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Master Thesis Public International Law
The Implementation of the Responsibility to Protect
Ensuring an Effective Response to Mass Atrocity Crimes in Sub-Saharan Africa
Patrick NGIRIMANA
PROMOTER: Pr. Frank MAES COMMISSIONER: Piet WILLEMS
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Table of Contents List of Sources .......................................................................................................................................... 6
Treaties and conventions .................................................................................................................... 6
1. International ........................................................................................................................ 6
2. Regional ............................................................................................................................... 7
Case Law .............................................................................................................................................. 7
1. ICJ and PCIJ .......................................................................................................................... 7
2. PCA ...................................................................................................................................... 8
Resolutions, Declarations and Decisions from International and Regional Organizations ................. 8
1. UNSC .................................................................................................................................... 8
2. UNGA ................................................................................................................................... 9
Books ................................................................................................................................................... 9
Legal Articles and other Academic Publications ............................................................................... 10
Reports and Studies from Non-Governmental Organizations .......................................................... 14
Podcasts ............................................................................................................................................. 14
List of abbreviations .............................................................................................................................. 15
Introduction ........................................................................................................................................... 17
Part I: The Way Leading to the Responsibility to Protect ...................................................................... 21
Section I: The Recurring Nightmare of Mass Atrocities .................................................................... 21
A. The Pre-modern Age - 1945 .................................................................................................. 21
B. From 1945-1990 .................................................................................................................... 23
C. The Post Cold War Period ...................................................................................................... 24
3. Somalia .............................................................................................................................. 26
4. Rwanda .............................................................................................................................. 26
5. Bosnia ................................................................................................................................ 27
6. Kosovo ............................................................................................................................... 28
Section II: From the Right to Intervene to the Responsibility to Protect .......................................... 29
A. The Origin of the Responsibility to Protect ........................................................................... 29
B. The Key Aspects of the Responsibility to Protect .................................................................. 30
C. The Sovereignty-Humanitarian Intervention Debate ............................................................ 31
1. The Concept of Sovereignty .............................................................................................. 31
a) The principle of Sovereign Equality ............................................................................... 32
b) The Principle of Non-Interference ................................................................................. 32
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2. No Absolute Sovereignty in Modern International Law .................................................... 33
3. Humanitarian Intervention ................................................................................................ 34
a) The Customary Right of Unilateral Humanitarian Intervention under International
Law? ....................................................................................................................................... 34
i. Consistent state practice ........................................................................................... 35
ii. Opinio juris ................................................................................................................ 35
b) The Prohibition on the Use of Force and the Legality Problem of Humanitarian
Intervention ........................................................................................................................... 37
i. Force undertaken in self-defense under Article 51 UN Charter ................................ 38
ii. Force authorized by the UNSC pursuant to Chapter VII UN Charter ........................ 39
iii. Other eventual exceptions ........................................................................................ 40
4. Sovereignty as Responsibility ............................................................................................ 41
D. The International Community’s Acceptance of the Responsibility to Protect ...................... 42
1. The International Commission on Intervention and State Sovereignty ............................ 42
2. The UN High Level Panel on Threat, Challenge and Change ............................................. 46
3. The 2005 World Summit Outcome Document .................................................................. 47
Section III: The Evolution of a Doctrine ............................................................................................. 49
A. Key Developments on the Responsibility to Protect at the United Nations ......................... 50
1. UNSC Resolution 1674 on the Protection of Civilian ......................................................... 50
2. UNSC Resolution 1706 on Darfur ...................................................................................... 50
3. UNSC Resolution on Burma ............................................................................................... 50
4. UN Secretary General’s Report on Implementing the Responsibility to Protect .............. 51
5. UNGA First Debate on the Responsibility to Protect......................................................... 52
6. UNSC Resolution 1984 on the Protection of Civilians ....................................................... 52
7. General Assembly Dialogue on Early Warning, Assessment and the Responsibility to
Protect ....................................................................................................................................... 53
8. UNSC Resolution 1973 on Libya ........................................................................................ 53
9. UNSC Resolution 1975 on Ivory Coast ............................................................................... 54
B. The Conceptual and Normative Dimension of the Responsibility to Protect ....................... 54
1. The First Pillar of the Responsibility to Protect: The Protection Responsibilities of the
State........................................................................................................................................... 55
2. The Second Pillar of the Responsibility to Protect: International Assistance and capacity
Building ...................................................................................................................................... 55
3. The Third Pillar of the Responsibility to Protect: Timely and Decisive Response ............. 56
Interim Conclusion ............................................................................................................................ 56
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Part II: Understanding the Responsibility to Protect............................................................................. 59
Section I: The Legal and Political Status of the Responsibility to Protect ......................................... 59
A. The Scope and Limit of the Responsibility to Protect ........................................................... 59
1. The State of International Human Rights and Human Protection Law ............................. 59
2. Mass Atrocity Crimes framing the Scope of the Responsibility to Protect ....................... 61
a) Atrocity Crimes .............................................................................................................. 62
b) The Primary responsibility of Individual States Toward their Own Populations ........... 64
i. Genocide .................................................................................................................... 64
ii. War crimes ................................................................................................................ 65
iii. Crimes against Humanity ........................................................................................... 67
iv. Ethnic Cleansing......................................................................................................... 68
c) The Responsibility of the International Community ..................................................... 68
i. ILC’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts
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ii. The Legal Responsibilities of International Organizations ........................................ 71
iii. ICJ’s Judgment on the Application of the Genocide Convention (Bosnia Herzegovina
v. Serbia and Montenegro) ................................................................................................ 71
B. The Legal Nature of the Responsibility to Protect ................................................................ 73
Section II: Some Major Concerns about the R2P .............................................................................. 74
Interim Conclusion ............................................................................................................................ 76
Part III: Operationalizing the Responsibility to Protect ......................................................................... 77
Section I: The Role of the United Nations in Implementing the Responsibility to Protect .............. 77
A. The Role of the Security Council............................................................................................ 78
1. Non-Coercive Actions Encouraging States to Exercise their Responsibility to Protect ..... 78
2. Timely and Decisive Collective Action through the Security Council ................................ 78
a) Non-coercive Measures ................................................................................................. 79
b) Coercive Measures ........................................................................................................ 79
i. Decisive Collective Action against mass Atrocities .................................................... 79
ii. Timely Collective Action against Mass Atrocities ...................................................... 81
3. The Use of Force and the Protection of civilians ............................................................... 81
4. The Problem of the Political Will ....................................................................................... 83
5. The Use of the Veto Power by the Permanent Members of the Security Council ............ 84
6. Early Engagement and Preventive Diplomacy by the Security Council ............................. 86
B. The Role of the United Nations General Assembly ............................................................... 87
C. The UN Human Rights Machinery ......................................................................................... 89
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Section III: Role of the African Union in Preventing Conflicts and Human Rights Abuses ............... 90
A. Sovereignty and Non-Interference in Africa: From the OAU to the AU ................................ 90
B. African Mechanisms to Prevent Conflicts and Gross Human Rights Abuses ........................ 91
1. The Legal Framework of the AU Constitutive Act ............................................................. 91
a) The AU Assembly ........................................................................................................... 91
b) The Peace and Security Council (PSC) ........................................................................... 92
c) The AU Commission....................................................................................................... 93
d) The Panel of the Wise (the Panel) ................................................................................. 93
e) African Standby Force (ASF) .......................................................................................... 93
f) The Continental Early Warning System ......................................................................... 94
2. The Relationship of the AU with the Sub-regional Mechanisms ....................................... 94
C. The Use of Force under the AU Constitutive Act .................................................................. 95
1. The Thresholds for Intervention under Article 4 (h) of the AU Act ................................... 95
2. The Issue of the Need for Prior Authorization by the Security Council ............................ 96
Conclusion ........................................................................................................................................... 100
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List of Sources
Treaties and conventions
1. International
The Hague Convention IV respecting the Laws and Customs of War on Land and its annex:
Regulations concerning the Laws and Customs of War on Land of 18 October 1907, 187 CTS
227.
The Montevideo Convention of 26 December 1933, League of Nations Treaty Series, vol. 165,
20-43.
The United Nations Charter and the Statute of the International Court of Justice of 26 June
1945, UNTS XVI,1.
The London Charter of the International Military Tribunal, annex to the Agreement for the
prosecution and punishment of the major war criminals of the European Axis ("London
Agreement") of 8 August 1945, UNTS, vol. 82, 279. (The Nuremberg Charter).
The Convention on the Prevention and Punishment of the Crime of Genocide of 9 December
1948, UNTS, vol. 78, 277.
The Geneva Convention I for the amelioration of the condition of the wounded and sick in
armed forces in the field; the Geneva Convention II for the amelioration of the condition of
the wounded, sick and shipwrecked members of the armed forces at sea; the Geneva
Convention III relative to the treatment of prisoners of war and the Geneva Convention IV
relative to the protection of civilian persons in time of war of 12 August 1949, UNTS, vol. 75,
3.
The International Covenant on Civil and Political Rights of 16 December 1966, UNTS, vol.
999, 171.
The International Covenant on Economic, Social and Cultural Rights of 16 December 1966,
UNTS, vol. 993, 3.
The Vienna Convention on the law of treaties of on 23 May 1969, UNTS, vol. 1155, 331.
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Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
protection of victims of international armed conflicts (Protocol I) of 8 June 1977, UNTS, vol.
1125,4.
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the
protection of victims of non-international armed conflicts (Protocol II) of 8 June 1977, UNTS,
vol. 1125, 610.
Rome Statute of the International Criminal Court of 17 July 1998, UNTS, vol. 2187, 3.
2. Regional
AU, Protocol Relating to the Establishment of the Peace and Security Council of the African
Union, (July 9, 2002), http://tiny.cc/37zlh
AU Executive Council on The common African position on the proposed reform of the UN:
The Ezulwini Consensus (7th extraordinary session of the AU Executive Council, Addis Ababa,
Ethiopia, 7–8 March 2005), OAU Doc No. Ext/Ex.CL/2 (VII)
Case Law
1. ICJ and PCIJ
PCIJ, Corfu Channel Case (UK v. Albania), Merits, ICJ Reports 1949, 4.
ICJ, Reservations to Convention on Prevention and Punishment of Crime of Genocide,
Advisory Opinion, ICJ Reports 1951, 15.
ICJ, Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory
Opinion, ICJ Reports 1962, 151.
IGH, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, ICJ
Reports 1964, 6.
ICJ, North Sea Continental Shelf (Federal Republic of Germany v. The Netherlands),
Judgment, ICJ Reports 1969, 3.
ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, ICJ Reports 1971, 16.
ICJ, Aegean Sea Continental Shelf Case (Greece v. Turkey), Judgment, ICJ Reports 1978, 3.
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Judgment, ICJ Reports 1986, 14.
ICJ, Legality of the threat or use of nuclear weapons, Advisory Opinion, ICJ Reports 1996, 226.
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ICJ, Legal Consequences of the Construction of a Wall on the Palestinian Territory, Advisory
Opinion, ICJ Reports 2004, 136.
ICJ, Armed Activities on the Territory of Congo (Democratic Republic of the Congo v. Uganda),
Judgment, ICJ Reports 2005, 168.
2. PCA
PCA, Island of Palmas case (United States of America v. The Netherlands), Arbitral Award,
available at http://www.pca-
cpa.org/upload/files/Island%20of%20Palmas%20award%20only%20+%20TOC.pdf
Resolutions, Declarations and Decisions from International and Regional
Organizations
1. UNSC
Resolution 788 of the UN Security Council (19 November 1992), UN Doc. S/RES/788 (1992).
Resolution 1031 of the UN Security Council (15 December 1995), UN Doc. S/RES/1031
(1995).
Resolution 1244 of the UN Security Council (11 June 1999), UN Doc. S/RES/1244 (1999).
Resolution 1265 of the UN Security Council (17 September 1999), UN Doc. S/RES/1265
(1999).
Resolution 1270 of the UN Security Council (22 October 1999), UN Doc. S/RES/1270 (1999).
Resolution 1296 of the UN Security Council (19 April 2000), UN Doc. S/RES/1296 (2000).
Resolution 1528 of the UN Security Council (27 February 2004), UN Doc. S/RES/1528 (2004).
Resolution 1545 of the UN Security Council (21 May 2004), UN Doc. S/RES/1545 (2004).
Resolution 1612 of the UN Security Council (26 July 2005), UN Doc. S/RES/1612 (2005).
Resolution 1674 of the UN Security Council (28 April 2006), UN Doc. S/RES/1674 (2006).
Resolution 1706 of the UN Security Council (31 August 2006), UN Doc. S/RES/1706 (2006).
Resolution 1738 of the UN Security Council (23 December 2006), UN Doc. S/RES/1738
(2006).
Resolution 1820 of the UN Security Council (19 June 2008), UN Doc. S/RES/1820 (2008).
Resolution 1882 of the UN Security Council (4 August 2009), UN Doc. S/RES/1882 (2009).
Resolution 1888 of the UN Security Council (30 September 2009), UN Doc. S/RES/1888
(2009).
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Resolution 1889 of the UN Security Council (5 October 2009), UN Doc. S/RES/1889 (2009).
Resolution 1894 of the UN Security Council (11 November 2009), UN Doc. S/RES/1894
(2009).
Resolution 1970 of the UN Security Council (26 February 2011), UN Doc. S/Res/1970 (2011)
Resolution 1973 of the UN Security Council (17 March 2011), UN Doc. S/RES/1973 (2011).
Resolution 1975 of the UN Security Council (30 March 2011), UN Doc. S/RES/1975 (2011).
2. UNGA
Resolution 217 A (III) of the UN General Assembly (10 December 1948), UN Doc. A/RES/217
A (1948). (The Universal Declaration of Human Rights).
Resolution 377 (V) of the UN General Assembly (3 November 1950), UN Doc. A/Res/377
(Uniting for Peace).
Resolution 2625 (XXV) of the UN general Assembly (24 October 1970), UN Doc. A/Res/2526
(XXV) (Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States).
Resolution 56/83 of the UN General Assembly (28 January 2002), UN Doc. A/RES/56/83 (2002). (Responsibility of States for Internationally Wrongful Acts).
Books
ALSTON, P., E. MACDONALD (eds.), Human Rights, Intervention and the Use of Force, Oxford,
Oxford University Press 2008
BELLAMY, A., DAVIES, S., GLANVILLE, L. (eds), The Responsibility to Protect and International Law, Koninklijke Brill NV 2011 BELLAMY, A., A Responsibility to Protect: The Global Effort to End Mass Atrocities, Cambridge, Polity Press 2009 SEYBOLT, T. B., Humanitarian Military Intervention: The Conditions for Success and failure, Oxford, Oxford University Press 2007 EKKEHARD, S., The Emperor’s New Clothes?: The United Nations and the Implementation of the Responsibility to Protect, Broschiert, Nomos 2009 EVANS, G., The Responsibility To Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institute Press 2008 HIGGINGS, R., Themes and Theories: Selected Essays, Speeches and Writing in International Law, Oxford, Oxford University Press 2009
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PATTISON, J., Humanitarian Intervention and the Responsibility to protect: Who Should Intervene?, Oxford, Oxford University Press 2010 SCHABAS, A. W., UN International Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, New York, Cambridge University Press 2006 SHAW, M., International Law, Cambridge, Cambridge University Press, 2008, WALLESTEEN, P., STAIBANO, C., ERIKSSON M. (eds.) Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Options, Uppsala, Uppsala University Department of Peace and Conflict Research 2003 WEISS, T. G., Military –Civilian Interactions: Humanitarian Crises and the Responsibility to Protect, Oxford, Rawman & Littlefield Publishers Inc 2004 WHEELER, N. J., Saving Strangers: Humanitarian Intervention in International Society, Oxford,
Oxford University Press 2000
Legal Articles and other Academic Publications
ABBOTT, C., “Rights and Responsibilities: Resolving the Dilemma of Humanitarian Interventions”, Oxford Research Group 2005 ACHARYA, A., “Multilateralism, Sovereignty and Normative Changes in World Politics”, Institute of Defense and Strategic Studies 2005 ACHARYA, A. ”Redefining the Dilemma of Humanitarian Intervention”, Australian Journal of International Affairs 2002, 373-381 BANDA, M., “The Responsibility to Protect: Moving the Agenda Forward”, United Nations Association in Canada 2007, 1-45 BANNON, L., A., “The Responsibility to Protect: The U.N. World Summit and the Question of Unilateralism”, Yale Law Journal 2006, 1157-1165 BIALOSTOZKY, N., “Overcoming Collective Action Failure in the Security Council: Would Direct Regional Representation Better Protect Universal Human Rights?”, Buffalo Human Rights Review 2009, 1-39 BREAU, S. C. “The Impact of the responsibility to Protect on Peacekeeping”, Journal of Conflict and Security Law 2006, 429-464 BROWN, A., “Reinventing Humanitarian Intervention; Two Cheers for the Responsibility to Protect”, House of Commons Library 2008, see http://www.parliament.uk
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BRUNNEE, J., TOOPE, S. J., “The Responsibility to Protect and the Use of Force: Building Legality?”, see http://ssrn.com/abstract=1551296 BRUNNEE, J., TOOPE, S. J., “Norms, Institutions and UN Reform: the Responsibility to Protect”, Journal of International law and International Relations, 121-137 CHOMSKY, N., “Humanitarian Imperialism: The New Doctrine of Imperial Right”, Monthly Review 2008, see http://www.monthlyreview.org/080908chomsky.php CHOMSKY, N., “Making War to Bring Peace”, In These Times 2009, see http://www.inthesetimes.com/article/4696/making_war_to_bring_peace/ CRITCHLOW, G. A., “Stopping Genocide through International Agreement When the Security Council Fails to Act”, Georgetown Journal of International Law 2009, 311-343 DASTOOR, N. F., “The Responsibility to Refine: The Need for a Security Council Committee on the Responsibility to Protect”, Harvard Human Rights Journal 2009, 25-62 Du PLESSIS, M. “Chinese Arms Destined to Zimbabwe over South African Territory, the R2P Norm and the Role of the Civil Society”, African Security Review 2008, 17-29 EMAKA WOKORO, J., “Towards a Model for African Intervention”, Regent Journal of International Law 2008, 1-36 EVANS, G., “From Humanitarian Intervention to the Responsibility to Protect”, Wisconsin
International Law Journal 2006, 703-722
FOCARELLI, C., “The Responsibility to Protect Doctrine and Humanitarian Intervention: Too
Many Ambiguities for a Working Doctrine”, Journal of Conflict and Security Law 2008, 191-
213
GRAY, C., “A Crisis of Legitimacy for the UN Collective Security System?”, International &
Comparative Law Quarterly 2007
HAMILTON, R. J., “The Responsibility to Protect: From Document to Doctrine- but What of
Implementation?”, Harvard Human Rights Journal 2006, 289-297
HARALD SANDE LIE, J., De CARVALHO, B., ”Protecting Civilians and Protecting Ideas:
Institutional Challenges to the Protections of Civilians”, Norwegian Institute of International
Affairs 2009
HARBOUR, L., “The Responsibility to Protect as a Duty of care in International Law and
Practice”, Review of International Studies 2008
HELLY, D., “R2P, Africa and EU: Towards Pragmatic International Subsidiarity?”, European
Union Institute for Security Studies 2008
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HOLT, K. V., “The Responsibility to Protect: Considering the Operational Capacity for Civilian
Protection”, Henry L. Stimson Center 2005
HOLT, K. V., BERKMAN, C. T., “The Impossible Mandate? Military Preparedness, the
Responsibility to Protect and Modern Peace Operations”, Henry L. Stimson Center 2006
JOYNER, C. C., “The Responsibility to Protect: Humanitarian Concern and the Lawfulness of
Armed Intervention”, Virginia Journal of International Law 2007, 693-723
KINDIKI, K., Humanitarian Interventions in Africa: The Role of International Organizations,
Doctoral Thesis, University of Pretoria, Pretoria 2005,
KUWALI, D., “The Conundrum of Conditions for Intervention under Article 4 (h) of the African
Union Act, African Security Review 2007, 91-111
KUWALI, D., “The African Union and the Challenges of Implementing the Responsibility to
Protect”, Nordic Africa Institute 2009
KUWALI, D., “Art 4 (h) + R2P: Towards a doctrine of Persuasive Prevention to End Mass
Atrocity Crimes”, Interdisciplinary Journal of Human Rights Law 2008-09, 55-85
KUWALI, D., “The End of Humanitarian Intervention: Evaluation of the African Union’s Right
of Intervention”, African Journal on Conflict Resolution 2009, 41-62
LEVITT, J., “Pro-democratic Interventions in Africa”, Wisconsin Journal of International law
2006, 785-833
LOWE, V., TZANAKOPOULOS, A., “Humanitarian Intervention”, MPEPIL 2011
LUCK, C. E., “The United Nations and the Responsibility to Protect”, Stanley Foundation
Policy Analysis Brief 2008
MAGNUSON, W., “The Responsibility to Protect and the Decline of Sovereignty: Free speech
protection under International Law”, Vanderbilt Journal of Transnational Law 2009-10, 255-
312
MATTHEWS, M. W., “Tracking the Emergence of a New International Norm: the
Responsibility to Protect and the Crisis in Darfur”, Boston College International and
Comparative Law Review 2008, 137-152
Mc CLEAN, E., “The Responsibility to Protect: the Role of International Human Rights Law”,
Journal of Conflict and Security Law 2008, 123-152
MOLLEL, A., “Evaluating UN Peacekeeping Missions in Resolving Armed Conflicts: A Focus on
the MONUC”, Journal of African and International Law 2010
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MOLLER, B., “The African Union as a Security Actor: African Solutions to African Problems?”,
Danish Institute for International Studies 2009
MURITHI, T., “The Responsibility to Protect as Enshrined in Article 4 of the Constitutive Act of
the African Union”, African Security Review 2007, 14-24
MURPHY, S. D., “Protean Jus Bellum”, Berkeley Journal of International Law 2009, 22-51
NASAU, H., “Operationalizing the Responsibility to Protect and Conflict Prevention:
Dilemmas of Civilian Protection in Armed Conflict”, Journal of Conflict and Security Law 2009,
209-241
NINDORERA, W., POWELL, K., “Delivering on the Responsibility to Protect: Reforming the
Security Sector to Protect the Most Vulnerable in Burundi, Institute for Security Studies 2006
OMAN, N., The Responsibility to Protect: A Remit for Intervention?”, Canadian Journal of
Law and Jurisprudence 2009, 355-380
PETERS, A., “Humanity as the A and Omega of Sovereignty”, European Journal of
International Law 2009, 513-544
SCHEFFER, D., “Atrocity Crimes Framing the Responsibility to Protect”, Case Western Reserve
Journal of International Law 2007-08, 111-135
SARKIN, J., “Dealing with Africa’s Human Rights problems: the Role of the United Nations,
the African Union and Africa’s Sub-Regional Organizations in Dealing with Africa’s Human
Rights Problems: Connecting Humanitarian Interventions with the Responsibility to Protect”,
Journal of African Law 2009, http://ssrn.com/abstract=1323332
SARKIN, J. & FOWLER, C., “The Responsibility to Protect and the Duty to Prevent Genocide:
Lessons to be Learned from the Role of the International Community and the Media during
the Rwanda Genocide and the Conflict in the Former Yugoslavia”, Suffolk Transnational Law
Review 2010, 35-86
SIMMA, B., “NATO, the UN and the Use of Force: Legal Aspects” European Journal of
International Law 1999, 1-22
TREVES, T., “Customary International Law”, MPEIPL 2006 available at
http://www.mpepil.com/sample_article?id=/epil/entries/law-9780199231690-
e1393&recno=29&#law-9780199231690-e1393-titleGroup-5
WELSH, J., “Implementing the Responsibility to Protect”, Oxford Institute for Ethics, Law and
Armed Conflict 2009
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WHITE, P. F., “Normative Considerations Bearing on the Responsibility to Protect-Prospects
and Implications in a Fracturing International System”, Canadian Military Journal 2008, 16-
26
WILLS, S., “Humanitarian Intervention on Behalf of Vulnerable Populations: The Legal
responsibilities of States and International Organizations Engaged in peace Support
Operations”, Journal of Conflict and Security Law 2004, 387-416
WILLIAMS, P. R., “Humanitarian Intervention: The New Missing Link in the Fight to Prevent
Crimes against Humanity and Genocide”, Case Western Reserve Journal of International Law
2007-08, 97-110
WONG, J. “Reconstructing the Responsibility to Protect in the Wake of Cyclones and
Separatism”, Tulane Law review 2009, 219-263
Reports and Studies from Non-Governmental Organizations
International Commission on Intervention and State Sovereignty, Report: The Responsibility
to Protect, December 2001, available at http://www.iciss.ca/pdf/Commission-Report.pdf
43rd Conference on the United Nations of the Next Decade Organized by the Stanley
Foundation, Actualizing the Responsibility to Protect, Evora 2008, available at
http://ssrn.com/abstract=1576639
Conference Report organized by the Stanley Foundation, Implementing the Responsibility to
Protect, New York 2010, available at
http://www.stanleyfoundation.org/publications/report/ImplementingR2P_Rpt_31610.pdf
H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (eds.), Report from the 39th International
Peace Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS
2010,
Podcasts
BBC Podcast, Wars of Diplomacy Part I (10 May 2011) available at
http://www.bbc.co.uk/podcasts/series/docarchive/all
BBC Podcast, Wars of Diplomacy Part II (17 May, 2011) available at
http://www.bbc.co.uk/podcasts/series/docarchive/all
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List of abbreviations
AMISOM: African Union Mission in Somalia
ASF: African Standby Force
AU: African Union
AU Assembly: African Union Assembly of Heads of States and Governments
ARSIWA: Articles on the Responsibility of States for Internationally Wrongful Acts
DARIO: Draft Articles on the Responsibility of International Organizations
ECOMOG: ECOWAS Ceasefire Monitoring Group
ECOWAS: Economic Community of West African States
ICC: International Criminal Court
ICISS: International Commission on Intervention and State Sovereignty
ICRC: International Committee of the Red Cross
ICTR: International Criminal Tribunal for Rwanda
ICTY: International Criminal Tribunal for Former-Yugoslavia
IDP’s: Internally Displaced persons
IHL: International Humanitarian Law
ILC: International Law Commission
NATO: North Atlantic Treaty Organization
OAU: Organization of the African Unity
R2P: Responsibility to protect
Peace and Security Council: PSC
UN: United Nations
UNAMIR: United Nations Mission for Assistance in Rwanda
UNGA: United Nations General Assembly
UNOCI: United Nations Operation in Côte d’Ivoire
UNPROFOR: United Nations Protection Force
UNSG: United Nations Secretary-General
UNSC: United Nations Security Council
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Introduction
Recently, the UN Security Council has in quick succession passed 2 major resolutions,
authorizing the use of all necessary means to protect vulnerable populations in both Libya1
and in Ivory Coast.2 Faced with the prospect of horrifying violence on a large scale against
civilians, the UNSC has for the first time explicitly relied on the responsibility to protect (R2P)
to approve coercive actions for the protection of civilians. This unprecedented move
provided an extraordinary momentum forward for the new principle of R2P. Indeed, too
often in the past, the world’s response to genocide and other mass atrocities has been slow,
timid and disjointed. Sometimes, as in the case of Rwanda, the most powerful states simply
lack the political will to step in and put an end to the bloodshed. Placing their own interests
ahead of those of the victims, they stand aside in the face of conscience shocking violence. In
other cases, for instance Kosovo in 1999, collective action was blocked by political deadlock
between states that were keen to intervene and those which opposed intervention on
political, legal or other grounds. In yet other situations, the world’s leaders declare an
interest in ending mass killing, but find it difficult to respond in a timely and decisive way.3
This has particularly been the case in the Democratic Republic of Congo and in Darfur where
the lack of will and political division has produced slaw, incoherent and under-resourced
responses.4
In an attempt to address these past shortcomings, at the occasion of the 60th session of the
Plenary Meeting of the United Nations General Assembly in 2005, the world’s leaders
represented at the highest level have formally and unanimously endorsed the responsibility
to protect their populations from genocide, crimes against humanity, war crimes and ethnic
cleansing.5 The principle of R2P seeks to change the relationship between sovereignty, the
responsibility of states to their own people and the wider duties of the international
community. In this regard, the pledge made by the heads of states and governments was
1 Resolution 1973 UNSC (March 17, 2011), S/Res/1973 (2011)
2 Resolution 1975 UNSC (March 30, 2011), S/Res/1975 (2011)
3 Supplement ICISS Report, 17-18
4 A., BELLAMY, The Responsibility to Protect The Global Effort to End Mass Atrocities, Cambridge, Polity Press,
2009, p 1 - 8 5 United Nations 2005 World Summit Outcome Document (October 24, 2005), UN Doc A/RES/60/1 (2005),
para. 138, 139 and 140. Herein after cited as: The World Summit Outcome Document (2005)
18
certainly a significant step forward in advancing the debate on how to respond to situations
where civilian lives are massively at risk.6 However, despite the consensus reached in 2005,
profound disagreements have emerged about the function, meaning and proper use of the
R2P. Indeed, an atmosphere of mistrust has continued to prevail; while some States see in
this new principle the mere continuance of interventionist policies aimed at destabilizing
political regimes, others promote its application in a selective manner, limiting its scope to
cases significant for their foreign policy interests.7
How can international law help to address many of the questions that have continued to
surround the R2P principle? How can the international community implement its
responsibility to encourage and help states to exercise their responsibility to protect
populations from genocide, war crimes, ethnic cleansing, and crimes against humanity?
