PUJ– BG Normas para la entrega de Tesis y Trabajos de grado a la Biblioteca General – Mayo de 2010 ANEXO 2
CARTA DE AUTORIZACIÓN DE LOS AUTORES (Licencia de uso)
Bogotá, D.C., marzo 15 de 2013
Señores
Biblioteca Alfonso Borrero Cabal S.J. Pontificia Universidad Javeriana Cuidad
Los suscritos:
Carlos Arturo Vicioso Uribe , con C.C. No 1.015.411.640
, con C.C. No , con C.C. No En mi (nuestra) calidad de autor (es) exclusivo (s) de la obra titulada:
The General Scientific Obligation of the SPS Agreement: Risk Assessments,
Precautionary Actions and the Exception – Exemption Debate
(por favor señale con una “x” las opciones que apliquen)
Tesis doctoral Trabajo de grado X Premio o distinción: Si No X
cual:
presentado y aprobado en el año 2013 , por medio del presente escrito autorizo
(autorizamos) a la Pontificia Universidad Javeriana para que, en desarrollo de la presente licencia de uso parcial, pueda ejercer sobre mi (nuestra) obra las atribuciones que se indican a continuación, teniendo en cuenta que en cualquier caso, la finalidad perseguida será facilitar, difundir y promover el aprendizaje, la enseñanza y la investigación.
En consecuencia, las atribuciones de usos temporales y parciales que por virtud de la presente licencia se autorizan a la Pontificia Universidad Javeriana, a los usuarios de la Biblioteca Alfonso Borrero Cabal S.J., así como a los usuarios de las redes, bases de datos y demás sitios web con los que la Universidad tenga perfeccionado un convenio, son:
AUTORIZO (AUTORIZAMOS) SI NO
1. La conservación de los ejemplares necesarios en la sala de tesis y trabajos
de grado de la Biblioteca. X
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gratuitos, existiendo con ellos previo convenio perfeccionado con la Pontificia Universidad Javeriana para efectos de satisfacer los fines previstos. En este evento, tales sitios y sus usuarios tendrán las mismas facultades que las aquí concedidas con las mismas limitaciones y condiciones
X
6. La inclusión en la Biblioteca Digital PUJ (Sólo para la totalidad de las Tesis Doctorales y de Maestría y para aquellos trabajos de grado que hayan sido laureados o tengan mención de honor.)
PUJ– BG Normas para la entrega de Tesis y Trabajos de grado a la Biblioteca General – Mayo de 2010
De acuerdo con la naturaleza del uso concedido, la presente licencia parcial se otorga a título gratuito por el máximo tiempo legal colombiano, con el propósito de que en dicho lapso mi (nuestra) obra sea explotada en las condiciones aquí estipuladas y para los fines indicados, respetando siempre la titularidad de los derechos patrimoniales y morales correspondientes, de acuerdo con los usos honrados, de manera proporcional y justificada a la finalidad perseguida, sin ánimo de lucro ni de comercialización.
De manera complementaria, garantizo (garantizamos) en mi (nuestra) calidad de estudiante (s) y por ende autor (es) exclusivo (s), que la Tesis o Trabajo de Grado en cuestión, es producto de mi (nuestra) plena autoría, de mi (nuestro) esfuerzo personal intelectual, como consecuencia de mi (nuestra) creación original particular y, por tanto, soy (somos) el (los) único (s) titular (es) de la misma. Además, aseguro (aseguramos) que no contiene citas, ni transcripciones de otras obras protegidas, por fuera de los límites autorizados por la ley, según los usos honrados, y en proporción a los fines previstos; ni tampoco contempla declaraciones difamatorias contra terceros; respetando el derecho a la imagen, intimidad, buen nombre y demás derechos constitucionales. Adicionalmente, manifiesto (manifestamos) que no se incluyeron expresiones contrarias al orden público ni a las buenas costumbres. En consecuencia, la responsabilidad directa en la elaboración, presentación, investigación y, en general, contenidos de la Tesis o Trabajo de Grado es de mí (nuestro) competencia exclusiva, eximiendo de toda responsabilidad a la Pontifica Universidad Javeriana por tales aspectos.
Sin perjuicio de los usos y atribuciones otorgadas en virtud de este documento, continuaré (continuaremos) conservando los correspondientes derechos patrimoniales sin modificación o restricción alguna, puesto que de acuerdo con la legislación colombiana aplicable, el presente es un acuerdo jurídico que en ningún caso conlleva la enajenación de los derechos patrimoniales derivados del régimen del Derecho de Autor.
De conformidad con lo establecido en el artículo 30 de la Ley 23 de 1982 y el artículo 11
de la Decisión Andina 351 de 1993, “Los derechos morales sobre el trabajo son
propiedad de los autores”, los cuales son irrenunciables, imprescriptibles, inembargables e inalienables. En consecuencia, la Pontificia Universidad Javeriana está en la obligación de RESPETARLOS Y HACERLOS RESPETAR, para lo cual tomará las medidas correspondientes para garantizar su observancia.
NOTA: Información Confidencial:
Esta Tesis o Trabajo de Grado contiene información privilegiada, estratégica, secreta, confidencial y demás similar, o hace parte de una investigación que se adelanta y cuyos
resultados finales no se han publicado. Si No X
En caso afirmativo expresamente indicaré (indicaremos), en carta adjunta, tal situación con el fin de que se mantenga la restricción de acceso.
NOMBRE COMPLETO No. del documento de identidad FIRMA
Carlos Arturo Vicioso Uribe 1.015.411.640
FACULTAD: Ciencias Jurídicas
PUJ– BG Normas para la entrega de Tesis y Trabajos de grado a la Biblioteca General – Mayo de 2010 ANEXO 3
BIBLIOTECA ALFONSO BORRERO CABAL, S.J. DESCRIPCIÓN DE LA TESIS O DEL TRABAJO DE GRADO
FORMULARIO
TÍTULO COMPLETO DE LA TESIS O TRABAJO DE GRADO The Vicissitudes of the Responsibility to Protect
SUBTÍTULO, SI LO TIENE
AUTOR O AUTORES
Apellidos Completos Nombres Completos
Vicioso Uribe Carlos Arturo
DIRECTOR (ES) TESIS O DEL TRABAJO DE GRADO
Apellidos Completos Nombres Completos
Vengoechea Barrios Juliana María
FACULTAD Ciencias Jurídicas PROGRAMA ACADÉMICO Tipo de programa ( seleccione con “x” )
Pregrado Especialización Maestría Doctorado
x
Nombre del programa académico Derecho
Nombres y apellidos del director del programa académico Aura Ximena Osorio Torres
TRABAJO PARA OPTAR AL TÍTULO DE: Abogado
PREMIO O DISTINCIÓN (En caso de ser LAUREADAS o tener una mención especial):
CIUDAD AÑO DE PRESENTACIÓN DE LA
TESIS O DEL TRABAJO DE GRADO NÚMERO DE PÁGINAS
Bogotá 2013 70
TIPO DE ILUSTRACIONES ( seleccione con “x” )
Dibujos Pinturas Tablas, gráficos y diagramas Planos Mapas Fotografías Partituras
PUJ– BG Normas para la entrega de Tesis y Trabajos de grado a la Biblioteca General – Mayo de 2010 MATERIAL ACOMPAÑANTE
TIPO DURACIÓN (minutos) CANTIDAD FORMATO
CD DVD Otro ¿Cuál?
