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The Responsibility to Protect, or

the right of non-interference

The future implementation of the Responsibility to Protect doctrine.

Nikki Leander 5992362 International Public Law University of Amsterdam 31 July 2015 Master Thesis Supervisor: Maarten den Heijer

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Contents

1. Introduction ... 1

2. Methodology ... 3

3. The Responsibility to Protect ... 5

i. The international context ... 5

ii. The International Commission on Intervention and State Sovereignty (ICISS) ... 7

iii. The 2005 UN World Summit ... 8

iv. Developments since 2005 ... 10

v. Status under international law ... 11

4. The Responsibility to Protect in practice ... 13

i. Libya ... 13

ii. Syria ... 19

5. The future of the Responsibility to Protect ... 27

i. Libya and Syria: lessons learned ... 27

ii. Recommendations ... 30

6. Conclusion ... 34

7. Appendices ... 37

- Appendix A: Tabel I. Schematic overview of template for case studies ... - Appendix B: Tabel II. Schematic overview of case study on Libya ... - Appendix C: Tabel III. Schematic Overview of case study on Syria ... 8. Bibliography ... 41

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1. Introduction

“The [Syrian] crisis is a grave test for the United Nations and the world. […] If we are unable to do anything to stop this tragedy, then how can we sustain the moral credibility of

the [UN]? It is high time to say enough is enough.”1

In the late 1940s, the international community claimed that it would “never again” allow the horrors of the Second World War to happen.2 This proclamation was codified in, among others, the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide in 1948.3 Since then however, international community has not been able to respond to genocide and other humanitarian crises in a consistent, clear and timely manner.

The inaction of the international community during the Rwandan genocide in 1994 and the NATO-led military action – without Security Council authorization – in Kosovo in 1999 sparked the debates on the legality and legitimacy of, and need for efficient intervention on humanitarian grounds.4 In the eyes of supporters of humanitarian intervention, the

international community was doing “too little too late”; according to the criticasters the international community was doing “too much too early”.5

What should the world do when faced with such crimes, crimes against humanity and genocide, to protect citizens?

In 2001, the International Commission on Intervention and State Sovereignty (ICISS)

published a report on ‘the Responsibility to Protect’ (‘RtoP’).6 Four years later, world leaders agreed that each individual state has the Responsibility to Protect its own populations against genocide, ethnic cleansing, war crimes and crimes against humanity.7 Agreement was also reached on the responsibility of the international community to encourage and assist states to exercise their individual responsibility, and, if necessary, be prepared to intervene when states

1

Spoken by Vuk Jeremić, the then President of the General Assembly, during the opening of the sixty-seventh General Assembly Plenary 80th & 81st Meetings on 15 May 2013

2

Website UN ‘The Universal Declaration of Human Rights. History of a Document’

3 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948; UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948

4

International Commission on Intervention and State Sovereignty 2001, p. vii

5

UN Secretary General’s High level panel on Threats, Challenges and Change, A more secure world: our shared

responsibility 6

International Commission on Intervention and State Sovereignty 2001

7

UN General Assembly, 2005 World Summit Outcome: resolution / adopted by the General Assembly, 24 October 2005, A/RES/60/1

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are ‘manifestly failing’ to offer an acceptable level of protection to their citizens.8

The doctrine of RtoP represents “the international policy realization” of the statement “never again”.9

Today, humanitarian crises are still occurring. The recent crisis in Syria, to name just one, is an example of an ongoing conflict in which large numbers of civilians are being killed, injured, and tortured and the world is seemingly doing nothing.10 Why was the international community prepared to intervene in the Libyan crisis to protect civilians and is it reluctant to do so in Syria? What does this mean for the future of the doctrine of the Responsibility to Protect and its implementation?

This research aims to answer the following research question: ‘How did the international community apply the Responsibility to Protect doctrine in Libya and Syria, and what lessons can be learned from these cases to improve future operationalization and implementation?’. Therefore, this research will focus on the implementation of the doctrine of the Responsibility to Protect in Libya and Syria. The purpose of this research is to contribute to the academic debates on the (future) implementation of the doctrine of the Responsibility to Protect, but also – and perhaps more importantly – to contribute to the future implementation of the principles in practice by making concrete recommendations.

The following section, chapter two, will briefly discuss the methodological framework of this research. Chapter three provides an (historical) overview of the development of the concept of the Responsibility to Protect, as well as the United Nations (UN) framework in which it developed. Chapter four analyzes the case studies on Libya and Syria. Chapter five will provide a future outlook for the Responsibility to Protect: what lessons can be learned from the case studies and what does this mean for future implementation? Chapter six will conclude this research.

8

UN General Assembly, 2005 World Summit Outcome : resolution / adopted by the General Assembly, 24 October 2005, A/RES/60/1

9

Stark 2011, p. 2

10

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2. Methodology

This research is aimed at answering the research question ‘How did the international

community apply the Responsibility to Protect doctrine in Libya and Syria and what lessons can be learned from these cases to improve future operationalization and implementation?’. This research question entails different elements: the doctrine of the Responsibility to Protect, (qualitative) case studies on Libya and Syria, and ‘lessons learned’ from these case studies to be used to improve operationalization and implementation. These elements are reflected in the different chapters in this research. The doctrine of the Responsibility to Protect will be

discussed early on in the thesis, along with relevant concepts such as (unconditional) sovereignty and humanitarian intervention.

The general methodological framework of this research is the domain of international public law. The perspective used is both descriptive and normative. The first part of the thesis has a more descriptive nature in the sense that it describes how the development of the

doctrine has been and what the current (legal) status of the doctrine is. The last part of the thesis has a more normative character because it provides recommendations on how to better operationalize and implement the principles and tools of RtoP to (better) realize its objectives. Literature on RtoP has been the starting point for the research. This literature consists mainly out of journal articles and UN documents such as published reports from the Secretary-General. Another important element in this research is the analysis of two case studies. The data for the case studies is mainly collected through journal articles, UN documents such as Security Council Resolutions and the websites of the International Coalition for the

Responsibility to Protect11 and the website of the Global Centre of the Responsibility to Protect12. Since RtoP is still a relatively ‘young’ doctrine, only a few humanitarian crisis cases had the potential to function as a case study in this research. The cases Libya and Syria have been selected because of their similarities: a similar time period in which the conflict started (early 2011, during the so-called ‘Arab Spring’), similar inducement of the conflict (in both countries (peaceful) demonstrations were violently beaten down by the autocratic regime) and

11 According to their website, the International Coalition for the Responsibility to Protect “brings together NGOs from all

regions of the world to strengthen normative consensus for RtoP, further the understanding of the norm, push for

strengthened capacities to prevent and halt genocide, war crimes, ethnic cleansing and crimes against humanity and mobilize NGOs to push for action to save lives in RtoP country-specific situations.”

