Non-state actors and international obligations under humanitarian law: an analysis of the R2P

Author: Ibrahim Kaunda, Masters of Law and Legal Practice Course at the University of Law in London, 2022-2023.

Editor: Danai Daisy Chirawu, Erasmus Mundus Joint Masters in Human Rights Policy & Practice (2021-2023), The University of Gothenburg, University of Deusto, University of Roehampton & The Arctic University of Norway, Bachelor of Laws (With Honours) (LLBS) (2012-2016) – the University of Zimbabwe.

 

Abstract

Under Humanitarian law, non-state actors have an obligation to guard the human rights of the citizens of the world. This obligation becomes their responsibility to observe and protect basic human rights worldwide.  The responsibility comes under the term R2P. R2P is the basis of the responsibility which has been placed on the shoulders of the governments or states. This affirms that the state has the responsibility to protect its citizens from any form of violence that might result in gross violations of human rights. If not controlled, the failure of the state in protecting its citizens will invite the intervention of non-state actors. The R2P has been criticized by some scholars who pointed out that this compromises the state’s sovereignty, while some scholars are of the opinion that, if the state is failing in protecting its citizens, it risks losing its immunity of sovereignty and therefore susceptible to intervention.

INTRODUCTION

This paper contends that non-state actors have obligations under humanitarian law. These obligations come in the form of responsibilities to protect (Also known as R2P). However, some scholars have argued that this responsibility runs directly against the principle of sovereignty as it involves interfering with the affairs of an independent country with the aim of promoting human rights. Therefore, it compromises human rights and sovereignty. However, the question of whether the compromise is good or bad depends on the actual outcome of the interference where R2P has been applied. So far since its introduction in 2005, R2P has been legitimately applied in Libya. This was a military action aimed at protecting civilians from the atrocities caused by their government. The actual results from this exercise were held to be different from the planned operation as it turned to kill more civilians than protecting them.

This essay is divided into six parts of which the first one is a background of study which is on the basis of the debate. The chapter is analyzing the background of the study before it was known to be R2P, as it was referred to as  ‘humanitarian intervention’. This part discusses different views on humanitarian intervention and state sovereignty.

The second part discusses in detail the concept of ‘sovereignty’, historically to the present day. In this section, the principle of sovereignty dates back from the Treaty of Westphalia until now when it is governed by the Charter of the UN.

The third part discusses the doctrine of ‘responsibility’ to protect along with the concept of sovereignty.

The fourth part of the essay discusses how R2P compromises human rights and state sovereignty. It contends that the enforcement of human rights across borders compromises the principle of sovereignty.

The fifth part is a case study of the first application of R2P in Libya where it turned out to be contrary to the expectations of the framers of the R2P.

Finally, this paper concludes that the doctrine of R2P which sets the obligations of the non-state actors in humanitarian law, compromises human rights and state sovereignty. It directly runs against the doctrine of sovereignty as provided in the charter of the United Nations. However, whether this is a good compromise, depends on a case-by-case basis.

DEBATES ON HUMANITARIAN INTERVENTION AND STATE SOVEREIGNTY

It has been debated worldwide as to whether there should be humanitarian intervention whereby the international community must intervene in the affairs of another state with the aim of enforcing the restoration of the gross human rights violation. The debate has invited two different schools of thought: one group is of the opinion that humanitarian intervention is so important and therefore encourages the practice at a sovereignty’s price, while the other group is of the opinion that at any cost; sovereignty must be respected and no intervention of any kind must take place to violate the concept (Fleiner, Gerster, and Meyer, 1985, p.277).

Those of the Intervention Opinion insist that sovereignty can be curbed at the expense of human rights violations, they say that sovereignty is a responsibility and not a right.  Where the country violates human rights or is not carrying its responsibility properly to protect its citizens, it loses the immunity to intervention. ‘State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself. Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect (ICCC report 2001). They are also encouraging the intervention by saying that in the modern world, states are interdependent on one another and therefore any problem facing one country can affect the whole globe therefore intervention is really important as it can save the escalation of crisis from one state to another.