Vídeo Audio Multimedia Producción electrónica Otro Cuál?
DESCRIPTORES O PALABRAS CLAVE EN ESPAÑOL E INGLÉS
Son los términos que definen los temas que identifican el contenido. (En caso de duda para designar estos descriptores, se recomienda consultar con la Sección de Desarrollo de Colecciones de la Biblioteca Alfonso Borrero Cabal S.J en el correo biblioteca@javeriana.edu.co, donde se les orientará).
ESPAÑOL INGLÉS
Responsabilidad de Proteger Responsibility to Protect
Primavera Árabe Arab Spring
Consejo de Seguridad Security Council
Naciones Unidas United Nations
RESUMEN DEL CONTENIDO EN ESPAÑOL E INGLÉS
(Máximo 250 palabras - 1530 caracteres)
La doctrina denominada la Responsabilidad de Proteger surgió a finales del siglo XX atendiendo a la necesidad de desarrollar una alternativa ajustada a las normas existentes en el Derecho Internacional, bajo la cual la Comunidad Internacional pueda intervenir en el territorio de los Estados que no cumplan con el deber de proteger a sus poblaciones contra los crímenes de lesa humanidad, el genocidio, los crímenes de guerra y otros crímenes masivos. Esta doctrina ha presentado problemas en su interpretación y aplicación, lo que ha concluido en la continuidad de la ejecución de estos crímenes a lo largo del presente siglo.
THE VICISSITUDES OF THE RESPONSIBILITY TO PROTECT
CARLOS ARTURO VICIOSO URIBE
Tesis para optar el título de:
Abogado
Tutor
DRA. JULIANA VENGOECHEA
PONTIFICIA UNIVERSIDAD JAVERIANA
FACULTAD DE CIENCIAS JURÍDICAS
DEPARTAMENTO DE DERECHO PÚBLICO
BOGOTÁ D.C.
NOTA DE ADVERTENCIA
THE VICISSITUDES OF THE RESPONSIBILITY TO PROTECT
RESUMEN
La doctrina denominada la Responsabilidad de Proteger surgió a finales del siglo XX atendiendo a la necesidad de desarrollar una alternativa ajustada a las normas existentes en el Derecho Internacional, bajo la cual la Comunidad Internacional pueda intervenir en el territorio de los Estados que no cumplan con el deber de proteger a sus poblaciones contra los crímenes de lesa humanidad, el genocidio, los crímenes de guerra y otros crímenes masivos. Esta doctrina ha presentado problemas en su interpretación y aplicación, lo que ha concluido en la continuidad de la ejecución de estos crímenes a lo largo del presente siglo.
PALABRAS CLAVE
Responsabilidad de Proteger; Primavera Árabe; Consejo de Seguridad; Naciones Unidas.
ABSTRACT
The doctrine known as the Responsibility to Protect emerged in the late twentieth century in response to the need to develop an alternative to the existing standards in International Law, under which the International Community can intervene in the territory of States that do not comply with the duty to protect their populations from crimes against humanity, genocide, war crimes and other mass crimes. This doctrine has presented problems in its interpretation and application, which has concluded in the continuous execution of these crimes during the present century.
KEY WORDS
A mi padre,Gustavo Vicioso Simmonds
TABLE OF CONTENTS
1. INTRODUCTION………....1
2. THE USE OF FORCE BY STATES IN INTERNATIONAL LAW………...6
2.1 THE INHERENT RIGHT OF SELF-DEFENSE BY STATES………....8
2.1.1 THE EXISTENCE OF AN ARMED ATTACK………....9
2.1.1.1 PREEMPTIVE SELF-DEFENSE……….....10
2.1.2 NOTICE TO THE SECURITY COUNCIL………...12
2.1.3 COLLECTIVE SELF-DEFENSE………....12
2.2 SECURITY COUNCIL AUTHORIZATION OF THE USE OF FORCE………...13
2.2.1 CHAPTER VII………...15
2.2.1.1 THREATS TO PEACE……….....15
2.2.1.2 BREACHES OF PEACE………....17
2.2.1.3 ACTS OF AGGRESSION………....17
2.2.1.4 FORCIBLE AND NON-FORCIBLE MEASURES……….....18
2.2.2 CHAPTER VIII...22
2.2.3 SECURITY COUNCIL EX-POST FACTO AUTHORIZATION...24
3. THE RESPONSIBILITY TO PROTECT………....27
3.1 HISTORICAL BACKGROUND...28
3.2 APPROACHING A DEFINITION...31
3.3 SOURCES OF THE RESPONSIBILITY TO PROTECT...34
3.4 ELEMENTS OF THE RESPONSIBILITY TO PROTECT...37
4. THE VICISSITUDES OF THE RESPONSIBILITY TO PROTECT...46
4.1 RWANDA:BEFORE THE RESPONSIBILITY TO PROTECT...46
4.2 KOSOVO:THE DAWN OF A NEW ERA...48
4.3 DARFUR:AFIRST APPROACH...52
4.4 LIBYA:THE RESPONSIBILITY TO PROTECT...57
4.5 SYRIA:BACK TO THE BEGINNING...60
5. THE ALTERNATIVES...64
5.1 UNITING FOR PEACE...64
5.2 RESPONSIBILITY WHILE PROTECTING...66
1 1. INTRODUCTION
The 20th century and the ongoing 21stcentury, have been witness to some of the world’s greatest atrocities. Mankind has witnessed genocides, war crimes, and crimes against humanity carried out in a massive manner. The correct conduction of hostilities as enshrined by the rules of International Law has been evaded by those who are, in theory, obliged to respect its premises, leading, as a result, to a colossal loss of lives.
