R2P and UN-peacekeeping missions

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R2P and

UN-peacekeeping

missions

Maarten Lambers 10809767 Supervisor: Mr. H. Scheltema 31-05-2015

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Contents

Introduction

1. The Responsibility to Protect (R2P)

2. The current UN-peacekeeping regime

3. The legal aspects of the application of R2P to UN-peacekeeping missions

4. The role of the Security Council (SC) and the General Assembly (GA)

5. The application of R2P in practice: Libya and Ivory Coast

6. The future of R2P and UN-peacekeeping missions

Conclusion

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Introduction

The 'Responsibility to Protect' (R2P), although seen as viable by many scholars1, is not entirely accepted as an international public law norm by the international community. On the contrary, R2P remains a controversial issue for contemporary international law experts. Because of its contested status, R2P is a much discussed topic and much has already been written about it.2

This thesis will focus on an aspect of R2P that has received less attention: the possible link between R2P and UN-peacekeeping missions. UN-peacekeeping missions have been an inherent part of the pursuit of the UN to increase worldwide peace and security. These missions, however, have not always been successful and the use of these missions have therefore often been the subject of disagreement by several UN-member states. The deployment of UN-peacekeeping missions has not only been controversial because the effectiveness of those missions has been questioned;

disagreements about the (legal) basis for these missions have also often been the underlying

problem. The UN Security Council (SC) plays a pivotal role in this respect, but the effectiveness of the SC has been hampered by various political and legal factors.

To deploy a UN-peacekeeping mission, there is one essential question that has to be answered: what is the legal basis for this mission? Without basis, there will be no mission. A legal basis is obviously an indispensable requirement for such a mission, but other questions, often of a more moral and political nature, have to be answered as well. The UN-charter and SC resolutions constitute the legal basis for military missions under UN-mandate. However, this is, among other things, the case because fundamental questions of a moral nature had been answered earlier on: does the

international community have the duty to stop human rights or humanitarian law violations in different parts of the world by means of peacekeeping missions? This is where R2P comes in, because this is obviously the exact reason that the notion of R2P was conceived.

This neither means that moral reasons can be the basis for UN-peacekeeping missions, because a

1 E.g. A J Bellamy The Responsibility to Protect: a defense (1st edition Oxford University Press 2015); AJ Bellamy, SE Davies & L Glanville The Responsibility to Protect and International Law (1st edition Martinus Nijhoff Publishers 2011); J Hoffmann & A Nollkaemper Responsibility to protect: from principle to practice (1st edition Pallas Publications 2012); W A Knight & F Egerton The Routledge Handbook of the Responsibility to Protect (1st edition Routledge 2012); R Thakur The United Nations, peace and security (1st edition Cambridge University Press 2006) and G Zyberi An institutional approach to the Responsibility to Protect (1st edition Cambridge University Press 2013).

2 Ibid.

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legal basis is always a prerequisite, nor does it mean that by its very nature R2P is always the underlying fundamental principle for peacekeeping missions. It does, however, mean that R2P is a possible basis for peacekeeping missions, and it has, on occasion, more or less been used as such in the past. The distinction between a basis for peacekeeping missions and a legal basis for

peacekeeping missions should not be neglected. The SC could, in one of its resolutions, mention R2P as a reason to deploy a peacekeeping mission; this would not, however, make R2P the legal basis for that UN-peacekeeping mission. The legal basis would be the SC Resolution and R2P would merely function as a basic starting point for that resolution. It has to be borne in mind that the use of R2P as the actual legal basis for a peacekeeping mission would be a completely different thing.

The central question of this thesis is not whether R2P could serve as the legal basis for

UN-peacekeeping missions, although I will pay some attention to this question later on. Resolutions are likely to remain the legal basis for UN-peacekeeping missions, but this does not completely rule out the possibility of a (central) role for the notion of R2P in all this. R2P could, for instance, become the point of departure for SC Resolutions or otherwise play an important role. The central question of this thesis therefore is whether R2P could somehow be applied to UN-peacekeeping missions and how this would affect the current peacekeeping regime. In other words, what would be the legal (and possibly non-legal) consequences of the application of R2P to UN-peacekeeping missions?

The main focus of this thesis will be to find out how legal aspects of the current peacekeeping regime will be affected by a more influential role for R2P. This does not mean that non-legal aspects will be completely excluded: factors like international politics cannot be ignored in this respect on account of the paramount role they play when it comes to issues of international peace and security. In addition, other (fundamental) UN-principles might be affected by the implementation or use of R2P, or new (legal) issues might emerge.

To answer the aforementioned matters, several sub-questions will be answered, either briefly or more elaborately. Chapter 1 will deal with some history of the concept of R2P and it will answer what exactly the notion of R2P entails. Chapter 2 will discuss the current UN-peacekeeping regime in order to establish the basic principles of the current system. Chapter 3 will assess the legal issues that would arise when applying R2P to UN-peacekeeping missions. Please note that when I talk about UN-peacekeeping missions this may also include peacebuilding and peace-enforcement missions and not only peacekeeping missions in the traditional meaning that the UN gives to the term. I will also use the term 'peace-operation' to refer to all these types of missions. I will

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specifically mention the word 'traditional' when I am talking about the traditional UN-peacekeeping missions. Chapter 4 will describe the role that the SC and General Assembly (GA) may play in this process. Chapter 5 will depict some cases in which R2P was involved. Finally, chapter 6 will discuss R2P as a possible legal basis of future UN-peacekeeping missions.

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1. The Responsibility to Protect (R2P)

The concept of R2P was elaborated on by the International Commission on Intervention and State Sovereignty (ICISS). In December 2001, the ICISS compiled a report on a new approach to the intervention dilemma. This 'new approach', R2P, was supposed to shed some light on the old problem of (humanitarian) intervention. The reason for this new approach was the changing

international environment.3 The issues of new international actors, new security problems and new demands and expectations of the international community had to be addressed.4 The ultimate goal of the ICISS was to develop a 'rule' that would allow the international community to effectively deal with conflicts in the world where human rights and humanitarian law were violated on a large scale and at the same time resolve state sovereignty issues.

R2P was not only based on the belief that the international community had a moral responsibility to prevent and resolve escalated conflicts; the Commission also stressed that “the failure of prevention can have wide international consequences and costs”.5 The ICISS expressly acknowledged that an intervention can only take place in extreme cases.6 The report further discussed a wide array of topics concerning the application of R2P.

The following paragraph will give an overview of the core principles of R2P as established by the ICISS.

