R2P s Responsibility to Prevent and React: a Legal Added Value or an Empty Shell?

Transcription

1 R2P s Responsibility to Prevent and React: a Legal Added Value or an Empty Shell? Tessa Alleblas, Deken Sandersstraat HH, Tilburg University of Tilburg Master International and European Public Law (accent on Human Rights Law) May 2010 Examination Committee: S. Jansen LLM & Mr. Dr. A.K. Meijknecht

2 It is hard to believe how long it has taken the world s policymakers to come to grips with the idea that there is something insanely, indefensibly wrong about states killing or forcibly displacing large numbers of their own citizens, or standing by when others do so, and that it is unacceptable for the rest of the world to stand by allowing this to happen. 1 1 G. Evans, The International Responsibility to Protect: The tasks ahead. The problem from hell, seminar Africa s Responsibility to Protect, the Centre for Conflict Resolution, April 2007, < 2

3 Table of content INTRODUCTION 5 CHAPTER 1 RESPONSIBILITY TO PROTECT: AN INTRODUCTION 1.1 Introduction The development of R2P From UN Charter to ICISS The Commission s report Other High-level documents dealing with R2P From humanitarian intervention to R2P The main aspects of R2P Controversies of R2P A limitation of sovereignty? A difference between humanitarian intervention and R2P? Critiques and weaknesses of R2P Critiques of opposing states Other weaknesses Conclusion 21 CHAPTER 2 RESPONSIBILITY TO PREVENT 2.1 Introduction Responsibility to prevent Commitment of prevention Early warning Preventive toolbox Root cause prevention Direct cause prevention Political will Responsibility to prevent in Darfur Early warning in Darfur Preventive measures in Darfur Political will in Darfur 31 3

4 2.4 Gaps in the framework of the responsibility to prevent 33 CHAPTER 3 RESPONSIBILITY TO REACT 3.1 Introduction Responsibility to react Measures short of military force Deciding to intervene - criteria of Just War SC as a source of authority: drawbacks and alternatives Responsibility to react in Darfur Reaction of the AU Non-military action: negotiations and ceasefires Military action: AMIS The support of the EU and NATO Reaction of the UN: resolutions, sanctions and missions Reaction of the USA Assessment of reaction in Darfur Measures short of military force in Darfur The possibility of military intervention in Darfur Gaps in the framework of the responsibility to react 49 CONCLUSION 51 BIBLIOGRAPHY 55 4

5 Introduction In the past few decades, the international community has regularly been shocked by news reports from Rwanda, Srebrenica or East-Timor. Many got confronted with horrifying images of horrendous crimes sometimes even committed by the states themselves. What makes this all the more tragic is that the international community in several cases just stood back and turned a blind eye to atrocities when these occurred. When the international community indeed took action it was counterproductive, incomplete or too late. Let us take a closer look at the situation in Rwanda. In 1994, a systematic massacre took place of eight hundred thousand Rwandans, including Tutsis and moderate Hutus. This happened in only one hundred days. 2 The génocidaires could commit these crimes while the international community had its eyes closed. After publications of scholarly works it became clear that the genocide perchance could have been prevented if action was taken timely. Opportunities were in addition missed to diminish the destructiveness of these crimes. It appeared that the international institutions were not capable of stopping the killings, neither had the international community the political will to engage in a country such as Rwanda with limited strategic interests. All this led to debates and discussion about the existing international legal order, with a specific emphasis on the non-intervention principle. 3 Some tried to challenge these problems of which former Secretary-General (S-G) Kofi Annan is an example. In 1999, and again in 2000, he questioned how to prevent tragedies as that of Rwanda. 4 Two years later, the International Commission on Intervention and State Sovereignty (ICISS) wrote down the concept Responsibility to Protect (R2P). This entails that every state has the primary responsibility to protect its own people. When this state is not willing or is not able to fulfill that responsibility, the responsibility to protect shifts to the international community. R2P is divided into three underlying principles, to be more specific the responsibility to prevent, the responsibility to react and the responsibility to rebuild. In short, the responsibility to prevent entails tackling the causes of conflicts and other human-created crises. 5 The responsibility to react entails that one needs to take appropriate action, which can include non-coercive and coercive actions. 6 The responsibility to rebuild involves 2 BBC News, Rwanda: How the genocide happened, December 2008 < news.bbc.co.uk/2/hi/ stm.>. 3 J.M. Welsh, The Rwanda effect: development and endorsement of the responsibility to protect, in: After genocide. Transitional justice, post-conflict reconstruction and reconciliation in Rwanda and beyond, ed. by P. Clark, Z. Kaufman, London: Hurst, 2008, p G. Evans, From humanitarian intervention to the responsibility to protect, Wisconsin international law journal, 2006, vol. 24, issue 3, p J. Sarkin, Humanitarian Intervention and the Responsibility to Protect in Africa, in: Africa s Human Rights Architecture, ed. by J. Akokpari and D.S. Zimbler, Auckland Park : Fanele, 2008, p J. Sarkin, Humanitarian Intervention and the Responsibility to Protect in Africa, in: Africa s Human Rights Architecture, ed. by J. Akokpari and D.S. Zimbler, Auckland Park : Fanele, 2008, p

