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Sample Undergraduate 2:2 International Law Assignment

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The application of the Responsibility to Protect doctrine

Introduction

This paper will consider the application of the Responsibility to Protect doctrine in the context of third party nation State activity in Syria and Crimea. More specifically, this work aims to start a discussion about the way in which the Responsibility to Protect doctrine may function and be used by States in the highly flexible situations presented in Ukraine and Syria. What makes these situations particularly interesting to study is that unlike more common contexts involving the intervention on the territory of a State which is perpetrating human rights abuses, the intervention here may well be not against forces of the host state, but against forces of a  third party sovereign State.  While it is not possible to explore the issues such an eventuality would present in any detail, this essay will present observations which aim to help contribute to a wider discussion, as well as to reach some basic preliminary conclusions.

Responsibility to Protect – doctrine review

The essence of the Responsibility to Protect doctrine is that it places a responsibility upon the international community to intervene within the boundaries of a sovereign nation in order to protect the citizens of that nation from serious human rights violations (of the scale of genocide and war crimes), but only in situations where the legitimate government of that State is either unable or unwilling to do the same. [1]  The operative point here appears that the main authority which could ordinarily protect citizens is not in a position, for whatever reason, to carry out that task. Extending that logic should mean that this doctrine will also apply in cases of civil war where there is no central authority exercising complete control over a certain territory.  This appears to have been the case in practice recently, particularly in the case in Libya. At the very least, some scholars do believe that the United Nations Security Council authorisation for military intervention in Libya was an example of the Responsibility to Protect doctrine in action and that this step was motivated by the concerns which underlie the doctrine.[2] Those concerns, to be clear, were to ensure that the doctrine of Responsibility to Protect act as ‘an antidote to the inaction that had plagued the UN during the genocides in Cambodia, Rwanda and Srebrenica’ and that it ‘represents a solemn commitment by the international community to never again be passive spectators to genocide, war crimes, ethnic cleansing or crimes against humanity’.[3] In some ways (perhaps in many ways), the Responsibility to Protect Doctrine is linked and similar to the concept of Humanitarian Intervention in International Law, which is described by scholars in similar terms.[4] Both Humanitarian Intervention and the Responsibility to Protect Doctrine are justified by commentators on the grounds of Article 39 of the Charter of the United Nations, which states that the Security Council has the authority to determine whether there is a threat ‘to the peace, breach of the peace, or act of aggression’ and also to determine measures necessary to ‘restore international peace and security’.[5] This is read along with powers of the Security Council to adopt appropriate measures, to mean that military intervention is also an option.[6]

It should be noted, however, that the Responsibility to Protect does not solely mean to protect via military intervention – in fact this is at the top end of the spectrum of possible responses.[7] Former UN Secretary General Kofi Annan has, in the past, provided a rather lucid summary of the theoretical progression of this principle and its route to a potential practical application. The former Secretary General underscores firstly that the first and most proximate Responsibility to Protect civilians from the relevant types of egregious human rights violations, lies with their own State.[8] However, where a situation comes to pass where the government of that State is unwilling or unable to protect the citizens of that State from such abuses, the mantle of responsibility shifts towards the international community; however, the former Secretary General points out that discharging this responsibility involves the use of diplomatic, humanitarian and other ways of protecting the citizens of the State in question from human rights abuses. It is only after every such method has proven to be ineffective in ensuring the proper level of human rights protection from the types (and scale) of abuses relevant to this doctrine, that the UN Security Council is free to authorise the use of force against a Sovereign nation.[9]

The position of Kofi Annan highlights how high the threshold for intervention is and the emphasis placed in International law on the inviolability of national sovereignty. Furthermore, this statement demonstrates that the military intervention option ought to be authorised by the UN Security Council – at least according to the former UN Secretary General. Kofi Annan is not alone in this assessment however, with at least some academic commentary being of the same opinion. [10] The Responsibility to Protect doctrine poses certain interesting questions – for example, whether it can be used as justification to attack the forces of a third state operating in the territory of a State which is failing to protect its citizens, or whether the Responsibility to Protect can be used as justification to attack the forces of such a third state if they are already engaged in that territory under the Responsibility to Protect? These are big questions which cannot be answered fully here. However, this paper will aim to make some salient observations and start a debate.

