Peace Keeping Mechanisms Of United Nations An Analysis Of Responsibility To Protect And Its Implementation: Case Study
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 implementation.
Introduction:
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[2] and by arbitration, and also the Minquiers and Ecrehos case in the International Court[3]; 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[4].
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.[5]
Mediation
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.
Arbitration
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 procedure.
Adjudication
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
Formation
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[6] (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.
This may 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.[7]
The United Nations India-Pakistan Observation Mission (UNIPOM, 1965-66) In 1965[8]
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 1966.
The United Nations Good Offices Mission in Afghanistan and Pakistan (UNGOMAP, 1988-90)[9]
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)[10]
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 arrangements.
Forceful Functions
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.
Collective Security
The UN's war prevention role as envisaged under the Charter has been called "collective-security"[11]. 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
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[14] (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.[15]
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 void.
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 operation effectively.
Sanctions
Reforming Sanctions
When the United Nations Security Council imposed comprehensive trade sanctions on Iraq on August 6, 1990 (Resolution 661)[16], 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 circumstances, foodstuffs.
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[17].
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[18].
This provided 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.
Humanitarian Function
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 age.
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.[19]
Sources
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.
Self-Determination
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. [20]
Armed Conflict
The Protocol of 1 of June 1977 Additional to the Geneva Conventions relating to the protection of victims of international conflicts[22], 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 War.
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.
This means 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.
Humanitarian Intervention
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 them.
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[23]. 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.
Humanitarian Approach
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
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[24] 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).
A variety of methods were considered, and in the end, the Security Council adopted a resolution[25] 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 Nations)'.
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 be permitted.
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 the 'veto'.
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 three pillars:
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.
The situation 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[27]. 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.[28] 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[29]. 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[30]. 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.[31] 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)"[32].
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[33]. 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[34]. 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[35]. 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 Yugoslavia.
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[36]. 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.[37]
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[38].
The NATO Treaty acknowledges that the "Military intervention is the primary responsibility of the Security Council for the maintenance of international peace and security"[39]. 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"[40].
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[41] 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 fighting.
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[42].
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[43]. 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 being controversial.
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"[44]. 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 citizens.
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.[45] 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[47]. 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.[48]
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[49]. 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 Islamic corner.
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[50]. 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[51].
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[52].
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.
Third, as Hilsum[53] 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[54].
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[55]. 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[56]. 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[57]. 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"[58].
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.[59]
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"[60]. 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[61]. 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.
However, The 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[62].
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[63]. The NTC captured him on 20 October 2011, and reported that Gaddafi had been killed in the city.
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 governments.
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[64], "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 norm
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[65]. 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[66]. 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 forces"[67].
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.
International involvement
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"[68].
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[69]. 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 crisis.
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"[70].
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"[71].
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.
On February 24, 2012 after a veto by Russia and China of an Arab League-backed initiative, Clinton condemned Russia and China position by saying:
"It's quite 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"[72]
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 six-point proposal[73].
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."[74]
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[75].
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 National Coalition.
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.
Responsibility
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"
FINDINGS
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:
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 among P5.
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 my opinion. After the completion of analysis of all the data and comprehension of the findings, it is very much feasible to conclude that:
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 strategies.
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.
Conclusion
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[76].
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.
End-Notes:
[1] *
[2] Ambatielos (Greece v. United Kingdom) available at website of ICJ http://www.icjcij.org/docket/index.php?sum=81&p1=3&p2=3&case=15&p3=5 viewed on 15th March 2022
[3] Minquiers and Ecrehos (France/United Kingdom) available at website of ICJ www.icjcij.org/docket/files/17/2023.pdf viewed on 15th March 2022
[4] Anglo Iranian Oil Co. (United Kingdom v. Iran), available at website of ICJ http://www.icjcij.org/docket/index.php?sum=82&p1=3&p2=3&case=16&p3=5 viewed on 15th March 2022
[5] H.G. Darwin, ''The International Disputes", Methods of Peaceful Settlement, published by Europa Publications, London, (1972), pp. 7880
[6] First United Nations Emergency Force available at http://www.un.org/en/peacekeeping/missions/past/unef1backgr2.html viewed on 15th March 2022
[7] Suy, E. "United Nations Peace Keeping System", published by EPIL, p. 258.
