he responsibility to protect

The principle of non-intervention is a key aspect of international law. The UN Charter of

1945 states clearly that: ‘Nothing in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic jurisdiction of
any state’ (Article 2(7)). This provision applies specifically to UN organs. An exception to
the principle of non-intervention is articulated in the Convention on the Prevention and
Punishment of the Crime of Genocide, which asserts in Article 1 that ‘genocide, whether
committed in time of peace or in time of war, is a crime under international law which
[contracting states] undertake to prevent and to punish’. Most countries are party to this
treaty. In addition, Chapter VII of the UN Charter allows for the Security Council to
‘determine the existence of any threat to the peace, breach of the peace, or act of
aggression’ and to take military or non-military action to ‘restore international peace and
security’.

Despite these latter provisions, the response of the international community to genocide
and threats to peace has often been erratic and incomplete (Evans, 2006-7). Barber
(2009) argues, however, that although there have been significant failures, such as in
Somalia in 1993, Rwanda in 1994 and Srebrenica, Bosnia and Herzegovina, in 1995,
there has been a gradual expansion in the Security Council’s interpretation of what
constitutes a ‘threat to the peace, breach of the peace, or act of aggression’ over the
past decades.

What led to the development of the ‘responsibility to protect’?

The experience of Kosovo (1998-1999) was a turning point that resulted in extensive
debate about international intervention. After the brutal conflict in Bosnia and
Herzegovina, the international community was quick to condemn the violence in Kosovo.
Security Council resolutions 1160 and 1199 of 1998 identified the Federal Republic of
Yugoslavia (FRY) as the primary culprit and called on the FRY to achieve a political
solution. The resolutions stopped short though of a decision to take ‘all necessary
measures’ or to authorise member states to do so. In March 1999, following lack of
adherence of the Yugoslav side and continued violence, NATO commenced air strikes
against Serb forces. After 11 weeks, the defeated Serb troops retreated from Kosovo.
NATO justified the military intervention on humanitarian grounds. Although the
intervention was viewed as decisive for ending the military conflict in Kosovo and for
stopping mass killings and other human rights violations there, NATO’s actions were
controversial and considered by some to be a violation of the prohibition of the use of
force (Hilpold, 2009).

In the aftermath of Kosovo, many attempts were made to find a legal justification for the
intervention. Efforts were also made to determine whether developments in Kosovo
amounted to acceptance of ‘humanitarian intervention’ (military action to prevent or end
human rights violations, without the consent of the state within whose territory the force
is applied) as a legal form of action. Hehir (2009) finds that Kosovo has not resulted in
any change in international customary law. Since Kosovo, there has not been any
evidence of consistent state practice regarding unilateral humanitarian action. In
addition, there is no general acceptance (opinio juris) of such action, evident in the fact
that various countries, including China, Russia, India, Japan, Indonesia and South Korea
were unsupportive of NATO’s intervention. In the aftermath, 133 states comprising the
G-77 declared that they reject the so-called ‘right’ of humanitarian intervention.

In response to the legal deficiencies exposed by Kosovo and NATO’s justification of

humanitarian intervention, then UN Secretary general Kofi Annan called for fresh
thinking on the issue. In response, the International Commission on Intervention and
State Sovereignty (ICISS) published in 2001 its seminal report entitled The
Responsibility to Protect. It aims to find some new common ground on issues of
humanitarian intervention. The report states that while the responsibility to protect
resides first and foremost with the state whose people are directly affected, a ‘residual
responsibility’ lies with the broader community of states, and that this residual
responsibility is ‘activated when a particular state is clearly either unwilling or unable to
fulfil its responsibility to protect or is itself the actual perpetrator of crimes or atrocities’
(p. 17).

How does the ‘responsibility to protect’ differ from ‘humanitarian

intervention’?
‘Humanitarian intervention’ and the ‘responsibility to protect’ (R2P) share the conviction
that sovereignty is not absolute. However, the R2P doctrine shifts away from state-
centred motivations to the interests of victims by focusing not on the right of states to
intervene but on a responsibility to protect populations at risk. In addition, it introduces a
new way of looking at the essence of sovereignty, moving away from issues of ‘control’
and emphasising ‘responsibility’ to one’s own citizens and the wider international
community (Arbour, 2008; Evans, 2006-7).

Another contribution of R2P is to extend the intervention beyond a purely military

intervention and to encompass a whole continuum of obligations:

 The responsibility to prevent: addressing root causes of internal conflict. The

ICISS considered this to be the most important obligation.