6 providing assistance with recovery, reconstruction and reconciliation. 7 In the years after publication of the ICISS s report, the concept has been acknowledged by many institutions in high-level documents. Though, some problems and discussions about the content and operationalization of R2P remain. The situation in Darfur was the first most obvious test of R2P to show its abilities and opportunities. Therefore, the Darfur crisis will function as a case-study throughout this entire research. Although Sudan has known many conflicts for years, the focus here will lie on the current conflict in the region of Darfur which began in Never again was claimed by the international community after the debacle of Rwanda. Nonetheless, crimes against humanity were committed in Darfur and it seems that even by using the worldwide acknowledged R2P, the international community still cannot prevent or stop atrocities. This leads to the central question of the thesis: To what extent is the international community legally able to fulfill its responsibility to prevent and its responsibility to react, as outlined by the ICISS, in conflicts such as in Darfur? This thesis will focus on the responsibility to prevent and react since these are the most controversial ones. In order to obtain a better understanding of the current Darfur crisis, a short history will be given before continuing with R2P. History of the conflicts in Darfur Darfur is the largest region of Sudan and consists of between forty and ninety different ethnic groups. Some groups are of African origin and some of Arab origin. In the fourteenth century Arabian nomads and herders came to Darfur and mixed with the local African inhabitants. This resulted in a blur of the division between an African and an Arabian. Until 1916, Darfur was an independent Muslim sultanate. Hereafter, Darfur became part of the British Empire and due to this it became part of Sudan. Because the British colonial rulers were only after keeping the peace and nothing more, Darfur became a neglected region for forty years without proper schools, clinics and infrastructure. 8 During the forty years that followed Darfur remained poor and underdeveloped. 9 In 1956, Sudan became independent and the British gave a minority of Arab elites in the North the political power. One year prior to the independence, the South mutinied against the North and the first war between the North and the South was a fact. It lasted until 1972 after signing a peace agreement. 10 Intensifying competition for scarce land and water resources since the 1980s due to the drought and the expansion of the civil war of its neighbouring country, Chad, to Darfur proved to be a 7 E. Greppi, The responsibility to protect: an Introduction, International humanitarian law, human rights and peace operations, ed. by Gian Luca Beruto, Sanremo: International Institute of Humanitarian Law, 2009, p New Internationalist, Darfur A history, 2007, issue 401, < 9 A. de Waal, Darfur and the failure of responsibility to protect, International Affairs, 2007, vol. 83, issue 6, p New Internationalist, Darfur A history, 2007, issue 401, < 6

7 fatal combination. 11 While militia from Arab tribes in Darfur tried to seize land from the Fur and Masalit groups, the Sudanese government did nothing to protect the latter groups. During the 1990s, parts of Darfur erupted into conflict now and then because of the tendency of the government for tackling local conflicts by distributing arms to one side in order to suppress the other. 12 In the meantime, the central government of Sudan was in conflict with the Sudan People s Liberation Army (SPLA). This was a war between on the one side the northern dominant elite of Islamic and Arab identity and on the other side the Southern Nuba people of southern Kordofan and several groups in eastern and south-eastern Sudan, also known as the war between North and South Sudan. The last group claimed to be denied their part in political power and national wealth and alleged that the use of divide-and-rule tactics by the government allowed militias to attack their livings. 13 In 1989, general Omar Al-Bashir seized power in Sudan by means of a coup. He withdrew the constitution, banned opposition parties, implemented elements of the shari a law and proclaimed jihad against the South which is dominated by non-muslims. 14 In March 2003, the current conflict began after two loosely connected rebel groups, the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM), attacked government targets to protect the local civilians. These rebellions claimed that the Sudanese government was oppressing black Africans in favor of Arabs. In the spring of 2003, the government responded with an aggressive military offence by mobilizing and arming local militias, called the Janjaweed. 15 These militia from Arab nomadic tribes, served as government proxies, though had their own territorial objectives in Darfur. Not only did the Sudanese Government arm the Janjaweed, it also trained and deployed the tribes 16 and made deals with them; the Arab immigrants could pursue their own goals with impunity, in return they had to suppress the rebellions. 17 The militias committed crimes as attacking villages, killing, looting and forcibly displacing innocent people. Moreover, there have been reports of sexual violence, abduction of girls and gang rapes with women. 18 In 2004, the Humanitarian Ceasefire Agreement (HCA) was signed by the Sudanese government, SLM/A and JEM and formed the basis for all following diplomatic efforts. This agreement allowed the African Union (AU) to send persons to the Darfur in order to monitor the 11 J.T. Hottinger, The Darfur Peace Agreement: expectations unfulfilled, 2006, < 12 A. de Waal, Darfur and the failure of responsibility to protect, International Affairs, 2007, vol. 83, issue 6, p Ibid., p Ibid. 15 K.W. Alexander, Ignoring the lessons of the past: the crisis in Darfur and the case for humanitarian intervention, Journal of Transnational law & policy, 2005, vol. 15, issue 1, p New Internationalist, Darfur A history, 2007, issue 401, < 17 A. de Waal, Darfur and the failure of responsibility to protect, International Affairs, 2007, vol. 83, issue 6, p N.J. Udombana, When neutrality is a sin: the Darfur crisis and the crisis of humanitarian intervention in Sudan, Human Rights Quarterly, 2005, vol. 27, issue 4, p