[8] See for further details http://www.un.org/en/peacekeeping/missions/past/unipom.htm viewed on 20th March 2022
[9] See for further details http://www.un.org/en/peacekeeping/missions/past/ungomap/ viewed on 20th March 2022
[10] See for further details http://www.un.org/en/peacekeeping/missions/past/uniimog.htm viewed on 20th March 2022
[11] Handbook on the peaceful settlement of disputes between states, OLA/COD/2394 available at http://legal.un.org/cod/books/HandbookOnPSD.pdf viwed on 3rd April 2022
[12] Article 106 of UN Charter available at http://www.un.org/en/sections/uncharter/chapterxvii0/index.html viewed on 20th March 2022
[13] For discussion, see H. Nasu, International Law on Peacekeeping: A Study of Article 40 of the UN Charter, 2009, 225233.
[14] Complaint of aggression upon the Republic of Korea (7 Jul) Resolution 84, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/84(1950)
[15] Gordenker, Leon, "The United nations and Peaceful Unification of Korea", published by Hague Nijloff (1969), p. 79
[16]The situation between Iraq and Kuwait Resolution 661 adopted in 1990, available at https://documentsddsny.un.org/doc/RESOLUTION/GEN/NR0/575/11/IMG/NR057511.pdf?OpenElement
[17]Report to the SecretaryGeneral on humanitarian needs in Kuwait and Iran in the immediate postcrisis environment by a mission to the area led by Mr Martti Athisaari under secretary General for administration and management, dated 20th March 1991 available at http://www.un.org/Depts/oip/background/reports/s22366.pdf viewed on 14th March 2022
[18] Resolution 706 available at
https://documentsddsny.un.org/doc/RESOLUTION/GEN/NR0/596/42/IMG/NR059642.pdf?OpenElement, Resolution 712 available at
https://documentsddsny.un.org/doc/RESOLUTION/GEN/NR0/596/48/IMG/NR059648.pdf?OpenElement viewed on 14th March 2022
[19] Sydney, D. Bailey, "The U.N. Security Council and Human Rights", published by Quaker Peace and Service (1997), p. X.
[20] G.A. Res. 1514 (XV), 14 Dec. 1960.
[21] Security Council resolution 134 (1960) on the situation in the Union of South Africa arising out of the largescale killings of unarmed and peaceful demonstrators in Sharpeville, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/134(1960) viewed on 25th March 2022
[22] For further details see https://www.icrc.org/eng/assets/files/other/icrc_002_0321.pdf
[23] Jennifer M Welsh, "Humanitarian Intervention and International Relations" oxford publication 2003 PP 4550.
[24] III, Geneva Convention Relative To The Treatment Of Prisoners Of War Of 12 August 1949, available at http://www.un.org/en/genocideprevention/documents/atrocitycrimes/Doc.32_GCIIIEN.pdf
[25] United Nations Security Council Resolution 688, adopted on 5 April 1991 available at https://documentsddsny.un.org/doc/RESOLUTION/GEN/NR0/596/24/IMG/NR059624.pdf?OpenElement viwed on 5th April 2022
[26] UN SecretaryGeneral, Implementing the Responsibility to Protect, 2009, A/63/677. 8 Stahn, Responsibility to Protect, at pg 110.
