'Humanitarian Rights': Bridging the Doctrinal Gap between the Protection of Civilians and the Responsibility to Protect

The right to intervene under Article 4(h) of the African Union (AU) Constitutive Act and the third pillar of responsibility to protect (R2P) provides for the possibility of using military force to protect civilians from mass atrocities. However, both Article 4(h) and R2P do not specify how the military can or should use force to protect civilians. The omission to define how the military should use force to protect populations at risk was brought to the fore by the implementation of UN Security Council Resolution 1973, through which NATO has been criticized to have overstepped the Security Council mandate. The doctrinal deficit on protecting civilians is worsened by legalistic thinking on the normative separation of human rights and humanitarian law, a division driven by their historical roots. Nonetheless, human rights violations occur during warfare and humanitarian law violations may also be human rights violations. Both spheres of law are complimentary and mutually reinforcing and victims do not distinguish whether they have suffered human rights or humanitarian law violations. What they need is protection. This paper presents a 'humanitarian rights' approach as the symbiotic methodology for civilian protection that recognizes the inherent dignity and worth of every human being.