8 ceasefire together with a force that provided protection for them. 19 In the same year, the Security Council (SC) requested the S-G to establish the International Commission of Inquiry on Darfur. This Commission concluded that the government of Sudan and the Janjaweed were responsible for gross violations of international law. It believed that the acts were committed by the government and Janjaweed on a widespread and systematic basis and therefore amounted to crimes against humanity. 20 The Commission refused to identify the atrocities as genocide, since it considered that the people who had been the object of the attacks did not appear to be part of ethnic groups distinct from those to which their attackers belonged. 21 Although, the Sudanese government denied any relation with the Janjaweed and rejected any support of aid to these militias, various reports of the UN Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions, Human Rights Watch and the International Commission of Inquiry on Darfur declared the opposite. 22 The Commission recommended the S-G to refer the situation in Darfur to the International Criminal Court (ICC), which was supported by members of the Council. 23 On 31 March 2005, the SC adopted Resolution 1593 and referred the situation to the ICC. 24 Two months earlier, the government of Sudan and the SPLA signed the Comprehensive Peace Agreement (CPA), which was a result of the Navaisha talks. 25 By October, a new constitution had been ratified, a new government had been formed and sworn in and the autonomous legislature and government of the South became operational. 26 After signing the CPA, the SC established the United Nations Mission in the Sudan by passing resolution More peace talks culminated in signing of the Darfur Peace Agreement (DPA) on May 5 in After the signing, the peace process came almost to a dead-end, because of amongst others the negligence by the international community and the intransigence by the ruling party, National Congress Party (NCP) A. de Waal, Darfur and the failure of responsibility to protect, International Affairs, 2007, vol. 83, issue 6, p M. Neuner, The Darfur referral of the Security Council and the scope of the jurisdiction of the international criminal court, in: Yearbook of International Humanitarian Law, The Hague: T.M.C. Asser Press, 2005, vol. 8, p R. Cryer e.a., An introduction to international criminal law and procedure, New York: Cambridge University Press, 2007, p N.J. Udombana, When neutrality is a sin: the Darfur crisis and the crisis of humanitarian intervention in Sudan, Human Rights Quarterly, 2005, vol. 27, issue 4, p International Commission of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Geneva, January M. Neuner, The Darfur referral of the Security Council and the scope of the jurisdiction of the international criminal court, in: Yearbook of International Humanitarian Law, The Hague: T.M.C. Asser Press, 2005, vol. 8, p Ibid., p New Internationalist, Darfur A history, 2007, issue 401, < 26 The Enough Project, Sudan: roots of the crisis, < 27 UNMIS. United Nations Mission in the Sudan, UNMIS background, < 28 The Enough Project, Sudan: roots of the crisis, < 29 I.K. Souare, Sudan: What implications for President Al-Bashir s indictment by the ICC?, Institute for Security Studies, September 2008, p. 5. 8

9 Since the last years the situation in Darfur has changed dramatically: the parties have been fragmented extremely and the number of confrontations and violence has increased, though the number of deaths has reduced. In 2007, the number of victims was estimated on two and half thousand people that had died and three million that were displaced. 30 Throughout 2008, both the government and the rebellions continued attacking each other. Meanwhile NCP kept on denying the seriousness of the situation and opposed key provisions of the CPA. 31 On 4 March 2009, the ICC decided to issue a warrant against Al-Bashir concerning genocide, crimes against humanity and war crimes in Darfur. Many argued that this was a crucial step towards accountability for the four atrocities. 32 Unfortunately, the violence in Darfur continued and peace talks still went on. Early in 2010, the present S-G Ban Ki-Moon welcomed the Framework Agreement for the Resolution of the Conflict in Darfur to end the conflict in Darfur, signed by the government and JEM in Doha. 33 Overview of the approach This summary of the history of the Darfur crisis will serve as the background against which this research is set. To answer the main question the following aspects will be discussed: the history and development of R2P, two of its underlying principles, measures taken by important international players of the international community in Darfur, their assessment and possible gaps in the framework of the principles. The research will start with a chapter dealing with R2P in general. The roots and development of the concept next to its critiques and weaknesses will be discussed. The second and the third chapter will respectively discuss the responsibility to prevent and the responsibility to react. It is very difficult to distinguish prevention and reaction from each other as well as reaction from rebuilding. As will be perceived in the following chapters, preventive and reactive measures are very alike and some measures even fall within the scope of both the responsibility to prevent and the responsibility to react. In order to make a good analysis and to make it more understandable, I have made a clear distinction between these three conceptions. Prevention takes place prior to the occurrence of atrocities, though trouble ascends. Reaction, on the other hand, takes place when an objective institution believes The Enough Project, Sudan: roots of the crisis, < 30 B. Ukwuoma, Still bad news from Darfur, March 2009, < M. Banda, The responsibility to protect: moving the agenda forward, March 2007, p. 36 < > 31 B. Ukwuoma, Still bad news from Darfur, March 2009, < 32 The Enough Project, Sudan: roots of the crisis, < 33 United Nations Radio, Secretary-General welcomes agreement on Darfur, February 2010, < 9