Additionally, others argue that the international community’s coming together to protect the environment with a global governance concept i.e. national interests are considered to be common hence the need to be defended by the international community. All these factors have led to the redefinition of the state and therefore sovereignty (Gaba, 2011). On the other hand, the gap between international law and what has been considered moral behaviour is what makes humanitarian intervention justifiable. This stems from the NATO Intervention in Kosovo, it was perceived to be legal as it was based within the framework of International law which includes basic human rights norms and the UN Security Council’s adopted resolutions under chapter vii of the charter and also the NATO’s action was ratified by the UN of which the secretary general accepted whereby he said: “there are times when the use of force may be legitimate in the pursuit of peace” (Nadezhda, 2008).

While those who are in support of sovereignty, are of the opinion that sovereignty cannot be limited, nor can it be divided. They are of the belief that humanitarian intervention is contrary to the principle of sovereignty which is one of the basic principles of international law – to them sovereignty is so important in the maintenance of the current world order and stability. They see humanitarian intervention as against this basic principle of international law as it involves the interference of national affairs and therefore not acceptable. Some scholars have asserted that humanitarian intervention can cause greater loss than the loss that could come without Intervention (Nadezhda, 2008). “Good intentions do not automatically shape good outcomes. On the contrary, there is no humanitarian crisis so grave that outside military intervention cannot make it worse. The use of military force must always/ always/be the option of last resort, not the tool of choice for dealing with threatened or occurring atrocities” (Nurzzaman 2014). This school of thought argues that intervened conflicts tend to be bloodier than those without third-party intervention because it leaves the sovereign state worse and makes the intervening powers get lost in the involvement of long-term outstanding conflicts as once Gidon Gottlieb a researcher argues that “the value of the organized state is not to belittled: the absence of governmental authority makes an apocalyptic anarchy possible, as events in Somalia which can illustrate the darkest pages of Hobbe’s Leviathan have demonstrated” (Nadezhda, 2008). Where he claims that the non-intervention saves the weaker states from powerful states. (Nadezhda, 2008)

Accordingly,  humanitarian intervention is postured as compromising state sovereignty as it involves interference with internal affairs.

THE CONCEPT OF STATE SOVEREIGNTY

In the year 1648, State sovereignty was originally defined in the Westphalian system as a quality of state and of the international system based on the European International order (Johnson, 2015. P.619). Currently, state sovereignty is legally defined by the Charter of United Nations article 2(4) which says: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations (Charter of the United Nations Art 2(4)). This article prohibits the use of force from one country against another sovereign state and further, article 2(7) declares that nothing in the charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state. And on the other hand, Article 2(2) requests all member states of the United Nations to “fulfil in good faith the obligations assumed by them in accordance with the present charter”. The articles together empower the states to regulate their territory freely yet the last article 2(2) limits the extent to which these powers can be exercised by making sure that they are being discharged in good faith.

This entails the sovereignty as territory together with the population within that territory. This part of article 2(2) is the anchor of sovereignty up to this modern period. These articles articulate the requirements listed in the Peace of Westphalia in 1648. It was also provided in this treaty that the exercise of power could be limited by means of a treaty domestically where the members of different religions could do the treaty. The new thing that has been brought into modern sovereignty regulation is the limiting of sovereignty internationally that is with other sovereign states (Johnson J.T. 2015). Therefore, according to the current law, the state is sovereign when it is observing the provision of the treaty by making sure that it is discharging its duties in good faith according to Article 2(2) of the UN Charter. This makes sovereignty a responsibility (Ayoob, 2002). Sovereignty as responsibility can be defined as the right to rule a particular territory and the people within that territory (Thomson, 1995). This means that sovereignty has both internal and external dimensions where it stands the capability of defining the behaviour within the international community. Depending on circumstances, sovereignty as responsibility varies the autonomy and the degree of control but the right to rule always remains the same. As (Ayoob, 2002) puts it that the right to rule remains the constant ingredient of sovereignty even when control is diminished, and autonomy diluted.