What kind of collective action should the international community take if national
authorities are manifestly failing to live up to their own protection responsibilities? Who
should decide and who should take such collective action on behalf of the international
community? How does the responsibility to protect relate to the United Nations Security
Council’s primary responsibility for the maintenance of international peace and security?
What should happen if the Security Council is in the impossibility to exercise its responsibility
in this regard? Can any individual Member State rely on the R2P to justify unilateral actions?
Can the United Nations be held accountable as an international organization for the failure
by the members of the Security Council to take timely and decisive action in the event of
mass atrocities? This work will attempt not only to provide some answers to these questions
by clarifying the relationship between the principle of R2P and international law, but it will
also explore how the R2P can be implemented to effectively protect civilian populations in
Sub-Saharan Africa.
This thesis proceeds in 3 main parts. Part I will discuss the way leading to the R2P; Part II the
understanding of R2P and Part III the implementation of the R2P. With respect to Part I, it is
necessary to go through the history of human catastrophes and how the world’s community
6 The Responsibility to protect and International law 1-8
7 E., STRAUSS, “A Bird in the Hand is Worth Two in the Bush – On the Assumed Legal Nature of the
Responsibility to Protect” in p 38
19
has reacted in the face of such mass atrocities in order to fully understand what the R2P is all
about. The general context surrounding the emergence of the R2P as well as the subsequent
state practice with respect to the protection of civilian populations will be reviewed will be
dealt with in Section I. Section II will then retrace the evolution of the principle of R2P from
the concept of humanitarian intervention (A) to the acceptance of the R2P by the
international community (D). Here, particular attention will be given to the arguments on
both side of the divisive sovereignty-humanitarian intervention debate and whether a
customary right of humanitarian intervention exist under international law. Section III will
outline the evolution of the R2P, essentially within the framework of the UN. This will bring
us to Part II which is all about understanding what the R2P really is. This thesis will analyze
the legal and political nature of the R2P (Section I) before looking at some of the major
concerns that exist about this principle (Section II). We will discuss the scope of the R2P and
the legal consequences deriving from the four international crimes upon which the R2P is
resting, namely genocide, war crimes, crimes against humanity and ethnic cleansing. On the
question whether the R2P has emerged as a legally binding norm, based on the negotiation
history of the World Summit Outcome Document and on the subsequent state practice, the
argument will be made that the R2P is in fact a political concept that may over time evolve
to a norm of customary international law, provided that the necessary state practice and
opinion juris is created.8 The case will also be made that even though it is based on well
established principles within international law, the R2P as such does not create additional
legal obligations. It rather offers an opportunity to improve the implementation of existing
legal obligations to protect populations from mass atrocity crimes.9 Part III will be dedicated
to the Implementation of the R2P and for this purpose; we will successively look at the role
of the United Nations (Section I) and the African Union (Section II) in operationalizing the
R2P. In this part the debates will move around the effective implementation of the R2P and
how international law can be utilized to prevent mass atrocities. If properly understood and
utilized, the R2P can help identify and organize measures available, including political means,
diplomatic initiatives, criminal prosecutions, economic strategies, and, if necessary, military
force for the purpose of protecting civilian populations in the exceptional circumstances
where mass atrocities are involved. The focus will mainly be on the role which organs of the
8 A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 83
9 The Responsibility to protect and International Law (2010), p 9
20
United Nations, especially the Security Council, can play in the protection of vulnerable
populations, as well as on the essential contribution of regional bodies such as the African
Union.
21
Part I: The Way Leading to the Responsibility to Protect
In order to properly understand what the R2P is all about, it is of crucial importance to
realize first where we are coming from in terms of protection of civilian populations. Section
I proposes to retrace the sad history of mass atrocities and to see how legal controversies
have arisen following cases of intervention in the face of humanitarian crisis. Section II will
discuss the concept of sovereignty and its foundations in international law before turning to
the doctrine of humanitarian intervention. We will show how the notion “sovereignty as
responsibility” put forward by the International Commission on State Sovereignty and
Intervention (ICISS) has completely shifted the terms of the old contentious debate between
supporters of sovereignty on one side and those favoring humanitarian intervention on the
other.
Section I: The Recurring Nightmare of Mass Atrocities
The history of mankind has often been marked by violent and bloody conflicts. It has taken a
desperately long time for the idea to take hold that mass atrocities are the world’s business.
For the most part, massacres of innocent populations, forced displacements, large scale
sexual violence and arbitrary destruction of civilian property were often met with
indifference, cynicism or deep disagreement about how to respond to them.
A. The Pre-modern Age - 1945
Indeed, throughout the pre-historic, ancient and medieval times, rape, pillage and massacre
were essentially a matter of indifference to all but their victims. What we now call civilians –
non-combatants, woman, children, the old and sick – were not exempt from violence. At the
time, it makes no sense to view mass atrocities in terms of the responsibility of states,
individually or collectively. Although there were clearly identifiable rulers in different
territories and different forms of governance, no modern state existed in the modern sense
of the word.10 With the Peace Treaties of Westphalia in 1648 and the establishment of the
modern system of sovereign states,11 this long-standing indifference of political rulers
toward atrocities occurring elsewhere was effectively institutionalized in the name of the 10
G. EVANS, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institution 2008, 13-14 11
Modern system of sovereign states: states legally equal to each other, not subject to the imposition of supranational authority, not intervening in each other’s internal affairs
22
stability of international relations. A sovereign government has the right to rule within its
own territory as it sees fit without fear of outside intervention. Sovereignty was clearly
understood in the sense of absolute immunity from outside scrutiny or sanction.12
It is possible to identify different theoretical reflections trying to develop the idea of
humanitarian intervention in the works of late medieval writers and the 18thand 19th
century’s scholars. However, the attention paid to the issue of humanitarian intervention
remained mostly academic, with little to no support in treaty and state practice. Foreign
humanitarian intervention was clearly perceived as an exception to the principle of non-
intervention and sovereign jurisdiction in cases of outrageous treatment of individuals.13
The result has been a long litany of further massacres and other atrocities in the centuries
that followed. Throughout the nearly 400 years of this period, it is hard to find examples
where states looked beyond their own territorial and colonial borders or beyond their own
immediate economic and security interests to halt or avert new or continuing atrocities. For
all cases of intervention by the Great Powers in the Ottoman Empire in the 19th century to
protect the Christian and Jewish populations there, the use of armed force in support of the
Greek rebellion (1827) or in the French occupation of Lebanon and Syria (in 1860-61) was
invariably justified by referring to treaty obligations of the Ottoman Empire, consent to the
intervention, the protection of trade interests, or the prevention of piracy. 14 Nonetheless,
from the middle of the 19th century, it is possible to discern that some kind of collective
conscience was stirring on atrocities issue. Firstly, there was the foundation of the Red Cross
movement by Henry Dunant in 1863; secondly, the First Geneva Convention of 1864 which
explicitly obliges states to give certain protections to the citizens of other states in times of
war and finally a number of actions undertaken within the framework of the League of
Nations acknowledging the rights and claims of individuals such as refugees, minorities in
Central Europe or subject peoples living in territories under a mandate system. In the pre-UN
12
T. B. SEYBOLT, Humanitarian Military Intervention: The Conditions for Success and failure, Oxford University Press, Oxford 2007, 9 13
The History of Humanitarian Intervention, 2-11 14
V., LOWE, A., TZANAKOPOULOS , “Humanitarian Intervention”, MPEPIL 2011,1-2
23
Charter era, there was no established state practice of reliance upon a right of humanitarian
intervention to justify the use of force.15
B. From 1945-1990
This situation has prevailed until the end of World War II. The revelations about the the
horror of the extermination program of the Nazi Holocaust came as a shock for the stirring
collective conscience of humanity. The war has subsequently led to the creation of the
United Nations and the following years saw the birth and the further development of
international human rights law and international humanitarian law. Despite the major gains
made in the immediate post-war period, the international community has continued to
overlook serious crimes against humanity perpetrated by states, with little to no effective
action at all.16 State practice reveals that quite a number of coercive interventions have
taken place during the Cold War period. These interventions fall in two big categories.
On the one hand, the first category that involves cases whereby the claimed humanitarian
justification for intervention was primarily the protection of the intervening country’s own
nationals, while there were invariably other strategic or economic motives at play. The
interventions of Belgium in the Congo (1960), of Belgium and the United States in
Stanleyville (1968), of France and Belgium in the Shaba province of Zaïre (1978) and of the
United States respectively in the Dominican Republic (1965), in Grenada (1983) and in
Panama (1989) have all attracted significant international condemnation. On the other hand,
the second category regroups those situations where a strong argument for humanitarian
intervention could plausibly have been made, but instead dubious justifications based largely
on self-defense were invoked.17 So, when Vietnam invaded Cambodia in 1979, and ousted
the Khmer Rouge regime responsible for the death of some 2 million civilians, it was
universally condemned for violating Cambodia’s sovereignty, despite the very fact that this
intervention ended one of the worst sustained mass-murders of the 20th century. In the
15
G. EVANS, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institution 2008, 15-19 16
Indonesian massacres of up to 500.000 Communist Party members from 1965 to 1966, the hunt down and killing of more than 100.000 Hutu in Burundi in 1972, the forced disappearance of political dissidents during the Dirty War in Argentina between 1976-83, Pinochet’s Operation Condor during the 1970s, the poison gas attack by Saddam Hussein’s Iraqi air force on the Kurdish region in 1988. 17
G. EVANS, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institution 2008, 19-25
24
same year, Tanzania deposed the brutal dictator Idi Amin with barely a ripple of
international condemnation. Again, self-defense, and not the human rights argument was
invoked to justify the intrusion into the sovereignty of Uganda.18
Although breaches of the non-intervention norm were frequent, generally speaking the
norm itself was never called into question. Indeed, the emergence of a host of new states
during the 1960s as part of the decolonization process helped reinforced the traditional view
of sovereignty.19 With the Security Council paralyzed by the Cold War ideological
competition, newly independent states, fiercely protective of their sovereignty and
conscious of their fragility saw in the principle of non-intervention enshrined in Art 2(7) UN
Charter, one of their few defenses against threats and pressures from more powerful states
seeking to promote their own economic and political interests.20 The two major competing
super powers at the time were very much focused on what was actually needed to keep
their respective alliance blocs functioning and were reluctant to impose any significant
constraints on misbehaving partners. Therefore, it appears clearly from an interpretation of
these past cases that international law did not facilitate a consensus on collective action to
prevent and end genocide and mass atrocities outside the idea that the Security Council has
the discretion to act whenever it sees fit.21
C. The Post Cold War Period
The end of the Cold War was portrayed as a historical turning point that opened the
opportunity for going beyond the fear of interventions by great powers. The world which
entered a new era of international politics was no longer rived by bipolar ideological
conflict.22 The 1990s saw the eruption of a series of man-made catastrophes in the Balkans
and in Africa. Where usually conflicts used to be between states, internal conflicts in which
civilians are the primary targets of violence largely became the norm. And within the UN, the
vogue for intra-state peacebuilding took hold. The number of interventions authorized by
Security Council increased dramatically. Departing from its previous practice, the Security
18
T. B. SEYBOLT, Humanitarian Military Intervention: The Conditions for Success and failure, Oxford University Press, Oxford 2007, 19
G. EVANS, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institution 2008, 19-25 20
Supplement to ICISS report, 18 21
The Responsibility to Protect and International law, 1-8 22
Idem p 19
25
Council started to consider internal conflicts and situations of widespread violation of human
rights as threats to international peace and security, justifying response in the form of a
legitimate intervention.23 However, the UN multilateral system of collective security
struggled to respond adequately to this new changing nature of conflicts.24 In this period,
several significant military operations were mounted, essentially humanitarian and coercive
by nature. Each had an overt and credible humanitarian justification, addressing real civilian
protection concerns. These interventions took place either expressly against the wishes of
the government concerned (Northern Iraq, Bosnia and Rwanda), or in circumstances where
the issue of consent was irrelevant (Somalia where no government existed any more),
controversial (Liberia, Haiti and Sierra Leone where the regime representing the state lack
effective control) or ambiguous (Timor-Leste where the consent was only given under
immense international pressure).25
Some of these interventions generated less strident objections than the others. Liberia
(1990-1997) saw the first intervention of this kind by an African sub-regional organization.
The Economic Community of West African States (ECOWAS) landed troops to stop a bloody
civil war from degenerating into total anarchy; endorsement by the UNSC came only ex post
facto. In Northern Iraq (1991), in response to a brutal campaign of repression by Saddam
Hussein against the Kurds, the United States and its allies successfully imposed a safe haven,
relying on the uncertain authority of an earlier Security Council resolution. In Haiti (1994-97),
the Security Council reluctantly authorized the deployment of a multinational force against
the military junta that had overthrown the democratically elected President Aristide. Sierra
Leone (1997) experienced another Nigeria-led ECOWAS intervention to prevent further
bloodshed and restore the constitutional order after a military coup which was only
commanded by the UNSC after the fact. In Guinea Bissau, threatened mutiny against
President Bernardo Nino Vieira in June 1998 prompted him to request for an ECOWAS
deployment. Days before the ECOWAS Ceasefire Monitoring Group (ECOMOG) deployment,
the Security Council has ex ante approved the effort of the sub-regional organization to
23
A. BROWN, “Reinventing Humanitarian Intervention: Two Cheers for the Responsibility to Protect?”, House of the Commons Library Research Paper 08/55 2008, 11 24
P. F., WHITE, “ Normative Considerations bearing on the Responsibility to protect – Prospects and Implications in a Fracturing International System”, Canadian Military Journal 2008, 16 25
G. EVANS, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institution 2008, 25-28
26
maintain security alongside the Guinea Bissau/Senegal border. In East-Timor (1999), the
Security Council authorized a multilateral force under Australian leadership to restore peace
and security after terrible violence orchestrated by the Indonesian government had followed
the successful referendum for independence. In 2002, following a coup which cost him
control over Ivory Coast, President Gbagbo requested ECWAS intervention. The UNSC
reacted later by welcoming the prompt deployment of French and ECOWAS forces.
The four remaining instances of intervention together raised many more problems. All
together these cases illustrate the conceptual, operational and political will issues which lie
at the origin of the R2P principle.
3. Somalia
Somalia erupted into clan based civil war when President Siad Barre was overthrown in
January 1991 after losing the protection he had successively enjoyed from the Soviet Union
and the United States. As a result, hundreds of thousands of Somalis were displaced in the
ensuing turmoil. By the end of 1992, 28.000 US led troops were on the ground in what was
unequivocally a humanitarian intervention under UN mandate. The mission succeeded in its
basic objectives to extend assistance in one form or another to the entire population.
However, the new UN mission which replaced the US-led force was completely undermined
by subsequent events. There was a misconceived attempt to wage war against militia
leaders which led to the shooting down of a black hawk helicopter in Mogadishu in 1993. 18
Americans were killed in the incident and subsequently all US troops were pulled out of
Somalia. The UN mission was ultimately withdrawn in April 2005, with most of its objectives
unachieved.
4. Rwanda
There was no desire amongst the major powers to respond to events unfolding in Rwanda in
1994. The Mogadishu debacle was critical in explaining the reluctance of the Security Council
to intervene after April 6, when the plane carrying Rwandan President Habyarimana was
shot down. Following the attack, massive ethnic based violence started and the desperate
need to mount a fully empowered military enforcement operation became evident. But the
initial mandate of the United Mission for Assistance in Rwanda (UNAMIR) to monitor the
implementation of the Arusha Peace Agreement of 1993 had become irrelevant and
27
inadequate in the face of imminent genocide. The reports which were coming from Kigali
were not taken seriously enough as a result of systematic and personal failures by those
most immediately responsible.26 Following the execution of 10 of its soldiers serving under
the UN, Belgium pulled out its contingent entirely. While people were being slaughtered, the
Security Council has in an incomprehensible move, decided to draw down the actual number
of troops on the ground. In late June 1994 when the French “Operation Turquoise” did
eventually arrive with a UN enforcement mandate, an estimated 800.000 people had already
been massacred. Though the French operation allowed saving tens of thousands of lives, its
impact was at best cosmetic.
5. Bosnia
The disintegration of the former Yugoslavia has occupied the agenda of the Security Council
for almost a decade since the end of the cold war. The central and most problematic mission
of the 1990s was the United Nations Protection Force (UNPROFOR) established in 1992 with
an extended mandate to protect the aid workers and convoy and to secure 5 safe areas
around Sarajevo and several other Bosnian towns including Srebrenica. In July 1995, Bosnian
Serbs under the command of General Ratko Mladic invaded the town and slaughtered 8.000
men in nearby fields and forests after the Dutch members of the UN battalion had forced
them out of the secured compound. This catastrophe, by far the largest mass murder in
Europe since World war II was the result of several elements. Firstly, there were ambiguities
in the language of the protective mandate conferred upon the mission. During the first four
years of the war, the international community failed to adequately support the
peacekeepers mandated with protecting civilians and UN member states and the UN
Secretary-General actively sought to interpret the mandate as narrowly as possible.27
Secondly, there was the required key dual agreement between the force commander and
the secretary general’s representative before there could be any coercive response. And
finally there was the still-prevailing culture of impartiality in peacekeeping operations. UN
peacekeepers were essentially prohibited from using force except in self-defense, even
though the use of force is authorized under Chapter VII of the Charter, the United Nations
26
S. WILLS, “Military Intervention on Behalf of Vulnerable People: The Legal Responsibility of States and Organizations Engaged In Peace Support Operations”, Journal of Conflict and Security La 2004, 406, 27
M. E, STEWART, P. R, WILLIAM, “Humanitarian Intervention: The New Missing Link in the Fight to Prevent Crimes Against Humanity and Genocide”, Case Western Reserve Journal of International Law 2007-08, 103-104
28
remains neutral and impartial between the warring parties, without a mandate to stop the
aggressor or impose a cessation of hostilities.28
6. Kosovo
The intervention into Kosovo by NATO forces to protect the Albanian minority generated
heated debates. In 1998, Serbian president Slobodan Milosevic had made clear he intended
to crush ethnic Albanian separatist group once and for all. However, with the fresh memory
of the event in Srebrenica, the NATO allies were determined to ensure that no new
massacres took place again. After intense diplomatic activities between the NATO and the
Security Council, it became clear that China and Russia were not prepared to agree to any
resolution authorizing the use of force. Following the collapse of an ultimate diplomatic
initiative in Rambouillet, the United States and its NATO allies invoking a state of
humanitarian necessity decided to launch a unilateral campaign of air strikes against the
Former Republic of Yugoslavia, without the authorization of the Security Council.29 The 78
days of destructive bombing produced a flood of refugees, internal displacements and a
surge of further killings. It is only after NATO used the threat to deploy troops on the ground
that a settlement was reached. The Kosovo intervention has led to some opposition on its
merits, but the balance of opinion generally favors the legitimacy of the intervention. By
contrast, on the issue of the legality, the Kosovo intervention remains highly criticized, for
violating international law and bypassing the authority of the Security Council.30 The illegal
but legitimate intervention in Kosovo illustrates the difficulties which existed by the time to
establish a generally accepted legal basis for humanitarian intervention.
