding the AMIS mandate, and the impact that this
had on the protection of civilians, is illustrated by a series of events that
occurred in the town of Kass, South Darfur, in 2006 – 2007.38 Discussions
regarding the AMIS mandate arose in the context of a meeting held between
the International Rescue Committee (IRC), AMIS and Internally Displaced
Persons (IDP) representatives for the purpose of discussing the resumption of
what were known throughout Darfur as ‘firewood patrols.’ Firewood patrols
were an arrangement between AMIS and the IDPs, whereby AMIS escorted
women on firewood collecting missions so as to reduce the risk of the women
being attacked while outside the relative safety of the IDP camps. Firewood
patrols took place successfully in Kass in early 2006, but by mid 2006
an accumulation of incidents had led to a breakdown in the relationship
between AMIS and the IDPs and resulted in the cessation of the patrols.
Describing the reasons for their refusal to participate in the patrols, an IDP
representative said that:
In the past AU and the sheikhs organised firewood patrols, but unfortunately there were
many incidents where women were attacked and raped. The sheikhs were very patient so
long as the AU could guarantee the protection of the women. But one day the [Humanitarian
Aid Commissioner] came and met the women while they were gathering firewood, and in
34)
Ibid.
35)
AMIS Mandate, 18 April 2008.
36)
Human Rights Watch, ‘Sudan: Imperatives for Immediate Change, The African Union
37)
Ibid.
38)
The following discussion is based on the author’s experiences in Darfur from August
2006 – May 2007.
the presence of the AU … he ordered his team to grab the firewood … The AU did nothing
to protect the IDPs … Then [the IDPs] … decided that if the AU cannot provide protec-
tion, then we cannot proceed with the firewood patrols.39
In response to questions regarding the preparedness of AMIS to protect

women during the patrols, an AMIS spokesperson stated that ‘we cannot pro-
tect the women because of our mandate. Our mandate is to report incidents.’
The Humanitarian Aid Commissioner replied that: ‘I refer back to the agree-
ment between the AU and Sudan to protect IDPs. It is not very satisfactory
that the AU says that they cannot protect the IDPs.’ The AMIS representative
replied ‘we are not allowed to open fire except in self-defence.’
The important point about this is to illustrate that while the civilian protec-
tion component of the AMIS mandate may have been sufficient, with clear
rules of engagement, to allow AMIS to protect civilians, it was significantly
eroded by the narrowness of its interpretation in the field, and specifically by
the understanding that the mandate was not robust enough for soldiers to
protect civilians in danger even within their immediate vicinity. Nowhere in
any of the Communiqués of the PSC or the decisions of the Assembly of the
AU was there a statement that AMIS was not allowed to open fire unless in
self-defence. While AMIS certainly lacked the resources and capacity to effec-
tively implement its mandate, it should not have been the mandate itself that
was so often blamed for AMIS’s failure to protect in Darfur.40
3. The Problem of Resources

The third problem frequently underlying the failure of peace-support opera-
tions to protect civilians is that more often than not, the international com-
munity fails to commit the resources necessary for effective peacekeeping.
AMIS was beset by problems with funding, under-staffing, and lack of equip-
ment from its initial deployment in 2004. In October 2004 it was decided by
the PSC that AMIS would comprise 3,320 personnel,41 and in April 2005 this
was increased to 7,730.42 In November 2005, Refugees International com-
mented: ‘Darfur is roughly the size of Texas. No one would ever suggest 5,000
39)
Minutes from a meeting between IRC staff, the Kass Humanitarian Aid Commissioner,
AMIS and IDP representatives, Kass, South Darfur, 17 April 2007 (on file with the author).
40)
See also Human Rights Watch, ‘Sudan: Imperatives for Immediate Change, the African
Union Mission in Sudan’, p. 22.
41)
42)
PR/Comm. (XXVIII), 2005, para. 9.
police officers could maintain security in Texas. Yet AMIS currently has less
than 5,000 armed troops to provide security in the middle of an ongoing
armed civil war.’43 In March 2006 the number of personnel in Darfur was still
less than 7,000.44
Security Council Resolution 1706 made some attempt to redress the weak-
nesses of AMIS, and authorised ‘the provision [by the UN] of ground mobility
package[s], training, engineering and logistics, mobile communications capac-
ity and broad public information assistance.’45 But by the end of 2006 the AU
and UN had only been able to agree on limited UN support to AMIS.46 The
reluctance on the part of the international community to commit more
resources to the AU mission led to a situation in which AMIS, even with a
clearer protection mandate, would still have lacked the capacity to effectively
protect. One Rwandan protection force officer told Refugees International,
‘we couldn’t defend ourselves with the equipment we currently have.’47
In short, AMIS was hampered by a mandate and mission tasks that were
poorly understood by its personnel, by rules of engagement that did not
explicitly authorise the use of deadly force for protection purposes, and by
a lack of capacity (funding and resources) to implement its protection man-
date. The result was a peace-support operation that manifestly failed the
expectations of the civilians – for whose benefit the operation had been
launched – that they would be provided with meaningful protection.
3. The Responsibility to Protect in International Law
The experience of failed peace-support operations, and the extent to which

such experiences fail – with devastating results – the legitimate expectations of
the local populations in whose names the peace-support operations are
launched, gives rise to the question of what international law has to say about
the responsibilities of intervening forces to protect civilians. In the case of the
AMIS intervention in Darfur, for example, is there anywhere that one can
look – outside the decisions of the PSC or the Assembly of the AU – to locate
positive obligations, applicable to AMIS personnel or to the states that send
43)
Chin and Morgenstein, ‘No Power to Protect: The African Union Mission in Sudan’, p. 8.
44)
International Crisis Group, ‘To Save Darfur,’ p. 14.
45)
Resolution on Sudan, SC Res. 1706, UN Doc. S/Res./1706, 2006, para. 3.
46)
International Crisis Group, ‘Getting the UN into Darfur,’ p. 10.
47)
Chin and Morgenstein, ‘No Power to Protect: The African Union Mission in Sudan’, p. 12.
them, to offer protection to civilians? What would be the source of such an

obligation, and what would it entail? The following section addresses these
questions, with reference to the emerging doctrine in international law of
responsibility to protect. The responsibility to protect doctrine is described,
with a focus on the question of what positive legal obligations – if any – might
be enshrined within the responsibility to protect. Finally, this section consid-
ers other possible sources for a legal obligation – applicable to peace-support
forces or to troop-contributing states – to protect civilians from serious viola-
tions of international human rights and humanitarian law.
A. Responsibility to Protect in International Law
The notion that the international community has a responsibility to protect

