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HUMANITARIAN INTERVENTION AND THE ROLE OF R2P IN INTERNATIONAL HUMAN RIGHTS
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HUMANITARIAN INTERVENTION AND THE
ROLE OF R2P IN INTERNATIONAL
HUMAN RIGHTS
AUTHORED BY-
JAI MULANI
B.B.A LL.B
(Hons.)
O.P Jindal
Global University
Global
leaders have often condemned such heinous acts as genocide and ethnic
cleansing. It was a collective effort, but the international community was
unable to stop future calamities of the same scale. Humanitarian intervention
as a practise was formed to minimise this threat, which had multiple
fundamental flaws. The idea of responsibility to safeguard was finally created
at the beginning of the twenty-first century thanks to the tireless efforts of
UN Secretary General Kofi Annan and with the support of the majority of UN
member states. The "duty to protect" is a concept developed to ensure
that the international community will never again sit on its hands in the face
of genocide or other grave abuses of human rights. Responsibility to Protect
recognises that it is the responsibility of independent states to ensure the
safety of their citizens. However, the international community of states has a
duty to defend those populations against genocide, war crimes, ethnic
cleansing, and crimes against humanity if a state is unable or unwilling to do
so, or if it is itself the source of the threat.
OVERVIEW OF
HUMANITARIAN INTERVENTION
A. Journey from Humanitarian Intervention to R2P
In the
1990s, the concept of humanitarian intervention arose in response to a clash
between state sovereignty and the need for international action to effectively
confront grave human rights violations such as genocide, ethnic cleansing, and
war crimes. The non-intervention principle of the UN Charter and the
responsibility of the international community to respond to gross violations of
human rights were at the centre of the debate. Article 2(4) of the United
Nations Charter prohibits any state from using or threatening to use force
against another state in order to undermine its sovereignty or territorial
integrity. According to Article 2(7) of the same document, the United Nations
shall not be permitted to intervene in matters that are within the basic
domestic jurisdiction of any state. However, there are two notable exceptions
to this norm that are explicitly recognised by the United Nations charter.[1] The first is the
authority granted to the Security Council by chapter VII of the UN charter to
approve the use of force to prevent an imminent and grave threat to
international peace and security. Second, in the event of an armed attack,
member states have the right to self-defence under Article 51.[2] There was debate
on whether or not to take humanitarian action in both cases. Many people think
that the international community should interfere more regularly, while others
argue that it does not do so often enough.
Passivity
was on full display during the genocide in Rwanda in 1994, when the Security
Council dithered over taking action despite being aware of the situation and
having UN personnel on the ground. It was due to inadequate preparation, bad
execution, and an overuse of force that the United Nations' peacekeeping
efforts in Somalia in 1992 and 1993 were a failure. In 1995, the international
community missed another opportunity to prevent the massacre in Srebrenica. The
morality of a military involvement in Kosovo (1999) was also heavily debated,
adding to the polarisation over the subject. The legitimacy of the intervention
itself, as well as the means used to achieve the desired results, have been
called into doubt.6
These four
incidents prompted serious debate on the proper response of the international
community to egregious violations of human rights. The primary point of
contention was whether or not the international community had the authority to
meddle in the internal affairs of a state for humanitarian purposes. Recently,
some have been questioning whether or not humanitarian assistance is being used
correctly. Concerns have been voiced about how to tell humanitarian intervention
from other sorts of intervention, how to limit the use of force, and other
related issues. The lack of clarity in the humanitarian purpose was also a
major source of concern.
General
Assembly members' reactions to the secretary general's address were divided.
