R2P and International Law: A Paradigm Shift?
Abstract and Keywords
Reluctant for its first two decades to consider states’ human rights performance, the UN gradually developed an extensive network of machinery to examine human rights violations in some states and categories of violation in all states. Action was limited to investigation and condemnation. The overwhelming majority of states and commentators rejected the notion of ‘humanitarian intervention’ that had had some currency until the UN Charter’s proscription of the use of force by states. It took the UN sixty years to accept that the Security Council could and should take necessary coercive measures, including armed force, to confront the most extreme forms of human rights violation or atrocity such as genocide, ethnic cleansing, war crimes, and crimes against humanity. In doing so, it sanctified a new doctrine and codified its scope. Political and material realities seem to require sober expectations about the UN’s actual ability to protect populations from these atrocities.
The approach of the United Nations to violations of human rights may be divided into three phases. The first, lasting until the mid-1960s, was characterized by a general reluctance to subject a state’s internal activities to external scrutiny. The second, starting in the late 1960s but not consolidating until the mid-1980s, acknowledged that at least serious human rights situations could be discussed in UN forums, be subjected to fact-finding processes, and be made the object of recommendations. The third phase is that reflected in the so-called responsibility to protect (R2P), according to which coercion up to and including the use of armed force to protect civilian populations could be authorized by the Security Council. The move from the first phase to the second can plausibly be considered a paradigm shift. It may be that the same is the case for the move to the third phase.
After a review of the transition from the first to the second phases and a brief consideration of the so-called doctrine of humanitarian intervention, this chapter will then examine the extent to which R2P, the third phase, creates or codifies new law.
From Neglect to Concern
Despite the almost vanishingly rare General Assembly concern for human rights issues, outside the special cases of South Africa and Rhodesia, the UN’s basic approach in its first two decades was to ignore cases or situations of human rights violations in Member States. Certainly that was the posture of the organization’s specialist human rights body, the Commission on Human Rights (replaced in 2006 by the Human Rights Council). From the beginning, the Commission received complaints of violations and one of its (p. 187) first moves was to declare itself incompetent to deal with such complaints, a stance confirmed by its first body, the Economic and Social Council (ECOSOC).1 The assumption was that states could only be subjected to scrutiny of their compliance with human rights standards if they accepted, by means of treaty obligation, such scrutiny by bodies established under the treaty in question.2
A slight step forward occurred in 1959 when ECOSOC, at the instigation of the Commission, adopted a resolution confirming the traditional lack of competence, but asking the Secretary-General to summarize monthly the contents of any such complaints and circulate these to members of the Commission (states) in respect of discrimination and minorities’ issues, its Sub-Commission on Prevention of Discrimination and Protection of Minorities (individual experts) together with any replies received.3 While these monthly summaries were confidential and not discussed, they were considered by insiders as a means that sometimes could yield results by states wishing to give a good impression to the Commission and Sub-Commission members.4
A more substantial development occurred in 1967 when, again prompted by the Commission, ECOSOC adopted resolution 1235 (XLII) by which it authorized the Commission and Sub-Commission to study consistent patterns of human rights violations in Member States and to investigate gross violations of human rights. When non-governmental organizations (NGOs) started submitting such situations, the Commission was uncomfortable with the results and proposed that ECOSOC establish a special confidential procedure for dealing with complaints from non-official sources. ECOSOC complied by adopting resolution 1503 (XLVIII) (1970). This provided for the Secretary-General’s monthly summaries of ‘communications’ to be examined by the Sub-Commission which would forward to the Commission situations ‘appearing to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’. Such situations would then be subject to discussion in the Commission, albeit in confidential meetings.
Meanwhile, after the adoption of ECOSOC resolution 1235, nothing now prevented Sub-Commission members or Commission members of their own motion from raising, at least extensive, human rights problems in particular states. At first, attention was confined to southern African countries (lasting until the 1974 decolonization of Portuguese territories, the emergence of Zimbabwe and Namibia, and the eventual end of apartheid) and the post-1967 occupied territories of the Middle East. It took until 1975, when friendless Chile was made the subject, not only of discussion, but of investigation that other states were to come under the spotlight. This was to be the beginning of such measures in a number of countries. However, some grave situations deserving attention did not get it, if the responsible states had sufficient friends to avoid negative votes in the Commission. This led to the creation of the so-called thematic special procedures, starting with the Working Group on Enforced or Involuntary Disappearances (1980) (Kramer and Weissbrodt 1981). The establishment of the Group was motivated by the perceived need to deal with a serious phenomenon identified with Argentina under military dictatorship, when there was not the political will publicly to address, much less investigate, the situation there. Followed by the creation of mandates (to be held by (p. 188) special rapporteurs) on summary and arbitrary executions (1982) and on torture (1985), these mandates would consider cases in all jurisdictions and even visit states that would invite them. Their number slowly expanded, first under the Commission, more recently under its successor Human Rights Council, to the present 41 thematic mandates.