Syria and Crimea – Different yet similar contexts

The Civil War in Syria has left little doubt of the existence of serious human rights abuses across the territory, such as allegedly ethnic cleansing and even genocide. [11]  What sets Syria apart from other human rights catastrophes in the world today is that there are so many players involved concurrently. Most notably, serious allegations have been made against Turkey and Russia. In the case of Turkey it has been alleged that they are guilty of war crimes and human rights abuses in the North of Syria (and especially the city of Afrin), where it has been shelling civilians and carrying out ethnic cleansing. [12] Russia on the other hand has been linked to several cases of alleged human rights violations, usually involving attacks on civilians. [13]

Russia is also implicated in the crisis in Ukraine which includes its annexation of Crimea and alleged support for rebels in Ukraine’s Donbass region. Both of these have led to serious, if different, types of human rights violations. What amounts to Civil war in Eastern Ukraine has given rise to alleged war crimes and human rights violations very similar in nature to those observed in Syria (if much smaller in scale); on the other hand, the annexation of Crimea has led to the trampling of the political human rights as enshrined in the European Convention of Human Rights.[14] The violations in the Crimea context allegedly includes rights such as the right to a fair trial, right to freedom of expression and others.[15]

Legality

From the above, it is clear that on the one hand, in the territories which this paper is concerned with, there are serious allegations of egregious human rights violations and a reasonably developed doctrine for intervention on the other.  However, military interventions under the Responsibility to Protect doctrine are seen as the last resort, not in the least due to the fact that military aggression against another State is explicitly contrary to international law.[16] The hypothetical situation under analysis here is different from the more common Responsibility to Protect context, since the question under consideration is whether it would be legal to strike not against the host State, but against a third party which is also a sovereign state. Saying nothing of how wise such an act would be,  the issue of legality straddles both the standard question of whether an intervention in the host state would be legal as well as the question of the legality of aggression against the soldiers of other sovereign states. With regard to the former, there is much contention as to whether it is legal to even carry out limited military strikes on Syrian territory without Security Council approval, with a considerable part of commentary leaning towards an answer of “no”.[17] The most serious impediment to the legality of any intervention in Syria is the principle of territorial integrity, which underlines the inviolability of a nation State’s borders in most circumstances.[18] The fact that this, forms the basis of legal opposition for intervention does, however, present interesting consequences. For instance, the Russian forces enjoy a veneer of legitimacy in Syria since they are there under the express invitation of the Syrian government. The same cannot be said for Turkish forces in Syria and indeed, Russian forces in Crimea and Eastern Ukraine.  Moreover, in the case of Eastern Ukraine and Crimea, the Ukrainian government could be expected to be receptive to the idea of Western intervention on its de jure territory against Russian forces. 

Conclusions

The consequences of the above are difficult to explore in such a short space, however it could be suggested that Russian soldiers on Ukrainian territory would enjoy little protection from the application of unilateral Responsibility to Protect action, since they are operating illegitimately in foreign territory and cannot avail themselves of the territorial integrity doctrine. The same would be true in Syria, however there they may well fall under the shield of Syrian territorial integrity, since they are operating at the behest of the legitimate government. Lastly, it is arguably open to any third party (for instance Russia) to legally attack Turkish forces in Syria since they have no territorial integrity legal protection to avail themselves of, are not operating under the Responsibility to Protect and are intruding in Syrian territory against the express intentions of the Syrian government. Naturally, these observations are merely preliminary and a much more thorough analysis is needed for issues of this complexity.

Bibliography

International Instruments

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

Secondary Source Commentary

Adams S (Dr), ‘Libya and the Responsibility to Protect’  (2012) Global Centre for the Responsibility to Protect Occasional Paper Series No. 3, accessed 22 June 2018.

ANF  News, ‘New massacres and war crimes by the Turkish army in Afrin’ (2018) March 5, ANF News, accessed 22 June 2018.

Annan K(United Nations Secretary-General), ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (2005) 21 March (UN Doc A/59/2005).

Aydogan G, ‘Turkey is committing war crimes in Afrin’ (2018) Green Left Weekly   accessed 22 June 2018.

Baruch P S and Weinstock B, ‘Military Intervention in Syria: Is It Legal?’ (2013) September 11, The Institute for National Security Studies, INSS Insight No. 465.

BBC News, ‘Syria war: Turkey 'indiscriminately shelling civilians in Afrin'  (2018) February 28, BBC News, accessed 22 June 2018.

Bodette M, ‘Turkey is committing war crimes in Afrin, Syria’ (2018) February, The Region, accessed 22 June 2018.

Hakimi M, ‘Toward a Legal Theory on the Responsibility to Protect’ (2014) no. 2 Yale Journal of International Law 39.

Human Rights Watch, ‘Russia Backs Syria in Unlawful Attacks on Eastern Ghouta’ (2018) March 18,

HRW, accessed 22 June 2018.