12

According to their website, the Global Centre of the Responsibility to Protect “promotes universal acceptance and effective operational implementation of the norm of the ‘RtoP’ populations from genocide, war crimes, ethnic cleansing and crimes against humanity. It serves as a resource and a forum for governments, international institutions and non-governmental organizations working to protect populations from mass atrocities.”

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similar (initial) fact patterns. Immense humanitarian crises occurred in both countries; however, the international community was prepared to intervene with military means in Libya, but not in Syria. The case studies will show if, and how, the principles of RtoP are implemented in these countries and give some insights on the ‘why’ question. A number of variables has been used in the case studies, reflecting (logically) important elements of the doctrine of RtoP, such as the (collective) support of regional organizations, the adoption of Security Council Resolutions, the installment of peaceful measures and/or sanctions and the use of force on humanitarian grounds. These elements will be further, and in more detail discussed, in the next chapter on the doctrine of the Responsibility to Protect. An important limitation is that this research touches upon the influence of (complex) regional dynamics on the decision-making process in regards to the implementation of RtoP, but that it does not go into depth in the complex issue of the Sunni – Shia divide in the Middle East and its influence on the Syrian conflict. This could be included in any (possible) follow-up research. Another limitation relates to the time frame in which the case studies are analyzed, namely the period 2011-2014. This means that all events that occur(ed) since 01 January 2015 fall outside the scope of this research. This has largely practical reasons of limited available time and the need to restrict the scope of the research.

The analysis of the literature will result in a thorough understanding of the principles of RtoP and its developments since 2001. The case studies will result in ‘lessons learned’ and

subsequently in recommendation with regard to future operationalization and/or

implementation of the principles and tools of RtoP. These recommendations are addressed to policy makers, academics and non-state actors that deal with RtoP.

The elements from the doctrine of RtoP (the abovementioned non-limitative list including (collective) support of regional organizations, Security Council Resolutions, peaceful, sanctions and the use of force), together with the lessons learned/ recommendations are translated into a template. It combines both the ‘three pillar structure’ of the doctrine as well as the three stages of RtoP (prevention, (re)action and rebuilding). Therefore, it gives an (schematic, not limitative) overview of the available measures within each pillar, and within each stage. It also provides basic (soft) guidelines to be ‘taken account of’ in the decision-making process on installing peaceful and/or military means. This template (to be found in chapter seven) can be a helpful tool for policy makers, academics and non-state actors when dealing with humanitarian crises and case studies.

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3. The Responsibility to Protect

During the 1990s, debates were ongoing between supporters of humanitarian intervention, being “coercive (unilateral or multilateral) action by States involving the use of armed force in another State without its consent, with or without authorization from the UN Security Council, for the purpose of preventing or stopping gross violations of human rights or international humanitarian law”13

, and those who supported the principles of non-intervention and unconditional sovereignty.14 The doctrine of the Responsibility to Protect has been developed as an answer to these ongoing debates. The principles of sovereignty,

non-intervention and human rights protection all lay at the heart of the UN framework. Therefore, the UN framework – where relevant for this research – and the context in which the doctrine will developed will be briefly considered in the next paragraph. The following paragraphs will discuss the 2001 report of the International Commission on Intervention and State

Sovereignty (ICISS) and the 2005 UN World Summit Outcome Document. The final paragraphs will focus on the relevant developments since 2005 and the current status of the doctrine under international law.

i. The international context

The UN was created in 1945 to “save succeeding generations from the scourge of war”.15 Therefore, the UN dedicates itself to the promotion and protection of peace and security and to promote and encourage respect for human rights and for fundamental freedoms, while also striving to protect the equal sovereignty, politically and territorially, of all the Member States through international cooperation.16 The Security Council is the United Nations’ body that can impose binding obligations on the UN Member States to maintain peace and contribute to collective security.17 According to article 24(1) of the UN Charter, the Security Council acts on behalf of all the UN Member States.18 In reality, national and geopolitical interests play an important role in the activities of the Security Council. 19

Ever since the foundation of the UN, there has been controversy over the use of military force

13

Danish Institute of International Affairs 1999, p. 11

14

International Coalition for the Responsibility to Protect, A Toolkit on the Responsibility to Protect, p. 7

15

United Nations, Charter of the United Nations, Preamble

16

Lee 2012, p. 4

17

United Nations, Charter of the United Nations

18

United Nations, Charter of the United Nations, Article 24(1)

19

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and consensual intervention within the territory of another state. This right of non-interference fits the belief of state sovereignty; each state has ‘absolute supremacy’ within its own borders and therefore other states have no right to intervene.20 During the humanitarian crisis of Kosovo, the international community failed to (effectively) intervene by not reaching consensus in the Security Council, resulting in a stalemate.21 Russia repeatedly stated in the Security Council that it questioned whether the conflict in Kosovo was “sufficiently grave to warrant armed intervention”.22

This Russian veto led to an initiative of a ‘coalition of the willing’ to start a military campaign without authorization of the Security Council, resulting in an unauthorized NATO-led bombing campaign. 23 However, the UN Charter explicitly prohibits the use of force, unless in situations of self-defense or after authorization by the Security Council.24 Due to this lack of authorization, this is (still) an example of a

controversial (regional) intervention.25

The Kosovo case reflects the political, legal and operational complexities surrounding situations of humanitarian crisis and (potential) (humanitarian) intervention.26 This created a general feeling of urgency to develop a set of principles that on the one hand could protect ‘old’ principles as unconditional sovereignty and non-intervention and on the other hand could protect civilians from massive human rights violations by intervening for humanitarian purposes.27

Secretary-General Kofi Annan, in his Millennium Report of 2000, reminded the international community of its failure to respond in an effective and decisive manner in Rwanda and the Former Yugoslavia and posed a question to the Member States: “If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica, to gross and systematic violation of human rights that offend every precept of our common humanity?”.28 20 Stark 2011, p. 4 21 Hehir 2011, p. 18 22 Bellamy 2008, p. 627 23 Evans 2011, p. 35 24

United Nations, Charter of the United Nations, Article 42, Article 51

25 Francioni, Bakker 2013, p. 6 26 Thakur 2011, p. 12 27 Williams 2011, p. 31 28

UN General Assembly, We the Peoples. The Role of the United Nations in the 21st century: Report of the Secretary-General

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ii. The International Commission on Intervention and State Sovereignty (ICISS)

In September 2000, the Canadian government initiated the formation of the International Commission on Intervention and State Sovereignty (ICISS). This initiative was deployed in response to UN’s Secretary-General Kofi Annan’s question “whether, when and how the international community must intervene for humanitarian purposes”.29

The mission of the ICISS was “to reach global political consensus about how and when the international community should respond to emerging crises involving the potential for large-scale loss of life and other widespread crimes against humanity”.30

In 2001, after generating input from governments, non-governmental organizations, universities, and other experts, the ICISS published its report ‘The Responsibility to Protect’.31