10 atrocities are being committed. As suffering is far from over in Darfur, civilians are still being killed or displaced on a large scale and no steady and strong agreement has been signed, one speaks of a conflict meaning that measures taken are those of reaction and not of rebuilding. Despite this strict distinction, one has to keep in mind that overlap of measures is still possible, sometimes even mandatory to avoid lacuna in protection, and measures from different responsibilities can be deployed simultaneously. These principles of R2P will be examined by testing them to the situation in Darfur. Because it is impossible to assess all measures and actions taken in Darfur involving prevention or reaction, this research will only focus on the most important acts and measures of the main international actors. Measures that are taken to prevent the crisis and to respond to the crisis by institutions as the SC, the AU, the European Union (EU), North Atlantic Treaty Organization (NATO) and countries as the United States of America (USA) will be presented. The reasons to select these organizations are that the AU is seen as the leader in taking action in Darfur; the other organizations as well as the USA have been leading actors in other conflicts in the past. NATO and the EU are worth mentioning in particular, since these organizations were requested by the AU to help supporting the AU mission. The measures will be assessed to what extent they are in conformity with the responsibility to prevent and the responsibility to react as they are laid down in the report of the ICISS. Hereafter, the fundamental legal difficulties of the underlying principles will be described and analyzed. Finally, in the fourth chapter I will give a conclusion, answer the central research question and give recommendations. 10

11 Chapter 1 Responsibility to Protect: an introduction 1.1 Introduction Although the focus of this research lies on a part of R2P, that is to say two of its underlying principles, it is clear that for understanding these principles, R2P in general must first be understood. Therefore, this chapter will provide an introduction to the concept and will specifically pay attention to the origins and the development of the concept. It recognized a change in the notion of sovereignty, jurisdiction and human rights. Furthermore, it is a new commitment of protection of threatened people. 34 This chapter will successively discuss the development of R2P, the report of the ICISS, the main aspects of R2P, controversies that surround R2P and finally significant critiques and weaknesses. 1.2 The development of R2P From UN Charter to ICISS Although it is argued that R2P is a whole new idea, the concept is not that original and fresh. The real beginning of R2P even goes back to the end of the Second World War in The concept has recently been defined, however it has been present implicitly from the beginning of the Charter of the United Nations (UN). 35 In article 2 (4) 36 of this document, the use of force is prohibited in order to stop the wars of states amongst each other. The founders of the Charter formulated only two exceptions which are self-defense and authorization of the SC. The non-intervention principle spelled out in article 2 (7) 37 was seen as a defense against threats and pressures from the promotion of economic and political interests of other more powerful states. 38 States agreed on one exception to this norm that is the Genocide Convention of 1948 which imposes a duty to prevent and punish. This duty can be seen as a responsibility of the state to protect possible victims of genocide and to punish 34 C.G. Badescu, The responsibility to protect: embracing sovereignty and human rights, in: Negotiating Sovereignty and Human Rights. Actors and Issues in Contemporary Human Rights Politics, ed. by N. Shawki and M. Cox, Farnham: Ashgate, 2009, p R. Thakur, T.G. Weiss, R2P: from idea to norm-and action?, in: Global Responsibility to Protect, ed. by A.J. Bellamy, S.E. Davies, L. Glanville, Leiden: Martinus Nijhoff Publishers, 2009, vol. 1, issue 1, p Article 2 (4) of the Charter of the United Nations 1945: 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. 37 Article 2 (7) of the Charter of the United Nations 1945: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state. 38 G. Evans, From humanitarian intervention to the responsibility to protect, Wisconsin international law journal, 2006, vol. 24, issue 3, p