Sovereignty, therefore, constitutes both internal attribute and external recognition by the international community and this is regarded as an important fact where power is distributed unequally as Benedict Kingsbury pointed out that ‘The normative inhibitions associated with sovereignty moderate existing inequalities of power between states, and provide a shield for weak states and weak institutions. These inequalities would become more pronounced if the universal normative understandings associated are to be discarded’ (Kingsbury 1999). This is the notion that the international society’s normative value of sovereignty that acts as immunity to intervention and therefore should not be underrated. On the other hand, as explained above, sovereignty is not absolute as it comes with responsibility as well. Sovereignty as responsibility includes the responsibility to fulfil as much as possible the minimum requirement for human rights protection. These are duties owed by a state to the citizens and the international community as well as those institutions charged with the responsibility to govern and monitor international norms of civilized behaviour (Ayoob, 2002, p.84).

In other words, this means that the state’s actions toward its citizens must conform to the set standard by other states and international organizations. Failure to meet those standards, the country prone to humanitarian intervention where the violation of basic rights has been assessed and confirmed to have occurred. The purpose of humanitarian intervention as stipulated in the UN Security Council Charter is to try as much as possible to stop the atrocities suffered by the particular group of people targeted by either their government or another group of people and the government does not have the capacity to stop it or it is deliberately neglecting it or where the government is the perpetrator (Smith, Hadfield and Dunne 2012 pp78-94). This process of intervening in the affairs of another sovereign country with the aim of stopping the systematic violation of human rights is known as the ‘Responsibility to Protect’ (Also Known as R2P).

RESPONSIBILITY TO PROTECT AND THE CONCEPT OF SOVEREIGNTY

Following the report of the International Commission on Intervention and State Sovereignty (ICISS) in 2001, came the concept of responsibility to protect (Also known as R2P). This was debated morally and legally as it was assessed for its applicability in the sovereign states. R2P is linked directly to the concept of sovereignty as a responsibility. As already discussed above, this means that the sovereignty of the state is attached to its responsibility to protect its citizens and International law, once it stops taking care of this responsibility, the country loses its immunity to intervention (Johnson 2015 pp 627). The report laid down the procedures and rules of this new approach to intervention by distinguishing itself from the previous way of intervention. The basic requirement for the intervention in this report was the individuals’ rights whereby it stipulates that sovereignty implies a dual responsibility: i.e., externally the respect of other state’s sovereignty (Johnson 2015. Pp. 268) and the respect for the basic human rights of all the countries’ own citizens. With this system, the state’s actions owe its responsibility to the individuals, other states, and international observers (International Institutions or non-state actors) who are guardians of International norms (Ayoob 2002 p84).

The reasons for intervention under ICISS differ from those in the previous humanitarian intervention as it does not involve just cause as a reason for intervention but it mainly bases the need for intervention where the gross violation of human rights has taken place within the state in question and the reason for the intervention being to stop the atrocities from continuation and force was considered as the last resort where possible (ICISS 2001). ‘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’(UN General Assembly 2005). Much as military action is of last resort, the report still emphasized the need for those actions to be authorized by the UN Security Council. There is still an open end, where the Security Council is slow to act, actions by the General Assembly, regional organizations of states, and of last resort, which is also not liked by many, where possible, action by single states. However, by the time of this report, the most successful interventions were the ones done without the UN Security Council’s authority for example the strike by NATO in Kosovo (Bellamy 2005).

It has been continuously debated to find the real definition of the wording in the report to have exact meaning on what involves responsibility to protect. As the custom, this was seen as the developing norm so establishing its legal basis is what has been debated. The ICISS report openly invites states to take responsibility to protect their population from different types of human rights violations being it ethnic cleansing, genocide, and all sorts of crimes against humanity, and the states are encouraged to take responsibility for these by providing support to the populations through appropriate diplomatic, humanitarian and other peaceful means as provided in chapters 7 and 8 of the charter and where these solutions seem ineffective, then the help should be by means of military intervention through the security council.