The RtoP report was not only an answer to the failure to intervene effectively in situations such as Rwanda and Srebrenica, but also to the discussions surrounding humanitarian intervention and sovereignty.32 The report addressed the question of balancing state sovereignty, non-intervention and the prohibition of the use of force and the protection of human rights in situations of violations of humanitarian and international law. The ICISS based a part of its theory upon the work of Francis Deng – the then Secretary-General’s Special Representative for Internally Displaced Persons – on “sovereignty as responsibility”.33

The ICISS adopted this “sovereignty as responsibility’-approach and redefined sovereignty as a responsibility of a state to protect its people from suffering, instead as a right to non-interference: “sovereign states have the Responsibility to Protect the people within their jurisdiction”.34 According to the Commission, sovereignty is a responsibility, and not (just) “a mechanism of control”.35

The RtoP-framework was designed by the ICISS with three ‘pillars’: the primary

responsibility of each state to protect its populations (Pillar I), the subsidiary responsibility of the international community to assist and support individual states in exercising this

responsibility (Pillar II), and, finally, the responsibility of the international community to be prepared to take action, first through peaceful means and, when states are ‘manifestly failing’

29

Cited in: International Commission on Intervention and State Sovereignty 2001, p. vii

30 Website Council on Foreign Affairs 2001 31

International Coalition for the Responsibility to Protect, A Toolkit on the Responsibility to Protect, p. 9

32

Aaronson 2014, p. 59

33

See for example Cohen & Deng (1996), “Normative Framework of Sovereignty”, in: Deng et. al. (1996), Sovereignty as

Responsibility. Conflict management in Africa, Washington D.C.: the Brookings Institution, p. 1- 33 34

International Commission on Intervention and State Sovereignty 2001, p. viii

35

International Commission on Intervention and State Sovereignty 2001; see also the International Coalition for the Responsibility to Protect, A Toolkit on the Responsibility to Protect, p. 9

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to protect their civilians, with military force as a last resort (Pillar III).36 The ICISS speaks of a cross-pillar “continuum of measures” included in the doctrine of RtoP, ranging “from prevention, to intervention, to rebuilding”.37

During the following years the ideas of the ICISS became an essential (rhetorical) element in debates on humanitarian crises.38 In 2004, the High-level Panel on Threats, Challenges and Change endorsed a number of recommendations of the ICISS in its report ‘A More Secure World: Our Shared Responsibility’.39 Secretary-General of the UN Kofi Annan followed up on this with his report ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ arguing that action should be taken against human rights violations and other acts of violence against civilians. He called upon governments “to embrace the Responsibility to Protect”.40

iii. The 2005 UN World Summit

In 2005 a UN World Summit was organized to discuss global issues in the areas of

development, security, human rights and reform of the UN system. The agenda was based upon, amongst others, the report ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ from UN Secretary-General Kofi Annan.41 In the UN 2005 World Summit Outcome Document 170 Heads of State and Government stated that they reaffirmed “[its] faith in the United Nations and [its] commitment to the purposes and principles of the UN Charter and international law”.42 Furthermore, they expressed their commitment towards the doctrine of the Responsibility to Protect in paragraphs 138 and 139 of the Summit

Outcome Document: 43

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, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international

36

International Commission on Intervention and State Sovereignty 2001

37 International Coalition for the Responsibility to Protect, A Toolkit on the Responsibility to Protect, p. 9 38

Website International Coalition for the Responsibility to Protect 2013a

39

UN General Assembly, Note [transmitting report of the High-level Panel on Threats, Challenges and Change, entitled "A

more secure world : our shared responsibility"], 2 December 2004, A/59/565

40 UN General Assembly, In Larger Freedom: Towards Development, Security and Human Rights for All : report of the Secretary-General, 21 March 2005

41

UN General Assembly, In larger freedom: towards development, security and human rights for all : report of the

Secretary-General, 21 March 2005 42

UN General Assembly, 2005 World Summit Outcome: resolution / adopted by the General Assembly, 24 October 2005, A/RES/60/1, par. 2

43

UN General Assembly, 2005 World Summit Outcome: resolution / adopted by the General Assembly, 24 October 2005, A/RES/60/1, par. 138 – 139; see also Bellamy 2011, p. 22

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community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.” 139. “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 manifestly failing to protect their population from genocide, war crimes, ethnic cleansing and crimes against humanity”.

The 2001 doctrine was altered on some points to make sure it would be endorsed by heads of states and government leaders at the 2005 UN World Summit.44 The Outcome Document narrowed the international community’s possibilities to use force in the exercise of the Responsibility to Protect in two ways: by making ‘manifestly failing’ a threshold and by limiting it to four mass atrocities. Originally, the ICISS report mentioned a whole range of humanitarian crises, but in 2005 negotiations narrowed this down to four mass-atrocities: genocide, war crimes, crimes against humanity and ethnic cleansing. These four crimes are also to be found in the Rome Statute of the International Criminal Court (ICC)45, the Genocide Convention46 and the practice of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY).47 It was more likely to reach consensus on these four mass atrocities, because each of these crimes has a legal meaning that has already been accepted by a large part of the international community, and was already prohibited in other legal documents.48 Furthermore, the criteria for non-consensual military intervention were excluded after negotiations during the 2005 UN World Summit.49

The heart and soul of the original proposal remained: the doctrine of the Responsibility to Protect aims to prevent mass atrocities before they occur, intervene to halt them when they occur, and rebuild societies in the aftermath of such crimes to prevent them from happening again.50

44 The 2005 World Summit, High-Level Plenary Meeting of the 60th session of the UN General Assembly

(14-16 September 2005, UN Headquarters, New York)

45

UN General Assembly, Rome Statute of the International Criminal Court, Article 5

46

UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948

47 Bellamy 2008, p. 623 – 624 48 Lee 2012, p. 2 49 Pattison 2014, p. 27 50 Stark 2011, p. 4

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After the UN 2005 World Summit, the General Assembly adopted the World Summit Outcome Document in October 2005 in Resolution 60/1.51 The Security Council mentioned the doctrine in January 2006, when it stated that “[it] underscore[d] that governments […] have a primary Responsibility to Protect their populations”.52 In Resolution 1674, the Security Council officially reaffirmed the principles of the Responsibility to Protect as expressed in paragraphs 138 and 139 of the World Summit Outcome Document regarding the

Responsibility to Protect populations from mass atrocities.53 Since then the Security Council adopted 35 resolutions referring to RtoP.54

In 2008, the UN Secretary-General Ban-Ki Moon appointed Edward Luck as Special Advisor on the Responsibility to Protect.55 Working closely with the Special Advisor on the

Prevention of Genocide, the Special Advisor on RtoP is responsible for the “further (conceptual) development and refinement of the concept [of RtoP]”, consensus building around the concept and its implementation and as an ‘early warning mechanism’56.57 Since 2009, Ban-Ki Moon annually publishes a report on the Responsibility to Protect, mainly focusing on its operationalization and implementation. These reports are discussed by the General Assembly during ‘informal dialogues’.58

During the six year’s period in which these informal dialogues have taken place, the discussions have changed from focusing on the doctrine itself to the implementation and operationalization of the doctrine.59

51

UN General Assembly, 2005 World Summit Outcome : resolution / adopted by the General Assembly, 24 October 2005, A/RES/60/1

52

UN Security Council, Security Council Resolution 1653 (2006) The situation in the Great Lakes region , 27 January 2006, S/RES/1653 (2006)

53

UN Security Council, Security Council resolution 1674 (2006) [on protection of civilians in armed conflict], S/RES/1674

54

For an overview, see for example Global Centre for the Responsibility to Protect, ‘UN Security Council Resolutions Referencing RTOP’, 2013

55 Since June 2013, Jennifer Welsh is the Special Advisor on the Responsibility to Protect 56

The latter was reaffirmed on 16 April 2014 in Resolution 2150 on the Prevention and Fight against Genocide. This Resolution recalled the important role of the Secretary General’s Special Advisors on the Prevention of Genocide and the Responsibility to Protect and their functions of acting as an early warning mechanism to prevent genocide, war crimes, crimes against humanity, and ethnic cleansing.

