Humanitarian Intervention and

Responsibility to Protect
Group 4

Zico Simeone D. Morales

Cathleen Pereira
Raven Uy
Alyrra Panlaqui
Related Principles and Concepts

*Humanitarian Intervention as the means of

Responsibility to Protect (R2P)

1. Art. 275 par 1 of the RPC (Abandonment of Persons in

Danger)
2. Art. 429 of the Civil Code (Doctrine of Self-Help)
Humanitarian Intervention

Zico Simeone D. Morales

What is Humanitarian Intervention?
● Humanitarian intervention is defined as coercive action by states involving the use
of armed forces in another state without the consent of its government, with or
without authorisation from the United Nations Security Council, for the purpose of
preventing or putting to a halt gross and massive violations of human rights or
international humanitarian law.

● Humanitarian Intervention is a means to prevent or stop a gross violation of human

rights in a state, where such state is either incapable or unwilling to protect its own
people, or is actively persecuting them.
Human Intervention in the past
The birth of the doctrine of humanitarian intervention is associated with natural law and early
international law. The “father” of international law Hugo Grotius (1583-1645) aspired to regulate
international relations by introducing new political and moral standards, among others provisions
concerning respect for sovereignty and contracted agreements. In order to promote international order
he further refined the “just war” doctrine stressing that wars were only allowed if based on specific
legal reasons.
In his opinion a right to revolution existed, in extreme cases of tyranny, for the subjects of a prince. If,
in this context, the suppressed subjects asked for support from a f o reign power it might rightfully be
given. So, his defence of humanitarian intervention was linked to the doctrine of legitimate resistance
to repression and was, ultimately, based on the fact that a prohibition on the use of force was non-
existing until the 20th century
Grotius’ ideas of humanitarian intervention were later on supported by many other eminent
legal scholars. In the 19th century they were reflected in the majority of publications on the
subject. Even though during the 19th century the principle of non-intervention gradually
gained ground, it is generally acknowledged that, by the end of the 19th century, a majority
of legal experts still acknowledged a right of humanitarian intervention.
In the twentieth century the doctrine of humanitarian intervention disappeared from state
practice and gradually lost ground in international law. After World War I, the legitimate
use of force was reduced to cases of self-defence and defence of international peace and
security. This was stipulated in the Pact of Paris of 1928 and the UN Charter.
The legal framework of the UN Charter

From a legal point of view, the UN Charter in 1945 drew a line in the sand
concerning a long discussion about the use of force and consequently also about
the issue of humanitarian intervention. The basic rule of international law
concerning the prohibition on the threat or use of force in international relations
is laid down in Article 2(4) of the UN Charter:
”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.”
Exceptions to the Rule:
First, an exception is granted for the use of force in exercising the right of individual or collective self-defence
in response to an armed attack against a state (Article 51 of the UN Charter). This provision gives expression
to an established principle of customary law. ‘Individual self-defence’ means the state subject to armed attack
defending itself. ‘Collective self-defence’ means other states helping the state in its defence, either based on an
ad hoc request from this state or on the basis of a prior agreement on collective self-defence.
Article 51

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

Secondly, the use of force can be mandated by the UN Security Council in case of a threat to or a breach of
international peace or an act of aggression (Chapter VII, Articles 39 and 42 of the UN Charter).
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression
and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.

Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be
inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international
peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of
Members of the United Nations.
State Sovereignty and international protection of the individual

From a legal perspective there is a clear trend towards a changed scope of state sovereignty with
regard to the way a state treats individuals and minorities within the state. Since 1945 the principle
of international protection of human rights has progressively gained weight at the cost of the
classical, highly prohibitive interpretation of state sovereignty.