The 1990’s was the decade in which all the central questions surrounding humanitarian
intervention were clearly exposed. The debacle of the attempted intervention in Somalia
together with the catastrophes of Rwanda and Srebrenica were particularly illustrative of the
hesitation and the incapacity to act which marked the end of the 20th century.31 In addition,
the 1991 intervention in Northern Iraq led by the US and the UK, the ECOWAS intervention
28
Report of the UN Secretary General on the Work of the Organization, Supplement to an Agenda for Peace: Position Paper of the Secretary General on the Occasion of the 50
th Anniversary of the United Nations,(January
3rd
, 1995), UN Doc S/1995/1, A/50/60, para 19 29
M. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 1155-1156 30
Report of the Independent International Commission on Kosovo(200), 289 31
E. C., LUCK, “The United Nations and the Responsibility to Protect”, The Stanley Foundation Policy Analysis Brief 2008, 2
29
in Liberia and the 1999 NATO intervention in Kosovo are part of a larger trend that have
seen states giving increased weight to human rights and humanitarian norms as matters of
international concern. The debate of humanitarian intervention was lifted to the top of the
international community’s agenda, unveiling the need to develop a more comprehensive
position on the lawfulness of such interventions in international law.32 However, any general
discussion in an international forum and any individual difficult case that arose became a
political battlefield with two warring armies. On the one side there were those who in
situations of catastrophic human rights violations advocate humanitarian intervention and
the right to intervene with military force. On the other side there were those who were
resolutely determined to maintain the primacy of the traditional non-intervention principle
of sovereignty. One of the central obstacles facing the UN is clearly the tension between
national sovereignty and a lack of international will to protect vulnerable populations.33
During the UN millennium summit in 2000, the then UN Secretary-General, Kofi Annan,
challenged member states to address dilemmas posed by humanitarian crises where
intervention to protect human lives and the deference accorded to state sovereignty are in
conflict:
“If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every percept of our common humanity?”34
Section II: From the Right to Intervene to the Responsibility to Protect
A. The Origin of the Responsibility to Protect
The R2P represents a fundamental reframing of the humanitarian intervention debate that
started following the international community’s failure to adequately predict and respond to
a shocking succession of unfolding mass atrocities in the 1990s. Humanitarian intervention
was premised on an alleged right to intervene militarily, if necessary against the will of the
government of the state in question, when confronted with mass atrocity crimes. This
position ultimately turned out to be politically untenable and provided little scope for
32
D. KUWALI, “The End of Humanitarian Intervention: An Evaluation of the Right of the African Union’s Right of Intervention, African Journal of Conflict Resolution 2009, 42-43 33
M., DU PLESSIS, “Chinese Arms Destined to Zimbabwe over South African Territory: The R2P Norm and the Role of the Civil Society, African Security Review 2008, 19-21 34
Report of the UNSG, Millennium Report of the Secretary-General of the United Nations (2000)
30
concrete implementation. It became quickly evident that a solution was needed in order to
restore the confidence in the United Nations and the credibility and legitimacy of the
Security Council. The challenge was to develop a conceptual and practical framework which
avoided the inherent problems associated with humanitarian intervention.35
B. The Key Aspects of the Responsibility to Protect
In response to this fierce debate about humanitarian intervention and to the Security
Council’s split over how to address the crisis in Kosovo, the Canadian government decided to
launch an independent commission, the International Commission on Intervention and State
Sovereignty (ICISS) in 2000 which coined the phrase “responsibility to protect”.36 The R2P
emerged from a broader understanding of sovereignty as responsibility that vested
sovereign rights in an obligation to preserve the welfare of civilian populations. Limiting its
scope to four specific atrocity crimes namely genocide, ethnic cleansing, crimes against
humanity, and war crimes; the R2P shifted focus from the dubious right of an outside
intervener to the indisputable responsibility of a sovereign state to protect its population
from civilian-targeted violence. In addition, protection was neither primarily a military
matter nor essentially a contest between State and individual sovereignty.37
The key elements of the principle of R2P include:38
- The primary responsibility to protect lies first and foremost with each individual state
in recognition of the fact that sovereignty includes not just rights, but also
responsibilities;
- A recognition that, if individual states are unwilling or unable to protect their citizens
from genocide, war crimes and crimes against humanity, the responsibility to protect
shifts to the international community;
- A recognition that the international community’s responsibility is a continuum of
measures, including diplomatic, humanitarian and other methods, to help protect
civilian populations;
35
A. BROWN, “Reinventing Humanitarian Intervention: Two Cheers for the Responsibility to Protect?”, House of the Commons Library Research Paper 08/55 2008, 12 36
G. EVANS, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institution 2008, 38-43 37
Stanley Foundation, Policy Memo (2010) 38
M., DU PLESSIS, “Chinese Arms Destined to Zimbabwe over South African Territory: The R2P Norm and the Role of the Civil Society, African Security review 2008, 19-21
31
- A recognition that, if these measures are insufficient, the Security Council has the
right to take action under the Charter of the UN, including enforcement action if so
required.
C. The Sovereignty-Humanitarian Intervention Debate
Before the emergence of R2P, questions about the legal nature of international measures to
prevent genocide and mass atrocities and the obligations owed to people in foreign
countries tended to be framed around an enduring struggle between sovereignty and
human rights. External military intervention for humanitarian protection purposes has been
controversial both when it has happened (as in Somalia, Bosnia and Herzegovina and
Kosovo) as well as when it has failed to happen, as in Rwanda.39 Throughout the decade, a
fierce argument raged between on the one hand advocates of humanitarian intervention
and on the other hand the defenders of the traditional prerogatives of state sovereignty,
who insisted that internal events were none of the rest of the world’s business.
Humanitarian intervention poses the dilemma of what states should do when there are
great controversies between what international law requires and what morality dictates.40
The purpose of this sub-section is to set out the legal scope and significance of state
sovereignty as a foundation on which to explore contemporary debates on the R2P. The
legal basis and meaning of the principles of state sovereignty and non-interference will firstly
be discussed, before addressing the delicate question of the legality of humanitarian
intervention under international law. The argument will be made that state sovereignty does
in fact entails responsibility and that states can no longer hide behind their sovereignty to
avoid international scrutiny in cases of massive and systematic violations of human rights
against their populations.
1. The Concept of Sovereignty
State sovereignty has for the past several hundred years, been a defining principle of
interstate relations and a foundation of world order. It generally refers to the rights that
states enjoy to territorial integrity, political independence and non intervention.41
39
Report ICISS, p vii 40 R., ANTHEA, “Legality v Legitimacy: Can Uses of Force be illegal but Justified?” in ALSTON, P., E. MACDONALD
(eds.), Human Rights, Intervention and the Use of Force, Oxford, Oxford University Press 2008, 179 41
A. J. BELLAMY, Responsibility to Protect, Cambridge, Polity Press 2009, 1-34
32
a) The principle of Sovereign Equality
The concept of sovereignty which established a system of independent and equal units dates
back from the Treaties of Westphalia in 1648.42 The concept lies at the heart of both
customary international law and the UN Charter and remains an essential component of the
maintenance of international peace and security as well as a defense of weak states against
the strong.43 The ICJ has recognized in the Corfu Channel case that between independent
states, the respect for territorial sovereignty constitutes an essential foundation of
international relations.44 Later on in the Nicaragua case, the Court has again referred to
state sovereignty as the fundamental principle on which the whole international law rests.45
The core elements of sovereignty include three main requirements: a permanent population,
a defined territory, and a functioning government. These elements were codified in a series
of international documents such as the 1933 Montevideo Convention on the Rights and
Duties of States46, the UN Charter and the UNGA Declaration on Principle of International
Law Concerning Friendly Relations among States47. According to Article 2(1) UN Charter, the
world organization is based on the principle of the sovereign equality of all member states
which denotes the competence, independence, and legal equality of states. Sovereignty is
normally used to encompass all matters including the choice of political, economic, social,
and cultural systems and the formulation of foreign policy, in which each state is permitted
by international law to decide and act without intrusions from other sovereign states.48
b) The Principle of Non-Interference
Following the principle of non-interference in affairs that are essentially within the domestic
jurisdiction of those states is enshrined in Article 2(7) UN Charter, a sovereign state is
empowered in international law to exercise total jurisdiction within its territorial borders. In
turn, other states have the duty not to intervene in the internal affairs of a sovereign state.49
42
F., ABIEW, The Evolution of the Doctrine and Practice of Humanitarian Intervention, The Hague, Kluwer 1999, 26-27 43
supplement CISS Report, p 5 44
ICJ, Corfu Channel case, ICJ Reports 1949, 4 45
ICJ, Military and Para-Military Activities in and against Nicaragua (Nicaragua v. United states), ICJ Reports, 1986, para. 263 46
Article 1 Montevideo Convention 47
UNGA Declaration on… , UNGA Res 2625(XXV), (Ocober 24, 1970) 48
ICISS Report, supplement p. 6 49
C., ABBOTT, “Rights and Responsibilities: Resolving the Dilemma of Humanitarian Interventions”, Oxford research Group 2005, 1-2
33
Jurisdiction broadly refers to the power, authority, and competence of a state to govern
persons and property within its territory. Jurisdiction exercised by states is then the corollary
of their sovereignty. Jurisdiction is clearly founded on territorial sovereignty but extends
beyond it. Jurisdiction is prima facie exclusive over a state’s territory and population, and the
general duty of nonintervention in domestic affairs protects both the territorial sovereignty
and the domestic jurisdiction of states on an equal basis. According to the arbitral award in
the Island of Palmas case, an important component of sovereignty has always been an
adequate display of the authority of states to act over their territory to the exclusion of
other states.50 Furthermore, the words “essentially within the domestic jurisdiction of
States” refer to those matters that are not regulated by international law. In the Aegean Sea
case, the ICJ stated that the question whether a certain matter is solely within the domestic
jurisdiction of a State or not is an essentially relative question that depends on the
development of international relations. Consequently, it seems hardly conceivable that
terms like “domestic jurisdiction” were intended to have a fixed content, regardless of the
subsequent evolution of international law.51
2. No Absolute Sovereignty in Modern International Law
However, the scope of the freedom of choice of states in these matters is not unlimited; it
depends on developments in international law and international relations.52 In that way,
there are important and widely accepted limits to state sovereignty in international law.
First, the Charter highlights the tension between the sovereignty, independence, and
equality of individual states, on the one hand, and collective international obligations for the
maintenance of international peace and security, on the other.53 According to Chapter VII
UN Charter, sovereignty is not a barrier to action taken by the Security Council as part of
measures in response to a threat to the international peace and security. Second, state
sovereignty may be limited by customary and treaty obligations in international law. States
are indeed legally responsible for the performance of their international obligations;
especially those assumed by virtue of their membership to the UN. In this respect, the
corresponding powers of the world organization presuppose a restriction of the sovereignty
50
Arbitral Tribunal, Island of Palmas case 51
ICJ, Aegean Sea case, ICJ Reports 1978, p32 52
Humanity as omega for sovereignty 53
C. M., RYAN, “Sovereignty, Intervention and the law: A tenuous relationship of Competing Principles”, Millennium: Journal of International Studies 1997, p 77
34
of member states to the extent of their obligations under the Charter.54 It follows from the
principles and the purposes of the UN that sovereignty carries with it the primary
responsibilities for states to protect persons and property and to discharge the functions of
government adequately within their territories. The quality and range of responsibilities for
governance have brought about significant changes in state sovereignty since 1945. In
particular, there has been an expanding network of obligations in the field of human rights
law and international humanitarian law which create a dense set of state obligations to
protect persons and property. Sovereignty is therefore incapable of completely shielding
gross violations of human rights that contravene international obligations. In the words of
the ICJ in the Corfu Channel case, sovereignty is no longer absolute but rather an institution
which has to be exercised in accordance with international law.55
3. Humanitarian Intervention
Now that the arguments on the sovereignty side of the debate were considered, let us have
a look at those on the side of humanitarian intervention. We will first discuss whether a
customary right of humanitarian intervention exists under international law before
examining the legality of humanitarian intervention.
a) The Customary Right of Unilateral Humanitarian Intervention under International Law?
At this point, it becomes necessary to discuss whether past military interventions and peace
operations frequently deployed by the United Nations Security Council for humanitarian
purposes are sufficient to reveal the emergence of a new rule of customary international law
as to a right of humanitarian intervention. The term unilateral or coercive humanitarian
intervention describes here the use of force by one or more states in another with the aim of
preventing gross and massive human rights violations without UNSC approval.56 For such a
customary rule to emerge under international law, the combination of 2 elements is
required: consistent state practice and opinio juris favoring humanitarian intervention.57 In
the following, we will examine whether these 2 elements are actually present.
54
ICISS Report Supplement, p 7 55
ICJ, Corfu Channel Case, ICJ Reports 1949, 43 56
R., ANTHEA, “Legality v Legitimacy: Can Uses of Force be illegal but Justified?” in ALSTON, P., E. MACDONALD (eds.), Human Rights, Intervention and the Use of Force, Oxford, Oxford University Press 2008, 180 57
T. TREVES, “Customary International Law”, MPEIPL 2006, para. 7-9
35
i. Consistent state practice
With respect to state practice, there are a significant number of precedents of humanitarian
intervention which could acknowledge the existence of a right to intervene in the face of a
humanitarian crisis or widespread violations of human rights. These include India’s 1971
intervention in East Pakistan, Vietnam’s 1978 intervention in Cambodia, Tanzania’s 1979
intervention in Uganda, France’s 1979 intervention in the Central African Republic, US
interventions in Grenada in 1983 and Panama in 1989, ECOWAS action in Liberia in 1991 and
Sierra Leone in 1997, The US, UK and France’s 1991 intervention in northern Iraq to protect
the Kurds, the US-led 1992 UN intervention in Somalia58, the US-led 1994 intervention in
Haiti59, the France’s 1994 intervention in Rwanda60, NATO’s intervention in Bosnia61 in 1994
and in Kosovo62 in 1999, the US-led interventions in Afghanistan in 2001 and in Iraq in 2003,
the 2011 French-led intervention in Ivory Coast and NATO’s 2011 intervention in Libya…
From all these instances, it can therefore reasonably be concluded that a consistent
international practice exists when it come to military intervention for humanitarian
purposes.
ii. Opinio juris
The question that arises now is whether such a state practice constitutes a general practice
which is accepted as law. In other words, was there a conviction or a belief on the part of the
states concerned that they were under the obligation to intervene militarily by virtue of the
doctrine of humanitarian intervention? To establish the existence of an opinio juris, the ICJ in
the Nicaragua case has stated that no one has the authority to ascribe to States legal views
that they do not themselves advance.63 In order to support the argument that a new rule of
customary international law has emerged, States must have claimed that the instances
where force was unilaterally used, were actually lawful because of the doctrine of
humanitarian intervention.64 In this respect, only the instances of unauthorized intervention
could provide evidence of opinio juris for the purpose of our discussion. Indeed, no opinio
juris in favor of a new customary rule allowing unilateral humanitarian intervention in
58
UNSC Resolution 794 59
UNSC Resolution 940 60
UNSC Resolution 929 61
UNSC Resolution 836 62
UNSC Resolution 1088 63
ICJ, Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, 109, 207 64
V., LOWE, A., TZANAKOPOULOS , “Humanitarian Intervention”, MPEPIL 2011, 10
36
derogation of the Charter provision that prohibits the use of force can be inferred from
actions which were authorized by the Security Council.65 This restricts the potential relevant
case to the Indian intervention in East Pakistan (1971), Vietnam attack of Cambodia (1978),
Tanzania’s invasion of Uganda in (1979) and the 1999 Nato’s air strike campaign in Kosovo.
In all the cases, none of the intervening States did argue that their actions were justified by a
rule of customary international law that allows the use of force on humanitarian grounds.
Instead, India, Vietnam and Tanzania have all ultimately claimed to have acted on national
security grounds in reaction to border incursions and other acts or threats of force.66 Even as
far as the NATO intervention in Kosovo goes, although the use of force was certainly justified
by a state of humanitarian necessity, some of the States participating in the intervention
expressly refuse to consider their military campaign to be an instance where they had the
right to act as they did under international law.67 Not only have Germany and Belgium
explicitly stressed that the resort to force without Security Council authorization could not
constitute a precedent for the future, but the United States has also invoked other grounds
than the doctrine of humanitarian intervention as legal justification for their right of
unilateral humanitarian intervention, while emphasizing the sui generis character of the
situation prevailing in the Balkan region.68 Since there was little to no evidence of opinio juris
in all these cases, they must be viewed as ad hoc exceptions rather than precedents
establishing a new rule allowing the unilateral uses of force. Furthermore, it must be noted
that the international community was not inclined to regard these past cases of
unauthorized interventions as being consistent with international law.69 Nor has the
international community consistently acquiesced in past cases of humanitarian
interventions.70 Here reference can be made to the declaration of the Non Aligned
Movement in which 132 states expressly rejected the so-called right of humanitarian
65
J., PATTISON, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?, Oxford, Oxford University Press, 2010, 48-51 66
T. B. SEYBOLT, Humanitarian Military Intervention: The Conditions for Success and failure, Oxford University Press, Oxford 2007, 10 67
B., SIMMA, “NATO, the UN and the Use of Force: Legal Aspects” European Journal of International Law
1999, 13 68
R., ANTHEA, “Legality v Legitimacy: Can Uses of Force be illegal but Justified?” in ALSTON, P., E. MACDONALD (eds.), Human Rights, Intervention and the Use of Force, Oxford, Oxford University Press 2008, 195 69
V., LOWE, A., TZANAKOPOULOS , “Humanitarian Intervention”, MPEPIL 2011, 12-13 70
R., ANTHEA, “Legality v Legitimacy: Can Uses of Force be illegal but Justified?” in ALSTON, P., E. MACDONALD (eds.), Human Rights, Intervention and the Use of Force, Oxford, Oxford University Press 2008, 212
37
intervention as having no basis in the UN Charter and in international law.71 Therefore, the
evidence supporting the existence of an ongoing and repetitive state practice with respect to
unilateral humanitarian intervention cannot lead to the recognition of a customary rule
regarding the exception to the prohibition on the use of force. In the absence of the
necessary opinio juris, no such a norm which allows for the use of force on the pretext of
humanitarian intervention exists under international law as it stands today.72 However,
reactions to future instances of mass atrocities might possibly give rise to the slow
development of such a customary rule, but given the controversies surrounding the doctrine
of humanitarian intervention, this remains unlikely.73
b) The Prohibition on the Use of Force and the Legality Problem of Humanitarian
Intervention
In the aftermath of the intervention in Kosovo, an important debate arose in the
international legal community over the permissibility of states using armed force to halt
mass atrocities in another state. External military intervention for humanitarian protection
purposes has been controversial both when it has happened as in Somalia, Bosnia and
Kosovo and when it has failed to happen, as in Rwanda.74 The intractable tensions between
the imperative need to intervene militarily in horrendous human rights situations and the
sacrosanct principle of state sovereignty, made the issue of humanitarian intervention
legally, politically and morally contentious.75 The main question is whether it was ever lawful
for a state or group of states to take military action against a sovereign state in order to
protect that state's citizens from their government. It appears clearly that most governments
and jurists were reluctant to endorse unilateral humanitarian military intervention under
modern international law because of the potential that powerful states will abuse such a
doctrine.76 The history of humanitarian military intervention is abundantly furnished with
examples of powerful states or coalitions which have invoked a humanitarian doctrine to
71
Declaration by the Ministers of Foreign Affairs of the G 777 (September 24, 1999) available at http://www.g77.org/doc/Decl1999.html 72
Max Planck Year Book of the United Nations 2004, 252; J., PATTISON, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?, Oxford, Oxford University Press, 2010, 48-51 73
C. R., MIKULASCHEK, “Actualizing the Responsibility to Protect: Report of the 43rd
Conference on the United Nations of the Next Decade”, Stanley Foundation 2009, 19-21 74
E. C., LUCK, “The United Nations and the Responsibility to Protect”, The Stanley Foundation Policy Analysis Brief 2008, 2 75
C. C., JOYNER, “The Responsibility to Protect: Humanitarian Concern and the Lawfulness of Armed Intervention, Virginia Journal of International Law Association 2007, 697-701 76
Supplement ICISS Report, 18
38
advance their own geopolitical interests. Most notoriously, the case of Nazi Germany
invading Czechoslovakia in 1939 can be cited: according to Hitler, the life and liberties of
Czechoslovak citizen of German ethnicity was threatened by their own government.77
From a legal point of view, the UN Charter provides the framework within which the legality
of the concept of humanitarian intervention should be assessed. Given the experience of
two world wars, the framers of the Charter believed that force was too dangerous to be seen
as a legitimate means of altering the political or territorial status quo. Other mechanisms
were established to allow states the means to seek justice peacefully. The UN Charter
established the principle of sovereign equality between states under Article 2(1) UN Charter,
the prohibition of interference in the internal affairs of other states under Article 2(7) UN
Charter and the prohibition on the use of force under Article 2(4) UN Charter.78
Article 2(4) UN Charter is the cornerstone for recourse to force under modern international
law. This article proscribes the use and the threat of force that in any way violates the
territorial integrity or political independence of states, or that transgresses the purposes of
the United Nations. It is now regarded as a principle of customary international law and as
such is binding upon all states in the world community.79 The UN system knows two main
exceptions to this prohibition: 1) force undertaken in self-defense under Article 51 UN
Charter and 2) force authorized by the Security Council pursuant to Chapter VII UN Charter.80
i. Force undertaken in self-defense under Article 51 UN Charter
Firstly, according to Article 51 UN Charter, states maintain an inherent right of individual and
collective self-defense in case of an armed attack, until such time the Security Council takes
the measures necessary to restore international peace and security. In most cases,
widespread violations of human rights will not reach the gravity threshold of an armed
attack. Therefore, as long as that humanitarian crisis has not spilled over national borders or
77
The responsibility to Protect, p 9 78
Articles 2(1) and 2(7) have already been discussed above 79
M. SHAW, International Law, Cambridge, Cambridge University Press, 2008, 1123 80
J., PATTISON, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?, Oxford, Oxford University Press, 2010, 45-48
39
given rise to armed attacks against another states, recourse to the argument of self defense
under Article 51 UN Charter as a justification will not be acceptable.81
Still, there have been cases in the past where humanitarian interventions could have been
justified on the basis of the right of self-defense under Article 51 UN Charter. In all these
instances, the States resorting to force could effectively claim to have suffered an armed
attack following the action of the target State. But Tanzania has thus used the argument of
self defense to justify its 1979 invasion of Uganda to topple the dictator Idi Amin, while the
atrocious human rights record of his regime could have legitimized humanitarian action. In
the same way, Vietnam has also relied on self-defense to justify its 1978 intervention in
Cambodia which brought the bloody regime of the Khmer Rouge to an end. At the time, the
use of humanitarian considerations alone, even in the case of an armed attack against the
intervening State or its allies, could not have in itself justified the use of force as an exercise
of the right of self-defense.82
ii. Force authorized by the UNSC pursuant to Chapter VII UN Charter
Secondly, Article 39 UN Charter empowers the Security Council to make a determination
that a certain situation represents a threat to the peace, breach of the peace, or act of
aggression. Following such a determination, the UNSC is entitled under Article 42 UN Charter
to authorize the use of military force against the offending state. UN practice, particularly
during the 1990s, has established that even purely internal situations involving the
widespread violations of human rights or the existence of a humanitarian crisis, could
constitute threats to the international peace and security. It follows from these provisions
that for coercive action to be a permissible remedy for a humanitarian crisis, the Security
Council in pursuance of Chapter VII UN Charter must first determine that the gross violations
of human rights that are occurring, or are about to occur actually constitute a threat to
international peace and security. Thereafter, the UNSC can authorize an enforcement action
to prevent or halt those violations. In the absence of such approval from Security Council
and since no customary international law exists in relation to humanitarian intervention,
resort by other governments to military means for compelling a state not to perpetrate, or
81
C. C., JOYNER, “The Responsibility to Protect: Humanitarian Concern and the Lawfulness of Armed Intervention, Virginia Journal of International Law Association 2007, 701-703 82
V., LOWE, A., TZANAKOPOULOS , “Humanitarian Intervention”, MPEPIL 2011, p 9
40
even not to tolerate, human rights atrocities within its territory would constitute a breach of
Article 2(4) UN Charter. Accordingly, that situation would be inconsistent with international
law.
iii. Other eventual exceptions
Nonetheless besides these 2 exceptions, military enforcement action for humanitarian
purposes remains legally possible under certain circumstances, even without a prior
authorization from the UNSC.83 Thus, it is evident that intervention that has been consented
by the government of the target state remains legal, since there is no violation of its
sovereignty. The same can be said of humanitarian intervention undertaken by certain
regional organizations most notably the African Union. Article 4(h) of the Constitutive Act of
the AU authorizes the Member States to intervene in grave circumstances involving war
crimes, genocide and crimes against humanity in the countries who have signed up to the
treaty. The UNSC has on several occasions the ECOWAS humanitarian interventions in
Liberia and Sierra Leone ex post facto commanded, while armed operation were already
under way. Similarly, the UNSC has approved and authorized French action in the Central
African Republic. These instances indicate a practice of the UNSC to authorize, validate, or
ratify, forcible action retroactively.84 Finally, a last eventual exception relates to the
possibility of the UNGA to make recommendations on enforcement actions under the United
for Peace procedure, when the UNSC is unable to decide, provided that a 2/3 majority
backing is secured during the voting.