57

Website UN Office of the Special Advisor on the Prevention of Genocide, ‘Former special advisor Edward Luck’

58

Ban Ki-Moon published a report called ‘Implementing the Responsibility to Protect’ in 2009. His 2010 report focused on certain elements of prevention of mass atrocities. In 2011, the report focused on the role of regional organizations. In 2012 Ban Ki-Moon published a report called ‘Responsibility to Protect – timely and decisive response’. The report focused also on the importance of capacity building and prevention. His fifth report on RtoP was about state responsibility and prevention. In August 2014, Ban Ki-Moon published his newest report on the collective responsibility of the international community.

59

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Another very important development since 2005 has been the Brazilian proposal of ‘Responsibility While Protecting’ (‘RWP’).60

In November 201161, the Security Council received a concept note called ‘Responsibility While Protecting: Elements for the Development and Promotion of a Concept’ from the Brazilian representatives.62

RWP provides guidelines on how to monitor and assess the use of force when implemented under the third pillar of the RtoP framework.63 While the doctrine of RtoP declares that the three pillars are equally important and parallel, one of the most important elements of the doctrine of RWP is the idea that “the three pillars of RtoP must follow a strict line of political

subordination and chronological sequencing”.64 The proposal further suggests that any (military) intervention must be “limited in its legal, operational and temporal elements which should be clearly specified in the resolution” and “must produce as little violence and

instability as possible and […] not generate more harm than it was authorized to prevent”.65

In general, the responses to the Brazilian initiative were positive.66 There is still enthusiasm for this initiative, but Brazil has not (yet) indicated if, and if so how, it will pursue its proposal within the UN system.67 At least, it has been a valuable contribution to

discussions on the implementation of the Responsibility to Protect. v. Status under international law

Since 1948, several international law instruments have been adopted prohibiting states to commit any of the four mass atrocities mentioned in the doctrine of RtoP. These principles of RtoP are well-founded in principles of international law and as such not new: RtoP reinforces already existing legal obligations of UN Member States.68 The fact that the RtoP doctrine is largely exercised through existing procedures and instruments “while leaving room for political decision-making at the level of implementation” is one of the reasons that RtoP is

60

UN General Assembly, Letter dated 9 November 2011 from the permanent representative of Brazil to the United Nations

addressed to the Secretary-General, A/66/551-S/211/701 61

This was just a couple of days after the end of the NATO-led operation in Libya and the killing of Muammar Gaddafi; see chapter four on the case studies.

62 UN General Assembly, Letter dated 9 November 2011 from the permanent representative of Brazil to the United Nations addressed to the Secretary-General, A/66/551-S/211/701

63

UN General Assembly, Letter dated 9 November 2011 from the permanent representative of Brazil to the United Nations

addressed to the Secretary-General, A/66/551-S/211/701

64 UN General Assembly, Letter dated 9 November 2011 from the permanent representative of Brazil to the United Nations addressed to the Secretary-General, A/66/551-S/211/701, par. 6

65

UN General Assembly, Letter dated 9 November 2011 from the permanent representative of Brazil to the United Nations

addressed to the Secretary-General, A/66/551-S/211/701, par. 11 66

Deng 2013, p. 2

67

Welsh, Quinton-Brown, MacDiarmid 2013, p.2

68

UN General Assembly, Implementing the Responsibility to Protect: report of the Secretary-General, 12 January 2009, A/63/677, p. 5

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currently perceived as rather a political instrument, than a (new) legal norm.69 Furthermore, in itself RtoP is not a legally binding framework as such.70 It functions mainly as an instrument “bolstering the political will” within the international community to act, and take

responsibility, instead of a refusal to act according to the principle of non-interference.71 However, it is an understatement that RtoP ismerely a political principle.72 The RtoP doctrine has the potential to evolve into a norm of customary international law and lead to further legalization.73 This depends on the development and implementation of the principles RtoP in practice by the majority of the international community over the upcoming years.74

69

Murray, Hehir 2012, p. 387; Hoffmann, Nollkaemper 2012, p. 361

70

Red Cross Australia 2011, p. 12

71 Williams 2011, p. 32 72 Losielle 2013, p. 318 73 Hoffmann, Nollkaemper 2012, p. 360 74 Evans 2011, p. 26

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4. The Responsibility to Protect in practice

When looking back over the past ten years, the Responsibility to Protect has been invoked by the Security Council, the Secretary-General of the UN, his Special Advisors and several NGOs in a non-coercive manner in cases such as Darfur, Kyrgyzstan, Cote d’Ivoire, Yemen and Syria.75 So far, only in the cases of Kenya and Libya has the Security Council cited the Responsibility to Protect in the preamble of a Chapter VII Resolution.76 The two cases of Libya and Syria will be discussed further below.

i. Libya

Gaddafi’s speech

In February 2011, political protest started in Tripoli demanding the resignation of Libyan leader Muammar Gaddafi.77 Soon, the political protest spread out over the country and Benghazi became headquarter of the rebellion. Gaddafi was not very pleased with this turn of events. In his speech of 22 February 2011, Gaddafi expressed that his military forces would “show no mercy” to the rebels in Benghazi.78

The speech, broadcasted on national television, showed his intentions to continuously incite (governmental) human rights violations. He used language similar to that of the genocide in Rwanda, stating to his supporters that “protesting ‘cockroaches’ should be attacked” and “every Libyan house would be searched, ‘house by house’ to make sure that rebels would surrender”.79

Gaddafi’s clear and public threat towards the protestors in Benghazi alarmed the international community. Several actors, like NGOs, warned for the occurrence of mass atrocities.80 The international community was not only confronted with a state manifestly failing to protect (a part of) its populations from mass atrocities; it was confronted with a state threatening to attack (a part of) its population. The UN confronted Libya with its Responsibility to Protect its civilian populations. A joint press statement of the Special Advisors on the Prevention of Genocide and the Responsibility

75

For an overview, see for example Global Centre for the Responsibility to Protect, ‘UN Security Council Resolutions Referencing RtoP’, 2013

