Collective Protection of Human Rights and World Politics

In the current international system, human rights matters are no longer protected only by domestic laws. With the increasing number of international conventions on fundamental rights and freedoms, states have also committed themselves under international law.

Along with the changing character of conflicts, as human rights have become more universalised, mass violations of human rights have emerged as a major concern for the international community. Because of this, humanitarian intervention (also known as the “right to intervene”) and the Responsibility to Protect (R2P) as well as their implementations in the contemporary international political system are necessary.

Genocide is defined under Article II of the Genocide Convention as follows: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such

a.Killing members of the group; 

b.Causing serious bodily or mental harm to members of the group;

c.Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d.Imposing measures intended to prevent births within the group;

e. Forcibly transferring children of the group to another group” (UN, 1948).

In 1948, two milestones took place a day apart. On 9 December 1948, the UN General Assembly adopted the “Convention on the Prevention and Punishment of the Crime of Genocide”, which codified the crime of genocide and became the earliest human rights treaty agreed by the UN General Assembly (UNOGPR2P, n.d.). The next day, the General Assembly ratified the “Universal Declaration of Human Rights” (UDHR), which was a soft law document lacking binding effect over the state parties, it led to the conclusion of the Twin Covenants—i.e. International Covenant on Civil and Political Rights, and International Covenant on Social, Economic and Cultural Rights—in 1966.

Article 1(3) of the UN Charter states that “the Purposes of the United Nations are to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (emphasis added, UN, 1945).

Article 55(c) of the UN Charter states that “the United Nations shall promote […] universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” (emphasis added, UN, 1945).

According to Article 1(1) of the UN Charter, the primary purpose of the UN is “to maintain international peace and security” (UN, 1945). To this end, the principles of sovereignty, equality and non-interference in the domestic affairs of states (as enshrined under Article 2 of the UN Charter, consecutively in Paragraphs 1 and 7) along with the prohibition of the threat and use of force (as established under Article 2(4) of the UN Charter) were adopted as acting principles.

In the literature, there are three Cold War era cases that scholars refer to as precedents of contemporary understanding of humanitarian interventions wherein external military force was used to intervene in states experiencing mass violations of human rights. These are the cases of India’s intervention in East Pakistan in 1971, Vietnam’s intervention in Cambodia in 1978, and Tanzania’s intervention in Uganda in 1979

Their main argument of the intervening states was that the internal situation in their neighbouring countries constituted a threat to their security and territorial integrity.

Article 51 of the UN Charter  states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security” (UN, 1945).

The approaches to the legality and legitimacy of humanitarian interventions can be classified into two main groups as the restrictionist approach and the counter-restrictionist approach (which covers the natural law tradition as well as the international community approach). On the one hand, restrictionists consider humanitarian intervention a violation of international law, mainly “a violation of the territorial integrity and political independence of the state”. On the other hand, counter-restrictionists argue that humanitarian interventions are permissible under customary international law and the provisions of the UN Charter promoting and protecting human rights. Moreover, they also emphasise that when a humanitarian intervention is undertaken as a collective conduct, it “expresses the will of the international community” .

In the 1990s, several cases led to scholarly and political debates on the legality and legitimacy of humanitarian interventions, among which were the cases of Liberia, Northern Iraq, the Former Yugoslavia, Somalia, Rwanda, Haiti, Sierra Leone, Kosovo and East Timor. Compared to the Cold War era, under the mandate of Chapter VII of the UN Charter (especially Articles 39 and 42), the Security Council authorised five of the nine interventions that were carried out collectively in order to stop mass atrocities.

In International Relations, security is traditionally perceived as the security of the nationstate. Nevertheless, in the post-Charter period with the developments taking place in the realm of human rights, such state-centric approach began to transform and was supplemented by additional security approaches, one of which is human security. In its 1994 Human Development Report, the UN Development Programme (UNDP) placed the focus on the people-centred approach of human security, and basically defined it as “freedom from fear and want” in relation to the main components of economic, food, health, environmental, personal, community and political security

With the initiative of the Canadian Ministry of Foreign Affairs a brand-new commission entitled International Commission on Intervention and State Sovereignty (ICISS) was formed. Its aim was to take up the challenge of finding an answer to human-made disasters. The final output and propositions of the Commission—which comprised of international members representative of different regions of the world—were presented in the “Report on the Responsibility to Protect” in December 2001.