The International Commission on Intervention and State Sovereignty was founded
in response to his challenge, but only one country, Canada, accepted it. It was
this commission that first adopted the term "Responsibility to
Protect," the title of their report. This paper concludes that the State
is primarily responsible for ensuring the safety of its citizens. It also
recognised the sovereign right of each nation to control its own internal
affairs. The document continued by stating that the international community
must take initiative and intervene if the state fails to provide adequate
security for its citizens. This report recommended three parts as the basis for
R2P.[3]
1. The
Responsibility to Prevent
2. The
Responsibility to React
3. The
Responsibility to Rebuild
Under
"The Responsibility to react," the report outlined four precautionary
criteria that must be met prior to any military engagement. Intentionally
ending a humanitarian disaster is the first and most important step. Second, it
ought to be a fallback option when all other options have been tried. Thirdly,
the military force deployed must be confined to the minimum amount necessary to
achieve the goal, which in this case is the protection of civilians. Last but
not least, there needs to be a good chance that taking action won't have
negative results.[4]
The
Secretary General's High Level Panel on Threats, Challenges, and Change gave
the suggestions presented by the ICISS significant attention and support in
2004. This committee endorsed the "Responsibility to Protect" concept
with substantial revisions from the original report. Additionally, it was
decided that the Security Council must give its blessing before any such
jurisdiction could be exercised.
Using the
concept of non-intervention, the panel argued, the state cannot commit serious
violations of human rights. It further claimed that the Security Council should
consider these acts to be threats to international peace and security under
Article 24 of the UN Charter.[5]
In 2005,
the Secretary-General delivered a report titled "In Larger Freedom:
Toward Development, Security, and Human Rights for All," which puts an
emphasis on responsibility to protect (R2P) by providing a more nuanced
understanding of the ICISS Report by evaluating it in the context of human
dignity and the rule of law. The report's focus was on helping the Security
Council respond more effectively to humanitarian crises.[6]
INTRODUCTION TO RESPONSIBILITY TO PROTECT (R2P)
In a
resolution passed in 2006, the Security Council for the first time officially
recognised this doctrine, reiterating its dedication to shielding civilians
during times of war (as stated in the World Summit Outcome Document). The
formation of a High Level Mission to evaluate the situation in Darfur by the
Human Rights Council is further evidence that the new doctrine has been
accepted by the international community.[7] At the
2005 United Nations World Summit, the member states came together for the first
time, and the idea of responsibility to protect was ultimately affirmed by
incorporating it in the meeting's result document. Paragraphs 138 and 139 of
the treaty say that each party is responsible for protecting its own people
against acts of war, ethnic cleansing, genocide, and other crimes against
humanity. While the ICISS's initial proposal for the concept was ultimately
rejected, the organisation was successful in ensuring that the essential
elements for dealing with violations of international human rights law and
humanitarian law were maintained. In order to secure the correct operation of
the principle in practise, regional organisations were expected to abide by the
United Nations Charter and extend cooperation. Paragraphs were included in the
text, but they were also based on certain international legal obligations.
These standards have been refined with input from a number of governments and
the case law of various national and international courts and tribunals.
The
Secretary-General issued a report in 2009 titled "Implementing the
Responsibility to Protect: A Report by the Secretary-General" that
elaborated on the conclusions reached in the 2005 World Summit Outcome
Document. This research looked into the feasibility of mainstreaming
responsibility to protect (R2P) inside the United Nations framework and as an
international principle.
This
article elaborated on the "Pillars" of the Responsibility to Protect
framework. All of the pillars should be considered equally vital, and they do
not need to be presented in any particular order. Secretary-General Ban's
reports, like the World Summit Outcome and the ICISS report, gave the UN
Security Council the exclusive authority to approve an intervention under the
responsibility to protect.
First Pillar: State responsibility includes protecting its inhabitants from genocide,
war crimes, crimes against humanity, and ethnic cleansing. Some potential
remedies include stepping up diplomatic efforts to settle potential disputes,
implementing anti-corruption methods, swiftly prosecuting individuals who
engage in violent behaviour, advocating for human rights, and establishing more
effective governance.
Second Pillar: The international community has a responsibility to assist and support
national governments as they fulfil their commitments. Foreign investment,
technical aid, economic incentives, rapid police action, and broader capacity
building are all examples of the kind of concrete, targeted aid that will be
important in this situation.