The Commission states that state sovereignty remains an important norm of public international law that must, in principle, be respected. However, state sovereignty “implies responsibility, and the primary responsibility for the protection of its people lies with the state itself.”7 As a result, the principle of non-intervention yields to the international responsibility to protect if a state is unwilling or unable to protect a population from serious harm that is caused by armed conflict, repression or state failure.8

The ICISS mentions several elements that function as the foundations for R2P: obligations inherent in the concept of sovereignty, the responsibility of the Security Council to maintain international peace and security, specific legal obligations under international human rights law, international

3 ICISS, 'The Responsibility to Protect, Report of the ICISS', december 2001,

<http://responsibilitytoprotect.org/ICISS%20Report.pdf> (30-04-2015), 3. 4 Ibid. 5 Ibid, 19. 6 Ibid, 31. 7 Ibid, XI. 8 Ibid.

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humanitarian law and national law and developing practice of the SC, states and regional organizations.9

The Responsibility to Protect is divided into three subcategories.

The Responsibility to Prevent addresses the root causes of the armed conflict.10

The Responsibility to React refers to the actual action undertaken by the international community, such as sanctions and ultimately military intervention in extreme cases.11 Sanctions are an important element of the Responsibility to React and coercive measures must have been applied before states can resort to military action. In fact, sanctions are indispensable for R2P in the sense that they are an important means to avert the use of military force and halt large-scale human rights violations without the use of force. However, sanctions will not be discussed in depth in this thesis because the focus is placed on R2P and UN peace-operations, and UN-peace operations entail the use of force to at least a certain degree.

The Responsibility to Rebuild refers to the assistance of the international community to rebuild the state in question. The Committee emphasises that the preventive part of R2P is essential and should always precede the responsibility to react. Coercive measures can only be applied after preventive measures have been fully exhausted.12

The ICISS also provides a yardstick for military intervention, the so-called 'just cause threshold'. Military intervention can only be warranted in extreme cases: when there is large scale loss of life, with genocidal intent or not, and large scale ethnic cleansing.13

A number of precautionary principles were also established. The intervention must have the right intention, that is to stop the human suffering. The intervention must be the last resort, i.e. preventive measures must have been exhausted. The scale, duration and intensity must be proportional. Finally, the intervention must have reasonable prospects: there must be a reasonable change of stopping the suffering and the consequences of action should not be worse than the consequences of inaction.14

Furthermore, the intervention has to be carried out under the 'right authority'.15 This means that the mission must have been authorized by the SC. Permission to intervene must be sought formally and before the mission is carried out.16 The SC plays a central role in this respect and must therefore 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid, XII. 14 Ibid. 15 Ibid. 16 Ibid.

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promptly deal with emerging situations. The urgency and gravity of the situation must be borne in mind.17

Finally, the ICISS established some operational principles that have to be respected. These include clear objectives, clear and unambiguous objectives, unity of command, common military approach among involved partners, incrementalism in the application of force, clear, precise and proportional rules of engagement, adherence to international humanitarian law, and maximum possible

coordination with humanitarian organizations.18

In 2004, another report expressed support for the use and recognition of R2P. The High-Level Panel on Threats, Challenges and Change, created by then Secretary-General Kofi Annan, showed

appreciation of R2P in its report 'A more secure world: our shared responsibility'. In this report, the Panel stated:

“(...) There is a growing recognition that the issue is not the “right to intervene” of any State, but the “responsibility to protect” of every State when it comes to people suffering from avoidable catastrophe — mass murder and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation and exposure to disease. And there is a growing acceptance that while sovereign Governments have the primary responsibility to protect their own citizens from such catastrophes, when they are unable or unwilling to do so that responsibility should be taken up by the wider international community. (…) We endorse the emerging norm that there is a collective international responsibility to protect (…).”19

During the 2005 General Assembly World Summit, world leaders stipulated that “the international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, (…) to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against

humanity.”20 However, it has to be borne in mind that General Assembly resolutions are not legally binding towards member states.

17 Ibid, XIII.

18 Ibid.

19 Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change, 'A more secure world: our shared responsibilities, 2004, <http://www.un.org/en/peacebuilding/pdf/historical/hlp_more_secure_world.pdf> (30-04-2015)

20 General Assembly Resolution, 2005 World Summit Outcome, 24 oktober 2005,

<http://www.un.org/en/preventgenocide/adviser/pdf/World%20Summit%20Outcome%20Document.pdf#page=30>

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In 2009, the core of R2P was formulated in the Secretary-General's 2009 Report (A/63/677) on Implementing the Responsibility to Protect21. The core is now formed by three pillars:

1. “The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement;

2. The international community has a responsibility to encourage and assist States in fulfilling this responsibility;

3. The international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations.”22

For this thesis, the third pillar is the most germane, since UN-peacekeeping missions fall into the category of collective action of the international community. UN-peacekeeping missions are a last resort in this respect, because military action can only be carried out in extreme cases.

The third pillar of R2P “defines the responsibility of the international community to take collective action in a timely and decisive manner, on a case-by-case basis, and in accordance with the UN-Charter.”23 The third pillar does not solely include sanctions or military measures, but also pacific measures and collaboration with (sub) regional organisations, with an emphasis on

“complementarity between all measures.”24 This is also the main difference with humanitarian intervention.

The UN is a key actor with regard to R2P, as well as regional organisations, member states and the ICC.25 These actors help to ensure stability; for instance, the ICC “works to prevent impunity”26. Measures under the third pillar can vary from fact-finding missions to preventive diplomacy, travel

21 Secretary-General's 2009 Report (A/63/677) on Implementing the Responsibility to Protect,

<http://www.un.org/en/ga/search/view_doc.asp?symbol=A/63/677> (30-04-2015).

22 United Nations Office of the special adviser on the prevention of genocide, 'Responsiblity to Protect',

<http://www.un.org/en/preventgenocide/adviser/responsibility.shtml> (30-04-2015).

23 International Coalition for the Responsibility to Protect, 'Clarifying the third pillar of the Responsibility to Protect: timely and decisive response',

<http://responsibilitytoprotect.org/Clarifying%20the%20Third%20Pillar%20of%20the%20Responsibility%20to%2

0Protect_Timely%20and%20Decisive%20Response(1).pdf> (28-07-2015).