76 UN Security Council, The role of regional and sub-regional arrangements in implementing the Responsibility to Protect: report of the Secretary-General, 28 June 2011, A/65/877, p. 9. However, Kenya falls outside the scope of this research. For

more information on the implementation of RtoP in Kenya, see for example the Global Centre for the Responsibility to Protect, Occasional Paper Series No. 4 (December 2013)

77

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’

78

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’

79

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’

80

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to Protect on the situation in Libya was released for that manner on 22 February.81 A few days later, Resolution S-15/2 was adopted by the UN Human Rights Council (HRC), condemning the events in Libya and “calling for the end of human rights violations”.82

Unprecedented, the General Assembly of the UN, following the recommendation of the Human Rights Council, suspended Libya as a member of that Council on 1 March.83 The HRC reported in 2012 on the mass atrocities in Libya and concluded that war crimes and crimes against humanity were committed by both sides in the conflict.84

Resolution 1970

The UN Security Council unanimously adopted Resolution 1970 on 26 February 2011, when it became clear that the Libyan government had no intention to alter its behavior, following the widespread and systematic violence against its populations by the Gaddafi regime, and the UN Security Council unanimously adopted Resolution 1970 on 26 February 2011.85

Resolution 1970 explicitly referred to the Responsibility to Protect by “recalling the Libyan authorities’ Responsibility to Protect its population”. The Security Council stressed that the violence had to stop immediately and imposed a series of additional sanctions against the Libyan leadership, including an arms embargo, asset freeze, travel ban and the referral of the crisis to the International Criminal Court (‘ICC’).86 Shortly after the adoption of Resolution 1970, ICC Prosecutor Luis Moreno-Ocampo launched an investigation into the Libyan crisis. The ICC reported that “civilians were attacked in their homes” and “demonstrations were repressed using live ammunition”.87

Conclusions also entailed that rape and sexual violence were used as tools of war.88 In light of these findings, the ICC issued arrest warrants for crimes against humanity for Muammar Gaddifi, his son Saif al-Islam Gaddafi, and Head of Military Intelligence Abdullah Al-Senussi on 27 June 2011.89 It was the second time that the ICC issued an arrest warrant for a sitting head of state, the Sudanese president al-Bashir having the dubious honor to be the first. 90 The arrest warrants were meant to force the three

81

International Coalition for the Responsibility to Protect, ‘UN Secretary-General Special Advisor on the Prevention of Genocide, Francis Deng, and Special Advisor on the Responsibility to Protect, Edward Luck, on the Situation in Libya’

82 UN Human Rights Council, Situation of human rights in the Libyan Arab Jamahiriya, 25 February 2011, A/HRC/S-15/2 83

Website UN News Centre (01 March 2011)

84

The Human Rights Council established an International Commission of Inquiry (CoI) on Libya. The CoI published the abovementioned report in 2012; see UN Human Rights Council, Report of the International Commission of Inquiry on Libya, 2 March 2012, A/HRC/19/68

85

UN Security Council, Security Council resolution 1970 (2011), 26 February 2011, S/RES/1970

86

UN Security Council, Security Council resolution 1970 (2011), 26 February 2011, S/RES/1970

87

International Commission on Intervention and State Sovereignty 2001

88

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’; see also Website UN News Centre (08 June 2011)

89

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’

90

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15

men to appear before the ICC and prevent impunity and/or a cover-up of the violent events in Libya.91 The Libyan state however disregarded the arrest warrants.

Resolution 1970 answered the concerns of regional organizations such as the Arab League, African Union, and the Organization of the Islamic Conference. The condemnation of the actions of the Libyan government by these regional organizations was a decisive element for the international community to go forward to protect the Libyan civilians.92 Although there was unity among the regional actors about the need for action, there was diversity in the preferred action(s).93 The African Union strived for a peaceful solution to the crisis, calling for “an immediate ceasefire” and “implementation of political reforms”.94

The Arab League called for the establishment of a no-fly zone and safe areas to protect Libyan citizens. It did however oppose the employment of ‘boots on the ground’ in Libya.95 The Gulf Cooperation Council urged the Security Council to tale “all necessary measures to protect citizens in Libya”, even if this included the use of non-consensual force.96

Resolution 1973

Following this call for action, and when the situation seemingly did not improve, the UN Security Council adopted Resolution 1973 on 17 March 2011 as an attempt to deescalate the situation.97 There were no vetoes used, while China, Russia, Brazil, Germany and India abstained from voting.98 These states were uncomfortable with authorizing any intervention in Libya, but did not vote against Resolution 1973 because of the ever-growing humanitarian crisis.99 The political support of regional organizations was also crucial in moving Russia and China to abstain from voting instead of using their veto power.100 The Security Council demanded an immediate ceasefire and authorized Member States, acting nationally or through regional organizations, to take “all necessary measures” to protect civilians under threat of attack, while explicitly excluding “boots on the ground” or any other form of a foreign occupation force on Libyan territory.101 A no-fly zone was installed in order to help protect

91

Website Al-Jazeera (28 June 2011)

92 Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’ 93

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’

94

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’

95

Evans 2011, p. 41

96 Zifcak 2012, p. 5 97

UN Security Council, Security Council resolution 1973 (2011) [on the situation in the Libyan Arab Jamahiriya], 17 March 2011, S/RES/1973; see also Stark 2011, p. 5

98

Thakur 2011, p. 13

99

UN Security Council, Situation in Libya, 17 March 2011, S/PV.6498

100

Evans 2011, p. 41

101

UN Security Council, Security Council resolution 1973 (2011) [on the situation in the Libyan Arab Jamahiriya], 17 March 2011, S/RES/1973

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16 civilians.

Secretary-General Ban Ki-Moon later emphasized that Resolution 1973 was a landmark in the history of international law, because it “affirms, clearly and unequivocally, the international community’s determination to fulfill its Responsibility to Protect civilians from violence perpetrated upon them by their own government”.102

Operation Odyssey Dawn and Operation Unified Protector

After the adoption of Resolution 1973, a group of UN Member States led by the United States undertook military action to protect Libyan civilians under ‘Operation Odyssey Dawn’. This operation was neither under the command nor control of NATO. The NATO-led operation ‘Operation Unified Protector (OUP)’ started in late March 2011, with a coalition of NATO allies and partners enforcing the arms embargo and establishing the no-fly zone.103 The military mission of NATO was based on three elements; a legal basis to be found in Resolution 1973, strong support by regional organizations and a humanitarian crisis that needed to be stopped.104 The NATO military campaign was backed by military analysts’ conclusion that “the Libyan rebels would be capable of defeating Libya’s military forces with NATO air support”.105

The bombing campaign as put into action in Libya was therefore considered a “low risk” intervention.