Third pillar: The international community must be ready to take collective action in a
prompt and decisive way in conformity with the UN charter if a state is clearly
failing to protect its inhabitants. "Soft" coercion, such as
international fact-finding missions, the deployment of peacekeepers, the
imposition of a weapons embargo, the enforcement of diplomatic and financial
sanctions, and the establishment of safe havens and no-fly zones, may be used
to initially reinforce these strategies.
If all else
fails, the UN Security Council may give the green light for a military
intervention. According to the report submitted by the UN Secretary-General in
2012, these tenets had no causal relationship with one another but were
nonetheless crucial. He went on to elaborate on the significance of the three
pillars, saying that the plan wouldn't work without them. He insisted on doing
it in a way that adheres strictly to the Charter's principles.[8]
The goal of
this method was to strengthen national authority, not weaken it. The
initiative's goal was said to be to strengthen sovereignty rather than chip
away at it in the 2009 report of the Secretary-General. In addition, it aimed
to assist States in achieving success, rather than only responding to their
failures.
Thirdly,
the report included concrete recommendations to state and non-state actors in
order to advance these pillars. Furthermore, it asked the General Assembly to
reconsider its approach to enforcing the responsibility to protect.
ANALYSIS OF THE RELEVANCY OF R2P IN INTERNATIONAL
HUMAN RIGHTS
The
discussions at the General Assembly in 2009 and the World Summit in 2005 helped
to create and develop the bounds of the Responsibility to Protect (R2P) doctrine,
which is now well-known in international law. The ultimate burden of care for
its residents rests on the shoulders of the sovereign nation. R2P is also
limited in its ability to address the most severe human rights abuses. The
international community takes responsibility for a humanitarian disaster only
when a sovereign state fails to do so. For starters, the international
community can help the crisis-stricken country prepare better for future
catastrophes. If this strategy is proved to be ineffective, the world community
will have the primary responsibility for protecting against or avoiding the
disaster. Coercive measures may be used on a case-by-case basis, and in extreme
cases, the world community may authorise a military intervention. There can be no
unilateral interference. Restoring the nation's peace and security after the
intervention is a responsibility shared by the international community.
In December
2007 and into January 2008, Kenya was rocked by a surge of ethnic violence.
Unrest ensued after a heated presidential election, which Mwai Kibaki
eventually won. About 1,000 people lost their lives, and over half a million
residents had to flee their homes as a result of the widespread and systematic
violence that this sparked.
Rapid
intervention from the outside world was required to solve the problem. As early
as January 2008, France's minister for foreign and European affairs urged with
the UN Security Council to intervene "in the name of the obligation to
protect" to prevent a dreadful ethnic war from breaking out. After the
parties to the conflict agreed on January 10, 2008 to allow the UN
Secretary-General to serve as the African Union Chief Mediator, a power-sharing
agreement was ratified. This approach was heralded as "an example of diplomatic
action under the 'Responsibility to Protect' principles.”[9]
After the
2011 post-election violence in Ivory Coast, the Security Council issued
resolution 1975 condemning the grave abuses of human rights committed by
supporters of both the outgoing and incoming presidents. One of the primary
responsibilities of nations is to ensure the safety of their citizens, and this
issue was addressed in the aforementioned resolution. The UN Operation in Ivory
Coast (UNOCI) was given permission to use "all necessary means to preserve
life and property" and was given support for the swift transition of power
to the President.”[10]
In 2011,
the Security Council initially approved a military action in Libya, a move that
reaffirmed the Responsibility to Protect (R2P) principles. The civilian
population of Libya was the target of many attacks by the Libyan regime. The
world community was reminded of the Rwandan tragedy by Muammar Gaddafi's
behaviour and statements.[11] On
February 26, 2011, the Security Council unanimously adopted resolution 1970,
which made direct reference to R2P.