In the Millennium Report of the United Nations, Kofi Annan said the following:
“Despite the existence of numerous international conventions intended to protect
the vulnerable, the brutalization of civilians, particularly women and children,
continues in armed conflict. (…)Civilian populations and infrastructure have
become covers for the operations of rebel movements, targets for reprisal and
victims of the chaotic brutalities that too often follow breakdowns in state authority.
In the most extreme cases, the innocent become the principal targets of ethnic
cleansers and genocidaires”1
On December 2001, the International Commission on Intervention and State Sovereignty released a report titled “The Responsibility to Protect”. The report recognized
the existence of an emerging rule concerning the duties of States to protect their population and most importantly, the possibility for other States to intervene when another is “unwilling or unable” to halt human suffering. This intervention would be, in any event,
subject to authorization by the United Nations Security Council, and as a last resort. When the Security Council is unable to act as a consequence of the exercise of the veto power by
2
the five permanent members, the States may resort to either the Uniting for Peace procedure by the General Assembly or an ex post facto authorization by the Security Council.2
Four years later, the Responsibility to Protect was also addressed during the 2005 World Summit3, the outcome showed a “clear and unambiguous acceptance by all governments of the collective international responsibility to protect populations from genocide, war crimes,
ethnic cleansing and crimes against humanity”4.
Three main pillars to this doctrine were also established in the World Summit Outcome; (i) the protection responsibilities of the States, that is to say, the primary responsibility for preventing and protecting populations from genocide, war crimes, crimes against humanity ethnic cleansing, and their incitement; (ii) international assistance and capacity-building, which refers to the duty of the International Community to encourage and assist States in fulfilling the aforementioned responsibility; and finally (iii) a timely and decisive response, the International Community must be prepared to take prompt and collective action to protect populations when a State is manifestly failing to protect them, in accordance to the Charter of the United Nations.5
In this context, it is clear that the concept of the Responsibility to Protect involves a conflict between several rules and principles of International Law, specifically those refereeing to the prohibition of the use of force, as per article 2(4)6 of the Charter of the United Nations, also considered as a customary rule of international law, the principle of
2INTERNATIONAL COMMISSION ON INTERVENTION AND STATE
SOVEREIGNTY, The Responsibility to Protect (Canada: International Development Research Centre, 2001), at XI-XIII.
3UNGAOR, 2005 World Summit Outcome, UN.Doc.A.RES/60/1(2005), at §§138,139. 4UNITED NATIONS, 2005 World Summit Fact Sheet, (United Nations Department of Public Information, 2005)., at 1.
5Supra note 3.
3
non-intervention, according to which all States must refrain to intervene, directly or indirectly in the internal and external affairs of other States,7 and most importantly, cornerstone principles of International Law concerning sovereignty and State independence, those that confer States the exclusive right, to the exclusion of other States, to exercise the State’s functions in their territory8.
Seven years have passed since that time and the States of the present century have yet shown promise and commitment with the protection of their populations. The Responsibility to Protect has only been authorized by the Security Council in the situation of Libya in 20119 and during the same period and currently, the word is being witness to the unwillingness and/or inability of the States to act when faced with massive violations of human rights, such as those presently occurring in Syria, and those, in general, that took, and are taking place in the context of the “Arab Spring”.
This concern is not unfamiliar to the International Community, the Responsibility to Protect doctrine, has not only issues in its approval and implementation, as the aforementioned conflict with other rules of international law, but it has also been subject to misuses and misinterpretations. Under this ground, in 2011 the permanent representative of Brazil to the United Nations delivered a concept paper which introduced the concept of the “Responsibility While Protecting” with the objective of presenting certain principles that
must guide the Responsibility to Protect, in order to achieve its real purpose, the protection
7Military and Paramilitary Activities in and against Nicaragua, Merits, [1986]
I.C.J.Rep.259, at §205.
8Island of Palmas Case (Netherlands v. United States of America), (1928)
RIAA.Vol.2.pp.829-871.
4
of the civilian population.10 This concept is currently being debated in the International Community.
The pressing need for the evolution of the the rules of international law in benefit of the civilian population is present and relevant; people are the corner stone of the International Community and the purpose of International Law; States, the main subjects of International Law, may not exist without people. In the words of former Secretary General of the United Nations, Kofi Annan, “without protecting the vulnerable, our peace initiatives will be both fragile and illusory”.11
The present document comprehends an investigation on the aforementioned initiative of the International Community to create a doctrine or rule of International Law that pertains to the protection of the civilian population from the acts of States that target said population, or from the inaction by the same, resulting in the failure to protect the element that justifies their existence in International Law.
It also pretends to evidence how the current doctrines do not suffice the world’s needs due to their misuse or lack of usage motivated on several factors.
This document, in addition to being an investigation, is a proposition to the reader to raise awareness and understand the need of a continuous development of the rules of International Law to the point that they are not subjected to the interests of particular States but to the International Community as a whole.
10UNGAOR, Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General. UN.Doc. A/66/551; UNSC, Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General. UN.Doc. S/2011/701.
5
The investigation consists of a study of the use of force in the context of the Charter of the United Nations, with the purpose of further analyzing the category under which the Responsibility to Protect may be implemented, the background surrounding the birth of the Responsibility to Protect, and approach to its definition and sources, a differentiation with other doctrines concerning intervention, such as the doctrine of Humanitarian Intervention, often used interchangeably along with this concept, and assessment of the cases where either the International Community failed to intervene, and where it intervened and misinterpreted or misused its mandate. The last section will provide an analysis on the current situation of the Responsibility to Protect, along with the identification of its flaws, and certain considerations on the concept of Responsibility While Protecting.
6 2. THE USE OF FORCE BY STATES IN INTERNATIONAL LAW
Before addressing the Responsibility to Protect doctrine, as it includes to a certain degree concepts of armed intervention and use of force, it is relevant to refer to the issues and doctrines surrounding the aforementioned topics.