On several occasions in April, June and September 2011 NATO Member States extended the duration of operation OUP while there was still a need to protect Libyan citizens against the gross human rights violations committed by the Gaddafi regime.106 The UN Security Council adopted Resolution 2009 in September 2011, reaffirming NATO’s mandate to protect citizens in Libya while also reaffirming the UN’s commitment to the sovereignty, independence and national unity of Libya.107 Resolution 2009 also established a UN Support Mission in Libya (UNSMIL) to support the Libyan people in the promotion of human rights, rule of law and economic recovery.108 In October 2011 the UN Security Council adopted Resolution 2016.109 This Resolution strongly “urge[d] the Libyan authorities to refrain from reprisals, including arbitrary detentions” and “underscores the Libyan authorities’

102

Website UN News Centre (18 March 2011)

103

Website NATO 2012 (28 March 2012)

104

Website NATO 2012 (28 March 2012)

105 Murray 2014, p. 69 106

Website NATO 2012 (28 March 2012)

107

UN Security Council, Security Council resolution 2009 (2011) [on the establishment of the UN Support Mission in Libya

(UNSMIL)], 16 September 2011, S/RES/2009(2011) 108

UN Security Council, Security Council resolution 2009 (2011) [on the establishment of the UN Support Mission in Libya

(UNSMIL)], 16 September 2011, S/RES/2009(2011) 109

UN Security Council, Security Council resolution 2016 (2011) [on termination of the provisions of paragraphs 4, 5 and 6

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17

responsibility for the protection of its population, including foreign nationals and migrants”.110

On 20 October 2011 Muammar Gaddafi was killed during the battle of Sirte. The fall of Gaddafi regime, and consequently the Gaddafi regime, was followed by the conclusion of the NATO mission on 31 October 2011.111

Post-intervention

After the intervention, the international community’s responsibility to rebuild started. Since 2012, the international community took several measures in that regard: unfreezing Libyan assets, providing economic support, and assisting in improving the legal system.112 Several UN Member States are participating in diverse initiatives to assist and support Libya, but the (majority of the) UN Member States clearly stated that they do not want to get military involved in Libya again.113

The Support Mission UNSMIL is also helping to fulfill the international community’s Responsibility to Protect.114 UNSMIL supports the Libyan people in the promotion of human rights, rule of law and economic recovery.115 This resulted for example in 2012 in the first Libyan elections since the 1960s.116

One of the major challenges in the rebuilding process is the presence of weapons in the country due to the arming of both sides during the conflict by third states. The authorities have had difficulty in bringing the different groups of rebels that fought together against the regime under control. While the current fighting is often presented as a conflict between pro-government and anti-pro-government groups, or between secular moderate fighters and extremist Islamic fighters, in practice it has turned from a tribal war into a civil war with resources and power at stake.117 In response to the continuous violence, the Security Council unanimously adopted Resolution 2174 in August 2014, “condemning ongoing fighting by armed groups

110

UN Security Council, Security Council resolution 2016 (2011) [on termination of the provisions of paragraphs 4, 5 and 6

to 12 of resolution 1973 (2011) concerning Libya], 27 October 2011, S/RES/2016(2011); see also UN Security Council, Security Council resolution 2040 (2012) [on extension of the mandate of the UN Support Mission in Libya (UNSMIL) for a further period of 12 months] , 12 March 2012, S/RES/2040(2012) and UN Security Council, Security Council Resolution 2095 (2013) [on extension of the mandate of the UN Support Mission in Libya (UNSMIL) for a period of 12 months], 14

March 2013, S/RES/2095 (2013)

111

Website NATO (28 March 2012)

112

Website International Coalition for the Responsibility to Protect 2013b

113

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’

114

Website UN Support Mission in Libya, ‘UNSMIL Background’

115

Website UN Support Mission in Libya, ‘UNSMIL Background’

116

Website Council on Foreign Relations, ‘Political Instability in Libya’

117

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18

and incitement to violence” and “calling for an immediate ceasefire” and “reaffirming its willingness to use targeted sanctions against individuals and entities that threatened Libya’s peace and stability”.118 In September 2014, General Khalifa Haftar, a former Gaddafi loyalist, launched ‘Operation Dignity’. The operation was aimed at fighting the Islamist rebel groups in Benghazi. Islamist rebel groups reacted with a counter operation, called ‘Operation Dawn’, declaring its own government and parliament.119 On 29 September 2014 an USMIL-led mediation dialogue “aimed at resolving the crisis” started.120 Islamist militias refused to join these talks.121 Aside the two abovementioned ‘Dignity’ and ‘Dawn’ groups fighting in Libya, a growing presence of jihadists are active in Libya.122 The intervention in Libya thus did not bring an end to violence, and definitely did not bring stability and lasting peace.123 According to the Office for the Coordination of Humanitarian Affairs (OCHA), part of the UN, more than one million Libyans have had to deal directly with the consequences of the Libyan civil war.124

Interim conclusion: Implementing RtoP in Libya

Libya has been presented as the first ‘test-case’ for RtoP in general, and the third pillar military strategy more specific.125 According to Ban Ki-Moon the Libyan intervention was – at the end of the day – a success: “[RtoP] was tested as never before. The results were uneven but, at the end of the day, tens of thousands of lives were saved.”.126 Looking at the RtoP doctrine, military intervention was justified due to the existence of a humanitarian crisis in Libya and the need for ‘timely and decisive’ action.127 There has been, however, some critique on the implementation of RtoP in Libya.128 This critique focused mainly on two elements of the doctrine: the adoption of military force as a last resort (or: not giving peaceful means a fair chance of succeeding) and the interpretation of the mandate by NATO. This will be discussed in more detail in chapter 4.

118 UN Security Council, Security Council resolution 2174 (2014) [on the situation in Libya], 27 August 2014, S/RES/2174 119

Website Council on Foreign Relations, ‘Political Instability in Libya’

120

Website UN News Centre (29 September 2014)

121

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’

122 Website Council on Foreign Relations, ‘Political Instability in Libya’ 123

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’

124

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Libya’; see also Website UN News Centre, (24 June 2011)

125

International Coalition for the Responsibility to Protect, ‘The Crisis in Libya

126

Website UN News Centre (18 January 2012)

127

Cunliffe 2014, p. 63

128

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19 ii. Syria

The Syrian crisis and the Syrian Opposition

In March 2011, a group of Syrian citizens protested for the release of political prisoners. Syrian security forces arrested some of the protestors, sparking on further demonstrations. Few days later, Syrian security forces killed six protestors in the Omari Mosque and opened fire on a march of solidarity of hundreds of young citizens. As a result, more civilians began to publicly protest against the dictatorial regime. Meanwhile, the Syrian government deprived its own citizens from access to food, water, medical supplies and humanitarian assistance.129 In June 2011, already more than 12.000 Syrians fled to neighboring countries such as Turkey because of the violence.130 From August 2011 onwards, the Free Syrian Army started to use force against Syrian soldiers, marking a starting point for the use of violence to overthrow the dictatorship.131 The violence on both sides worsened, and it quickly escalated into a civil war with increasingly sectarian elements.132