This development has been brought about, above all, by the adoption of international conventions
for the protection of human rights. To the extent that a state has ratified these documents on human
rights and humanitarian law, such issues (at least) no longer belong to the exclusive domain of this
state. Still, it is a major problem that many states have made reservations to these documents.
● The tendency is towards increasingly considering the individual, and not only the state,
as a fundamental subject of international relations, and towards regarding the security
and basic rights of individuals within the state, and not merely the absence of military
conflict between states, as essential to the creation of stability and peace in the world

● State sovereignty is still a cornerstone of the international legal and political order, but
to a growing degree the classical perception of sovereignty is challenged by the norm
that the legitimacy of the exercise of the rights of sovereignty is dependent on respect
for human rights and for the principle of representation.
 HUMAN INTERVENTION
Nicaragua vs. United States of America
1986 I.C.J. 14

FACTS:
In 1979, the Nicaraguan government of President Anastasio Somoza

fell to a popular uprising led by the Sandinistas, who

installed a new government.
 Nicaragua vs. United States of America
1986 I.C.J. 14

● Almost immediately, armed resistance to this new

government arose.

● The US abandoned its initial support of the Sandinista

government when it learned that Nicaragua was supplying
aid to guerillas in El Salvador.
 Nicaragua vs. United States of America
1986 I.C.J. 14

● Thereafter, the US began secretly channelling money,

weapons, and other support to the Nicaraguan opposition
known as the Contras.
 Nicaragua vs. United States of America
1986 I.C.J. 14

● In 1983 and 1984, US military personnel mined Nicaraguan

harbors and carried out attacks on Nicaraguan facilities.
 Nicaragua vs. United States of America
1986 I.C.J. 14

● In 1984, Nicaragua filed suit against the US in the

International Court of Justice (ICJ), claiming that the US had
violated both the UN Charter and Principles of Customary
International Law.

● Nicaragua asked that the US be ordered to cease its

operations and pay reparations.
 Nicaragua vs. United States of America
1986 I.C.J. 14

● Nicaragua alleged that the US had breached customary

international law:
○ by violating the sovereignty of Nicaragua by armed attacks by land, air, and sea;

○ by using force and threat of force against Nicaragua;

○ by intervening in the internal affairs of Nicaragua;

○ by killing wounding and kidnapping citizens of Nicaragua.

● US claims that it relied on an inherent right of collective self-
defense guaranteed in Art. 51 of the United Nations Charter.
 Nicaragua vs. United States of America
1986 I.C.J. 14

ISSUE:

Whether or not the US breach its customary international law

obligation - not to use force against another State.
 Nicaragua vs. United States of America
1986 I.C.J. 14

HELD:
The ICJ held that the US violated customary international laws.

When a State claims that it used force in collective self-defense, the Court
look into two (2) aspects:

1. Whether the circumstances required for the exercise of self-defense

existed;
2. Whether the steps taken by the State, acting in self-defense,
correspond to the requirements of international law.
 Nicaragua vs. United States of America
1986 I.C.J. 14

In determining whether the circumstances required for the exercise of collective self-
defense existed several criterias must be met:

1. A State must have been a victim of an armed attack

2. This State must declare itself as a victim of an armed attack
3. The victim State must request for assistance
4. The State does not, under the customary international law, have the same obligation as
under Art. 51 of the UN Charter to report to the Security Council that an armed attack
happened - but the “absence” of a report may be one of the factors indicating whether
the State in question was convinced that it was acting in self-defense.

In this Case the US failed to establish that the circumstances.