The legal significance of all this is that, either human rights are no longer matters essentially within the domestic jurisdiction of states within the meaning of Charter Article 2(7), or that discussion and investigation of human rights situations or even individual cases,5 may no longer be considered as improper intervention within the meaning of that Article.
From Concern to Enforcement?
Most of the UN’s activities described in the previous section were carried out by the General Assembly or bodies directly or indirectly subordinate to it. This was appropriate since the General Assembly is empowered to discuss and make recommendations in respect of all matters falling within the mandate of the UN, as laid down in the Charter of the UN, notably its purposes (Article 1) and principles (Article 2).
For the Security Council even to consider and make recommendations in respect of a situation, it must represent a danger to international peace and security or at least risk friction capable of giving rise to a dispute engendering international peace and security (‘the threat of a threat’) (Article 34). This inevitably posed the question as to whether a human rights situation could amount to or lead to a threat to or breach of international peace and security. After all, typically most human rights situations take place within the frontiers of any particular state. Of course, sometimes there may be cross-border spillover, for example, in the form of major refugee movements or in the way of ethnic tensions when the victims of the violations are of an ethic minority that may have sympathetic kindred populations in a neighbouring state.
Any reluctance in the Security Council to consider human rights situations might have been induced, not so much by a reluctance to discuss in one UN forum (the Security Council) what could have been and was discussed in others, as by a concern to avoid a slippery slope towards being pressured into engaging in coercive activity under Chapter VII. Only the Security Council, acting under Chapter VII, can take or authorize coercive activities. This would then raise the momentous issue as to when armed force could be deployed on the territory of a state without the authorization of that state.
While other chapters of this volume consider the matter in greater depth, the present chapter cannot ignore the background of relating to the international law governing the (p. 189) use of force and the so-called doctrine of humanitarian intervention. Among scholars, if not among governments, there was a controversy as to whether states could intervene with armed force to protect the population of another state. Evidently, if individual states could do so, then there could hardly be any objection to the UN doing so through its Security Council.
For those who argued that there was a right of humanitarian intervention (there was no suggestion of an obligation), the doctrine was one that had existed before the advent of the UN and had survived its creation.6 Thus in the nineteenth century, the Christian powers had intervened in the Ottoman Empire to protect Christian populations perceived to be oppressed by their rulers.7 For the scholars arguing for the survival of that possibility even in the face of the Charter Article 2(4) provision against the use of force, the actual wording of this provision could be construed favourably to their case.8 Accordingly, the force that would be used for humanitarian purposes would not be directed against ‘the territorial integrity or political independence’ of the target state; it would merely be a temporary measure aimed at rescuing the population in question, not at affecting the political regime of the state much less seizing its territory. Moreover, far from being against the purposes of the UN, it would be in furtherance of the purpose laid down in Article 1 of ‘promoting and encouraging respect for human rights and for fundamental freedoms for all’. Surely the UN was not set up for itself and its members to stand by while more genocides and other crimes against humanity, of the sort that gave birth to the UN, were perpetrated without challenge or resistance.
The counter-argument, defended by most states, the principal framers and addressees of international law, and by the majority of scholars, was that Article 2, paragraph 4, of the Charter indeed ruled out any use of armed force other than by way of the exercise of ‘the inherent rights of individual and collective self-defence’, as preserved in Article 51 of the Charter.9 According to this approach, which reflected the preparatory work of the Charter, the spelling-out of ‘territorial integrity and political independence’ in Article 2(4) was to articulate the components of sovereignty. Far from being restrictive, these words were intended to be comprehensive. The only limitation was in Article 51 and the right to self-defence it protects and that right could only be exercised if ‘an armed attack occurs against a Member of the United Nations’. Clearly the plight of a population, however oppressed by the government of its own state, could not constitute the reason for an armed attack against the intervening state or states.
The latter view—a right to humanitarian intervention does not exist—remains the predominant view, even after the NATO intervention in Kosovo. This action had the United Kingdom defending its involvement on the basis of a (previously undiscovered) doctrine of necessity.10 Some scholars were prepared to see the action as potentially heralding, de lege ferenda, a norm admitting humanitarian intervention.11 No significant event has since happened to refute or confirm this. However, the very reluctance of the text of the World Summit Outcome Document to contemplate it, even when there is a veto-blocked Security Council (discussed in the next section) certainly fails to advance (p. 190) the case. Moreover, even the Secretary-General’s High-Level Panel which paved the way for R2P (see the following section) clearly reaffirmed the traditional approach:
The Charter of the United Nations, in Article 2.4, expressly prohibits Member States from using or threatening force against each other, allowing only two exceptions: self-defence under Article 51, and military measures authorized by the Security Council under Chapter VII (and by extension for regional organizations under Chapter VIII) in response to ‘any threat to the peace, breach of the peace or act of aggression’.12
Of course, those, including the present writer, who continue to sustain the view that unauthorized humanitarian intervention remains unlawful, also acknowledge that a genuine humanitarian rescue should not necessarily be treated the same way as an abusive one. Thus, an operation that would otherwise be considered lawful if authorized by the UN Security Council (see the following section) would not necessarily attract the same legal consequences, such as the obligation of non-recognition of the resulting situation.13 Mitigating circumstances might conduce to the international legal equivalent of an absolute discharge in domestic law.14
R2P and its ‘Three Pillars’
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 (p. 191) 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.