 The responsibility to react: responding to situations of compelling human need

with appropriate measures that could include sanctions, prosecutions or military
intervention.

 The responsibility to rebuild: providing full assistance with recovery,

reconstruction and reconciliation.

How has the concept of R2P been treated?

R2P is referred to in the ICISS report as an ‘emerging guiding principle’, which has yet to
achieve the status of a new principle of customary international law (p. 15). The UN
High-Level Panel on Threats Challenges and Change endorsed R2P as an ‘emerging
norm’ in its report A More Secure World: Our Shared Responsibility(2004, p. 106). R2P
as an ‘emerging norm’ was confirmed by the UN Secretary-General’s 2005 report, In
Larger Freedom: Towards Development, Security and Human Rights for All, which
centred on the idea that threats facing humanity can only be solved through collective
action. At the same time, the report acknowledged the sensitivities involved in R2P (p.
35). Also in 2005, the concept of R2P was incorporated into the outcome document of
the high-level UN World Summit meeting. Participating member states recognised the
responsibility of each individual state to protect its population from genocide, war crimes,
ethnic cleansing, and crimes against humanity, as well as a corresponding responsibility
of the international community to help states to exercise this responsibility through
peaceful means or through collective action should peaceful means prove inadequate.
This document was adopted by the General Assembly in its Resolution 60/1 2005 World
Summit Outcome (paras 138-139).

The R2P framework has been criticized for not being gender-responsive in that it largely
neglects the differing needs and capacities of men and women; and fails to acknowledge
that women are disproportionately represented among the poor and marginalized in
weak unstable states. Decision-making structures that emphasise the equal participation
of women should be incorporated in the framework (Bond and Sherret, 2005).

What is the legal force of R2P and what are challenges to its
implementation?
Unlike treaties, General Assembly resolutions are not binding under international law but
are solely recommendatory. Nonetheless, Gierycz (2010) argues that the World Summit
Outcome document has particularly high political and moral significance since its
commitments were undertaken by the world leaders. In addition, it addresses
fundamental issues involving the obligation to provide protection from genocide, war
crimes, ethnic cleansing and crimes against humanity. These obligations reflect well
established rules and principles of IHL and IHRL treaties and customary international
law. Arbour (2008) also emphasises that the R2P doctrine rests on an established
obligation under international law: the prevention and punishment of genocide as
stipulated in the Genocide Convention.

Alongside uncertainty over the legal force of R2P, there are various other challenges
involved with its implementation. Bellamy (2006) highlights that the inclusion of R2P in
the Outcome Document derived in part from a concession whereby the notion of
legitimate intervention without Security Council approval, which was integral to the
original ICISS proposal, was dropped in favour of Security Council authorisation (cited in
Hehir, 2009). As such, the original notion of R2P has lost a core aspect in its General
Assembly adoption.

In addition, the concept of complementarity, whereby the primary responsibility to protect

lies with the state and the subsidiary responsibility with the international community, can
result in an additional threshold for collective security action. Domestic authorities may
invoke their primary responsibility to argue against any exercise of protection by
international actors, which may be accepted by the international community. Such was
the case in Darfur, where Security Council members claimed that it was premature to
impose sanctions against Sudan since the crisis had not reached the stage where the
domestic government had demonstrated a clear failure to exercise its responsibility to
protect (Stahn, 2007). Further, none of the key documents that endorse R2P provide
meaningful guidance on how to deal with violations of the responsibility to protect by
states and the international community.

The context of disasters

The devastating effects of cyclone Nargis in Burma and the refusal by the government to
allow access to affected populations resulted in arguments to extend the concept of R2P
to disaster situations. Some members of the ICISS argued that R2P was not meant to
protect people from the impact of natural disasters; whereas others argued that R2P
could be invoked if a government’s failure to respond, in the face of immense need and
the threat of large-scale loss of life, amounted to a crime against humanity. Collective
action was ultimately not adopted in the case of Burma, nor did the UN General
Assembly endorse such an expansion in coverage of R2P. Nonetheless, Barber (2009)
argues that the concept of R2P could still be important in developing a legal framework
for assessing the appropriate role of the international community in the aftermath of
natural disaster.

Intervention in Libya: Strengthening or Weakening R2P?