The reluctance to develop a general doctrine of unilateral humanitarian intervention can be
explained by a number of factors. Many smaller or less powerful states may fear endorsing a
doctrine that would give more power to larger states to intervene in their domestic affairs.
Even if states recognize that the Security Council may have too many inhibitions about using
force, they may fear that regional organizations such as NATO would have too few. All of the
permanent members have an interest in maintaining the importance of the Security Council
so that their veto remains potent Russia and China may fear that unilateral humanitarian
intervention might lead to interventions in what they perceive as their own domestic affairs,
83
J., PATTISON, Humanitarian Intervention and the Responsibility to Protect: Who Should Intervene?, Oxford, Oxford University Press, 2010, 45-48 84
V., LOWE, A., TZANAKOPOULOS , “Humanitarian Intervention”, MPEPIL 2011, p 7
41
such as Chechnya and Tibet. The NATO states may wish to be able to intervene in certain
cases without creating a general principle that could be used by other states to justify
intervention.⁸⁷ States may also fear that a right to intervene would gradually turn into a duty
to intervene or a ‘responsibility to protect’.85
In the face of mass atrocities, respecting the prohibition on unilateral uses of force seemed
to be a case of good law producing bad results, while creating an exception for unilateral
humanitarian intervention appeared to be an example of hard cases making bad law. But no
matter how exceptional and morally legitimate the coercive intervention for humanitarian
purposes may be, it will violate the rule prohibiting the use of force as long as long as the
relevant provisions of the UN Charter are not respected. In addition, such an exception
would be dangerous because they have the potential to erode collective security by creating
a precedent for bypassing the Security Council. Indeed, once states realize that they can
resort to force without facing censure, nothing is to stop them from acting likewise
situations in the future. For example, when the United States and United Kingdom were
unable to obtain a new Security Council resolution explicitly authorizing the use of force in
Iraq in 2003, they nonetheless claimed that their actions were legitimate.86
4. Sovereignty as Responsibility
Prior to the establishment of ICISS, the focus among policy makers was clearly on whether
it can ever legitimate to intervene in another state’s affairs. The terms of the debate were
shifted from the right to intervene to the responsibility to protect, enabling at last to find
common ground on what had been for decades a hugely divisive issue. Building on the
concept of “sovereignty as responsibility” developed in the 1990’s the UN special rapporteur
on internally displaced persons (IDP’s), the ICISS concluded that sovereignty was not only a
matter of control but also of responsibility. There is a dual responsibility for every state to
respect both the sovereignty of other state (external sovereignty) and the dignity and basic
human rights of the people within the state.87 Today, the doctrine of state sovereignty must
be interpreted in the context of the changing value systems of the international community,
85
R., ANTHEA, “Legality v Legitimacy: Can Uses of Force be illegal but Justified?” in ALSTON, P., E. MACDONALD (eds.), Human Rights, Intervention and the Use of Force, Oxford, Oxford University Press 2008, 196 86
R., ANTHEA, “Legality v Legitimacy: Can Uses of Force be illegal but Justified?” in ALSTON, P., E. MACDONALD (eds.), Human Rights, Intervention and the Use of Force, Oxford, Oxford University Press 2008, 182-183 87
ICISS Report, para 1.35
42
whereby sovereignty is increasingly viewed as hinging on a state’s responsibility to protect
its citizens. Sovereignty imposes on states to behave in accordance with certain minimum
standards vis-à-vis their own populations. From that perspective, R2P is not an adversary of
sovereignty, but its ally. The focus is no longer on the states’ duty to refrain from action and
intervention, but inversely on a possible mandate of an international response, should a
state not live up to its responsibility as sovereign.88 Therefore, a government can no longer
hide behind the shield of sovereignty, claiming non-intervention by other states in its
internal affairs, if it fails to protect the people under its jurisdiction from massive violations
of human rights. States that fail to protect their populations against serious crimes are
viewed as having effectively waived their national sovereignty and may not invoke
sovereignty as protection .It is this fundamental notion of sovereignty which lies at the heart
of the principle of the responsibility to protect.89
D. The International Community’s Acceptance of the Responsibility to Protect
This part will proceed from the 3 documents which are generally considered to have played
an important role in the development and conceptualization of the R2P, i.e. the 2001 report
of the ICISS, the report of the 2004 report of the High Level Panel and the 2005 World
Summit Outcome Document. Though these documents all made the promotion of the R2P,
they differ somehow on the exact scope, the conditions and the means of that principle.
1. The International Commission on Intervention and State Sovereignty
The report commissioned by the Government of Canada and produced in 2001 by the
International Commission on Intervention and State Sovereignty, seeks to lay out
alternatives to the deeply criticized “humanitarian interventions” of the 1990s which have
led to intense polemics and paralysis within the international system, particularly the United
Nations.90 The international community’s failure to prevent the humanitarian disaster in
Somalia, the genocides in Rwanda on the one hand and the unauthorized intervention in
Kosovo on the other have provided a clear indication that the tools, devices and thinking of
international relations need now to be comprehensively reassessed, in order to meet the
88
A. PETERS, “The Security Council’s Responsibility to Protect”, International Organization Law Review 2011, 3-4 89
M., PAYANDESH, With Great Powers Come Great Responsibility? The Concept of the Responsibility to protect within the Process of International Lawmaking, Yale Journal of International law 2010, 485-486 90
ICISS Report, para 1.7
43
foreseeable needs of the 21st century.91 In the view of the Commission, the issue at stake
was not making the world safe for big powers or trampling over the sovereign rights of small
ones, but delivering practical protection for ordinary people, at risk of their lives, because
their states are unwilling or unable to protect them.92
One of the major contributions of the ICISS report is its formulation of sovereignty as
responsibility. The concept of sovereignty signifies the legal identity of a state in
international law and in international relations, sovereign states are regarded as equal,
regardless of comparative size or wealth.93However, this is not to say that the authority of a
state is absolute. Internally, it is regulated by constitutional power sharing arrangements. In
addition, states also take on obligations as members of the international community. In
doing so, there is a necessary re-characterization from sovereignty as control to sovereignty
as responsibility in both internal functions and external duties. These and other international
legal obligations have created a benchmark for state conduct, changed national
infrastructures and are fostering the transition from a culture of sovereign impunity to a
culture of national and international accountability.94
Another key element in the ICISS report is the focus on the responsibility to protect and not
the right to intervene as justification for intervention with human protection purposes.95
State sovereignty implies responsibility, and the primary responsibility for the protection of
people lies with the state itself. However, where a population is suffering serious harm, as a
result of internal war, insurgency, repression or state failure, and the state in question is
unwilling or unable to halt or avert it, it becomes the responsibility of the international
community to act in its place.96 The ICISS Report has articulated the R2P around 3 core
elements: 1) the responsibility to prevent; 2) the responsibility to react and 3) the
responsibility to rebuild, posing a continuum of graduated policy instruments.97 Effective
prevention must address both the root causes and direct causes of internal conflict and
91
ICISS Report, para 2.2 92
ICISS Report, para 2.1 93
ICISS Report, para 2.7 94
ICISS Report, para 2.14 95
ICISS Report, para 2.29 96
ICISS Report, p xi 97
Report UNSG, Implementing the Responsibility to Protect, para. 9
44
other man-made crises putting populations at risk and depends on disparate actors working
together. Moreover, situations of compelling human need must be answered with
appropriate measures, which may include coercive measures like sanctions and international
prosecution, and in extreme cases military intervention. Particularly after military
intervention, there is a requirement to provide full assistance with recovery, reconstruction
and reconciliation, addressing the causes of the harm the intervention was designed to halt
or avert.98
The ICISS has also formulated criteria to guide the decision-making process about when and
how to intervene militarily. Military intervention for human protection purposes must be
regarded as an exceptional and extraordinary measure.99 It would only be justified to halt or
avert large scale loss of life, actual or apprehended with genocidal intent or not, which is the
product either of deliberate state action, or state neglect or inability to act, or a failed state
situation; or large scale ethnic cleansing, actual or apprehended, whether carried out by
killing, forced expulsion, acts of terror or rape. In the view of the Commission, conscience-
shocking situations such as acts defined by the provisions of the 1948 Genocide Convention,
the threat or occurrence of large-scale loss of life, diverse manifestations of ethnic cleansing,
crimes against humanity and violations of international humanitarian law, and situations of
state collapse and the resultant exposure of the population to mass starvation and civil war
fully justify military intervention for humanitarian protection.100 The criteria put forward by
the ICISS address both the legality and the legitimacy issues:101
- Right intention: The primary purpose of the intervention must be to halt or avert
human suffering.102
- Last resort: Every non-military option for the prevention or peaceful resolution of the
crisis must be explored, with reasonable grounds for believing lesser measures would
98
ICISS Report, p xi 99
ICISS Report, para 4.18 100
ICISS Report, para 4.32-4.43 101
G. EVANS, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institution 2008, 38-43 102
ICISS Report, para 4.33
45
not have succeeded.103 The responsibility to react can only be justified when the
responsibility to prevent has been fully discharged.104
- Proportional means: The scale, duration and intensity of the planned military
intervention should be the minimum necessary to secure the humanitarian objective
in question. All rules of humanitarian law must be strictly observed.105
- Reasonable prospects: There must be a reasonable chance of success in halting or
averting the suffering which has justified the intervention, with the consequences of
action not likely to be worse than the consequences of inaction.106
- Right Authority: There is no better or more appropriate body than the United
Nations Security Council to authorize military intervention for human protection
purposes. The task is not to find alternatives to the Security Council as a source of
authority, but to make the Security Council work better than it has. Security Council
authorization should in all cases be sought prior to any military intervention action
being carried out.107
In addition, the 5 Permanent Members of the Security Council should agree not to apply
their veto power, in matters where their vital state interests are not involved, to obstruct
the passage of resolutions authorizing military intervention for human protection purposes
for which there is otherwise majority support. Should the Security Council rejects a proposal
or fails to deal with it in a reasonable time, alternative options are: consideration of the
matter by the General Assembly in Emergency Special Session under the ‘Uniting for Peace’
procedure; and action within area of jurisdiction by regional or sub-regional organizations
under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the
Security Council.108
103
ICISS Report, p xii 104
ICISS Report, para 4.37 105
ICISS Report, para 4.39 106
ICISS Report, p xii 107
ICISS Report, p xii 108
ICISS Report, p xiii
46
2. The UN High Level Panel on Threat, Challenge and Change
The following step in the development of the principle of the responsibility to protect was
the work of the UN Secretary-General’s High Panel on Threats, Challenges and Change.109
The panel was established in late 2003 to recommend clear and practical measures for
ensuring effective collective action, based upon a rigorous analysis of future threats to peace
and security.110 The panel’s report followed a human security approach and made more than
100 recommendations on a wide range of issues. The report linked together poverty, disease
and environmental degradation with conflict, both within and between states, terrorism,
and proliferation of weapons of mass destruction, transnational organized crime and UN
structural reform. On the specific issue of the R2P, the Panel endorsed the emerging norm
that there is a collective international responsibility to protect, exercisable by the UNSC
authorizing military intervention as last resort, in the event of genocide and other large-scale
killing, ethnic cleansing or serious violation of humanitarian law which sovereign
governments have proved powerless or unwilling to prevent.111 Furthermore, the Panel has
elaborated on the 5 basic criteria of legitimacy for the use of force, drawing very directly on
the language in the ICISS report. On the issue of the legal authority for the use of force, the
Panel made clear that the task was not to find alternatives to the UNSC as source of
authority, but to make it work better.112
The High Level panel’s recommendations were finally by Secretary-General Annan in his own
report “In larger Freedom: Towards development, Security and Human Rights for All“ in
which he urged heads of state government to embrace the responsibility to protect as a
basis for collective action against genocide, ethnic cleansing and crimes against humanity,
and agree to act on this responsibility, recognizing that this responsibility lies first and
foremost with each individual state, whose duty it is to protect its population, but that if
national authorities are unwilling or unable to protect their citizens, then the responsibility
shift to the international community to use diplomatic, humanitarian and other methods to
109
High Level Panel on Threats, Challenges and Change, A more Secure World: Our Shared Responsibility, 2004 110
G. EVANS, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institution 2008, 43-50 111
High Level Panel on Threats, Challenges and Change, A more Secure World: Our Shared Responsibility, 2004, recommendation 55, p 106 112
High Level Panel on Threats, Challenges and Change, A more Secure World: Our Shared Responsibility, 2004, recommendation 53-57, p 106-107
47
help protect civilian populations, and that if such methods appear insufficient, the Security
Council may out of necessity decide to take action under the Charter, including enforcement
action, if so required.113
3. The 2005 World Summit Outcome Document
Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity 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. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, 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. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. 140. We fully support the mission of the Special Adviser of the Secretary-General on the Prevention of Genocide.
With the adoption of the World Summit Outcome document, the Heads of State and
Government gathering for the High-Level Plenary Meeting of the UN General Assembly have
unanimously affirmed that each individual State has the primary responsibility to protect its
populations from genocide, war crimes, ethnic cleansing and crimes against humanity. They
113
In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc A/59/2005, para 135
48
agreed, as well, that the international community should assist States in exercising that
responsibility and in building their protection capacities. When a State nevertheless was
manifestly failing to protect its population from the four specified crimes and violations, they
confirmed that the international community was prepared to take collective action in a
timely and decisive manner through the Security Council and in accordance with the Charter
of the United Nations.114
The World Summit was the culmination of a several-year process to reassess the role of the
United Nations in an ever-changing world on the occasion of its 60th Anniversary. While
earlier conceptual efforts were largely led by less-accountable commissions and groups, or
even individuals such as the Secretary-General himself, the so-called protection clause of
paragraphs 138-139 was the result of real diplomatic negotiations and interstate political
processes. Given the immense challenge of reconciling intervention for human protection
purposes and sovereignty, the adoption of the R2P amounted to a major political
breakthrough, as it provided a new framework for understanding and applying existing legal
obligations concerning genocide, crimes against humanity, war crimes and ethnic
cleansing.115 In addition, that the 2005 World Summit Outcome Document was endorsed by
the largest ever gathering of heads of state and government entails that the R2P carries
immense political weight.116
Contrary to the ICISS Report which refers to large scale loss of life, the World Summit
Outcome Document is limiting the scope for the application of the R2P to 4 specific crimes,
namely genocide, war crimes, ethnic cleansing and crimes against humanity. The rationale
behind this restriction is obviously is not to dilute the attempt to protect civilians against
massive savagery, but rather to reduce the possibility of abuse of the right to launch
humanitarian interventions.117
In addition to clarifying the scope of the R2P, the 2005 World Summit Outcome document
sheds the light on the relevant roles and responsibilities; all states have a primary
114
Report of the UNSG, Implementing the Responsibility to protect 115
C. R., MIKULASCHEK, “Actualizing the Responsibility to Protect: Report of the 43rd
Conference on the United Nations of the Next Decade”, Stanley Foundation 2009, 18-19 116
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 87 117
D., KUWALI, “The Conundrum of Conditions for Intervention under Article 4(h) of the African Union Act”, Africa Security Review 2008, 92
49
responsibility to protect their own populations, while the international community has a
responsibility to assist in fulfilling this primary responsibility. Should a state nonetheless
manifestly fail in exercising its responsibility to protect, the international community has the
responsibility to use whatever means it considers necessary and appropriate. Under the
current framework, more emphasis is placed on the international community assisting states
facing difficulties in implementing their responsibility to protect. The building of preventive
capability is also highly prioritized and when it comes to reaction, the use of reactive
measures falling short of military action is stressed. Finally, insistence is made on the central
role of the UNSC when it comes to making decisions on military enforcement measure.
However, unlike in the earlier conceptual efforts, the World Summit Outcome Document has
failed to integrate any criteria for the use of military force. 118
The language of the World Summit Outcome Document speaks about a duty borne of a
common humanity; a duty which must in appropriate circumstances receive precedence
over the all too often abused excuse of non-intervention on account of state sovereignty.
Therefore, there are reasonable grounds to believe that the 2005 agreement did not create
new binding norms as such. The protection clause can be characterized as a concept,
principle, evolving trend, political commitment or emerging moral norms which constitute
prima facie evidence of a developing international practice.119
Section III: The Evolution of a Doctrine
Since 2005, the United Nations has moved from the affirmation of the R2P principle to an
extensive discussion of its scope and substance and more recently towards turning promise
in to practice. This section will contemplate the major developments regarding the R2P at
the United Nations since 2005 before looking at the conceptual and normative dimension of
the R2P. Finally, the current trends and politics of the ongoing debates about the R2P will be
considered.
118
G. EVANS, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington DC, Brookings Institution 2008, 47-50 119
M., DU PLESSIS, “Chinese Arms Destined for Zimbabwe over South African Territory: The R2P Norm and the Role of Civil Society”, Africa Security Review 2008, 20
50
A. Key Developments on the Responsibility to Protect at the United Nations
1. UNSC Resolution 1674 on the Protection of Civilian
On 28 April 2006, the Security Council unanimously adopted Resolution 1674120 on the
Protection of Civilians in Armed Conflict. This resolution contains the historic first official
Security Council reference to the responsibility to protect: it reaffirms the provisions of
paragraphs 138 and 139 of the World Summit Outcome Document regarding the R2P. It also
indicates the Council’s readiness to address gross violations of human rights, as genocide
and mass crimes against humanity that may constitute threats to international peace and
security.
2. UNSC Resolution 1706 on Darfur
Because the government of Sudan has flagrantly disregarded its responsibility to protect the
people of Darfur, the alarm bells have been ringing for years for the international
community to take on the responsibility to protect Darfuri citizens from genocide and mass
atrocities. On 31 August 2006, UN Security Council passed Resolution 1706121 authorizing the
deployment of 17,300 UN peacekeeping troops to Darfur. Although the mandate met the
resistance of Khartoum which opposed its deployment, the resolution made explicit
reference to the responsibility to protect by reaffirming the provisions of Resolution 1674 on
the protection of civilians in armed conflict and the protection clause in the Summit
Outcome Document. Despite all evidence that the situation in Darfur transgressed the
threshold of inhumanity which triggers the subsidiary responsibility of the international
community, the international Community did not take sufficiently robust action to prevent
and combat mass atrocities.122
3. UNSC Resolution on Burma
On 12 January 2007, the UNSC met to discuss the situation in Burma. The members of the
Council voted on a draft resolution presented by the United Kingdom and the United States.
The peaceful resolution called for a cession of all attacks against minorities, access to
humanitarian organizations, cooperation with the International Labor Organization, political
dialogue and progress towards democracy, the release of all political prisoners and support
120
Resolution 1674 UNSC (April 28th, 2006), UN Doc S/Res/1674 (2006) 121
Resolution 1706 UNSC (August 31, 2006), Un Doc S/res/1706 (2006) 122
Humanity as the omega for sovereignty, p 524
51
for all UN "good offices' in Burma. However, China, Russia vetoed the resolution and South
Africa voted against, arguing that Burma did not pose a threat to peace and security in the
region, and that the internal affairs of the state did not have a place within the Security
Council. Instead, they suggested that situation in Burma should be taken up by the Human
Rights Council. Myanmar was, indeed faced with a series of grace challenges relating to
refugees, child labor, HIV/AIDS, human rights and drugs. But similar problems exist in many
other countries. There was therefore no instance of mass atrocities going on which could
justify the UNSC being seized of the matter.123 This confirms the narrow scope of the R2P
principle.
4. UN Secretary General’s Report on Implementing the Responsibility to Protect
Seeing how the 2005 World Outcome Document stressed that the General Assembly should
continue consideration of the Responsibility to Protect, this report by the Secretary General
entitled ‘Implementing the Responsibility to Protect’124, has been long awaited by Member
States and civil society organizations alike. After consultations with governments, UN
officials and input from civil society, Secretary-General Ban Ki-Moon released on 12 January
2009 the first comprehensive UN document on the R2P. The report clarifies how to
understand R2P and outlines measures and actors involved in rendering the norm
operational. While he recommended that the General Assembly meet to consider, how
Member States will take the 2005 World Summit commitment forward, the Secretary-
General has basically articulated the principle of R2P is articulated around three main
pillars:125
(1) The protection responsibilities of the State
Each individual state has the responsibility to protect its population from genocide,
war crimes, ethnic cleansing, and crimes against humanity, and their incitement.
(2) International assistance and capacity-building
123
International Coalition for the Responsibility to protect, Key Developments on the Responsibility to Protect at the United Nations 2005-2011, available at http://www.responsibilitytoprotect.org/ICRtoP%20Latest%20Developments%20at%20the%20UN%202011.pdf 124
Report UNSG, Implementing the Responsibility to Protect 125
UN Secretary General Report “Implementing the Responsibility to Protect” (January 12, 2009), UN Doc A/63/677 (2009), para 11. Herein after cited as: UNSG Report Implementing the Responsibility to Protect (2009)
52
The international community has the responsibility to encourage and help states to
exercise this responsibility and to help states build capacity to protect their
populations, as appropriate.
(3) Timely and decisive response
The international community has the responsibility to be prepared for collective
action, in a timely and decisive manner in accordance with the UN Charter, on a case-
by-case basis, and in cooperation with relevant regional organizations as appropriate,
should the above preventive means be inadequate and national authorities are
manifestly failing to protect their populations.
5. UNGA First Debate on the Responsibility to Protect
During General Assembly Debate on R2P started on 23, 24 and 28 July 2009 the delegates
demonstrated strong interest in the principle and made an important show of support for
implementing the 2005 commitment to prevent and halt mass atrocities. Governments
demonstrated that they were conscientiously considering the proposals in the Secretary-
General’s report and also raised important issues and recommendations for the General
Assembly, the Security Council, the UN departments, regional bodies and governments.
Many recognized the important role of civil society in preventing and reacting to these most
serious international violations.
6. UNSC Resolution 1984 on the Protection of Civilians
On 11 November 2009, by adopting Resolution 1894126, the Security Council has reaffirmed
its commitment to prevent the victimization of civilians in armed conflict and to end ongoing
violence against civilians around the world. This is the second resolution passed by the
Security Council on this topic and it recognizes that States have the primary responsibility to
protect their population and reaffirms the provisions in paragraph 138-139 regarding the
R2P, recognizing that sovereignty comes with the responsibility to protect populations from
mass atrocities, and that it is the responsibility of the international community to assist
national governments in fulfilling their protection obligations.
126
Resolution UNSC 1894 (November 11, 2009), UN Doc S/Res/1894 (2009)
53
7. General Assembly Dialogue on Early Warning, Assessment and the Responsibility to
Protect
The General Assembly held its second meeting focusing on the Responsibility to Protect on
August 9, 2010. The informal interactive dialogue saw the participation of 42 Member
States, 2 representatives from regional organizations, and 2 representatives from civil
society. Constructive questions and concerns were raised on how the UN system can best
gather and analyze information, develop policy options and translate them into early
engagement. The majority of States reaffirmed their support for the emerging R2P norm and
welcomed the Secretary General’s report on Early Warning, Assessment and the
Responsibility to Protect. In addition Member States called for the continued discussion on
the R2P in the General Assembly. The UN will take its next steps on the R2P later this year
with concrete proposals to be made by the SG on the creation of a joint office between the
Special Advisors for the Prevention of Genocide and for the Responsibility to Protect.