[27] Welsh, J.M. (2004), 'Humanitarian Intervention and International Relations', Oxford: University Press. 110 111
[28] Vickers, M. (1998), 'Between Serb and Albanian: A history of Kosovo'. New York: Columbia University Press. Stephen Walt (2009), 'Alliances in a UniPolar World', 1821
[29] Malcolm, N. (1998), 'Kosovo A Short History'. London, Basingstoke and Oxford: Pan Macmillan. 332
[30] Supra note 2 pp 3233
[31] Supra note 3 pp 34
[32] See Jansen, G.R (1999), 'Albanians and Serbs in Kosovo: An Abbreviated History An Opening for the The Islamic Jihad in Europe', Colorado: State University Fort Collins.
[33] ibid
[34] International Crisis Group, Kosovo and Serbia after the ICJ Opinion (Pristina/Belgrade/Brussels, 2010, Europe Report No. 206).
[35] Resolution 1244 of 10 June 1999 and the report of the Secretary General of 12 June (S/1999/672) S/RES/1199 of 23 September 1998 S/RES/1203 of 24 October 1998
[36] Charney, J. I (1999), 'Anticipatory Humanitarian Intervention in Kosovo', 93 (4), pp. 836839.
[37] Resolution 1244 of 10 June 1999 and the report of the Secretary General of 12 June (S/1999/672)
[38] Thakur, R. (1999), 'The UN and Kosovo's Challenge of Humanitarian Intervention', United Nations University. Link: http://isanet.ccit.arizona.edu/archive/kosovoandun.html.
[39] Malmvig, H (2006), 'State Sovereignty and Intervention. A Discourse Analysis of Interventionary and Noninterventionary practices in Kosovo and Algeria', London: Routledge.
[40] Charney, J. I (1999), 'Anticipatory Humanitarian Intervention in Kosovo', 93 (4), pp. 834841.
[41] Gray, C. (2008), 'International law and the use of force', Oxford: University Press.
[42] Akin, B.M. (2010), 'The Kosovo Crisis and the UN March'. Link: http://www.eurasiacritic.com/articles/kosovocrisisandun.
[43] ibid
[44] Thakur, R. (1999), 'The UN and Kosovo's Challenge of Humanitarian Intervention', United Nations University. Link: http://isanet.ccit.arizona.edu/archive/kosovoandun.html
[45] Hughes, J. (2007), 'From nationalism to jihad', Philadelphia: University of Pennsylvania Press.
[46] Tiskov, V.A. (2004), 'Life in a wartorn society', Berkeley: University of California Press.
[47] Supra note 20
[48] Supra note 19
[49] Tiskov, V.A. (2004), 'Life in a wartorn society', Berkeley: University of California Press.
[50] Shah, A. (2004), 'Crisis in Chechnya', Published: September 04, 2004. Link: http://www.globalissues.org/article/100/crisisinchechnya
[51] ibid
[52] Hilsum, L.(2004), ' The conflict the west always ignores', New Statesman. Published January 26, 2004. Link: http://www.globalissues.org/
[53] ibid
[54] Shah, A. (2004), 'Crisis in Chechnya', Published: September 04, 2004. Link: http://www.globalissues.org/article/100/crisisinchechnya
[55] Claes, J. (2011), 'Libya and the Responsibility to Protect', Published: Center for Conflict Analysis and Prevention, on March 1, 2011. Link: http://www.usip.org/publications/libyaand theresponsibilitytoprotect
[56] International Coalition for the Responsibility to Protect, 2012. Link: http://www.responsibilitytoprotect.org/index.php/crises/crisisinlibya
[57] Hillstrom, D.(2011), 'The Libyan No Fly Zone: Responsibility to Protect and International Law', Published March 21, 2011. Link: http://www.foreignpolicyjournal.com/2011/03/21/thelibyannoflyzoneresponsibility to protectandinternationallaw
[58] Supra note 29
[59] ibid
[60] Supra note 30
[61] Claes, J. (2011), 'Libya and the Responsibility to Protect', Published: Center for Conflict Analysis and Prevention, on March 1, 2011. Link: http://www.usip.org/publications/libyaand theresponsibilitytoprotect
[62] ICISS (2001) On the Responsibility to Protect, http://www.iciss.ca/pdf/CommissionReport.pdf
[63] Hillstrom, D.(2011), 'The Libyan No Fly Zone: Responsibility to Protect and International Law', Published March 21, 2011. Link: http://www.foreignpolicyjournal.com/2011/03/21/thelibyannoflyzoneresponsibility to protectandinternationallaw
[64] See comments of garath evans on International Coalition for the Responsibility to Protect, 2012. Link: http://www.responsibilitytoprotect.org/index.php/crises/crisisinlibya
[65] Buchanan, Alan (2003), 'Reforming the International law of Humanitarian Intervention', Cambridge: Cambridge University Press, pp. 130174.