The first pillar is that of the state itself. It is the entity that has the primary ‘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.’ In fact, this added nothing to paragraph 122, according to which emphasis was placed on ‘the responsibilities of all States, in conformity with the Charter, to respect human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language or religion, political or other opinion, national or social origin, property, birth or other status’.
The second pillar consists of international assistance and capacity-building. These are reflected in the final sentences of paragraphs 138 and 139. Desirable as such measures may be—prevention is always better than cure—they raise no legal questions. They are measures of cooperation and can only be offered to, not imposed on, states; so no issues of sovereignty are engaged.
It is the third pillar, ‘timely and decisive response’, that potentially poses significant legal dimensions. Here we have the key element contained in the text of paragraph 139. Even here, there are elements that are non-coercive. These are the ‘diplomatic, humanitarian and other peaceful means’ to be engaged under Chapters VI and VIII of the Charter.
The only legal issue arising out of Security Council action under Chapter VI is the very fact of the discussion rising to the level of Security Council concern, which implies that the situation may threaten or lead to friction that threatens international peace and security. This may explain why, already at this non-coercive stage, the nature of the situation is limited to one characterized by genocide, war crimes, ethnic cleansing, and crimes against humanity. Apart from that, the Security Council has no more explicit powers under Chapter VI than has the General Assembly, whose authority to discuss and make recommendations about peaceful means of solving human rights issues in Member States is no longer contentious. As to the reference to Chapter VIII, here Article 52 of the Charter is evidently alluded to, as that acknowledges a role for regional agencies in achieving ‘pacific settlement of local disputes’.
The main legally significant dimension arises ‘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’. Then comes the uncontested commitment ‘to take collective action … through the Security Council, (p. 192) in accordance with the Charter, including Chapter VII’.17 This is an unmistakable reference to enforcement action against the will of the state concerned. Here too, ‘relevant regional organizations’ may be involved, this time pursuant to Article 53 which foresees an enforcement role for such organizations, subject to Security Council authorization.
Even though this places the focus clearly in the realm of coercion, it still does not automatically entail the use of potentially lethal armed force. First, under Article 41, measures not involving the use of armed force at all are contemplated, such as ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations’. It is only if measures of this sort ‘would be or have proved to be inadequate’, that the Council may then take action through the use of armed forces, under Article 42.
The relationship of the various measures that may be taken by the Council will be returned to. At this point, the salient issue is the acknowledgement of the legitimacy of armed force, when authorized by the Security Council to protect a population from genocide, war crimes, ethnic cleansing, and crimes against humanity. This was a juridically normative breakthrough, as regards the legal legitimacy of the use of force by the UN.
Only 13 years earlier the present writer had, reluctantly, concluded that ‘collective humanitarian intervention’ (that is, with Security Council authorization) may not be acceptable ‘in the absence of a threat to international peace and security manifested by palpable transborder consequences’.18 This seemed to be a conclusion flowing from the inability of the Council to invoke Chapter VII in its resolution 688 (1991) on humanitarian assistance to the oppressed Kurds of northern Iraq and the Council’s presumed reluctance expressly to authorize the enforcement of safe havens for the Kurds of northern Iraq.19 This was despite the fact that, up to that point, legal force had been used to drive Iraq out of Kuwait.20
Indeed, only a year before the World Summit, the High-Level Panel that embraced the concept of R2P was only able to endorse ‘the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort’.21 A year later the norm was no longer ‘emerging’, it was acclaimed. Nor was it a ‘flash in the pan’, mere pious words from a body that could only recommend. In the following year the Security Council itself adopted resolution 1674 (2006). By that resolution the Council explicitly ‘[r]eaffirm[ed] the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes and crimes against humanity’ (paragraph 4).
As will appear, there remain problems for the implementation of the norm, relating to proportionality, appropriateness, practicality, and political feasibility, but the norm itself has emerged and there can be no putting ‘the genie back in the bottle’.
The next question to be addressed is the nature of the harms that R2P may be mobilized to prevent or repress.
(p. 193) Violations Triggering R2P
It is noteworthy that the term ‘human rights’ does not appear in the R2P paragraphs of the World Summit Outcome Document, albeit they appear in a chapter headed ‘Human Rights and the Rule of Law’ (chapter IV). It was earlier in that chapter that the previously noted acknowledgement of a responsibility to respect human rights had appeared.
What was always clear was that the Security Council was never going to evolve into a general human rights enforcement mechanism. Its powers, particularly its powers to deploy or authorize the deployment of armed force, would always have to be reserved for the gravest human rights situations. Language such as ‘massive violations’ tended to be used to characterize the situations that could be deserving of an enforcement response.22 Thus, the International Commission on Intervention and State Sovereignty (ICISS), whose work in developing the concept of R2P was influential with the High-Level Panel, affirmed that military intervention would be warranted only where there was ‘serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind’:
A. 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
B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.23
In fact, in its choice of harms, justifying Security Council action R2P, the World Summit was able to gain inspiration from the intersection of three areas of international law, notably, international criminal law (ICL), international humanitarian law (IHL), and international human rights law (IHRL), thanks to the adoption of the Rome Statue of the International Criminal Court (ICC) seven years earlier.