Nicaragua vs. United States of America
1986 I.C.J. 14

The United States of America by training, arming, equipping,

financing and supplying the contra forces and aiding military and
paramilitary activities in and against Nicaragua, has acted against the
Republic of Nicaragua, in breach of its obligation under customary
international law not to intervene in the affairs of another State.
Thus, the US is ordered to cease its operations and pay
reparations to Nicaragua.
 Responsibility to
Responsibility to Protect
Protect
‘Never again’ we said after the Holocaust. And after the
Cambodian genocide in the 1970s. And then again after
Rwanda genocide in 1994. And then, just a year later, after the
Srebrenica massacre in Bosnia. And now we’re asking
ourselves, in the face of more mass killing and dying in Darfur,
whether we really are capable, as an international community,
of stopping nation-states murdering their own people. How
many more times will we look back wondering, with varying
degrees of incomprehension, horror, anger and shame, how we
could have let it all happen? (Garreth Evans, 2004)
Brief Background of R2P
● The Responsibility to Protect (R2P) has many sources: the rise of
international humanitarian law; and the profound sense of revulsion at the
failure of the international community to act effectively in Rwanda and
Bosnia. The need for a broadly accepted new norm to guide the international
response to mass atrocity crimes became increasingly apparent.
● At the end of the cold war, inter-state aggression largely gave way to war
and violence inside states. During the 1990’s, horrific violence broke out
inside the borders of Somalia, Rwanda, and the former Yugoslavia. The
world was ill-prepared to act and was paralyzed by disagreement over the
limits of national sovereignty.
● Throughout the 1990’s, the UN was deeply divided between those who
insisted on a right of humanitarian intervention and those who viewed such a
doctrine as an indefeasible infringement upon state sovereignty. At that
time, Secretary-General Kofi Annan warned that the UN risked discrediting
itself if it failed to respond to the catastrophes, and he challenged member
states to agree on a legal and political framework of action.
● Kofi Annan stated that “if humanitarian intervention is, indeed, an
unacceptable assault on sovereignty, how should we respond to a
Rwanda, to a Srebrenica, to gross and systematic violation of human
rights that offend every precept of our common humanity?”
● In 1999, the failure of the UN Security Council to authorize action to halt
ethnic cleansing in Kosovo provoked NATO to initiate an aerial
bombardment on its own.
● This deeply divided the international community, pitting those who
denounced the intervention as illegal against others who argued that
legality mattered less than the moral imperative to save lives.
● The challenge was taken by the International Commission on Intervention
and State Sovereignty (ICISS), set up by the Canadian Government, which
at the end of 2001 issued a report entitled The Responsibility to Protect.
● In 2005, the General Assembly for the UN World Summit unanimously
accepted their responsibility to protect populations from genocide, war
crimes, ethnic cleansing and crimes against humanity.
Paragraphs 138-139 of the World Summit’s Outcome Document declared that:

138. Each individual state has the responsibility to protect its populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility
entails the prevention of such crimes, including incitement, through appropriate and
necessary means.

139. The international community, through the United Nations, also has the
responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in
accordance with Chapters VI and VIII of the Charter of the United Nations, to help
protect populations from war crimes, ethnic cleansing and crimes against humanity.
 What is the
Responsibility to
Protect?
 ● The Responsibility to Protect
concept sought to confront both the
Responsibility to Rwanda tragedy and the Kosovo
dilemma by stipulating that states
Protect: 3 Pillars have an obligation to protect their
citizens from mass atrocity crimes;
that the international community
will assist them in doing so; and
that, should the state be “manifestly
failing” in its obligations, the
international community is obliged
to act.
● The ICISS developed a
multiphase conception of
responsibility and expanded the
conceptual parameters of the
notion of intervention, declaring
that an effective response to
mass atrocities requires not only
reaction, but further, lasting
engagement to prevent conflict
and rebuild the society after the
event.
● Hence, the R2P principles
embraces three (3) specific
responsibilities (a) to prevent;
(b) react, (c) and rebuild.
● Responsibility to protect, also
seeks to ensure that the
international community never
again fails to act in the face of
genocide, ethnic cleansing,
war crimes, and crimes against
humanity. By accepting a
collective responsibility to
protect, the international
community has issued a
solemn pledge that it cannot
lightly ignore.
 ● The UN’s 2005 World Summit
Outcome Document explicitly limits

What forms of the application of the R2P norm to four

(4) type of mass atrocity crimes:
Human Rights genocide, ethnic cleansing, war crimes
and crimes against humanity.
abuse does the ● R2P does not apply to grave threats to
human security, whether from climate
Responsibility to change, disease or from many harmful

Protect seek to & ruinous state policies such as

suspension of civil liberties, mass
address? corruption. Other human rights
instruments, legal frameworks &
institutions are better suited to address
these pressing issues.
 ● Central is the idea that concerned
outsiders should help states prevent these
gross abuses through what the UN
document characterizes as “diplomatic,

How does the humanitarian and other peaceful means.”

