Conselho de Segurança das Nações Unidas – Debate Aberto sobre Proteção de Civis em Conflito Armado – Nova York, 9 de novembro de 2011

A Representante Permanente do Brasil junto às Nações Unidas, Embaixadora Maria Luiza Viotti, apresentou o discurso do Ministro Antonio de Aguiar Patriota no Debate Aberto do Conselho de Segurança sobre Proteção de Civis em Conflito Armado, realizado em 9 de novembro, em Nova York. A Delegação brasileira também circulou o documento "Responsabilidade ao Proteger: Elementos para o Desenvolvimento e Promoção de um Conceito".

(Original version in English)

“Senhor Presidente,
Parabenizo Vossa Excelência e a delegação de Portugal pela assunção da Presidência do Conselho de Segurança durante o mês de novembro e, particularmente, pela iniciativa de promover este tempestivo debate sobre a proteção de civis.
É para mim um privilégio e uma grande satisfação pessoal participar desta reunião sob a liderança do Presidente de Portugal.

I would like to thank Secretary General Ban Ki-moon for his very informative briefing.

And I would also like to extend warm greetings to High Commissioner Navi Pillay.

On the occasion of today’s debate, I would like to propose a reflection on how the relationship between the maintenance of international peace and security and the protection of civilians has recently evolved and how to build upon the existing conceptual framework to deal with the many challenges confronting us.

My remarks are meant as a constructive, conceptual contribution to help develop our collective thinking on a very important issue that will continue to be of concern to this Council and to the international community as a whole.

No issue could be more deserving of the attention of the Security Council than the need to protect civilians in situations of armed conflict. We are all well aware of the plight of refugees, displaced persons and of all the innocent victims of war.

May I take this opportunity also to reiterate our appreciation for the work carried out by the International Committee of the Red Cross, as well as by all other relief workers on the ground who, often at great personal sacrifice, dedicate their best efforts to the protection of civilians.

At the outset let us bear in mind two different sides of the question of protection of civilians.

On the one hand, there is the imperative need to prevent violence against civilians in the conduct of hostilities – I would even venture to say to prevent violence against non-combatants in general – and the need to ensure accountability.

On the other hand, there is the need to guarantee – especially in situations of armed conflict – that persons in need can have access to humanitarian assistance and emergency relief. Blocking access to humanitarian aid can be just as lethal as pulling a trigger.

On all counts, the most important task, as stressed in the various reports prepared by the Secretary-General on this question, is that of ensuring compliance with the rules of international humanitarian law and human rights law.

That, of course, is easier said than done. But we can derive some reassurance from the fact that the issue is now high on our agenda, and this meeting is eloquent proof of that.

The Secretariat has produced a number of studies that have increased our understanding of this complex question and has presented us with a number of recommendations that are useful and that have enriched the work of the UN aimed at improving the situation of civilians in armed conflicts.

Brazil has a strong interest in the work of the Security Council on the protection of civilians. We have made significant progress since 1999, when discussions on this issue started to receive more focused attention. We support the statement to be made by the distinguished representative of Switzerland on behalf of the “Group of Friends of the Protection of Civilians”.

The plight of innocent civilians and the need to prevent impunity of perpetrators of the most serious crimes is what led the UN to create the International Criminal Court, of which Brazil is currently a full member. Supporting the work of the ICC is one of the most effective ways of enhancing accountability and deterring future crimes.

A few years back, in September 2005, an important step was taken when the Outcome Document of the High-level Plenary Meeting of the UN General Assembly was adopted. It established the responsibility of States to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Additionally, it mentions the responsibility of the international community to act collectively, through the United Nations, should national authorities manifestly fail to protect their populations. Indeed, no one can be indifferent to the fate of those who are under the threat of such heinous crimes.

The recognition that there is a responsibility to protect was a milestone. It should be stressed that the same World Summit declaration that established a consensus formulation of the concept of “responsibility to protect” also clearly stated that this responsibility must be exercised, first of all, through the use of diplomatic, humanitarian and other peaceful means, and that only in those cases in which peaceful means prove to be inadequate should coercive measures be contemplated. Along this process, it is essential to distinguish between collective responsibility – which can be fully exercised thorough non-coercive measures – and collective security – which involves a case-by-case political assessment by the Security Council.