Ten years
of conflict have passed with no let-up in the Syrian Arab Republic. Five
million Syrians have fled their country and another seven million have been
displaced within their own country as a direct result of the conflict. The ISSG
was formed to lessen the suffering of the Syrian people as a result of the
ongoing conflict.[12] The
United Nations, the European Union, the League of Arab States, and other
governments unanimously recognised the critical necessity to convene to
consider the dire situation at hand. Therefore, it was desired to guarantee a state-wide
ceasefire and the full execution of UN Security Council Resolution 2254, which
led to an increase in the delivery of humanitarian aid. Humanitarian aid only
partially reached the impacted communities despite multiple attempts and
resolutions established to uphold responsibility to protect.[13]
There have
been numerous reports of mass atrocities committed against people as a result
of the armed conflict in Yemen. As pro-government forces and regional military
took up arms against Houthi rebels, violence erupted, giving rise to these
atrocities. The government of Yemen is still very weak and unable to fulfil its
duty of protection, hence it needs help from other countries.[14]
NEED FOR CHANGE IN CONCEPTS PROMOTING HUMAN RIGHTS
REGIME
R2P and
certain implementations of it have come under criticism by some states,
There is
growing concern that R2P undermines national sovereignty. The Secretary-General
addressed this specific worry in the report titled Implementing the
Responsibility to Protect. According to the study's first two pillars,
governments must safeguard their citizens against mass atrocities, and if they
fail to do so, other nations must intervene to ensure that their inhabitants
are safe. Some say that the international community should only step in when it
has hard evidence that mass crimes are being perpetrated within a state or are
being committed by the state itself, or when the state is no longer fulfilling
its obligations as a sovereign. In this setting, responsibility to protect
works better as a tool for bolstering national control.[15]
On March
19, 2011, the responsibility of the Libyan government was reaffirmed in
Resolution 1973, which was approved by the Security Council. It was reaffirmed
that parties to armed conflicts bore the primary responsibility for ensuring
that all practicable measures had been taken to protect civilians.[16]
Since the
only problem that was fixed was by using the required force to strike Libya,
the Libyan case was seen as damaging to R2P's reputation. Some further alleged
that the no-fly zone was implemented unfairly, while others asserted that
people were armed. As a means to just bring about a change in administration,
the intervention was seen by its detractors as serving neither the purpose nor
the spirit of the philosophy. This tragic event threw doubt on the future of
R2P and made the international community sceptical of the planned UN action in
Syria that same year.[17]
Military
intervention has been questioned under the third pillar of R2P, and remains
quite controversial till date.[18] It
has been argued that intervention through militarily on states should not be
allowed, because to do so would be an infringement upon the State’s
sovereignty. The counter- argument was that it is an essential facet of R2P,
and is only ever enforced as a last resort to stop mass atrocities. This has
asked for a more specific criteria to be defined and developed to determine
when the Security Council should authorise military intervention.[19]
CASE STUDIES AND EXAMPLES: AN ANALYSIS OF THE LIBYA MILITARY
INTERVENTION CASE
Fighting
between the Libyan government and rebel groups in 2011 raised concerns among
foreign actors about the potential for widespread civilian fatalities. Muammar
Gaddafi, the Libyan colonel, referred to his opponents in the city of Benghazi
as "cockroaches" during the uprising that began there in February
2011. He declared that the demonstrators will be "hunted down door to door
and executed" and issued a warning to that effect. The revolt against
Gaddafi's rule began in February 2011, shortly after revolutionary developments
had taken place in neighbouring Tunisia and Egypt. Gaddafi, in contrast to the
autocrats in those nations, has declared war on the Libyan rebellion. Rapidly,
Gaddafi began killing demonstrators and threatening further violence. More
"cockroaches," in Gaddafi's words, were about to meet their end.[20]
Gaddafi's
remarks caused widespread panic around the globe. The regime's military
apparatus made immediate threats to carry out atrocities and massacres. As of
February 25th, the Human Rights Council had suggested to the General Assembly
that Libya be removed from the Security Council. A fact-finding team was also
constituted to investigate into the Libyan incidents. The Security Council
fiercely condemned these assaults on humanity and declared that the world
community would not repeat its blunders.