Although ideologically divided, the opposition started to loosely organize. The Syrian National Council (SNC) and Free Syrian Army (FSA) were created.133 The SNC pursued an inclusive and non-military solution.134 However, it found itself to be overtaken by reality over time. With the inaction of the international community, the SNC decided to support the Free Syrian Army.135 As a result, in November 2012, together with other opposition groups, the SNC established the National Coalition for Syrian Revolutionary and Opposition Forces (SOC).136 Currently, the SOC is recognized as the legitimate representative of the Syrian people by 120 states and organizations.137 This includes the United States, the European Union, the Arab League, and the Gulf Cooperation Council.138

The Human Rights Council

The Human Rights Council has strongly condemned the continued "widespread and

systematic" human rights violations in Syria and demanded that the government immediately

129

Lee 2012, p. 22

130 Lee 2012, p. 22 131

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Syria’

132

International Coalition for the Responsibility to Protect, A Toolkit on the Responsibility to Protect, p. 27

133 Murray, McKay 2014, p. 14 134 Kodmani, 2011, p, 1 135 Marquand 2012, p. 12 136

The SNC withdrew from the SOC in January 2014 due to disagreement about the SOC’s attendance at the Geneva II Conference. See chapter 4 on the Syrian case study for more on the Geneva talks.

137

Website National Coalition of Syrian Revolution and Opposition Forces, ‘Factsheet’

138

The National Coalition for Syrian Revolutionary and Opposition Forces was first recognized by the Arab League on 12 November 2012. France, the EU, the UK followed later that month. The US recognized the Coalition on 12 December, followed by other states.

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20

cease all violence and protect its people.139 The HRC installed a Commission of Inquiry (CoI) to investigate human rights violations in Syria. On 23 November 2011 the Human Rights Council released a report of the Commission of Inquiry on Syria that showed the amount and excessive nature of the use of force by Syrian security forces against its citizens.140 It

concluded that “the Syrian government manifestly fails to protect its citizens from mass atrocities” and that war crimes and crimes against humanity “are being committed on a massive scale”.141 The Commission, however, also indicated that the opposition groups are also involved in violations of international law and are also responsible for war crimes and crimes against humanity.142

The Joint Special Envoy of the UN and the League of Arab States on the Syrian crisis In accordance with the General Assembly resolution A/RES/66/253 of 16 February 2012 former United Nations Secretary-General Kofi Annan got appointed as the Joint Special Envoy of the United Nations and the League of Arab States on the Syrian crisis mandated to bring about a peaceful solution to the Syrian situation.143 Kofi Annan proposed a “six point peace plan”, which included a ceasefire, cooperation of all parties with the Special Envoy and the guarantee of effective and timely humanitarian assistance where and whenever

necessary.144 Kofi Annan initiated the ‘Geneva I Conference on Syria’, which took place on 30 June 2012 and what attended by ‘Action Group Members’, including Kofi Annan, UN Secretary-General Ban Ki-Moon, Secretary-General of the League of Arab States Nabil Elaraby, the Foreign Ministers of the five permanent members of the Security Council, and in addition the High Representative of the EU for Foreign Affairs and Security Policy and the Foreign Ministers of Turkey, Iraq145, Kuwait146 and Qatar147.148 The Conference agreed on the need for an inclusive government including representatives of both the current Syrian

government and of the opposition groups.149 Opinions diverged, amongst other between representatives of the USA and Russia, whether Assad could remain in power in such

139

Website UN, ‘Background Information on the Responsibility to Protect’

140

UN Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab Republic, 23 November 2011, A/HRC/S-17/2/Add.1; This report was followed by several other reports by the CoI on Syria.

141 UN Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab Republic,

23 November 2011, A/HRC/S-17/2/Add.1

142

UN Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab Republic, 23 November 2011, A/HRC/S-17/2/Add.1

143 Carment, Laundry 2014, p. 52 144

UN Security Council, Security Council resolution 2042 (2012) [on authorization of the deployment of an advance team of

up to 30 unarmed military observers to the Syrian Arab Republic], 14 April 2012, S/RES/2042(2012) 145

In the capacity of chair of the Summit of the League of Arab States.

146

In the capacity of chair of the Council of Foreign Ministers of the League of Arab States.

147

In the capacity of chair of the Follow-up Committee on Syria of the League of Arab States

148

Website UN News Centre (30 June 2012); Syria was notably absent.

149

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21 transitional government.150

Kofi Annan announced his resignation as Joint Special Envoy in August 2012, saying that “increasing militarization on the ground and the clear lack of unity in the Security

Council have fundamentally changed the circumstances for the effective exercise of [his] role”.151

His successor Brahimi initiated the ‘Geneva II Conference on Syria’ (also referred to as Geneva II or the Geneva II Middle East Peace Conference), in early 2014.152 Again

discussions were held on achieving a political solution to the Syrian humanitarian crisis through the establishment of an inclusive, transitional government.153 The Geneva II Conference did not result in an agreement between the opposing parties, and negotiations have not since resumed.154 In the end, the efforts of Kofi Annan and his successors did not (yet) end in a peaceful (political) solution, despite a brief cease-fire in April 2012.155

The Special Advisors on the Prevention of Genocide and Responsibility to Protect The Special Advisors on the Prevention of Genocide and Responsibility to Protect made (joint) press statements on several occasions since the outbreak of the Syrian crisis. They repeatedly reminded the Syrian regime of the Responsibility to Protect their citizens.156 They called upon the international community “to take immediate, decisive action” and to exercise “its Responsibility to Protect populations at risk of further atrocity crimes in Syria”.

Furthermore, they reminded the international community that there is a commitment made by 170 Heads of State and Government at the 2005 UN World Summit to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, including their incitement, and that doing nothing is unacceptable.157

The Special Advisors on the Prevention of Genocide and Responsibility to Protect, together with the High Commissioner for Human Rights and several UN Member States, pressured the Security Council from 2012 onwards to refer the Syrian civil war to the ICC.158

150

Website The Telegraph (30 June 2012)

151 Website UN News Centre (02 August 2012) 152

From May 2014 onwards Staffan de Mistura is the Joint Special Envoy of the United Nations and the League of Arab States on the Syrian crisis.

