#11453 - Responsibility To Protect - International Humanitarian Law

R2P = Responsibility To Protect

History: Started as “Humanitarian Intervention,” which was not a legal doctrine, but an advocacy tool.

1. Embodied a RIGHT to force

2. 1990s political debate (lots of French support)

3. Normative agreement that we shouldn’t have genocide or war crimes (other treaties) but how do we enforce it? Humanitarians looked to force. Western led coalitions (like NATO) were asked to intervene when egregious events occurred (like Rwanda).

4. Legal problem

   1. UN Charter 2.1: sovereignty and equality of all members.

      1. No allowance of “intervention” in the Charter

   2. Lots of debate

      1. Need for Humanitarian intervention is great

      2. But legal basis is so contested

      3. And practice is problematic and political

5. Examples

   1. 1989 US intervention in Panama: we intervened at Panama’s request, but only at the request of the person that was in power because we got them into power. It was part of a coup.

      1. Common problem of “good faith”

   2. 2003 French intervention in Ivory Coast: France went in at request of government and later got SC authorization, but by that time the rebels had taken over.

   3. US intervention in Nicaragua, where we assisted the rebels.

   4. 1999 NATO bombing of Kosovo: Former Yugoslovia breaks up and there are a bunch of wars. Kosovo ends up as part of former Yugoslovia. Some Serbs live there, mostly Albanians. Serbs in Belgrade attack Albanians in Kosovo. Basically, the federal government was bombing itself. SC took no action because of Russia (who typically backs the serbs). Ethnic cleansing. NATO bombs Belgrade.

      1. No legal basis: SC declined authorization, clearly not self-defense

      2. But many still found it justified. NATO killed 500 civillians, Serbs had killed between 2,000-11,000 civilians.

      3. Serbs went to ICJ and said they had been a victim of active aggression. ICJ ducked: said there was no jurisdiction because Serbia wasn’t a member state of the UN.

   5. 2003 US attack on Iraq with a whole mish mash of legal justifications (that it was R2P, that we had SC authorization, and that it was self defense)

      1. This made the whole HI legal argument collapse because it was tainted by all the rationales that could result due to US intervening in Iraq, led to R2P

R2P: “agreement to the concept” was voted for in the 2005 GA of the UN World Summit

1. Highest Level of Expression of R2P was in “outcome document” = not even a declaration.

2. Definition: responsibility that states must protect their populations from the 4 mass atrocity crimes. These include:

   1. Ethnic cleansing

      1. No international legal definition

   2. Crimes against Humanity

      1. Defined in Rome Statute: widespread and systematic pattern committed as conscious acts of policy

   3. Genocide

      1. Defined in 1948 Genocide Convention: intent to destroy in whole or in part, a national, ethnic, racial or religious group

   4. War Crimes

      1. Defined in Rome Statute and Geneva Conventions, including, but not limited to:

         1. wilful killing of a protected person (e.g. wounded or sick combatant, prisoner of war, civilian);

         2. torture or inhuman treatment of a protected person;

         3. wilfully causing great suffering to, or serious injury to the body or health of, a protected person;

         4. attacking the civilian population;

         5. unlawful deportation or transfer;

         6. using prohibited weapons or methods of warfare;

         7. making improper use of the distinctive red cross or red crescent emblem or other protective signs;

         8. killing or wounding perfidiously individuals belonging to a hostile nation or army;

         9. pillage of public or private property

         10. and: serious violations occurring during NIAC (ICTY)

3. If there is a Mass Atrocity, then follow 4 pillars of R2P

   1. Pillar 1: the state

   2. Pillar 2: International community assistance

   3. Pillar 3: military action that is timely and decisive

      1. 5 criteria before Pillar 3 = (triggers)

         1. serious threat of mass atrocity

         2. purpose of the response is to address the mass atrocity (in good faith)

         3. military is the last resort (resembles self-defense principle of necessity)

         4. Response must be proportionate (also an element of self-defense analysis)

         5. Must do more good than harm (must have reasonable prospect of success)

4. Differences between humanitarian intervention & R2P

   1. Right to Intervene is only about reaction; R2P is about prevention

   2. Right to Intervene is only about military action; R2P has many possibilities, including diplomatic persuasion, pressure, non military measures like sactions and ICC process.

      1. R2P military action is a last resort, only applicable in extreme cases

   3. Right to Intervene is only about military actors; R2P involves a wide range of actors

5. The Debate

   1. Pro R2P

      1. Purpose of SC is to maintain international peace and security. R2P mechanism allows that to happen. Pillar 3 requires SC authorization, but allows proponents of R2P to put extra pressure on SC.

      2. Doesn’t necessarily equal military force. Instead, preventative measures are to be taken prior to use of military force. R2P forces us talk seriously about problems before we get to pillar 3.

         1. Example = 2007 Kenyan elections

   2. Anti R2P

      1. Still need SC authorization

      2. It’s idealistic to put leaders on trial

      3. Should we really negotiate with “killers”/compromise with unpleasant people?

         1. http://www.washingtonpost.com/opinions/a-soft-landing-for-syria-that-could-oust-assad/2012/03/28/gIQAKhkNhS_story.html

            1. Syria government announces it is ready to accept peace plan proposed by UN, opening way toward “soft landing” in Syria that would remove Assad without shattering stability of the country

               1. Author: “Yes, I recognize that moderate diplomatic solutions like these are for wimps” but military solutions “will get a lot more innocent civilians killed and destroy the delicate balance of the Syrian state.”

               2. Military intervention interferes with social cohesion (Iraq)

6. The question of proportionality

   1. Does the proportionality analysis change in an R2P intervention? Must you hold your military to a higher standard, whereas in a regular war you can kill 10 civilians to get access to 1 soldier? Unanswered.

      1. It is consistent with the R2P arguments that its entire purpose is to save lives.

Crime of Aggression: ICC’s attempt to strengthen the prohibition of aggression itself.

1. History

   1. 1998 Agreement: the ICC would have jurisdction over crimes of aggression once a definition is agreed upon.

   2. Added in Kampala 2010 Review Conference, which amended the Rome Statute, and added a definition.

   3. Won’t go into effect for 5 years

2. Source

   1. Crime, Person. RS Art. 8, bis

      1. You can’t find that an individual has committed a crime of aggression until the SC (or ICC) has determined that the state has committed an act of aggression

   2. Act, State. RS 8 bis 2

      1. If SC does not authorize ICC investigation for 6 months, the prosecutor can start an investigation (which automatically assumes that the State committed an act of aggression) and if the SC doesn’t agree, they can halt the...