All Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered". The Charter of the United Nations, by adopting this principle in
Article 2 (3), takes up again the efforts of those who have striven through the
centuries to achieve the peaceful settlement of disputes between States.
The United Nations has considered many specific aspects of the peaceful
settlement of disputes; but the attempt at the 20th and 21st session of the
General Assembly by the United Kingdom and a number of other States to bring
about a broad study of this subject was brought to an end, before any meaningful
debate could occur, by procedural moves, motivated by considerations unconnected
with the merits of this subject.
The purpose of this chapter is to consider certain general aspects of disputes
and their settlement, including specific methods which have been or might be
used for the settlement of disputes. The study has employed the doctrinal method
to analyse the peace keeping mechanisms of the UN and its R2P and its effective
Negotiations are the simplest method of peaceful settlement of disputes, in the
sense that in negotiations the parties to the dispute alone are involved in the
procedure. These negotiations may be bilateral or multilateral according to the
number of parties to the dispute. Negotiations involve a continuing dialogue
between the States parties, to the dispute. In order to reach a solution, one
side or the other must make and argue" In support of proposals and
counter-proposals until a proposal is made by one side and accepted by the
other. If no such proposals are made, the procedure cannot advance.
Thus unsuccessful negotiation preceded the Ambatielos litigation in the
International Court and by arbitration, and also the Minquiers and Ecrehos
case in the International Court; on the other hand, the dispute about British
oil interests in Iran, which the International Court refused to decide, was
finally laid aside after a negotiated commercial settlement.
The need for flexibility is clear at the present time when one of the most
serious disputes in the world is being pursued by procedures which cannot be
considered purely the method of negotiation. Thus, the present attempts to
resolve the long-standing problems of the Middle East arise out of Security
Council Resolution 242 (1967), the product of "parliamentary diplomacy" but
which was based on extensive negotiations carried out between Members of the
Security Council and between them and outside States of the area. That
Resolution not only laid down principles which were generally accepted by the
parties but asked the Secretary-General to appoint a Special Representative.
Mediation, as a method of peaceful settlement of international disputes, means
the participation of a third State or a disinterested individual in negotiations
between States in dispute. The role of a mediator is well expressed in Article 4
of the Hague Convention on the Pacific Settlement of Disputes of 1899 as
"reconciling the opposing" claims and appeasing the feelings. The resentment
which may have arisen between the States at variance" Good offices are sometimes
held to mean the action taken to bring about or initiate negotiations, but
without active participation in the discussion of the substance of the dispute.
In this restricted sense, good offices are a mediation of more limited scope.
But the terminology is not exactly applied, and good offices and mediation are
sometimes used indifferently.
Modem international arbitration has changed little from the form in which it
emerged at the end of the nineteenth century as an independent process for the
settlement of disputes and Article 15 of The Hague Convention of 1899 still
offers the best definition: "International arbitration has for its object the
settlement of differences between States by judges of their own choice, and on
the basis of a respect for the law".
The Administrative Council of the Permanent
Court of Arbitration, which is composed of the diplomatic representatives of the
signatory powers at The Hague and the Dutch Minister for Foreign Affairs, showed
itself to be aware of this decline in resort to the Permanent Court of
Arbitration when on 3 March 1960 it circularized States who were parties to The
Hague Conventions of 1899 and 1907 on the fundamental differences between the
procedure of the International Court of Justice and the Permanent Court of
Arbitration and the possible modifications to be made in the arbitration
International disputes have to be looked into in accordance with international
law (Article 38 (1) of the Statute of the Court). Because of these features -
third-party settlement and the application of law - the Court may be regarded as
the culmination of a series of methods of settlement of international disputes.
Arbitration brings together the concepts of third-party settlement and the
application of rules of law. Courts of law take the matter a step further and
formalize these concepts into a complete system. But, in the international
sphere at least, it cannot simply be taken for granted that the establishment of
courts of law would be to the profit of humanity.
Commissions of Inquiry and Fact-finding
Fact-finding is recognized as a separate procedure for the settlement of
international disputes in Article 33 of the Charter of the United Nations, which
requires the parties to any dispute the continuance of which is likely to
endanger the maintenance of international peace and security to seek a solution
by "negotiation, inquiry, mediation, conciliation, arbitration, resort to
regional agencies or arrangements or other peaceful means of their own choice".
Peace - Keeping
A survey of UN practice concerning military observer groups and peacekeeping
forces reveals a uniform pattern for the formation of these units. The unit is
formally created by the resolution of a UN organ, as a rule this is the SC,
although in exceptional cases (UNEF I, UNSF/UNTEA) it was the GA. The
resolutions generally support reports submitted by the SG which establish the
mandate of these units as well as the details of their functioning. The next
element is that there is an agreement between the parties concerned.
take various forms and be expressed either before or after the said resolution.
The agreement may take the form of an agreement between the parties to a
conflict, the acceptance of a resolution by those parties individually expressed
by each of them or an agreement between the UN and the state on whose territory
the unit is to function (the host state). The details of the relationship
between the UN and the host state, however, are regulated in different ways.
The United Nations India-Pakistan Observation Mission (UNIPOM, 1965-66) In
a dispute between India and Pakistan concerning The Runn of Kutch resulted in
hostilities. Under the SC Resolution of November 5, 1965, UNIPOM was given the
task of supervising the ceasefire and the withdrawals agreed upon by the
parties. It was given additional functions under a further agreement on January
The United Nations Good Offices Mission in Afghanistan and Pakistan (UNGOMAP,
As part of a peace arrangement for Afghanistan achieved by the Geneva Agreement
of April 14, 1988, both the Agreement on the Interrelationship for the
Settlement of the Situation Relating to Afghanistan between Pakistan and
Afghanistan and the related Memorandum of Understanding provided that the UN
should offer its good services to the parties.
The United Nations Iran-Iraq Military Observer Group (UNIIMOG, 1988-91)
As a part of the arrangements which led to the acceptance of a cease-fire in the
Gulf War between Iran and' Iraq on August 9, 1988, UNIIMOG was created by SC
Resolution 619 on the same day. That resolution approved, inter alia a report of
the SG which set out the details of the functioning of the Group. It was not an
armed force like UNEF, UNDOF, or UNIFIL, but an unarmed military observer team.
Its functions, were determined by and developed with the cease-fire
Nature Of Forceful Function
The primary reason for the establishment of the United Nations in 1945 was the
maintenance of peace and security in the world. But the frequency of wars big
and small since then testifies to the oft-repeated assertion that the UN
security system has not worked as expected under the Charter. The search for
security remains the primary concern of all states.
Most of them do not
seriously rely on the UN for their security requirements. Even today they depend
mostly on their own strength of arms or that of their allies in times of need.
This does not however reduce the UN to utter impotence. The UN has by various
devices reduced the intensity of conflicts in various regions of the world. Its
role in dispute settlement, arms control and "peace-building" through promotion
of international cooperation in socio-economic fields will be discussed.
The UN's war prevention role as envisaged under the Charter has been called
"collective-security". The most common security arrangement since ancient
times among independent states has been the military alliance. Balance of power
refers to a system in which states rely on military alliances to further their
individual security requirements. The concept of "balance" refers to such a
distribution of power among states that no state is powerful enough to disturb
the status quo through the force of arms.
Alliances to deter prospective
aggressors are formed by governments whose individual national interests are
threatened by a common enemy. Such combinations generally have limited goals,
are temporary in duration, and shifting in composition. The result might be
deterrence through strength, compromise through bargaining or war through the
collapse of the system.
Korea Case -1950
It is true that the UN Charter is emphatic against the arbitrary use of force by
states. But there are two major loopholes in the prohibition on the use f of
force: the first, under Art. 106 and the second-under Art. 51 of the
Charter. Art. 106 permits the Big-Five (pending the creation of a UN force based
on national contingents supplied through special agreements referred to in Art.
43) to take any kind of joint action for maintaining world peace and security.
So far, Art. 43 has not been implemented, and the possibility of close military
collaboration among the five powers have also remained a distant possibility.
The Charter not only accepts the concept of collective protection, but also
makes specific provisions on collective determination of a crisis (Articles 24
and 39), on collectivized forces (Arts. 43-45), and on collective, military
policy and command (Arts. 45-47).
Deterrence can be achieved only when collective power is overwhelming and
irresistible. Overwhelming power for the UN can be built in two alternate ways
either by building.
The Security Council has to determine the crisis and decide the measures,
without any obligation to act quickly or automatically. The Council's response
may start with provisional measures (Art. 40), and may be escalated to economic
and diplomatic sanctions (Art. 41) and may ultimately reach the stage of
military sanctions (Art. 42). In short, automatism is not a built-in feature of
the UN security scheme.
In theory, the UN is expected to act against any aggressor to protect any victim
anywhere in the world and at any time. But the UN cannot act against the Big
Five, who can thwart any action of the Security Council any exercising their
veto in their own favour. The Permanent. Members can and do use their veto in
support of their military allies. Sometimes a big power may use its veto to
support the position of a non-aligned state. Such exercises of the veto may be
purely political and subjective rather than legalistic or objective.
One of the serious defects in the UN security system is the absence of a
definition of "aggression" or armed attack. Under the Charter, the Security
Council is expected to determine the nature of a crisis (Art. 39). without an
objective definition of "aggression" the issue of determining a crisis often
becomes a matter of political controversy.