Apart from the crime of aggression,24 all three categories of crime within the Court’s jurisdiction under Article 5 of its Statute involved substantial human rights elements together with a context of substantial scale.
Genocide as defined in Article 6, following the Genocide Convention,25 is a crime against groups as such, rather than individuals, the beneficiaries of human rights norms.26 However, the individual members of the group targeted for destruction are clearly victims or potential victims of various violations of human rights, including the right to life or the right not to be subjected to cruel, inhuman, or degrading treatment or punishment, together with the right not to be subject to discrimination on grounds of race or national or ethnic origin or of religion.
As will be seen, genocide appears covered also by various crimes against humanity; indeed, it was as a crime against humanity that genocide was prosecuted in Nuremberg.
(p. 194) Crimes against Humanity
The notion of crimes against humanity, as defined in the ICC Statute arguably covers the most basic civil and political rights, as long as the context in which the acts take place is one that reflects the element of scale. That is, they must be ‘committed as part of a widespread or systematic attack directed against any civilian population’ (Article 7(1)).
So, ‘murder’ and ‘exterminations’ evidently fall within the right to life, constituting arbitrary deprivation of life.27 ‘Enslavement’ is clearly covered by the prohibition of slavery or servitude.28 ‘Deportation and forcible transfer of population’ are manifestly at odds with freedom of movement.29 ‘Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’ must contemplate the right to liberty and security of person and the prohibition of arbitrary arrest or detention.30 ‘Torture’ is evidently torture as contained in the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.31 The crime against humanity of ‘other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mind or physical health’ would likely be embraced by most of the prohibition of other ‘cruel, inhuman or degrading treatment or punishment’. So would ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’ which could also be classified as torture or cruel, inhuman, or degrading treatment. Other human rights engaged by this crime include the prohibition of discrimination on grounds of sex and the prohibition of slavery and servitude. ‘Enforced disappearance’ is an extreme manifestation of arbitrary arrest and detention and typically engages the right not to be subjected to torture or similar ill-treatment (including in respect of the affected family members), the right to life, and the right to be treated as a person before the law.32 Finally, ‘persecution’ will concern any of the rights already mentioned as it is only committed in connection with other crimes within the jurisdiction of the Court. Since the grounds of persecution are that it be directed against a group on political, racial, national, ethnic, cultural, religious, or gender grounds, it will then engage that broad range of non-discrimination rights, to the extent that the core crime does not already engage them.33 The (obsolete) crime of apartheid was no doubt included for political reasons and, perhaps, because together with torture, it was the only human rights crime in respect of which a treaty provided for universal jurisdiction over perpetrators.
It is not so straightforward to assign war crimes to human rights categories. For instance, any killing that would be a war crime under international humanitarian law might superficially seem like a potential violation of the right to life and any wording that would be a war crime could similarly appear assignable to the human right not to be subject to cruel, inhuman, or degrading treatment. Indeed, there is no doubt that any war crime can theoretically trigger R2P, though it probably would not be realistic unless (p. 195) it fell into the category that, under Article 8(1) of the Rome Statute, was ‘in particular … committed as part of a plan or policy or as part of a large-scale commission of such crimes’.
As already noted, the paradigm context for human rights violations is when an entity capable of violating a human right has the rights-holder in its effective power or control. Here, the part of IHL coming closest to reproducing or at least analogizing that paradigm is that which protects persons ‘in the power’ of a party to the conflict. Indeed, these are the elements of IHL that the International Court of Justice has identified as the ‘fundamental general principles of humanitarian law’,34 as found in common Article 3 to the four Geneva Conventions of 12 August 1949. These are:
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture.
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment.
(iii) Taking of hostages.
(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.35
The first two of these almost reproduce previously identified human rights norms. The prohibition of taking hostages presumably mirrors at least the right to liberty and security of person, as well as potentially the right to life. The final element evidently mirrors the right to a fair and equitable trial or ‘due process’. To the aforementioned war crimes the Rome Statute adds rape and other sexual crimes already defined as crimes against humanity, the human rights dimensions of which have been mentioned; ‘subjecting persons to physical mutilation or medical or scientific experimentation’ not justified by medical necessity, a recognized form of prohibited cruel or inhuman treatment;36 and ‘conscripting or enlisting of children under the age of fifteen years … or forcing them to engage in hostilities’, a prohibition reflected in and borrowed from Article 38 of the Convention on the Rights of the Child.37 Anomalously, there is at least one war crime in the Rome Statute that is effectively a crime against humanity, but is applicable as a war crime only in international armed conflicts, and is not explicitly listed as a war crime in armed conflicts not of an international character; that is ‘unlawful deportation or transfer or unlawful confinement’.38
It will have been noticed that ethnic cleansing is not found expressly in the Rome Statute. Its inclusion as one of the bases for R2P undoubtedly reflects the world community’s rejection of a phenomenon of recent memory that had occurred as part of the disintegration of the former Yugoslavia. As the federal or other autonomous component (p. 196) struggled to emerge as independent sovereign states, the majority populations took action to encourage or compel minority populations to leave including, but not only, by means of genocidal acts.39 The Muslim populations of parts of Bosnia and Kosovo were the most numerically substantial victims. This made the issue particularly sensitive to the large number of states whose populations share the same religion. In fact, it is generally agreed that the components of ethnic cleansing are already covered by existing crimes within the jurisdiction of the ICC. Thus, massacres of the kind that occurred in Srebrenica are both acts of genocide and the crimes against humanity of murder and extermination. Other manifestations of ethnic cleansing would, if not amounting to genocide, constitute such crimes against humanity as deportation or forcible transfer of population, persecution or ‘other inhuman acts’ and they would also, accordingly, fall within the previously identified comparable war crimes and, therefore, engage the previously identified human rights rules.