12 perpetrators. 39 Unfortunately, during the Cold War not much was done with the provisions of the Genocide Convention and the non-intervention principle remained to be one of the strongest commitments of the international community. After the Cold War, which ended in the 1990s, the problems of intra-state conflicts, internal violence and civil war came to the surface. However, old habits die hard and the international community still preferred its non-intervention principle. The conflicts in Somalia, Rwanda, Bosnia and Kosovo asked for a response from the international community, nevertheless it did not react (Rwanda), react counterproductive or incomplete (Somalia, Bosnia and Kosovo). 40 In the case of Rwanda, the SC acted passively towards the crisis although it was known by some of the permanent members of the SC and the Secretariat of the UN that genocide was planned by officials connected to the Rwandan government. UN forces were present in Rwanda, nevertheless, the SC refused to take the necessary action. It could be said that there was a lack of political will. 41 In the case of Kosovo action did take place and the international community intervened, though it acted without the authorization of the SC. 42 It was even alleged that the intervention generated more victims than that it avoided. What is more, the way NATO conducted its air campaign was criticized. 43 These events and the non or inadequate response of the international community played an important role in the development of R2P. 44 In 1999, at the 54 th Sessions of the General Assembly (GA), the former S-G Kofi Annan challenged the international community to prevent humanitarian tragedies similar to that of Rwanda and asked the community to develop consensus on how to respond to such situations by raising the question: (I)f humanitarian intervention is indeed and unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica to gross and systematic violations of human rights that affect every precept of our common humanity? J. Sarkin, Humanitarian Intervention and the Responsibility to Protect in Africa, in: Africa s Human Rights Architecture, ed. by J. Akokpari and D.S. Zimbler, Auckland Park: Fanele, 2008, p. 51. J. Sarkin, The role of the United Nations, the African Union and Africa s Sub-Regional organizations in dealing with the Africa s human rights problems: connecting humanitarian intervention and the responsibility to protect, Journal of African Law, 2009, vol. 53, issue 1, p G. Evans, From humanitarian intervention to the responsibility to protect, Wisconsin International Law Journal, 2006, vol. 24, issue 3, p P. Niemelä, The politics of Responsibility to Protect: problems and prospects, Helsinki: Erik Castrén Institute of International Law and Human Rights, 2008, p. 6. E. Greppi, The responsibility to protect: an Introduction, International humanitarian law, human rights and peace operations, ed. by Gian Luca Beruto, Sanremo: International Institute of Humanitarian Law, 2009, p G. Evans, From humanitarian intervention to the responsibility to protect, Wisconsin International Law Journal, 2006, vol. 24, issue 3, p E. Greppi, The responsibility to protect: an Introduction, International humanitarian law, human rights and peace operations, ed. by Gian Luca Beruto, Sanremo: International Institute of Humanitarian Law, 2009, p J.M. Welsh, The Rwanda effect: development and endorsement of the responsibility to protect, in: After genocide. Transitional justice, post-conflict reconstruction and reconciliation in Rwanda and beyond, ed. by P. Clark, Z. Kaufman, London: Hurst, 2008, p G. Evans, From humanitarian intervention to the responsibility to protect, Wisconsin international law journal, 2006, vol. 24, issue 3, p

13 In addition, the Independent International Commission on Kosovo (IICK) 46 published a report in 2000 that examined the intervention by NATO in Kosovo. In this report the IICK struggled with the problem of the (il)legality of the intervention. It concluded that (t)he NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the SC. However, the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule. 47 The IICK stressed that there was a need to close the gap between legality and legitimacy. The Commission called for a principled framework for humanitarian intervention that could function as a guide for future responses to impending humanitarian disasters and that could be used to assess claims for humanitarian intervention in the past. It recommended that such a framework should be adopted by the GA in a modified form such as a Declaration on the Right and Responsibility of Humanitarian Intervention. The Commission suggested the adaption of the UN Charter to this declaration by upgrading human rights and conditioning sovereign rights on respect for human rights and the maintenance of the capacity to govern. Alternatively, it recommended that the SC could interpret the Charter explicitly with a case-by-case approach. The task of drafting this framework was given to the ICISS, established by the government of Canada. 48 In December 2001, the Commission submitted its report to the GA The Commission s report The ICISS, chaired by Gareth Evans and Mohamed Sahnoun, is an independent body which represented perspectives of both developed and developing countries. 49 It had been given the task to reconcile the sovereignty principle with the protection of human rights and the opposing views on 46 The Independent International Commission on Kosovo carried out an impartial investigation into the origins, the endeavors of the diplomatic community to end it and the role of international organizations such as the UN and NATO. Intute, Independent International Commission on Kosovo, < 47 Independent International Commission on Kosovo, The Kosovo Report, October 2000, < 48 G. Evans, From humanitarian intervention to the responsibility to protect, Wisconsin international law journal, 2006, vol. 24, issue 3, p Independent International Commission on Kosovo, The Kosovo Report, October 2000, < 49 The Commission consists of members from the North and the South, thus developed and developing countries. From the South: Mohamed Sahnoun, Fidel Ramos, Cyril Ramaphosa, Eduardo Stein and Ramesh Thakur. From the North: Lee Hamilton, Gisele Cote-Harper, Michael Ignatieff, Klaus Naumann and Gareth Evans, in addition Vladimir Lukin and Cornelio Sommaruga. C.G. Badescu, The responsibility to protect: embracing sovereignty and human rights, in: Negotiating Sovereignty and Human Rights. Actors and Issues in Contemporary Human Rights Politics, ed. by N. Shawki and M. Cox, Farnham: Ashgate, 2009, p