In response to the rapidly disintegrating situation in Libya in 2011, the UN Security
Council adopted Resolution 1970 in March, which deplored the gross and systemic
human rights violations in the country, called for an end to hostilities and for the
observance of human rights, and set in place a number of coercive measures.
Resolution 1973 reiterated the responsibility of the Libyan government to protect the
Libyan population and authorised coercive military intervention, without the consent of
the Libyan government. Two days after this resolution, a military coalition under the
umbrella of NATO began bombing Libyan government positions, with the aim of
protecting the civilian population against gross human rights abuses. With ensuing
concerns of a stalemate between the government and rebels, the goal of the intervention
shifted to one of regime change. The subsequent military victory of the NATO coalition
was seen as sufficient to conclude that the R2P operation was a success. The
intervention was also seen by some to have advanced the cause of R2P: opposing
Security Council countries had restrained from using a veto, and swift action had been
taken. The intervention has been severely criticised, however, particularly by Security
Council members who had abstained from the vote on Resolution 1973, for ‘mission
creep’. Had regime change been specified as a goal from the outset, it is unlikely that
Security Council endorsement would have materialised. Residual concerns over ‘mission
creep’ have been used to explain to some extent why the UN Security Council has failed
to act in the case of Syria, despite reports of violations of a scale similar to those in Libya
(Zifcak, 2012).

War and international humanitarian law

29-10-2010 Overview
Armed conflict is as old as humankind itself. There have always been customary practices in
war, but only in the last 150 years have States made international rules to limit the effects of
armed conflict for humanitarian reasons. The Geneva Conventions and the Hague
Conventions are the main examples. Usually called international humanitarian law (IHL), it
is also known as the law of war or the law of armed conflict.
International humanitarian law is part of the body of international law that governs relations between States. IHL
aims to limit the effects of armed conflicts for humanitarian reasons. It aims to protect persons who are not or are
no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and
obligations of the parties to a conflict in the conduct of hostilities.
Because it is law, IHL imposes obligations on those engaged in armed conflict. Not only must they respect the
law, they have an obligation to ensure respect as well. It is not acceptable to turn a blind eye.
The cornerstone of IHL is the Geneva Conventions. The first was signed by 16 countries in 1864. For centuries
before then, rules had applied to the conduct of war, but they were based on custom and tradition, were local or
just temporary. 1864 changed all that and began a process of building a body of law that is still evolving today.
The initiative for the first convention came from five citizens of Geneva. One of them, Henry Dunant, had, by
chance, witnessed the battle of Solferino in 1859. He was appalled by the lack of help for the wounded and
organized local residents to come to their aid. Out of this act came one of the key elements of the first convention
– the humane treatment of those no longer part of the battle, regardless of which side they were on.
It was at this time, too, that a neutral protective sign for those helping the victims of conflict was adopted; a red
cross on a white background, the exact reverse of the Swiss flag.
In the century and a half that followed the body of international humanitarian law grew. The Geneva Convention
was extended, in 1906 and 1929 so as to improve the conditions of sick and wounded soldiers in the field and to
define new rules on the protection of prisoners of war. In 1899 and 1907, the Hague Conventions, mainly aimed
at regulating the conduct of warfare, were also adopted. In August 1949, the four Geneva Conventions as we know
them today were adopted. This time they also included the protection of civilians, reflecting the terrible
experience of World War II.
Protocols were added to the Geneva Conventions in 1977 and 2005, and a range of other international
conventions and protocols covering specific areas such as conventional weapons, chemical weapons, landmines,
laser weapons, cluster munitions and the protection of children in armed conflicts has developed the reach of
IHL. So too has the codification of customary law.
The core, however, remains the Geneva Conventions and their additional Protocols. They combine clear legal
obligations and enshrine basic humanitarian principles.
• Soldiers who surrender or who are hors de combat are entitled to respect for their lives and their moral and
physical integrity. It is forbidden to kill or injure them.
• The wounded and sick must be collected and cared for by the party to the conflict which has them in its power.
Protection also covers medical personnel, establishments, transports and equipment. The emblem of the red
cross, red crescent or red crystal is the sign of such protection and must be respected.
• Captured combatants are entitled to respect for their lives, dignity, personal rights and convictions. They must
be protected against all acts of violence and reprisals. They must have the right to correspond with their families
and to receive relief.

• Civilians under the authority of a party to the conflict or an occupying power of which they are not nationals are
entitled to respect for their lives, dignity, personal rights and convictions.
• Everyone must be entitled to benefit from fundamental judicial guarantees. No one must be sentenced without
previous judgment pronounced by a regularly constituted court. No one must be held responsible for an act he
has not committed. No one must be subjected to physical or mental torture, corporal punishment or cruel or
degrading treatment.
• Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means
of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or
excessive suffering.
• Parties to a conflict must at all times distinguish between the civilian population and combatants in order to
spare civilian population and property. Adequate precautions shall be taken in this regard before launching an
attack.
The International Committee of the Red Cross is regarded as the “guardian” of the Geneva Conventions and the
various other treaties that constitute international humanitarian law. It cannot, however, act as either policeman
or judge. These functions belong to governments, the parties to international treaties, who are required to prevent
and put an end to violation of IHL. They have also an obligation to punish those responsible of what are known as
“grave breaches” of IHL or war crimes.