153

Website UN News Centre (25 November 2013)

154 Human Rights Watch 2015 155

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Syria’

156

Special Advisers of the United Nations Secretary-General on the Prevention of Genocide, Francis Deng, and on the Responsibility to Protect, Edward Luck, on the situation in Syria (2 June 2011); Special Advisers of the United Nations Secretary-General on the Prevention of Genocide, Francis Deng, and on the Responsibility to Protect, Edward Luck, on the situation in Syria (21 July 2011)

157

Website UN, ‘Background Information on the Responsibility to Protect’

158

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22

In January 2013, this resulted in a letter signed by 58 countries to the Security Council. This initiative failed due to a double veto from Russia and China.159

The Security Council and General Assembly

The Security Council issued a presidential statement on 3 August 2011 expressing its concerns with regard to the Syrian crisis but failed to agree on a Resolution that would condemn the violence in Syria due to a double veto of Russia and China on 4 October 2011. In the period October 2011 until July 2012, Russia and China vetoed three Security Council Resolutions concerning the mass atrocities in Syria. First and foremost, Russia and China state that “the Syrian crisis does not meet the threshold of a threat to global peace and

security”.160 Russia repeatedly stated that it will not support any action that includes sanctions or military intervention in Syria, because “Washington is trying to create artificial groundless excuses for [military] intervention [in Syria]”.161 Above that, Russia and China both keep referring to the principles of non-interference and equal sovereignty.162

In contrast with the failure of the Security Council to conclude a (binding) Resolution on the situation in Syria, the UN General Assembly third Committee approved in November 2011 a (non-binding) Resolution “condemning the regime’s violence”.163 The General Assembly also publicly criticized the Security Council for its inaction in response to the Syrian humanitarian crisis.164

Individual states and regional organizations such as the League of Arab States and the EU did not wait for the UN bodies to sanction the Syrian regime. By March 2012, more than 49 UN Member States had imposed bilateral economic and/or financial sanctions and at least 14 had imposed diplomatic sanctions.165 Overall, support for military intervention in Syria was never high due to a legitimate fear to incite a broader regional conflict.166 The military risk was perceived as (too) high.

159

Website Global Centre for the Responsibility to Protect 2015

160 Lee 2012, p. 23; Hehir 2014, p. 74 161

Yan 2013

162

Carment, Landry 2014, p. 41, p. 53; Lukyanov 2012, p.1; Xiaoming 2012, p. 1

163

UN General Assembly, Situation of human rights in the Syrian Arab Republic, A/C.3/66/L.57/Rev.1

164

Hehir 2014, p. 74

165

Global Centre for the Responsibility to Protect 2014, p. 11; See also, Global Centre for the Responsibility to Protect, “Timeline of International Response to the Situation in Syria,” available at: http://www.globalr2p.org/publications/135.

166

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23

More than a year after the outbreak of the Syrian crisis, in April 2012, the Security Council adopted unanimously Resolution 2042.167 This Resolution authorized an observer mission to implement a ceasefire in Syria and reaffirms the support of the Security Council of the peace plan of the Special Envoy Kofi Annan.168 To implement this, the Council also unanimously adopted Resolution 2043 establishing a Supervision Mission in Syria (UNSMIS).169 The UN Security Council and Syria’s chemical weapons

On 21 August 2013 a Sarin attack took place in Ghouta, a place near Damascus, killing approximately 1.400 citizens.170 A number of UN Member States, NGOs and regional

organizations accused the Syrian regime.171 The League of Arab States requested the Security Council in September 2013 to take effective and appropriate steps to halt the use of chemical weapons in Syria; however, it explicitly stated that any form of military intervention is “out of the question”.172

The Special Advisors on the Prevention of Genocide and the Responsibility to Protect issued a joint statement calling the killing of hundreds of civilians in the chemical weapons attack a serious violation of international law and a war crime, and reminded the international community of its Responsibility to Protect populations from such crimes and called for an immediate investigation into the events.173 International pressure was put on Syria to immediately accede to the Chemical Weapons Convention. This resulted in the entering into force of the Chemical Weapons Convention for the Syrian Arab Republic on 14 October 2013.174

The commission of a clear-cut example of a war crime, together with a credible threat of a military countermove by the United States and France, made the difference in the decision-making in the Security Council.175 In contrast to earlier use of vetoes, the Security Council reached consensus by agreeing upon a framework for elimination of Syrian chemical weapons in Resolution 2118, and in addition by agreeing upon (collective) sanctions under Chapter VII of the UN Charter in the event of Syria’s non-compliance with Resolution 2118.176

Consequently, a joint UN-Organization for the Prohibition of Chemical Weapons (OPCW)

167

UN Security Council, Security Council resolution 2042 (2012), S/RES/2042(2012)

168

UN Security Council, Security Council resolution 2042 (2012), S/RES/2042(2012)

169

UN Security Council, Security Council resolution 2043 (2012), S/RES/2043(2012)

170 Global Centre for the Responsibility to Protect 2014, p. 2 171

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Syria’

172

Website International Coalition for the Responsibility to Protect, ‘The Crisis in Syria’

173

UN Press Release (22 August 2013)

174

Website OPCW (14 October 2013)

175

Global Centre for the Responsibility to Protect 2014, p. 16

176

UN Security Council, Security Council resolution 2118 (2013) [on the use of chemical weapons in the Syrian Arab

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24

mission was established in October 2013 to support Syria in the dismantling of its chemical weapons. In November 2013, the OPCW declared that they had “successfully destroyed most of the sites used for the production of chemical weapons”.177

In April 2014 the OPCW announced that it would also launch an investigation into the accusations that the Syrian regime used chlorine gas in an attack against civilians on 17 April 2014.178

Security Council Resolutions and the Responsibility to Protect

In early 2014, the Security Council adopted Resolution 2139 demanding a halt to violence and attacks on civilians and noting the government's primary Responsibility to Protect its populations.179 Resolution 2139 is the first Resolution on Syria that mentioned the (primary) Responsibility to Protect. It was followed-up by Resolution 2165, in July 2014, authorizing humanitarian aid through Jordan, Turkey and Iraq without the consent of the Syrian

government.180 UN Secretary-General Ban Ki-Moon supported the adoption of Resolutions 2139 and 2165, but stated that humanitarian assistance “is not something [that should be] negotiated; it is something to be allowed by virtue of international law”.181 The subsidiary responsibility of the international community to assist or intervene was not mentioned in either one of these Resolutions.

Islamic State (ISIS)

The Syrian situation has increased in level of complexity due to the emergence of Islamic State (formerly known as Islamic State in Iraq and Levant). ISIS’s rapid military advance in mid-2014 led to large parts of the Syrian territory taken over by Islamic State and now falling within the ‘borders’ of the caliphate.182

The Security Council adopted Resolution 2170 in August 2014 condemning the systematic and widespread abuses of human rights and

international humanitarian law by the Islamic State and other individuals or groups associated with al-Qaeda.183 Resolution 2178, adopted in September 2014, also focused on fighting terrorism and terrorist groups.184

177

Website OPCW (05 November 2013)

178

Global Centre for the Responsibility to Protect 2014, p. 2

179

UN Security Council, Security Council resolution 2139 (2014), S/RES/2139

180 UN Security Council, Security Council resolution 2165 (2014) [on the humanitarian situation in the Syrian Arab Republic and the establishment of a monitoring mechanism] , S/RES/2165

181

UN Security Council, Meeting Coverage and Press Releases (22 February 2014)

182

Global Responsibility to Protect 2014, p. 7

183

UN Security Council, Security Council resolution 2170 (2014) [on threats to international peace and security caused by

terrorist acts by Al-Qaida] , S/RES/2170 (2014) 184

UN Security Council, Security Council resolution 2178 (2014) [on threats to international peace and security caused by

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