24 Ibid. 25 Ibid. 26 Ibid.

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bans, trade embargoes and military deployment.27

R2P is still being criticized, despite the 2009 Secretary-General's Report. Some states still regard R2P “as a cover for neo-imperialist humanitarian intervention by powerful Western states”.28

Gareth Evans identifies several misunderstandings about R2P.29 He explains how R2P is not “just another name for humanitarian intervention”30, because humanitarian intervention focusses merely on military intervention, whereas R2P emphasizes prevention as well.31 He also stresses that R2P does not always mean the use of coercive military force, because ultimately the 'just cause

threshold' needs to be taken into account.32 Moreover, he identifies the misunderstanding that “R2P applies only to weak and friendless countries, never the strong”33 and notes that even the most powerful countries are not immune to diplomatic (peer) pressure and sanctions.34 In addition, he points out that R2P does not cover all human protection issues, because “human security”35 issues like HIV/AIDS , land mines and drastic climate change fall outside the scope of R2P.36

Ekkehard Strauss sees the UN as an important actor to implement R2P.37 R2P could “make existing legal obligations more effective and overcome the fundamental deficit in the current application of the international legal obligations”.38

China is perceived to be one of the main opponents of R2P.39 China does not accept a right to intervene over the principle of sovereignty.40 Chinese diplomats argued that “developing countries accepted international law developed in the West for hundreds of years as normative framework to conduct their international relations, because fundamental principles of the legal system reflected

27 Ibid.

28 United Nations University, 'The Responsibility to Protect', <

http://unu.edu/publications/articles/responsibility-to-protect-and-the-protection-of-civilians.html>, (30-04-2015).

29 G Evans The Responsibility to Protect: ending mass atrocity crimes once and for all (1st edition Brookings Institution Press 2008). 30 Ibid, 56. 31 Ibid. 32 Ibid, 59. 33 Ibid, 61. 34 Ibid. 35 Ibid, 65. 36 Ibid, 64.

37 E Strauss The emperor's new clothes? The United Nations and the implementation of the Responsibility to Protect (1st edition Nomos 2008).

38 Ibid, 40. 39 Ibid, 47. 40 Ibid.

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values they had been fighting for, including sovereignty (...)”.41 Algeria observed that R2P is

'extremely difficult to distinguish from the idea of humanitarian intervention'.42 According to Egypt, 'the legal underpinnings of the theory remained unclear'.43 Other states, like Tanzania, Venezuela, Colombia and Vietnam underscored that R2P would only be in the interest of the stronger states.44 Proponents of R2P emphasised the authority of the SC when it comes to military action and stressed the conditions that have to be met in order for a military intervention to take place.45 States like San Marino, France, Japan, Norway and New Zealand supported R2P based on aforementioned

arguments; however, Russia denied that international law provides for notions like R2P.46 The USA declared itself 'prepared to take action', supporting R2P 'in a moral sense', but not as an obligation.47

41 Ibid.

42 UN doc. A/59/PV.86, p. 9 in C Focarelli, 'The Responsibility to Protect doctrine and Humanitarian Intervention: too many ambiguities for a working doctrine', Journal of conflict and security law 2008, pp 191-213, p. 202 in T Gazzini & N Tsagourias The use of force in international law (1st edition Ashgate 2012).

43 Ibid, UN doc. A/59/PV.86, p. 13.

44 C Focarelli, 'The Responsibility to Protect doctrine and Humanitarian Intervention: too many ambiguities for a working doctrine', Journal of conflict and security law 2008, pp 191-213, p. 203 in T Gazzini & N Tsagourias The use of force in international law (1st edition Ashgate 2012).

45 Ibid. 46 Ibid, 204. 47 Ibid.

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2. The current UN-peacekeeping regime

The current UN-peacekeeping regime mostly revolves around one very important actor: the Security Council (SC). Under article 39 of the UN-charter, the SC has the authority to “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.” The SC may decide to impose sanctions not involving the use of armed force on the parties concerned (article 41), and if that does not have the necessary effect the SC may decide to use armed force to restore international peace and security (article 42). Article 42 is a core provision, since it authorizes the SC to use armed force and thus it is an important provision regarding UN-peacekeeping missions that involve the use of armed force.

If the SC has established that there is a threat to the peace, it can adopt a resolution that contains all the relevant aspects and details regarding that threat to the peace and the measures that shall be taken. Resolutions under Chapter VII of the charter are legally binding (article 25 of the UN-charter). Those resolutions can thus also serve as the legal basis for UN-peacekeeping missions. However, it depends on the type of peacekeeping mission whether or not the resolution is the actual legal basis for the mission; host state consent can also serve as a legal basis.48

The General Assembly (GA) can also adopt resolutions to initiate traditional peacekeeping missions. Ultimately, authorization of the SC is always required if a peace-operation has more impact than the traditional UN-peacekeeping missions with host state consent. Nonetheless, if a peace operation is a traditional UN-peacekeeping mission with a limited mandate, and thus clearly not a peace-enforcement operation with a broad mandate to use force beyond self-defence, the GA can establish such a mission without the authorization of the SC, but only if the host state has consented to that mission (which is a prerequisite for traditional UN-peacekeeping missions).49 This can be deduced from the Certain Expenses case, in which the ICJ decided that the GA had the authority under the UN-charter to establish and carry out UN-peacekeeping missions (in this case

48 C Gray, 'Host-state consent and United Nations peacekeeping in Yugoslavia', Duke Journal of comparative and international law, vol. 7:241, <http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1379&context=djcil> (23-07-2015), p. 241.

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UNEF) and that imposing coercive measures was not an exclusive power belonging solely to the SC, but accruing to the GA under certain circumstances as well.50

The possibility of peacekeeping missions is not expressly mentioned in the UN-charter. They are therefore also referred to as 'chapter 6-and-a-half' missions, because they fall between chapter 6 (pacific settlement of disputes) and chapter 7 (actions with respect to threats of the peace, breaches of the peace and acts of aggression).51

There are several kinds of peace operations.

Traditional peacekeeping is the oldest type of operations. It requires a ceasefire or

peace-agreement between the belligerent parties that can be enforced by the UN-peacekeeping troops. It is very important for the functioning of the mission that the belligerent parties have consented to the operation. Traditional peacekeepers are not allowed to use armed force except in cases of self-defence.52 They are supposed to be impartial and neutral, and shall only passively enforce the peace, mostly by separating the two parties by means of a neutral zone. Traditional peacekeeping is not supposed to “give an advantage to either side involved in the conflict.”53

Peace-enforcement54 or robust peacekeeping55 is more drastic and requires a broader mandate. These missions rely less on consent of the belligerent parties, although consent of the parties is always beneficial.56 Use of armed force is permitted beyond self-defence, but troops must comply with rules of engagement. Neutrality and impartiality are less important.57 On the contrary, a peace-enforcement missions may side with one party and actively assist that party if that is deemed necessary to restore international peace and security. A clear example of peace-enforcement is the UN-mission in Sierra Leone.58

50 Certain Expenses of the United Nations, International Court of Justice, 1962 I.C.J. 151, 167-168.

51 Peace and collaborative development network, 'Evolutions on peacekeeping: the UN's constraints to global conflict resolution', <

http://www.internationalpeaceandconflict.org/profiles/blogs/evolutions-of-peacekeeping-the#.VUi48RCSyM5>, (05-05-2015).