Prohibited and Permissible Use of Force in

International Relations
The use of force has been a long standing phenomenon in international relations and
has been considered to be directly linked to the sovereignty of states-the limitless
power wielded by states to use all possible means to guard and protect their
interests. However, the longer period that war has been associated with sovereignty
of state, the more the issue has turned into a legal institution by itself. This paper
looks at the prohibited and permissible use of force in International Relations.
Developed social awareness has expanded the limits (and even led) to the right to
resort to war. This indeed has abolished the use of force or any form of threats in
relation among nations, this has become a rule of law in international criminal law-its
violation comes with criminal responsibility in the eyes of the international
community. However, there are certain situations in which it is allowed to use force
such as for self defense purposes, humanitarian intervention, and preemptive power
inter alia.

Introduction

In the international community, force has featured as at high levels of

decentralization i.e. force has been use d for different purposes-it has been applied
to previous intervention and to punish for noncompliance according to demand. War
is the hardcore form of force and is used to grab territories or to completely
suppress states. Reprisals are also considered as violence in international relations.
Kelsen, war has been considered to be permissible due to existence of sovereignty
among the states. [1]

Prohibition to use of force and threats

The United Nations Charter in article 2(4) controls the use of force by member states.
The UN Charter states that;

“All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the purposes of the United Nations.”

This law has been ratified by all the members and is protected by the United Nations
Charter 1945 to prohibit the use of force by states. This was the time when Louse
Doswald-Beck was the secretary general of the International Commission of
Jurists [2] . Most scholars have interpreted Article 2(4) to be banning the use of force
as in “territorial integrity or political independence of states”; the most commonly
held opinion is that the above factors are only to reinforce Article 2(4)-which
encompasses general prohibitions with exceptions outlined in the Charter such as
self-defense and those in Chapter VII by the United Nations security council. The
general principle is to ban the use of armed forces except in cases where; there is
collective action-pursued to maintain or even enforce peace (Articles 24, 25, and
Chapter VII) ; and Article 51which states that, “Nothing in the present Charter shall
impair the inherent right to individual or collective self-defense if an armed attack
occurs against a state.” In addition, other cited reasons that permit the use of force
include humanitarian intervention, though this is still controversial, reprisals, and
states’ protection of their nationals in other states.

The United Nations Charter and the International Military Tribunal Statute have been
created with regard to international law. These laws were created by the UN member
states in order to protect succeeding generations from scourges of war. Members
resorted that the use of armed forces was not allowed, save in the interest of all. The
UN Charter even though premising on the past is open to future amendments since
the definition of the word ‘war’ has changed (and will change) over time [3] . One
may quickly note that the word ‘war’ is not mentioned in the Charter only “force” is
mentioned together with “enforcement measures”. In addition, total prohibition of
use of force is not indicated since an exemption is given, “in the interest of all”.
Somewhat different is the Article 2, paragraph 4, reads:

“All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.” [4]

It is quite clear that the use of force is certainly prohibited in the view of territorial
integrity and independence of member states [5] including armed forces
intervention. Thus, it is certain that the United Nations does not condone any form of
reprisals, this is completely out of its purpose. The use of the term ‘force’ clearly
indicates that the traditional perception on war and the modern definition are
prohibited [6] . On that note, one can confidently argue that the United Nations
Charter has surpassed previous international Acts that prohibited the use of force.
Traditionally, war has been the gravest form of force. However, the view of war as an
institution that permitted the attainment of state’s interests. The Charter only speaks
of the use of force as legal or illegal, it does not recognize just and unjust wars, the
former is a rule while the latter is an exemption.

In the eyes of most scholars, the term ‘force’ is quickly interpreted as ‘armed force’.
This is a rejection of other types of force such as political and even economic.
Sharmasanascvilly argues that, the different forms of force which can be used by
states are prohibited as outlined in Article 2, paragraph 4 of the UN Charter. The
armed forces disturb territorial integrity; however, political independence is affected
in various ways [7]

The major development in international law is the prohibition of use of threat

together with the use of force itself, “threat or danger from aggression” is prohibited
by the League of Nations Council (Article 10). [8] Thus the prohibition of threat was
aimed at “”preventing and eliminating threats to peace and suppression of
aggression or other breaches of peace” (Article 1, paragraph 1″ [9] . The prohibition
to use of force has been sealed by the prohibition to use threat.