The
Security Council encouraged the Libyan government to honour its obligation to
protect its population in a statement to the media. In addition, by Resolution
S-15/1 of the Security Council, Libya was expelled from the General Assembly on
March 1. Libya was removed from the Arab League as well. In response to
Resolution 1970, the United Nations Security Council implemented a number of
restrictive measures. Important officials of the Libyan administration were
prevented from leaving the country, an arms embargo was implemented, their
foreign assets were blocked, and a 120-day review of the effectiveness of the
measures was required. On the other side, the Libyan government asked that this
line of action be halted until the claims were established.
The
Security Council for the first time authorised aggressive military involvement
in a sovereign state without the approval of that state's ruling authorities
with Resolution 1973. Next, a group of countries formed by the North Atlantic
Treaty Organization were given authorisation to use force. NATO was also
intended to ensure that a no-fly zone was set up to safeguard the local
populace. Because they defended the principle of not interference in the
internal affairs of sovereign states, certain countries, especially China and
Russia, were passionately opposed to it.
The
combined naval and aviation troops of 14 NATO members and 4 partner nations
aimed to safeguard people. France and Britain flew 40 percent of the sorties,
and other countries contributed by upholding the no-fly zone and the arms
embargo at sea. Russia has condemned the "disproportionate use of
force" that led to the deaths of Gaddafi's youngest son and three of his
grandchildren on May 1. Whether or not NATO should have used force was a topic
of discussion. Does the United Nations' mandate for "civil
protection" include the destruction of infrastructure, fuel storage sites,
and electrical grids?
At long
last, in August 2011, the conflict was mostly concluded thanks to NATO's aid
and the bravery of the Libyan people on the ground. A UN support mission was
established in Libya, and the National Transitional Council was recognised as
the country's legitimate representative there.
The
"obligation to protect" had been carried out by the world community,
but the "responsibility to reconstruct" remained a duty and a
daunting task. Because this intervention was the first military action taken
with the goal of protecting civilians from egregious human rights abuses by
their own national government, it represented a turning point in the
implementation of this philosophy. The entire doctrine would have disintegrated
if this intervention had failed.
IMPLICATIONS AND RECOMMENDATIONS
Responsibility
to Protect is replacing the controversial concept of humanitarian intervention.
After this earlier ideology failed to avert tragedies like Rwanda and Kosovo,
the notion of R2P was established with the support of many world leaders and
other enlightened members of the international community.
There were
several challenges in developing the responsibility to protect (R2P) concept,
but the successful military intervention in Libya in 2011 that was authorised
by the Security Council under R2P acted as a litmus test for the third pillar
approach. The Libyan intervention, however, made it abundantly clear that
significant work remains to determine the nature and bounds of military
strategy and tactics in the carrying out of a Pillar 3 operation.
At roughly
the same time, inhabitants of another country were in dire need of
international support and protection. As was explained in the preceding
chapter, the international community failed in its responsibility to protect
Syrian nationals and in its duty to prevent. Members of the UN Security Council
and the international community were unable to reach a consensus on how to
proceed with regards to Syria. As a result of this, many people no longer trust
in the original ideas and principles behind R2P.
CONCLUSION
Whether or
not R2P was successful in preventing future tragedies like those in Kosovo and
Rwanda, as indicated by the ICISS, is controversial. The lack of a genuine,
realistic solution to the phrase "never again" has led to the failure
of the attempt to replace the word "humanitarian intervention" with
"sovereignty as responsibility" in the vocabulary of international
affairs. According to Kahtryn Kersavage (2014) of the US Department of State's
Iraq Program Office: “It is counterproductive to call R2P a
success or failure. […] This does not mean the ultimate failure of R2P, or even
that a reinterpretation of the norm is needed. Instead, we must continue work
on developing operational and strategic guidelines.”