populations from egregious breaches of international human rights and hu-
manitarian law has its roots in the practice of humanitarian intervention,
which took shape during the period of Security Council activism following
the Cold War. Between 1990 and 1999, the Security Council authorised
interventions in Iraq,48 Somalia,49 Rwanda,50 Haiti,51 Bosnia and Herzegovina,52
Kosovo,53 and East Timor,54 all of which, while not justified as humanitarian
interventions, can arguably be seen as humanitarian in nature.
The Charter of the UN provides that ‘members shall refrain in their interna-
tional relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with
the purpose of the UN’.55 But as the 1990s drew to a close – in the
face of continuing atrocities, after each of which we seemed to say ‘never again’ –
there was increasing support for the notion that the non-intervention principle
ought not be absolute. In an address to the General Assembly in 1999, Kofi
48)
Resolution on Iraq, SC Res. 678, UN Doc. S/Res./678, 1990.
49)
Resolution on Somalia, SC Res. 751, UN Doc. S/Res./751, 1992; Resolution on Somalia, SC
Res. 794, UN Doc. S/Res./794, 1992.
50)
Resolution on Rwanda, SC Res. 872, UN Doc. S/Res./872, 1993; Resolution on Rwanda, SC
Res. 912, UN Doc. S/Res./912, 1994; Resolution on Rwanda, SC Res. 965, UN Doc. S/Res./965,
1994.
51)
Resolution on Haiti, SC Res. 940, UN Doc. S/Res./940, 1994.
52)
Resolution on Socialist Federal Republic of Yugoslavia, SC Res. 743, UN Doc. S/Res./743,
1992; Resolution on Bosnia and Herzegovina, SC Res. 836, UN Doc. S/Res./836, 1993.
53)
Resolution on Kosovo, SC Res. 1244, Annex 2, UN Doc. S/Res./1244, 1999.
54)
Resolution on East Timor, SC Res. 1272, UN Doc. S/Res./1272, 1999.
55)
Charter of the United Nations art. 2(4).
Annan called upon the international community to ‘forge unity behind the
principle that massive and systematic violations of human rights wherever they
may take place – should not be allowed to stand’,56 and in 2001, the ICISS was
established by the Canadian government to consider the question of ‘when, if
ever, it is appropriate for states to take coercive – and in particular military –
action, against another state for the purpose of protecting people at risk in that
other state.’57 The report of the ICISS, ‘The Responsibility to Protect’, proposed
that with state sovereignty comes a responsibility, for the functions of protect-
ing the safety and lives of civilians and promotion of their welfare.58 The report
states that while this responsibility lies first and foremost with the state whose
people are directly affected, a ‘residual responsibility’ lies with the broader com-
munity of states, and that this residual responsibility is ‘activated when a par-
ticular state is clearly either unwilling or unable to fulfil its responsibility to
protect or is itself the actual perpetrator of crimes or atrocities.’59
The responsibility to protect was endorsed by the Secretary General’s High
Level Panel on Threats, Challenges and Change in 2004,60 and the following
year by the General Assembly in resolution 60/1 of 2005 (World Summit
Outcome).61 The World Summit Outcome resolution articulated the responsibil-
ity of the international community to ‘use appropriate diplomatic, humanitar-
ian and other peaceful means … to help to protect populations from genocide,
war crimes, ethnic cleansing and crimes against humanity,’ and stated a pre-
paredness to ‘take collective action … through the Security Council, … should
peaceful means be inadequate and national authorities are manifestly failing to
protect their populations from genocide, war crimes, ethnic cleansing and
crimes against humanity.’62 The provisions of the World Summit Outcome
regarding the responsibility to protect were reaffirmed by the Security Council
in Resolution 1674 of April 2006.63
56)
Kofi Annan, ‘The Secretary-General Address to The United Nations General Assembly’
(Speech delivered to the General Assembly, New York, 20 September 1999, UNIS/SG/2381).
57)
International Commission on Intervention and State Sovereignty, ‘The Responsibility to
Protect’, 2001, p. vii.
58)
Ibid., p. 13.
59)
Ibid., p. 17.
60)
Kofi Annan, Report of the Secretary General ’s High-level Panel on Threats, Challenges and
Change, A More Secure World: Our Shared Responsibility, 2004, p. 66.
61)
World Summit Outcome, GA Res. 60/1, para. 139, UN Doc. A/Res./60/1, 2005.
62)
Ibid.
63)
Resolution on Protection of Civilians in Armed Conflicts, SC Res. 1674, UN Doc. S/Res./1674,
2006.
B. Responsibility to Protect and the Problem of Content
To the extent that the responsibility to protect exists as an emerging principle

of international law, a number of important questions arise that have been
touched on only briefly in the responsibility to protect literature. Most signifi-
cant is the question of what positive obligations are entailed by the responsi-
bility to protect. Although the ICISS purposely chose ‘responsibility to protect’
in favour of ‘humanitarian intervention,’ no-one has seriously argued that the
international community has a positive legal obligation to forcibly intervene in
a conflict occurring within the territory of another state to protect civilians in
that state from human rights violations. It is more feasible, however, to sup-
pose that the responsibility to protect ought to impose positive legal obliga-
tions on states and intervening forces during an intervention. The question is
highlighted by Siobhan Wills, who asks:
To what extent does the international responsibility to protect actually entail an obligation
on the part of the intervening forces to provide protection? From the point of view of the
vulnerable population on whose behalf the intervention has been undertaken, the question
is a simple one. Are the troops going to protect them from the violence that is being perpe-
trated against them? And what are the troops doing there if they are not going to protect
them?64
That the question of whether ‘the international responsibility to protect actu-

ally entail[s] an obligation on the part of the intervening forces to provide
protection’ needs to be asked at all is exactly the problem. For if the responsi-
bility to protect does not entail an obligation on the part of intervening forces
to provide protection, what else does it entail?
The ICISS report states that the responsibility to protect embraces three
specific responsibilities: the responsibility to prevent, the responsibility to
react and the responsibility to rebuild.65 The responsibility to react means
responding ‘to situations of compelling human need with appropriate meas-
ures, which may include coercive measures like sanctions and international
prosecution, and in extreme cases military intervention.’66 But while the report
64)
Siobhan Wills, ‘Military Interventions on Behalf of Vulnerable Populations: The Legal
Responsibilities of States and International Organisations Engaged in Peace-support Operations’,
Journal of Conflict and Security Law, vol. 9, no. 3, pp. 387-418, p. 405.
65)
International Commission on Intervention and State Sovereignty, ‘The Responsibility to
Protect’, p. xi.
66)
Report of the Chairperson of the Commission on the Situation in Darfur, p. xi.
provides a thorough analysis of the circumstances in which it might be

appropriate for the international community to take coercive action, it pays
relatively scant attention to the question of what positive legal obligations
the intervening forces have vis-à-vis the population they are deployed to
protect.
The problem was not substantially addressed by the Secretary General’s
High Level Panel, the General Assembly or the Security Council in their sub-
sequent endorsements of the so-called emerging norm. It is necessary, then,
to look beyond the formal endorsements of the responsibility to protect, to
ascertain whether there are obligations already existing in international human
rights or humanitarian law – relevant to the context of humanitarian
intervention – that can assist in locating a content for the responsibility to
protect as it applies to intervening forces and to the states that send them.
C. Other Possible Sources for the Responsibility to Protect
International human rights law applies in times of peace and also (it is now
agreed) in times of war,67 and imposes obligations on states to ensure the rights
of those within their jurisdiction. International humanitarian law applies in
times of conflict, and sets out the rights of civilians affected by conflict as well
as the obligations of parties to the conflict. This section considers whether the
obligations enshrined in either body of law can assist in fleshing out a content
for the responsibility to protect as it applies to peace-support forces, and spe-
cifically to AMIS personnel in Darfur and to troop-contributing states.
Because the context of this discussion is the intervention in Darfur, which
took place (prior to July 2007) without formal Security Council authoriza-
tion, the discussion does not encompass the legal regime applicable only to
UN peacekeeping forces.68
1. International Human Rights Law