At Security Council, the intervention is considered on a case-by-case basis in cooperation with relevant regional organizations (Chesterman 2011). While chapter VII talks about defending the rights where the violation involves the breach of peace and acts of aggression which have effects across borders. It can be argued that this is different from the basics of R2P that the ICISS report is intending to address. Since the establishment of R2P, there is only one case in which UN Security Council authorized to carry out a military intervention for humanitarian reasons in Libya in 2011. If we are to engage the two definitions of sovereignty provided above and follow the application of chapter VII of the charter, then sovereignty by responsibility will not gain anything in terms of chapter VII of the charter as this arm of sovereignty compels the government to do as much as possible to serve what is good for its people. For what is given up is the possibility of enforcement of this finally by threat or use of force (Davidson 2012). This, therefore, makes R2P different from the previous idea of sovereignty as the previous one was concentrating on the moral responsibility of those charged with governance or authority who when they fail, their responsibility was removed from power. Yet the debate over the R2P has taken a completely different path from the regime change, and it’s clear proof of an example of interference with the other country’s internal affairs, the same thing Article 2(4) of the charter prohibits. As the provision of the current political theories, the right to choose the ruler although not practically proven rests with the citizens of that country and this is also what paragraph 138 of the World Summit 2005 stipulated that the citizens must choose their leader and also leaders must protect their vulnerable citizens from any atrocities (Johnson 2015. Pp. 268).

So how does R2P interfere with this right?

HOW R2P DOES COMPROMISE HUMAN RIGHTS AND STATE SOVEREIGNTY?

The international system generally encourages sovereignty as explained above. And the requirement is that the sovereign state has the right not to have its affairs externally interfered with. This right is provided in the UN Security Council charter article 2(4) which says: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations (Charter of the United Nations Art 2(4)). However, since 1991 Humanitarian Intervention has been repeatedly interfering with this right to protect civilians from harm. The recent upgrade of this intervention took place in the year 2005. The principle of R2P was established to provide more support to the vulnerable marginalized citizens of another state where gross human rights violations have been systematically taking place (United Nations). R2P is promoted with the belief that the rights of citizens are the basis of sovereignty and therefore states are there to protect these civilians within their jurisdictions (Resolution 59/314).

However, R2P runs directly against the UN charter’s requirement of non-interference with the state’s sovereignty as it directly attacks the sovereignty of the independent state. Hoeylandt in one of his articles wrote: “One obvious factor that makes humanitarian intervention more complex than individual rescue is that it constitutes an intervention by one state or by a coalition of states in another state. That state may be the holder of rights which require outsiders to refrain from intervening militarily in what is often described as its internal affairs” (Hoeylandt, 2000). Further to that, article 51 of the Charter of the United Nations states “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security” (UN Security Council art. 51).

The fact that R2P is against sovereignty principles, has brought a different reaction from the concerned parties and scholars. Some are in support of it while others are against it: Keohane and Holzgreef questioned under what conditions are unauthorized humanitarian interventions (R2P) justified, and they said that this is likely to open for abuse practically under all conditions (Holzgreef and Keohane 2003). While Paris attributes his argument to the structural problem of the R2P where he said that the doctrine is important as its focus is not entirely on military action and he continued by saying that intervention for the humanitarian purpose may warrant continued enjoyment of widespread support international affairs.

On the other hand, Nuruzzaman is somehow concurring with Keohane and Holzgree when he mentions that the R2P contains theoretical drawbacks that the Western powers are taking advantage of and use for the purpose of achieving their interests and therefore ethical standards and moral values are expensed for falsehood, fabrications, and distortions of realities while using intervention for the promotion of narrow interests (Nuruzzaman 2014).

These arguments form part theoretical framework and therefore the practice ought to be analyzed to synthesize this paper’s outlook.

R2P IN LIBYA

Libya represents the first of its kind of practical application of R2P. This was applied properly under the authority of UN Security Council resolution 1973 in 2011. Its aim was to protect civilians who were fighting their government for a democratic system of government (Resolution 1973 para 4). This intervention as already mentioned was a representation of the application of the doctrine of R2P. The authorization was of its first kind smoothly by the representatives of the UN Security Council in which the votes in favour were 10 out of 15. It received a broad international endorsement. However even with that support, from its initial formulation, questions were raised on how military action would prevent mass atrocities practically. Would the doctrine continue receiving support without drawbacks after its first application? (Thakur, 2013. P 61-76). However, as Paris argues, the results of the intervention in Libya were very discouraging as the outcome represented something unexpected (Paris 2014). In the name of R2P, the members reacted so fast from the beginning until actual action, it took 6 months to complete the whole mission. There was no clear action plan for the mission although the intervention received voting support. The intervention took place because of the failure of peace talks.