Regarding
the obligation that nations have to protect people on their own territory, the
responsibility to prevent mass atrocities (R2P) is solidly grounded in
international law. Therefore, the first pillar of R2P constitutes an ongoing
duty on the part of states at all times. In actuality, the need to protect
created by international human rights law is the polar opposite of the
obligation to prevent. To protect human rights is a moral and legal imperative.
A state has a responsibility to protect its citizens' human rights and to take
reasonable measures to deter violations of those rights by non-state actors.
R2P expands on these internal commitments by giving states the responsibility
to help other states fulfil their commitments. The obligations of nations under
international law to safeguard their citizens from genocide and other forms of
mass violence committed by other states or non-state actors are not entirely
clear. In the Summit Outcome Document, the member states did not formally agree
to it either; they merely pledged to support states in carrying out their
commitments to protect. The due diligence norm, which requires parties to take
reasonable steps to prevent violations insofar as is practicable, indicates an
emerging trend in international law toward the establishment of a positive obligation
to prevent mass crimes in specific situations. R2P, which crystallises the duty
to protect/prevent concept and applies it to the prevention of mass atrocities,
is a significant component of this emerging trend. The guiding principle of the
Genocide Convention is being advanced by this change; governments may no longer
remain mute in the face of atrocities that shock humanity's conscience.
[1]
Malcolm D. Evans, International Law, 505 (3rded. 2010).
[2]
Id. at 506.
[4]
Thibaut Jageneau, Faculteit Politieke En Sociale Wetenschappen, University
Gent, .Interventionism and the Failing of R2P: Syria as a symbol of a Changing
World Order, 21 (2017)
[5]
Id.
[6]
The Secretary-General, Report of the Secretary-General, In Larger Freedom:
Toward Development, Security and Human Rights for All, Para. 135, U.N. Doc.
A/59/2005 (Mar. 21, 2005).
[7]
Id.
[8]
"Responsibility to Protect: Timely and decisive response: Report of the
Secretary-General (2012)"
[9]
"Ballots to Bullets: Organised Political Violence and Kenya's Crisis of
Governance: The Response of International Actors”. (Feb 12, 2021), hrw.org.
[11]
Sarah Brockmeier, Oliver Stuenkel & Marcos Tourinho (2016) The Impact of
the Libya Intervention Debates on Norms of Protection, Global Society, 30:1,
113-133, DOI, (Feb 12, 2021), doi.org.
[12]
"Central African Republic: Sectarian Atrocities Escalate – Human Rights
Watch”, (Feb 11, 2021), hrw.org.
[13]
"Populations at Risk: Global Centre for the Responsibility to Protect”,
(Feb 12, 2021), www.globalr2p.org.
[14]
"Yemen: Global Centre for the Responsibility to Protect”, (Feb 15, 2021), www.globalr2p.org. 21
Moran, Rick; Horowitz, David, editor, "Libya and the Soros Doctrine".
FrontPage Magazine.
[16]
"Security Council Approves 'No-fly Zone' over Libya, authorising 'all
necessary measures' to protect civilians, by vote of 10 in favour with 5
abstentions. (Includes the full text of resolution 1973)". Security Council SC/10200.
United Nations, Department of Public Information, News and
Media Division, New York, NY. (March 17, 2011). 24 "Selective Use of
R2P to Secure Regime Change: India".
[18]
Seybolt, Taylor B. (2007). Humanitarian military intervention: the conditions
for success and failure. New York, NY: Oxford University Press Inc. p. 2.
[19]
"Responsibility to Protect: The 'Real' Debate on R2P – STWR – Share The
World's Resources", (Feb 12, 2021), stwr.org.
[20]
Spencer Zifcak, The Responsibility to Protect after Libya and Syria, 13(1)
Melbourne Journal of International Law 59, 64 (2012).
Article Information
HUMANITARIAN INTERVENTION AND THE ROLE OF R2P IN INTERNATIONAL HUMAN RIGHTS
Authors: JAI MULANI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/27
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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