Where a state has effective control over territory, it may also have an obligation
to ensure the rights of persons within that territory. This will be the case where
67)
See John Cerone, ‘Human Dignity in the Line of Fire: The Application of International
Human Rights Law During Armed Conflict, Occupation and Peace Operations’, Vanderbilt
Journal of Transnational Law, vol. 39, 2006, pp. 1447-1510, p. 1453.
68)
Such as, for e.g., Resolution on Peacekeeping, SC Res. 1327, UN Doc. S/Res./1327, 2000; Kofi
Annan, Secretary-General ’s Bulletin on the Observance by United Nations Forces of International
Humanitarian Law, UN Doc. ST/SGB/1999/13, 1999.
the state with effective control is a party to a human rights instrument that
extends jurisdiction to encompass such situations. Thus, it may be argued that
states contributing troops to AMIS had obligations under international human
rights law towards persons in Darfur, and could be held responsible where
those rights were violated.
In constructing such an argument, it would be necessary firstly to show that
a human rights instrument to which the troop-contributing state was a party
imposed obligations on that state vis-à-vis persons outside its territory, and
that the persons to whom the obligations were allegedly owed were, despite
being outside the territory of the state, nevertheless within the jurisdiction of
the state. This would require an assessment of whether the troop-contributing
state was exercising power or effective control. In the context of the AMIS
intervention, this question has two parts: firstly, did AMIS personnel exercise
power or effective control over a particular part of the territory of Darfur? And
secondly, to the extent that they did exercise power or effective control, to
what extent could their acts and omissions be attributed to their troop-
contributing state? Finally, to the extent that jurisdiction could be established,
it would be necessary to consider the nature of the positive obligations imposed
on troop-contributing states, under human rights instruments to which the
states were party. The following section addresses these questions in the con-
text of AMIS and the failure to protect, with a focus on (as an example) the
jurisdiction of and the obligations imposed by the International Covenant on
Civil and Political Rights (ICCPR).69
(a) Establishing the Jurisdiction of the State: Power or Control

In wording similar to that used in many human rights instruments, art 2 of
the ICCPR requires each state party to ‘respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the
present Covenant…’70 In its 2004 Advisory Opinion on the Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, the
International Court of Justice (ICJ) affirmed that this provision was to be
69)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966,
999 UNTS 171 (entered into force 23 March 1976).
70)
Ibid., art. 2. See also Convention for the Protection of Human Rights and Fundamental Freedoms,
opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953)
(‘European Convention’ ) (‘shall secure to everyone within their jurisdiction’); American Convention
on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force
18 July 1978) (‘to ensure to all persons subject to their jurisdiction’).
interpreted as encompassing not only ‘individuals present within a State’s ter-

ritory,’ but also ‘those outside that territory but subject to that State’s jurisdic-
tion.’71 The ICJ re-affirmed this position in the more recent Case Concerning
Armed Activities on the Territory of the Congo, in which it reiterated that ‘inter-
national human rights instruments are applicable in respect of acts done by a
state in the exercise of its jurisdiction outside its own territory, particularly in
occupied territories.’72
The extra-territorial application of the ICCPR has been endorsed by the
Committee on Civil and Political Rights (CCPR), which has said that ‘a State
party must respect and ensure the rights laid down in the Covenant to anyone
within the power or effective control of that State Party, even if not situated
within the territory of the State Party.’73 The CCPR has explicitly recognised
the application of the ICCPR to peacekeeping operations:
[t]his principle also applies to those within the power or effective control of the forces of a
State Party acting outside its territory, regardless of the circumstances in which such power
or effective control was obtained, such as forces constituting a national contingent of a
State Party assigned to an international peacekeeping or peace-enforcement operation.74
Thus, state parties to the ICCPR who contribute troops to peacekeeping oper-
ations in the territory of another state may be said to have jurisdiction over the
conduct of their troops in areas in which those troops exercise power or effec-
tive control.
The interpretation of ‘power or effective control’ has been discussed at
length by the European courts in the context of interpreting art 1 of the
European Convention, which – similarly to the ICCPR – requires state parties
to secure the rights enshrined in the Convention to ‘everyone within their
71)
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) [2004] ICJ Rep. 131 (‘Wall Case’ ), para. 108.
72)
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v Uganda) (Merits) (2006) 45 ILM 271, paras. 216-217. The ICJ in this case affirmed the
extra-territorial application not only of the ICCPR but also the Convention on the Rights of
the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 Sep-
tember 1990) and the African (Banjul) Charter of Human and Peoples’ Rights, opened for signa-
ture 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5 (entered into force 21 October 1986).
73)
Committee on Civil and Political Rights, General Comment No 31: The Nature of the General
Legal Obligation Imposed on State Parties to the Covenant (Art. 2 of the Covenant), para. 10, UN
Doc. CCPR/C/21/Rev.1/Add.13, 2004.
74)
Ibid.
jurisdiction.’75 The issue was considered most recently by the House of Lords
in R (on the application of Al-Skeini and others) v Secretary of State for Defence.76
The claimants in that case alleged that the actions of British forces in Iraq were
within the jurisdiction of the UK and thus within the scope of the European
Convention. The claimants relied on the ruling of the European Court of
Human Rights (ECHR) in Bankovic v Belgium,77 that extra-territorial jurisdic-
tion might arise in situations where a state,
through the effective control of the relevant territory and its inhabitants abroad as a conse-
quence of military occupation or through the consent, invitation or acquiescence of the
government of that territory, exercises all or some of the public powers normally to be
exercised by [the government of that territory].78
In Al-Skeini, the House of Lords strongly rejected the extension of the Bankovic
test to encompass the actions of British forces in Iraq. Lord Rodger of Earlsferry
stressed the ‘essentially regional’ nature of the European Convention, and noted
that the ECHR had ‘recognised jurisdiction based on effective control only in
the case of territory which would normally be covered by the Convention.’79
Lord Carswell added that ‘a high degree of control [would be required] by the
agents of the state of an area in another state before it could be said that the area
was within the jurisdiction of the former.’80 Because the disinclination of the
House of Lords to apply Bankovic in such as way as to bring the actions of
British soldiers in Iraq within the jurisdiction of the UK was so closely tied to
the regional nature of the European Convention – a convention ‘not designed to
be applied throughout the world’81 – the comments of the House of Lords in
Al-Skeini ought not necessarily be seen as similarly restricting the extra-territo-
rial application of international human rights instruments such as the ICCPR.
75)
Opened for signature 4 November 1950, 213 UNTS 222, art. 1 (entered into force
3 September 1953).
76)
[2007] UKHL 26 (‘Al-Skeini’ ).
77)
(2001) 11 BHCR 435 (‘Bankovic’).
78)
Ibid., para. 71.
79)
Al-Skeini [2007] UKHL 26, para. 40. The regional nature of the European Convention was
stressed also by Lord Bingham of Cornhill, who noted that ‘[the extra-territorial exception] was
largely developed in relation to the occupation by one contracting state (Turkey) of the territory
of another (Cyprus) in Europe,’ and that therefore its application ‘to the situation of British
troops operating in Iraq must, in my opinion, be regarded as problematical’: at para. 30.
80)
Ibid., para 46.
81)
Ibid., para. 39.
In the context of Darfur, it is difficult to argue that AMIS personnel had