● This includes strengthening state capacity

Responsibility to
through economic assistance, rule-of-law
reform, the building of inclusive political

Protect work?
institutions, or when violence seems
imminent, through direct mediation.
● When these means have been
unsuccessful, resort to coercive measures
may be had, such as sanctions, or arms
embargoes.
The Responsibility to Protect
(R2P)
Criticisms
The R2P does not have a binding effect
● The concept of R2P is contained in several UN documents and reports,
however, these reports and documents e.g. the 2001 ICISS Report, do not
have a binding effect and they cannot establish themselves the existence of
any legally binding rule in relation to R2P.
● Moreover, since the R2P doctrine is in clear conflict with some principles of
customary international law, such as sovereign equality among states and
non-intervention in their internal affairs - in order to support the legal
nature of the R2P doctrine it is necessary to identify very clear evidence of
the doctrine’s practice and a general consensus among states as to its
existence
● Hence, it is essential to demonstrate whether a customary international law,
having as its content the R2P doctrine, is emerging or has emerged in
international law. If not, the so-called norm should be considered only an
enthusiastic hope, which can simply be evaded or ignored in the practice of
states.
● Also, there is a range of situations today where populations are at risk of the R2P
crimes, or where such crimes are ongoing. These crises are taking place against a
backdrop of retreating internationalism, diminishing respect for international
humanitarian and human rights law, political disunity in key decision-making bodies
such as the Security Council, and a level of defeatism about promoting ambitious
agendas like protection.
● The besieging of civilian communities in Syria and the denial of humanitarian relief
are particularly troubling, as they cause unimaginable suffering.
● Likewise, Governments are failing to hold perpetrators of atrocity crimes
accountable for their actions. At the international level, some State parties to the
Rome Statute, by which the ICC was established, are not cooperating with the Court
or even taking steps to withdraw from the Statute to avoid investigation and
prosecution of atrocity crimes.
Institutional and Political Challenges
● There is a need to ensure that governments and intergovernmental organizations
have all the diplomatic, civilian and, as a last resort, military capability needed
to ensure effective early warning and timely action.
● There is a need to ensure that when and wherever mass atrocity crimes occur,
the necessary commitment will be there from international decision-makers.
This means having consensual international arrangements in place for effective
mobilization by both governments and civil society. It also requires that there is
consistency in the application of R2P.
R2P: The Reality
● In this pandemic-reoccupied, sovereignty re-obsessed, post-truth, post-
rationality, post-decency world we now inhabit, there is nothing like the
same optimism that the international community had in preventing another
Cambodia, Rwanda or Srebrenica incident, those talismanic horror-cases that
influenced the crafting of the R2P.
● Also, there are plenty of cynical voices to be heard saying that the whole
enterprise has been a complete waste of time, or worse. Genocidal
catastrophes have continued to occur in places like Sri Lanka, Myanmar,
Yemen and above all, Syria.
 ● The persecution of the Rohingya
R2P: The Case Muslim minority at the hands of national
and regional government authorities and
of Myanmar local actors in western Myanmar’s
Rakhine State has forcibly displaced
hundreds of thousands of people since
the outbreak of widespread violence in
2012.
● The government of Myanmar continues
to impose severe restrictions on all
Rohingya, including restrictions on
freedom of movement, marriage, and
childbirth.