Korea was the first test of the collective security system envisaged under the
UN. There an act of aggression was met with armed force under the aegis of
international authority. Even though all the conditions of the UN Charter were
not complied with (specially the condition of concerted action by all the five
great powers), the defence of the Republic of Korea was undertaken by armed
forces drawn from 16 nations. Let us examine the role of the UN in Korea to make
a proper assessment of the collective security system.
On June25, .1950, North
Korea attacked South Korea. Communist China later joined hands with North Korea
in this aggression. The Security Council, in the absence of the Soviet Union,
passed a resolution (9 to nil), fixing the responsibility for the armed
attack on North Korea and called for an immediate cessation of hostilities and
withdrawal of North Korean forces to the Parallel. As the North Korean
authorities failed to comply with these directives, police action by the UN to
repeal the attack was sanctioned by the Security Council.
Thus the Security
Council demonstrated that even though the UN had no armed forces at its
disposal, it was not impotent in the face of open aggression. However, it is
also true that the Council was able to agree on positive action due only to a
series of self-imposed absences from the Council by the representative of the
Soviet Union, and the presence of substantial units of American air, and land
and naval forces in Japan and adjacent areas.
The UN action helped preserve the independence of the Republic of Korea, but it
brought no renewed enthusiasm for collective security on a voluntary basis or
otherwise. At first, seen as the rebirth of collective military action, the
Korean war proved to be its requiem. The reasons for this are now fairly well
known and will now be discussed.
The Korean war also highlighted the basic
defects of the United Nations as an instrument for launching collective security
operations. Its decision-making apparatus was shown to be unsuited to decisive
action in times of crisis. Only the absence of the Soviet delegate had made the
initial Security Council action possible in Korea in 1950 though the Soviet
Union insisted that Security Council resolutions adopted in its absence were
Other members argued that an absence was the equivalent of an abstention,
which, by precedent, was not a veto. Whatever the legal merits of the issue, the
Security Council was immobilized by the Soviet return. Responsibility for
decisions was then shifted to the General Assembly though that body proved too
large, too unwieldy, and too much divided in counsel to direct a military
When the United Nations Security Council imposed comprehensive trade sanctions
on Iraq on August 6, 1990 (Resolution 661), it ushered in a new era of the
use of coercive economic sanctions as a means of inducing compliance from states
judged as violating international law. In the previous forty-five years of UN
experience, the Security Council employed sanctions only twice, in the cases of
Southern Rhodesia and South Africa.
The next dozen years witnessed an active
phase of Security Council decision-making, with more than seventy sanctions
resolutions levied against fourteen distinct targets, including such
nongovernmental entities as the Khmer Rouge in Cambodia, the Uniao Nacional para
a Independencies Total de Angola (UNITA), and Al-Qaida.
The Iraq Sanctions
The sanctions against Iraq were imposed in response to that country's invasion
and occupation of Kuwait on August 2, 1990 (Resolution 661).' Essentially, they
prohibited the import of Iraqi goods into all states, which in practice meant
oil and oil products, and the sale or supply of all products to Iraq except for
supplies strictly intended for medical purposes mid, in humanitarian
As a means to bring about an Iraqi withdrawal from
Kuwait they were unsuccessful, but once the Gulf War (Desert Storm) had achieved
that objective, the sanctions were in place to force Iraq's full compliance with
the cease-fire conditions especially with regard to the destruction, removal,
and rendering harmless of Iraq's weapons of mass destruction (Resolution 687).
Dining the dull' War most of Iraq's power plants, oil refineries, pumping
stations, and facilities had been destroyed, and further sanctions aggravated
the economic hardship. Before long this led to a humanitarian crisis, which the
Secretary-General brought to the finance of the Security Council in the Ahtisaari Report of March 20, 1991.
In response, it was agreed that the UN
should develop a plan for using Iraqi oil revenues to finance humanitarian
relief. In August and September 1991 respectively, the Security Council adopted
Resolution 706 and 712 establishing the oil-for-food program.
for the sale of predetermined maximum volume of Iraqi oil under the supervision
of UN purchasers would pay directly into a UN-controlled escrow account, which
would be used to pay for UN-approved purchases of foods, medicines, and
materials and supplies for essential civilian needs.
Today world 'nations are interdependent, like mountain climbers attached 10 one
rope. They can either climb together to the summit or all fall into the abyss.
To prevent this from happening, political leaders must rise above narrow-minded
considerations and realize how dramatic the contemporary situation is. This
underscores the vital need for a new way of political thinking in the nuclear
Formation of Humanitarian Function
The international community has evolved a set of principles and rules of
interstate cooperation in providing favorable conditions for every individual to
enjoy the fundamental rights and freedoms both in peacetime and in periods of
armed conflict. In reaching decisions on intervention, the Council has 10 bear
in mind not only the constraint of Article 2.7, but also the provisions under
Articles 55 and 56 of the Charter and, in particular, the obligation of UN
Members to cooperate for the achievement of universal respect for and observance
of human rights and fundamental freedoms.
The sources of international humanitarian law are above all the generally
recognized fundamental principles of international law, lie United Nations
Charter, and the charters of specialized agencies of the United Nations. At
present, there exists a system of international treaties and agreements on human
rights, which constitute the basic group of sources.
These include the
International Convention on Economic, Social, and Cultural Rights (1966), the
International Convention on Civil and Political Rights (1966), the International
Convention on the Elimination of all Forms of Racial Discrimination (1965), the
Convention on the Suppression and Punishment of the Crime of Apartheid (1973),
the Convention on the Prevention and Punishment of the Crime of Genocide (1948),
The Convention on the Non-Applicability of Statutory Limitations to War Crimes
and Crimes Against Humanity (1968), the Convention for the Suppression of the
Traffic in Persons (1950), the Convention on the Political Rights of
Women(1953), a large group of conventions on labour and employment adopted by
the International Labour Organization (ILO), and conventions on the right to
education adopted by UNESCO.
The word 'principle' was chosen by the founders deliberately since it was
realized that self-determination might in practice have to be balanced against
other equally valid principles such as non-intervention in the domestic affairs
of States or the territorial integrity of States. In 1960, the UN General
Assembly declared that self-determination was not only a principle but 'the
right' of all peoples, and the two UN Covenants on human rights, approved by the
General Assembly in 1966 affirmed 'the right' of self-determination. 
- South Africa
The treatment of persons of Indian origin in South Africa came before the
General Assembly in 1946, and the wider question of apartheid in 1952. In 1960,
following the Sharpeville massacre, 29 Afro-Asian States asked the Security
Council to consider the situation in South Africa as a matter that was likely to
endanger international peace and security.
South Africa, supported by Britain
and France, maintained that the issues raised were within South Africa's
domestic jurisdiction and therefore outside the Council's purview. Italy thought
there was a contradiction in the Charter between the provisions regarding human
rights and the ban on intervening in domestic affairs.
The United States,
agreeing that there was tension between various provisions in the Charter,
thought it desirable that the Council should at least consider the matter. The
sponsors of the item argued that a State that was violating vital provisions of
the Charter could not hide behind the ban on intervening in domestic affairs.
the end of the debate, the Council adopted a skillfully drafted resolution,
recognizing that the situation in South Africa had led to friction and 'might'
endanger international peace and security, and asking UN Secretary-General Hammarskjold 'to make such arrangements as would adequately help in upholding
the purposes and principles of the Charter'. This was a typical formulation in
the Hammarskjold era.
The Protocol of 1 of June 1977 Additional to the Geneva Conventions relating to
the protection of victims of international conflicts, where "armed conflicts
in which peoples are fighting against colonial domination, alien occupation or
racist regimes" are to be considered international conflicts. It reaffirms the
international laws of the original Geneva Conventions of 1949 but
adds clarifications and new provisions to accommodate developments in modern
international warfare that have taken place since the Second World
It is also classified as international conflicts, armed conflicts in which
people are fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right to self-determination.
not just another recognition of the legitimacy of the national-liberation
movement, but also the duty to assist in every possible way, including armed
assistance, to help dependent people exercise their right to self-determination.
An international organization which, under the UN Charter, can use its armed
forces to stop or prevent aggression and to maintain peace and international
security, can also become a party to an international armed conflict.
The International Red Cross and Red Crescent attaches great importance to the
principles and norms of international humanitarian law, regarding them as
powerful instruments of their national societies in protecting and assisting the
victims of armed conflicts. The entire history of international humanitarian law
is closely linked with this movement.
It can be said that virtually all
international agreements and treaties relating in any way to the protection of
human rights in armed conflicts and their humanization have been the result of
wide-ranging initiatives of the international Committee of the Red Cross, the
League of Red Cross Societies, and National Red Cross Societies, international
legal norms establishing certain humane rules of warfare have done a great deal
to reduce as much as possible the calamities, devastation, and the number of
casualties caused by armed conflicts. Military history reveals that these
humanitarian laws benefit above all the working people, who always have to bear
the brunt of war.
After the event of the 11 September (hereafter "9/11") terrorist attacks on-New
York and Washington, articles, monographs, anthologies, conferences, and
symposia on "Humanitarian Intervention" were proliferating even faster than
weapons of mass destruction. This metastasis of policy-focused cerebration
coincided curiously with the paucity of the thing itself.
Not, to be sure, of
the exquisite suffering that was its notional target. Suddenly experiencing the
pre-9/11 frenzy of debate about the legality, legitimacy, and appropriate
occasions and instruments for humanitarian intervention, a stranger to our
planet might fairly have concluded that every Western government with the means
to project force beyond its frontiers, above all the United States Government,
was straining against the leash woven out of normative uncertainties, awaiting
only their resolution to hurt itself into the humanitarian fray.