power or effective control. The very failure of AMIS to offer any meaningful
protection to civilians illustrates the extent to which AMIS lacked power or
effective control. While it may be possible to demonstrate that at particular
times there were particular locations during which AMIS personnel exercised
control sufficient to ensure at least some of the rights enshrined in the ICCPR
(the firewood patrols discussed in the previous section provide a possible
example), in light of the comments of the ECHR in Bankovic and the House
of Lords in Al-Skeini, it appears that the extra-territorial application of human
rights conventions will likely be established only where the contracting state
has such effective control of territory that it can secure all – not just some – of
the rights and freedoms enshrined therein.82
(b) The Attribution of Conduct to Troop-Contributing States

Because only states are signatories to the ICCPR, the obligations imposed by
the ICCPR do not apply to the international organisations which commonly
exercise operational command during peacekeeping operations. Pursuant to
the International Law Commission (ILC)’s Articles on the Responsibility of
States for Intentionally Wrongful Acts, states may be held responsible for acts or
omissions that can be attributed to the state and that are in breach of an inter-
national obligation of the state.83 Thus, to the extent that AMIS exercised
effective control in Darfur, the question that necessarily arises is whether – and
in what circumstances – it is possible to attribute the conduct of AMIS per-
sonnel to troop-contributing states.
Pursuant to the Articles on State Responsibility, conduct is considered an
act of a state if ‘the person or group of persons is in fact acting on the instruc-
tions of, or under the direction or control of, that State in carrying out the
82)
Al-Skeini [2007] UKHL 26. Discussing Bankovic, Lord Rodger of Earlsferry noted that
because the respondents in that case were in no position to secure all the rights and freedoms in
the European Convention, the applicants had to argue that it was enough that they were in a posi-
tion to secure some of the rights, and that this argument was rejected by the ECHR: ‘The
[ECHR] held that the obligation in [art. 1 of the European Convention] could not be “divided
and tailored in accordance with the particular circumstances of the extra-territorial act in ques-
tion”. In other words, the whole package of rights applies and must be secured where a contract-
ing state has jurisdiction. … [T]he obligation under Article 1 can only arise where the contracting
state has such effective control of the territory of another state that it could secure to everyone in
the territory all the rights and freedoms in Section 1 of the Convention’: at para. 79.
83)
International Law Commission, Responsibility of States for Internationally Wrongful Acts, UN
GAOR, arts 1-2, UN Doc. A/Res./56/83, 2002 (‘Articles on State Responsibility’ ).
conduct’.84 The ILC’s draft articles on the Responsibility of International

Organizations establish a similar principle for the attribution of conduct to
international organizations:
The conduct of a state or an organ or agent of an international organization that is placed

at the disposal of another international organisation shall be considered under interna-
tional law an act of the latter organisation if the organization exercises effective control over
that conduct.85
In the context of peacekeeping operations, the ILC has said that ‘attribution
of conduct to the contributing state is clearly linked with the retention of
some powers by that state over its national contingent,’ and that ‘the decisive
question … appears to be who has effective control over the conduct in
question’.86 The ILC has noted further that the question of attribution is to be
determined on a case by case basis, ‘based on factual criterion’.87
The issue of attribution was recently discussed by the ECHR in the joined
cases of Behrami and Behrami v France and Saramati v France, Germany and
Norway,88 in relation to the responsibility of troop-contributing states for the
actions of NATO’s Kosovo Force (KFOR) in 1999. The ECHR noted in that
case that the international security presence was authorised by the UN Security
Council,89 that KFOR was exercising powers lawfully delegated to it by the
UN, and that the UN retained ultimate authority and control over KFOR.
The ECHR held that as such, the impugned action was attributable to the
UN.90 The decision has been the subject of extensive criticism, primarily
because of what many have regarded as the failure of the ECHR to correctly
apply the test set out by the ILC for attribution of conduct to states – that is,
that conduct may be attributed to a state where the state exercises effective
operational command or control over the conduct in question.91
84)
Ibid., art. 8.
85)
International Law Commission, Draft Articles on Responsibility of International Organisations,
UN GAOR, art. 5, UN Doc. A/58/10, 2004.
86)
Report of the International Law Commission, UN GAOR, p. 113, UN Doc. A/59/10, 2004.
87)
Ibid.
88)
(2007) 45 EHRR 10 (‘Behrami ’).
89)
Resolution on Kosovo, SC Res. 1244, UN Doc. S/Res./1244, para. 4.
90)
Behrami (2007) 45 EHRR 10 paras. 135, 140-141.
91)
See, for e.g., Marco Milanovic and Tatjana Papic, ‘As Bad As It Gets: The European Court
of Human Rights Behrami and Saramati Decision and General International Law’, Interna-
tional and Comparative Law Quarterly, vol. 57, 2008, pp. 17-18; Aurel Sari, ‘Jurisdiction and
Following Behrami, the meaning of effective control was considered by the

House of Lords in R (on the application of Al-Jedda) v Secretary of State for
Defence,92 which concerned the responsibility of British troops for the alleg-
edly wrongful detention of the appellant in Iraq. On the question of attribu-
tion of conduct, the House of Lords noted that it was ‘common ground
between the parties that the governing principle is that expressed by the ILC
in … its draft articles on the Responsibility of International Organisations’.93 The
House of Lords distinguished Behrami on the ground that unlike KFOR, the
coalition forces in Iraq had not been ‘dispatch[ed]’ by the UN, and that it
could ‘not realistically be said that US and UK forces were under the effective
command and control of the UN.’94 As such, the conduct of the British forces
in detaining the appellant could not be attributed to the UN.
In contrast to the coalition troops in Iraq – and perhaps more comparable
to KFOR – the organisation and structure of AMIS in Darfur was one of uni-
fied command: ‘headed by a Special Representative of the Chairperson of
the Commission’ with ‘overall direction and coordination of the activities of
the Mission.’95 Whether troop-contributing states could be held responsible
for the conduct of AMIS personnel would depend on the facts and circum-
stances surrounding the alleged acts and omissions, and on whether the troops
were acting pursuant to the orders of their national commanders (and on
behalf of their country of origin) or to the orders of the unified command
structure of AMIS.
Attributing conduct to a troop-contributing state would mean that, pro-
vided the state concerned was a signatory to the ICCPR and that the situation
was one in which AMIS personnel exercised effective control, the troop-
contributing state could be held responsible for acts and omissions in breach
of the ICCPR. It is relevant, then, to consider the nature of the obligations
imposed by the ICCPR on state parties, in relation to persons within their
jurisdiction.
International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’,
Human Rights Law Review, vol. 8, no. 1, 2008, pp. 151-159; Kjetil Mujezinovic Larsen,
‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control”
Test’, European Journal of International Law, vol. 19, no. 3, 2008, pp. 523-524.
92)
[2007] UKHL 58 (‘Al-Jedda’ ).
93)
Ibid., para. 5.
94)
Ibid., para. 23.
95)
(c) Obligations imposed by the ICCPR