8. UNSC Resolution 1973 on Libya
On 17 March 2011, following a range of earlier attempts to implement peaceful measures,
such as diplomatic incentives, asset freezes, arms embargo, and ICC referral, the UN Security
Council adopted Resolution 1973.127 The resolution approves the imposition of a no-fly-zone,
calls for an immediate cease-fire and tightens sanctions on the Muammar Qaddafi regime in
Libya. This was a follow-up to Resolution 1970,128 which first called upon Libya’s
responsibility to protect by referring the situation to the ICC and imposing initial financial
sanctions as well as an arms embargo. Besides the enforcement of a no-fly-zone, the
language of Resolution 1973 also called for the use of all necessary measures to protect
civilians and civilian populated areas under threat or attack, while excluding any foreign
occupation force on the ground. The Resolution condemned the Libyan government for
failing to comply with international law and for allowing gross violations of human rights and
attacks that may amount to crimes against humanity. Five Member States, China, Russia,
Brazil, India and Germany abstained, allowing Resolution 1973 to pass without a veto. This
was likely due to the influence that regional organizations had in supporting stronger
127
Resolution 1973 UNSC (March 17, 2011), UN Doc S/Res/1973 (2011) 128
Resolution 1970 UNSC (February 26, 2011), UN Doc S/Res/1970 (2011)
54
measures, notably the African Union, Arab league and the Gulf Cooperation Council.129 The
ultimate adoption of a no-fly zone is the first time the Security Council has authorized a
military action to protect populations in a non-consenting state. That Member States
prioritized the protection of civilians from mass crimes reflects a historic endorsement of the
R2P principles agreed to at the 2005 World Summit.130
9. UNSC Resolution 1975 on Ivory Coast
In response to the escalating, post-election violence against the population of Côte d’Ivoire,
the UN Security Council on 30 March 2011, unanimously adopted Resolution 1975.131 The
Resolution condemned the gross human rights violations committed by supporters of both
Gbagbo and President Ouattara stating that the attacks currently taking place in Côte
d’Ivoire against the civilian population could amount to crimes against humanity. The
resolution cited the primary responsibility of each State to protect civilians, called for the
immediate transfer of power to Ouattara. Resolution 1975 mandated targeted sanctions
against Gbagbo and his close allies, while reaffirming the mandate of the United Nations
Operation in Côte d’Ivoire (UNOCI) to use all necessary means to protect life and property,
while preventing the use of heavy weapons. In an effort to protect the people of Côte
d’Ivoire from further atrocities, a military operation was launched by the UNOCI troops and
the French forces. After a final assault on the compound of the presidential palace, former
President Gbagbo was captured by Ouattara forces.132
B. The Conceptual and Normative Dimension of the Responsibility to Protect
As agreed by UN member States, the R2P rests on 3 equally important and non-sequential
pillars.133 First, there is the responsibility of states to protect its population from genocide,
war crimes, ethnic cleansing and crimes against humanity. Second, there is international
community’s duty to assist the state to fulfill its responsibility its responsibility to protect.
Third, there is the international community’s responsibility to take timely and decisive action
through peaceful diplomatic and humanitarian means and if that fails, other more forceful
129
BBC Documentary, Wars of Diplomacy Part I (10 May 2010) 130
A. PETERS, “The Security Council’s Responsibility to Protect”, International Organization Law Review 2011, 1 131
Resolution 1975 UNSC, (March 30,2011) 132
BBC Documentary, The Wars of Diplomacy Part II (17 May,2011) 133
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 84
55
means in a manner consistent with the UN Charter, in situations where a state has
manifestly failed to protect it population from mass atrocity crimes.
1. The First Pillar of the Responsibility to Protect: The Protection Responsibilities of the
State
This pillar reflects the enduring responsibility of the State to protect its populations, whether
nationals or not, from genocide, war crimes, ethnic cleansing and crimes against humanity,
and from their incitement.134 It was unambiguously set out in the paragraph 138 of the 2005
World Summit Outcome Document. That responsibility lies first and foremost with the State
as it derives both from the nature of State sovereignty and the pre-existing and continuing
legal obligations of States. Indeed, consistent with the duty of all States to fulfill their
common and recognized obligations under treaties and customary international law, the R2P
principle requires states to prevent and punish genocide, war crimes, crimes against
humanity and ethnic cleansing.135
2. The Second Pillar of the Responsibility to Protect: International Assistance and
capacity Building
The second pillar translates the commitment of the international community to assist States
in meeting those obligations. It was a novel introduction that at once expanded the
international community’s options for engagement beyond coercive crisis response, and
recognized the reality that governments are not the exclusive perpetrators of mass atrocity
crimes. It seeks to draw on the cooperation of Member States, regional and sub-regional
arrangements, civil society and the private sector, as well as on the institutional strengths
and comparative advantages of the United Nations system. In its final form, R2P provides the
logic and tools for the international community to engage flexibly in accordance with the UN
Charter across the full crisis continuum.136 It comprises 4 main elements: 1) encouraging
states meeting their pillar one responsibilities; 2) helping them to exercise this responsibility;
3) helping them to build their capacity to protect; 4) assisting state under stress before crises
and conflicts break out.137 Too often ignored by policymakers, pillar two is essential to
134
Report UNSG, Implementing the Responsibility to Protect, para. 11 135
E. C., LUCK, “The United Nations and the Responsibility to Protect”, The Stanley Foundation Policy Analysis Brief 2008, 4 136
The Stanley Foundation, The Funders Dialogue on the Responsibility to Protect, Stanley Foundation Policy Memo 2010, 2 137
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 94
56
forging a policy, procedure and practice that can be consistently applied and widely
supported.138
3. The Third Pillar of the Responsibility to Protect: Timely and Decisive Response
The third pillar refers to the responsibility of Member States to respond collectively in a
timely and decisive manner when a State is manifestly failing to provide protection in the
face of mass atrocities. Though widely discussed, pillar three is generally understood too
narrowly. The central value of the R2P lays in the emphasis on prevention and capacity-
building that counters the false impression that the R2P is equivalent to military
intervention. The merit of the R2P is to offer a new focus while drawing on existing
instruments established in the Chapters VI (pacific measures), VII (enforcement measures)
and VIII (regional arrangements) of the UN Charter. Either way, the key to success lies in an
early and flexible response, tailored to the specific needs of each situation. The process of
determining the best course of action, as well as of implementing it, must fully respect the
provisions, principles and purposes of the Charter.139Within the framework of R2P, the
Security Council may take robust action in order to protect populations from core crimes.
Robust action means economic and military sanctions. However, the principle of
proportionality forbids the Security Council to authorize any military intervention before
peaceful strategies have been exhausted; since the authorization for the force is only
admissible as a last resort.140
Interim Conclusion
Until very recently there has been no consensus at all on how the international community
should respond to these situations. The prevailing idea was that it was none of the world’s
business if a state put the lives of its citizens massively at risk. Even after World War II, with
the creation of the UN and the slogan of never again there was no generally accepted
principle in law to challenge the sacrosanct principle of state sovereignty. The end of the
cold war came with the hope that that state of mind could be changed. However, several
cases of conscience-shocking situations repeatedly arose, especially in Rwanda and in
Srebrenica. The failure of the international community to respond effectively in the face of
138
Report UNSG, Implementing the Responsibility to Protect, para. 11 139
Report UNSG, Implementing the Responsibility to Protect, para. 11 140
A. PETERS, “The Security Council’s Responsibility to Protect”, International Organization Law Review 2011, 9
57
widespread calamities and the NATO’s 1999 unilateral intervention in Kosovo has triggered a
very divisive debate among the member of the international community.
We have been able to demonstrate that the concept of sovereignty has sound legal basis in
international law, however, that sovereignty cannot be interpreted in absolute terms. The
emergence of IHL and IHRL impose certain limitations to the conduct of states vis-à-vis their
own populations. We have also discussed the issue of humanitarian intervention and we
came to the conclusion that the use of force for humanitarian purposes can only be
permissible under international law in very special circumstances.
- In case of self-defense, if the intervening state is responding to a humanitarian crisis
which also constitute an armed attack or an act of aggression
- With the authorization of the UNSC acting under chapter VII when the humanitarian
crises requiring intervention constitute a threat to the international peace and
security
- Following a recommendation by the UNGA acting pursuant the the special procedure
of the Uniting for Peace resolution
- In the case of a Regional organization, acting under Chapter VIII with the
authorization of the UNSC (be it ex post facto)
- With the consent of the target state
We have also demonstrated that no customary right of humanitarian intervention exists
under international law as it exists today. Although there is state practice supporting
humanitarian intervention, the element of opinio juris is clearly missing here.
We went on to discuss how thanks to the efforts of the ICISS the principle of responsibility
has emerged and how it get global acceptance by the international community at t the
occasion of the 2005 World Summit. The world leaders reaffirmed the primary responsibility
of each state to protect its citizens against genocide, war crime, ethic cleansing and crimes
against humanity; the responsibility of the international community to assist states in
fulfilling this primary responsibility; and the responsibility of the international community to
take timely and decisive action, in accordance with the UN Charter, when a state is
manifestly failing to protect its own population. The issue is not the ‘right’ of big states to
58
intervene, including by military means their weight around militarily, but the ‘responsibility’
of all states to protect their own people from atrocity crimes, and to assist others to do so by
all appropriate means. The core responsibility is that of the individual sovereign state itself,
and it is only if it is unable or unwilling to do so that the question arises of other states’
responsibility to assist or engage in some way. The core theme is not intervention but
protection.
59
Part II: Understanding the Responsibility to Protect
Section I: The Legal and Political Status of the Responsibility to Protect
The main purpose of this part is to understand what the R2P is all about. Firstly, the legal and
the political status of the R2P will be address before discussing very shortly some of the
major concerned and confusions which existed about the principle. We will first discuss the
scope and the limit of the R2P. We will then analyze the legal consequences arising from the
concept of genocide, war crimes, ethnic cleansing and crimes against humanity. The legal
obligation of state will be consider under the 4 crimes and will make the case that the
obligation of the international community is not of a legal nature.
A. The Scope and Limit of the Responsibility to Protect
1. The State of International Human Rights and Human Protection Law141
The concept of the responsibility to protect has its foundations in the post-World War II
establishment of standards of state conduct for human rights and humanitarian protection,
in the concept of human security and in the emerging practice of states, regional
organizations and the United Nations. As such, the principle of R2P sits at the intersection of
3 different legal regimes. The issues touching on the first 2 regimes covering the sovereign
equality on the one hand and the use of force and non-intervention on the other have
already been addressed. This chapter will now deal with the regime of the protection of
civilian which consists not only of IHRL, but also IHL, international criminal law and refugee
law.142 The rules making up the protection regime are so special because they are
fundamentally concerned with protecting individuals and not state’s borders. Since 1948,
the adoption of several salient international human rights instruments has established legal
benchmarks for state conduct and erected the global legal regime that mandates the
national and international protection for individual human rights.143 Human rights principles
are at the core foundation of the responsibility to protect, and these represent obligations
141
C. R., MIKULASCHEK, “Actualizing the Responsibility to Protect: Report of the 43rd
Conference on the United Nations of the Next Decade”, Stanley Foundation 2009, 11-12 142
J. M. WELSH, M., BANDA, International Law and the Responsibility to Protect: Clarifying or Expending State’s Responsibilities?, in ...p. 121 143
C. C., JOYNER, “The Responsibility to Protect: Humanitarian Concern and the Lawfulness of Armed Intervention, Virginia Journal of International Law Association 2007, 701-703
60
owed by each state to its citizens. The obligations reflected in the World Summit Outcome
Document are derived from well established rules and principles of customary and statutory
IHRL and IHL, and these are universally binding. The provisions on the R2P do not constitute
the sources of these obligations, but their reflection.144
It is commonly understood today that the way a stet treats its own population has now
become a matter of international concern. The conflicts the international community
witnessed during the 1990s provided the background for the emergence of the R2P. The
very idea of protecting populations was largely described as a response to the longstanding
discontent over the international community’s failure to take action in the face of large scale
human rights violations. But this quest for individual human protection has in fact started at
the end of World War II with the creation of the United Nations and the adoption of the UN
Charter which recognized conflict prevention and the protection of human rights and
fundamental freedoms among the purposes and principles of the newly created
organization.145 Articles 55 and 56 of the Charter obligate each UN member to take joint and
separate action to ensure the universal respect for, and observance of, human rights and
fundamental freedoms.
Furthermore, The Universal Declaration of Human Rights listed the respect of the rule of law
as a tool for the protection of human rights. Though at the time of its adoption the UDHR
was not recognized as creating legal obligations, it is today widely considered to have
acquired a customary law status, due to its huge influence over contemporary constitutional
norms.146 There is clearly a growing recognition that the concept of security must include
people as well as states. Human security means the security of the people – their physical
safety, their economic and social well-being, respect for their dignity and worth as human
beings, and the protection of their human rights and fundamental freedoms.147 However,
the R2P not destined to resolve all the human rights problems in the world. It only deals with
the most serious crimes of concern to the international community namely genocide, war
144
D., GIERYCZ, The Responsibility to Protect: A legal and Rights-based Perspective, in .. p 103 145
Art 1 (1) and 1(3) UN Charter 146
The UN Security Council and the Responsibility to Protect : Policy, Process and Practice, 39th
International Peace Institute Seminar 2010, 88 147
ICISS Report, para 2.21
61
crimes, crimes against humanity and ethnic cleansing.148 The attempts to apply the R2P to
other calamities such as climate change and global warming, natural disasters or HIV/AIDS
ultimately undermines the cause of R2P.149
2. Mass Atrocity Crimes framing the Scope of the Responsibility to Protect
The 2005 World Summit Outcome Document clearly identifies 4 categories of targeted
crimes for prevention and collective action under R2P: genocide, war crimes, ethnic
cleansing, and crimes against humanity. Before examining each of these categories of
crimes, we should understand what they mean as a group of crimes and how they can be
described succinctly as atrocity crimes.
Mass atrocity crimes evoke serious international legal consequences under all
circumstances. Genocide and crimes against humanity are always considered crimes,
whether in time of war or peace; neither immunities nor status of limitations are applicable;
they fall under the principle of universal jurisdiction with an obligation of local trial or
extradition; they involve increased obligations on states to cooperate and are not to be
subject of amnesty.150 In addition, given the unique set of circumstances where the R2P is
designed to be applied and based on the case law of international tribunals, it is possible to
identify certain characteristics which define mass atrocity crimes.151
1. The crime must be of significant magnitude, meaning that its commission is widespread or systematic or occurs as part of a large scale plan. In short, the crime must meet the substantiality test developed by the international and hybrid criminal tribunals. 2. The crime may occur in time of war, or in time of peace, or in time of violent societal upheaval of some organized scope, and may be either international or non-international in character. 3. The crime must be identifiable in conventional international criminal law as a act of genocide, a violation of the laws and customs of war, a crime against humanity, or the emerging crime of ethnic cleansing.
148
D., GIERYCZ, The Responsibility to Protect: A legal and Rights-based Perspective, in .. p 111 149
C. R., MIKULASCHEK, “Actualizing the Responsibility to Protect: Report of the 43rd
Conference on the United Nations of the Next Decade”, Stanley Foundation 2009, 21-22 150
D., GIERYCZ, The Responsibility to Protect: A legal and Rights-based Perspective, in .. p 111 151
D. SCHEFFER, “Atrocity Crimes Framing the Responsibility to Protect”, Case W. Res. J. Int’L L., 2007-08, 117-119
62
4. The crime must have been led, in its execution, by a ruling or otherwise powerful elite in society (including rebel, insurgent, or terrorist leaders) who planned the commission of the crime or were the leading perpetrators of the crime. 5. The law applicable to such crimes, while it may impose state responsibility and even remedies against states, is also regarded under customary international law as holding individuals criminally liable, thus enabling the prosecution of such individuals before a court duly constituted for such purpose.
Quite a number of high-profile atrocity crime cases have been prosecuted, and individual
perpetrators have been convicted and sentenced before various tribunals. The identification
of genocide, war crimes, ethnic cleansing and crimes against humanity as the premise for
prevention or action under R2P derives much of its legitimacy from the jurisprudence of the
international and hybrid criminal tribunals created during the 1990’s, such as the
International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), the
Special Court for Sierra Leone, and the permanent International Criminal Court (ICC). During
that decade and into the twenty-first century, individual perpetrators were prosecuted for
mass atrocity crimes committed in the Balkans, Rwanda, Sierra Leone, the Democratic
Republic of the Congo, Uganda, Sudan (Darfur), Kosovo, and Timor-Leste. Even the horrific
crimes committed during the Khmer Rouge tyranny of 1975 to 1979 were finally set for
prosecution before the Extraordinary Chambers in the Courts of Cambodia.152 Moreover,
those crimes had been codified as the subject matter jurisdiction of the ICC which would
carry forth the ever-expanding mission of individual criminal responsibility for such crimes
into the future.
a) Atrocity Crimes
For the purpose of understanding what justifies the implementation of R2P, the 2005 World
Summit Outcome Document identifies the four crimes of genocide, war crimes, ethnic
cleansing, and crimes against humanity. Each of these crimes has been extensively examined
and defined by international tribunals in their constitutional statutes and jurisprudence. The
Rome Statute of the ICC, in particular, provides the most sophisticated definitions for such
crimes, drawn from treaty law and customary international law as both existed in 1998.153
152
D. SCHEFFER, “Atrocity Crimes Framing the Responsibility to Protect”, Case W. Res. J. Int’L L., 2007-08, 117-119 153
Articles 6-8 Rome Statute of the ICC
63
Following the decision of the ICJ in the Barcelona Traction case and since the rules
proscribing the commission of mass atrocity crimes are widely considered to be peremptory
norms of international law, their violation may ultimately give rise to erga omnes obligations
which are owed to the international community as a whole.154 At the time when the
international community was making clear that persons who commit or order the
commission of gross human rights violations could be held individually responsible before
international tribunals with criminal jurisdiction, it became increasingly difficult to
perpetuate a global system that opposes claims of sovereignty and non-intervention in the
face of aberrant atrocities committed by governments against their own people.155 In its
report, the ICISS revealed this disconnect in logic between the judicial activism of the 1990’s
and the continued incapacity of the international community to respond effectively to
atrocity crimes against civilian populations. The logical next step was to connect atrocity
crimes to the principle R2P, and this is precisely what the UN General Assembly did in 2005
when it crafted the somewhat narrow basis in atrocity crimes for R2P.
Although international human rights and humanitarian law instruments provide clear
definitions of genocide, war crimes, ethnic cleansing and crimes against humanity, there is
no consensus as to the magnitude beyond which a situation ceases essentially to be an
internal matter. The experience from the Rwandan genocide and the Darfur crisis, clearly
attest to the fact that valuable time may be expended on debating labels for these ominous
events, rather than taking action.156 The condition of “manifestly failing to protect” under
the third pillar may be prone to subjective interpretation. The international community,
when seeking intervention, has to make a convincing case to the effect that the violations of
human rights within the target state have reached such a magnitude that they “shock the
conscience of humanity”. It is true that every life counts and should be protected. Therefore,
it is not the number of casualties that matters, but in the words of Wheeler and Kindiki, a
154
ICJ, Barcelona Traction case, (Belgium v. Spain) (Second Phase), ICJ Reports 1970, 3 [33] 155
D. SCHEFFER, “Atrocity Crimes Framing the Responsibility to Protect”, Case W. Res. J. Int’L L., 2007-08,, 116-117 156
D., KUWALI, “The Conundrum of Conditions for Intervention under Article 4(h) of the African Union Act”, Africa Security Review 2008, 92-93
64
state of “supreme humanitarian emergency”, when the only hope of saving lives depends on
the outsider coming to the rescue.157
In relations to the legal responsibilities of states, the R2P principle contains 2 broad sets of
commitments. The first involves the pillar I responsibilities owed by a state toward its own
population which are deeply embedded in existing international law and largely considered
to reflect peremptory norms of international law. The second set of commitments relate to
the pillars II and III responsibilities of the international community to take measures to assist
states in trouble or to prevent mass atrocities and protect vulnerable populations when the
host state is manifestly failing to do so. These commitments are legally much less well
defined.
b) The Primary responsibility of Individual States Toward their Own Populations
i. Genocide
The legal foundation for genocide was laid during the 1945 Nuremberg and other post-war
prosecutions, resulting quickly in the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide. It notably states that genocide is a crime whether committed in a
time of peace or a time of war. According to the ICJ Advisory Opinion on the Reservation to
the Genocide Convention, the provisions of the Genocide Convention express pre-existing
international customary law and obligations erga omnes.158 In addition, the Court went on to
recognize that the prohibition of genocide constitutes a jus cogens norm which is therefore
binding upon all States, regardless of their ratification of signature of the Convention.159 The
Convention strictly obliges all state parties to both punish and prevent this international
crime.160 One of the issues with respect to that provision, which remains unclear, is the
precise scope of the state’s responsibility to prevent genocide and to punish the
perpetrators. In its judgment on the Genocide Convention case of February 2007, the ICJ held
the view that the Article 1 obligation to prevent genocide requires that states employ all
157
N. J., WHEELER, Saving Strangers: Humanitarian Intervention in International Society, Oxford University Press, Oxford 2000, 34; K. KINDIKI, Humanitarian Interventions in Africa: The Role of International Organizations, Doctoral Thesis, University of Pretoria, Pretoria 2005, 285 158
ICJ, Advisory Opinion on the Reservations to the Genocide Convention, ICJ Reports 1951, p 23 et seq 159
ICJ, Case Concerning the Armed Activities on the Territory of the Congo, (Democratic Republic of Congo v. Rwanda), 2002, para 64 160
Article 1 Genocide Convention
65
means which are reasonably available to them.161 Though the Court did not find direct
participation by the Serbian Government in the commission of genocide acts at Srebrenica in
July 1995, it has nonetheless established that the Serbian Government had violated Article 1
of the Genocide Convention, when it failed to prevent the genocide at Srebrenica by not
using its influence with the Bosnian Serb forces, and when it failed to punish the crime of
genocide by not apprehending and transferring to the ICTY indicted fugitives such as Ratko
Mladid and Radovan Karadžid.162 Therefore, this duty of prevention is only binding as to the
conduct and clearly involves positive legal obligations under the first pillar of the R2P.
The Court makes a clear distinction between the criminal act of genocide and the
international responsibility of state to prevent and punish genocide. Failure to meet the
latter obligation is not a criminal act in its self, but a breach of an international obligation
which can trigger the international responsibility of the State concerned.163 On this basis, the
ICJ switched from a criminal standard of proof “beyond reasonable doubt” to proof at “high
level of certainty” when considering the obligations of a state under the Genocide
Convention.164 This judgment may well be the starting point for the enforcement of the R2P.
Indeed, the obligation to prevent genocide as an erga omnes obligation raises the question
of general obligation of states to prevent the commission of acts contrary to certain norm of
general international law. The obligation to prevent genocide could ultimately form the basis
for providing guidance on the existence and the scope of a responsibility to protect.165
ii. War crimes
Similarly, international humanitarian law (IHL) provides a strong legal foundation for the
responsibility of states to protect their populations from war crimes. These crimes were first
codified by the four Geneva Conventions of 1949, which evolved out of even earlier efforts
by major powers to constrain the effects of war in the 1899 and 1907 Hague Conventions.
Together, these codified the Laws and Customs of War. Since the first Hague Convention in
161
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 91 162
ICJ, Case concerning the Application of the of the Convention on the Prevention and Punishment of the Crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), February 26, 2007, 91, 138 163
ICJ, Case concerning the Application of the of the Convention on the Prevention and Punishment of the Crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), February 26, 2007, 164
ICJ, Case concerning the Application of the of the Convention on the Prevention and Punishment of the Crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), February 26, 2007, para 210 165
S, EEKERHARD, “A bird in Hand is Worth Two in the Bush”, p 51
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1899, the international community has increasingly strengthened the view that those laws
are intended to limit gross human rights violations during wartime, and that violation of the
laws of war does in fact entail both an individual and a collective criminal liability.166 The
Geneva Conventions of 1949 and the 1977 Protocols I and II codify legal principles under
which individual soldiers, of whatever rank or responsibility on the field of battle, can be
held responsible for crimes against all people who are not actively participating in armed
conflict, namely soldiers who are hors combat and against civilians.167 Non-combatants must
be protected and treated humanely in all circumstances, with no adverse distinction.