Intervention after 9/11
How, if at all, has the war against terrorism triggered by 9/11 affected (or
appeared likely to affect over time) the context of ideas, interests, and values
in which humanitarian intervention achieved prominence in discourse about
foreign policy, if only erratically in foreign policy itself? In private
conversations immediately after 9/11, some advocates of humanitarian
intervention within the academic community pessimistically concluded that
whatever the effect of the counter-terrorist war on terrorism, it would
effectively eviscerate humanitarian intervention as an operative element in
American foreign policy.
After 9/11, the Security Council, anticipating the US attack on
Al-Qaeda and the Taliban regime, affirmed the right of the United States to act
forcefully in its defense. Since Article 51 of the Charter recognizes an
inherent right of self-defense, affirmation was unnecessary. In this
unprecedented case of a large, well-financed transnational organization with
demonstrably great destructive capacity and declaredly aggressive ends, the
right can reasonably be construed to include seizure of suspected Al-Qaeda
members in states unable or unwilling to arrest and either try or extradite
But it plainly does not encompass the overthrow of regimes with records of
aggressive behavior. Nor does it legitimise the use of force against states
deemed unfriendly in order to deny them weapon systems already deployed by other
sovereign states or to enforce compliance with treaty obligations. At this
point, there is simply no cosmopolitan body or respectable legal opinion which
could he invoked to support so broad a conception of self-defense. It is intact
reminiscent of the notion of strategic preemption that animated German policy in
the early years of the twentieth century.
The Security Council has, from the earliest years, appealed for death sentences
not to be carried out, for the release of political prisoners, or for the
release or exchange of POWs: in Kashmir, Indonesia, the Middle East, South
Africa, Southern Rhodesia, Namibia, and Portuguese Territories.' In 1980, the
Council condemned the assassination attempts against a number of Palestinian
mayors in the territory occupied by Israel. Beginning in 1980, the Council began
appealing for clemency for named persons in South Africa, including on several
occasions Nelson Mandela.
Iraq committed many violations of international human rights norms following its
invasion and purported annexation of Kuwait on 2 August 1990. The International
Committee of the Red Cross took the view that the conflict was an inter-State
war, bringing into force the four Geneva Conventions and the First Additional
Protocol, which inter alia prohibit the taking of hostages.
Moreover, the Third
Geneva Convention prohibits the placing of POWs in areas where they may be
exposed to fire in a combat zone or to render areas immune from military
operations, that is to say, the use of POWs as 'human shields' (Articles 19 and
23), and such acts took place in January 1991 when POWs were paraded through the
streets of Baghdad and thus exposed to public ridicule (Article 13); and the
Fourth Convention prohibits 1 the taking of civilians as hostages (Article 34),
the placing of protected persons so as to render points or areas immune from
military operations (Article 23), and the denial to internees of sufficient food
to keep them in a good state of health (Article 89).
Beginning some days after the invasion of Kuwait, Iraq started placing foreign
nationals inside or close to military installations and denying food to foreign
workers. The Security Council adopted four resolutions, two unanimously and two
with Cuba and Yemen abstaining. These resolutions demanded that foreign
nationals be allowed to leave Iraq, and that those choosing to remain be given
'immediate access to food, water and basic services'.
The problems faced by the
Iraqi Kurds had been drawn to the attention of the Security Council on two
previous occasions: in 1963, by the Soviet Union, and in 1969 by the United
States. In neither case had a meeting of the Council been held. In 1991, the
question of 'safe havens' for the Kurds was raised in private consultations, in
implementation of the Charter requirement of 'respect for, and observance of,
human rights and fundamental freedoms' (Article 55.c of the UN Charter).
variety of methods were considered, and in the end, the Security Council adopted
a resolution which condemned the repression of Iraqi civilians, especially
in the Kurdish areas; called on Iraq to end this repression which threatened
international peace and security; and insisted that Iraq allow immediate access
to international humanitarian organizations, and make available all necessary
facilities to meet the plight of Iraqi civilians.
It was presumably in pursuance
of this resolution that Iraq agreed to accept the presence of 500 civilian UN
guards. This latter agreement provided that UN personnel might include staff
cooped from non-governmental organizations. Their task would be to provide
humanitarian assistance. UN guards would be permitted to carry side-arms 'which
will be provided by the Iraqi authorities (subject to the approval of the United
By October 1991, the full complement of guards had been deployed,
representing 35 different nationalities. A 'no-fly' zone was imposed above the
36th parallel, but without the express authority of a UN organ. One UN guard was
killed by 'irresponsible Kurdish irregulars', to use the words of official Iraqi
sources. As from August 1992, Iraq announced unilaterally that the 120 guards
then in Iraq could remain, but no replacements or additional deployments would
The U.N. Security Council has been able to make a valuable contribution by
encouraging, on the one hand, constructive and forward looking solutions, and,
on the other, by exercising restraint on those who may be inclined to press for
extreme solutions by extreme methods. Perhaps the greatest contribution of the
Organization to the work of peaceful settlement and adjustment is that it
provides the means whereby disputes and situations can be considered" outside
the narrow context of the parties' conflicting interests and with adequate
attention to the larger interest in international peace and security, human
freedom, and the general welfare which the United Nations represents.
As collective security measures can be undertaken only if the Security Council
approves them by seven votes, including the votes of the permanent members, such
actions are rendered impossible without a consensus amongst the permanent
members. It was due to this difficulty that collective security action could be
taken only twice during the long history of the UN. However, after the passage
of. the Uniting for Peace Resolution of 1950, the General Assembly was
authorized to take action for the preservance of peace and security of the world
in case the Security Council was not able to take a decision due to casting of
War creates a host of humanitarian problems even if which regrettably is rare -
the belligerents fully respect international humanitarian law (jus in bello).
Civilians are harmed or displaced as an unintended consequence of attacks on
legitimate military targets. Hospitals and places of worship are damaged or
destroyed. New waves of refugees and displaced persons leave their homes in
search of safe havens.
And when the fighting stops, whether from the exhaustion
of both sides or the military victory of one side and defeat of the other, the
belligerents still have to patch up the quarrel which caused the war in the
first place. General Sherman, who knew what he was talking about, said that war
was hell for the boys who had to do the fighting.
10.0 Responsibility to Protect and its Implementation - Case Study
The Responsibility to Protect norm is a norm that was propounded based on
established principles of international law. The several horrible violent
conflicts at the end of the twentieth century, which led to unspeakable human
rights atrocities and innocent civilians being killed, made clear that the
international community should act.
This paper adheres to the definition of R2P
as proposed by the UN Secretary-General, who - drawing from the wordings of the
2005 World Summit Outcome Document, identified R2P as a concept consisting of
- The primary responsibility of states to protect their own populations
from the four crimes of genocide, war crimes, ethnic cleansing, and crimes
against humanity, as well as from their incitement.
- The international community's responsibility to assist a state to
fulfill its R2P.
- The international community's responsibility to take timely and decisive
action, in accordance with the UN Charter, in cases where the state has
manifestly failed to protect its population from one or more of the four
crimes. It is undeniable that every conflict is different and in every
case other interests are at stake. This is the reason I have chosen four
case studies to be compared.
The case studies I have considered here are Kosovo, Chechnya, Libya and
Syria. Kosovo and Chechnya present two case studies prior to the
establishment of the norm in which intervention happened in Kosovo and not
in Chechnya. Both cases have in common that they are both in Eastern Europe,
in both cases they fight for independence and both cases dealt with a
humanitarian crisis. But, after looking closer into the two cases there are
also a lot of difference between the two cases. The background of the two
cases is different looking at the demographics, history and political
situation. The international community involvement differs from each other
and the interests at stake differ.
The Responsibility to Protect is a political and legal norm and not one or the
other. It depends on the conflict and the parties involved which side of the
norm gets precedence over the other To test the discrepancy between the norm on
paper and the impact in practice I have chosen two case studies: Libya and
Syria. Although both cases are of a very recent nature, they both contribute a
lot to my hypothesis. Libya's case shows a textbook example of implementing the
written Responsibility to Protect norm in practice.
There is no discrepancy
between purpose and impact. And that the Syria case shows a textbook example of
the discrepancy between a written norm and the application of the norm in
practice. There is a discrepancy between purpose and impact. The two cases both
have the same background of the establishment of the conflict.
Both states were
influenced by the Arabic revolts against the current regimes and their leaders.
In both states, the opposition wanted democracy and protested in the streets. In
both cases, the demonstrations were put down violently which ended in a violent
conflict between government troops and opposition troops. So why did the
international community apply the Responsibility to Protect norm in Libya and
not in Syria?
Kosovo Conflict- A Humanitarian Intervention
One of the most interesting cases for the establishment of the Responsibility to
Protect norm is the humanitarian intervention in Kosovo. The Kosovo conflict is
about the will of the Kosovo Albanians to establish an independent state free
from the Federate Republic of Yugoslavia (FRY). Serbia, however, was not willing
to let Kosovo separate from the Federate Republic of Yugoslavia.
became very violent at the end of the 1990s after which NATO could not ignore
the situation and had to intervene to prevent a humanitarian crisis. This
summarizes the Kosovo case in just a couple of sentences, but the true reasoning
behind the conflict is much more complicated of course as was the situation
around the intervention by the international community. Vital aspects to be
analyzed in this case is which factors led up to the Kosovo conflict in which
the international community felt it had a responsibility to protect the
civilians targeted? Why is the Kosovo conflict of importance for the
establishment of the Responsibility to Protect norm?