Use of force in the context of International Law does not refer exclusively to an armed attack, though commonly used in this context. Doctrines, however, vary in considering whether the existing rules, both treaty-based and those of a customary nature, are restrictive in what refers to the use of force. Examples of this are authors Malcolm N. Shaw, who holds that “force” refers also to any type of military, political, or economical coercion12, and Ian Brownlie, as opposed to Shaw, indicates that it is very doubtful to considerate that the use of force can apply to situations such as economic measures of a coercive nature.13Nonetheless, this Chapter will refer to the above mentioned considerations by analyzing the relevant instruments.
The general rule in international law concerning the use of force by States is enshrined in article 2(4) of the Charter of the United Nations. States must, in accordance to this rule, refrain in their international relations from the threat or use of force against the territorial integrity of political independence of any state or in any other manner
inconsistent with the Purposes of the United Nations14. Pursuant to this article, states may
not either threat, meaning an express or implied promise by a government of a resort to
12SHAW, Malcolm, International Law (New York: Cambridge University Press, 2008), at 1125.
13BROWNLIE, Ian, International Law and the Use of Force by States (USA: Oxford University Press, 1991), at 482.
7
force conditional on non-acceptance of certain demands of that government15, or use force
against other States16, but solely when the use of force is inconsistent with the purposes set in article 1 of the same Charter, namely, to maintain international peace and security, to develop friendly relations amongst nations and to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character,
and in promoting and encouraging respect for human rights and for fundamental
freedoms.17However, it has also been considered that the Charter does not contain the whole regulation regarding the use of force18, which is the reason why new doctrines or interpretations arise with the incessant development of international law.
Along with the Charter of the United Nations, customary international law, defined as the existence of international custom, as evidence of a general practice accepted as law, which if formed by a settled practice and the element of opinion juris,19 has also recognized
the existence of this prohibition.20
Nevertheless, both customary international law and the Charter of the United Nations recognize that there are two main exceptions to the prohibition of the use of force by States; (i) the exercise of the inherent right of self-defense by States, and (ii) the
15STÜRCHLER, Nikolas, The Threat of Force in International Law (New York: Cambridge University Press, 2007), at 39.
16 Legality of the Threat or Use of Nuclear Weapons, [1996], Advisory Opinion. I.C.J Rep.
226,254.
17Supra note 6, at article 1.
18Supra note 7, at §176. See also CHESTERMAN, Simon, Just War or Just Peace? (New
York: Oxford University Press, 2001), at 49.
19Case Concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece
8
authorization of the use of force by the United Nations Security Council under Chapter VII and Chapter VIII of the Charter.21
2.1THE INHERENT RIGHT OF SELF-DEFENSE BY STATES
The Charter of the United Nations recognizes that all States have an inherent right to exercise actions of self-defense when they have been victims of an armed attack by another State. Article 51 of the Charter indicates that:
“Nothing in the 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.”22
Several elements concerning the right of self-defense may be extracted from this article. On a first basis, the Charter identified that self-defense is an inherent right of all States, a right recognized solely on the nature of fulfilling the elements of Statehood, and allowing a State to lawfully recourse to force upon the satisfaction of its requirements.23 Secondly, self-defense may be individual or collective, dichotomy to be further explained,
21DINSTEIN, Yoram, War, Aggression and Self-Defense (New York: Cambridge University Press, 2011), at 91.
22Supra note 6, at article 51.
9
as the second modality requires different elements for its lawfulness. Thirdly, the need for an armed attack by a State (which leads to consider the rules of attribution laid down in the Articles on the Responsibility of States for Internationally Wrongful Acts -considered
customary international law-24 in order to understand that actions of organs or persons different to regular State organs may also be considered as acts of the State) is imperative for self-defense to be lawful in international law. Fourthly, the execution of all means to repel the armed attack ceases when the United Nations Security Council adopts the necessary means to maintain international peace and security, and lastly, all actions taken by a State, under the argument of self-defense, must be immediately reported to the United Nations Security Council.
It is noteworthy to mention that the most debated characteristics for the legality of this right are the existence of an armed attack, based on whether States may take preemptive action against other States with the purpose of avoiding an attack by another State, and whether notification to the Security Council of the actions taken is a sine qua non requirement to the legality of the exercise of the right.
2.1.1 THE EXISTENCE OF AN ARMED ATTACK
Although highly discussed, there is still no definition of an “armed attack” as enshrined in article 51 of the Charter. The International Court of Justice has, in several occasions, addressed the issue of the existence of an armed attack as threshold to the exercise of self-defense, however, only in 1984 did it approach its definition. The Court
24Application of the Convention on the Prevention and Punishment of the Crime of
10
indicate that it “appeared now to be a general agreement on the nature of the acts which can be treated as constituting armed attacks. In particular, it may be considered to be
agreed that an armed attack must be understood as including not merely action by regular
armed forces across an international border, but also „the sending by or on behalf of a
State of armed bands, groups irregulars or mercenaries, which carry out acts of armed
force against another State‟ (…)”,25 this approximation, however important, was drafted in the context of the actions of a paramilitary group known as “The Contras” in Nicaragua. It
is nonetheless significant that the Court did indicate that an armed attack refers to the use of armed force by a State. Thereafter, in the case regarding the military presence and certain acts of aggression perpetrated by Uganda in the territory of the Democratic Republic of Congo, the Court held that article 51 of the Charter of the United Nations may only justify a use of force in self-defense “only within the strict confines there laid down,26 this is, when an armed attack has already occurred.27
Considering the aforementioned, it may be concluded that to exercise self-defense, a State must first be victim of the use of armed force by another State, and that threats of an armed attack, although unlawful, do not enable and armed response by the victim State (to be discussed infra).
2.1.1.1 PREEMPTIVE SELF-DEFENSE
Following the 9/11 attacks on the United States’ World Trade Center, what has been identified by many as the “Bush Doctrine”, gave rise to certain considerations on whether a
25Supra note 7, at §195.
26Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
11
State, victim of threats to its peace and security, may execute preemptive armed actions against the threatening State to prevent an armed attack. As per the jurisprudence of the International Court of Justice, which has not yet addressed preemptive self-defense, these actions would be unlawful, given that the armed attack has not occurred; however opinions vary on this matter.
