Lesson 3: Responsibility to Protect or Humanitarian Intervention to Stop Mass Atrocities?

Question 1

What is the Uniting for Peace resolution about and who can invoke it and how?

Answer 1

(UNGA Res) in any cases where the Security Council, because of a lack of unanimity among its five permanent members (P5), fails to act as required to maintain international security and peace, the General Assembly shall consider the matter immediately and may issue appropriate recommendations to UN members for collective measures, including the use of armed force when necessary, in order to maintain or restore international security and peace

Question 2

Does the Uniting for Peace resolution add anything to jus ad belllum? Would its application make it lawful to use force in Syria?

Question 3

What are the challenges arising from invoking the Uniting for Peace resolution?

Question 4

What is R2P about and what is new about it?

Answer 4

An international norm that seeks to ensure that the international community never again fails to halt the mass atrocity crimes of genocide, war crimes, ethnic cleansing and crimes against humanity.

Question 5

Who can invoke it? Who can implement it? How?

Answer 5

The use of force is invoked by the Security Council, however the ultimate actors would be the states. Regional networks are working to develop the architecture needed to implement this principle and encourage the sharing of good practices and expertise.

Question 6

How does R2P relate to use of force? To peacekeeping?

Answer 6

The doctrine dictates that it should respect the principle of national ownership; that any collective international action should employ the full range of diplomatic, political and humanitarian measures; and that military force should be considered only as a measure of last resort.

Question 7

Is R2P a real step forward? Why/why not?

Question 8

What is the legal status of R2P? Does it matter?

Answer 8

It is based on a GA resolution, however, the SC and SG have made various references to the concept in resolutions and presidential statements. State practise remains unclear (not customary law)

Question 9

Does R2P apply to what Denmark is doing regarding Iraq and to what the US is doing regarding Syria? Does it matter whether R2P is being invoked in these cases? In regard to which country could R2P currently matter and how?

Question 10

Does R2P apply in Denmark? How?

Answer 10

Yes, it is universal and apply to all member states

Question 11

Is it significant when the SC refers to the state’s ”primary responsibility” in resolutions 1973 and 2098? Which R2P pillars are ”in action” here and how? Is SC 1973 a milestone for R2P and if yes, why so?

Answer 11

• Pillar 1: It is first and foremost the state’s primary responsibility to protect its people, and only if the state fails to do so, may the community play a role (emphasis on sovereignty)
• Resolution 1973 authorised member states to take all necessary means under chapter VII to ‘protect civilians and civilian populated areas under threat of attack’.

Question 12

Why has NATO’s implementation of res. 1973 been criticized? Do you agree with the criticisms put forward in the reading for today? Is ”regime change” outside the ambits of R2P?

Answer 12

• a suspicion towards western humanitarian intervention (accused to be misinterpreted and misused)
• aimed at instituting regime change
• The overstepping of the UN mandate in Libya may have theunfortunate effect, as the current Syrian conflict appears to underscore, that thefirst useof this principle may also be the last.

Question 13

What is the content of RWP? What is different to R2P? Is it weakening or strengthening R2P? What do Libya and RWP mean for R2P?

Answer 13

• Principles must follow strict line of political subordination
• All peaceful means have to be exhausted
• The use of force can only be authorized by the Security Council according to Chapter VII of the Charter (Or 377)
• The authorization of the use of force must “be limited in its legal, operational and temporal element

Question 14

What are the similiarities and differences between R2P and HI? Why is HI so controversial?

Answer 14

• Both have PoC at its core
• Neither is hard law, but R2P has a legal backing, whereas HI is highly contested (HI is in the absence of authorisation)
• R2P is specific on the four crimes (genocide, ethnic cleansing, war crimes, and crimes against humanity)

Question 15

Having agreed to R2P, is HI no longer relevant?

Answer 15

R2P - because of its criticisms from Libya - has been framed as a western institution and, thus, lacked backing from the global south. In the face of the SCs passiveness (political selections) in certain conflicts, the option of having a way to address human atrocities without a SC authorisation is still appealing to some.

Question 16

Is HI lawful under the UN Charter? Under customary international law? Why/why not so? Do you agree with Harold Koh’s assessment? What about his ”law-making” moment?

Answer 16

• Poses the question: What if both the national government and the Security Council fail to fulfill their responsibility to protect?
• Based on a notion that IL is stale on the subject
• The legal justifications for using force should always be stated clearly

Question 17

What is the role of regional organisations regarding use of force under the UN Charter?

Answer 17

• Art 53: “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council”

Question 18

Is the African Union special in this regard? In terms of law, could a new customary law on humanitarian intervention emerge in Africa and is this perhaps already the case?

Answer 18

• Article 4(h) of the Constitutive Act of the African Union (AU) establishes the right of the Union to intervene in a member state to prevent grave violations of human rights. It does not state whether the AU should request prior authorisation from the United Nations (UN) Security Council, leading to many interpretations.
• It has not been used