14 humanitarian intervention. 50 Moreover, it strived to answer the question when states are allowed to take coercive action, specifically military action, against another state to protect threatened people. 51 The report was seen as a new way of thinking, since it recognized the change in the nature of threats in the world, the change of thinking about sovereignty, human rights and domestic jurisdiction and the report made a shift from humanitarian intervention to responsibility to protect. 52 The most fundamental idea of the report is that each sovereign state bears the primary responsibility to protect its own population from disasters that are avoidable such as starvation, mass murder and rape. 53 However, when the state is unwilling or unable to exercise this responsibility, the international community obtains that responsibility of protection. The Commission wanted to respect the sovereignty of states and it conferred primary responsibility to the state itself. Only in four exceptional situations namely in case of genocide, crimes against humanity, war crimes and ethnic cleansing the responsibility shifts to the international community. 54 This means that in these exceptional situations the international responsibility to protect prevails over one of the fundamental principles of international law, the non-intervention norm. 55 R2P is designed to function as an umbrella concept consisting of three underlying principles, which are the responsibility to prevent, the responsibility to react and the responsibility to rebuild. 56 These aspects will be discussed in more detail further in this research Other High-level documents dealing with R2P The ICISS dealt with R2P in the most comprehensive way. Though, there are several other highprofile documents that address R2P as well, which are the report of the High-Level Panel on Threats, Challenges, and Change, the report of the S-G and the Outcome Document. All of these documents uphold a different approach. 50 C.G. Badescu, The responsibility to protect: embracing sovereignty and human rights, in: Negotiating Sovereignty and Human Rights. Actors and Issues in Contemporary Human Rights Politics, ed. by N. Shawki and M. Cox, Farnham: Ashgate, 2009, p. 82, J.M. Welsh, The Rwanda effect: development and endorsement of the responsibility to protect, in: After genocide. Transitional justice, post-conflict reconstruction and reconciliation in Rwanda and beyond, ed. by P. Clark, Z. Kaufman, London: Hurst, 2008, p P.D. Williams, A. J. Bellamy, The R2P and the crisis in Darfur, Security Dialogue, 2005, vol. 36, issue 1, p. 28. C.G. Badescu, The responsibility to protect: embracing sovereignty and human rights, in: Negotiating Sovereignty and Human Rights. Actors and Issues in Contemporary Human Rights Politics, ed. by N. Shawki and M. Cox, Farnham: Ashgate, 2009, p International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, December 2001, p. VIII. 54 P. Niemelä, The politics of Responsibility to Protect: problems and prospects, Helsinki: Erik Castrén Institute of International Law and Human Rights, 2008, p. 1, 8. International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, December 2001, p International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, December 2001, p. XI. 56 C.G. Badescu, The responsibility to protect: embracing sovereignty and human rights, in: Negotiating Sovereignty and Human Rights. Actors and Issues in Contemporary Human Rights Politics, ed. by N. Shawki and M. Cox, Farnham: Ashgate, 2009, p