Authors, for instance, hold that the exercise of a certain “interceptive” self-defense
is in fact lawful. “The right to self-defense can be invoked in response to an armed attack at an incipient stage, as soon as it becomes evident to the victim State (on the basis of hard
intelligence available at the time) that the attack is actually in the process of being
mounted”.28 This doctrine presents a different interpretation of Article 51, as it considers
that, even though the armed attack has not yet occurred, i.e., caused its final effect, if there is an irrevocable beginning of the attack, the would-be victim may take self-defensive actions to avert the conclusion of the attack; under this ground, the concept of interceptive self-defense would not be strictly juxtaposed to article 51 of the Charter. 29
The fundamental distinction between the notions of „interceptive‟ and „pre-emptive‟
self-defense is that the former broadens the „armed attack requirement‟ to include actions
which have commenced but which have not yet crossed the border, whereas the latter
abandons it altogether, instead relying on the overarching criteria of proportionality and
28Supra note 21, at 200.
29RYUS, Tom, „Armed Attack‟ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (New York: Cambridge University Press, 2010), at 253. See also
12
necessity/imminence.30 These matters are however, brief notions of what continues to be
debated in International Law.
2.1.2 NOTICE TO THE SECURITY COUNCIL
As a parallel to the existence of an armed attack, another highly debated requirement for the lawfulness of self-defense, is the immediate notice to the United Nations Security Council of all actions taken under the pretext of self-defense, for it to be able, as the primary authority in the maintenance of international peace and security, to take all necessary measures to cease the aggression.
The International Court of Justice has stated that this is in fact a requirement for the lawfulness of these actions, for States that invoke the premises of the Charter as justification for their actions. Nevertheless, it also recognized that in customary international law it is not a condition of the lawfulness of the use of force in self-defense that a procedure so closely dependent on the content of a treaty commitment (those confined in article 51 of the Charter) and of the institutions established by it, should have been followed. 31
2.1.3 COLLECTIVE SELF-DEFENSE
As previously mentioned, self-defense may be either individual or collective (see supra 2.1). It is significant to mention that collective self-defense differs from the action of
regional arrangements under Chapter VIII of the Charter of the United Nations, without
13
prejudice to the possibility that a regional arrangement, such as the North Atlantic Treaty Organization (NATO), may be called upon by the victim State to exercise this right.
Collective defense has the same material requirements as individual self-defense, however, the existence of an additional element must be present in order for the mentioned exercise; the request by the victim State to another State or Regional Arrangement to take actions of self-defense in order to protect the victim’s integrity.
The abovementioned has also been debated, as there is no specific procedure in the Charter that indicates that this is a requirement that must be fulfilled, nonetheless, several treatises include a collective defense pact, worded usually by means of understanding that an attack against a member of the organization is considered as an attack to all the members, thus enabling them to legally execute actions32.
In the Nicaragua case (1986), the International Court of Justice deemed that there is no rule permitting the exercise of collective self-defense in the absence of a request by the
State which regards itself as the victim of an armed attack, 33this rule was also further acknowledged in the 2003 Oil Platforms case.34
2.2SECURITY COUNCIL AUTHORIZATION OF THE USE OF FORCE
It was anticipated that the second exception to the use of force by States recognized in International Law refers to the authorization of the United Nations Security Council under Chapter VII and Chapter VIII of the Charter of the United Nations.
32See, for instance, The Inter American Treaty of Reciprocal Assistance, at article 3.2 and the North Atlantic Treaty, at article 5.
33Supra note 7, at §199.
34Oil Platforms (Islamic Republic of Iran v. United States of America) [2003], Judgment,
14
This section is quite relevant for the purpose of this paper given that, as it will be further explained, one of the requirements of the Responsibility to Protect is the authorization by the Security Council regarding the protection of the civilian population inside the territory of the State that has failed to protect it.
The Security Council is the United Nations organ in charge of both the determination of the existence of a threat to the peace, a breach of the peace, or an act of aggression, and the recommendations and decisions concerning the maintenance or restoration of international peace and security. 35This means that the Security Council has two main discretions, it may decide when and how to act.36
It is composed by five permanent members -the United States of America, the Republic of China, France, the Russian Federation (USSR is used in the wording of the Charter) and the United Kingdom of Great Britain and Northern Ireland- and ten non-permanent members.37 The five permanent members, individually, have the capacity to “veto” any decision by the Security Council which is not related to procedural matters,
thus, for decisions concerning the use of force, their vote must be concurrent.38
In what concerns the use of force, the Security Council may either, pursuant to chapter VII of the Charter, order non-forcible measures, or when resulting inadequate, take
35Supra note 6, at article 39.
36DE WET, Erika, The Chapter VII Powers of the United Nations Security Council (Portland: Hart Publishing, 2004), at 133.
15
action by air, sea or land force. It may also, under Chapter VIII, use regional arrangements for enforcement action.39
Moreover, it is also debated, due to the practice of the Security Council, whether this authorization has to be prior to the use of force, or States may receive an ex-post facto approval or authorization to the already occurred use of force.
2.2.1 CHAPTER VII
Chapter VII of the Charter of the United Nations deals with actions with respect to threats to the peace, breaches of the peace, and acts of aggression.
Article 39 establishes that the Security Council, firstly, determines the existence of a threat to the peace, a breach of the peace, or an act of aggression, and secondly, makes recommendations or decides to take measures.
2.2.1.1 THREAT TO PEACE
A threat to peace may be defined as a situation that has the potential of provoking an armed conflict between States in the short or medium term40. Under this ground, it is possible to state that the Security Council has a preventive function, which manifests itself in the wording of the article in charging this organ with the maintenance of international peace and security, meaning, the possibility to take action in the presence of threats to the existing peace.
It is noteworthy to mention that Article 39 provides for the maintenance and restoration of international peace and security, which by its literal meaning leads to
16
understand that the Security Council may not take action regarding breaches of peace, acts of aggression or threats to peace occurring solely inside the territory of a State41. This position, has been, however, undermined by the practice of the Security Council when identifying certain situations of internal nature as constituting threats or breaches to international peace42, inter alia, the situations concerning the arms embargo in South Africa43, the large-scale flow of refugees following the Kurdish oppression in Iraq44 and the situation of humanitarian assistance in Somalia45.
Several authors argue that under article 2(7) of the Charter, the Security Council should not have intervened in situations concerning the domestic jurisdiction of States, precisely under the fact that the domestic jurisdiction clause imposes a limit for the action of all United Nations organs.46 Nonetheless, it is clear that the Security Council’s tendency for the past decades is the internationalization of domestic affairs, to the extent that it has, under Chapter VII, ordered measures such as the restitution of lawfully elected presidents and democratic governance; by means of Resolution 940 (1994), the Security Council authorized “Member States to form a multinational force under unified command and control and, in this framework, to use all necessary means to facilitate the departure from
41O’CONNELL, Mary, Regulating the Use of Force in the 21st Century: The Continuing
Importance of State Autonomy in Columbia Journal of Transnational Law vol. 35 (New York: 1997), at 481.