[66] International Coalition for the Responsibility to Protect, 2012. Link: http://www.responsibilitytoprotect.org/index.php/crises/crisisinsyria
[67] ibid
[68] Supra note 40
[69] Supra note 38
[70]Hehir, A. (2012), 'Syria and the Responsibility to Protect: Rhetoric Meets Reality', Published: March 14, 2012, available at http://www.eir.info/2012/03/14/syriaandtheresponsibilitytoprotectrhetoricmeetsreality/
[71] Kuwalil, D. (2012), 'Responsibility to Protect: Why Libya and not Syria?', Published: April 6, 2012. available at www.accord.org.za/.../brief/policy_practice16.pdf
[72] See http://mideastafrica.foreignpolicy.com/posts/2012/03/16/syrias_crisis_and_the_future_of_r2p
[73] See Joint Special Envoy Kofi Annan Six point peace plan to end Syria crisis http://www.aljazeera.com/news/middleeast/2012/03/2012327153111767387.html
[74] See http://www.globalr2p.org/regions/syria
[75] See timeline for international response in Syria, Global Responsibility to Protect, http://www.globalr2p.org/publications/135
[76]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]
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 implementation.
Introduction:
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[2] and by arbitration, and also the Minquiers and Ecrehos case in the International Court[3]; 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[4].
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.[5]
Mediation
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.
Arbitration
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 procedure.
Adjudication
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
Formation
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[6] (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.
This may 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.[7]
The United Nations India-Pakistan Observation Mission (UNIPOM, 1965-66) In 1965[8]
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 1966.
The United Nations Good Offices Mission in Afghanistan and Pakistan (UNGOMAP, 1988-90)[9]
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)[10]
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 arrangements.
Forceful Functions
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.
Collective Security
The UN's war prevention role as envisaged under the Charter has been called "collective-security"[11]. 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.
- Prohibition
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[12] 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.
- Guarantees
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
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.
- Automatism
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.
- Anonymity
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.[13]
- Assignability
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 Case -1950
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[14] (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.[15]
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 void.
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 operation effectively.
Sanctions
Reforming Sanctions
When the United Nations Security Council imposed comprehensive trade sanctions on Iraq on August 6, 1990 (Resolution 661)[16], 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 circumstances, foodstuffs.
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[17].
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[18].
This provided 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.
Humanitarian Function
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 age.
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.[19]
Sources
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.
Self-Determination
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. [20]
- 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.
At the end of the debate, the Council adopted a skillfully drafted resolution[21], 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.
Armed Conflict
The Protocol of 1 of June 1977 Additional to the Geneva Conventions relating to the protection of victims of international conflicts[22], 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 War.
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.
This means 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.
Humanitarian Intervention
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 them.
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[23]. 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.
Humanitarian Approach
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
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[24] 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).
A variety of methods were considered, and in the end, the Security Council adopted a resolution[25] 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 Nations)'.
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 be permitted.
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 the 'veto'.
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 three pillars:
- 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.[26] 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.
The situation 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[27]. 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.[28] 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[29]. 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[30]. 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.[31] 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)"[32].
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[33]. 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[34]. 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[35]. 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 Yugoslavia.