Background to the Kosovo conflict
Both Serbs and Albanians claim to have a historical right to the territory. The
earliest known inhabitants of Kosovo were the Illyrians who are the ancestors of
the Albanians (Malcolm, 1998: 340). However, the Serbians claim that they lived
first in the territory of Kosovo dating back to the sixth century. The Albanians
appeared in the area by the early Middle Ages as nomadic shepherds. By the 12th
century, almost all Kosovo region was in Serbian hands and Kosovo was their
administrative and cultural center. However in 1389, in the Battle of Kosovo
Polje, the Serbs were defeated by the Ottoman Turks.
Kosovo became part of the
Ottoman Empire. Afterward, Serbs left Kosovo in large numbers. As a result,
Kosovo was resettled by Albanians. The Serbs took over Kosovo control again by
1912. At the Conference of Ambassadors in London in 1912, Serbia was given
sovereignty over Kosovo which remained until the end of the Kosovo crisis.
Within Kosovo, there was much anti-Serbian sentiment since the population was
still mostly Albanian.
By 1912 around 64 percent of the population of Kosovo was
Albanian. During the Second World War nearly 100.000 Albanians moved into
Kosovo territory. In 1940 the Communist Party of Yugoslavia had accepted in
writing an autonomous "Peasant Republic of Kosovo", but the promise was not
kept. After the war, thousands of Serbs were prohibited from returning to
Kosovo, and thousands of Albanians immigrated to Kosovo
In 1967 Tito changed his policy in favor of Kosovo. Tito gave more concessions
to the Albanian population related to Albanian nationalism, languages,
education, and other cultural issues. Because of the immigration of Albanians,
emigration of Serbs, and a very high Albanian birth rate between1961-1971 the
Albanian population increased from 67 percent to 77 percent of the Kosovo
population. These developments continued and intensified. The 1974
constitution made Kosovo an Autonomous province within the Federation and gave
it an equal status as the other territories within the Federation of Yugoslavia.
Tito died on May 4, 1980 after which tension led up again.
The extremist part of the Kosovo Albanians desired an ethnically clean Kosovo
and intimidated the Kosovo Serbs. Kosovo Serbs protested by the Serbian
government about their status in Kosovo. By1987 the Serbian government proposed
to end Kosovo's autonomy.
Officially Serbia could not achieve this because Kosovo was under Federal rule
and not Serbian. By the beginning of the 1990s Kosovo Albanians made up ninety
percent of the Kosovo population. Slobodan Milosevic came to power as president
of Serbia in late 1987. The process to abolish Kosovo autonomy began in March
1989 when Serbia gained direct control over Kosovo. Serbia wanted peaceful
co-existence in Kosovo and adopted the "Program for Achieving Peace, Freedom and
Equality in Kosovo (1990)".
Kosovo Albanians, however, did not accept
Serbia's authority. In 1990, Kosovo Albanians proclaimed the Sovereign Republic
of Kosovo. Serbia then officially dissolved Kosovo's government, took executive
control, and dissolved Kosovo's autonomy. The emergency measures imposed by
Serbia resulted in a de Albanianization of cultural and educational institutions
in Kosovo with a consequent re-Serbianization occurring. In response,
Albanian Kosovars adopted a constitution for their Republic of Kosovo.
The League for a Democratic Kosovo (LDK) developed quickly into 700.000 members.
In September of 1991, the unrecognized Republic of Kosovo approved a resolution
proclaiming the independence and sovereignty of Kosovo. In the summer of 1992
Albanians and Serbs in Kosovo lived almost in complete isolation of each other.
After the Dayton Accord it became mainly violent. The National Movement for the
Liberation of Kosovo and the Kosovo Liberation Army (KLA) entered into a violent
campaign to radicalize the situation. Serbia acted brutally to stop the
insurgence by the KLA. This made the Kosovo Albanians supports the KLA even
more. Both sides committed horrible human rights violations, only the crimes
committed by Serbia were by government groups and the Kosovo Albanians by a
small rebel underground group.
Involvement of International community
To stop the tensions between Serbs and Albanians Martti Ahtisaari, chairman at
the peace conference in Rambouillet, France (January 1999) warned that NATO was
ready to use military force to enforce a peace settlement. Present were the
Western allies, Yugoslavia and representatives of the major Albanian Kosovar
groups demanding independence. At the conference, a two-week deadline was issued
to accept the peace proposal. The consequence would be, by not complying before
the deadline passed, airstrikes would be carried out by NATO.
The settlement of
the peace proposal consisted of the demand on Yugoslavia to withdraw its forces
from Kosovo, the KLA to lay down their arms, and that NATO peace-keeping troops
were allowed on the ground to enforce the agreement. A three-year waiting
period was instigated to settle the political future of Kosovo. The Kosovo
Albanians signed the agreement, but the Serbs were not willing to accept
Kosovo's independence. Serbia also was not willing to give up many aspects of
its national sovereignty.
By February 1999 tension kept rising and a war between
the Kosovo Albanians and Serbia seemed to be unavoidable. Both sides committed
horrible crimes and fought the war-making a lot of innocent casualties. I think
it is remarkable that the international community put the blame for the violence
in Kosovo on Milosevic. The international community imposed several demands on
Serbia which it did not comply with.
However, it was the KLA, who sensed that NATO was on its side and intensified
its military efforts. This led the Serbs to intensify their military campaign.
The UN Security Council only responded to the escalation of the violence in 1999
by imposing a weapons embargo and economic and diplomatic sanctions on the
Federal Republic of Yugoslavia. NATO, on the contrary, judged UN actions not
adequate enough and threatened Belgrade with airstrikes.
NATO interpreted UN
Security Council Resolution 1199 of 23 September 1998 as a legitimization for
the use of force against the Federal Republic of Yugoslavia because the UN
called for complete access for humanitarian organizations. After an
ultimatum issued by NATO, Yugoslav President Slobodan Milosevic and US special
envoy Richard Holbrooke agreed in October 1998 on a partial withdrawal of the
Serbian military forces, but the stop of violence was only for short time and in
March1999 NATO started an air campaign against the Federal Republic of
A Responsibility to end Humanitarian crisis
The NATO bombing campaign was aimed to force the Serbian side to accept the
Rambouillet agreement and prevent a humanitarian crisis. NATO expected that it
would take only a few days to bring the Belgrade government to surrender, but
instead the military operation took eleven weeks before the war ended. The
intervention took so much time and effort, because Serbian military reacted with
extreme violence against the Albanian civilian population.
In June 1999,
representatives of the Yugoslav military and NATO came up with a
military-technical agreement on the withdrawal of Yugoslav troops from Kosovo,
which ended the war. On the basis of Resolution 1244 of 10 June 1999 and the
report of the Secretary General of 12 June, the NATO-led Kosovo Force (KFOR)
established its presence in Kosovo.
NATO conducted military intervention in Kosovo without approval of the UN
Security Council. The Kosovo case raised a difficult situation for the
international community. The international community had to choose between human
rights protection and respecting sovereignty rights. It became clear that
economic sanctions and diplomatic pressure was not enough in the case of Kosovo.
In certain cases military intervention is necessary to prevent (more) atrocities
to take place. However, the UN could not give its consent to military
intervention in Kosovo because of the veto rights of China and Russia. The UN
did not have a back-up plan when the Rambouillet talks would fail.
The NATO Treaty acknowledges that the "Military intervention is the primary
responsibility of the Security Council for the maintenance of international
peace and security". But, NATO felt the moral need to stop a humanitarian
catastrophe in Kosovo and support international efforts to secure a peaceful
settlement. The UN Security Council could not forcefully take action, because of
the objections by Russia and China to humanitarian intervention in Kosovo. NATO
unilaterally decided to intervene, "The choice of NATO to intervene was clearly
a European response to a European problem and according to NATO it was not
precedent for action outside Europe".
NATO was convinced that the human rights situation and the threat for Europe by
spreading violence and refugee spoil-over would legitimize their decision to
intervene. Gray formulated it as "these tensions could lead to crises
inimical to European stability and even to armed conflicts which could involve
outside powers or spill over into NATO countries, having a direct effect on the
security of the Alliance".
NATO did not want to set a precedent or make military
intervention a regular form of action, but felt the moral need to intervene in
the Kosovo case. NATO states could point to numerous arguments to support their
view of the legitimacy of the humanitarian intervention in Kosovo. The Federal
Republic of Yugoslavia (FRY) refused to comply with the Security Council
resolution 1199 based on Chapter VII of the UN Charter which intended the
Federal Republic of Yugoslavia to halt hostilities, and take immediate steps to
prevent a humanitarian catastrophe.
NATO bombing was intended to positively improve the situation in Kosovo for the
civilians. Consequences of the air strikes by NATO were not all positive.
Instead of backing down the Serbs stepped up their war effort with the KLA and
close to a million Albanian Kosovars were driven out of Kosovo. Also, the air
strikes did cause innocent civilians to be killed. Both sides were deadlocked in
their fighting. Both sides had to compromise and they did in order to stop the
As of June 5, 1999 Serbia and NATO signed a peace agreement. NATO
achieved that "Serbia agreed to "substantial" autonomy for Kosovo, withdrawal of
all Serb military, police and paramilitary forces, a return of all the refugees,
and an international armed security presence in Kosovo". Serbia achieved that
its territorial integrity would be respected and that Kosovo remains within the
sovereignty rights of Yugoslavia.
