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The notion of the "Responsibility to Protect" and its application in the current context of the so-called "asymmetric wars"
On December 14th, 2015, an Arria formula meeting of the Security Council was held on the responsibility to protect and non-State actors.
The "Arria-formula meetings" are a relatively recent practice of the members of the Security Council. They are not envisaged in the Charter of the United Nations or the Security Council's provisional rules of procedure. Under Article 30 of the Charter, however, the Council is the master of its own procedure and has the latitude to determine its own practices.
These meetings are informal and confidential gatherings which enable Security Council members to have a more frank and private exchange of views within a flexible procedural framework. They are held with persons who the inviting member or members of the Council (who also act as the facilitators or conveners) consider to be beneficial to listen to and/or to whom they may wish to convey a message.
The process is named after Ambassador Diego Arria of Venezuela, who, as the representative of Venezuela on the Council (1992-1993), initiated the practice in 1992.
The "Arria-formula meetings" differ from the consultations of the whole of the Council in the following respects:
- Such informal gatherings do not constitute an activity of the Council and are convened at the initiative of a member or members of the Council. Participation in such meetings is for individual members to decide upon.
- They are held in a Conference Room, and not in the Security Council Consultation Room.
- The convener issues a written invitation to the other fourteen members, indicating the place, date and time of the "Arria-formula meeting", as well as the name of the party to be heard, by a fax from his/her Mission rather than by notification from the Secretariat.
- They are not announced in the daily Journal of the United Nations and unless so invited, members of the Secretariat are not expected to attend.
What is meant by the term Responsibility to Protect, known as "R2P", the issue which was recently addressed in a meeting of the Security Council under the Arria-formula?
In July 2013 the United Nations Secretary-General Ban Ki-moon appointed Ms. Jennifer Welsh as his Special Adviser at the Assistant Secretary-General level on the Responsibility to Protect. Ms. Welsh works under the overall guidance of Adama Dieng, the Secretary-General's Special Adviser on the Prevention of Genocide
According to information provided by this Office, her work consists in furthering the conceptual, political, institutional and operational development of the responsibility to protect concept, as set out by the General Assembly in paragraphs 138 and 139 of the 2005 World Summit Outcome document.
There is no definition of the Responsibility to Protect per se. The converse of this notion is the principle of sovereignty of state, and the fundamental issue here is the ambiguous line between the Responsibility to Protect and what is known in international criminal law as the crime of aggression, that is to say, the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations
As a matter of fact, the expression "responsibility to protect" was first presented in a 2001 report of the International Commission on Intervention and State Sovereignty. This Commission was established in September 2000 under the sponsorship of the Government of Canada and was formed in response to Kofi Annan's question as to when the international community should intervene for humanitarian purposes.
The report, "The Responsibility to Protect," found that sovereignty not only gave a State the right to "control" its affairs, it also conferred on the State primary "responsibility" for protecting the people within its borders. It proposed that when a State fails to protect its people — either through lack of ability or a lack of willingness — the responsibility shifts to the broader international community.
This "responsibility" would lean on three pillars which were formulated in the Secretary-General's 2009 Report (A/63/677) on Implementing the Responsibility to Protect, and which are:
- Pillar one: The protection responsibilities of the State.
The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement;
- Pillar two: International assistance and capacity-building.
The international community has a responsibility to encourage and assist States in fulfilling this responsibility;
- Pillar three: Timely and decisive response.
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.
However, this "responsibility" is not a principle, but a concept about which there is no agreement on its definition or its rules.
It is neither principle nor doctrine nor jurisprudence and it is circumscribed to the limits set out in paragraphs 138 and 139 of Resolution 60/1 of the General Assembly entitled "The 2005 World Summit Outcome Document", which states specifically:
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 community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.
The reference to this concept is linked to the various interventions that have occurred without the authorization of the United Nations for the use of armed force, as for example the cases of Iraq or Syria, as well as Libya, where although there was a resolution of the Security Council, this did not authorize aerial bombardment operations over the country.
The example of the bombardments over the former Yugoslavia in 1999 and the case of Kosovo are antecedents of this kind of action.
Amongst the major promoters of this notion is the former French Minister for Foreign Affairs, Bernard Kouchner, for whom the responsibility to protect and military intervention are one and the same thing.
It is hardly surprising that the States who most actively defend the concept are precisely those whose leaders would be perpetrating acts of aggression, or in any event, would be responsible for acts constituting crimes against humanity in the light of international criminal law. This is because they have organized and carried out military operations, the consequence of which have been killings, inhuman treatment, slavery, persecution against identifiable groups or collectivities on political, cultural, religious and other grounds, widespread displacement and other acts which, due to the fact that they are systematic and/or widespread, give them all the characteristics of the offence of crimes against humanity.
If we look at what is happening in Syria, the reality is that the terrorist organizations have been created as covert operations and have been financed, organized and armed by the main Western powers as part of geopolitical warfare known as "low intensity conflict" or "asymmetric wars". The strategists responsible for these covert operations have "dealt with" the necessity of providing cover for them by using proxy countries such as Pakistan and Saudi Arabia in the case of Al Qaeda, and Qatar, Turkey and Saudi Arabia in the case of ISIL, DAESH, Jabhat al-Nusra and dozens of other organizations.
From the point of view of international law these operations are aspects of wars of aggression and/or acts of aggression against third countries perpetrated by the United States, France, Great Britain, Spain and other countries. The use of Islamic fundamentalism as a military strategy obviates any need for justification on the basis of social and ideological conflicts and leads to disintegration of the state simply by recourse to military force. Secular or nondenominational states are defenceless in the face of this kind of plan for military violence and, in general, also defenceless in the face of the infinite means of electronic communication put at the disposal of these organizations and used as operations of social and political control and psychological warfare.