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[36]. 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.[37]
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[38].
The NATO Treaty acknowledges that the "Military intervention is the primary responsibility of the Security Council for the maintenance of international peace and security"[39]. 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"[40].
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[41] 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 fighting.
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[42].
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[43]. 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 being controversial.
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"[44]. 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 citizens.
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.[45] 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[47]. 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.[48]
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[49]. 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 Islamic corner.
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[50]. 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[51].
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[52].
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.
Third, as Hilsum[53] 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[54].
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[55]. 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[56]. 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[57]. 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"[58].
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.[59]
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"[60]. 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[61]. 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.
However, The 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[62].
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[63]. The NTC captured him on 20 October 2011, and reported that Gaddafi had been killed in the city.
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 governments.
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[64], "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 norm
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[65]. 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[66]. 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 forces"[67].
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.
International involvement
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"[68].
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[69]. 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 crisis.
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"[70].
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"[71].
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.
On February 24, 2012 after a veto by Russia and China of an Arab League-backed initiative, Clinton condemned Russia and China position by saying:
"It's quite 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"[72]
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 six-point proposal[73].
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."[74]
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[75].
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 National Coalition.
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.
Responsibility
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"
FINDINGS
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 among P5.
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 my opinion. 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
aggression.
- 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 strategies.
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.
Conclusion
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[76].
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.
End-Notes:
[1] *
[2] Ambatielos (Greece v. United Kingdom) available at website of ICJ http://www.icjcij.org/docket/index.php?sum=81&p1=3&p2=3&case=15&p3=5 viewed on 15th March 2022
[3] Minquiers and Ecrehos (France/United Kingdom) available at website of ICJ www.icjcij.org/docket/files/17/2023.pdf viewed on 15th March 2022
[4] Anglo Iranian Oil Co. (United Kingdom v. Iran), available at website of ICJ http://www.icjcij.org/docket/index.php?sum=82&p1=3&p2=3&case=16&p3=5 viewed on 15th March 2022
[5] H.G. Darwin, ''The International Disputes", Methods of Peaceful Settlement, published by Europa Publications, London, (1972), pp. 7880
[6] First United Nations Emergency Force available at http://www.un.org/en/peacekeeping/missions/past/unef1backgr2.html viewed on 15th March 2022
[7] Suy, E. "United Nations Peace Keeping System", published by EPIL, p. 258.
[8] See for further details http://www.un.org/en/peacekeeping/missions/past/unipom.htm viewed on 20th March 2022
[9] See for further details http://www.un.org/en/peacekeeping/missions/past/ungomap/ viewed on 20th March 2022
[10] See for further details http://www.un.org/en/peacekeeping/missions/past/uniimog.htm viewed on 20th March 2022
[11] Handbook on the peaceful settlement of disputes between states, OLA/COD/2394 available at http://legal.un.org/cod/books/HandbookOnPSD.pdf viwed on 3rd April 2022
[12] Article 106 of UN Charter available at http://www.un.org/en/sections/uncharter/chapterxvii0/index.html viewed on 20th March 2022
[13] For discussion, see H. Nasu, International Law on Peacekeeping: A Study of Article 40 of the UN Charter, 2009, 225233.
[14] Complaint of aggression upon the Republic of Korea (7 Jul) Resolution 84, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/84(1950)
[15] Gordenker, Leon, "The United nations and Peaceful Unification of Korea", published by Hague Nijloff (1969), p. 79
[16]The situation between Iraq and Kuwait Resolution 661 adopted in 1990, available at https://documentsddsny.un.org/doc/RESOLUTION/GEN/NR0/575/11/IMG/NR057511.pdf?OpenElement
[17]Report to the SecretaryGeneral on humanitarian needs in Kuwait and Iran in the immediate postcrisis environment by a mission to the area led by Mr Martti Athisaari under secretary General for administration and management, dated 20th March 1991 available at http://www.un.org/Depts/oip/background/reports/s22366.pdf viewed on 14th March 2022
[18] Resolution 706 available at
https://documentsddsny.un.org/doc/RESOLUTION/GEN/NR0/596/42/IMG/NR059642.pdf?OpenElement, Resolution 712 available at
https://documentsddsny.un.org/doc/RESOLUTION/GEN/NR0/596/48/IMG/NR059648.pdf?OpenElement viewed on 14th March 2022
[19] Sydney, D. Bailey, "The U.N. Security Council and Human Rights", published by Quaker Peace and Service (1997), p. X.