15 In its report A More Secure World: Our Shared Responsibility, the High-Level Panel supported many conclusions and suggestions of the ICISS. It emphasized the link between sovereignty and responsibility and it developed the outline of R2P in the context of the use of force. 57 The report of the former S-G, named In the larger Freedom: Towards Development, Security and Human Rights for All, deviated to some extent from the viewpoint of the ICISS and the High- Level Panel. The S-G underlined the need to implement R2P through peaceful means and did not support the idea that states have a collective legal responsibility to react to humanitarian tragedies. 58 The last document that will be discussed is the World Summit Outcome Document. This is the most authoritative document that deals with R2P since it reflects one hundred-fifty views on the subject matter. R2P was incorporated into two paragraphs (paras 138 and 139). Although many elements of ICISS s report are adopted in the Outcome Document, the text of this document is more careful and took a more reserved position on the legal relevance of the concept than that of the ICISS. 59 This can be inferred from the facts that the Outcome document does not impose a precise legal responsibility to react on the international community and that the international community is prepared to take collective action through the SC on a case-by-case basis. This language leaves much room for political debates. 60 Since the Summit, some developments have taken place. The SC referred to R2P in several resolutions. 61 Ban Ki-Moon has in addition appointed Francis Deng as Special Adviser on the Prevention of Genocide and Edward Luck as Special Adviser to the Secretary General with a focus on the Responsibility to Protect. In 2009, he issued a report implementing the responsibility to protect on R2P. This report is the first inclusive document from the Secretariat of the UN concerning the concept and offers a framework for understanding R2P in the form of a three-pillared strategy with measures and involved actors. 62 As can be deduced, the concept has been embraced and acknowledged by many different international actors and institutions. Next to those mentioned above, R2P has also been recognized in the doctrine of the AU, acknowledged by academic commentators, international lawyers 63 and 57 C. Stahn, Responsibility to protect: political rhetoric or emerging legal norm?, The American Journal of International Law, 2007, vol. 101, issue 1, p Ibid., p P. Niemelä, The politics of Responsibility to Protect: problems and prospects, Helsinki: Erik Castrén Institute of International Law and Human Rights, 2008, p Ibid. p Ibid. See paragraph 139 of the United Nations World Summit Outcome United Nations Security Council Resolution 1674, 28 April 2006; United Nations Security Council Resolution 1706, 31 August 2006; United Nations Security Council Resolution 1755, 30 April International Coalition for the Responsibility to protect, An introduction to the responsibility to protect, < 63 G. Evans, From humanitarian intervention to the responsibility to protect, Wisconsin international law journal, 2006, vol. 24, issue 3, p

16 supported on state-level and even by civil society. 64 This means that in a couple of years the modern idea of R2P has evolved towards a broadly embraced international norm that might evolve even further into a rule of customary law From humanitarian intervention to R2P In its report the ICISS has made a shift from humanitarian intervention to responsibility to protect, not without a proper reason. Before discussing this shift, it must be clarified what humanitarian intervention exactly entails. This notion can be defined as the protection of fundamental human rights by a state in the territory of another state, that involves a threat or the use of force without the authorization of relevant UN bodies or without a request of the concerning state. 66 This means that the sovereignty of the second state can be infringed in favor of protecting fundamental human rights. Humanitarian intervention has been incorporated into several documents such as the Genocide Convention, the UN Charter 67 and alleged to be incorporated in international customary law. 68 In the UN Charter humanitarian intervention is limited by forbidding the use of force in interstate relations and compelling its member states to refrain from the threat or use of force against another state in those interstate relations. 69 Conform article 39 of the UN Charter, the SC can give authorization to restore international peace and security by authorizing a humanitarian intervention. In order to do this, the SC can impose measures other than the use of force 70 or take action by air, land or sea. 71 Returning to the reason why there has been made a change towards R2P. For years the legitimacy and legality of humanitarian intervention has been the subject of debates. According to the opposing states humanitarian intervention not only reduces the sovereignty of states in the name of protecting fundamental human rights, it also expands the sovereignty of those states which intervene in the other states. This has the consequence that only the sovereignty of the weaker states is limited. As opponents of humanitarian intervention argue that R2P is nothing more than a different 64 R.J. Hamilton, The responsibility to protect: from document to doctrine - but what of implementation?, 2006, Harvard human rights journal, vol. 19, p G. Evans, The limits of state sovereignty: the responsibility to protect in the 21 st century, International Crisis Group-Eight Tiruchelvam Memorial Lecture GE, July 2007, < 66 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 and the responsibility to protect, Journal of African Law, 2009, vol. 53, issue 1, p J. Sarkin, Humanitarian Intervention and the Responsibility to Protect in Africa, in: Africa s Human Rights Architecture, ed. by J. Akokpari and D.S. Zimbler, Auckland Park : Fanele, 2008, p There has been a lot of discussion about the existence of humanitarian intervention under international customary law. It seems that this doctrine has so clearly been established that the debate does not concern its existence though its limits. However, this is not supported by the whole international community. Even the GA has frequently rejected the existence of the right to humanitarian intervention in customary law. J.L. Holzgrefe, R.O. Keohane, Humanitarian intervention. Ethical, legal and political dilemmas, Cambridge University Press: 2003, p 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 and the responsibility to protect, Journal of African Law, 2009, vol. 53, issue 1, p See article 41 of the Charter of the United Nations See article 42 of the Charter of the United Nations