52 S Chesterman, T M Franck & D M Malone Law and practice of the United Nations; documents and commentary (1st edition Oxford University Press 2008) 269.

53 Ibid.

54 T D Gill Legal characterization and basis for enforcement operations and peace enforcement operations under the Charter in T D Gill & D Flecks The handbook of the international law of military operations (1st edition Oxford University Press 2010) 81.

56 Ibid.

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enforcement operations should not be confused with enforcement-operations. Peace-enforcement operations are operations authorized by the SC and conducted under the auspices of the UN; enforcement-operations, on the other hand, although authorized by the SC, are not

conducted under UN-auspices.59 Examples of enforcement-operations are Korea (1950-1953) and the First Gulf War (1990).60

Peacebuilding may take place after a peacekeeping or peace-enforcement mission. The aim of

peacebuilding is to 'rebuild' a country in order to make sustainable peace possible. At the same time, peacebuilding will reinforce unstable peace situations. Political and legal institutions can be

reorganized and reshaped. These missions rely less on military personnel and the focus is more on development, policing and human rights.61

The role of peacebuilding has become increasingly important over the past few years.

The UN always depends on its member states to provide military and civilian personnel.

The importance of principles like neutrality and impartiality, non-use of force and host state consent has slightly diminished, especially in cases of peace-enforcement. However, they still retain their value and importance for peace-operations. The degree to which these principles apply depends on the type of peace-operation.

edition Oxford University Press 2008) 270.

60 Ibid, 82.

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3. The legal aspects of the application of R2P to UN-peacekeeping missions

This chapter will examine the legal aspects of the application of R2P to UN-peacekeeping missions. It has to be said that some aspects mentioned here are not only of a legal nature, but also of a

political nature, or a combination of both.

To reiterate: even though I will use the term R2P constantly, I am actually mostly referring to the third pillar of R2P here, and not the whole concept. I am referring to the 'responsibility to react', which is the third pillar of R2P that deals with the ways that the international community ought to react to the failure of a state to protect its population from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement. The use of force falls under the third pillar of R2P since UN-peacekeeping missions are likely to involve the use of armed force to some degree.

First, I want to briefly discuss some objections that states have or have had against the concept of R2P as a whole (so not solely the third pillar). Many objections can be traced back to issues relating to state sovereignty, on which I will elaborate below. One counter-plea against R2P (that also has a nexus to the issue of state sovereignty) is that the concept of R2P is an imposition of the 'Western world' on the 'non-Western world'.62 Frazer Egerton rebuts this argument by observing that “the ICISS was self-consciously globally representative and consulted extremely widely”63. Egerton continues by saying that this kind of criticism tends to come from countries that are or have been heavily criticized for their lack of democracy and human rights violations, like Cuba, Algeria and Egypt.64 In addition, support for the notion of R2P can be found not only in the Western world, but also in non-Western countries.65 Representatives of, amongst others, Ghana, Rwanda and Tanzania have expressed their support for R2P, along with several NGOs and global organizations.66

62 F Egerton What is right with R2P? in W A Knight & F Egerton The Routledge Handbook of the Responsibility to Protect (1st edition Routledge 2012) 80.

63 Ibid. 64 Ibid. 65 Ibid, 81. 66 Ibid, 81.

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Another frequently mentioned argument against R2P is that R2P is a “tool of the powerful”67. Inequality between states in terms of economic, military or political power could lead to crooked application of R2P68, or even worse, abuse of R2P by powerful states. International politics also play an important role in this respect. States like Russia and China are frequently criticized for their human rights violations, yet no state would seriously consider invoking R2P against those powerful states (apart from the virtual impossibility that this invocation would be successful considering the fact that Russia and China both have the power to veto).69 The ICISS took this into account by creating the 'reasonable prospects' requirement: military action must have a reasonable change of success to halt or avert the atrocities and the intervention for humanitarian purposes cannot be justified if it triggers an even larger conflict.70 In situations like these, however, states could resort to R2P-measures that are more apt and effective, like economic sanctions or diplomatic pressure. R2P offers less drastic options for politically sensitive situations as well.71 The possible uneven application of R2P is inevitable, since uneven power between states are part and parcel of

international politics and thus international law.72 On the other side of the spectrum, this inequality between states can also be used in a beneficial way: it allows the powerful to defend the less powerful.73

These objections are ultimately based on one major argument that cannot be easily be refuted: the argument that R2P is an assault on state sovereignty. This is not only a problem for the concept of R2P as a whole, but also for the application of R2P to UN-peacekeeping missions. This problem will not arise if the host state consents to a UN-peace operation. However, if the host state does not consent, a UN-peace operation will be an infringement of state sovereignty that requires (legal) justification.

Naturally, the principle of state sovereignty goes hand in hand with the principle of non-intervention (article 2 (7) charter) and to some extent the prohibition on the use of force (article 2 (4) UN-charter).

The principle of non-intervention has a solid basis in the UN-charter and is a deeply rooted norm of public international law. State sovereignty is a corollary of the principle of non-intervention. It is

67 Ibid. 68 Ibid. 69 Ibid, 82.

<http://responsibilitytoprotect.org/ICISS%20Report.pdf> (30-04-2015), 37.

72 Ibid. 73 Ibid.

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therefore a potential problem for every application of R2P , including UN-peace operations.

The ICISS also anticipated the potential clash between R2P and state sovereignty. It recognized that state sovereignty and national freedom are important principles that cannot be lightly set aside; sovereignty 'still mattered'. 74 However, it once again stressed how the international environment has changed since 1945 and emphasised the responsibilities of states in the realms of human rights and human security.75 The Commission finally noted:

“The defence of state sovereignty, by even its strongest supporters, does not include any claim of the unlimited power of a state to do what it wants to its own people. (…) It is acknowledged that

sovereignty implies a dual responsibility: externally – to respect the sovereignty of other states, and internally, to respect the dignity and basic rights of all the people within the state. (…) Sovereignty as responsibility has become the minimum content of good international citizenship”.76

Even so, there are still countries, mostly smaller, developing countries, that challenge R2P. This problem must be overcome in order for R2P to be globally accepted.77 Often, the debate boils down to arguments involving the North-South divide.78

Objections against R2P should not be taken lightly, because they are very understandable concerns from the point of view of states that were once subject to colonialism.79 Moreover, not only the less powerful states have expressed their objections, but also major military powers like the United States have been hesitant to accept R2P unconditionally, albeit for different reasons. States with great military capacity tended to be reluctant about the possibility of having to deploy their troops in situations where their national interests are not directly at stake.80 For the aforementioned reasons, the possibility of a compromise, 'R2P lite'81, has been proposed. This 'R2P lite' pays attention to the limits of both military intervention and state sovereignty. Nevertheless, this watered-down variant of R2P would inevitably raise new questions and interpretation issues.

