This article is authored by Mustafa Topiwala a first-year student of law at Rajiv Gandhi National University of Law, Punjab and Hussain Topiwala, a first-year student of law at Tamil Nadu National Law University.
The world is amassed with wars, and the innumerable violations of international law by different States has proliferated the need for upholding the principles of peace and human rights. There are a plethora of international legal instruments that regulate the conduct of parties in armed conflicts, such as the Hague Convention, Geneva Conventions and the like. These form the basis of the International Humanitarian Law (hereinafter, “IHL”), which was conceptualized to reduce the impacts of armed conflicts.
The principles of IHL, contained in the four provisions of the Geneva Conventions of 1949, aims to deter the devastating consequences of war. States are legally bound by rules enshrined in the IHL, which ensures a blanket-protection for those not involved in any armed conflict.
In conjunction to this runs the concept of Responsibility to Protect (hereinafter, “R2P”), which emerged as an important principle after the adoption of the UN World Summit Outcome Document in 2005. R2P is a globally recognized norm that strives to eradicate mass atrocities and crimes against humanity. The key difference between IHL and R2P is that while the former only functions during the event of a war, the latter is always applicable as a binding virtue on States to protect the right to life of their population. Further, the R2P allows third-party States to intervene in other territories that are not upholding the responsibilities of a sovereign. This policy of intervention has proven to be successful, albeit controversially, in reducing the effects of war, as examined in the case of the Libyan civil war. Any humanitarian intervention is possible only after it is authorized by the United Nations Security Council (hereinafter, “UNSC”). While this mechanism serves as a bulwark against capricious state interventions, the P5 nations have persistently wielded the veto power, thereby impeding the activation of numerous interventions. To limit the power of veto, the notion of responsibility not to veto (hereinafter, “RN2V”) has emerged, after NATO Kosovo’s intervention (1999) and the Syrian war (2011). According to this concept, the veto-power of P5 countries should be temporarily regulated in matters of crimes as deemed by R2P principles. This would help refrain the use of veto in the event of atrocities, thereby unnecessarily preventing possible successful humanitarian interventions. The 2008 Genocide Prevention Task Force of United States had submitted an interesting proposition, wherein veto would be renounced unless three out of the five powers agree to veto a resolution.
R2P is not a law - it derives its legitimacy primarily from other international legal instruments such as the Rome Statute of the International Criminal Court. While it has not yet achieved the status of a widely accepted state practice, it has garnered significant acknowledgment as an integral component of customary international law. This is primarily attributed to the fact that R2P has been mentioned 23 times in UNSC resolutions between 2005 and 2015. The R2P includes within itself three crucial pillars that reflect its key values of protection of citizens and collective action, which were presented by the former United Nations Secretary General Ban Ki-moon.
While IHL is already in place to curb the consequences of armed conflicts, it only functions when there is an actual war, and therefore does not take into account internal disturbances or isolated acts of violence. R2P on the other hand, places a burden on States to prevent casualties at any instance, and has a limited scope compared to IHL as it fails to examine the causes of the conflict or the parties engaging in the war.
The application of R2P inherently depends on its legal status, and to what extent has the international community accepted its legitimacy. The ideal course of action in order to equip R2P with this legitimacy would be to integrate its principles into the IHL, possibly through their incorporation into the Geneva Conventions. Keeping aside the limitations of R2P and IHL mentioned above and provided that R2P has four grounds of application, namely, genocide, war crimes, ethnic cleansing, and crimes against humanity, its integration into the IHL should be conditioned only upon the occurrence of an armed conflict, and the occurrence of the enlisted four grounds during an armed conflict. As IHL applies only during armed conflicts, incorporation of R2P into it must also be centric to them.
Considering the absence of any codified versions of R2P, some rudimentary suggestions have been provided below that could be possibly integrated into IHL:
States bear the primary and inalienable obligation to uphold the right to life and well-being of their citizens, in the case of armed conflicts, under the auspices of R2P.
Third-member States shall have the right to conduct humanitarian interventions in armed conflicts, with or without the consent of the parties involved, and with the requirement of prior authorization from the UNSC, while upholding the spirit of R2P.
States engaged in armed conflict shall invariably have to grant access to international humanitarian organizations, subsequent to a resolution on the same by the UNSC, to intervene with the purpose of assisting vulnerable populations, when the State is unable or unwilling to fulfill its sovereign role.
Through the incorporation of the principles of R2P into IHL, they shall be universally legally binding on all states.
The principles of R2P can be incorporated through the United Nations’ treaty amendment procedures, which makes it possible to formally alter a treaty through the same procedure as observed during the original formation of the treaty, according to Article 40 of the Vienna Convention of the Law of Treaties, 1969. The incorporation becomes important because it legitimizes the concept of R2P when integrated effectively into instruments of international law. Since R2P functions without stopping, it also provides the establishment of a possible early-warning mechanism for a rapid response even before a war breaks out.
The UN has perennially found itself in a conundrum since the development of R2P. On the one hand, it affirms the sovereignty of states through the Charter of the United Nations (Article 2(4)) and principles of customary international law. On the other hand, the third pillar of R2P necessitates intervention as a last resort for the protection of human rights. There has been little evidence of political will to challenge state sovereignty and there is no consistent international interpretation that exists on the actual application of R2P, which further exacerbates this conundrum.
With regards to the intervention in Libya for instance, upon the passage of UNSC resolution 1973, the P3 (France, UK, USA) had wanted immediate international intervention. The AU vouched for mediation in a step towards bringing a peaceful resolution to the conflict. Under this scenario of disagreement, NATO countries proceeded to militarily intervene in Libya under criticism from African countries. This expansive interpretation of the norm of R2P has not consistently been applied where the 4 grounds necessitate the application of R2P, namely, genocide, war crimes, ethnic cleansing, and crimes against humanity. The dire situation of Syria, or the issue of Israel-Palestine for instance, fails to see the application of R2P to the same extent as had been done in Libya. Moreover, the lack of codification of R2P and its non-binding nature posits it as an interpretive tool in the hands of states to further their state policies, as is seen in the Russian invasion of Georgia. It is evident that the international community is only demonstrating a willingness to react to such events in isolated cases on a need-basis.
To resolve the controversy that revolves around R2P, there have been multiple attempts at institutionalizing R2P. The position of Special Advisor on Prevention of Genocide was created in 2004, for instance, to engage in information gathering and training in this area. This step towards institutionalization of R2P in the Secretariat of the UN, albeit a good measure in its development, fails to constructively clarify the necessity of R2P within the atmosphere of controversy that it finds itself in.
The very concept of R2P creates a complexity of developing a lawful and legitimate humanitarian intervention framework, whilst balancing state interests. A failure to have created a framework so far does not reduce its potential. In fact, a codified framework of R2P will aid in constituting intervention for protecting people’s rights as a legal obligation, and not merely a discretionary responsibility or right. This codification of R2P, could be done through its incorporation into the framework of IHL, thereby giving it an obligatory and legally binding nature. The applications of these principles must be coupled with the holistic invocation of RN2V. The recent US veto in the UNSC on the ongoing Israel-Gaza crisis sheds light on how the veto system weakens the foundations upon which the UN had been built. RN2V must come into play when a question of applying R2P based on its four grounds arises in the UNSC, i.e., when a “veto blocks a UNSC action purporting to prevent or end genocide, crimes against humanity, or war crimes”. This will also ensure action against the acts of the P5 members themselves, such as Russia’s invasion of Ukraine, by preventing them from vetoing resolutions and facilitating the proactive engagement of other permanent members.