42ORAKHELASHVILI, Alexander, Legal Aspects of Global and Regional International Security (May, 2000), online: North Atlantic Treaty Organization
<http://www.nato.int/acad/fellow/98-00/orakhelashvili.pdf>, at 25-9. 43UNSC Resolution 418, November 4, 1977. UN.Doc. S/RES/418(1997). 44UNSC Resolution 688, April 5, 1991. UN.Doc. S/RES/688(1991). 45UNSC Resolution 794, December 3, 1992. UN.Doc. S/RES/794(1992).
46CANÇADO TRINDADE, Antônio, The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organizations" in 25 The International and Comparative Law Quarterly 1976, 715., at 755. See also DAVIES, D.J. Llewelyn, Domestic
17
Haiti of the military leadership, consistent with the Governors Island Agreement, the
prompt return of the legitimately elected President and the restoration of the legitimate
authorities of the Government of Haiti”.47 The same occurred in resolution 1132 (1997),
concerning the situation in Sierra Leone, in which the Security Council demanded “that the military junta take immediate steps to relinquish power in Sierra Leone and make way for
the restoration of the democratically elected Government and a return to constitutional
order”. 48
2.2.1.2 BREACH TO PEACE
The expression breach to peace refers to “a serious outbreak of armed hostilities,
but which is not so serious to constitute an act of aggression”.49 A breach to peace has
been the situation of, for instance, the armed attack by North Korean to South Korea in 1950,50 the Malvinas invasion by Argentina, 51 and the Iraqi invasion of Kuwait.52
2.2.1.3 ACT OF AGGRESSION
Although the expression “Act of Aggression” appears in the 1945 Charter, it was
not defined by the United Nations until 1974. An act of aggression, according to General Assembly resolution 3314 (XXIX) is “the use of armed force by a State against the
47UNSC Resolution 940, July 31, 1994. UN.Doc. S/RES/940(1994). 48UNSC Resolution 1132, October 8, 1997. UN.Doc. S/RES/1132(1997).
49FROWEIN, Jochen, in Bruno Simma (ed), Charter of the United Nations. A Commentary (Oxford: Oxford University Press, 1994), at 690. See also supra note 36, at 144.
50UNSC Resolution 82, June 25, 1950. UN.Doc. S/1501.
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sovereignty, territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations”53.
Unlike the debate included in article 2(4), the definition of aggression is clear in limiting aggression solely to “armed force”, this means that any other type of coercion would not be constitutive of aggression, but however, may still be a breach of Article 2(4).
2.2.1.4 FORCIBLE AND NON-FORCIBLE MEASURES
It is important to state beforehand that the Security Council is not obliged to apply non-forcible measures before resorting to military action, nor do the first exclude the second; it may resort to military action as soon as the requirements are present, and even, combine both type of measures54. In addition, these measures must always be in consistency with the purposes and principles of the United Nations, which limit Security Council action.55 Under article 25 of the Charter, all States have the legal obligation to comply with any decision by the Security Council, and to carry them out in accordance to the Charter.56
Non-forcible and forcible measures under articles 41 and 42 will be addressed in this section.
53UNGAOR, Resolution 3314 (XXIX), December 14, 1974. 2319th Plenary meeting. 54GILL, Terry, Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter, in 26 Netherlands Yearbook of International Law 62 (1995), at 46. See also SCHWEIGMAN, David, Legal Limits and the Role of the International Court of Justice (The Hague: Kluwer Law International, 2001), at 37.
55AKANDE, Dapo, The International Court of Justice and the Security Council: is there Room for Judicial Control of Decisions of the Political Organs of the United Nations in 46 International and Comparative Law Quarterly 320 (1997), at 320-2.
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When detecting a threat to the peace, a breach to the peace, or an act of aggression, the Security Council, in order to prevent further aggravation, may employ measures unrelated to the use of force. These measures may include a “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of diplomatic relations”.57 The
aforementioned are inclusive measures58, which endows the Security Council with great flexibility in deciding which measure to adopt. The International Criminal Tribunal for the Former Yugoslavia also agreed to this flexibility when analyzing the case of Duško Tadić, nonetheless it considered that although flexible, its powers are not unlimited. The tribunal asserted the following:
“It is clear from this text that the Security Council plays a pivotal role and exercises
a very wide discretion under this Article. But this does not mean that its powers are
unlimited. The Security Council is an organ of an international organization,
established by a treaty which serves as a constitutional framework for that
organization. The Security Council is thus subjected to certain constitutional
limitations, however broad its powers under the constitution may be. Those powers
cannot, in any case, go beyond the limits of the jurisdiction of the Organization at
large, not to mention other specific limitations or those which may derive from the
internal division of power within the Organization. In any case, neither the text nor
57Supra note 6, at article 41.
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the spirit of the Charter conceives of the Security Council as legibus
solutus (unbound by law).”59
Moreover, for sanctions under this article to be reasonable and justifiable they must be “adequate to ensure compliance by a government with commands directed to it” and “they should not impose hardships not being justifiable by aims and purposes the sanctions
serve”.60
When these measures result inadequate, either after their implementation or when considering them, the Security Council may proceed, as established by article 42 of the Charter, “to 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.”61
An essential concept is enshrined in this article, “troops and support will be available from Member States for use by the Security Council”,62however, for this to be possible, article 43 envisages that this availability is under a certain special agreement entered into by the Security Council and each particular member State,63 thus, in the absence of said special agreement, in theory, the States are not obliged to supply the Security Council with troops.
59Prosecutor v Duško Tadić a/k/a “Dule”, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October, 1995) at §28 (International Criminal Tribunal for the Former Yugoslavia).
60Supra note 42, at 35. 61Supra note 6, at article 42.
62SUTTERLIN, James, The United Nations and the Maintenance of International Security: A Challenge to be Met (Westport: Praeger Publishers, 2003), at 58.