[20] G.A. Res. 1514 (XV), 14 Dec. 1960.
[21] Security Council resolution 134 (1960) on the situation in the Union of South Africa arising out of the largescale killings of unarmed and peaceful demonstrators in Sharpeville, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/134(1960) viewed on 25th March 2022
[22] For further details see https://www.icrc.org/eng/assets/files/other/icrc_002_0321.pdf
[23] Jennifer M Welsh, "Humanitarian Intervention and International Relations" oxford publication 2003 PP 4550.
[24] III, Geneva Convention Relative To The Treatment Of Prisoners Of War Of 12 August 1949, available at http://www.un.org/en/genocideprevention/documents/atrocitycrimes/Doc.32_GCIIIEN.pdf
[25] United Nations Security Council Resolution 688, adopted on 5 April 1991 available at https://documentsddsny.un.org/doc/RESOLUTION/GEN/NR0/596/24/IMG/NR059624.pdf?OpenElement viwed on 5th April 2022
[26] UN SecretaryGeneral, Implementing the Responsibility to Protect, 2009, A/63/677. 8 Stahn, Responsibility to Protect, at pg 110.
[27] Welsh, J.M. (2004), 'Humanitarian Intervention and International Relations', Oxford: University Press. 110 111
[28] Vickers, M. (1998), 'Between Serb and Albanian: A history of Kosovo'. New York: Columbia University Press. Stephen Walt (2009), 'Alliances in a UniPolar World', 1821
[29] Malcolm, N. (1998), 'Kosovo A Short History'. London, Basingstoke and Oxford: Pan Macmillan. 332
[30] Supra note 2 pp 3233
[31] Supra note 3 pp 34
[32] See Jansen, G.R (1999), 'Albanians and Serbs in Kosovo: An Abbreviated History An Opening for the The Islamic Jihad in Europe', Colorado: State University Fort Collins.
[33] ibid
[34] International Crisis Group, Kosovo and Serbia after the ICJ Opinion (Pristina/Belgrade/Brussels, 2010, Europe Report No. 206).
[35] Resolution 1244 of 10 June 1999 and the report of the Secretary General of 12 June (S/1999/672) S/RES/1199 of 23 September 1998 S/RES/1203 of 24 October 1998
[36] Charney, J. I (1999), 'Anticipatory Humanitarian Intervention in Kosovo', 93 (4), pp. 836839.
[37] Resolution 1244 of 10 June 1999 and the report of the Secretary General of 12 June (S/1999/672)
[38] Thakur, R. (1999), 'The UN and Kosovo's Challenge of Humanitarian Intervention', United Nations University. Link: http://isanet.ccit.arizona.edu/archive/kosovoandun.html.
[39] Malmvig, H (2006), 'State Sovereignty and Intervention. A Discourse Analysis of Interventionary and Noninterventionary practices in Kosovo and Algeria', London: Routledge.
[40] Charney, J. I (1999), 'Anticipatory Humanitarian Intervention in Kosovo', 93 (4), pp. 834841.
[41] Gray, C. (2008), 'International law and the use of force', Oxford: University Press.
[42] Akin, B.M. (2010), 'The Kosovo Crisis and the UN March'. Link: http://www.eurasiacritic.com/articles/kosovocrisisandun.