Now, what is the extended value of a responsibility to protect for the
international community in cases like those of Kosovo? Those in favor of the
intervention have argued that the intervention brought the ethnic cleansing of
Kosovo's Albanians to an end. The bombing campaign speeded up the downfall of
Slobodan Milo�evic's government. Those in favor of the military intervention
see Milo�evic as responsible for the gross human rights violations and many more
war crimes committed. Those opposed to the intervention saw the intervention as
For instance, Noam Chomsky "condemned NATO's military
campaign in Yugoslavia, particularly its aerial bombing which included the
bombing of civilian populated territory and resources. The bombing did not
create durable solutions with regard to a full respect of the rights of the
people living in the territory".
Those in favor of the intervention accepted that "Sometimes principle of
territorial integrity has to yield in order to defend a set of values enshrined
in human rights law". The Independent International Commission on Kosovo
concluded in its report that "the NATO intervention in Kosovo was not legal but
legitimate. It was illegal because it did not meet with procedural rules
provided by the UN Charter and that the intervention was legitimate because
prior to its occurrence all necessary diplomatic means were utilized".
Critics, however, state: "The NATO cure greatly worsened the Milosevic disease".
By the end of 1999, a quarter of a million refugees from Kosovo were accounted
for. The people in favor of the intervention by NATO on the basis of a moral
need of a responsibility to protect base their belief on intervention on the
cardinal lesson of Srebrenica, during the Bosnia crisis.
In general NATO's actions in Kosovo were internationally accepted. Former UN
Secretary-General Kofi Annan was critical on the intervention, and on the
indecision by the United Nations to not-intervene. A Resolution proposed by
Russia condemning the bombing was defeated in the Security Council 12-3, with
only Russia, China, and Namibia voting in favour. The majority of the
international community was convinced that NATO was right to intervene and that
the international community has got a responsibility to protect its world
The Chechnya Case - A Missing Responsibility to Protect
The Chechnya Republic or better known as just Chechnya is the an autonomous
republic of the Russian Federation. The opposition in Chechnya fights for
complete independence from the Russian Federation and calls its state Its
jerkier. In the nineties of the twentieth century of Chechnya consisted 93,5
percent of the Chechen population and 3,7 percent of Russians[46.
The rest were
small ethnic minorities. Remarkable is that throughout history except right
before the outbreak of the Second Chechnya War on August 26, 1999, all religious
backgrounds lived peacefully coincided. The fall of communism and the Soviet
Republic lead to the search of a common collective identity which decreased the
tolerability towards other religious groups. It is remarkable in the case of
Chechnya that while gross human rights violations were made by both Russia and
the Chechen rebels, the international community did nothing to stop atrocities.
Background of the Chechnya conflict
One of the most important events in history for Chechnya was the arrival of the
Russians in the 16th century. The relationship and conflicts between Russian
leaders and the Chechen is of great importance to understand the struggles in
the twentieth century. The history between Chechnya and Russia started with the
realm of the Russian Tsar Ivan the horrible (1556) in which, first tempt to
conquer the Caucasus was undertaken. But, it was only until Peter the Great in
the beginning of the 18th century that the Russian empire and Chechnya became
opposite sides in a struggle for the territory.
In the twentieth century, again there was a rebellion in Northern Caucasus
against Russian rule. During the Russian Civil War, Chechen supported the
Bolsheviks in their strife with the hope that this would lead to Chechen
independence. But the result was that they got autonomy on paper, but in
reality, it was nothing more than just a formality. The Second World War gave
hope to the Chechen because the Germans promised them a form of autonomy and
respect for Chechen religion, language, and culture when they defeated Russia.
When Soviet troops started to win from the Germans, Stalin ordered revenge on
the Chechen for helping the enemy.
The Chechen was deported to Central Asia in
February 1944. Chechnya was wiped off the map and completely integrated as being
Russia. When Stalin died in 1953 his successors did not grant independence
or rights to the Chechen. Stalin's successors, however, did allow Chechen to
return to what previously was a Chechen territory. By 1957 more than 200.000
Chechnya people arrived in the former Chechen territory which was occupied by
Russian immigrants. The Chechen was seen as secondary citizens and were often
discriminated against. The Chechen people did not accept their situation and
undertook violent actions against the immigrants who took over their land.
A second reason for the Chechen opposition to live up again is the power
struggle in the Kremlin after the breakup of the Former Soviet Union in 1991
which left a power vacuum. Former Chechen General Doedajev saw his chance fit to
call out 'The independent state of Chechnya' under the leadership of the Chechen
National Congress (CNC) in 1991. The Kremlin tried to get Doedajev out of
power by naming a pro-Russian government for Chechnya under the supervision of
Avtoerchanov which failed.
Yeltsin, the new Russian leader felt he had no other
chance than to intervene in Chechen territory and bomb Grozny on December 11,
1994. In the first six months, it looked like Russia was on the winning hand,
but in reality Russian army was not ready for such a large-scale operation and
decided to negotiate with the Chechen rebels. Doedajev was murdered and Yeltsin
negotiated with his successor Jandarbiev after the loss of Grozny by Russia
which led to the Khasavyurt- peace agreements in April 1996. This officially
ended the first Chechen War.
In January 1997 Chechnya held its first free elections as an independent state.
Maschadov got the majority of the votes. Maschadov was a man with a moderate
political view who wanted to keep the dialogue with the Kremlin open. War must
be avoided, because the people want peace. Downside of the election of Maschadov
was that he was not Islamic and a major part of the Chechen politicians wanted
to create a Islamic state. Vice-president Basajev laid down his function and
joined the Radicals as opposition against Maschadov's government from the
Rebels in favor of a Islamic state attacked neighbor state
Dagestan in August 1999 in order to put pressure on the Chechen government and
spite Russian reaction. A consequence of this event was that Russian troops
for the second time invaded Chechnya on October 1, 1999, and the second Chechnya
War was a fact. Russians suspected the Chechen government to be behind the
attacks on Dagestan and within a short time frame, the Russians owned 80 percent
of Chechen territory under prime-minister Vladimir Putin.
Putin got elected as the new president of the Russian Federation in 2000 and
named Achmat Kadyrov as new leader of the semi-republic of Russia. Kadyrov was
not really pro-Russian, but was seen by the Chechen people as collaborators with
the Kremlin. Russia tried to stabilize Chechnya by investing money in the
semi-republic to develop it. This effort did not succeed because of corruption.
The chechen economy deteriorated further. In May 2004 the rebels succeeded in
murdering Chechen president Kadyrov through a bomb attack during a parade in
Grozny. Russia named the pro-Russian Aloe Alchanov as his successor at the next
elections. The Chechen people claim there was election fraud committed and
opposed the election of Alchanov. The tensions between Russia and Chechen rebels
rose up again.
Both Chechen Wars are known for their violent background. A number of human
rights violations were reported during both wars. During the first war, the
rebels and the Russian troops fought in civilian occupied territory in which a
lot of innocent civilians lost their lives. The Second Chechen War was even more
brutal because of the bomb attacks and the specific targeting of civilian
casualties. The Russian army used excessive amount of violence. More than
100.000 Chechen people fled Chechnya. An estimate is that in both wars 100.000
civilians, military and rebellions were killed.
From the first Chechen War, onward different human rights organizations have
warned the international community about the ongoing atrocities committed in
Chechnya by both the rebellions and the Russian army. Further, human rights
activists and journalists tried to gather proof for the atrocities, but it was
very dangerous and hard for them to collect evidence. Several human rights
activists and journalists have been murdered because of their investigation or
were just collateral damage.
International community as mere spectators
The international community did not receive much information about the Russia-
Chechen conflict, because of the rigid control of media coverage and prohibition
of human rights observers in the area. The reasons why the international
community did not react to the situation in Chechnya were due to self-interested
motivations. First, the economic benefits were very important for the decision
not to intervene. Chechnya is very important to Russia for its natural
resources. The oil- and gas winning is important revenue for Russia and a lot of
states are dependent on Russia for their oil and gas produces.
The international community was afraid that criticizing or even intervening in
Chechnya would amount to Russia stopping the sale of oil and gas. On the other
hand, western states were to benefit from Chechen independence. An independent
Chechnya would put Russia out of the oil and gas control in the territory which
would establish cheaper oil and gas winning by the western states. A second
reason for the international community not to intervene in the crisis was
Russia's claim of fighting a war against terrorism. Especially the US saw an
important alliance with Russia in the fight against terrorism.
Hilsum summarizes it perfectly:
"The international community has instead
chosen the path of self-deception, choosing to believe Russia's claims that the
situation in Chechnya is stabilizing, and so be spared of making tough decisions
about what actions are necessary to stop flagrant abuses and secure the
well-being of the people of the region. All the international community could
muster were well-intended statements of concern that were never reinforced with
political, diplomatic, financial or other consequences. Chechnya was placed on
the agenda of the U.N. Commission on Human Rights, the highest human rights body
within the U.N. system, but even there a resolution on Chechnya failed to pass".
Other states did not dare to intervene because Russia was a powerful nation. The
U.S. and European governments have broad political and economic agendas with
Russia and were hesitant to risk a good relationship. The fourth reason is that
Russia is a permanent member of the United Nations Security Council, and Russia
was able to shield Chechnya from serious U.N. actions. Russia would have vetoed
all Security Council Resolutions anyway. This leaves the question open why did
states not take action on bilateral or regional levels? In my opinion, this had
to do with Russia being a powerful state.