21
In practice, when there has been a relevant need for State troops by the Security Council, and, where there is no prior agreement, the Security Council has resorted to authorizing the State, or authorizing regional organizations to use force on a voluntary basis. 64
When this delegation occurs, it must be understood that the delegated power is a power of the United Nations, and not of the State as an individual, and, for this purpose, the powers must be exercised in maximum compliance with the purposes and principles of the United Nations. In all events, the Security Council must also ensure that the delegated enforcement action is carried out under its authority and control; actions beyond the authority of the Security Council are considered ultra vires65 and thus, no longer actions of
the United Nations but of the State per se, this also occurs in the situation when a State, under the appearance of delegating its forces to and organization such as the United Nations, still exercises effective control over its organs.66
Chapter VII measures are commonly confused with Peacekeeping operations, which are completely different. On a first basis, Peacekeeping operations are established and maintained with the consent of all the States concerned, whereas Chapter VII measures are
64Supra note 49, FROWEIN, at 756-8.
65SAROOSHI, Danesh, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of Chapter VII Powers (UK: Clarendon Press, 2000), at 155.
66R(on the application of Al-Jedda)(FC) v. Secretary of State for Defence, Al-Jedda
Decision of the Appelate Committee, [2007]UKHL.58, at §65. See also UNGAOR, Eighth report on responsibility of international organizations, International Law Commission, UNGAOR, 63rd Sess, Supp. 10. UN.Doc. A/CN.4/640, at 8. Other decision addressing the issue of effective control are: Agim Behrami and Bekir Behrami v. France (2007),
22
ordered by voting process in the Security Council, the consent of all the States involved is not necessary, and, on a second basis, Peacekeeping operations are not authorized to use force against a State, which is, the essence of a Chapter VII forcible measure; peacekeeping operations may only use force in self-defense. 67
2.2.2 CHAPTER VIII
It was mentioned above that the Security Council may also use regional arrangements for enforcement action. The Security Council has the primary responsibility for the maintenance of international peace and security, as worded by the Charter, and this precise wording indicates that other agents or organs may have a “secondary” responsibility in this matter. Charter article 52 indicates the possibility of the existence of regional arrangements or agencies to deal with international peace and security-related matters. 68
The United Nations Department of Peacekeeping Operations indicated that “there are many advantages that emanate from cooperation between the UN and regional, sub
regional organizations and arrangements in peacekeeping and peace support operations.
Through such cooperation, the International Community can mount effective strategies for
preventing crises, for peacekeeping and peace support, as well as for humanitarian
assistance and peace-building. Cooperation between the UN and regional and sub-regional
organizations/arrangements enables the sharing of responsibilities, based on the
comparative strengths of each, leading to complementarity and the avoidance of
67Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter) [1962],
23
competition69.” This is the framework in which these regional arrangements should be understood, and most relevantly, though to be explained a posteriori, the reason why they have been and should be continued to be used to fulfill the Responsibility to Protect.
The legal basis for enforcement action by Regional Arrangements is outlined in article 53 of the Charter; “the Security Council shall, where appropriate, utilize such
regional arrangements or agencies for enforcement action under its authority. But no
enforcement action shall be taken under regional arrangements or by regional agencies
without the authorization of the Security Council”.70 As it was also mentioned above,
collective self-defense, usually on the grounds of mutual defense pacts, may also be exercised by regional arrangements to protect a victim State.
Two elements integrate the essence of this modality; firstly, enforcement action by regional arrangements or agencies is under the authority of the Security Council, that is to say, the Security Council must delegate a clear mandate but always retain control over the enforcement action, all actions beyond its mandate will be ultra vires with the already mentioned consequences; and most importantly, these regional arrangements or agencies must obtain Security Council authorization, prior to their action. The second element is nonetheless debated, and will be studied comprehensively in the upcoming section.
69UNITED NATIONS DEPARTMENT OF PEACEKEEPING OPERATIONS,
Cooperation between the United Nations and Regional Organizations/Arrangements in a Peacekeeping Environment: Suggested Principles and Mechanisms (Department of Public Information, 199), at 10.
70Supra note 6, at article 53. See also CLARK, Anthony & BECK, Robert, International
24 2.2.3 SECURITY COUNCIL EX-POST FACTO AUTHORIZATION
The word “authorize” is defined as the act of giving legal authority, empowering or
formally approving something. 71As mentioned above, both Chapter VII and Chapter VIII measures require Security Council authorization, however, due to both, the wording and the practice of the Security Council, it is debated whether this authorization must precede enforcement action or if there is a possibility for an ex-post facto or implicit authorization by the Security Council after force has already been deployed. This issue is clear, for instance, when addressing the issue of self-defense, States in this situation may use force without being authorized by the Security Council to safeguard their existence; this issue is nonetheless unclear when addressing Chapter VII and Chapter VIII powers.
Some authors hold that the doctrine of ex-post facto authorization contradicts the rationale of Chapter VII and Chapter VIII, withstanding the fact that powers conferred by the Charter rely on the previous determination of a threat to the peace, a breach to peace or an act of aggression, followed, in any case, by the authorization to use force by the Security Council72, authorization derived from the Charter system in which the Security Council decides on the legality of using force. Other authors consider the exact opposite; the wording of the Charter does not refer to prior authorization, but solely to authorization, which does not exclude the possibility of a posterior or implicit authorization.73 The most common argument advanced in favor of an ex-post facto authorization is the blockading
71Black‟s Law Dictionary, 8th ed, sub verbo, “authorize”.
72BYERS, Michael & NOLTE, Georg, United States Hegemony and the Foundations of International Law (New York: Cambridge University Press, 2003), at 217.
73WALTER, Christian, Security Council Control over Regional Action (1997), online: Max Planck Yearbook of United Nations Law
25
powers of a permanent member of the Security Council. In this situation, where a superior interest is at stake, for instance the prevention of genocide, it would be logical to consider the virtue of such an authorization, however, it would represent a double-edged blade when State use it to accommodate other needs.
A very relevant case has set the precedent for the discussion of this subject, NATO’s bombing in Kosovo. Though lacking prior Security Council authorization, the
NATO decided in 1998, after the Security Council considered the situation in Kosovo as a threat to peace74, to carry out bombing in the Federal Republic of Yugoslavia to protect Kosovar Albanians. At this moment, it was clear that the Russian Federation would veto any Security Council resolution authorizing the use of force in Kosovo. After the bombings, Russia introduced a draft resolution condemning the actions of NATO and its member States, resolution that was, however, refused by the Security Council.75 The lack of authorization to NATO followed by the refusal to condemn its actions has led to consider that when States act in benefit of the purposes and principles of the United Nations, the rules tend to be more flexible. These actions have also been considered to be in violation of the Charter of the United Nations, but nonetheless to be recognized as exceptions and not general rules.76
The next chapter will address the doctrine of the Responsibility to Protect, a doctrine that contains the possibility to use force against States, as conceived under Chapter VII or Chapter VIII enforcement actions in compatibility with the Charter of the United
74UNSC, Resolution 1160, March 31, 1998, UN.Doc. S/RES/1160(1998).