Before embarking upon military action, the international community is expected to conduct a comprehensive and judicious analysis of all possible consequences. The use of force always brings with it the risk of causing unintended casualties and disseminating violence and instability. The fact that it is exercised with the aim of protecting civilians does not make the collateral casualties or unintended destabilization less tragic.

This is why, in our view, it is necessary to take an additional conceptual step in dealing with the protection of civilians, and I would like to take this opportunity to offer a new perspective on this question, a perspective which we believe has become essential in approaching our common objective.

The point has been made by President Dilma Rousseff, in her opening statement at this year’s General Debate of the General Assembly, when she referred to an indisputable and disturbing fact: the world today suffers the painful consequences of military interventions that have aggravated existing conflicts, allowed terrorism to penetrate into places where it previously did not exist, given rise to new cycles of violence and increased the vulnerability of civilian populations. And she added: much has been said about the responsibility to protect, but very little about the responsibility while protecting.

Because the United Nations can authorize the use of force, it is under the obligation to fully develop an awareness of the dangers involved in such use and to set up mechanisms that can provide an objective and detailed assessment of these dangers, as well as ways and means of preventing harm to civilians.

Our collective point of departure should resemble the Hippocratic principle of “primum non nocere” that doctors are so well acquainted with. In the first place, do not cause harm – this must be the motto for those who are mandated to protect civilians. It would be most unfortunate, ultimately unacceptable, if a UN mission established with the aim of protecting civilians were to cause greater harm than the one it was enacted to prevent.
But we must aim for a higher level of responsibility. One casualty is one too many, no matter how noble the intentions.

The Brazilian delegation will shortly circulate a concept paper. It elaborates on the idea that the international community, as it exercises its responsibility to protect, must demonstrate a high level of responsibility while protecting. Both concepts should evolve together, based on an agreed set of fundamental principles, parameters and procedures, of which I mention a few:

• prevention is always the best policy. It is the emphasis on preventive diplomacy that reduces the risk of armed conflict and the human costs associated with it;
• the international community must be rigorous in its efforts to exhaust all peaceful means available in the protection of civilians under threat of violence, in line with the principles and purposes of the Charter of the United Nations and as embodied in the 2005 Outcome Document;
• the use of force must produce as little violence and instability as possible. Under no circumstances can it generate more harm than it was authorized to prevent;
• in the event the use of force is contemplated, action must be judicious, proportionate and limited to the objectives established by the Security Council;
• enhanced Council procedures are needed to monitor and assess the manner in which resolutions are interpreted and implemented to ensure responsibility while protecting.

We hope all UN members contribute to elaborate the concept of responsibility while protecting. We are convinced that, if we succeed in this endeavor, we will make this Council stronger and better equipped to carry out its responsibilities under the Charter.

The Security Council can no longer postpone a serious discussion of these issues. We are aware that this is not an easy task, and that it may require the adoption of new procedures. But we can do no less.
Thank you, Mr. President.”

Documento circulado:

RESPONSIBILITY WHILE PROTECTING ELEMENTS FOR THE DEVELOPMENT AND PROMOTION OF A CONCEPT

Since the adoption of the UN Charter, in 1945, the thinking on the relationship between the maintenance of international peace and security and the protection
of civilians, as well as on corresponding action by the international community, have gone through many stages.

2. In the nineteen-eighties, voices emerged in defense of the idea of humanitarian intervention, of a "droit d’ingérence".

3. At its 60th anniversary, the United Nations incorporated the concept of "responsibility to protect" in paragraphs 138 and 139 of the Outcome Document of the 2005 World Summit (GA resolution 60/1), in terms and using parameters that were the result of long and intense negotiations.