To individuals within their jurisdiction, state parties to the ICCPR have an
obligation to ensure, inter alia, the right to life,96 the right not to be subjected
to cruel, inhumane and degrading treatment or punishment,97 the right to
liberty and security of the person,98 and the right not to be subject to unlawful
attacks on their honour or reputation.99 The question of what states have to do
to ensure respect for these rights is described to varying extents in the CCPR’s
General Comments. In its General Comment No 6 on the right to life, for
example, the CCPR notes that states ‘should take measures … to … prevent
and punish deprivation of life by criminal acts.’100 One could argue, therefore,
that states contributing troops to AMIS had a responsibility under the ICCPR
to take positive actions to prevent the arbitrary deprivation of life of persons
within their jurisdiction, such as (for example) during firewood patrols.
The problem with this argument, though, is the difficult question of
whether the established legal principles regarding extra-territorial application
of human rights instruments, and specifically the ICCPR, can be said to apply
not only to acts but also to omissions. In the Wall case, the ICJ found the
ICCPR to be applicable outside the territory of a state ‘in respect of acts done by
a State in the exercise of its jurisdiction.’101 While the court did not elaborate on
this phrase, it would appear from the wording that the reference is to acts and
not omissions.
In the Case Concerning Armed Activities on the Territory of the Congo, the
ICJ considered the question of whether acts and omissions of the Uganda
People’s Defence Force (UPDF) in the Democratic Republic of Congo
(DRC) were within the jurisdiction of Uganda, and were in violation of
international human rights and humanitarian law. The court held that the
UPDF had committed ‘massive human rights violations and grave breaches
of international humanitarian law’102 in the DRC and had ‘failed to protect
96)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966,
999 UNTS 171, art. 6 (entered into force 23 March 1976).
97)
Ibid., art. 7.
98)
Ibid., art. 9.
99)
Ibid., art. 17.
100)
Committee on Civil and Political Rights, General Comment No 6: The Right to Life (Art. 6 of
the Covenant), UN Doc. A/37/40, 1982.
101)
Wall Case [2004] ICJ Rep. 131, para. 111.
102)
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v Uganda) (Merits) (2006) 45 ILM 271, para. 207.
the civilian population,’103 and that Uganda was responsible for the viola-
tions.104 The language of the court encompasses omissions (failing to protect,
failing to take measures to ensure respect for human rights105) as well as acts.
Importantly, however, the context is one in which the UPDF forces had com-
mitted acts of ‘killing, torture and other forms of inhumane treatment of the
civilian population,’ and ‘destroyed villages and civilian buildings.’106 The
court did not comment on the distinction between acts and omissions; nor
did it elaborate on what positive measures ought to have been taken by
Uganda to ensure respect for human rights within its jurisdiction. Such dis-
cussion was presumably not seen as warranted by the facts of the case. It is
difficult to imagine that merely by including the failure to ‘take measures to
ensure respect for human rights’ as part of a litany of human rights violations,
without any elaboration as to what those measures should have been, the
court meant to imply that a state exercising effective control over territory in
another state would be held responsible where its most serious violation was
a failure to take (unspecified) positive measures to ensure respect for human
rights.
In summary, then: most human rights instruments, and specifically the
ICCPR, impose obligations on states with respect to persons not only within
their territory but within their effective power or control. It would be difficult –
but perhaps possible – to argue that there were particular circumstances in
Darfur in which AMIS exercised such power or control. If such jurisdiction
could be established, it would be necessary to consider whether the conduct of
AMIS personnel was attributable to the troop-contributing state: this would
depend on the circumstances surrounding the conduct, particularly regarding
command and control. The ICCPR imposes obligations on states to take posi-
tive steps to ensure the rights enshrined in the covenant, and this might include
(for example) an obligation to take positive steps to protect the right to life.
The difficult question remaining is whether the extra-territorial application of
the ICCPR can be read as extending to omissions as well as acts, and it has been
shown that – except in the case of gross violations – there is limited authority
to support such a proposition.
103)
Ibid., para. 208.
104)
Ibid., para. 220.
105)
Ibid., para. 345.
106)
Ibid.
2. International Humanitarian Law

Pursuant to common art 2(1) of the Geneva Conventions, the law of armed
conflict applies in situations of ‘armed conflict which may arise between two
or more of the High Contracting Parties’107 – that is, in international armed
conflicts. While there is some support for the proposition that the law of inter-
national armed conflict may apply to a conflict between a peace-support oper-
ation and a non-state organised armed group, this will generally only be the
case where there exists ‘permanent, generalized and structured combat opera-
tions’ between the peace-support operation and one or more rival armed fac-
tions.108 Assuming that the AMIS operation in Darfur cannot be described in
these terms, the operation falls outside the legal regime regulating interna-
tional armed conflict. In order to bring the AMIS operation within the ambit
of international humanitarian law, therefore, it must be established either that
AMIS is bound by common art 3 of the Geneva Conventions and potentially
also by Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts109
applicable to conflicts of a non-international character, or that the presence of
AMIS in Darfur was one of occupation, thus attracting the specialized regime
of occupation law. The characterisation of AMIS either as bound by the rules
regulating non-international armed conflicts, or as an occupying power, would
have significant implications in providing content to the responsibility to pro-
tect. The two possibilities are discussed below.
(a) Non-International Armed Conflict