At this point a further clarification of the differences between ICL, IHL, and IHRL needs to be made. ICL and that part of IHL (war crimes) falling within ICL targets individual perpetrators direct. It is individuals who are the perpetrators that come before international criminal tribunals; they are the persons who commit crimes under international law. This is an exception to the general rule, whereby states are the violators. As far as IHRL is concerned the general rule is also the conceptually appropriate rule. Human rights are paradigmatically those fundamental legal principles that states are required to comply with in their relations with those subject to their jurisdiction. Individuals are the rights-holders; states are the duty-bearers. It may be that IHRL requires states to prosecute and punish individuals, especially responsible state agents, who have, for example, inflicted certain kinds of harm that amount to deprivation of life or assault or physical or mental integrity protected by human rights norms,40 but those individuals have not necessarily committed a crime under international law as discussed previously.
Particularly significantly, it may be that acts that violate ICL may not necessarily violate IHRL. For the latter, as has been seen, requires an entity exercising effective power or control over a population or area and that the victims are personally under such authority or control. The entity is typically a state. And indeed all treaty-based IHRL makes states the duty-bearers.
Conceptually, however, an entity exercising effective power other than a state could reproduce the human rights paradigm, but there is a very little international law practice dealing with such non-state entities.41 Evidently a party to an armed conflict possessing the attributes laid down in Additional Protocol II to the Geneva Conventions would meet this human rights paradigm.42 It is unclear whether parties not possessing the same attributes may still be parties to such a conflict under common Article 3. There is no requirement that there be a party to the commission of crimes against humanity (other than the state itself, if its personnel commit such crimes), but it is also clear that there has to be an organizational underpinning for non-state commission of such crimes. The requirement is implicit in the notion of an ‘attack’ against a civilian population. It is made explicit in the Elements of Crimes: these require that the acts be (p. 197) committed ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’.43
Thus, while there must be an organization via which the attack within which a crime against humanity is committed, the organization does not necessarily have to control territory and population for the threshold to be met. This was exemplified by the categorization by Mary Robinson, the UN High Commissioner for Human Rights of the 11 September 2001 attack by Al-Qaeda on New York’s World Trade Center as a crime against humanity.44
It is also significant that not all civil and political rights are engaged by crimes against humanity or war crimes. The most evident ones, indeed, are those that are considered non-derogable in international human rights treaties, even in time of war or public emergency: the prohibition of discrimination, of torture and other ill-treatment, of slavery and the rights to life, and to be treated as a person before the law. It is generally understood that some derogable rights may not be derogated from in their essential nature, notably, the rights to liberty and security of person and to due process.45
Accordingly, just as there is no necessary identity between rights-holders and duty-bearers under IHRL, on the one hand, and ICL/IHL on the other, so their fields of application are not co-extensive. This compels the conclusion that it would be misleading to see R2P as a straightforward development in the implementation of IHRL. Indeed, the very context of engaging ICL/IHL with their framework of mass victimization is at odds with the human rights paradigm of individuals being the rights-holders and every single individual being a beneficiary of IHRL and capable of vindicating his or her rights under that law.
Criteria for Resort to R2P Coercive Measures
As earlier indicated, the use of coercive measures, especially armed force, is not the preferred method of implementing pillar 3. The response has to be ‘reasoned, calibrated and timely’.46 As the Secretary-General pointed out in his 2012 report to the Security Council and the General Assembly, the Chapter VI range of diplomatic and humanitarian and other peaceful means should be used where possible.47 However, as he also points out in the same report, ‘coercive measures should neither be left out of our comprehensive strategy nor set aside for use only after all other measures have been tried and found to be inadequate’.48 So, there can be no graduated check-list, each of which has to be experimented with, when it is clear that some measures are going to be inadequate and the lives of many may be at stake. There can be ‘no template for decision-making in such situations’.49 Once the genocide in Rwanda had started, it was clear that only armed action could have stopped it. Diplomatic measures or even sanctions would have been fruitless. Regrettably UNAMIR was prevented from doing it and it fell to the invading Rwanda Patriotic Front forces to fulfil the task and only after people had been hacked to death in the hundreds of thousands.50
(p. 198) The traditional international law notions of necessity and proportionality are apposite. These are the same principles that would be considered conditions for a lawful humanitarian intervention, were that doctrine to become lawful again (if it ever was). They are also the principles in play for testing the legality of an asserted act of legitimate self-defence.