17 terminology for humanitarian intervention, R2P also limits the sovereignty of the weaker states and is a means of the great powers, who can decide when and where they intervene, to impose their values and interests on the weaker states. 72 Nevertheless, the ICISS had hoped that by changing the language the deadlock of the debate about right to intervene would be history and opponents would engage constructively since, according to the ICISS, the change in language led to a change in attention. 73 The humanitarian intervention was used to trump sovereignty; responsibility to protect on the other hand covers international solidarity. Where the traditional notion focused on the intervening states together with their claims, rights and prerogatives, the new idea focuses on the protection of those who need help together with prevention and follow-up assistance The main aspects of R2P According to the ICISS, R2P is much more than only intervention for humanitarian purposes and extends to a whole range of obligations. 75 It consists of three integral and essential components, which are the responsibility to prevent, the responsibility to react and the responsibility to rebuild. 76 The concept should first be exercised by means of peaceful measures, from early-warning through development assistance to economic sanctions and as a means of last resort there is the military intervention. When the conflict has ended, the international community has the responsibility to reconstruct the state or territory in which the intervention took place politically and institutionally. 77 Because the following chapter will pay specific attention to the responsibility to prevent and react, this paragraph will not discuss the three underlying responsibilities of R2P any further. 1.4 Controversies of R2P Even though R2P is supported by many states and institutions and even has been acknowledged by civil society, there are still states that refuse to recognize this new concept. Especially the third world countries oppose to this concept because of the alleged limitation of the principle of sovereignty and the alleged similarities of R2P with the controversial notion, the humanitarian intervention. 72 C. Focarelli, The responsibility to protect doctrine and humanitarian intervention: too many ambiguities for a working doctrine, Journal of Conflict & Security Law, 2008, vol. 13, issue 2, p C.G. Badescu, The responsibility to protect: embracing sovereignty and human rights, in: Negotiating Sovereignty and Human Rights. Actors and Issues in Contemporary Human Rights Politics, ed. by N. Shawki and M. Cox, Farnham: Ashgate, 2009, p R. Thakur, Intervention, sovereignty, and the responsibility to protect, in: International Commissions and the Power of ideas, ed. by R. Thakur, A. F. Cooper, J. English, Tokyo: United Nations University Press, 2005, p G. Evans, From humanitarian intervention to the responsibility to protect, Wisconsin International Law Journal, 2006, vol. 24, issue 3, p E. Greppi, The responsibility to protect: an Introduction, International humanitarian law, human rights and peace operations, ed. by Gian Luca Beruto, Sanremo: International Institute of Humanitarian Law, 2009, p C. Focarelli, The responsibility to protect doctrine and humanitarian intervention: too many ambiguities for a working doctrine, Journal of Conflict & Security Law, 2008, vol. 13, issue 2, p

18 1.4.1 A limitation of sovereignty? According to the Commission the essence of R2P is embedded in the concept of sovereignty. Sovereignty implies responsibility since each state bears the responsibility to protect its population from gross violations of human rights. 78 Since the seventeenth century the essence of sovereignty has been control. That is the competence to make authoritative decisions about the people and resources within its territory. The traditional doctrine restricted the meaning of sovereignty for a state to be independent from other states and from obligations in which the state did not freely enter. States did not have any international obligation except when they had consented to be obliged. 79 However, this static legal principle is not as clear-cut as it once seemed. Nowadays armed conflicts are internal instead of inter-state and the proportion of civilians in relation with military getting killed has increased dramatically. This has presented the UN with the problem of how to merge the legal principle of sovereignty and the primary mandate of the UN to restore and maintain international peace and security. According to the ICISS, the answer to this dilemma lies in rethinking the essence of the fundamental principle and in making a shift from sovereignty as control to sovereignty as responsibility. 80 This shift has several implications. Firstly, states are responsible for the protection of the safety and lives and promotion of the wellbeing of their people. Secondly, the states are responsible to their citizens as well as to the international community through the UN. 81 Thirdly, the shift means that authorities can be hold accountable for their (in)actions and involves positive duties instead of merely a negative rule. 82 The Commission emphasizes that the shift to sovereignty as responsibility does not entail a limitation of sovereignty, though a re-characterization. 83 The shift has been recognized more and more in state practice and has been strengthened by the influence of norms of human rights and by the current focus on the protection of people against threats of life, human dignity and safety instead of state sovereignty. The adoption of amongst others the UDHR, ICCPR and ICESCR outlined the course concerning human rights that states should 78 D. Amnéus, Rethinking Security : Humanitarian Intervention in the Age of Human Security: a responsibility to protect?, in: Peace and security. Current challenges in international law, ed. by D. Amnéus, K. Svanberg- Torpman, Lund: Studentlitteratur, 2004, p M. Benzing, Sovereignty and the responsibility to protect in international criminal law, in: International law today: new challenges and the need for reform?, ed. by D. König e.a., Berlin: Springer, 2008, p. 18. G. Evans, The responsibility to protect: rethinking humanitarian intervention, Washington DC, April 2004, < visited on 22 April G. Evans, The responsibility to protect: rethinking humanitarian intervention, Washington DC, April 2004, < visited on 22 April Ibid. 82 M. Benzing, Sovereignty and the responsibility to protect in international criminal law, in: International law today: new challenges and the need for reform?, ed. by D. König e.a., Berlin: Springer, 2008, p. 19. G. Evans, The responsibility to protect: rethinking humanitarian intervention, Washington DC, April 2004, < visited on 8 May International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa: International Development Research Centre, December 2001, p