Common art 3 of the Geneva Conventions sets out minimum standards that,
in cases of ‘armed conflict not of an international character,’ bind parties to the
107)
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85; Geneva Convention
relative to the Treatment of Prisoners of War, 75 UNTS 135 and Geneva Convention relative to the
Protection of Civilian Persons in Time of War, 75 UNTS 287 (‘Fourth Geneva Convention’), all
opened for signature 12 August 1949, common art. 2(1) (entered into force 21 October 1950)
(‘Geneva Conventions’).
108)
Prosecutor v CK, Belgian Military Court of Appeal, Judgment, 17 December 1997, Journal
des Tribunaux, pp. 286-289.
109)
Protocol Additional to the Geneva Conventions relating to the Protection of Victims of Non-
International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into
force 7 December 1978) (‘Protocol II ’).
conflict: persons not taking active part in hostilities must be treated humanely;
violence to life and outrages on personal dignity in respect of non-combatants
is prohibited.110 Protocol II goes further and provides that in non-international
armed conflicts, civilians shall enjoy ‘protection against the dangers arising
from military operations,’ and that to give effect to this protection, the civilian
population shall not be the object of attack and ‘acts or threats of violence the
primary purpose of which is to spread terror among the civilian population are
prohibited.’111
In determining the existence of a non-international armed conflict for the
purposes of common art 3 and Protocol II, the International Criminal Tribunal
for Yugoslavia (ICTY) in Prosecutor v Tadic has stated that there must be ‘pro-
tracted armed violence between governmental authorities and organised armed
groups or between such groups within a State.’112 The International Criminal
Tribunal for Rwanda (ICTR) has taken a slightly broader approach, stating in
Prosecutor v Akayesu that there must be ‘hostilities between armed forces
organised to a greater or lesser extent’, and that ‘both the intensity and organi-
sation of the parties to the conflict’ must be evaluated.113
While common art 3 applies broadly to non-international armed conflicts,
Protocol II has a higher threshold of application, applying only to conflicts that
take place ‘in the territory of a High Contracting Party between its armed
forces and dissident armed forces or other organised armed groups’.114 The
organised armed groups must be under responsible command, and must exer-
cise such control over territory as to enable them to carry out sustained and
concerted military operations and to implement Protocol II.115
Thus in the context of peacekeeping operations, provided the conflict meets
the required threshold of intensity, common art 3 may apply where peace-
keeping forces come into conflict either with a state or with an armed group
that is ‘organised to a greater or lesser extent’, while Protocol II will only apply
110)
Geneva Conventions, opened for signature 12 August 1949, common art. 3 (entered into
force 21 October 1950).
111)
Protocol II, opened for signature 8 June 1977, 1125 UNTS 609, art. 13 (entered into force
7 December 1978).
112)
Prosecutor v Tadic Case no. IT-94-1-AR72 (2 October 1995) (Decision on the Defence
Motion for Interlocutory Appeal on Jurisdiction) (‘Tadic’ ) para. 70.
113)
Prosecutor v Akayesu (Trial Chamber) Case no. ICTR 96-4-T (2 September 1998) (Judgment)
(‘Akayesu’ ) para. 620.
114)
Ibid., para. 602.
115)
Ibid.
if a peacekeeping force comes into conflict with the armed forces of a state on
the territory of that state. In both cases, the reference to the state or to the
armed forces of a state may be interpreted as encompassing not just the armed
forces established by the law of the state, but – following Tadic – armed groups
acting within the ‘overall control’ of the state.116 Also in both cases, because
the obligations are imposed only on parties to the conflict, the peacekeeping
forces must be engaged as combatants. The Secretary General ’s Bulletin on the
Observance by United Nations Forces of International Humanitarian Law affirms
that for the purposes of international humanitarian law, peacekeeping forces
may be regarded as combatants when the use of force is permitted in self-
defence.117
It is possible, then, that in circumstances where AMIS soldiers opened fire
in self-defence, for example against the Janjaweed, they could be regarded as
combatants to the extent and for the duration of that engagement. In these
particular circumstances, the applicability of common art 3, and potentially
also Protocol II, would depend on whether the Janjaweed could be regarded as
an organised armed group or as so closely tied to the Government of Sudan as
to be appropriately regarded as the armed forces of the state.
In light of the finding of the International Commission of Inquiry on
Darfur that the Janjaweed were ‘not organised in one single coherent struc-
ture’,118 and that in fact it was ‘probably impossible to define the Janjaweed …
as a homogenous entity,’119 it is questionable whether the Janjaweed could be
regarded as having the requisite level of organisation envisaged by the ICTR
in Akayesu – a case concerning armed groups that were ‘well organised and
considered to be armies in their own right’.120 If the Janjaweed could be
116)
Tadic (Appeals Chamber) Case no. IT-94-1-A (15 July 1999) (Judgment) para. 120. The
‘overall control’ test set out by the Appeals Chamber in this case was in the context of determin-
ing state criminal responsibility for the acts of the armed group associated with the state, and not
in the context of determining the applicability of Protocol II. As a matter of logic however, it
seems reasonable to suppose that if an armed group is to be regarded as the state for the purposes
of attribution of criminal responsibility, then the group ought also to be regarded as the state for
the purposes of the determining the applicability of Protocol II.
117)
Annan, Secretary General ’s Bulletin on the Observance by United Nations Forces of International
Humanitarian Law.
118)
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-
General, Pursuant to Security Council Resolution 1564 of 18 September 2004, 2005, p. 33.
119)
Ibid., p. 32.
120)
Akayesu (Trial Chamber) Case no. ICTR 96-4-T (2 September 1998) (Judgment), para.
621.
regarded as being under the effective control of the government, however – a

position supported by the International Commission of Inquiry on Darfur121 –
AMIS would be bound by the obligations set out in Protocol II to the extent
and for the duration of engagement with the Janjaweed militia.
Whether accountability for breach of the obligations set out in common art
3 and Protocol II would be attributed to AMIS or to one or more of the troop-
contributing states would – as discussed above – depend on questions of com-
mand and control, in the context of the specific combat-related activity
(engagement with the armed forces of the state or with an organised armed
group) that gave rise to those obligations.
If peacekeeping forces may only be bound by common art 3 and Protocol II
when engaged as combatants, and only to the extent and for the duration of
that engagement, and if they can only be regarded as combatants when using
force in self-defence, then this is of limited use to civilians requiring continu-
ous protection from violations of international human rights and humanitar-
ian law. Moreover, even in the particular circumstances where the AMIS
intervention may be regarded as falling within the scope of international
humanitarian law, this is of limited assistance in locating positive protection
obligations. Common art 3 prohibits violence to life and outrages on personal
dignity in respect of non-combatants, and Protocol II states that the civilian
population shall not be the object of attack, but in both cases it is unclear what
exactly peacekeepers are required to do. It is useful, then, to consider the pos-
sible application of the law of occupation, the obligations of an occupying
power being potentially much greater than the obligations that arise in the
context of non-international armed conflict.
(b) The Law of Occupation