The problem now is who will close Pandora's Box.
And it is precisely these States who are the main standard bearers for the strained concept of "responsibility to protect".
The summary and conclusions of the fifth meeting of the Global Network of the Responsibility to Protect Focal Points, held in Madrid on 23 and 24 June 2015, transmitted to the Security Council by the Governments of Chile and Spain, address, for example, the controversial issue of the responsibility to protect and non-State actors.
The summary, published as Document S/2015/815 of the Security Council, states:
"[T]he focal points explored common themes regarding the responsibility to protect, terrorism and strategies for countering violent extremism, as well as when and how to utilize those different approaches to halt the commission of mass atrocity crimes by non-State armed groups. As some of those groups increase their capacity and even take a quasi-State form, as Islamic State in Iraq and the Levant (ISIL) has done in Iraq and the Syrian Arab Republic, responding to those challenges becomes ever more relevant and pressing."
"Preventing atrocities perpetrated by non-State armed groups also involves preventing those groups from recruiting new members. This applies to both the radicalization of potential supporters into a local non-State armed group and the rise in foreign fighters joining such groups."
These paragraphs fail to address the fact that these groups, in these areas and as mentioned above, have been created as covert operations and have been financed, organized and armed by the Great Powers. The support of these powers has included deployment of military experts for training purposes. These types of acts could amount to acts of aggression and undoubtedly constitute part of the planning of war crimes and crimes against humanity.
This meeting of the Global Network of the Responsibility to Protect Focal Points was held in association with the Global Centre for the Responsibility to Protect and the Stanley Foundation.
The Global Centre for the Responsibility to Protect is supported by the Governments of Australia, Belgium, Canada, Denmark, France, Germany, Luxembourg, The Netherlands, Norway, Slovenia, Sweden and United Kingdom, as well as Mexico, Rwanda and Switzerland.
This demonstrates that the countries which make up NATO are clearly and actively involved in the promotion of this notion, whether financially or by furthering its theoretical parameters.
Returning for a moment to the Arria-formula Security Council meeting held on 14th December 2015 on the responsibility to protect and non-state actors, this meeting was co-chaired by Spain and Chile.
According to the official information of the Spanish Ministry for Foreign Affairs, "[T]he meeting has constituted the first debate of the Security Council dedicated to this issue, in a year in which we remember the tenth anniversary of the adoption of the principle of the responsibility to protect in the World Summit of 2005".
The insistence that we are dealing with a principle has been challenged by countries such as Cuba, which, in its views on that meeting (distributed as Security Council document S/2016/29, of 12 January 2016) observed that "[I]ssues related to the topic of 'the responsibility to protect' are considered by the General Assembly", and that this is the only organ of the United Nations that allows for transparent, inclusive discussions, in which the positions and legitimate concerns of all Member States on a topic that has implications for all are given due consideration."
"The issue of the responsibility to protect continues to raise serious doubts for many countries, particularly small, developing States, owing to the lack of consensus and of definitions regarding various aspects of a concept that is susceptible to being manipulated for political reasons." "[B]efore applying the concept of the responsibility to protect, it is crucial that the General Assembly reach a consensus on its scope and implications, resolve differences of interpretation, guarantee its universal recognition and acceptance and lend legitimacy to the actions proposed for its implementation."
The crimes listed in paragraphs 138 and 139 of General Assembly resolution 60/1 constitute acts that every State should prevent, repress and repudiate, whether they are committed in the context of internal armed conflicts in developing countries or, as has happened in the recent past, by the occupying forces, law enforcement agencies or military forces of developed countries.
Another matter of concern with the use of this notion, is the intention to extend the scope of the responsibility to protect to situations that are not included in the 2005 World Summit Outcome, that is to say, to situations which do not constitute acts of genocide, war crimes, ethnic cleansing and crimes against humanity.
An additional problem is that other ambiguous terms have also been put forward which were not included in the 2005 Outcome or in the minimal consensus which exists on the responsibility to protect. Such is the case with the terms "atrocity crimes", "risk factors" and "imminent risks", which have yet to be clarified and agreed by the mechanisms and offices of the United Nations that are responsible for their definition and classification.
Yet another cause for concern is the lack of clarity with regard to who decides when there is a need to protect; who determines that a State is failing to protect its population; who determines the action to be taken, and on the basis of what criteria; and how to prevent the issue from being used for the purposes of intervention.
Organs such as the Security Council cannot assume functions that were not attributed to them. It is unacceptable to reinterpret the concept of collective security endorsed in the Charter of the United Nations, when it was conceived only in the context of threats to international peace and security and in order to protect the State against external attack.
In his article entitled "Illegal Armed Force as a Crime Against Humanity", the former Nuremberg prosecutor Benjamin Ferencz, who has dedicated decades to combatting the crime of aggression, explains the problem in the following terms:
"The international community, frustrated by political inability to use authorized armed force, has heralded a new justification under the guise of a 'responsibility to protect.' But one should never forget that lawful goals should not be pursued by unlawful means. Humanitarian intervention must not be a cloak for concealed political objectives. The use of armed might can only be legitimate under circumstances permitted by the U.N. Charter. The determination of whether armed force is lawful or criminal cannot be left to the self-serving and biased protagonists or their allies."
This programme was prepared with information provided by the United Nations, the Spanish Ministry for Foreign Affairs and Equipo Nizkor.
[Source: Radio Nizkor, Belgium, 22Jan16]
State of Exception
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