On the one hand, IHL proscribes serious violations of human rights and humanitarian law
such as willful killing, torture or inhuman treatment, rape, forced prostitution, ill-treatment
of detainees and the enlisting and use of child soldiers. On the other hand, IHL restricts and
limits the methods, means and tactics of warfare. Accordingly, certain crimes merely refer to
violations of the conduct of war or the proportionality of means employed for military
purposes. International human protection law prohibits all means and methods of warfare
that cause superfluous injury or unnecessary loss of life or suffering in relation to the
anticipated military advantage, and that fail to discriminate between armed parties and non-
combatants. Moreover, it is commonly agreed that these basic standards apply to both
international and intra-state armed conflict and that the prohibition of grave breaches of
these rules is a peremptory rule with jus cogens status.168 The positive duties of State set out
by IHL extend beyond the obligation to refrain from committing war crimes, to include the
duty to punish the perpetrators of violations, to take care of the sick and wounded to
cooperate with the ICRC on certain matters and to take steps for the protection of the
civilian population.169 The Rome Statute of the ICC provides jurisdiction over war crimes in
particular when committed on a widespread and systematic basis.170 This supposes that a
significant number of war crimes affecting a reasonably large number of victims or potential
166
S. WILLS, “Military Intervention on Behalf of Vulnerable People: The Legal Responsibility of States and Organizations Engaged In Peace Support Operations”, Journal of Conflict and Security La 2004, 412 167
Art 3 Geneva Convention Relative to the Protection of Civilian Persons in Time of War 168
ICJ, Advisory Opinion on the Legality of the Threat and Use of Nuclear Weapons ICJ Reports (1996)226, p 257 169
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 92 170
Article 8 Rome Statute
67
victims would be central to assess whether the war crimes in question are indeed atrocity
crimes capable of triggering the application of the R2P.171
iii. Crimes against Humanity
The notion of crimes against humanity has existed in customary international law for more
than half a century. Today, crimes against humanity are deemed to be part of international
jus cogens and therefore constitute non-derogable rules of international law.172 This term
was used in the 1907 Hague Convention preamble, which itself was based on a body of
presumptive values and principles deemed to constitute the laws of humanity, as reflected
throughout history in different cultures. The central notion of this preamble was to denote a
global body of shared values, upon which the more precise and narrow laws of war and
listings of war crimes were to be based.
The first time that crimes against humanity were established in positive international law
was in the Nuremberg Charter. Since then there has been no international convention on
crimes against humanity, although this category of crimes has been included in the statutes
of the ICC 173 and the tribunals for Rwanda and the former Yugoslavia. Similar to the
obligations related to the protection from genocide and war crimes, states must ensure that
their organs and officials do not commit crimes against humanity. Beyond that, states must
not instruct, direct nor exercise overall control over groups or individuals to commit crimes
against humanity, even outside their jurisdiction.174 In addition, states must not aid or assist
other states to commit crimes against humanity through the supplying of weapons in the
knowledge that they are being used for that purpose. Unlike genocide, crimes against
humanity do not require proof of intent to extinguish an identified racial, ethnic, or religious
group, but rather focus on widespread and systematic attempts to target a civilian
population with illicit forms of violence, including violent acts referred to as “grave breaches
of the laws of war”. The crimes enumerated under this provision are not only part of
171
D. SCHEFFER, “Atrocity Crimes Framing the Responsibility to Protect”, Case W. Res. J. Int’L L., 2007-08, 133 172
OREKELASHVILI, Peremptory Norms of International Law 173
Art 7, § 1 Rome Statute of the ICC 174
S, EKKERHARD, “A bird in Hand is Worth Two in the Bush”, p 49
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customary international law but they also constitute jus cogens norms which require states
to refrain from committing and to investigate them and punish the perpetrators.175
iv. Ethnic Cleansing
The term ethnic cleansing has no immediate legal significance. However, different practices
constituting the act of ethnic cleansing, such as the destruction of houses, crops or wells,
widespread sexual violence or killings, can be qualified as grave breaches of the Geneva
Conventions, war crimes, and crimes against humanity and in certain circumstances even
genocide.176 The breaches of international humanitarian law closely aligned to the practice
of ethnic cleansing are deportation and forcible transfer.177 In its simplest terms, ethnic
cleansing is the discriminatory assault on an identifiable group within the civilian population
for the purpose of removing that group permanently from a territory sought by the
perpetrators of the assault. The means used to achieve the aims of the assault can range
across the entire spectrum of crimes against humanity, but must have at their core the crime
of persecution.178
It appears clearly from this description that the state’s responsibility to protect its
population from genocide, war crimes, crimes against humanity and ethnic cleansing is
embedded in customary international law and constitutes jus cogens.179 Therefore, the first
pillar of the R2P reflects already existing legal obligations that states owe to their own
populations and to the populations of countries where they deploy their armed forces into
and which fall under their effective control.180
c) The Responsibility of the International Community
This section will discuss the second set of responsibilities under pillar II and III of the R2P.
The international community has to assist the state to fulfill its responsibility to protect
(pillar 2) and to take timely and decisive measures when a state is manifestly failing to
protect its population from mass atrocities (pillar 3). It is evident from the previous
description that the obligations to prevent and punish mass atrocity crimes under the first
175
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 92-93 176
S, EKKERHARD, “A bird in Hand is Worth Two in the Bush”, p 49 177
Art 7, § 1 Rome Statute of the ICC 178
D. SCHEFFER, “Atrocity Crimes Framing the Responsibility to Protect”, Case W. Res. J. Int’L L., 2007-08, 129 179
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 94 180
ICJ, Case Concerning the Armed Activities in the Territory of the Congo, para. 217
69
pillar are rooted in existing rules of international law. The same cannot be said for the pillars
2 and 3 obligations which are legally less well defined.
The second pillar of the R2P identifies a number of obligations for states to encourage and
assist others in order to ensure compliance with the law. It follows from the Genocide
Convention that states are obliged to take all reasonable measures to prevent and punish
the crime of genocide. According to the ICJ, this obligation is not limited to military
intervention within the confines of existing international law. While states are not obliged to
use coercive measures or to actually succeed in preventing genocide, they must be able to
show that when furnished with influence and information, they have taken the initiative and
attempted to prevent genocide.181 At the very least, the international community’s pillar II
responsibility to encourage states to fulfill their responsibility to protect includes the legal
obligation to take positive action to prevent genocide on the part of states that have
influence and information.182 IHL also places a wide range of pillar II obligations on the
international community with respect to ensuring compliance and preventing war crimes
from occurring. Following the provisions of the 1949 Geneva Conventions, the High
Contracting Parties are under the obligation to respect and ensure respect for the law.183
The “travaux préparatoires” indicate the intention was to ensure that the parties do
everything they could to ensure universal compliance with the humanitarian principles
underlying the conventions. Consequently, states with the capacity to do so, have a legal
obligations to provide assistance to others to this end.184
Now turning to pillar 3 of the R2P which encapsulates the international community’s
responsibility to take timely and decisive actions in situations where a host state is
manifestly failing to protect its population, certain commentators including Louise Harbor
have argued that the R2P created an additional obligation for the international community
to protect civilian populations from mass atrocity crimes. They consider the R2P to be a new
separate international norm that ultimately rested upon the obligation to prevent and
181
ICJ, Case concerning the Application of the application of the Convention on the Prevention and Punishment of the Crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), February 26, 2007, para. 425 182
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 94 183
Common Article 1 of 1949 Geneva Conventions 184
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 94
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punish the crimes of genocide. Accordingly, the R2P discarded the notion of the right to
intervene by configuring a permanent duty to protect individuals against abusive behavior.
All states were now burdened with the responsibility to take action and could no longer
claim a discretionary right to intervene.185 Three recent developments in international law
seem to support this position: 1) the identification of state’s responsibilities by the ILC; 2)
the emerging idea of legal responsibilities of international organizations and 3) the judgment
of the ICJ on the application of the Genocide Convention.
i. ILC’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts
This concept of a collective obligation of the international community receives some support
from the ILC Articles on States Responsibility. Indeed Article 41 ARSIWA determines that
where a responsible state makes a serious breach of a peremptory norm of international
law, other states have an obligation to cooperate to bring an end to that serious breach
through lawful means. Furthermore, states must not recognize as lawful any situation
created by the serious breach in question, neither formally nor through any act from which
recognition would be implicit.186 The norms on the prohibition of war crimes and crimes
against humanity as well as on the protection of fundamental human rights are largely
considered to fall under the status of jus cogens. This was confirmed by the ICJ in its
Advisory Opinion on the Construction of the Wall where it maintained that these were
obligations erga omnes, the respect of which was in the legal interest of all states.187
Therefore, the international community seems to have the duty to cooperate to end the
illegal situation resulting from the serious violation of the prohibition of mass atrocity
crimes, by using lawful means.188 However, whether Article 41 ARSIWA extends to a positive
obligation for states to take coercive measures through the UNSC when other peaceful
means are inadequate remains contested. To assume that such an obligation exists would be
an extremely progressive interpretation of international law.189
185
See L. HARBOUR, “The Responsibility to Protect as a Duty of Care in International Law and Practice”, Review of International Studies 2008, 186
ILC Draft Articles 40 and 41, A/CN.4/L.600, August 2000 187
ICJ, Legality of the Construction of a Wall on the Palestinian Territory, Advisory Opinion, ICJ Reports (2004), para. 158 188
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 97 189
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 97
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ii. The Legal Responsibilities of International Organizations
In addition to its draft articles on the responsibility of states, the ILC has also started to
develop draft articles on the responsibility of international organizations. According to Draft
Article 8, international organizations should also be held legally accountable for violations of
their international obligations. If it was assumed that international law requires states and
other entities to prevent genocide, and that the UN had been in position to prevent it,
failure to act would have represented a breach of a legal obligation.190 The UN has famously
recognized its failure to prevent the Rwandan genocide as a failure of the whole UN system.
The ILC draft articles suggest the possibility that this failure may have been legal in nature.
But once again, one can doubt whether this interpretation is likely to be affirmed by state
practice.
iii. ICJ’s Judgment on the Application of the Genocide Convention (Bosnia Herzegovina v. Serbia
and Montenegro)
It has been suggested that the principle of R2P taken in combination with the ruling of the
ICJ in the Genocide case establishes a legal duty to intervene on the part of the UNSC and its
permanent members especially.191 This duty to prevent genocide is widely understood to be
a principle of customary international law. However, according to the ICJ, while states are
not obliged to succeed in their efforts to prevent genocide, they must employ all means
which are reasonably available to them to do so. Since the measures to end genocide must
be consistent with international law, the recourse to the use of military means will only be
contemplated in case of self-defense or provided the express approval of the UNSC is
granted.192 Under these circumstances, it is unlikely that each individual state has a
responsibility to intervene militarily to end a situation of genocide. The UNSC has definitely
the legal power to authorize armed intervention whenever it identifies a threat to the
international peace and security. In addition, the permanent members of the UNSC certainly
have the military capabilities to intervene to halt genocide. Therefore, such an armed
intervention may well fall within the scope of the reasonably available measures for the
permanent members of the UNSC.193 Though this reasoning is relying on a very liberal
interpretation of the law, it is still possible to imagine future instances whereby a victim
190
A/CN.4/553, para. 10 191
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 96 192
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 98 193
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 99
72
states might bring the permanent members of the UNSC before the ICJ for failing to take
reasonably available measures to prevent genocide. Arguably, the inaction of the Security
Council in the face of genocide, war crimes, crimes against humanity and ethnic cleansing
could trigger some kind of right or even duty of member states to protest, but it is difficult to
imagine how non-compliance of a political body could practically be challenged. The wording
of the World Summit Outcome Document is hardly precise enough to allow holding
members of the UNSC accountable for their inaction. Instead the requirement of manifest
failure may be used as a mean to challenge the legality and the timing of collective action by
the international community.194
With no agreement on the objective criteria for the establishment of manifest failure and
the requirement of collective action, it is difficult to require the Security Council to take
actions. Art 39 and 40 of the UN Charter provides for the requirements and limits of
collective action against a member state. The issue that needs to be discussed here is
whether past military interventions and peace operations frequently deployed by the United
Nations Security Council to stop mass atrocities would create an international practice that
could qualify as a general practice accepted as law. The least that can be said is that the
practice of the UNSC on these provisions has led to controversy about the lawfulness of the
use of armed force to prevent or halt massive violations of human rights. 195 There is still no
consensus among member states to recognize such interventions as a general exception to
the prohibition laid down in Article 2(4) of the Charter. Subsequently, the risk for a split
between legality and legitimacy will remain in cases where the Security Council refuses to
stop violations of human rights and humanitarian law on the basis of Article 39 and 42 UN
Charter. In so far as the Security Council has established a consistent practice to consider
internal conflict as a threat to the international peace and security that can give rise to
chapter VII enforcement action, it could build the application of the R2P on its practice that a
threat to the peace can be considered in cases of mass atrocities, provided that there is
somehow a link with an armed conflict or other destabilization of the security situation in a
given country.196
194
S, EKKERHARD, “A bird in Hand is Worth Two in the Bush”, p 51-54 195
Article 2(4) para. 53, in SIMMA, The Charter of the United Nations 196
S, EKKERHARD, “A bird in Hand is Worth Two in the Bush” 51-54
73
B. The Legal Nature of the Responsibility to Protect
The history of failure to prevent mass atrocity crimes during the last 60 years,
notwithstanding the applicable peremptory norms of international customary law to prevent
and punish such crimes, suggests that not much would be added as such by an additional
legal norm. Furthermore, there are grounds to doubt whether the R2P by its nature can be
considered a legally binding norm. The World Summit Outcome Document which formalized
the responsibility to protect was endorsed by a resolution of the General Assembly and is
therefore a non-binding recommendation. As such, resolutions of the UNGA often function
as a starting point for discussion on establishing international law.197 It follows from Article
38 Statute of the ICJ that UNGA resolutions are not enumerated among the sources of
international law which includes treaties, custom and general principles of law. Though
UNGA resolutions do not create new rules of customary international law by themselves,
they can constitute evidence of it or contribute to its formation, if accompanied by general
practice an opinio juris. According to the ICJ in its Advisory Opinion on the Use of Nuclear
Weapons, UNGA resolutions can provide evidence for the existence of a certain rule or the
emergence of opinion juris.198 In very rare cases, states might have had the clear intention to
lay down a legal provision in a resolution of the UNGA. However, those exceptional
circumstances could only be considered if those states with particular interests in the issue
agreed to the rule in question.199 It turns out that a review of the negotiation history of the
World Summit Outcome Document does contradict such an assumption. When they
negotiated the paragraphs on the R2P, member states had actually no intention to create a
new legal obligation.200 In addition, according to the ICJ in the North Sea Continental Shelf
case, even though the formation of human rights and humanitarian law through customary
law will always be challenged by the violation of the rule in question, at least state practice
should evidence the general recognition of a legal obligation.201 Yet again, little evidence can
be found in the subsequent practice of the UNGA and the UNSC to support the existence of
197
Art 10 in B., SIMMA, The Charter of the United nations, para 43-54 198
ICJ, Advisory Opinion on the Legality of the Threat or the Use of Nuclear Weapons, ICJ Reports 1996, p 254 199
Art 10 in B., SIMMA, The Charter of the United nations, para 57 200
S, EKKERHARD, “A bird in Hand is Worth Two in the Bush” 27-33 201
ICJ, North Sea Continental Shelf case, ICJ Reports 1969, p 43
74
an exceptional intention on the part of the member states to establish a new binding
norm.202
Therefore, the principle of R2P is not a legal one. Nonetheless it is based on, and reconfirms,
pre-existing international norms. The existence of legal norms labeling genocide, war crimes,
ethnic cleansing and crimes against humanity as international crimes cannot be called into
question. In this respect, the R2P does nothing more than restating the positive binding
obligations enshrined in the Genocide Convention, the 1949 Geneva Conventions and the
Additional Protocols, the UN Charter, the body of international human right and
humanitarian law as well as in UN Security Council’s resolutions.203 The R2P is therefore best
understood as a political commitment to act upon shared moral beliefs much of which is
embedded in already existing international law.204 If the R2P is to have any added value, the
merits of this principle lie in the potential to build the framework for targeted action as a
viable political option for the United Nations in order to protect civilians from those
exceptionally grave violations of human rights and humanitarian law which fall under the
jurisdiction of the ICC.205 The R2P is all about securing enough political will to take difficult
action that could avert another Rwanda or Srebrenica from happening elsewhere. It seeks to
raise the political costs of failing to act or blocking Security Council initiatives in situations
involving mass atrocities.206
Section II: Some Major Concerns about the R2P
While R2P was accepted unanimously by heads of state at the World Summit in 2005,
skepticism about R2P remains among some member states, this appears to relate less to the
basic principles of the responsibility to protect than to fears over how the concept might be
applied in real crises. These worries are most pronounced with regard to the coercive element
of pillar II and II of the R2P. Three distinct issues are at the heart of these worries. First, some
states fear that the great powers could abuse the Responsibility to Protect. Second, there are
202
S., EKKERHARD, The Emperor New Cloths? – The United Nations and the Implementation of the Responsibility to Protect, 48-56 203
The Responsibility to protect and International Law, 1-8 204
A., BELLAMY, R., REIKE, The Responsibility to Protect and International Law in…, p 83 205
S, EKKERHARD, “A bird in Hand is Worth Two in the Bush”, 54 206
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (rapporteur), Report from the 39
th International
Peace Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 23
75
concerns that the United Nations Security Council may apply this concept selectively. Third, a
number of states are apprehensive that the scope of the responsibility could be expanded
beyond genocide, war crimes, ethnic cleansing, and crimes against humanity at some point in
the future.
First, many states fear that R2P could be abused by powerful states as justification for
interventions that serve their political interests. This suspicion clearly indicates the need to
root R2P in the framework of the UN Charter, which bars unilateral military action except in
self-defense.207 Second, some states also fear that the responsibility to protect, though
universal in theory, will be applied selectively in practice. Great powers and their allies may
be able to use their leverage to prevent timely and decisive action by the Security Council in
the event of their failure to protect their own populations. This raises the question of
whether there are situations where the international community has an obligation to take
action. However, one thing that the R2P principle has achieved is to raise the political costs
for perpetrating mass atrocities and obstructing effort of the international community to
take action in the face of widespread calamities. In addition, the UNSG has urged the
Permanente Members of the Security Council to show some constrain in using their veto
power in situations where a state is manifestly failing to live up to its obligations to protect
its citizens. In the event that the debates within the Security Council offer no chance of
success, the member states seeking to take action can always refer the matter to the UNGA
under the Uniting for Peace special procedure.208 Finally, there is a broad understanding
that the R2P only applies to genocide, war crimes, ethnic cleansing and crimes against
humanity. Trying to turn the R2P into a principle designed to human rights and human
security would dilute its conceptual clarity and jeopardize political support by many UN
member states.209
207
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (rapporteur), Report from the 39
th International
Peace Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 23-24 208
UNSG Report on Implementing the Responsibility to Protect (January 12th
, 2009), UN Doc A/63/677, para 11 209
E., LUCK, “Taking Stock and Looking Ahead- Implementing the Responsibility to Protect”, DA FAVORITA PAPERS 2010, 62
76
Interim Conclusion
We have seen that the principle of R2P is only designed to apply in very exceptional
circumstances involving genocide, war crimes, ethnic cleansing and crimes against humanity.
Therefore de R2P is deeply rooted in international law and as such it creates no new legal
obligation for states or for the international community. However, it is possible to see a
difference between the nature of the obligations of states under the Pillar of the R2P and
the obligations of the international community under Pillar II and II of the principle. The
responsibility for state is a legal one and the R2P here is only reaffirming the already existing
obligation of states under customary and statutory international law. A failure to comply can
trigger the responsibility of state for an internationally wrongful act under the provision of
the ARSIWA and the criminal prosecution against the perpetrators of mass atrocity crimes.
On the other hand, the responsibility of the international community is not of a legal nature.
Given the negotiating history and the language of the 2005 World Summit Outcome
Document, the obligation of the international community under the R2P must be considered
as a political or moral commitment to take timely and decisive action in accordance with
international law when a state is manifestly failing to exercise its primary responsibility to
protect its population.
77
Part III: Operationalizing the Responsibility to Protect
Now that we have seen what the R2P is all about and the kind of situation it has been
designed to address the fundamental question is how to translate the principle into concrete
action. The 2005 World Summit Document made it clear that the responses of the
international community in cases of mass atrocities must be in accordance with international
law. The failure of the international community to respond in a timely and effective manner
to situations of systematic and gross human rights violations had raised disturbing questions
both about political will and about UN capacity.210 Since 1990, the international community
has come to rely more heavily on the combined strength of the various mechanisms
designed to prevent crimes against humanity and genocide. In addition to humanitarian
intervention, other mechanisms include: the creation of international criminal tribunals, the
progressive development of international humanitarian law, the expanded jurisdiction of
domestic courts to cover violations of international humanitarian law, the development of
the political will not to tolerate such crimes, and the evolution of U.N. institutions and
mechanisms specifically designed to target the prevention of these crimes.211 In this last
part, we will focus on the role that the United Nations (Section I) and the African Union
(Section II) can play in preventing the occurrence of mass atrocity crimes.
Section I: The Role of the United Nations in Implementing the
Responsibility to Protect
The provisions on the UN Charter provide an answer to the question which United Nations
organs should take action on behalf of the international Community when it comes to
fulfilling the R2P. The implementation of the R2P falls indeed within the prerogatives of
multiple bodies of the UN.212 In the following we will successively look at the role of the
UNSC, the UNGA, and the UN human architecture. With respect to the Security Council we
will look at how the principle of R2P relates to the primary responsibility of the UNSC for the
maintenance of international peace and security. 210
E. C., LUCK, “The United Nations and the Responsibility to Protect”, The Stanley Foundation Policy Analysis Brief 2008, 2 211
M. E, STEWART, P. R, WILLIAM, “Humanitarian Intervention: The New Missing Link in the Fight to Prevent Crimes Against Humanity and Genocide”, Case Western Reserve Journal of International Law 2007-08, 100-103 212
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (eds.), Report from the 39
th International Peace
Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 25
78
A. The Role of the Security Council
The UNSC can play a very crucial role in the implementation of both pillar 2 and 3 of the R2P.
The principle of R2P was linked to article 24 UN Charter which entrusts the UNSC with
primary responsibility for the maintenance of international peace and security and in
carrying out its duties under this responsibility the Security Council acts on their behalf.
Pursuant to Article 25 UN Charter, the UNSC is bound to respect the purposes and principles
of the Charter and in their turns, the Member States agree to accept and carry out its
decisions. The broad powers of the Security Council are provided for in Chapters VI, VII and
VIII of the UN Charter and the UNSC should make use of the full range of measures under
the UN Charter, as appropriate to ensure an early and flexible response adapted to the
specific circumstances of each particular case. Under the second pillar, it can resort to non-
coercive means to provide protection to the populations victimized by mass atrocities. In
addition, should the peaceful means be inadequate and the national authorities are
manifestly failing to live up to their obligations to protect, the UNSC must be prepared to
take coercive collective action under the third pillar.213
1. Non-Coercive Actions Encouraging States to Exercise their Responsibility to Protect
The principle of R2P requires the international community to encourage and help states to
protect their populations. For this purpose, the UNSC can take non-coercive actions under
Chapter VI UN Charter to encourage state to exercise their responsibility to protect. These
measures all fall under the second pillar of the R2P and include mandating a peace operation
in support of the security reform, the establishing effective judicial authorities and the
disarming, demobilizing and reintegrating processes in post-conflict countries. Moreover,
the UNSC has adopted a number of resolutions on children and armed conflict which created
sophisticated mechanisms to monitor and influence the conduct of government and
insurgency movement around the world.214
2. Timely and Decisive Collective Action through the Security Council
The UNSC can adopt two different types of measures under the third pillar of the R2P.
213
2005 World Summit Outcome Document, para 139 214
UNSC Resolution 1612 (July 16, 2005), UN Doc S/RES//1612 (2005); UNSC Resolution 1882 (August 4, 2009),
UN Doc S/RES/1882 (2009).
79
a) Non-coercive Measures
First of all, it can rely on a range of no-coercive means to afford protection to the
populations affected by mass atrocities. This can by deploying peacekeeping operations with
civilian protection mandates, by conducting investigations into past abuses or by
diplomatically engaging the parties in the conflict under chapter VI of the UN Charter.
b) Coercive Measures
Secondly, the Security Council can also resort to coercive action such as binding sanctions
and the use of force. According to the UNSG, timely and decisive response comes into play
when 2 conditions are met; namely when a state is manifestly failing to fulfill its R2P
obligations and preventive engagement by the international community are not capable of
averting the ongoing mass atrocities. In addition, such a course of action has to be in
accordance with international law.215 The Security Council does not require prior referral by
any other United Nations organ to take collective action if it determines that a situation
involving genocide, war crimes, ethnic cleansing and crimes against humanity constitutes a
threat to international peace and security. At the same time and by virtue of Article 39 UN
Charter, the Security Council may only take action in pursuit of the international
community’s responsibility to protect when a situation involving mass atrocity amounts to a
present threat to international peace and security, or whose continuation is likely to
endanger the maintenance of international peace and security.216 In this respect, military
action to protect populations from mass atrocities must be a measure of last resort.217 It
follows from Article 42 UN Charter that the use of military force should only be permissible
when the UNSC considers that peaceful means would be inadequate or have proved to be
inadequate to resolve an unfolding emergency situation.
i. Decisive Collective Action against mass Atrocities
A decisive response to gross and systematic violations of human rights consists in a variety of
measures, instruments and strategies which must be used in a robust way. The concept of
robustness of usually linked to the composition, equipment and mandate of armed forces,
215
UNSG Report on Implementing the Responsibility to Protect, para 49 216
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (eds.), Report from the 39
th International Peace
Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 36 217
UNSG Remark to the General Assembly on the Responsibility to Protect, (July 21st
, 2009), UN Doc SG/SM/12374, 2009.