According to the principle of necessity, the coercive measure must be undertaken as a last resort.51 This applies even to coercive measures not involving the use of armed force. It means that the measure must be the minimum necessary to achieve the objective. In other words, no lesser measure would be expected to be successful. Evidently, once armed force is the only option commending itself, again it must be the least destructive mode capable of stopping the atrocities requiring termination.
The principle of proportionality has to do with a balancing of means and ends. To give a blunt example, if the only predictable means of saving lives is by sacrificing more lives, be they those of the affected population (or perhaps those of the intervening forces) then the principle of proportionality will not be met. As I have put it elsewhere, there is no justification for using a medicine that kills the patient. A related, or perhaps more accurately a variation of the same principle is proposed by the Commission on the Responsibility to Protect. This says that there must be ‘reasonable prospects’ of success in ‘halting or averting the atrocities or suffering that triggered the intervention in the first place’.52
Another principle is that of disinterestedness or what the Commission calls ‘right intention’.53 This principle demands that the main purpose be the humanitarian goal, not the advancement of any political or territorial objective of any particular state or group of states, especially those that may be providing the intervening forces. Unfortunately, the principle of disinterestedness cannot be expected to achieve a counsel of perfection: not all situations characterized by the four kinds of crime identified by R2P will be susceptible of international intervention. This may be because there are no practically available forces as a consequence of activities elsewhere or, more abjectly, because some states, especially those with or protected by the veto power or otherwise militarily powerful, are immune from effective external compulsion. This is no new fault line in the structure of international relations.54 Nor does it justify abandoning populations that could be rescued, simply because consistency is not possible.
This disparity evidently offends basic notions of equity and fairness. Indeed, it calls into question the scope of the responsibility to protect. While no principle should be expected to be stretched to the point of impossibility of performance, the present and foreseeable prevalence of inconsistency over consistency makes it hard to speak properly of an external responsibility to protect. Rather, it may be more appropriate to conceive of the responsibility to protect, to the extent that it connotes legal responsibility as vesting in the state where the atrocities are occurring. For the rest, it is less obvious that one may see the intervention possibilities of the international community in terms of implementing a legal duty. After all, one does not typically find even the failures of the UN since its founding to maintain international peace and security as traditionally (p. 199) understood, including the myriad veto-induced failures, being described as breaches of legal obligation.
On the other hand, a persuasive case has been made that there is a ‘special responsibility’ (as opposed to the ‘general responsibility’ of the state suffering the violations) on at least the P5 members of the Security Council to do what they realistically can and, in particular, to refrain from wielding a politically interested veto to block action.55 At this stage that responsibility may be more evident as a concept of international relations—a political responsibility—than of law. Nevertheless it would be desirable that the law catch up. If what is known as the ‘French proposal’, that the P5 abstain from using the veto in R2P-type situations, were to be adopted, that would be potent evidence of the juridical emergence of the special responsibility.56
Other chapters of this book examine cases that may shed light on R2P in practice, but an international lawyer must also take account of practice, since this is a necessary aid to interpretation. As we have seen already, the arrival of R2P represented at least the codification of a substantial change in the interpretation of the UN Charter, especially its Articles 2(7) and 39.
The World Summit Outcome Document did not emerge without antecedents. Most notably, the 1990 ECOWAS intervention in the brutal Liberian civil war may be seen in retrospect as a manifestation of R2P in action. It is true that the action was undertaken by ECOWAS without Security Council approval and, at the time, appeared to violate the Charter Article 53 requirement for Security Council authorization. However, two years later, Security Council resolution 788 (1992) commended ECOWAS ‘for its efforts to restore peace and security to Liberia’ and further imposed an arms embargo on the parties under Chapter VII.
Later the establishment of UNMIL would be approved under Chapter VII, its most recent renewal occurring in December 2014, by resolution 2190 (2014). This resolution specifically refers to the primary responsibility of Liberia to protect its population.57 Note, however, that the Security Council is no longer acting against the wishes of the Liberian government.