75UNSC, Security Council Press Release, March 26, 1999. UN.Doc. SC/6659. Security Council Meeting Record, UN.Doc. S/PV.3989.
26
Nations, and also, the possibility of an ex-post facto authorization to exercise force with by
27 3. THE RESPONSIBILITY TO PROTECT
“Between April and June 1994, an estimated 800,000 Rwandans were killed in the
space of 100 days”;77 “a campaign of ethnic cleansing against Kosovo Albanians was
initiated by Serbian forces. Hundreds of thousands of refugees fled to Albania, Macedonia
and Montenegro (…) Milošević and a number of his colleagues bore direct responsibility
for crimes that are alleged to have included the deportation of almost 750,000 Kosovo
Albanians and the murders of about 600 individually identified ethnic Albanians”;78 “at
least 200,000 people are estimated to have died in the four-year conflict in Darfur”.79
“They've got thousands and thousands of wounded. They say that they've lost 25,000 people
killed, 3000 have been maimed, 60,000 injured”;80 “More than 60,000 people have been
killed since Syria's uprising began in March 2011, the UN has said.”81
In only two of the abovementioned situations has the International Community acted to avert further deaths, promptly though questionable.
In Rwanda, “UN forces were present, though not in sufficient number at the outset;
and credible strategies were available to prevent, or at least greatly mitigate, the slaughter
77“Rwanda: How the Genocide Happened”, BBC News, (18 December, 2008), online: < http://news.bbc.co.uk/2/hi/1288230.stm>
78“Flashback to Kosovo‟s War”, BBC News, (10 July, 2006), online: <http://news.bbc.co.uk/2/hi/europe/5165042.stm>
79“Darfur „was worst abuse of 2006”, BBC News, (6 March, 2007), online: < http://news.bbc.co.uk/2/hi/in_depth/6424613.stm>
80“Residents flee Gadaffi Hometown”, The Sydney Morning Herald, (3 October, 2011),
online: <http://news.smh.com.au/breaking-news-world/residents-flee-gaddafi-hometown-20111003-1l49x.html>
28
which followed. But the Security Council refused to take the necessary action. That was a
failure of international will – of civic courage –at the highest level.”82
This “failure of international will” gave rise to several questions concerning the
duties of States with their populations, and most importantly, the duty of the International Community when States fail to protect the essence of their existence. Do States have the power to do as they will inside their territory? Must the International Community remain seated down while mass and gross violations of Human Rights occur? Are the principles of State Sovereignty and Non-intervention more important than the protection of life?
This chapter presents a comprehensive study on the evolution of International Law which pertains the answer to these questions: The Responsibility to Protect.
3.1HISTORICAL BACKGROUND
In the year 2000, following the events that arose after the International Community failed to act, or did not act promptly in the context of the Rwandan genocide in 1994, the Srebrenica massacre an 1995 and the Kosovo siege in 1998-9, former Secretary General of the United Nations posed the following question: if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a
Srebrenica - to gross and systematic violations of human rights that offend every precept of
our common humanity?83
This question led to Canada’s answer to the challenge, the establishment of the International Commission on Intervention and State Sovereignty, a commission that would
82Supra note 2, at 1.
29
later, on December 2001 submit a report on its consideration of a new doctrine known as “The Responsibility to Protect”. This report brought an innovative notion; sovereignty is
not, as usually considered, a privilege, it is a responsibility, and this responsibility is manifested on the obligation of all States to protect their populations from atrocities. However, the notion of protecting life inside the territory of a State had been addressed before, for instance, the International Covenant on Civil and Political Rights establishes that each State party to the Covenant “undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status
(emphasis added).”84 Nonetheless, the great novelty of this report relies on the fact that it considers, not only the duty to protect, but the possibility of intervention (even armed intervention) when States fail to do so.
Not much followed since that moment until 2005 where the greatest development of the Responsibility to Protect doctrine occurred; the outcome of the 2005 World Summit. Paragraphs 138 and 139 of the World Summit Outcome state the following:
“Responsibility to protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity
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 their incitement,
84International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171,
30
through appropriate and necessary means. We accept that responsibility and will
act in accordance with it. The International Community should, as appropriate,
encourage and help States to exercise this responsibility and support the United
Nations in establishing an early warning capability.
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, to help to protect
populations from genocide, war crimes, ethnic cleansing and crimes against
humanity. In this context, we are prepared to take collective action, in a timely and
decisive manner, through the Security Council, in accordance with the Charter,
including Chapter VII, on a case-by-case basis and in cooperation with relevant
regional organizations as appropriate, should peaceful means be inadequate and
national authorities are manifestly failing to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the
need for the General Assembly to continue consideration of the responsibility to
protect populations from genocide, war crimes, ethnic cleansing and crimes against
humanity and its implications, bearing in mind the principles of the Charter and
international law. We also intend to commit ourselves, as necessary and
appropriate, to helping States build capacity to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity and to
assisting those which are under stress before crises and conflicts break out.”85
31
This outcome, derived from the participation of all Member States to the United Nations, shows a clear will by the International Community to not only recognize the existence of the duty of State to protect their populations, but also a will to take action against those who fail with their duty, or so it seemed.
Soon after, the African Union incorporated to its constitutive Charter, the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect
of grave circumstances, namely war crimes, genocide and crimes against
humanity; 86representing the only hard law instrument which incorporates this right,
nonetheless, binding only to its Member States.
The Responsibility to Protect doctrine is very controversial, as any doctrine allowing the rupture of an essential right of the State, which is to exercise Sovereignty inside its territory with no intervention whatsoever by other States or the International Community. Its principles, elements and sources have been contended by States in several occasions which has lead either to its misinterpretation or misapplication, and in general to a lack of consensus in when it should be applied.
3.2APPROACHING A DEFINITION
There are a number of different readings in what concerns the Responsibility to Protect. It has often been described as an “emerging” rule of International Law nearing its
conversion to a binding law. 87 Another reading affirms that the Responsibility to protect is far from being a clear norm in International Law as the particular requirements to exercise
86Constitutive Act of the African Union, 11 July 2000, at article 4(h).