Collective action

The UN Security Council is mandated to identify the existence of, and even take
action to curb, any threat to peace and security among the members’ states.
However, this power has not been used as expected since other measures such as
the use of sanctions are taken short of the traditional armed forces by some of its
members. The time that the UN used force was in 1950 to ‘force’ North Korea to
withdraw from South Korea. Initially it had been envisaged by the creators of the UN
Charter that the organisation would have its own forces. However, much of the
command of these forces has been from the United States. The UN Security Council
for also authorized the use of armed forces in 1960 during the Iraq’s invasion of
Kuwait. During this time, the Council passed Resolution 678 [10] which requested all
members to support a forceful operation in collaboration with Kuwait to ensure
Iraqi’s withdrawal from Kuwait. This very resolution was never revoked until 2003,
when the Council passed Resolution 1441 which authorized Iraq’s invasion due to its
non-compliance with the manufacture of atomic weapons-a threat to global peace
and security. The UN also authorized the use of force in countries like Sierra Leone,
Yugoslavia and currently Somalia.

Self defense

This is provided for in article 51. The inherent right to individual or collective self-
defense in case of an armed attack allowed until the UN Security Council has
intervened. The steps taken by members in the exercise of self-defense must be
reported to the Security Council and must not in any way affect the mandate of the
Council under the current Charter. The article states that,

“Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by members in the exercise of this
right of self-defense shall be immediately reported to the Security Council and shall
not in any way affect the authority and responsibility of the Security Council under
the present Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security”. [11]

The right to self defense is still provided for in the customary international law, as
seen in the International Court of Justice (ICJ), the best example is the Nicaragua
Case [12] . Article 51 preserves the right to self defense and outlines the procedures
to be followed in case of an armed attack. It has also been observed that, an irregular
forceful attack can prompt the use of force as in the case of 9/11 attacks where the
Security Council allowed the US to use force against the terrorists.

Pre-emptive force

The use of self defense is limited under the international customary law. The
permissibility of the use of force in cases of self defense is hinged on the
interpretation of Article 51. There is no right to pre-emptive self defense when an
armed attack has occurred, a state does not have to wait for an armed attack to
actually occur to use force. Thus, a distinction has to be drawn between, “preventive”,
“anticipatory”, and “interventionary” self defense. The ICJ has not ruled out the use of
pre-emptive armed force to intervene in the case of an imminent armed attack.
However, opinio juris and practice widely suggest that states have no right to
preventive self-defense. This can be explained well by the Caroline’s case. [13]

Protection of nationals

Various states have asserted the controversial claim to protect their nationals abroad.
This can be observed by the UK in Suez (1956), the Israelis in Entebbe-Uganda (1976),
and the US force in the Dominican Republic (1965), Panama (1989), and Grenada
(1983). The use of force has in some cases been linked with other political reasons
beside the protection of nationals. For example, the intervention of the US in
Grenada in 1983 was widely linked to the US opposition to the rising socialism in the
government of Grenada. The danger posed to the US nationals in this case was not
imminent and this led to strong condemnation from the United Nations General
Assembly. The examples above (except for the Mossad intervention in Entebbe
(1976)), the protection of nationals has been a used as a veil to cover other political
agendas.

Humanitarian intervention

In modern times where terrorism has really increased, several countries are
beginning to advocate for the right of humanitarian intervention without the UN’s
Security Council. After the Kosovo’s crisis in 1999, countries like the UK cited the
importance of the use of military force to avert such catastrophes in the future. When
NATO flexed its military muscle in Yugoslavia, it had not acquired the UN Security
Council’s permission. On the contrary this action was not condemned since the
intervention was necessary on humanitarian grounds. Many states oppose such
unauthorized intervention on legal grounds while others cite practicality-stronger
nations (military wise) could misuse or overuse such powers.

Conclusion
The widespread debate on the significance of the article 2(4) on the use of the word
‘force’ is far much from over. The strain in opinions is where by Article 51 uses the
term “armed attack” while the use of the term “force” in Article 2(4) is meant to
encompass economic or other forms of coercion that are non military. Such
measures are banned by other provisions. However, it does not seem to
accommodate the wider definition of force. This article covers “threat of force” which
is non-permissible in itself. This paper looks at such non-permissible use of force
while also looking at the permissible use of force in situations such as human
intervention, protection of nationals and self defense. The paper acknowledges both
arguments with reference to article 2(4).