80
but it also extends to political decision makers. In this particular context, this means having
clear-sighted view of what is required to influence the behavior of perpetrators of mass
atrocities, to make clear choices on a strategy that can seriously confront the worst
abuses.218 The UNSC needs to adopt a clear objective and a coherent strategy when it takes
collective action in severe crisis situation. In this regard, the protection of civilian
populations should neither be considered an objective as such nor a strategy for any
deployment of military force. Not only should the UNSC seek consensus on objectives and
strategy but the UNSG needs to ensure unity of purpose between the military command and
the political leadership of UN peace operation.
Another way for the UNSC to take decisive action against perpetrators of mass atrocities
consists in the timely imposition of sanctions. In the recent years, sanctions have become
increasingly sophisticated tools to compel recalcitrant leaders and states and send timely
warning of possible tougher measures if mass atrocities persist. The Security Council can
now consider a whole range of sanctions including diplomatic sanctions against states and
other targeted sanctions against individuals such as the freezing of financial assets; trade
restrictions on arms, security equipment, energy and luxury goods, restrictions on the
provision of military or police/internal security services; travel bans and the denial of
international travel to discourage further violence and abuse.219 Although they can obviously
be criticized from political or moral perspective as inappropriate and ineffective, from an
international legal perspective Security Council resolutions imposing sanctions rest on very
firm ground. It follows from Article 25 UN Charter that all UN members have undertaken to
carry out Security Council resolutions when these are in accordance with the Charter.
Furthermore, Member States have accepted that their obligations to implement resolutions
of the UNSC under the UN Charter have priority over their other international obligations.220
The decisiveness of the international community’s response ultimately depends on the
political will of both the UNSC and its regional counter parts to make credible use of the
218
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (rapporteur), Report from the 39
th International
Peace Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 36 219
P., WALLESTEEN, C., STAIBANO, M., ERIKSSON (eds.) Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Options, Uppsala, Uppsala University Department of Peace and Conflict Research 2003 220
Article 103 UN Charter
81
incentives, deterrent power and punishment capabilities available as well as of all states to
support the collective effort by supplying troops and financial resources.221
ii. Timely Collective Action against Mass Atrocities
In addition to decisive action, the UNSC must also be able to respond timely to mass
atrocities in order to prevent further escalation and avoid the need to take stronger action at
a later stage. However, the necessity of timely reaction can sometimes jeopardize the
ongoing peace negotiations. The ensuing debate between the partisans of measures under
Chapter VII UN Charter and those pleading for more negotiations has often led to
considerable delays in the decision making of the UNSC. This has particularly been the case
in Darfur. Even when the UNSC takes timely decisions in situations involving mass atrocity
crimes, the international community faces major challenges in implementing these
resolutions in a timely manner. For instance, the MINURCAT is still struggling with a lack of
logistic capabilities to fulfill its mandate more than 2 years following its establishment. This
kind of situation is extremely damaging for the image of the UN as an effective and reliable
provider of civilian protection. One of the main reasons for delays in implementing UNSC’s
resolutions is the considerable difficulty of fielding enough troops for new peace operations.
Developed states remain particularly hesitant to contribute troops and police forces to UN
peace operations. In the conclusion of the Brahimi Report, the Panel of the UN on Peace
Operations had recommended that complex peacekeeping operations should fully deploy
within 90 days of the adoption of the UNSC’s decision.222 Another important factor also
causing delay in the deployment of blue helmets is the fact that some host countries are
reluctant to receive peacekeepers on their territory.
3. The Use of Force and the Protection of civilians
Ever since the first resolution on the protection of civilian populations in armed conflict in
1999,223 the UNSC has actively been involved with this issue. In 4 thematic resolutions, the
221
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (eds.), Report from the 39
th International Peace
Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 36 222
UN, Report of the Panel of the United Nations on Peace Operations, UN Doc A/55/305-s/200/809, (August 17, 2000), para 58. Herein after cited as the Brahimi Report 223
UNSC Resolution 1265 (September 17, 1999), UN Doc S/Res/1265 (1999)
82
Security Council has laid out a comprehensive agenda in this respect.224 In addition, the
UNSG has prepared several reports on the issue which together contained about 100
recommendations, many of which were implemented by the Security Council.225 At the same
time, the UNSC has adopted specific resolutions on the protection of children and women in
armed conflicts.226 The widespread use of sexual and other gender-based violence against
women as well as the enrolment of child soldiers prompted the UNSC to create innovative
frameworks for the protection of these 2 particularly vulnerable groups.227 This evolving
agenda on the protection of civilian populations encompasses a remarkable repertoire of
measures ranging from ensuring compliance with IHL by warring factions to facilitation of
humanitarian aid by peacekeepers. They include also accountability for serious violations
against civilians, unhindered humanitarian access to civilians in armed conflict, direct
protection by UN peace operations, post-traumatic treatment, human rights monitoring, and
advocacy.228
The Security Council needs not only to ensure that all civilian protection mandates for United
Nations peace operations are clear, credible, and achievable, but they should also be
matched by appropriate resources. Complex mandates for multidimensional peace
operations should also indicate whether the mission should prioritize civilian protection or
other tasks. And peace operations need to choose their civilian protection strategy
accordingly. The issue of protection for civilian protection is closely linked to the notion of
impartiality as one of the founding principle of peacekeeping. Often in the past, impartiality
was mistakenly equated with neutrality vis-à-vis the conflict parties irrespective of their
behavior. The Brahimi Report was clear in its conclusion that nothing has been more
224
UNSC Resolution 1265 (September 17, 1999), UN Doc S/Res/1265 (1999); UNSC Resolution 1296 (April 19, 2000), UN Doc S/Res/1296 (2000); UNSC Resolution 1674 (April 28,2006), UN Doc S/res/1674 (2006); UNSC Resolution 1738, (December 23, 2006), UN Doc S/Res/1738 (2006) 225
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (eds.), Report from the 39
th International Peace
Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 44 226 On children and armed conflicts: UNSC Resolution 1612 (July 26, 2005), UN Doc. S/RES/1612 (2005); UNSC
Resolution 1820 (June 19, 2008), UN Doc. S/RES/1820 (2008); UNSC Resolution 1882 (August 4, 2009), UN Doc. S/RES/1882 (2009); on women, peace and security: UNSC Resolution 1820 (October 19, 2008), UN Doc. S/RES/1820 (2008); UNSC Resolution 1888 (30 September 2009), UN Doc. S/RES/1888 (2009); UNSC Resolution 1889 (October 5, 2009), UN Doc. S/RES/1889 (2009). 227
M., RISHMAWI, “The Responsibility to Protect and Protection of Civilian Populations: The Human Rights Story”, DA FAVORITAS PAPERS 2010, 92-96 228
UNSG Report on Implementing the Responsibility to Protect (January 12th
, 2009), UN Doc A/63/677
83
damaging for the image and credibility of the UN than invoking neutrality as an excuse for
inaction by peacekeepers in the face of massive slaughter.229 Impartiality must not lead to
UN peace operations to afford equal treatment to all parties when one of them is engaging
in genocide, war crimes, and crimes against humanity or ethnic cleansing. Therefore, an
understanding of impartiality in the sense of the commitment to objectively observe and
respect the mandates as well as the principles of the UN Charter would certainly be more
appropriate. However attaining a consensus on that point within the UN is very unlikely, as
long as states contributing troops are not willing to accept the risks of casualties on behalf of
a civilian population mandate.230
In a situation of unfolding mass atrocities, UN peacekeeping may not always be the best way
to restore civilian protection, as establishing a mission from scratch could take too much
time to ensure effective protection of the population. Sometimes, it can be quelled only by
the swift arrival of combat-ready brigades operating outside the UN chain of command, and
not built from scratch as a UN peacekeeping force must be. Until the African Standby Force
and the EU’s battle groups are fully operational and tested in the field, only a relatively small
number of countries have the capacity to swiftly deploy a robust enforcement mission in a
hostile environment. Such governments and regional organizations must take a hard look at
their will and capacity to quickly deploy to fill the gap before peacekeepers arrive.231
4. The Problem of the Political Will
Ultimately, even the best early-warning mechanisms and assessments cannot substitute for
the lack of political will of national, regional, and international institutions to live up to their
responsibility to protect. Too often as in the case of Rwanda, accurate assessments of
imminent or ongoing gross violations of human rights were available to the Security Council
as well as in major capitals, but the required political will was missing for effective crisis
prevention and timely and decisive collective response among key decision makers.232 Mass
229
UN, BRAHIMI Report, p. xi and para 48-55 230
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (eds.), Report from the 39
th International Peace
Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 47 231
S., RICE, “Keynote Address to the 39th
International Peace Institute Seminar”, DA FAVORITA PAPERS 2010, 50-57 232
UN, Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda (December 15, 2009), UN Doc S/1999/12, 37-38
84
atrocity situations often generate strong popular support for international engagement to
protect the victims, and the inability of the international community to protect victims gives
rise to widely felt indignation in many parts of the world. But there is often a huge gap
between popular expectations for active engagement by the international community in
preventing and ending mass atrocities and popular knowledge of how these god intentions
can be translated in concrete and effective action. Indeed, the national parliamentarians
who have to allocate the funds and authorize the deployment of national contingents for
peace operations often do not have a clear picture of the rationale for such engagement in
foreign lands. More outreach by the UN institutions, the civil society could mitigate this
information-expectations gap and allows national authorities to take effective measures. On
July 15, 2010, the US Senate passed the Dodd-Frank Wall Street Reform and Consumer
Protection Act.233 A key provision in the bill will require companies to disclose whether they
use minerals from the Democratic Republic of Congo or neighboring countries. Companies
will have to detail the measures they have taken to avoid sourcing tin, tungsten tantalum
and gold from armed groups operating n the eastern of the Congo. The new law has the
potential to cut the source of funding that allowed rebel groups to terrorize communities,
use sexual violence as weapons and cause millions of deaths.234
5. The Use of the Veto Power by the Permanent Members of the Security Council
The veto power of the permanent Security Council members has often been used to prevent
international censure for illegal acts by great powers and their allies, and the veto could
prove an obstacle to the uniform application of the third pillar of R2P in all conflict areas.
The procedural requirement of Article 27(3) UN Charter which crystallizes the unanimity rule
among the 5 Permanent Members of the UNSC is considered the legal basis for the use of
veto power.235 According to the ICJ in the Namibia Advisory Opinion, non-procedural
decisions of the Security Council shall be made by an affirmative vote of 9 members
including the concurring votes of the 5 permanent members. While this appears to require
233
Dodd-Frank Wall Street Reform and Consumer Protection, Act, H.R. 4173 111th
Congress 2009-2010)
234 H., STEMPLE, “Obama Signs Financial Reform Legislation”, Jurist Legal News and Research 2010, available at
http://jurist.org/paperchase/2010/07/obama-signs-financial-reform-legislation.php 235
A. Peters, “The Security Council’s Responsibility to Protect”, International Organizations Law Review 2011, 18
85
the affirmative votes of all 5 permanent members, in practice, the Security Council has
consistently interpreted abstentions by permanent members as not amounting to a veto.236
The protection clause of the 2005 World Summit Outcome Document contains no legally
binding criteria according to which the UNSC is supposed to resort to action. The criteria
advanced by the ICISS and the High level Panel on Threat, Challenge and change for the
legitimized used of force were ultimately not accepted by the member states.237 Therefore,
there is nothing such as an abusive or illegal use of veto power under international law and
the fact that the veto could be used to frustrate the majority will of the Security Council was
evident at the time the power was created. If a permanent member uses the veto because it
believes force would be inappropriate, that is precisely the role for which the veto was
intended in the first place.238 In situation where lives of civilian populations are massively at
risk, it can be argued that though not strictly illegal, the use of the veto to oppose collective
intervention by the UNSC may at most be illegitimate.239
The purpose of the R2P is not to find alternative to the authority of the Security Council, but
to make it work better. In his recent report, the Secretary-General urged the permanent
members of the Security Council to refrain from employing or threatening to employ the
veto in situations where states are manifestly failing to protect their populations, and to
reach a mutual understanding to that effect.240 It remains doubtful whether the permanent
members of the Security Council will reach an understanding on not using the veto in
situations involving genocide, war crimes, ethnic cleansing and crimes against humanity in
the near future. However, the argument has already been made that one of the added value
of the principle of R2P is precisely to raise the political costs of obstructing action by the
236
ICJ, Advisory Opinion on the Legal Consequences of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, 16 at 22, para 22 237 ICISS, The Responsibility to Protect, 2001, para 6.21: when action is needed to stop or avert a significant
humanitarian crisis, and when a permanent member of the Security Council does not claim its vital interests to be involved, it should not use the veto to obstruct the passage of what would otherwise be a majority resolution; High Level Panel, para 256: The High-level Panel Report of 2004 had asked “the permanent members, in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses. 238
R., ANTHEA, “Legality v Legitimacy: Can Uses of Force be illegal but Justified?” in ALSTON, P., E. MACDONALD (eds.), Human Rights, Intervention and the Use of Force, Oxford, Oxford University Press 2008, 186 239
R., ANTHEA, “Legality v Legitimacy: Can Uses of Force be illegal but Justified?” in ALSTON, P., E. MACDONALD (eds.), Human Rights, Intervention and the Use of Force, Oxford, Oxford University Press 2008, 206 240
UNSG Report on Implementing the Responsibility to Protect (January 12th
, 2009), UN Doc A/63/677, para 61
86
UNSC, by casting a veto that prevents timely and decisive collective action in the face of a
mass atrocity situation.241 Ultimately, if a veto cast in the context of mass atrocities prevents
the Council from living up to its responsibility to protect, the qualified majority of Council
members could make use of the “Uniting for Peace” procedure so the General Assembly can
make recommendations for timely and decisive action.242
6. Early Engagement and Preventive Diplomacy by the Security Council
The UN Charter provides the UNSC with a broad mandate for early engagement and
preventive diplomacy. Pursuant to Article 34 UN Charter, the Security Council may
investigate any dispute, or any situation which might lead to international friction or give
rise to dispute. The role of the Security Council in implementation of the responsibility to
protect should therefore be seen in a broader context and is not necessarily confined to
authorizing collective response in the last dramatic stage of a conflict. During the last twenty
years international mediation and diplomacy, backed by a readiness to use other tools, have
been among the most effective ways to prevent and halt violence. At the UN, innovations
like mediation standby teams are an important start, but these teams remain underutilized
and need more resources.243
It is necessary to emphasize the important role that individual member states can play in this
respect. In a recent statement, the UNSG has praised the steps announced by the United
States to strengthen their capacity to prevent genocide and other mass atrocities. The
Secretary-General has been encouraged by other important initiatives as well. Under a
responsibility to protect framework, Costa Rica, Denmark and Ghana have established a
network of focal points in Member State capitals for the prevention and halting of mass
atrocities. Argentina, Switzerland, and Tanzania have convened a series of regional
conferences on the prevention of genocide.244 On August 4th, 2011, President Obama issued
a Presidential Study Directive on Mass Atrocities barring war criminal and human rights
violators to enter the United States. Under the new proclamation, which took effect
241
E., LUCK, “Taking Stock and Looking Ahead- Implementing the Responsibility to Protect”, DA FAVORITA PAPERS 2010, 66 242
UNSG Report on Implementing the Responsibility to Protect (January 12th
, 2009), UN Doc A/63/677, para 11 243
S., RICE, “Keynote Address to the 39th
International Peace Institute Seminar”, DA FAVORITA PAPERS 2010, 54 244
UN, Statement Attributable to the Spokesperson for the Secretary-General on Important Initiatives to Help Prevent genocide and Other mass Atrocities, August 8, 2011, available at http://www.un.org/apps/sg/sgstats.asp?nid=5451
87
immediately, the Secretary of State determines which criminals or violators will be allowed
into the US.245 In addition, President Obama in commissioning the Atrocities Prevention
Board, a panel assisting in deterring genocidal violence, which will begin work within 6
months, explained the purposes and goals of the proclamation. By institutionalizing the
coordination of atrocity prevention, we can ensure: (1) that our national security apparatus
recognizes and is responsive to early indicators of potential atrocities; (2) that departments
and agencies develop and implement comprehensive atrocity prevention and response
strategies in a manner that allows "red flags" and dissent to be raised to decision makers; (3)
that we increase the capacity and develop doctrine for our foreign service, armed services,
development professionals, and other actors to engage in the full spectrum of smart
prevention activities; and (4) that we are optimally positioned to work with our allies in
order to ensure that the burdens of atrocity prevention and response are appropriately
shared. The president also called for administration officials to present within 100 days a
comprehensive, National Security Advisor-led interagency evaluation of the measures
available for the prevention of mass atrocities.246
B. The Role of the United Nations General Assembly
The UNGA has played a very central in implementing the R2P. Not only do considerations on
development of international standards belong in the General Assembly, but it can move the
R2P forward by asking and debating the right questions. In this respect, the debate held in
the summer of 2010 following the UNSG report on “implementing the Responsibility to
Protect” is very significant. In addition, pursuant to Articles 10-14 UN Charter, the General
Assembly may make a wide range of recommendations related to the second pillar of the
R2P.247 And even with respect to the third pillar responsibilities, should the UNSC fails to
take collective action in a timely and decisive manner and when national authorities are
manifestly failing to protect their populations from mass atrocities, the General Assembly
can consider appropriate measures such as fact-finding mediations, non-binding sanctions or
245
Presidential Study Directive on Mass Atrocities/PSD-10, (August 4th
, 2011), available at http://www.whitehouse.gov/the-press-office/2011/08/04/presidential-study-directive-mass-atrocities 246
C., MORRIS, “Obama Bars War Criminals and Human Rights Violators from Entering the US”, Jurist Legal News and Research 2011, available at http://jurist.org/paperchase/2011/08/obama-bars-war-criminals-rights-violators-from-entering-us.php 247
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (eds.), Report from the 39
th International Peace
Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 26
88
the deployment of peace operations under the “Uniting for Peace” procedure.248 The lack of
Security Council authorization cannot be the final word on the issue of legality of an
intervention on humanitarian grounds. In the Certain Expenses Advisory Opinion, the ICJ has
repeatedly stated that the UNSC has the primary but not exclusive responsibility for the
maintenance or restoration of international peace and security.249 In the Wall Advisory
Opinion, the Court went on to confirm that the prohibition of simultaneous action by the
UNSC and the UNGA has been superseded by consistent state practice.250 Pursuant to Article
14 UN Charter, the General Assembly has in the 1950 claimed a subsidiary responsibility with
regard to the international peace and Security. Under the Uniting for Peace resolution, the
UNGA has thus established a special procedure through which to respond to threats to the
peace in cases where the Security Council is prevented from acting because of the use of the
veto power. According to section A of the Uniting for Peace resolution, where the Security
Council, because of lack of unanimity of the permanent members, fails to exercise its
primary responsibility for the maintenance of international peace and security the General
Assembly shall seize itself of the matter. However, the language of the resolution also clearly
reveals that the General Assembly cannot be a full substitute for the Security Council. The
UNGA can indeed only make recommendations in the sense of pronouncements devoid of
any binding legal force.251 Therefore, in the event that the Security Council cannot act, States
arguing in favor of timely and decisive action pursuant to the international community’s
responsibility to protect may take the issue to the General Assembly. The uses of its veto
power by a member of the UNSC self for merely national interests can certainly not be a
justification for individual member states to take the matter on their own hand by launching
unilateral action. The World summit Document is particularly clear on this point; the
measures taken by the international community in response to a R2P crisis must be in
accordance with international law. Coercive measures falling under chapter VII must be
authorized by the Security Council or at least recommended by the General Assembly
following the United for peace procedure.252
248
UNGA Resolution 377 (V) Uniting for Peace, (November 3, 1950), UN Doc A/Res/377(V) 249
Advisory Opinion on the Certain Expenses of the United Nations, p 163 250
ICJ, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004 p 136 at para 27-28 251
C. TOMUSCHAT, “Uniting for Peace”, United Nations Audio Visual Library of International Law 2008, 1-6 252
UNSG Report on Implementing the Responsibility to Protect, UN Doc A/63/677, (January 12, 2009), para 11
89
C. The UN Human Rights Machinery
The human rights architecture of the United Nations has a considerable potential in the
implementation of the responsibility to protect, especially with regard to the second pillar. A
network of special rapporteurs and the human rights treaty monitoring bodies have
advanced respect for human rights, which is an essential element of responsible sovereignty,
by supporting national human rights institutions and helping national authorities resolve
crises peacefully.253 The field presence by the Office of the High Commissioner for Human
Rights has been making valuable contributions to this objective for several decades. All the
public reports coming from these field missions can provide broader information which
would otherwise be rarely available to the UN bodies.254 The Human Rights Council has the
potential of sharpening its focus as a forum for considering ways to encourage states to
meet their obligations relating to the R2P and to monitor their performance in this regard.
Through balanced and credible action, it can scrutinize human rights records around the
world and cast a spotlight on the worst abuses. Therefore, further empowering the
international human rights architecture could help strengthen global norms that condemn
mass atrocities, and assist states in building national capabilities for the protection of human
rights and the prevention of crimes and violations relating to the R2P.255 In the context of
early warning and assessment, investigations on whether certain human rights violations
were committed can also be conducted by experts in UN human rights mechanisms and
commissions of inquiry. The UN human rights machinery is therefore particularly well placed
to assess the facts on the ground and if necessary alert the Security Council of ongoing gross
human rights violations. Their reports provide first hand information which is often used
more by NGO’s than by the UN system.256
253
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (eds.), Report from the 39
th International Peace
Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 26-28 254
D. GIERYCZ, The Responsibility to protect: A Legal and Right-based Perspective” in A. J. BELLAMY, S.E. DAVIS, L.., GLANVILLe (eds.), The Responsibility to Protect and International Law, Konjnklijke Brill NV, Leiden 2011, 113-116 255
UNSG Report on Implementing the Responsibility to Protect (January 12th
, 2009), UN Doc A/63/677, para 16 256
C. MIKULASCHEK, “The United Nations Security Council and the Responsibility to Protect: Policy, Process and Practice in H., WINKLER, T, ROD-LARSEN, C., MIKULASCHEK (eds.), Report from the 39
th International Peace
Institute Vienna Seminar on Peacemaking and Peacekeeping”, DA FAVORITAS PAPERS 2010, 33
90
Section III: Role of the African Union in Preventing Conflicts and Human
Rights Abuses
We have already established that the principle of R2P is a restatement of the positive
binding obligations of states to protect their citizens from mass atrocity crimes as well as of
the collective responsibility to the international community to prevent mass atrocity crimes.
Covering fifty-three countries on the African continent, the African Union is a universally
recognized Chapter VIII body with the purpose of maintaining regional peace and security. In
its Constitutive Act reference is made to the promotion of peace, security, and stability on
the continent as one of its objectives, and principles.257 Under Chapter VIII of the Charter,
regional organizations are allowed to deal with matters relating to the maintenance of
international peace and security; these obligations are therefore particularly relevant to
Africa, especially in the face of crises such as those in Darfur, parts of the Democratic
Republic of Congo (DRC) and Somalia. The AU is the obvious vehicle through which the R2P
principle might be given effect on the continent.258
A. Sovereignty and Non-Interference in Africa: From the OAU to the AU
While the Organization of African Unity emphasized non-intervention, its successor, the AU,
has stressed that Africans can no longer be indifferent to mass atrocity crimes unfolding on
the continent. In 2000, five years before the 2005 World Summit endorsed the R2P, Article
4(h) AU Constitutive Act provided for the unprecedented right of the AU to intervene in a
Member State pursuant to a decision of the AU Assembly in respect to grave circumstances,
namely: war crimes, genocide, and crimes against humanity. The failure of the international
community to respond appropriately in preventing the 1994 genocide in Rwanda, the
conclusion of the liberation struggles in Southern Africa with the independence of Namibia
in 1990, the outbreak of particularly bloody conflicts in the Great Lakes region and in West
Africa as well as the determination to deter the illegal seizure of power in African countries
are some of the elements which contributed to the adoption by the AU of a new collective
security regime. This was an acceptance of an exception to the sacrosanct principle of
sovereignty, at a time when the doctrine of humanitarian intervention was still a very
contentious issue in international debates. In this way, claims of sovereignty cannot be a 257
Article 3(f) Constitutive Act of the African Union, (July 11, 2000), OAU Doc. No .CAB/LEG/23.15. Herein after cited as the AU Constitutive Act 258
D. KUWALI, “The African Union and the Challenges of Implementing the Responsibility to Protect”, The Nordic Africa Institute 2009, 1
91
shield against multilateral enforcement action under Article 4(h) of the AU Constitutive
Act.259 It made a clear distinction between Member States, which were not to interfere in
the internal affairs of another according to Article 4(g) AU Constitutive Act, and the Union,
which could do so in response to the 3 grave circumstances where populations are at risk of
grave human rights violations might warrant external intervention in what should otherwise
be considered the internal affairs of a member state. The norms underpinning the AU’s right
to intervene reflect the elements of the protection framework embodied in the principle of
R2P.260
B. African Mechanisms to Prevent Conflicts and Gross Human Rights Abuses
While there is much more work that the AU could and should do to show meaningful and
sustainable commitment to the R2P principle, it is important to acknowledge that the
institutional means for effective prevention of humanitarian crises have been put in place.261
Several entities are designated under AU law to work toward the achievement of that goal
and these include the Peace and Security Council, the AU Commission; the African Standby
Force; the Panel of the Wise; the Continental Early Warning System and a Special Fund.