A consequence of not being held responsible for the gross human rights
violations is that Russia learned an important lesson about the limits of the
international community's political will in pursuing human rights when a
powerful state is involved. In dealing with Chechnya today, governments and
multilateral institutions stress the need for a political solution to end the
conflict, rather than pressing for an immediate end to human rights abuses, let
alone holding Russia's account for them.
The only form of criticism that Russia got was from the Organization for
Security and Co-operation in Europe (OSCE), the UN Human rights Commission, and
later on the EU. The OSCE tried to put an end to the conflict, but Russia
revoked its right mandate to work in Chechnya. So, the OSCE could not do much
than suspend Russia's voting rights and keep the dialogue open. In late 1999,
the EU took the measure to freeze certain technical assistance programs with
Russia but never thought about intervening. In 2000 and 2001 the U.N. Human
Rights Commission adopted resolutions condemning human rights abuses in Chechnya
but did not follow up on them.
NATO and UN member states could have effectively put an end to conflict in
Chechnya as was in Bosnia and Kosovo. The Bosnia intervention ended with the
Dayton agreement and in Kosovo a re-establishment of autonomy and the ousting of
President Milosevic created more stability in the area.
Both interventions were without the approval of Russia. It is different in the
case of Chechnya because Russia is involved, but that should be an even bigger
reason to intervene for NATO. Human rights abuse by a Security Council permanent
member should especially not be tolerated by the international community. The
scale of the humanitarian violations in Chechnya is too much to allow selfish
motives to dissuade not to intervene. The international community failed in the
case of Chechnya in my opinion. Intervening with heavy military power should not
have to be an option, but creating safe havens is the least the international
community could have done.
The Libya Case- Application Of R2P Norm
The Libyan civil war (Libyan revolution) was an armed conflict in the North
African state of Libya, fought between forces loyal to Colonel Muammar Gadhafi
and those trying to end his government. The protests against Gadhafi started on
Tuesday, 15 February 2011, in Benghazi which led to clashes with security forces
that fired on the crowd. The protests escalated into a rebellion that spread
across the country. The opposition established an interim governing body, the
National Transitional Council, which was recognized by the United Nations on 16
September 2011 and replaced the Gaddafi Government. Muammar Gadhafi remained at
large until 20 October 2011, when he was captured and killed attempting to
escape from Site. The National Transitional Council "declared the liberation
of Libya" and the official end of the war on 23 October 2011.
The Libyan civil war was part of a bigger wave of protests going around in the
Middle East at that moment. The fighting took about half a year before it
officially ended. In practice, however, the fighting is still occurring in
Libya. The international community got involved during the civil war because it
felt it had a responsibility to protect the Libyan citizens from being targeted
and stop other gross human rights violations from taking place. It is
interesting to see in the case of Libya that the international community did
apply the Responsibility to Protect-norm.
Background to the Libyan Civil War
Muammar Gadhafi became the ruler of Libya in 1969. He abolished the Libyan
Constitution of 1951, and adopted laws based on his own ideology The Green
Book. He officially stepped down from power in 1977, but held the rains
behind the scene until 2011. Under Gadhafi, Libya was theoretically a
decentralized, direct democracy state run according to the philosophy of
Gadhafi's The Green Book , but according to Freedom House, however, "these
structures were often manipulated to ensure the dominance of Gadhafi, who
reportedly continued to dominate all aspects of government".
Despite one of the highest unemployment rates in the region, Libya's Human
Development Index in 2010 was the highest in Africa. Positive for the civilians
was that Libya had welfare systems allowing access to free education, free
healthcare, and financial assistance for housing, access to fresh water across
large parts of the country, but unfortunately was the government control over
every aspect of the daily life of the people.
The protests and confrontations began in on 15 February 2011. On the evening of
15 February, between 500 and 600 demonstrators protested in front of Benghazi's
police headquarters after the arrest of human rights lawyer Fathi Terbil. Crowds
were armed molotov cocktails and stones on which the Police responded with tear
gas, water cannons, and rubber bullets. Libyan security forces fired live
ammunition into the armed protests.
The rebels are composed primarily of
civilians, such as teachers, students, lawyers, and oil workers, and a
contingent of professional soldiers that defected from the Libyan Army and
joined the rebels. Gadhafi's administration had repeatedly asserted that the
rebels included al-Qaeda fighters. NATO's Supreme Allied Commander James G.
Stavridis stated that "intelligence reports suggested "flickers" of al-Qaeda
activity were present among the rebels, but also added that there is not
sufficient information to confirm there is any significant al-Qaeda or terrorist
presence. Denials of al-Qaeda membership were issued by the rebels".
International Crisis Group believes this to have been a political manoeuvre to
divert attention away from Gadhafi himself.
The Libyan government was convinced
that the armed rebellion was composed of mercenaries. But it was actually Gadhafi himself who used mercenaries. Gadhafi forces reportedly surrounded
themselves with civilians to protect themselves and key military sites from air
strikes. Amnesty International cited claims that Gadhafi had placed his tanks
next to civilian facilities, using them as shields. According to Libyan state
television, the rebels also used human shields in Misrata. Gadhafi was
convinced that the revolt against his rule was the result of a colonialist plot
by foreign states, particularly blaming France, the US and the UK, to control
oil and enslave the Libyan people. Gaddafi blamed rebel groups of being traitors
and engaging into war on terror against their own population.
Libyan government were reported to have employed snipers, artillery, helicopter gunships, warplanes, anti-aircraft weaponry, and warships against demonstrations
and funeral processions. It was also reported that security forces and foreign
mercenaries repeatedly used firearms, including assault rifles and machine guns,
as well as knives against protesters. Rebel fighter in hospital in Tripoli
Amnesty International also reported that security forces targeted paramedics
helping injured protesters. Injured demonstrators were sometimes denied access
to hospitals and ambulance transport.
In June 2011, a more detailed investigation carried out by Amnesty International
found that many of the allegations against Gadhafi and the Libyan state turned
out to either be false or lack any credible evidence, noting that rebels at
times appeared to have knowingly made false claims or manufactured evidence and
the rebels committed crimes against humanity themselves.
By the end of February, Gadhafi's government had lost control of a significant
part of Libya. But in March, Gaddafi's forces pushed the rebels back and
eventually reached Benghazi and Misrata to recover those cities. By 22 August,
rebel fighters had gained entrance into Tripoli and occupied Green Square, which
was renamed into Martyrs' Square in memory of those who had died. The NTC
captured him on 20 October 2011, and reported that Gaddafi had been killed in
The rebels called for a return to the 1952 constitution and a
transition to multi-party democracy. The National Transitional Council tried to
consolidate efforts for change in the rule of Libya. The main objectives of the
group did not include forming an interim government, but instead to co-ordinate
resistance efforts between the different towns held in rebel control, and to
give a political "face" to the opposition to present to the world.
International community and the use of the Responsibility to Protect-norm
According to a report from the International Crisis Group, "much Western media
coverage has from the outset presented a very one-sided view of the logic of
events, portraying the protest movement as entirely peaceful and repeatedly
suggesting that the government's security forces were unaccountably massacring
unarmed demonstrators who presented no security challenge". This established
danger of a one-sided view of the international community and put all the blame
on the other side while reality was that both sides committed crimes.
On 21 February 2011 the Libyan opposition called on the UN to impose a no-fly
zone on all Tripoli to cut off all supplies of arms and mercenaries to the
regime. On 19 March 2011 the military intervention in Libya on the basis of
United Nations Security Council Resolution 1973 began. That same day, military
operations began, with US forces and one British submarine firing cruise
missiles, the French Air Force, United States Air Force and British Royal Air
Force undertaking ground actions across Libya and a naval blockade was
established by the Royal Navy.
The effort was initially largely led by the
United States. NATO took control of the arms embargo on 23 March, named
Operation Unified Protector. An attempt to unify the military command of the air
campaign first failed over objections by the French, German, and Turkish
On 24 March, NATO agreed to take control of the no-fly zone, while
command of targeting ground unit's remains with coalition forces. Fighting in
Libya ended in late October following the death of Muammar Gaddafi, and NATO
stated it would end operations over Libya on 31 October 2011. Libya's new
government requested that its mission be extended to the end of the year, but on
27 October, the Security Council voted to end NATO's mandate for military action
on 31 October.
International reactions to the 2011 military intervention in Libya were diverse.
Opponents against the 2011 military intervention in Libya have made allegations
of violating the limits imposed upon the intervention by UN Security Council
Resolution 1973. At the end of May 2011, Western troops were captured on film in
Libya, despite Resolution 1973 specifically forbidding "a foreign occupation
force of any form on any part of Libyan territory".
In the article however, it
reports that armed Westerners but not Western troops were on the ground. On
August 11, after NATO airstrike on Majer that allegedly killed 85 civilians, UN
Secretary-General Ban Ki-moon "called on all sides to do as much as possible to
avoid killing innocent people". NATO has been accused of being responsible for
the deaths of far more civilians than if it had not intervened according those
opposed to the intervention.
In January 2012, independent human rights groups published a report describing
these human rights violations and accusing NATO of war crimes. Some critics of
Western intervention suggested that resources were the real reasons for the
intervention and not democratic or humanitarian concerns. Gaddafi's Libya was
known to possess vast resources, particularly in the form of oil reserves and
financial capital. Gadhafi himself referred to the intervention as a "colonial
crusade...capable of unleashing a full scale war,", a sentiment that was echoed
by Russian Prime Minister Vladimir Putin.