Human Rights Watch, ‘Syria/Russia: Airstrikes, Siege Killing Civilians’ (2017) December 22 HRW accessed 22 June 2018.

Kritsiotis D, ‘Reappraising Policy Objections to Humanitarian Intervention’ (1998) 19 Michigan Journal of International Law 1005,.

Lemnitzer J (Prof), ‘Syria strikes violated international law – are the rules of foreign intervention changing?’ (2018) April 18, The Conversation, accessed 21 June 2018.

Marxsen C, ‘The Concept of Territorial Integrity in International Law – What Are the Implications for Crimea?’ (2014) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Heidelberg Journal of International Law) Available at SSRN: accessed 22 June 2018.

MIGS, ‘Genocide and Mass Atrocities Alert: Syria’ (n.d.) accessed 22 June 2018.

Peters A, ‘The Security Council's Responsibility to Protect’ (2011) Vol. 8, No. 1, International Organisations Law Review, Available at SSRN: accessed 22 June 2018.

Sarkin J, ‘The Responsibility to Protect and Humanitarian Intervention in Africa’ (2012) 2(4) Global Responsibility to Protect  371.

Wallace S and Mallory C, ‘Applying the European Convention on Human Rights to the Conflict in Ukraine; (2016)  University of Cambridge Faculty of Law Research Paper No. 48/2016. Available at SSRN: accessed 22 June 2018.


[1] Monica Hakimi, ‘Toward a Legal Theory on the Responsibility to Protect’ (2014) no. 2 Yale Journal of International Law 39, 247-80.

[2] Dr Simon Adams, ‘Libya and the Responsibility to Protect’  (2012) Global Centre for the Responsibility to Protect Occasional Paper Series No. 3, accessed 22 June 2018.

[3] Ibid, 3.

[4] Dina Kritsiotis, ‘Reappraising Policy Objections to Humanitarian Intervention’ (1998) 19 Michigan Journal of International Law 1005,  1005.

[5] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

[6] Jeremy Sarkin, ‘The Responsibility to Protect and Humanitarian Intervention in Africa’ (2012) 2(4) Global Responsibility to Protect  371.

[7] Kofi Annan (United Nations Secretary-General), ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (2005) 21 March (UN Doc A/59/2005) para. 135.

[8] Ibid.

[9] Annan (n 4).

[10] Anne Peters, ‘The Security Council's Responsibility to Protect’ (2011) Vol. 8, No. 1, International Organisations Law Review, Available at SSRN: accessed 22 June 2018.

[11] MIGS, ‘Genocide and Mass Atrocities Alert: Syria’ (n.d.) accessed 22 June 2018.

[12]Gokcan Aydogan, ‘Turkey is committing war crimes in Afrin’ (2018) Green Left Weekly https://www.greenleft.org.au/content/turkey-committing-war-crimes-afrin accessed 22 June 2018; ANF  News, ‘New massacres and war crimes by the Turkish army in Afrin’ (2018) March 5, ANF News, accessed 22 June 2018; Meghan Bodette, ‘Turkey is committing war crimes in Afrin, Syria’ (2018) February, The Region, accessed 22 June 2018; BBC News, ‘Syria war: Turkey 'indiscriminately shelling civilians in Afrin'  (2018) February 28, BBC News, accessed 22 June 2018.

[13] Human Rights Watch, ‘Russia Backs Syria in Unlawful Attacks on Eastern Ghouta’ (2018) March 18, HRW, accessed 22 June 2018; Human Rights Watch, ‘Syria/Russia: Airstrikes, Siege Killing Civilians’ (2017) December 22 HRW accessed 22 June 2018.

[14] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5,

[15] Sturat Wallace and Conall Mallory, ‘Applying the European Convention on Human Rights to the Conflict in Ukraine; (2016)  University of Cambridge Faculty of Law Research Paper No. 48/2016. Available at SSRN: accessed 22 June 2018.

[16] Sarkin (n 6), citing the UN Charter.

[17] Professor Jan Lemnitzer, ‘Syria strikes violated international law – are the rules of foreign intervention changing?’ (2018) April 18, The Conversation, accessed 21 June 2018; Pnina Sharvit Baruch and Brandon Weinstock, ‘Military Intervention in Syria: Is It Legal?’ (2013) September 11, The Institute for National Security Studies, INSS Insight No. 465.

[18] For an explanation of the principle, see Christian Marxsen, ‘The Concept of Territorial Integrity in International Law – What Are the Implications for Crimea?’ (2014) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Heidelberg Journal of International Law) Available at SSRN: accessed 22 June 2018.

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