In its report, the ICISS introduced the concept of the Responsibility to Protect, which is commonly abbreviated as “R2P” (and also as “RtoP” in the literature). The main aim of the Commission was to shift the terms of the debate from the existence of a “right to intervene” towards establishing a “responsibility to protect”. Especially in the post-Cold War era, pro-intervention states have interpreted humanitarian intervention as a “right to intervene”, which meant that they could intervene if and whenever they wanted. Such approach is highly problematic from human security and international law perspectives

Humanitarian intervention and humanitarian aid are not the same concepts and cannot be used interchangeably. The latter as an action is peaceful in character, and it is not in conflict with the notion of state sovereignty as its deployment is based on the consent of the host state. On the other hand, humanitarian intervention is a forceful measure that can be undertaken with or (most commonly) without the consent of the host state. It is also important to note that humanitarian intervention is not a synonym for peacemaking or peacekeeping, which are conducts involving measures short of use of force and essentially carried out by UN-authorised missions (or missions of regional organisations).

According to the proposition of the ICISS, R2P consists of three main components: the responsibility to prevent, the responsibility to react, and the responsibility to rebuild.

Annan considered R2P as part of the collective security understanding. Mentioning the controversial aspects of the possibility to use force under the R2P framework, Annan suggested the adoption of criteria similar to that of the ICISS for the decision to intervene. Also, drawing lessons from past experiences wherein the Security Council came to a deadlock due to the absence of political will, Annan urged “the permanent members, in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses”.

In the 2005 report, R2P was introduced under the title of “the Rule of Law”, in connection with the “freedom to live in dignity” while the criteria for intervention were dropped and the scope for invoking R2P was narrowed down .

Following Annan’s initial efforts for further clarification of what R2P is and why it should be embraced by the UN, a separate section was reserved for R2P in the World Summit Outcome Document of October 2005 (A/RES/60/1). The member states of the General Assembly voted for the adoption of the Document and unanimously accepted the responsibility to protect under Paragraphs 138 and 139.

Paragraph 138 which is one of the two paragraphs of the 2005 World Summit Outcome Document on R2P, states that “each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’

Paragraph 139 which is one of the two paragraphs of the 2005 World Summit Outcome Document on R2P,  states the following: 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.

On 25 September 2007 the new Secretary-General Ban Ki-moon during his address to the General Assembly stated that he “will strive to translate the concept of our Responsibility to Protect from words into deeds, to ensure timely action so that populations do not face genocide, ethnic cleansing and crimes against humanity” (UNMCPR, 2007). In order to do so, he prepared the very first comprehensive report on R2P under the UN (Report A/63/677, dated 12 January 2009) focusing on implementation, with the aim “to situate the responsibility to protect squarely under the UN roof and within [the] Charter, where it belongs” (UNSG, 2009).

Pillar one is about states’ responsibility to protect their populations from the commission and incitement of the four atrocity crimes, which is summed up with the notion of sovereignty as responsibility.

In the very first comprehensive report on R2P under the UN report, Ban focused on devising a three-pillar strategy directed towards tackling issues related to R2P’s implementation. The three-pillar strategy took up on the two responsibilities—prevention and reaction—that were reflected in Paragraphs 138 and 139 of the World Summit Outcome Document. Accordingly, in line with Paragraph 138, the first pillar focuses on “state responsibility”, while the second is concerned about “international assistance and capacity-building”. On the other hand, the third pillar aims for a “timely and decisive response” as enshrined under Paragraph 139.

Pillar two is about the international assistance to be provided to states to enable them in fulfilling their responsibility to protect their populations.

Pillar three is about devising a collective, “timely and decisive response” in the case of the failure of a state, which can be delivered through measures ranging from peaceful to coercive. Within this pillar, the use of force can be utilised only as a last resort with the authorisation of the Security Council under the mandate of Chapter VII of the UN Charter.

Some states of the global south considered R2P as a version of humanitarian intervention and approached it with caution while some others wanted to avoid the acceptance of a legal duty to act in the face of mass atrocity crimes.

Due to the opposition of the US, the meaning in Paragraph 139 was changed from having “a duty to act” to being prepared to take action, which thus decreased the potential binding influence of R2P on the international community. The US pushed for a responsibility understanding that has a “more general and moral character” because of objecting to the idea “that either the UN as a whole, or the Security Council, or individual states, have an obligation to intervene under international law”.

There were controversial examples of the responsibility to react, such as the decision to conduct a military intervention in Libya. Although the Security Council authorised the military action with Resolution 1973, the way the military operation was conducted and the regime change that followed made this a highly debated one. Lack of action in many other cases as well as the blocking of a Security Council decision with the use of the veto in R2P crises have been the rule rather than the exception in the implementation of R2P in general. In the case of Syria, Russia and China  generously casted veto in decisions concerning any sort of action in the country, whether peaceful or coercive. On the contrary, in the case of Libya and Côte d’Ivore, the Security Council adopted decisions authorising the use of force. In the latter case, the decision was adopted unanimously, and the same Russia that later vetoed various draft resolutions on Syria on the grounds that the measures suggested would be an interference in the internal affairs of Syria and a breach of its sovereignty, did not object to the employment of the use of force on Côte d’Ivore