However, those in favor of the intervention saw the military intervention in
Libya as an example of the Responsibility to Protect policy adopted by the UN at
the 2005 World Summit. According to Gareth Evans, "The international
military intervention (SMH) in Libya is not about bombing for democracy or
Muammar Gadhafi's head. Legally, morally, politically, and militarily it has
only one justification: protecting the country's people".
The Responsibility to Protect in Libyan case as the first application of
A Just War is one which is waged with legitimate authority, with just cause and
right intention. It must be likely to result in the restoration of law and order
and the conditions for the fulfillment of human rights; it must be a last
resort; and it must be fought proportionally. Finally, it must have a high
probability of success: be winnable in the shortest possible time causing the
minimum amount of harm. The difficulty in the case of the international
engagement in Libya is obvious.
Its legitimacy is in doubt, on the one hand, the UNSC has mandated operations to protect civilians; on the other, the governments
with authority over NATO forces declared that their policy goal is Gadhafi
relinquishing power. it's hard to separate the one goal from the other. Gadhafi
has showed poor governance and abuse of rights and helping him from power is
helping the Libyan people so it is a right intention.
Problematic in the case of Libya was also the demands of proportionality and
making the distinction between military and civilians, and military necessity.
Libya is perhaps the first time the Responsibility to Protect has been invoked
so publicly, on such a scale, and used within the UN Security Council to justify
a major military action. So the way it is framed and the way it plays out take
on an importance even greater than the well-being of Libyans; affecting the
well-being of future populations whose governments fail to live up to their
responsibility. "Getting it wrong may mean years of delay in turning the
Responsibility to Protect norm into a doctrine that's widely accepted and
provides legitimacy to protect civilians anywhere and in the future".
Syrian Crisis - Dilemma Over Intervention under R2P
At this moment the internationally community is involved in resolving the crisis
in Syria. Gross human rights violations are taking place in different parts of
the state. These human rights violations are committed by the government,
governmental supporters and by the opposition. Whole villages are said to be
murdered by governmental mercenary troops.
Images about the atrocities can hardly reach the outside world, because of
limitation on the media by the government. The international community is very
concerned about the situation in Syria. This is why the UN sent a large amount
of observers to monitor the situation. Also, former-UN Secretary General Kofi
Anan is the leading diplomat who is negotiating a peace agreement between the
government and the opposition.
Until now, the international community mainly
observed and recently different states opposed diplomatic and economic sanctions
on Syria. But, diplomatic and economic sanctions have not done anything to
resolve the violent situation in Syria. Until now, the international community
is very reluctant to intervene by military means. The international community
has mentioned the Responsibility to Protect-norm in different occasions during
this conflict, but until now the norm has not done much to improve the situation
in Syria. I am questioning whether or not the Responsibility to Protect-norm is
very useful in practice, in a case like Syria. Why does the international
community not intervene on the basis of the Responsibility to Protect- norm?
Background to the Syrian conflict
The Syrian uprising is part of the wider Arab revolts against governments and
its leaders. It is a violent conflict that is still ongoing as we speak. The
demonstrations across Syria started on January 26th, 2011 and developed into a
nationwide uprising by an organized opposition. Protesters demanded the
resignation of the Syrian Ba'ath government and more specifically that of
President Bashar al-Assad. They protested on the streets for more democracy.
The protest started peacefully, but soon the Syrian government had the Syrian
Army to stop the uprising. The Syrian army used violent measure to disperse the
protesters. The Syrian government denied using violent measures and stated that
it is the fault of armed mercenary troops for causing trouble. At the end of
2011, the opposition began to unite itself and started to form fighting units in
order to oppose the Syrian Army.
According to the United Nations up to approximately 14.000-19.000 people have
been killed, of which about half were innocent civilians. The number of people
injured or imprisoned is even much higher. The total official UN numbers of
Syrian refugees reached around 180.000 people by June, 1 2012. The claims
have been contested by the Syrian government. Anti-government rebels have been
accused of human rights abuses as well. For instance, kidnapping and executing
loyal government citizens. The worst crimes until now have been committed by the Shabiha. The Shabiha are independent mercenaries loyal to the Assad family. They
are suspected of killing whole families.
The uprising occurred in almost every city in Syria, except in the two largest
cities of Syria: Damascus and Aleppo. These cities stayed loyal to the
government. The opposition acknowledged that without mass participation in these
two cities, the government will survive and avoid the same fate of Egypt and
Tunisia. However, on1 February 2012 the Free Syrian army claimed that "Fifty
percent of Syrian territory is no longer under the control of the regime and
that half of the country was now effectively a no-go zone for the security
Reasons behind the conflict are said to be the call for more democracy, more
liberties and the establishment of a better economic situation. Until 2011 there
was only one political party which was the Ba'ath party of Assad. No other
parties were allowed. The media were watched under constant scrutiny and often
oppressed by the government. Further, there was an enormous amount of unemployed
young adults who were unsatisfied with their social position. Also, the living
conditions were deteriorating quickly because the government did not invest in
the standard of living of its people.
Since 12 April 2012, both sides, the Syrian Government and the rebels of the FSA
entered a UN mediated ceasefire period negotiated by Kofi Anan. Despite the
initial plans to begin the ceasefire on 10 April 2012, both sides still engaged
in attacks. On 21 April 2012, the United Nations Security Council adopted
resolution 2043 as basis for the United Nations Supervision Mission in Syria (UNSMIS)
for an initial 90-day period. Herv� Ladsous, the UN Under-Secretary-General for
Peacekeeping Operations, said that "both sides had violated the ceasefire
agreement of April 12 and so the agreement was void".
This statement was
affirmed by the increased fighting in the second half of May and the Houla
massacre. On 29 May 2012, Kofi Annan headed for Syria to start negotiations
again. The Free Syrian Army (FSA) was willing to come to some sort of an
agreement with Kofi Annan and announced on 30 May 2012 that they were giving
President Assad a 48-hour deadline to abide by an international peace plan to
end violence. On 1 June 2012, Assad rejected such a peace plan and promised to
crush any anti-regime uprising. The rebel group Free Syrian Army (FSA) announced
that it was resuming the fight again.
The situation worsened on June 6, 2012 when 78 civilians were killed in the Al-Qubair
massacre committed by pro-government militia, the Shabiha. The UN observers
rushed to the village in order to investigate the alleged massacre but were
prohibited by the government to go to the city and were forced to retreat.
Information from within Syria remained limited because journalists were not
allowed to do their jobs. On 19 December 2011 the only foreign investigation
which was allowed by Assad was the independent monitoring mission by the League
of Arab States as part of a peace initiative. However, shortly after the mission
began reports emerged stating that the Syrian government was obstructing.
The Arab League, the U.S and the EU states all have condemned the use of
violence against the protesters committed by government troops and supporters.
China and Russia have criticized the government, but advised against sanctions.
China and Russia were afraid that sanctions would lead into foreign
intervention. However, military intervention has been ruled out by most states.
The Arab League suspended Syria's membership over the government's response to
The latest attempts to resolve the crisis has been made through the
appointment of Kofi Annan, as a special peace negotiator to resolve the Syrian
crisis. Before March 2012 Russia had shown constant and active support for the
Assad government. Russia often vetoed a UN Security Council Resolution, in
occurrence with China. Russia has shipped arms during the uprising to Assad's
government for use against the rebels.
Russian Middle East analyst Alexander Shumlin wrote that:
The fall of the Syrian regime will mean the disappearance of
Russia's last partner in conducting Soviet-style policies in the Middle East
whose essence in many ways boiled down to countering the United States".
Russia has used its UN Security council position on several occasions to block
resolutions that would harm the Syrian government, including the French and
British attempt to condemn the use of force by the Syrian government. Russia and
China most of all wanted to prohibit another Libyan intervention scenario. When
asked if Russia was supporting the Assad government, the Russian answer was "we
are not protecting any regime".
President Barack Obama's administration condemned the use of violence, stating:
The United States stands for a set of universal rights, including the freedom
of expression and assembly, and believes that governments, including the Syrian
government, must address the legitimate aspirations of their people.
February 24, 2012 after a veto by Russia and China of an Arab League-backed
initiative, Clinton condemned Russia and China position by saying:
distressing to see two permanent members of the Security Council using their
veto while people are being murdered �women, children, brave young men... It is
just despicable and I ask whose side are they on? They are clearly not on the
side of the Syrian people"
An application of the Responsibility to Protect norm aspects UN Member States,
regional organizations and governments to urgently work together towards making
an end to the violent situation.
The Security Council in the case of Syria failed to act accordingly due to its
consistent inability to form an international consensus around the crisis
because of Russia and China. However, on 21 March 2012, the UN Security Council
adopted a presidential statement expressing "its gravest concern" regarding the
situation in Syria. The statement gave full support to the peace negotiations
process led by the United Nations-Arab League Joint Special Envoy Kofi Annan and
called on the Syrian government and opposition to work with the Envoy towards a
peaceful settlement of the Syrian crisis and the implementation of his initial
Between October 2011 and July 2012 Russia and China vetoed three UNSC
resolutions aimed at holding the Syrian government accountable for mass atrocity
crimes. However, on 27 September 2013, the UNSC adopted Resolution 2118,
enabling the expeditious destruction of Syria's chemical weapons stockpile.
On 22 February 2014, the UNSC adopted another unanimous resolution demanding
that all parties, but especially the Syrian government, immediately allow
unhindered humanitarian access, including across borders, to civilians in need.