[43] ibid
[44] Thakur, R. (1999), 'The UN and Kosovo's Challenge of Humanitarian Intervention', United Nations University. Link: http://isanet.ccit.arizona.edu/archive/kosovoandun.html
[45] Hughes, J. (2007), 'From nationalism to jihad', Philadelphia: University of Pennsylvania Press.
[46] Tiskov, V.A. (2004), 'Life in a wartorn society', Berkeley: University of California Press.
[47] Supra note 20
[48] Supra note 19
[49] Tiskov, V.A. (2004), 'Life in a wartorn society', Berkeley: University of California Press.
[50] Shah, A. (2004), 'Crisis in Chechnya', Published: September 04, 2004. Link: http://www.globalissues.org/article/100/crisisinchechnya
[51] ibid
[52] Hilsum, L.(2004), ' The conflict the west always ignores', New Statesman. Published January 26, 2004. Link: http://www.globalissues.org/
[53] ibid
[54] Shah, A. (2004), 'Crisis in Chechnya', Published: September 04, 2004. Link: http://www.globalissues.org/article/100/crisisinchechnya
[55] Claes, J. (2011), 'Libya and the Responsibility to Protect', Published: Center for Conflict Analysis and Prevention, on March 1, 2011. Link: http://www.usip.org/publications/libyaand theresponsibilitytoprotect
[56] International Coalition for the Responsibility to Protect, 2012. Link: http://www.responsibilitytoprotect.org/index.php/crises/crisisinlibya
[57] Hillstrom, D.(2011), 'The Libyan No Fly Zone: Responsibility to Protect and International Law', Published March 21, 2011. Link: http://www.foreignpolicyjournal.com/2011/03/21/thelibyannoflyzoneresponsibility to protectandinternationallaw
[58] Supra note 29
[59] ibid
[60] Supra note 30
[61] Claes, J. (2011), 'Libya and the Responsibility to Protect', Published: Center for Conflict Analysis and Prevention, on March 1, 2011. Link: http://www.usip.org/publications/libyaand theresponsibilitytoprotect
[62] ICISS (2001) On the Responsibility to Protect, http://www.iciss.ca/pdf/CommissionReport.pdf
[63] Hillstrom, D.(2011), 'The Libyan No Fly Zone: Responsibility to Protect and International Law', Published March 21, 2011. Link: http://www.foreignpolicyjournal.com/2011/03/21/thelibyannoflyzoneresponsibility to protectandinternationallaw
[64] See comments of garath evans on International Coalition for the Responsibility to Protect, 2012. Link: http://www.responsibilitytoprotect.org/index.php/crises/crisisinlibya
[65] Buchanan, Alan (2003), 'Reforming the International law of Humanitarian Intervention', Cambridge: Cambridge University Press, pp. 130174.
[66] International Coalition for the Responsibility to Protect, 2012. Link: http://www.responsibilitytoprotect.org/index.php/crises/crisisinsyria
[67] ibid
[68] Supra note 40
[69] Supra note 38
[70]Hehir, A. (2012), 'Syria and the Responsibility to Protect: Rhetoric Meets Reality', Published: March 14, 2012, available at http://www.eir.info/2012/03/14/syriaandtheresponsibilitytoprotectrhetoricmeetsreality/
[71] Kuwalil, D. (2012), 'Responsibility to Protect: Why Libya and not Syria?', Published: April 6, 2012. available at www.accord.org.za/.../brief/policy_practice16.pdf
[72] See http://mideastafrica.foreignpolicy.com/posts/2012/03/16/syrias_crisis_and_the_future_of_r2p
[73] See Joint Special Envoy Kofi Annan Six point peace plan to end Syria crisis http://www.aljazeera.com/news/middleeast/2012/03/2012327153111767387.html
[74] See http://www.globalr2p.org/regions/syria
[75] See timeline for international response in Syria, Global Responsibility to Protect, http://www.globalr2p.org/publications/135
[76]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]
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