Environment · Law

Evolving Positions On Responsibility To Protect

Abstract

The crime of Genocide in counties like Rwanda and instances like the ethnic cleansing in the Balkans has left the international community’s political class with a dilemma. It is getting harder for the international community to stand by while mass atrocities are committed in their plain sight. The realization the cost of life is too high is dawning upon us. But, at the same time the United Nations principle of national sovereignty is seemed to be an insurmountable obstacle to international intervention in conflicts that took place within the territorial boundary of the nation. With a view to crack this problem and protect human lives everywhere, the idea that nations individually have the responsibility to protect their own citizens and collectively may take action to protect those elsewhere has recently emerged. This idea has developed into the concept of “Responsibility to Protect”. The idea was first conceived in 2001 and has obtained international recognition is very short span of time. Even the United Nation has endorsed and accepted the concept through the World Summit of political leaders in 2005 and later its acceptance by the Security Council has provided a foundation for the development of the principle.

The paper will further elaborate on the said principles under the responsibility to protect and explain its validity under international law. It will then proceed to give a detailed consideration of the contemporary standing in international law and examine the instances where action was taken by the community by evoking this principle.

Key Words: Responsibility to Protect, International Humanitarian Law, Military Intervention

Introduction

The international community in the last decade has witnessed a shift in beliefs in the face of mass atrocities all over the world which has led to the emergence of the concept of responsibility to protect. These mass atrocities have led to a deeper introspection of the meaning of sovereignty of a state.

It is now commonly acknowledged that sovereignty implies a dual responsibility: externally, to respect the sovereignty of other states, and internally, to respect the dignity and basic rights of all the people within the state[1]. International system today takes use of force as the last resort, which it should be. But certain situations demand more than just diplomatic pressure. They demand action. With so many civilian lives at stake, it is becoming more and more difficult for nations to watch from the sidelines. With this idea in mind, the principle of ‘responsibility to protect’ is being developed.

Humanitarian Intervention: The predecessor of Responsibility to protect

The emergence of the concept of responsibility to protect is a result of the shift from ‘humanitarian intervention’ by the international community. It is due to the rapid materialization of the view that individuals are also a part of international law and deserve protection in the face of violence. Humanitarian intervention is deemed as the predecessor of responsibility to protect and its position is reflected by Article 2(4) of the UN Charter which states[2]:

All Members shall refrain in their international 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 Purposes of the United Nations.

This principle of non-intervention is also embodied in Article 2(7) of the Charter which states:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

These articles declare the equality of the states and urge each nation to respect the sovereignty of every other nation thus emphasizing the principle of non-intervention. Nevertheless, there are exceptions to this principle in Chapter VII of the Charter which empowers the Security Council to authorize military action. And pursuant of Article 51 of the Charter, the member states can take action individually or collectively for self-defense in case of an armed attack. On the face of it, the UN does not accept humanitarian intervention or responsibility to protect. The UN Declaration on Friendly Relations and Co-operation of 1970[3] is in support of this view. But that does not mean that the Security Council has not authorized any military interventions in the past. In the Security Council resolution 794[4] the Security Council first authorized military intervention in Somalia. Similarly military intervention was sanctioned by the Security Council in Rwanda and Bosnia under Resolution 929[5] and 770[6] respectively. But in both the cases the authorization by the Security Council was deemed as imperative and no action was taken in absence of the same, even with delay. In these cases the action authorized by the Security Council was on purely humanitarian grounds and in each case the identification of the catastrophe and recognition of the presence of threat to international peace and security was given highest importance. The SC authorization was crucial and it was cited as an act of last resort in order to restore peace and end the mass atrocity crimes.

In the same light there are instances where action was taken without the authorization of the Security Council. The Iraqi War of 1991 is an example of the same where the US military entered Iraq without SC authorization, but took the plea of implicit authorization by the Security Council Resolution 688[7] where the Security Council condemned the situation prevailing in Iraq in 1991, but it did not authorize any action.  This unrestrained unilateral action by the US was challenged by Iraq but it was decided in favor of the US. Similarly in 1999, the NATO intervention in Kosovo against Serbia was questioned in the Security Council where legal legitimacy was sought to be established using the argument of implicit authority. Even though the SC through the three Resolutions[8] adopted for the cause of Kosovo had demanded ceasefire and end to the hostilities, the Security Council in no way authorized any action to be taken by the international community. The defense of implicit authority gives way to opportunistic actions which has resulted in the birth of responsibility to protect.