The resolution demanded a halt to violence, called upon all parties to protect
civilians and noted the government's "primary responsibility to protect."
The UN Human Rights Council has adopted twelve resolutions condemning atrocities
in Syria. The most recent, passed on 21 March, extended the mandate of the CoI
for one year, condemned continued violations of IHL and international human
rights law that may amount to war crimes or crimes against humanity, and
demanded that the government uphold its responsibility to protect.
An international humanitarian conference for Syria took place in Kuwait on 15
January, during which donors pledged over $2.4 billion, less than half of the
$6.5 billion the UN considers necessary to address the "worst humanitarian
crisis" in decades.
Syria crisis - A Mockery of R2P
Despite the ongoing civil war, the first round of the "Geneva II" peace
conference, aimed at ending the violence and establishing a transitional
governing body in Syria, took place from 22 to 31 January. Representatives from
the Syrian government and opposition, as well as approximately 40 other
countries and regional organizations, attended.
At the conclusion of the talks,
the UN-League of Arab States Joint Special Representative, Lakhdar Brahimi,
reported no progress towards an agreement. The conference resumed during the
week of 10 February. On 15 February Brahimi publicly apologized to the Syrian
people for the lack of any substantive progress.
On 25 March the League of Arab States began a two-day annual summit in Kuwait,
where special envoy Brahimi, speaking on behalf of the UN Secretary-General,
appealed for an end the flow of weapons to armed groups in Syria. Saudi Arabia
called for the League of Arab States to grant Syria's suspended seat to the
Problem is that military intervention in Syria would be a misapplication of the
Responsibility to Protect norm and would radically weaken the norm's role in
building both a better Middle East. But, staying out of the conflict will also
weaken the norm's credibility, because in a situation where gross human rights
violations are taking place the international community does nothing to prevent
another massacre from happening.
In any ordered society, the task of keeping the peace is of primary importance.
Only on the basis of peace and security can a legal order be developed. A study
of the development of English law and political institutions reveals that the
earliest concern of the Anglo-Saxon kings was to enforce "the King's peace." Not
until reasonable certainty of peace was assured was there the opportunity to
develop, institutions and procedures which would provide justice through law.
In the international community, the maintenance of peace and security is also of
first importance. So long as force can be used with impunity to achieve selfish
ends, the strong will have little reason to use methods of cooperation- and
accommodation to achieve common purposes, and the weak will find little
protection in such procedures.
Furthermore, the experience of two world wars has
demonstrated not only that war is immensely destructive for all concerned but
also that it solves few problems, creates many more than it solves, and
generally leaves nations both great and small in a worse condition than it found
them. It was, therefore, not surprising that those who wrote the Charter should
have been convinced that the first job of the new organization, both in time and
in importance, was to keep the peace. In line with this thought, the United
States delegation to the San Francisco Conference reported to the President that
"if any single provision of the Charter has more substance than the others, it
is surely the first sentence of Article 39, which places upon the Security
Council the duty to determine the existence of 'any threat to the peace, breach
of the peace or act of aggression and to make recommendations or decide upon
measures to be taken 'to maintain or restore international peace and security.
The Charter places upon the Security Council the primary responsibility forth
the maintenance of international peace and security. This responsibility is made
particularly clear with respect to measures to be taken in case of a threat to
the peace, breach of the peace, or act of aggression." Under Articles'41 and 42,
it may require Members to take such political, economic, and military measures
as may be necessary to restore international peace and security. However, Action
of the UN Security Council towards the maintenance of peace largely depends on
the international relations of the permanent members"
In my analysis of the powers, practice, and effectiveness of the UN Security
Council was made, it is very evident that the full effectiveness of the Security
Council as the primary instrument of peace enforcement was premised on two
conditions, neither of which materialized:
- The availability to the Security Council of military forces and facilities
under the terms of agreements concluded between the Council and Members; and
- The effective cooperation of the permanent members of the Council in
dealing with threats to the peace, breaches of the peace, and acts of
aggression. Various examples pointed towards the abuse of veto power by
permanent five based on political reasoning rather than serving its true
cause of protection of international peace and security.
While examining the various mechanisms adopted by UN Security Council for
peacekeeping and dispute settlement it can be seen that peaceful mechanisms such
as deputation of observation mission or good offices mission have been effective
in avoiding the possible threat to peace as well as restoring peace amongst
disputing states. Imposing financial sanctions has also been partially
successful in ending conflict situations.
However, when it comes to forceful
action, that is, military intervention or intervention on the basis of
humanitarian grounds, it is difficult to come to a conclusion because of its
varied application. The instances of Kosovo, Libya, and recently Syria urge me
to say that, Actions of the UNSC to take action on crimes against humanity have
been biased to and majorly depend on the political stances and intra relations
Concerning the impact of the Responsibility to Protect norm in practice, it
leaves open diplomatic, economic or military measures for the international
community. The norm is still not applied in a consistent manner in practice and
that is why there is still a discrepancy between the norm on paper and in
practice. I feel that the Kosovo and Libya cases are exceptions were the norm
was applied, but the overall practice concurs with the Chechenya and Syria case.
In practice there are still too many downfalls to the working of the norm to be
consistently applied. It is a work in progress, but until now it has failed in
After the completion of analysis of all the data and comprehension of the
findings, it is very much feasible to conclude that:
- The United Nations remains the indispensable organization that can bring
the world around the table to formulate collective responses to shared
challenges. Even as these challenges grow increasingly complex, Member
States continue to turn to the UN as the universal forum to build consensus
and unity in the face of daunting obstacles. But in order to deliver on its
crucial responsibilities in a fast-moving world, the UN as an institution
has to evolve.
- Many of the situations where UN has failed to take action against threat
to peace or aggression is solely because of the dead lock situation created
by the usage of veto by the P5. Because of veto many a times UNSC has failed to come to
a conclusion and failed to even condemn states which are involved in such
- The Resolution of "Uniting for Peace" is a positive step towards
ensuring the effectiveness of UN as it allows General Assembly to take
action, if SC fails to come to a conclusion or take action. However, the
scope of this power is limited and has to be enlarged, keeping in view of
the ideologies with which UN was established.
- The doctrine of Responsibility to Protect though propounded with larger
hope and expectations, has failed miserably in its implementation primarily
due to the geo politics of the international community.
The future of the Security Council very largely depends upon the course of
international relations and more particularly the attitudes of the major powers
with respect to the role which the United Nations is to play.
Adopt Responsibility Not To Veto -
This paper proposes that the permanent five members of the UN Security Council (P5) should agree not to use their veto power to block action in response to genocide and mass atrocities which would otherwise pass by a majority.
Sanctions should be designed with comparable deliberation and planning of
military operations, with a clear understanding of purposes, objectives,
consequences and impact assessments, evasion, contingency planning and exit
Security Council is oblige to follow the rules of general international law as
well as the purposes and principles enclosed in the UN Charter
Responsibility of All, the decision making power vests not with the Security
Council, but with every Member State. Whether a military intervention or any
action to be taken against a state for its violation of international principles
and crime against humanity, it shall be decided by general assembly rather than
SC, because SC does not represent the interest of all.
The basis of the Responsibility to Protect norm is still that state sovereignty
entails that states are responsible for the lives and welfare of their citizens.
But, the Responsibility to Protect is more than only military intervention. In
fact, the ICISS report states that intervention is only allowed in extreme cases
and when certain criteria are met.
Those criteria mirror the moral tests from the just war theory, including the
intervention must have a reasonable prospect for achieving success, which in
light of the Responsibility to Protect norm entails better protection of
civilian life than the status quo. That's the problem with intervention in
Syria, namely that it probably leads to more innocent casualties. Airstrikes
alone are not fit for Syria because much of the fighting takes place in cities
and would cause significant civilian casualties. Also, Assad's forces are too
strong and the opposition still too divided to be defeated.
This was different in Libya were the opposition was more united and Qaddafi
forces not that well equipped and organized. But what about using international
troops to create safe zones where the resistance could be armed& trained and
wounded be taken care of? Kofi Anan has stated: "Understanding the limits of
military force in the Syrian case is critical to the viability of the
Responsibility to Protect norm as an international norm".
A failed intervention
would only damage the credibility of the Responsibility to Protect norm for the
future. States who are still worried about the use and application of the
Responsibility to Protect norm will only doubt the legitimacy of the norm when
the mission fails. Developing the norm into a legal doctrine would be impossible
when its credibility is lost.
On the other side, Syria interventionists do have a point when they say ignoring
Syria could damage the doctrine's credibility. To my opinion diplomatic, legal
and economic tactics have all been tried in the Syria case, but until now have
failed. The Responsibility to Protect needs more international involvement. Even
more important, according to me, is that he Syrian situation tests the
international community's ability and willingness to apply the Responsibility to
Protect norm consistently. Syria, just as Libya, is at a breaking point and
action is pressing.
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 Supra note 38
Hehir, A. (2012), 'Syria and the Responsibility to Protect: Rhetoric Meets
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 See Joint Special Envoy Kofi Annan Six point peace plan to end Syria
 See http://www.globalr2p.org/regions/syria
 See timeline for international response in Syria, Global Responsibility to
See Hehir, A. (2012), 'Syria and the Responsibility to Protect: Rhetoric
Meets Reality', Published: March 14, 2012. Link: http://www.eir.info/2012/03/14/syriaandtheresponsibilitytoprotectrhetoricmeetsreality/
Written By: Mohammad Rasikh Wasiq,
Student of LLM (International Law)
- ILS Law College, Pune
Email: [email protected]