75 Ibid. 76 Ibid, 8.

77 EC Luck, Sovereignty, Choice and the Responsibility to Protect in AJ Bellamy, SE Davies & L Glanville The Responsibility to Protect and International Law (1st edition Martinus Nijhoff Publishers 2011) 14.

78 Ibid. 79 Ibid, 20. 80 Ibid, 22. 81 Ibid, 23.

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Ultimately, it comes down to one question: is sovereignty absolute? The prevailing opinion is that sovereignty is not absolute, a notion that is clearly confirmed by R2P.

However, the relation between R2P and state sovereignty is not solely contradictory. Sovereignty is the primary way of a state to protect its population. R2P recognizes this by acknowledging that the state has the primary responsibility to protect its civilians. R2P does not challenge state sovereignty per se but “seeks to reinforce one of the essential elements of statehood and sovereignty: the

protection of people from organised violence”82. One should keep in mind that the aim of the first and second pillar of R2P is to encourage states to exert their sovereignty responsibly and to stimulate the international community to assist sovereign states in doing so, respectively.

Sovereignty must be 'earned' by a state by ensuring the protection of its civilians.83 Nonetheless, finding the right balance between R2P and state sovereignty is a 'tricky business' that requires meticulous attention to detail.

The role of UN-peace operations are special in this respect. They are different from violations of state sovereignty by other states, even if authorization of the SC is obtained by the violating state. One advantage for UN-peace operations is that UN operations are by definition authorized by the SC, otherwise the mission would not be deployed at all. More importantly, UN operations are likely to have more public support, simply because virtually all sovereign states are Member States of the UN. In practice, the situation is obviously a bit more complicated because of the special role of the SC; not all Member States are in the SC, and the role of the P5 is pivotal. Either way, UN

operations based on R2P principles that infringe on state sovereignty are more probable to be

accepted by the international community by reasons of legality and legitimacy. Infringement of state sovereignty by another state (not under the auspices of the UN) may be perceived as less legitimate by the international community, even if formal authorization of the SC was obtained and the legality thus cannot be contested.

The combination of R2P and UN-peacekeeping missions creates issues with regard to state responsibility as well. Article 43 of the UN-charter stipulates the following: “All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special

82 Ibid, 17.

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agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.”

There exists no such thing as a UN army; therefore, the Security Council relies on contributions of member states for armed forces. As a result, the SC essentially depends on the willingness of member states to contribute anything that is needed for military action under UN auspices. However, there is no legal obligation for member states to contribute; the Charter states that

member states shall 'undertake to make available'. In other words, member states must endeavour to provide to the SC as many troops or (military) material as they possibly can. This is very different from a legal obligation, though, since the SC cannot compel (one of the) member states to make armed forces available for a UN-peace operation; the member states can merely be 'asked to contribute personnel required for each operation'.84

This situation could drastically change if R2P would become the leading principle to embark on UN-peace operations. In that case, the UN, but also the member states individually, would have a responsibility to react.85 This responsibility to react, and in extreme cases, to intervene militarily, would leave less leeway for member states when the SC calls on them in the sense of article 43 UN-charter. They would have less freedom not to contribute; their endeavour would turn into a duty. One could argue that article 43 UN-charter would no longer leave much wiggle room for member states, but instead would impose a legal obligation on member states individually.86

For the current state of affairs, this, of course, is nothing more than a hypothetical situation. It would be one of the more extreme consequences that a full implementation of R2P could create. However, questions of this nature have to be anticipated because they have the potential to create far-reaching consequences for other areas of public international law. The hypothetical situation of a legal obligation for member states, for instance, could create complicated issues pertaining to state responsibility law. After all, if member states have a duty or even a legal obligation to react, what would happen if they fail to do so? Would affected states be able to invoke the principles of state responsibility against the states that failed to act?87 Would the states that fail to act be liable, and if so, would they be liable individually or would there be a shared responsibility?88 And towards

84 United Nations, 'Forming a new operation', <http://www.un.org/en/peacekeeping/operations/newoperation.shtml>, (23-07-2015).

86 A Gattini Breach of international obligations in A Nollkaemper & I Plakokefalos Principles of shared responsibility in international law: an appraisal of the state of art (1st edition Cambridge University Press 2014) 34.

87 H P Aust Circumstances precluding wrongfulness in A Nollkaemper & I Plakokefalos Principles of shared responsibility in international law: an appraisal of the state of art (1st edition Cambridge University Press 2014) 198.

88 A Gattini Breach of international obligations in A Nollkaemper & I Plakokefalos Principles of shared responsibility in international law: an appraisal of the state of art (1st edition Cambridge University Press 2014) 52.

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whom would they be liable? Only to the affected states, or to the UN, or to the international community as a whole?

Again, these situations are very hypothetical, but the nature of these potential issues are serious enough to call for some contemplation. If someone has to take the 'blame', then the UN member states are the most likely candidates to do so. After all, the UN as an organization enjoys immunities that make it almost impossible to hold the organization responsible for acts of a public law nature. Claims of a private law nature against the UN as an organization have more change to be

successful, but of course a liability on grounds of R2P would go much further than that.

Another fundamental UN principle that may be affected in one way or another by the application of R2P to UN-peacekeeping missions is the principle of self-determination.89 This principle is laid down in article 1 (2) of the UN-charter, which is also an indication of how fundamental this principle is to the UN. It is listed under the subheading called 'the purposes of the United Nations'. Application of R2P to UN-peace operations could violate this principle just like the principle of state sovereignty could be violated; paradoxically, R2P can also reinforce the right to self-determination. A UN-peace operation can infringe on the right to self-determination because meddling in the domestic affairs of a country will restrict the freedom of those people to do what they want and to determine their own faith.90 This is only in specific situations; not every

intervention is a violation of the right of self-determination, but often rather a violation of state sovereignty.91 If a minority in a specific country, say an ethnic minority, is fighting the government for more rights, independence, or their own land, and a UN-peace operation (based on R2P)

intervenes on the side of the government to restore peace in that country, then that could be a violation of the right to self-determination of that ethnic minority. On the other hand, if the UN forces intervene on the side of that ethnic minority, it can reinforce the right to self-determination of those people.92 In that case, it would rather confine the state sovereignty of that country.