Origin and evolution of Responsibility to Protect

Until now there has been little evidence of State Practice to guide the doctrine of Responsibility to protect so as to create a permanent position for it in international law. The most recent development has been US government taking action in the effort to support Responsibility to protect in May 2013[9], but it is not enough to establish state practice. Though, political developments show a bold move by the international community wherein it has proceeded towards the displacement of humanitarian intervention by Responsibility to Protect. The Kosovo incident posed an imminent threat to the established system and it became the subject of heated debates in the international order. In the 54th session of the General Assembly, Kofi Anan also admitted the challenge facing the Security Council. He also urged the nations to find the middle ground to this conundrum and condemned the occurrence of mass atrocities such as genocide, ethnic cleansing, war crimes and crimes against humanity.

ICISS

This address was greeted with a mixed reaction from the member states and it eventually prompted the Canadian Government in 2001 to convene a panel of experts forming the International Commission on Intervention and State Sovereignty (ICISS) whose final report was called the Responsibility to Protect.[10] The report put an end to the political debate by suggesting three radical ways to address an incident. First it stated that humanitarian intervention be replaced by Responsibility to Protect. Secondly, the responsibility of the incident falls on the government of the nation where it has taken place. Thirdly it talked about the development of new rules to guarantee success. The report focused on the development of the Third World by channeling trade of wealth and expertise.[11] Para 138 and 139 of the document embodies these principles clearly. Para 138 states:

“138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.”[12]

Responsibility to Protect is an umbrella doctrine which encompasses three different responsibilities, which are responsibility to prevent, responsibility to react and the responsibility to rebuild. These three responsibilities are shared by the nation where the incident occurs and international world order as a whole. In each case the responsibility is to be fulfilled preferably by non-forceful methods and adopting legit political methods. This document was a precursor to the World Summit in 2005.

World Summit 2005

The World Summit of 2005 was the result of Secretary General’s High Level Panel on Threats, Challenges and Change[13]. The report of high level panel was actively endorsed by the Secretary General who urged the world leaders to adopt it during the World Summit. During the Summit, the weaker nations had reserved views about Responsibility to Protect and were of the opinion that sovereignty was their only leverage against an unequal world and it should not be undermined by international intervention.[14]

After the world summit the Security Council passed Resolution 1674[15] signifying acceptance and recognition of Responsibility to Protect and took the stand of not just to prevent but also take active measures to end mass atrocities. The first step taken in this direction was the Resolution 1706[16]for the war which was waged in Darfur. This resolution was accompanied by an agreement with Sudanese government providing assurance that the sovereignty of the nation will not be compromised in the cause of peace.

Since January 2009 to August 2012, the Secretary General Ban-Ki-Moon has released four significant reports which clearly indicated his commitment to the doctrine of Responsibility to Protect. In his first report of 2009 three pillars of approach were elaborated; firstly the nation should assume responsibility and should take timely measures, secondly the doctrine applies only in cases of genocide, war crimes, crimes against humanity and ethnic cleansing and lastly there will be no support for unilateral military interventions[17]. Following this report there was a General Assembly debate where nations had strong conflicting opinions and the framework of the Security Council was brought into question by the weaker nations. These nations were of the opinion that since Security Council was the ultimate authority to sanction any action, the presence of the nation involved should be of high importance and an unrepresented action can be politically manipulated by the P5 with the use of their veto vote.

The Desperate Need for Bifurcation between Humanitarian Intervention and Responsibility to Protect

Humanitarian intervention creates two choices in case of an incident; it is either the continuation of the catastrophe due to lack of action or the second being the use of coercive military force. The linking of the word humanitarian with military action is in itself a contradiction. R2P creates a duty of the nation and international community to prevent the disaster in the first place. It throws light on the need for prevention instead of intervention which is a last resort. It provides the assurance of early assistance to the nation in need of the same. It is based on certain precautionary principles which are; the right intention when assuming responsibility, intervention being the last resort, the intervention creating minimum invasiveness and due consideration of reasonable prospects. [18] The important feature of this doctrine which has to be given due thought is that the result of action should be better that result of inaction.