1. The Legal Framework of the AU Constitutive Act
The Constitutive Act of the Act of the African Union has created a new peace and Security
architecture which involves a range of different bodies. In the following will briefly discuss
the most relevant bodies for the purposes of implementing the R2P.
a) The AU Assembly
The Assembly of Heads of State and Government is the supreme organ of the AU. The actual
power of decision in situations of recourse to the use of force remains with the AU Assembly
which can decide to intervene in a member state either on its own initiative or at the
request of any member state pursuant to Article 4(j) AU Constitutive Act. All African Heads
of State and Government, or their representatives (with the exception of Morocco which
withdrew from the Organization in 1985 as a result of the admission of Western Sahara to
259
D. KUWALI, “The End of Humanitarian Intervention: An Evaluation of the Right of the African Union’s Right of Intervention, African Journal of Conflict Resolution 2009, 41-43 260
Report of UNSG on Implementing the Responsibility to Protect, para. 8 261
M., DU PLESSIS, “Chinese Arms Destined to Zimbabwe over South African Territory: The R2P Norm and the Role of the Civil Society, African Security Review 2008,
92
the OAU), are to meet at least once a year. Decisions are made by consensus otherwise a
two-thirds majority of the Member States is required.262
b) The Peace and Security Council (PSC)
The primary body responsible for the establishment of peace on the continent is the AU
Peace and Security Council, which is modeled on the UN Security Council. In July 2002, the
AU adopted the Protocol Relating to the Establishment of the Peace and Security Council of
the African Union, which details the PSC mission and operational structure.263 The AU
Constitutive Act was signed in July 2000, but the PSC framework took several years of
consultation among member states. The Peace and Security Council was established by AU
member states in late 2003 as the standing decision-making organ for the prevention,
management, and resolution of conflicts, with a goal of timely and efficient response to
conflict and crisis situations in Africa.264 To this end the PSC may authorize peace missions
and recommend to the Assembly that the AU intervene in certain situations where grave
crimes such as crimes against humanity, war crimes and genocide are being perpetrated.265
In its Preamble, the PSC Protocol sets the role of the PSC within the context of the primary
role of the United Nations for the maintenance of international peace and security and the
UN’s own recognition of regional arrangements in this arena. The establishment of the
Peace and Security Council thus provides a clearly defined mechanism for determining which
situations represent a serious threat to legitimate order and the steps necessary to restore
peace and stability to those states, in close co-operation with the UN Security Council.266
The PSC is composed of 15 members of equitable geographic distribution, 10 of whom are
elected to serve for two years and five of whom are elected for three years. The capacities
and willingness of member States to contribute militarily and financially to the AU as well as
to its diplomatic missions are also taken into account in determining membership of the
PSC.267
262
Article 7 AU Constitutive Act 263
AU, Protocol Relating to the Establishment of the Peace and Security Council of the African Union, (July 9,
2002), http://tiny.cc/37zlh .Herein after cited as the PSC Protocol 264
Article 1 PSC Protocol 265
Article 7 PSC Protocol 266
Article 7(r) PSC Protocol 267
J. SARKIN, “ The Role of the United Nations, the African Union and Africa’s Sub-regional Organizations in Dealing with Africa’s Human Rights Problems: Connecting Humanitarian Intervention with the Responsibility to Protect”, Journal of African Law 2009, 14
93
c) The AU Commission
The second body in charge of peace and security in Africa is the AU Commission which also
conducts the day-to-day work on peace and security issues is a role that parallels that of the
UN Secretariat.268 The Person of the Chairman of the Commission has a very central role to
play in the new peace and security architecture of the AU.
d) The Panel of the Wise (the Panel)
The Panel of the Wise is made up of 5 highly respected African personalities from various
segments of society who have made outstanding contribution to the cause of peace, security
and development on the continent.269 The principle task of the Panel is to advise the Council
on all issues pertaining to the promotion, and maintenance of peace, security and stability in
Africa.270 The objective is to provide proficient diplomacy and mediation for preventing and
resolving disputes as a way to ensure that the AU does not become inert in instances where
the PSC is unable to take action.271 Members of the Panel have played a very key role in
preventing the ethnic violence that followed the presidential elections in Kenya in 2007.
Through diplomatic pressure and persuasion, the team led by the former UNSG Kofi Annan
extended their mediation efforts and a political deal was ultimately secured which averted
the escalation into a civil war.272
e) African Standby Force (ASF)
The African Standby Force is established, among others, for rapid deployment pursuant to
Article 4(h). It constitutes standby multidisciplinary contingents, with civilian and military
components stationed in their countries of origin. The ASF will be directed by the Peace and
Security Council, in coordination with the UN and other regional and international
institutions. The ASF is by far the most robust component of the APSA. With its Military Staff
Committee, the ASF was conceived to conduct, observe, and monitor peacekeeping missions
and support operations.273 The ASF can also intervene in member states, if security is gravely
threatened. Meeting the ASF goals depends on member states establishing standby
268
Article 10 PSC Protocol 269
Article 11(2) PSC Protocol 270
Article 11(3) PSC Protocol 271
M., ISSAKA, E. D., MUSHEMEZA (Rapporteurs), “Operationalizing the African Standby Force, International Peace Institute 2010, 5 272
G., EVANS, “The Responsibility to Protect, Consolidating the Norm”, DA FAVORITA PAPERS 2010, 76 273
M., ISSAKA, E. D., MUSHEMEZA (Rapporteurs), “Operationalizing the African Standby Force, International Peace Institute 2010, 5-6
94
contingents for participation in peace operations under AU guidelines and leadership. Each
of the five African sub-regions is expected to organize an operational standby brigade. There
are 6 case-scenarios identified for action under the initial ASF framework, namely; the
provision of advice to a political mission; the co-deployment of an observer mission with a
UN mission, the stand-alone AU observer mission, the AU peacekeeping force for Chapter VI
and preventive deployment missions, the AU peacekeeping force for complex
multidimensional peacekeeping mission; the AU intervention.274 However, the ASF is not yet
capable of regional force projection or sustained, intense combat operations. In particular,
most militaries in the region are weak in respect of the maintenance of complex equipment,
strategic mobility, advanced command, control, and intelligence, as well as airpower and
naval power. 275
f) The Continental Early Warning System
A continental early warning system has been set in place to facilitate the anticipation and
prevention of conflicts.276 The Early Warning System is meant to consider a number of
indicators, be they economic, humanitarian, military, political, or social to analyze
developments within the continent and recommend the best course of action and requires
the involvement of a variety of actor ranging from the civil society and NGO’s to sub regional
organizations.277
2. The Relationship of the AU with the Sub-regional Mechanisms
The Regional Mechanisms are part of the overall security architecture of the AU, which has
the primary responsibility for promoting peace and security and stability in Africa.278 This
statement appears to run counter to the primacy conferred upon the UN Security Council,
but the provision could mean simply that the AU takes primacy over sub-regional
organizations.279 The objective is to ensure a co-ordinate effort between these sub-regional
bodies and the PSC and different procedures are considered to that end. The co-operation
between the Peace and Security Council and the Regional Mechanism is absolutely essential 274 Article 7(e), 13-15 PSC Protocol 275 V. K., HOT, M. K SHAHAHAN, “African Capacity Building for Peace Operation: UN Collaboration with the
African Union and ECOWAS”, The Henry L. Stimson Center 2005, 18 276
Article 12(1) PSC Protocol 277
Article 12(4) PSC Protocol 278
Article 16(1) PSC Protocol 279
S., PALIWAL, “The Primacy of Regional Organizations in International Peacekeeping: The African Example”, Virginia Journal of International Law 2009, 197
95
for the continental early warning system. A number of sub-regional organizations which are
essentially economic-orientated have established instruments and mechanisms to
coordinate regional defense and security policies. The sub-regional organizations include the
Arab-Maghreb Union (AMU), Community of Sahelo-Saharan States (CEN-SAD), the Common
Market for Eastern and Southern Africa (COMESA), the East African Community (EAC), the
Economic Community of Central African States (ECCAS), the Economic Community of West
African States (ECOWAS), the Intergovernmental Authority on Development (IGAD) and the
Southern African Development Community (SADC).280
C. The Use of Force under the AU Constitutive Act
1. The Thresholds for Intervention under Article 4 (h) of the AU Act
The right of the AU to intervene in a member state in the face of grave circumstances raises
questions regarding sovereignty as to when the protection of a state’s citizens ceases to be a
matter essentially within the domestic jurisdiction of a state. The AU Constitutive Act is
precise in article 4(h), which provides for the right of intervention in cases of grave
circumstances such as war crimes, genocide and crimes against humanity.281 Article 4(h) has
the same thresholds for intervention as R2P, although it does not refer to the concept of
ethnic cleansing. There are also notable differences between the formulation of R2P and
Article 4(h) AU Constitutive Act.282 First of all, the implementation of the R2P principle has to
occur through the Security Council whereas the AU Act is silent on the authorization of the
Security Council. Secondly, the R2P can be triggered when the target state is “manifestly
failing” to protect its citizens, whereas the AU can intervene with or without the consent of
the target member state. Thirdly, while R2P is a political commitment, Article 4(h) AU
Constitutive Act is a legal obligation. Finally, while it is sufficient for the UNSC to make a
determination under Article 39 UN Charter that a certain situation involving mass atrocity
crimes constitutes a threat to the international peace and security in order to justify the use
of force, it remains unclear the magnitude of atrocities after which the AU is required to
intervene. The threshold of grave circumstances refers to serious international crimes
280
J., ALLAIN, “ The True Challenge to the United System of the use of Force: The Failures of Kosovo and Iraq and the emergence of the African Union”, Max Planck Yearbook of the United Nations 2004, 275-277 281
D., KUWALI, “The Conundrum of Conditions for Intervention under Article 4(h) of the African Union Act”, Africa Security Review 2008, 91 282
D. KUWALI, “The African Union and the Challenges of Implementing the Responsibility to Protect”, The Nordic Africa Institute 2009, 2
96
subject to universal jurisdiction which invariably involve actions against civilians by an
authority exercising a certain level of control.283 Therefore, to suggest that it must be
established beyond reasonable doubt that genocide, war crimes or crimes against humanity
have occurred would be a misstatement. As already explained for the principle of R2P, the
rationale behind limiting the scope to serious violations is not to dilute the attempt to
protect civilians against massive savagery, but rather to reduce the possibility of abuse of the
right to intervene.284 The already cited “state of supreme humanitarian emergency” can be
used as criterion to determine when intervention is required. The AU is under Article 4(h) AU
Constitutive Act obligated to intervene when the only hope of saving lives depends on an
outsider coming to the rescue.285
2. The Issue of the Need for Prior Authorization by the Security Council
Under Chapter VIII of the Charter,286 regional organizations are allowed to deal with matters
relating to the maintenance of international peace and security, but it remains unclear
whether those organizations can undertake any enforcement action absent the
authorization, be it ex post facto by the Security Council.287 On the one hand, Article 53(1)
UN Charter requires that any decision by a regional organization to use force against one of
the member state should have the authorization of the UNSC. In this respect, it has been
contended that all regional organization activities involving the use of force, including
peacekeeping measures, would be in violation of Article 2(4) UN Charter absent such
Security Council authorization. In addition, since Article 103 UN Charter invalidates any
treaty norm that conflicts with obligations of the member states under the Charter, these
provisions seem to suggest that the AU is under the obligation to seek the approval of the
Security Council if it wants to acts in accordance with the UN Charter.288
283
D. SCHEFFER, “Atrocity Crimes Framing the Responsibility to Protect”, Case W. Res. J. Int’L L., 2007-08, 117-119 284
D., KUWALI, “The Conundrum of Conditions for Intervention under Article 4(h) of the African Union Act”, Africa Security Review 2008, 92-23 285
N. J., WHEELER, Saving Strangers: Humanitarian Intervention in International Society, Oxford University Press, Oxford 2000, 34; K. KINDIKI, Humanitarian Interventions in Africa: The Role of International Organizations, Doctoral Thesis, University of Pretoria, Pretoria 2005, 285 286
Article 52 UN Charter 287
C. C., JOYNER, “The Responsibility to Protect: Humanitarian Concern and the Lawfulness of Armed Intervention, Virginia Journal of International Law Association 2007, 703 288
D., KUWALI, The End of Humanitarian Intervention: An Evaluation of the Right of the African Union’s Right of Intervention, African Journal of Conflict Resolution 2009, 45-47
97
On the other hand, it has been opined that peacekeeping operations by regional
organizations in accordance with a constitutive treaty framework against one of the
organization’s members do not constitute enforcement actions within the meaning of Article
53 UN Charter. 289 This suggests that peace operations against third states that are not
members of the regional organization require Security Council authorization, while uses of
force within the organization’s membership are exempt from Article 53’s requirement of
Council authorization. Under this view a case can be made that the African states have
consented in the enforcement action to prevent mass atrocities under Article 4(h) Au
Constitutive Act.290 Indeed by ratifying the AU Constitutive Act and its amendment Protocol
creating the Peace and Security Council, member states have used their sovereignty to
confer the right upon the AU Assembly to authorize intervention when there are grave
circumstances.291 It can be interpreted as a general a priori invitation to intervene to stop
mass atrocities. Since there is consent, the obligations under Article 4(h) AU constitutive Act
fall outside the scope of the Articles 53 and 103 UN Charter, there is therefore no
inconsistency with the Charter. 292
However, in the face of the practice of the UNSC to give ex post facto approval to sub-
regional organizations, there are reasons to believe that an authorization by the UNSC is
indeed required and that in circumstances requiring immediate action this can eventually be
given after the fact. In this regard, the African leaders in the Ezulwini consensus have
acknowledged the primary responsibility of the UNSC in addressing threat to the
international peace and security.293 Thus, the UNSC has quite consistently validated several
289
S., PALIWAL, “The Primacy of Regional Organizations in International Peacekeeping: The African Example”, Virginia Journal of International Law 2009, 193-194 290
Article 20 of the Articles on State Responsibility provides that valid consent by a state precludes the wrongfulness of that act in relation to the former state to the extent that the act remains within the limits of the consent. 291
J., ALLAIN, “ The True Challenge to the United System of the use of Force: The Failures of Kosovo and Iraq and the emergence of the African Union”, Max Planck Yearbook of the United Nations 2004, 284-287 292
J. SARKIN, “ The Role of the United Nations, the African Union and Africa’s Sub-regional Organizations in Dealing with Africa’s Human Rights Problems: Connecting Humanitarian Intervention with the Responsibility to Protect”, Journal of African Law 2009, 22-23 293 AU Executive Council on The common African position on the proposed reform of the UN: The Ezulwini
Consensus (7th extraordinary session of the AU Executive Council, Addis Ababa, Ethiopia, 7–8 March 2005), OAU Doc No. Ext/Ex.CL/2 (VII)
98
ECOWAS intervention a posteriori, namely in Liberia (1990),294 Guinea Bissau (1998),295
Sierra Leone (1999)296 and Ivory Coast (2002).297 Furthermore, the UNSC has also ex post
facto commanded the deployment of a peacekeeping force by South Africa, Mozambique
and Ethiopia in Burundi (2003).298 In 2007, the PSC authorized the deployment of the African
Union Mission in Somalia (AMISOM) and an explicit endorsement by the UNSC came only
after the fact.299 In 2008, the PSC initiated a peacekeeping operation in the Comorian Islands
to restore the authority of the federal government over Anjouan.300 In this particular case,
although the operation involved the direct invasion of the Island of Anjouan, the UNSC was
not even seized of the matter at the time the AU decided to intervene.
While there may be collaborative or simultaneous engagement by a regional organization
and the Security Council, there is evidence of past practice that supports first-instance
engagement by regional organizations in Africa. All these precedents give credence to the
idea that prior authorization by the UNSC is not absolutely necessary in all circumstances.
However, this does not mean that from a legal point of view no authorization by the UNSC
may be required at all. Therefore, by engaging into a first instance regional enforcement
action in a member state, the AU and other sub-regional organizations will prima facie
violate the prohibition on the use of force under the UN Charter unless in 3 exceptional
circumstances.301 First of all, if the event which triggers the enforcement action on the part
of the regional organization amounts to act of aggression justify the use of collective self-
defense under Article 51 UN Charter.302 Secondly, if the UNSC, acting under Chapter VII of
the UN Charter, delegates its power to the regional organization to use all the necessary
means for the restoration of the peace and security in the region. Thirdly, based on Article
294
UNSC Resolution 788 (November 19, 1992), UN Doc S/Res/788 295
UNSC Resolution 1216 (December 21, 1998), UN Doc S/Res/1216 296
UNSC Resolution 1270 (October 22, 1999), UN Doc S/Res/1270 297
UNSC Resolution 1528 (February 27, 2004), UN Doc S/Res/1528 298
UNSC Resolution 1545 (May 21st
, 2004), UN DOC S/Res/1545 299
UNSC Resolution 1744 ((February 21, 2007) UN Doc S/Res 300 AU PSC, Communiqué of the 124th Meeting of the Peace and Security Council, ¶ 6, PSC/PR/Comm (CXXIV)
(Apr. 30, 2008). 301
S., PALIWAL, “The Primacy of Regional Organizations in International Peacekeeping: The African Example”, Virginia Journal of International Law 2009, 208-216 302
D. KUWALI, “ART 4(H) + R2P: Towards a Doctrine of Persuasive Prevention to End Mass Atrocity Crime”, Interdisciplinary Journal of Human Rights 2008-09, 67-70
99
53(1) UN Charter, the UNSC has to endorse either ex ante or ex post facto the decision made
by a regional organization to launch enforcement action in one of its member state.
However, in the light of the state practice under Article 53(1) UN Charter, it is possible to
argue that African regional organizations have a right under customary international law to
engage into first instance enforcement action in one of their member state pursuant to a
regional treaty. The cases of past interventions in Liberia, Sierra Leone, Ivory Coast, Burundi,
Guinea-Bissau, Somalia and the Comorian Islands support the existence of sufficient state
practice in this respect. African states were always willing to take action with or without
UNSC authorization and the fact they never waited for the green light of the UNSC before
engaging into peacekeeping demonstrate that they belief in their right to be the first
instance actor to address security threat in their region. The Director of the ECOWAS Legal
Department in 2000, made it clear that ECOWAS will not hesitate to engage in peacekeeping
in the absence of ex ante authorization from the Security Council.303 Opinio juris is further
evidenced by the adoption of treaties empowering regional organizations to take action as
far as regional peace and security is concerned. In the words of Ben Kioko the legal adviser of
the AU, it would appear that the UN Security Council has never complained about its powers
being usurped because the interventions were in support of popular causes and were carried
out partly because the UN Security Council had not taken action or was unlikely to do so at
the time.304 Again here the UNSC seems to have acquiesced in these assumed prerogatives.
303
S., PALIWAL, “The Primacy of Regional Organizations in International Peacekeeping: The African Example”, Virginia Journal of International Law 2009, 216-222 304
J., ALLAIN, “ The True Challenge to the United System of the use of Force: The failures of Kosovo and Iraq and the emergence of the African Union”, Max Planck Yearbook of the United Nations 2004, 261
100
Conclusion
Until very recently there has been no consensus at all on how the international community
should respond to these situations. The prevailing idea was that it was none of the world’s
business if a state put the lives of its citizens massively at risk. Even after World War II, with
the creation of the UN and the slogan of never again there was no generally accepted
principle in law to challenge the sacrosanct principle of state sovereignty. The end of the
cold war came with the hope that that state of mind could be changed. However, several
cases of conscience-shocking situations repeatedly arose, especially in Rwanda and in
Srebrenica. The failure of the international community to respond effectively in the face of
widespread calamities and the NATO’s 1999 unilateral intervention in Kosovo has triggered a
very divisive debate among the member of the international community.
We have been able to demonstrate that the concept of sovereignty has sound legal basis in
international law, however, that sovereignty cannot be interpreted in absolute terms. The
emergence of IHL and IHRL impose certain limitations to the conduct of states vis-à-vis their
own populations. We have also discussed the issue of humanitarian intervention and we
came to the conclusion that the use of force for humanitarian purposes can only be
permissible under international law in very special circumstances.
- In case of self-defense, if the intervening state is responding to a humanitarian crisis
which also constitute an armed attack or an act of aggression
- With the authorization of the UNSC acting under chapter VII when the humanitarian
crises requiring intervention constitute a threat to the international peace and
security
- Following a recommendation by the UNGA acting pursuant the the special procedure
of the Uniting for Peace resolution
- In the case of a Regional organization, acting under Chapter VIII with the
authorization of the UNSC (be it ex post facto)
- With the consent of the target state
101
We have also demonstrated that no customary right of humanitarian intervention exists
under international law as it exists today. Although there is state practice supporting
humanitarian intervention, the element of opinio juris is clearly missing here.
We went on to discuss how thanks to the efforts of the ICISS the principle of responsibility
has emerged and how it get global acceptance by the international community at t the
occasion of the 2005 World Summit. The world leaders reaffirmed the primary responsibility
of each state to protect its citizens against genocide, war crime, ethnic cleansing and crimes
against humanity; the responsibility of the international community to assist states in
fulfilling this primary responsibility; and the responsibility of the international community to
take timely and decisive action, in accordance with the UN Charter, when a state is
manifestly failing to protect its own population. The issue is not the ‘right’ of big states to
intervene, including by military means their weight around militarily, but the ‘responsibility’
of all states to protect their own people from atrocity crimes, and to assist others to do so by
all appropriate means. The core responsibility is that of the individual sovereign state itself,
and it is only if it is unable or unwilling to do so that the question arises of other states’
responsibility to assist or engage in some way. The core theme is not intervention but
protection.
We have seen that the principle of R2P is only designed to apply in very exceptional
circumstances involving genocide, war crimes, ethnic cleansing and crimes against humanity.
Therefore de R2P is deeply rooted in international law and as such it creates no new legal
obligation for states or for the international community. However, it is possible to see a
difference between the nature of the obligations of states under the Pillar of the R2P and
the obligations of the international community under Pillar II and II of the principle. The
responsibility for state is a legal one and the R2P here is only reaffirming the already existing
obligation of states under customary and statutory international law. A failure to comply can
trigger the responsibility of state for an internationally wrongful act under the provision of
the ARSIWA and the criminal prosecution against the perpetrators of mass atrocity crimes.
On the other hand, the responsibility of the international community is not of a legal nature.
Given the negotiating history and the language of the 2005 World Summit Outcome
Document, the obligation of the international community under the R2P must be considered
as a political or moral commitment to take timely and decisive action in accordance with
international law when a state is manifestly failing to exercise its primary responsibility to
protect its population.
102
On the final part we have seen that both the UN and the African Union have the institutions
in place capable of responding adequately to situation where civilian populations are
massively at risk. The UNSC has the primary responsibility for the system of collective
security and it can authorize the use of force in last resort. However the means of action
short of military action are often underdeveloped. One of the merits of the responsibility to
protect lies in its potential to reduce the number of situation where the international
community has to choose between sending in the marines and doing nothing. By fully using
the institutions which are already in place, the UN and the AU would be able to act
preventively and more effectively. But political will is often lack, and the different member
states tend to prioritize their national interests at the detriment of the credibility and
effectiveness of the UN and the AU. The emergence of the R2P and its further conceptual
development have certainly helped moving the debate forward, but this is not yet the end of
the road and many more challenges lie ahead before the “Never Again” commitment made
after World War II can become a true reality.