Once again, violation of self-determination by means of a UN-peacekeeping mission would be different from a violation of that principle by an arbitrary single state, because self-determination is prominently embodied in the UN-charter. Infringement of a UN principle by a single state would be a dire thing, but infringement of a UN principle by that very organization under its own auspices would be a few steps further. This does not mean that a potential violation of the right to

89 A J Bellamy The Responsibility to Protect: a defense (1st edition Oxford University Press 2015) 46. 90 Ibid.

91 Ibid.

92 Sean Butler, Edinburgh postgraduate law school, 'Self-determination: new challenges & perspectives',

<http://www.lawphdconference.ed.ac.uk/2014/11/19/self-determination-new-challenges-perspectives/>,

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determination could never be justified; the principle of R2P and the rest of the UN-charter offer ample opportunity for legal justifications in different situations.93

When looking at the principle of self-determination, one should be aware of the danger of double standards. Incidentally, this is also a major potential risk for R2P as a whole.94 Applying R2P and intervening in one country or situation and refraining to do so in another country or (similar) situation will be scrutinized by critics, and rightly so. Making distinctions in the application of R2P can be justified, but it has to be done on the right grounds. Why was R2P applied in the case of Libya but not in other conflict areas in the Middle East and Africa? It can hardly be denied that international politics play a role in this matter.95 For every potential R2P situation, a deliberation has to be made whether or not to apply R2P, and for which reasons. Similarly, this is a risk for the right of self-determination. Why decide to curtail the right of self-determination by using R2P and deploying a UN-peace operation in one country and not in the other? Why favour one country, region or the protection of a certain ethnic group over the other? In the case of self-determination, this can be especially sensitive, because preferable treatment of certain peoples or ethnicities are delicate topics, even if one acts with good reason and intent. Since almost all countries of the world are UN member states, and the UN promotes equal rights for everyone, deploying a

UN-peacekeeping mission that could potentially violate the right of a certain people to self-determination must be puzzled out meticulously.

These are problems created by the application of R2P to peacekeeping missions that affect UN-peace operations in a broad sense, or that affect general UN-principles that have a connection with UN-peacekeeping. However, there are also specific principles pertaining to UN-peacekeeping that will be influenced by the application of R2P. These principles form the core of UN-peacekeeping missions, or at least peacekeeping missions in the traditional sense. Their importance may have slightly diminished, although this depends heavily on the type of UN-peace operation

(peacekeeping, peace-enforcement or peacebuilding). However, the application of R2P may affect these traditional principles even further. The following paragraphs will therefore examine the effect of R2P on traditional UN-peacekeeping principles: impartiality and neutrality, the non-use of force and host state consent to UN-peace operations.

R2P does not deliberately try to alter the purport of traditional UN-peacekeeping principles; it was

93 A J Bellamy The Responsibility to Protect: a defense (1st edition Oxford University Press 2015) 48. 94 Ibid, 134.

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expressly mentioned by the ICISS that “there is no better or more appropriate body than the United Nations Security Council to authorize military intervention for human protection purposes”.96 It can be deduced from these words that the UN and its primary bodies will retain their pivotal role when it comes to issues of human protection and thus fundamental principles of the UN and its bodies must be maintained.

Nonetheless, it could unintentionally change the foundations of peacekeeping incrementally; one might also argue that the process of change has already started and that R2P will only speed up that process. The argument for the existence of the process of change would be that UN-peacekeeping missions have gradually evolved from strictly peacekeeping, i.e. separating the belligerent parties, to more and more peace-enforcement, i.e. more forceful peacekeeping with a broader mandate and more authority for UN-peacekeepers (or peace-enforcers) to use force beyond self-defence. The mixed results, or even failure, of several traditional peace-keeping missions were the main reason to give peace-keepers a broader mandate and thus peacekeeping missions were gradually turned into peace-enforcement missions on several occasions. Peacekeepers in the traditional sense of the word were only lightly armed and were only permitted to use force in self-defence; in practice, those mandates turned out to be untenable and the cause of escalated situations on a number of occasions.

The results of the ONUC (Opération des Nations unies au Congo, UN-peacekeeping mission in the Congo in the 1960s), for instance, were so mixed that many considered the result of the mission to be tantamount to defeat.

However, this single mission is a clear example of how UN-peacekeeping missions, or in this case one single mission, can evolve. At first, the mandate for ONUC was quite limited; use of force was not permitted beyond the purpose of self-defence and the objectives were “to ensure the withdrawal of Belgian forces from the Republic of the Congo, to assist the Government in maintaining law and order and to provide technical assistance.”97 Later on, when the situation exacerbated and, as a result, the mission was in danger of escalation, the initial mandate was deemed untenable and subsequently changed. The mandate of ONUC was then “modified to include maintaining the territorial integrity and political independence of the Congo, preventing the occurrence of civil war and securing the removal from the Congo of all foreign military, paramilitary and advisory

personnel not under the United Nations Command, and all mercenaries.”98 In its mandate, the

<http://responsibilitytoprotect.org/ICISS%20Report.pdf> (23-07-2015), XII.

97 United Nations, 'Republic of the Congo – ONUC mandate',

<http://www.un.org/en/peacekeeping/missions/past/onucM.htm>, (22-05-2015).

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permissibility of the use of force by ONUC-peacekeepers was explicitly changed by SC Resolution 161 (1961) from use of force only permitted in situations of self-defence to “take immediately all appropriate measures to prevent the occurrence of civil war in the Congo, including arrangements for ceasefire, the halting of all military operations, the prevention of clashes, and the use of force, if necessary, in the last resort".99 Later on, the mandate was expanded once again by SC Resolution 169 (1961). This Resolution authorized ONUC "to take vigorous action, including the use of the requisite measure of force, if necessary, for the immediate apprehension, detention pending legal action and/or deportation of all foreign military and paramilitary personnel and political advisers not under United Nations Command, and mercenaries".100 The mandate was thus expanded on a number of occasions.

As mentioned before, R2P may speed up this process of 'evolving' peacekeeping missions. It will still depend on the type of peace-operation, though, because traditional peacekeeping missions can still be effective in specific situations, whereas in other situations peacebuilding will be the most apt type of mission. The importance of the principles of neutrality and impartiality, non-use of force and host state consent will therefore differ for every type of peace-operation. I will now examine how R2P might affect these principles for every kind of peace-operation.