4. The concept of "responsibility to protect" was structured in three pillars. The first one identifies the State as the primary bearer of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The second pillar stresses the role of the international community in providing cooperation and assistance for States to develop local capacities so as to be able to discharge that responsibility. The third pillar – which applies to exceptional circumstances and when measures provided for in the first and second pillars have manifestly failed - allows for the international community to resort to collective action, in accordance with the norms and procedures established in the Charter of the United Nations.

5. In addition to recognizing that each individual State has the primary responsibility to protect its own population, the 2005 Outcome Document placed limitations on the use of force by the international community in the exercise of its responsibility to protect: a) material (genocide, war crimes, ethnic cleansing and crimes against humanity); b) temporal (upon manifest failure of the individual State in exercising its responsibility to protect, and upon exhaustion of all peaceful means); and c) formal through the Security Council, in accordance with Chapters VI and VII of the Charter of the United Nations and based on evaluation on a case-by-case basis).

6. The three pillars must follow a strict line of political subordination and chronological sequencing. In this sequencing, it is essential to distinguish between collective responsibility – which can be fully exercised thorough non-coercive measures – and collective security. Going beyond the exercise of collective responsibility and resorting to mechanisms in the domain of collective security implies that a specific situation of violence or threat of violence against civilians be characterized as a threat to international peace and security. Needless to say, it is necessary to clearly differentiate between military and non-military coercion, with a view to avoiding the precipitate use of force.

7. Even when warranted on grounds of justice, legality and legitimacy, military action results in high human and material costs. That is why it is imperative to always value, pursue and exhaust all diplomatic solutions to any given conflict. As a measure of last resort by the international community in the exercise of its responsibility to protect, the use of force must then be preceded by comprehensive and judicious analysis of the possible consequences of military action on a case-by-case basis.

8. Violence against civilian populations must be repudiated wherever it takes place. The nineteen-nineties left us a bitter reminder of the tragic human and political cost of the international community’s failure to act timely to prevent violence on the scale of that observed in Rwanda. There may be situations in which the international community might contemplate military action to prevent humanitarian catastrophes.

9. Yet attention must also be paid to the fact that the world today suffers the painful consequences of interventions that have aggravated existing conflicts, allowed terrorism to penetrate into places where it previously did not exist, given rise to new cycles of violence and increased the vulnerability of civilian populations.

10. There is a growing perception that the concept of "responsibility to protect" might be misused for purposes other than protecting civilians, such as regime change. This perception may make it even more difficult to attain the protection objectives pursued
by the international community.

11. As it exercises its responsibility to protect, the international community must show a great deal of responsibility while protecting. Both concepts should evolve together, based on an agreed set of fundamental principles, parameters and procedures, such as the following:

i) Just as in the medical sciences, prevention is always the best policy. It is the emphasis on preventive diplomacy that reduces the risk of armed conflict and the human costs associated with it;

ii) The international community must be rigorous in its efforts to exhaust all peaceful means available in the protection of civilians under threat of violence, in line with the principles and purposes of the Charter of the United Nations and as embodied in the 2005 Outcome Document;

iii) The use of force, including in the exercise of the responsibility to protect, must always be authorized by the Security Council, in accordance with Chapter VII of the Charter of the United Nations, or, in exceptional circumstances, by the General Assembly under its Resolution 377 (V);

iv) The authorization for the use of force must be limited in its legal, operational and temporal elements. The scope of military action must abide by the letter and the spirit of the mandate conferred by the UNSC or the UNGA, and be carried out in strict conformity with International Law, in particular International Humanitarian Law and the International Law of Armed Conflicts;

v) The use of force must produce as little violence and instability as possible. Under no circumstances can it generate more harm than it was authorized to prevent;

vi) In the event the use of force is contemplated, action must be judicious, proportionate and limited to the objectives established by the Security Council;

vii) These guidelines must be observed throughout the entire length of the authorization, from the adoption of the resolution to the suspension of the authorization by a new resolution;

viii) Enhanced UNSC procedures are needed to monitor and assess the manner in which resolutions are interpreted and implemented to ensure responsibility while protecting;

ix) The Security Council must ensure the accountability of those to whom authority is granted to resort to force.