The Arab League called for the UN intervention in the fry zone in Libya. This was in response to the Libyan government’s plans to send troops to fight the rebels. Unfortunately, on passing Resolution 1973, the action plan was not properly articulated by the members. The French, British, and USA armies were the first to start bombing the Libyan army bases and then they were joined by the NATO soldiers after two weeks (Brockmeier, Stuenkel, and Tourinho 2016). The plan for peace talks by African Union was going on alongside the bombing but they were frustrated because once the bombing started, the members did not want to stop. Other efforts were also made to help to solve the problem diplomatically through negotiation by the coalition group (i.e., NATO Jordan, Qatar, and the UAE), but this also proved futile for the same reason as above (Brockmeier, Stuenkel, and Tourinho 2016). The initial reason for passing the Resolution 1973 was to try as much as possible to protect civilians. This is also the main reason why R2P came into existence, but the actual results of the intervention were discouraging as it was reported that there were a lot of casualties than they were before the intervention. The intervention ended by toppling the government and killing the Libyan leader and creating a power vacuum contrary to the initial resolution as Amir Mussa says: “What is happening in Libya differs from the aim of imposing a no-fly zone, and what we want is the protection of civilians and not the shelling of more civilians.” (Amir Mussa 2011) reported by (Cody 2011).

The actual results of the intervention in Libya also disappointed the other members of the UN Security Council (China, Russia, and Brazil) who initially opposed the use of force by saying that they were fully in support of the mission to save the Libyan population from the atrocities but they were opposing the use of force as a solution because they believed that the situation could be solved through peaceful negotiation (UN Security Council S/PV. 6498). The use of force in R2P has been the source of debate since its initiation by the ICISS. People wanted to know what role the use of force will be playing during the intervention to protect civilians (Brockmeier, Stuenkel, and Tourinho 2016). Referring to my earlier discussion above, the application of R2P in Libya was an experiment to prove its viability in future interventions, now the question is: Is R2P a good compromise between human rights and state sovereignty? Following the results of the intervention in Libya, one could argue that there is more to the application of R2P than the doctrine itself as we have seen that the actions of the Intervening members were contrary to what was authorized. Looking at the failure to apply this doctrine in Syria where Thousands of civilians are dying every day, one could argue that the doctrine is paralyzed. I would like therefore to agree with Thakur on this when he said: “Libya proved to be almost a textbook illustration justifying R2P principles, but its implementation also demonstrated the need for legitimacy criteria to guide decisions on authorizing and overseeing international military intervention. Although successful, the Libyan operation proved particularly controversial among the emerging powers, and the price of exceeding the mandate there has been paid by Syrians” (Thakur 2013 p 61-76).

CONCLUSION

From the discussions above one can argue that R2P although it forms the basis of human rights protection and gives non-state actors an obligation under humanitarian law, it compromises human rights and state sovereignty in the sense that the application of R2P goes directly against the principle of sovereignty as provided in the charter of the UN Security Council. Because it involves the enforcement of human rights which is universally recognized. However, whether the compromise is good or bad, is a matter of fact as it directly depends on the actual results after the application of the doctrine in that country. As it is now, following the first application of the doctrine of R2P in Libya, one can conclude that the non-state actors’ obligations under humanitarian law compromised the state sovereignty and it was not in a good way but seeing the discussions above it can also be argued that this wasn’t as a result of the actual application of the R2P but the actors as it was already in conflict with the authorizing purpose. Yes, as Paris argues that the results in the application of R2P in the Libyan conflict do not suggest that R2P is fated to fail he pointed out that there is more to the doctrine than the use of force. He suggested that if the doctrine is to be used in other ways like diplomatic dialogue and other nonmilitary methods, R2P can bring good results and promote human protection in the world. He recommended that the idea that countries have a duty to safeguard their own populations from extreme harm and that external intervention for humanitarian purposes may sometimes be warranted continues to enjoy widespread support in the world beyond the Libyan controversy and directed that what matters most after this is the clear way of putting these ideas into practice. Finally, he argued that the problem with the application of R2P is the structural problem of preventive humanitarian Intervention which makes the application of the doctrine tricky. (Paris 2014).

 

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