If the apparent illegality was transformed into lawfulness, this presumably was because either post hoc as opposed to prior authorization is sufficient or because a latent rule of recognition in international law allows for community determination of the legal significance of acts of doubtful legality.58
Since the adoption of resolution 1674, the Security Council appears as of the end of 2014 to have referred to R2P in some 26 resolutions (other than in respect of Liberia), which referred to nine country situations.59 In respect of three of the countries, the UN action was in support of the constitutional authorities (Mali, Somalia, and South Sudan).60 In respect of one, Yemen, no action was taken beyond an invocation of pillar 1 language.61 Five of the resolutions dealt with the Central African Republic, where (p. 200) the international intervention was motivated because of the total collapse of law and order.62 The deployment of UNMIS personnel in Darfur, which was portrayed as targeting the activities of unofficial, albeit pro-Khartoum, militia,63 was authorized by resolution 1706 (2006) which explicitly invoked resolution 1674. This was adopted with three abstentions (China, Russia, and Qatar) motivated by the absence of Sudanese consent.64 On the other hand, the Sudanese authorities did not seek physically to restrict the operation. Similarly, Côte d’Ivoire, in a situation of political strife, did not seriously resist the deployment of African and then UN peacekeepers, albeit the decision was taken against the will of (former) President Laurent Gbagbo and so, like resolution 1706 on the Sudan, represented a real intervention.65
The last two of the nine countries, Libya and Syria, typify the difficulty of understanding and implementing R2P. Of some five resolutions on Libya the most important was resolution 1973 (2011). Invoking Chapter VII, this authorized the enforcement, using ‘all necessary means’ (the standard code aimed at covering military action), of a no-fly zone by a coalition of military forces led by France and the United Kingdom and other military action to protect civilians. It built on an earlier resolution that had already imposed an arms embargo under Chapter VII.66 The resolution invoked ‘the responsibility of the Libyan authorities to protect the Libyan population’.67 On the other hand, it studiously avoided reference to resolution 1674, while at the same time it did invoke resolution 1738 on the protection of journalists in armed conflict. The resolution was adopted with five abstentions, some of the abstainers making it clear that they were not voting against in the light of the fact that the League of Arab States supported the resolution.68 The effect of the military measures was to create air support for the insurgents and the removal of the Gadhafi regime appeared as the goal. The achievement of the goal incited vigorous protests by some of the abstaining states, notably China and Russia.69
It is the threat of a veto by these states that has stymied the Security Council in authorizing coercive measures in respect of the Syrian conflict. They maintain that they do not trust Western-led states not to exceed a mandate to protect civilians and not to move towards regime change. It took until February 2014 for the Council to adopt a resolution, generally aimed at all parties to the conflict, and focusing on securing access by providers of humanitarian assistance. It did, however, stress the authorities’ role in some paragraphs, specifically condemning ‘the widespread violations of human rights and international humanitarian law by the Syrian authorities’.70 It effectively invoked pillar 1 by stressing ‘the primary responsibility to protect its population is with the Syrian authorities’.71 No specific measures by the international community were demanded. The resolution failed to lead to substantial improvement, so in July 2014 the Council adopted resolution 2165 (2014). This resolution imposed a limited measure, namely, that humanitarian agencies be allowed access to parts of Syrian territory not under the control of the authorities and implicitly without the consent of the Syrian authorities.72 The Council also considered ‘the deteriorating humanitarian situation’ to constitute the threat to international peace and security that it blatantly was, but it did not invoke Chapter VII. On the other hand, it did affirm the obligation of Member States ‘under Article 25 of the Charter of the United Nations to accept and carry out Council decisions’.73 This was (p. 201) an implicit reference to the doctrine of the ICJ in the Namibia Advisory Opinion. This asserted, controversially, that the Council could take decisions under Charter Article 24 that would be binding on all members by virtue of Article 25, even if they were not taken pursuant to the specified grants of power under various other chapters of the Charter, as long as they were ‘consistent with the fundamental principles and purposes’ of the Charter.74 Still, it must be stressed that the only purported encroachment on Syrian ‘sovereignty’ was by way of securing humanitarian assistance to people in Syrian territory outside the control of the Syrian authorities.
As of the time of writing, the situation in Syria has so deteriorated, with the insurgency now comprising substantial, if not preponderant elements of so-called Islamic jihadists, whose intoxication with flaunting cruelty and ruthlessness mocks world community values,75 that it is not clear that the outside world has the political or military will and resources to alleviate it, regardless of Security Council powers.
The UN’s understanding of the scope of its functions under the Charter has developed radically from its early days. It moved, first, from an interpretation of its powers under Article 2(7) that excluded consideration of states’ human rights performance to one that permitted intrusive consideration, including by means of fact-finding, of extensive human rights violations. In some cases under Commission on Human Rights (now Human Rights Council) thematic procedures this included consideration of individual cases, even in the absence of a complaints procedure under a human rights treaty. Yet, even after this movement, the Security Council generally refrained from consideration of human rights issues in specific countries despite the real or potential trans-border disruption that ‘internal’ human rights situations could generate, as exemplified by Iraq in the early 1990s and Kosovo later in the decade.
This reluctance doubtless reflected not only the traditional flat rejection of the notion of ‘humanitarian intervention’ by single or groups of states, but also a belief that human rights problems ought not to be considered as threats to international peace and security. To the extent that R2P accepted not only discussion by but also intervention under the authority of the Security Council, with little by way of precedent (except perhaps for Liberia), this must be seen as a paradigm change relating to the legitimacy of the use of force by the UN. The fact that there are conditions for justifying such use of force, notably compliance with the traditional principles of necessity and proportionality and the R2P-specific one of neutrality, does not diminish the nature of the paradigm change.