The aforementioned principles of neutrality and impartiality, host state consent and non-use of force are the cornerstones of traditional UN-peacekeeping missions (see chapter 2). Without those

cornerstones, the functionality of the peace-keeping mission would cease to exist.

The application of R2P to traditional peacekeeping missions is not very likely to change the principles of impartiality and neutrality. Granted, they may loose some of their value, but traditional peacekeeping still requires the separation of two belligerent parties. For that purpose, neutrality and impartiality are still very important;101 creating a buffer zone between the two parties will not leave much room for different treatment of the two parties. Actually separating the two parties might require force, but in that case the mission would lean more towards a peace-enforcement mission. A traditional peacekeeping mission is the most viable option in case the two parties are already separated, by means of a peace-agreement or a cease-fire.102 In that case, the next step will be to establish a more sustainable peace between the belligerents. Because a peaceful solution is crucial

99 Ibid. 100 Ibid.

101 R Murphy UN Peacekeeping in Lebanon, Somalia and Kosovo: operational and legal issues in practice (1st edition Cambridge University Press 2007) 9.

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at that point, the UN-troops cannot afford to lose their neutral status, because that will only hamper the negotiations. R2P will not necessarily change this.

This is a bit different for the principle of host state consent. In this case, two situations are conceivable. The first is that the two parties are already separated by some kind of agreement. In that case, the UN might have already been involved in the negotiations. In any case, host state consent will be crucial in this case because the oft-times vulnerable situation will depend on the willingness of the fighting parties to uphold the truce.103 Setting up a UN-force to enforce the truce will take time, and in the meantime the belligerent parties must be prepared not to violate the peace-agreement.

The second scenario is that the belligerent parties have been separated by force by a UN-peace enforcement action or an enforcement action by one or several militarily powerful states with authorization of the SC and the operation is subsequently 'reduced' to a peacekeeping mission to monitor the established buffer zone. In this scenario, host state consent is still important and certainly beneficial, but it is not paramount.104 If it is necessary to separate the parties by force, consent was most likely not given by the host state in the first place; during the peacekeeping phase, consent of the parties will make it easier for the peacekeepers to maintain the buffer zone. Naturally, if consent is not obtained, the peacekeeping force may need to be militarily stronger to prevent the two parties from clashing again.105 The main difference with the first scenario is that in the second scenario, the UN will already have armed forces on the ground because of the initial enforcement action; these forces will make it easier to enforce the truce during the transitional period between the enforcement action and the peacekeeping phase without the consent of the parties involved. The (non) use of force will depend on the applicability of the other principles. The more neutrality and impartiality are required, the less likely it is that the UN-forces are permitted to use force. The absence of host state consent will increase the change that UN-forces will have to use armed force against (one of) the parties.106 Thus, R2P does not affect these principles drastically either; in fact, R2P does not change traditional UN-peacekeeping missions that much because of the special character of traditional peacekeeping missions.

The importance of these basic UN-peacekeeping principles is very different when R2P is applied to another type of UN-peace operations: the UN peace-enforcement operation. Neutrality and

103 Ibid, 7.

104 Ibid, 9. 105 Ibid, 198. 106 Ibid, 149.

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impartiality, non-use of force and host state consent are less important for this type operation107; however, it has to be said that this is also on account of the very nature of this type of operation. Nevertheless, like I argued before, the application of R2P can debilitate these principles even more for UN-enforcement operations.

Neutrality and impartiality are principles that are likely to be neglected for peace-enforcement missions. Peace-enforcement requires the use of force most of the time, and this has to be directed against one of the parties. For this reason, the UN sometimes has to choose a side in the conflict and shape the peace-enforcement operation accordingly. This has been done in the past.108 The conduct of one party will be condemned and the peace-enforcement operation will essentially consist of the actual fighting of that party.109 R2P may reinforce this trend simply because the use of R2P will compel the UN to choose a side, namely against the government of a certain state. This is a corollary of R2P, because the whole point of that concept is that the international community acts against the governments of sovereign states if it fails to protect its population. In fact, if diplomatic means or sanctions against that state fail, the international community, embodied by the UN, has the responsibility and thus the duty to use force (although as a last resort) against that state if that is what it takes to avert a humanitarian disaster.

The same goes for host state consent; the very nature of peace-enforcement makes host state consent less vital, because one of the belligerent parties must be stopped, even if this must be done without the consent of the state in question.110 Applying R2P to peace-enforcement operations will debilitate this principle further. Again, that is the whole idea of the concept of R2P. Usually, consent of the host state would be an exception to the rule of non-intervention, but R2P creates another exception. If a state manifestly fails to protect its population, this more or less amounts to giving up their exclusive state sovereignty. It exempts the international community of the principle of non-intervention. The state has been warned before, by sanctions or international pressure, and at a certain point it no longer has a say in what is going to happen on its own territory. Their consent is no longer required and their exclusive sovereignty no longer protects that state.111

This reasoning is not any different for the use of force. In practice, a real peace-enforcement operation cannot be conducted without the use of force.112 If force was not being used, it would be

107 Ibid, 9.

108 Peace and collaborative development network, 'Evolutions on peacekeeping: the UN's constraints to global conflict resolution', <

http://www.internationalpeaceandconflict.org/profiles/blogs/evolutions-of-peacekeeping-the#.VUi48RCSyM5>, (05-05-2015).

110 Ibid, 63. 111 Ibid, 36. 112 Ibid, 9.

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more apt to describe the mission as a traditional UN-peacekeeping mission. Again, the use of force is part of the very nature of peace-enforcement missions. Military intervention as a last resort is implied in the last pillar of R2P. Moreover, it is expressly mentioned by the ICISS.113 Once more it can be argued, deliberately without discussing whether this is a positive or a negative development, that R2P speeds up the process of debilitation of traditional UN-peacekeeping principles, in this case the principle of non-use of force.

The last type of UN-peace operation that will be discussed is peacebuilding. As discussed in chapter 2, peacebuilding is, in certain respects, very different from the other two types of peace-operations.114

Therefore, not all UN-peacekeeping principles can be applied to peacebuilding. The principles of impartiality and neutrality and non-use of force obviously cannot be applied to peacebuilding, because of the specific character of this type of mission. The principle of state consent, however, can be applied to peacebuilding missions. Naturally, the consent of the host state is of crucial importance when it comes to peacebuilding. It will be impossible to rebuild a nation without the consent and cooperation of the local authorities.115 It will be even harder to reorganize and reshape political and legal institutions without the consent of those that will have to operate those

institutions in the near future. R2P does not seem to have much influence in this respect, or at least it does not debilitate the principle of host state consent when it comes to peacebuilding. In fact, the ICISS in its reports warns for the danger of undermining the sovereignty and authority of the local government.116 This respect for the sovereignty of the local authorities implies that those authorities must approve the whole operation and consent to it. The combination of R2P and peacebuilding is thus a special one: R2P does not debilitate fundamental UN-peacebuilding principles (as far as they apply), but reinforces an important peacebuilding principle: host state consent.