Common art 2(2) of the Geneva Conventions provides that the laws of
armed conflict ‘shall also apply to all cases of partial or total occupation of
the territory of a High Contracting Party, even if the said occupation meets
with no armed resistance.’122 As set out in the 1907 Hague Regulations
121)
Report of the Commission of Inquiry on Darfur, p. 36. The Commission found that there were
‘clear links between the State and [the Janjaweed] militias’, and that the Janjaweed ‘received
weapons, and regular supplies of ammunition which have been distributed to the militias by the
army, by senior civilian authorities at the locality level or, in some instances, by the PDF [the
government’s armed forces] to the other militias’.
122)
Geneva Conventions, opened for signature 12 August 1949, common art. 2(1) (entered into
force 21 October 1950).
Respecting the Laws and Customs of War on Land, territory is considered occu-
pied ‘when it is actually placed under the authority of the hostile army,’ and
only to the extent that ‘such authority has been established and can be
exercised.’123
There is some question as to whether the second paragraph of common art
2 is intended simply to elaborate on the circumstances in which – in situa-
tions of international armed conflict – the law of occupation applies, or
whether it provides an exception to art 2(1), such that if occupation exists,
there is no need also to establish the existence of international armed con-
flict. The ICJ in the Wall case took the former view, interpreting art 2(2) to
mean that where the conditions set out in art 2(1) are satisfied, the Convention
applies ‘in any territory occupied in the course of the conflict by one of the
contracting parties.’124 The ICJ noted that ‘the object of the second para-
graph of art 2 is … simply to make it clear that, even if occupation effected
during the conflict met no armed resistance, the Convention is still
applicable.’125
Many commentators have taken a broader view of art 2, arguing that while
the first paragraph ‘covers territory which has been occupied during hostili-
ties,’ the second extends its scope ‘to cases where the occupation has taken
place … without hostilities.’126 This broad interpretation, dislodging the law
of occupation almost completely from the law of armed conflict, is supported
by Michael Kelly, who says of art 2(2):
The wording to note here is the expression ‘shall also apply,’ it also applies to the following
outlined circumstances other than a state of war or armed conflict between or among
High Contracting Parties … The additional application is to, ‘all cases of partial or total
occupation of the territory of a High Contracting Party…’127
123)
Wall Case [2004] ICJ Rep. 131, para. 78; Hague Convention (IV) respecting the Laws and
Customs of War on Land, Annex to the Convention, Regulations respecting the Laws and Customs of
War on Land, opened for signature 18 October 1907, (1910) UKTS 9 (entered into force
26 January 1910) (‘Hague Regulations’ ).
124)
Wall Case [2004] ICJ Rep. 131, para. 95 (emphasis added).
125)
Ibid.
126)
Marten Zwanenburg, Accountability of Peace Support Operations (Leiden: Martinus Nijhoff,
2005), p. 194.
127)
Michael Kelly, Restoring and Maintaining Order in Complex Peace Operations (Leiden:
Martinus Nijhoff, 1999), p. 151. See also Adam Roberts, ‘What is a Military Occupation’,
British Yearbook of International Law, vol. 55, 1985, pp. 249-305, p. 253 (emphasis
added).
As has been noted by Bruce Oswald, however, the broad approach has not
generally been supported by states, nor by all commentators.128 Oswald notes
that although the law of occupation remains a specialized regime within
the laws of war, its scope has ‘evolved to take into account wider contexts –
including non-belligerent and post-conquest occupation.’129 In other words,
the law of occupation may apply in times of peace, provided that the occupa-
tion took place in the course of conflict.
Regardless of the approach one takes to the circumstances in which the
occupation must occur, it is generally agreed that in order for the law of occu-
pation to apply, there must be some degree of control (the ICTY has said
‘actual control’130) over territory by the occupying power, as well as a lack of
consent on the part of the sovereign power.131
The establishment of a situation of occupation is of more than academic
interest. It is significant in establishing a responsibility to protect, for it brings
into play all of the obligations imposed by the Fourth Geneva Convention and
the Hague Regulations on occupying powers. Most relevantly, occupying pow-
ers are required to take all measures within their power to restore and ensure
public order and civil life,132 and ‘protected persons’ (non-combatants) ‘shall
be protected especially against all acts of violence and threats thereof.’133
128)
Bruce Oswald, ‘The Law of Military Occupation: Answering the Challenges of Detention
During Contemporary Peace Operations?’, Melbourne Journal of International Law, vol. 8, 2007,
pp. 331-326, p. 319. For commentary that does not support the expansive view of occupation,
see, for e.g., Simon Chesterman, ‘Occupation as Liberation: International Humanitarian Law
and Regime Change’, Ethics and International Affairs, vol. 18, no. 3, 2004, pp. 51-64, p. 55.
129)
Oswald, ‘The Law of Military Occupation: Answering the Challenges of Detention During
Contemporary Peace Operations?’, p. 318.
130)
Prosecutor v Naletilic (Trial Chamber) Case no. IT-98-34-T (31 March 2003) (Judgment)
para. 218. Note however that the Trial Chamber adopted a different test for determining the
applicability of the Fourth Geneva Convention, stating that for this purpose, a state of occupation
exists where an individual falls into ‘the hands of the occupying power’: at para. 221. See also
Roberts, ‘What is a Military Occupation’, p. 250 and Kelly, Restoring and Maintaining Order in
Complex Peace Operations, p. 149.
131)
See Roberts, ‘What is a Military Occupation’, pp. 300-301 (the presence of the military
force must not have been ‘sanctioned or regulated by a valid agreement’); Eyal Benvenisti, The
International Law of Occupation (Princeton: Princeton University Press, 2003), p. xvi (the estab-
lishment of ‘effective control’ must be ‘without the volition of the sovereign of that territory’).
132)
Hague Regulations, opened for signature 18 October 1907, (1910) UKTS 9, art. 43 (entered
into force 26 January 1910).
133)
Fourth Geneva Convention, opened for signature 12 August 1949, art. 27 (entered into force
21 October 1950).
In attempting to locate a substantive content for the responsibility to protect,