It is less certain that a paradigm change has occurred in IHRL. First, R2P does not cover all human rights, nor even all civil and political rights. Second, the context of armed conflict or an attack against a civilian population, and/or the target being a group, distances R2P from the traditional human rights paradigm involving the relationship between the state (or other entity exercising similar effective power) and each single (p. 202) individual subject to its jurisdiction. Third, the perpetrators will not necessarily be state agents (or even agents of another entity exercising similar effective power).
Meanwhile, it is necessary to be cautious about the practical impact of the new paradigm that is R2P. The aspiration for disinterestedness, like truth, is something to be aimed at, but cannot be guaranteed. Not all situations deserving R2P action will receive it, whether because of limited military resources, absence of political will (especially in the light of the current state of apparent mistrust among the P5), or political or military invulnerability of the state in question.
This suggests that the legal responsibility part of R2P resides in pillar 1: the responsibility of the state where the violations are occurring. There is now a political responsibility and there may also be a legal responsibility on the UN, and the Security Council in particular, not to ignore a potential R2P situation, but, however regrettably, we cannot yet discern an unambiguously legal responsibility of the organization to put an end to the situation.
Still, a path once seemingly closed is now open and it may be expected that some populations may be able to be rescued from the extreme misery their governments or others may inflict on them.
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(2.) Thus, the initial International Bill of Human Rights was to consist of the Universal Declaration of Human Rights (UDHR) to be adopted by General Assembly resolution (so not per se binding) and a treaty that would transform the broad principles of the Declaration into binding legal rules for states that would become party to it. Eventually two treaties emerged, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) and Optional Protocol to the latter to complete the International Bill. The former would be supervised by ECOSOC itself, the latter by a Human Rights Committee of 18 independent experts. There are now ten core human rights treaties and treaty bodies. Note, ECOSOC established a Committee on Economic, Social and Cultural Rights, modelled on the Human Rights Committee, to discharge its own functions under the ICESCR.
(4.) Observations of contemporaneous participants shared with the present author.
(5.) The mandate of the Working Group on Arbitrary Detention empowers the group to ‘investigate cases’ within its mandate: Commission on Human Rights resolution 1991/42. More recently, the current Special Rapporteur on torture, Juan Mendez, has been drawing conclusions in respect of individual cases: see, e.g. Report, Addendum, Observations on communications transmitted to Governments and replies received (United Nations General Assembly 2013, A/HRC/22/53/Add.4).
(8.) According to Article 2(4): ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’
(17.) Emphasis added.
(30.) United Nations General Assembly 1966, Article 9; on the scope and nature of the right to liberty and security of person and of arbitrary arrest and detention, see United Nations Human Rights Committee 2014, Article 9: ‘Liberty and Security of Person’.
(31.) United Nations General Assembly 1966, Article 7; for the purposes of the Rome Statute, torture is defined in Article 7(2)(e). On varying definitions of torture, notably Rome Statute Article 7(2)(e), Elements of Crime referring to the ‘war crime’ of torture, Articles 8(2)(a)(ii)-1 and 8(2)(e)(i)-4, see Rodley and Pollard 2009, chapter 3.
(33.) Thus, Article 2 of the ICCPR requires Covenant rights to be respected and ensured ‘without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’; Article 26 prohibits discrimination on the same grounds in respect of national legal rights too—the so-called ‘free-standing’ non-discrimination provision.
(35.) This is the order of principles found in the Rome Statute Article 8(2)(c), which inexplicably inverts sub-paragraphs (ii) and (iii) from the comparable provisions of common Article 3.
(36.) The full text of ICCPR Article 7 reads: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.’
(37.) According to the second Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the operative minimum age would have been 18, not 15.
(38.) Rome Statute Article 8(2)(a)(vii); however, arguably the point may be covered by the Article 8(2)(c)(viii) war crime, in respect of a non-international armed conflict, of ‘ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand’.
(42.) According to its Article 1, the Protocol applies to a state’s armed forces and ‘dissident armed forces or other armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations’. This standard would, for example, have covered the Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers) in respect of the areas they controlled in northern Sri Lanka before their defeat in 2009.
(45.) See Office of the High Commissioner for Human Rights 2001, States of Emergency, para. 4, 118, 16; and United Nations Human Rights Committee, paras. 66 and 67.
(57.) Preambular para. 3 and operative para. 1.
(60.) Somalia: resolution 2093 (2013); Mali: resolution 2100 (2013); South Sudan: resolutions 2109 (2013), 2155 (2014), and 2187 (2014).
(62.) Resolutions 2121 (2013), 2127 (2013), 2134 (2014), 2149 (2014), and 2196 (2015).
(67.) Preambular para. 4.
(68.) The abstainers were Brazil, China, Germany, India, and Russian Federation; the first three of these explained their not opposing passage of the resolution by reference to the League of Arab States support for it: United Nations Security Council 2011, S/PV.6498.
(72.) This was in the light of Secretariat reluctance to engage in relief operations not authorized by the government of a UN Member State. That position was challenged in an Open Letter signed by 35 international lawyers, including the present writer; see Borger 2014.
(73.) Preambular para. 19.