In conclusion, it can be seen that R2P has the potential to speed up the process of debilitation of fundamental UN-peacekeeping principles. This is not always the case when we look at traditional peace-keeping and peacebuilding. It is much clearer in UN peace-enforcement missions. It has to be noted, however, that the importance of UN-peace enforcement missions may increase in the future

<http://responsibilitytoprotect.org/ICISS%20Report.pdf> (30-04-2015), XII.

114 A Schnabel The responsibility to rebuild in W A Knight & F Egerton The Routledge Handbook of the Responsibility to Protect (1st edition Routledge 2012) 51.

115 Ibid, 54.

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and it may overstep the traditional UN-peacekeeping as the most important UN-peace operation. This proposition is especially plausible if R2P establishes itself as a public international law norm.

Another issue that could be raised is what would happen if a state revokes the consent given for a UN-peace operation while the operation is still ongoing. Would R2P compel the parties involved in the operation to continue until the objectives of the operation are met? There are no general rules in this respect; however, specific agreements for a certain peace-operation can be made during the negotiation phase. Murphy observes that “the question of whether a peacekeeping force must withdraw if there is a unilateral revocation of host state consent is still a controversial matter which has become more problematic in the context of peace-enforcement operations”117; he also notes that, based on previous experiences, “revoked consent may equate to the termination of the mission”118.

R2P may change this, because intervention by the international community without the consent of the host state is an important element of R2P. The international community would still have the responsibility to intervene, or in this case continue the interference, even if the host state revokes its consent. Naturally, this could only occur under certain circumstances; the gravity of the situation, risk for the local population and the feasibility of the operation without host state consent would be paramount factors.

Two other questions can be raised. First, during which phase is it most important that R2P is mentioned in order for a peace-operation to be based on R2P? Does R2P have to be mentioned in the final SC (or GA) resolution or does it suffice that R2P is the basis for the negotiations that lead to the creation of a resolution for a UN peace-operation? And second, what happens if certain states involved in the peace-operation consent to R2P as the starting point for the operation, but other states do not?

Regarding the fist question, it is obvious that R2P will not be mentioned in the resolution if it did not play a role in the negotiation phase. If it was the starting point during the negotiations, it may be mentioned in the resolution as well. It is unclear if R2P can be seen as the point of departure for a peace-operation if it played an important role during the negotiation phase, but it is not mentioned in the resolution; it is hard to find sources that deal with this issue. The parties involved would most likely still be able to argue that the peace-operation is based on R2P if they want to invoke R2P as

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the basis for an intervention; however, a lot of uncertainties would remain and expressly mentioning R2P in the final resolution could resolve these problems.

The second question is especially complicated as well because of the lack of sources on this topic. There are no cases so far that can help us to answer this problem. Further development of R2P and state practice in the future may give an answer. It is clear, however, that consensus between states about the (legal) basis for a peace-operation is pivotal for the success of a mission; complicated situations may arise if the parties involved fail to reach a clear agreement.

4. The role of the Security Council (SC) and the General Assembly (GA)

This chapter will take a look at the role that the SC and the GA could play in the application of R2P to UN-peace operations. Both the SC and the GA are principal organs of the UN and can therefore exert their influence over this issue. However, it has to be said that the SC has significantly more influence when it comes to topics of international peace and security. The role of the SC is indispensable in this respect, and the GA only plays a secondary role in problems that concern international peace and security. Nevertheless, this does not mean that the role of the GA can be ruled out. The GA can still exert its influence through other methods, which is why its role cannot be neglected in this chapter.

One should also realize that the role of the SC is very important because the failures of the SC to avert humanitarian crises at the end of the 20th century were the reason that the rudiments of R2P were devised in the first place.119 Moreover, the measures laid down in the third pillar of R2P cannot be taken without the authorization of the SC.120

The GA, on the other hand, plays an important role because of its recommendations and its power to interpret existing legal obligations.121

Regional actors play an important role in maintaining peace and security in a certain region. The

119 T D Gill The Security Council in G Zyberi An institutional approach to the Responsibility to Protect (1st edition Cambridge University Press 2013) 83.

120 Ibid, 84. 121 Ibid, 89.

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UN-charter offers the opportunity for the SC to cooperate closely with these regional actors. The SC can authorize regional actors to take the necessary measures, but only if there is a necessary

majority for the SC decision.122 In these cases, R2P can increase the willingness of the SC to authorize action by regional actors, which in turn will lead to increased legitimacy and thus an increased change of success of measures taken by a regional organization. R2P can then add to the political acceptability of action by regional actors.123

For many states, this is one of the reasons that R2P is considered more acceptable than the classic concept of humanitarian intervention. Intervention based on R2P would always go hand in hand with authorization of the SC and thus it would have a legal basis, whereas humanitarian intervention would have a significantly higher risk of not being legally justified.124 The one thing that made humanitarian intervention so questionable was the absence of legal status.125 R2P has the potential to achieve that legal status, although that scenario seems currently far-fetched. However, the authorization of the SC on grounds of R2P would be a step in that direction. Humanitarian intervention used to be based on questionable exceptions to the principle of non-use of force, although state practice shows that the international community does not accept interventions that are loosely based on exceptions to the principle of non-use of force. R2P, on the other hand, is politically more acceptable because it is based on the primacy of the UN collective security system.126 UN-peace operations would also be based on the UN-collective security system and therefore contribute to the legitimacy of those operations. It would be an act of the international community as a whole and not just of a single or several states. Nevertheless, this does not mean that R2P will be a solution to all large-scale violations of human rights, because the inability of the international community to reach consensus on the action that has to be taken may still be a major impediment for the effective functioning of R2P.127

The other side of the coin is that states may decide to intervene militarily in another state in conformity with R2P even though the SC is reluctant or unable to give formal authorization. This could create quite a predicament for the SC, especially if other states acquiesce or even consent to the actions of the intervening state(s). This could potentially undermine the authority of the SC, which is something that requires an adequate solution.128 For that reason, it is vital for the SC to respond quickly to any emerging situation that might be a threat to the peace by making a statement in order to clarify its standpoint on the matter.

122 Ibid, 94. 123 Ibid. 124 Ibid, 96. 125 Ibid, 97. 126 Ibid, 98. 127 Ibid. 128 Ibid, 101.