The 2011 NATO bombing in Libya and its legality

The latest application of the principle was seen in the NATO bombing of Libya. NATO took its sanction from the Security Council resolution 1970 and 1973, which in a way operationalized and helped implement the principle and put it into action. Acting under Chapter VII, the Council authorized the use of ‘all necessary measures’, commonly understood as a license to use military force,[19] ‘to protect civilians and civilian populated areas under threat of attack’ in Libya and to secure the no-fly zone. The Resolution 1973 of the Security Council is the first mandate for a military intervention based on the principle against the wishes of a functioning government. The use of force in this particular incident raised a lot of questions regarding the use of the principle.

Shortly after Resolution 1973 was passed, disagreement emerged on the scope and limits of the mandate and already on the day the aerial attacks on Libya started, concerns were raised about military overreach. The Chinese government expressed regret at the American and European assault on Libya and Russia condemned the attack.[20] The African Union had rejected military intervention in Libya[21] and stressed that only dialogue and consultation could bring solutions in Libya.[22] On 2 November the Prosecutor of the ICC briefed the Security Council saying that the allegations of crimes committed by NATO and the National Transitional Council-related forces would be examined impartially and independently by the ICC’s Office of Prosecution.[23] Most countries openly advocated that the use of force was to be discouraged.

Conclusion

The Responsibility to protect is a new and fragile concept. The idea behind the principle is very sound and based on humanitarian concern. But the scope of misuse of the principle is very large and is hampering the development of the principle and its application. Even in the Libyan incidence, the use of the principle was questioned broadly. Politically, the authorization to use armed force in Libya and the following military expansion of the mandate by NATO have created a suspicion towards western humanitarian intervention which might be a barrier to implementation of the responsibility to protect elsewhere.[24]

The international community needs to protect civilians from mass atrocities. The best way to do this would be by developing political consensus, which could begin from the Security Council itself. There is a developing consensus around the idea that sovereignty must be qualified by the responsibility to protect. But until there is general acceptance of the practical commitments this involves, more tragedies will be all too likely.[25]

By: Moh Batwara

References

[1]Gareth Evans and Mohamed Sahnoun, The Responsibility to Protect, Foreign Affairs, Vol. 81, No. 6, pp. 99-110

[2]Article 2(4), The Charter of the United Nations

[3]24th October 1970, A/RES/25/2625

[4]3rd December 1992, S/RES/794

[5]22ndJune 1994,S/RES/929

[6]13th August 1992, S/RES/770

[7]5th April 1991, S/RES/688

[8]Resolutions 1160, 1199,1203

[9]http://responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs-topics/4813-fact-sheet-the-obama-administrations-comprehensive-efforts-to-prevent-mass-atrocities-over-the-past-year

[10]The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, December 2001

[11]ibid

[12]ibid

[13]The High-level Panel on Threats, Challenges and Change, “A More Secure World, Our Shared Responsibility” )

[14] Abdallah Baali, Permanent Representative of Algeria in his address during the General Assembly in response Secretary General’s report ‘In Larger Freedom’, 19 April 2005.

[15]28 April 2006, S/RES/1674

[16] 25 August 200, S/RES/1706

[17]2009 Report: Implementing the Responsibility to Protect  

[18]GeirUlfstein,The legality of the NATO bombing in Libya, I.C.L.Q. 2013, 62(1), 159-171

[19] E de Wet and M Wood, ‘Collective Security’ in R.Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2008) para 15

[20] The Guardian, ‘Libya Attacks under Way- Saturday 19 March Part 2’ (19 March 2011).

[21] NEWS 24, ‘AU rejects military intervention in Libya’ (11 March 2011).

[22] African Union, press release ‘The African Union Deeply Concerned about the Situation in Libya’

[23]UNSC 6647th meeting, 2 November 2011, UN Doc S/PV.6647.

[24]GeirUlfstein,The legality of the NATO bombing in Libya, I.C.L.Q. 2013, 62(1), 159-171

[25] Gareth Evans and Mohamed Sahnoun, The Responsibility to Protect, Foreign Affairs, Vol. 81, No. 6

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