● State security forces and non-
state actors in Myanmar have
already committed serious
human rights violations against
Rohingya with impunity, some
of which have been qualified
by human rights groups as
crimes against humanity, and
indicators of additional atrocity
crimes, including genocide, are
present.
● Perhaps most troubling is the Myanmar
government’s official denial of
Rohingya identity, a factor that clearly
fits the indicators of the denial of the
existence of protected groups, and an
intention to change its identity.
● Rohingya women have been held also
to a strict two-child policy, with
enforcement guidelines that allow
authorities to enter private homes
unannounced and force Rohingya
women to breastfeed infants in their
presence.
● The UN Office of the High
Commissioner for Human Rights
reported a massacre of 40
Rohingya in the northern Rakhine
State village.
● The government flatly denied the
incident, blocked access for the
United Nations to carry out
further investigations, and
allowed access to the region only
in the presence of government
officials.
● There is also the lack of
national mechanisms or
initiatives to deal with identity-
based tensions of conflict.
● Security forces maintain a
dangerous level of control,
including over the most
important sectors of
Myanmar’s economy.
● Further, on August 25, 2017,
Rohingya Arsa militants launched
deadly attacks on more than 30 ● Myanmar’s security forces also
police posts.
allegedly opened fire on fleeing
● At least 6,700 Rohingya,
civilians and planted land mines
including at least 730 children
under the age of five (5), were near border crossings used by
killed in the month after the Rohingya to flee to Bangladesh.
violence broke out. Amnesty ● UN Secretary-General Antonio
International also says that the Guterres has described the
Myanmar military also raped and violence as ethnic cleansing.
abused Rohingya women and
girls.
 R2P and the The Philippines upholds the rule of law as the
basis for both the legitimacy of a state and the
Philippines: civilized conduct of relations among nations.
We join other Member States in affirming their

Statement by the fundamental duty to protect their own people

from atrocity crimes. Our obligation to prevent

Philippines at atrocity crimes does not invite ways and means

that are outside the ambit of the Charter of the

the 2014 UN United Nations. The principle of state

sovereignty is sacrosanct; it is the building

General block of international law and the conduct of

international relations. The Philippines believes

Assembly that education is key to arresting atrocity

crimes.
 ● In principle, the Philippine government
supports R2P and its three pillars.
However, because of its domestic
insurgency movements the government
R2P and the continues to place a high value on
political sovereignty and nonintervention.
Philippines The Philippines is concerned with the
possibility of outside forces interfering in
the state’s internal affairs.
● The government does support the role of
the international community in providing
R2P assistance such as dispute resolution
training, mediation, police training,
economic assistance etc.
 How and why did
humanitarian
intervention shift to
R2P?
Food for thought:
Do you think R2P is just an
ambitious dream or an
enthusiastic hope? Is it still
relevant today?
 R2P Advantages
1. Humanitarian Intervention: Still, under what
circumstances is the use of force necessary,
justified, and required to provide effective
international humanitarian protection to at risk
populations without consent of their own
government?
2. Regulated: 3 pillars and responsibility
 Libya
R2P as Regime Change

‘We knew that if we waited one more

day, Benghazi … could suffer a
massacre that would have reverberated
across the region and stained the
conscience of the world’- Obama

Gaddafi ‘promised amnesty for those “who throw

their weapons away” but “no mercy or
compassion” for those who fight.
 Philippines
R2P as violative of State
Sovereignty

“in keeping with the State’s duty to

promote and protect human rights and
fundamental freedoms, the people’s
campaign against illegal drugs is pursued
to preserve the lives of the Filipino people
and protect the country from turning into
a narco-State”

“The first duty of states is the protection of their

populations from actual harms and threats to their
safety and wellbeing; that is the basis of state
legitimacy.”
Distinctions Between Humanitarian Intervention and R2P

● As to the Use of Force

● As to its Legitimacy

● As to its Scope (as to the crimes)

● As to its Conception