such as might impose positive obligations on peace-support forces to offer
protection to civilians, the laws applying to occupying powers take us signifi-
cantly further than those that arise in the context of non-international armed
conflicts.134
There is some support for the proposition that where the above requirements
are met (effective control on the part of the occupying power, and a lack of
consent on the part of the sovereign of the occupied territory), the law of occu-
pation may apply to peace-support operations.135 Whether it is possible to argue
that the law of occupation extends to peace-support operations where the occu-
pation did not occur in the course of an international armed conflict depends
on whether one accepts the broad interpretation of common art 2(2) of the
Geneva Conventions. Kelly, for example, has suggested that the specialized
regime of occupation law may have been applicable to the circumstances of the
US-led Unified Task Force in Somalia in 1992-93 – a situation in which ‘the US
effectively assumed the responsibilities of the Fourth Geneva Convention by …
pursuing a number of objectives concerned with the maintenance of order and
reconstruction,’ and in which there was a ‘country wide breakdown to the extent
that nowhere did any form of civil policing, law enforcement or justice admin-
istration exist at all.’136 In light of the ICJ's ruling in the Wall case, however,
134)
See Ray Murphy, ‘United Nations Military Operations and International Humanitarian
Law: What Rules Apply to Peacekeepers?’, Criminal Law Forum, vol. 14, no. 2, 2003, pp. 153-
194, p. 163.
135)
Kelly, for e.g., argues that the law of occupation applies if ‘the force present is not just passing
through, is not engaged in actual combat, is, in effect, the sole authority capable of exercising
control over the civilian population, or if any remaining authority requires the approval or sanc-
tion of the force to operate’: Kelly, Restoring and Maintaining Order in Complex Peace Operations,
p. 154. See also Zwanenburg, who states that ‘[a]rguably, [the law of occupation] includes a situ-
ation in which a peace-support operation exercises or is capable of exercising control over a
territory’: Zwanenburg, Accountability of Peace Support Operations, p. 195. Zwanenburg also
notes, however, that the application of the law of occupation to peace-support operations has not
generally been supported by state practice: at p. 198.
136)
Michael Kelly, ‘Legal Regimes and Law Enforcement on Peace Operations’, in Hugh Smith
(ed.), The Force of Law: International Law and the Land Commander (Canberra: Australian
Defence Studies Centre, 1994), pp. 189-204, pp. 190-191. The possibility of the specialized
regime of occupation law applying to the Canadian contingent of the UN Operation in Somalia
(UNOSOM II) was discussed by James Simpson in Law Applicable to Canadian Forces in Somalia
1992/92: A Study Prepared for the Commission of Inquiry into the Deployment of Canadian Forces
to Somalia (Ottawa: The Commission, 1997). Simpson declined to reach a definitive conclusion
as to whether the Canadian Forces were in fact in occupation in Somalia, concluding merely that
it appears that for the specialized regime of occupation law to apply, the occupa-
tion must have taken place in the context of an international armed conflict.
Even on the broad view of art 2, peace-support operations cannot attract the
application of occupation law unless – as stated above – there can be said to
have been a lack of consent. The AMIS intervention in Darfur took place with
the consent of the Government of Sudan. The initial AMIS deployment took
place pursuant to the Agreement on Modalities (agreed between the parties to the
Humanitarian Ceasefire Agreement, including the Government of Sudan),
which provided for the deployment of AU observers and stated that in the
event that the parties were unable to provide protection, a request could be
made for the deployment of the protection element.137 The June 2004 Status of
Mission Agreement between the AU and the Government of Sudan reiterated
the authorisation for the AU Observer Mission, and if necessary the protection
element.138 Unless AMIS’s activities could be said to have involved ‘an extensive
range of contacts with the host society not adequately covered by the original
agreement under which it intervened,’139 it is unlikely that AMIS’s presence in
Darfur could be regarded as falling within the scope of the law of occupation.
In attempting to bring the conduct of a peace-support operation such as
AMIS within the ambit of international humanitarian law, the hurdles are
significant. The laws applicable to non-international armed conflicts cannot
be applied unless it can be established that the peace-support operation was
engaging in combat with the government’s armed forces or with organised
armed groups (and even if this can be established, it gives limited content to
the responsibility to protect), and the laws of international armed conflict can-
not be applied unless AMIS can be regarded either as a structured combat
operation against rival armed factions or as an occupying power – neither of
which is likely. For the purpose of locating a content for the responsibility to
protect, potentially applicable to the states that contributed troops to the
AMIS intervention, it appears that the standards most likely to apply are
the limited obligations enshrined in international human rights law – and
‘uncertainty remains about the direct application and enforceability of the customary law of
armed conflict to and by a UN armed force of peacekeepers or peace makers in a Somalia
UNOSOM type operation’: at p. 25.
137)
Agreement with the Sudanese Parties on Modalities, 28 May 2004, art. II(6).
138)
Status of Mission Agreement on the Establishment and Management of the Ceasefire Commission
in the Darfur Area of Sudan, http://amis-sudan.org/Agreements/SOMA_Darfur.pdf, 12 June
2008.
139)
See Kelly, Restoring and Maintaining Order, p. 155.
even then, only to the extent that the troop-contributing states (through
AMIS personnel) exercised effective control.
4. Conclusion
There is substantial support for the proposition that the international com-
munity has a collective responsibility, exercisable through the Security Council,
to protect civilians from gross violations of international human rights and
humanitarian law. To the extent that the responsibility to protect exists as an
emerging norm of international law, however, the doctrine imposes little in
the way of positive obligations. Discussion of the emerging norm has focused
more on the legality of humanitarian intervention than on the substance of
the responsibility to protect.
What can be said, then, about other peace-support operations that fail to
meet the expectations of civilians that they will be protected? What can be said
about the states that fail to ensure that peacekeeping mandates are appropri-
ate, that fail to ensure that mandates are properly understood, or that fail to
ensure that peace-support operations are appropriately resourced? Under
international human rights law, if a troop-contributing state can be said to be
in effective control of territory in which the peace-support operation is taking
place, the state may be bound to ensure the rights of those within that terri-
tory, in accordance with human rights instruments to which the state is a
party. It is questionable, however, whether states exercising extra-territorial
jurisdiction can be held liable in this context for omissions as well as acts, and
as such, the obligations imposed under human rights law generally fall short
of implying a responsibility to actively protect. Under international humani-
tarian law, if a peace-support operation can be said to be operating in a non-
international armed conflict, and engaged as combatants with the armed
forces of a state, Protocol II to the Geneva Conventions provides that the civil-
ian population shall not be the object of attack, and that acts of violence tar-
geting civilians are prohibited. What exactly this requires peacekeeping forces
to do, however, and whether it implies positive obligations to protect, is not
entirely clear. Most usefully, if a peace-support operation can be regarded as an
occupying power, then the organisation under whose command the operation
is taking place, and/or the troop-contributing states, will be bound by occupa-
tion law and the obligations enshrined therein: to take measures to restore and
ensure public order and civil life, and to protect civilians from acts of violence.
It is, arguably, in the law of occupation that we come closest to finding a
responsibility to protect.

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JOUP

Journal of International Peacekeeping 13 (2009) 294–326 brill.nl/joup

Reﬂections on the Peacekeeping Failure in Darfur: Is

Rescue Committee in Darfur in 2006–2007. With thanks to Bruce Oswald (University of

2. The African Union in Darfur and the Failure to Protect

A. The Framework for Intervention in Darfur

Despite the escalation in the conﬂict in 2003 and a rapidly deteriorating

thereafter, the AU Commission proposed the transformation of the nature,

of Sudan,15 and in the absence of international political will to push ahead

B. The Failure to Protect

The failure of peacekeeping operations can often be linked to one of three

1. Mandates Inappropriate to Context

The manual notes that in circumstances where there is little inclination by

2. Mandates Misunderstood by Force Personnel

The mandate was widely misunderstood by AMIS personnel, resulting in a

(a) AMIS Mission Tasks and Rules of Engagement

speciﬁc task of protecting civilians under imminent threat. The so-called

civilians under imminent threat, this authorization was undermined by rules

(b) Interpretations of the AMIS Mandate

In response to questions regarding the preparedness of AMIS to protect

3. The Problem of Resources

3. The Responsibility to Protect in International Law

The experience of failed peace-support operations, and the extent to which

them, to oﬀer protection to civilians? What would be the source of such an

A. Responsibility to Protect in International Law

The notion that the international community has a responsibility to protect

B. Responsibility to Protect and the Problem of Content

To the extent that the responsibility to protect exists as an emerging principle

That the question of whether ‘the international responsibility to protect actu-

provides a thorough analysis of the circumstances in which it might be

C. Other Possible Sources for the Responsibility to Protect

1. International Human Rights Law

(a) Establishing the Jurisdiction of the State: Power or Control

interpreted as encompassing not only ‘individuals present within a State’s ter-

In the context of Darfur, it is diﬃcult to argue that AMIS personnel had

(b) The Attribution of Conduct to Troop-Contributing States

conduct’.84 The ILC’s draft articles on the Responsibility of International

The conduct of a state or an organ or agent of an international organization that is placed

Following Behrami, the meaning of eﬀective control was considered by the

(c) Obligations imposed by the ICCPR

2. International Humanitarian Law

(a) Non-International Armed Conﬂict

regarded as being under the eﬀective control of the government, however – a

(b) The Law of Occupation

In attempting to locate a substantive content for the responsibility to protect,

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