International Armed Conflicts and Responsibility to Protect (R2P) in International Humanitarian Law

INTRODUCTION

International Humanitarian Law was conceived as the legal regime which limited the behaviour of parties in war-like situations. In the respective treaty laws, war-like situations are referred to as armed conflicts. Thus, International Humanitarian Law limited the behaviour of parties to armed conflicts.

International Humanitarian Law only applies to situations which have reached a special threshold of armed violence. Either between states, between states and certain non-state actors, or even between non-state actors.

Therefore, International Humanitarian Law does not apply to internal disturbances or tensions falling below that threshold such as riots, isolated and sporadic acts of violence, or acts of terror. In these latter situations, human rights law and domestic law would apply.

International Humanitarian Law recognises two types of armed conflicts:

1. International Armed Conflicts or IACs, which occur between two or more states and
2. Non-International Armed Conflicts also known as NIACs or civil wars, which usually occur within a state.

Both International and Non-International Armed Conflicts are governed by a different set of rules as a result of political history.

State officials have regulated interstate conflicts for centuries through the signing of international agreements. They have been reluctant, however, to set up more concrete international law rules for civil wars.

As a result the current body of treaty law is much more extensive for international armed conflict than for non-international armed conflicts.

DEFINING INTERNATIONAL ARMED CONFLICT

Traditionally, states expressed their intention to start a war through formal declaration. Today however, international armed conflict is presumed to exist as soon as a state uses armed force against another state, regardless of the reasons for the confrontation, the intensity of the violence or the existence of a formal declaration of war.

The classic form of armed conflicts is international in character and waged between two or more states.

SOURCES OF INTERNATIONAL ARMED CONFLICT

The rules of IHL governing situations of international armed conflicts have been codified primarily in:

1. The 1907 Hague Regulations

2. The four Geneva conventions

3. The Additional Protocol I

4. Customary International Law

TEMPORAL SCOPE OF INTERNATIONAL ARMED CONFLICT

The applicability of IHL governing international armed conflicts begins with a declaration of war or, in the absence of such declaration, with the actual use of armed force expressing belligerent intent. It is also triggered by the mere fact of one State invading another with a view to occupying all or part of its territory, even when such invasion meets with no armed resistance.

An international armed conflict ends with a peace treaty or an equivalent agreement, or with a unilateral declaration or other unambiguous act expressing the termination of belligerent intent, such as a capitulation, declaration of surrender, or unconditional, permanent and complete withdrawal from previously contested territory. Today, international armed conflicts rarely end with the conclusion of a formal peace treaty; they more often tend to terminate in a slow and progressive decrease in intensity, unstable cease-fires and/or the intervention of peacekeepers.

DIFFERENTIATING SCOPE OF RULES APPLIED IN INTERNATIONAL ARMED CONFLICT WITH SCOPE OF IHL

The temporal scope of an international armed conflict has to be distinguished from the temporal scope of application of IHL rules related to those conflicts. Indeed, the fact that a conflict has ended does not preclude certain aspects of IHL from continuing to apply even beyond the end of the conflict.

For example, persons deprived of their liberty for reasons related to an armed conflict remain protected by IHL until they have been released and repatriated or their status has otherwise been normalized, and former belligerents also remain bound by obligations with a view to restoring family links, accounting for the dead and the missing and similar humanitarian endeavors.

RIGHT / RESPONSIBILITY TO PROTECT (R2P or RtoP)

The Responsibility to Protect or Right to Protect (R2P or RtoP) is a global political commitment which was endorsed by all member states of the United Nations at the 2005 World Summit in order to address its four key concerns to prevent genocide, war crimes, ethnic cleansing and crimes against humanity.

The principle of the Responsibility to Protect is based upon the underlying premise that sovereignty entails a responsibility to protect all populations from mass atrocity crimes and human right violations. The principle is based on a respect for the norms and principles of international law, especially the underlying principles of law relating to sovereignty, peace and security, human rights, and armed conflict.

PARA 138

The Responsibility to Protect provides a framework for employing measures that already exist (i.e., mediation, early warning mechanisms, economic sanctions, and chapter VII powers) to prevent atrocity crimes and to protect civilians from their occurrence. The authority to employ the use of force under the framework of the Responsibility to Protect rests solely with United Nations Security Council and is considered a measure of last resort. The United Nations Secretary-General has published annual reports on the Responsibility to Protect since 2009 that expand on the measures available to governments, intergovernmental organizations, and civil society, as well as the private sector, to prevent atrocity crimes.

The Responsibility to Protect is a political commitment unanimously adopted by all members of the United Nations General Assembly at the 2005 World Summit and articulated in paragraphs 138–139 of the 2005 World Summit Outcome Document:

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.

PARA 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 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 manifestly fail 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.

THREE PILLARS OF RESPONSIBILITY TO PROTECT (R2P)

The Responsibility to Protect consists of three important and mutually-reinforcing pillars, as articulated in the 2009 Report of the Secretary-General on the issue, and which build off of paragraphs 138 and 139 of the 2005 World Summit Outcome Document and the intergovernmental agreement to the principle:

• Pillar I: The protection responsibilities of the state;
• Pillar II: International assistance and capacity-building;
• Pillar III: Timely and decisive response.

THE RESPONSIBILITY TO PROTECT AND ‘HUMANITARIAN INTERVENTION’

• The Responsibility to Protect differs from humanitarian intervention. Humanitarian intervention only refers to the use of military force, whereas R2P is first and foremost a preventive principle that emphasizes a range of measures to stem the risk of genocide, war crimes, ethnic cleansing or crimes against humanity before the crimes are threatened or occur. The use of force may only be carried out as a measure of last resort, when all other non-coercive measures have failed, and only when it is authorized by the UN Security Council. This is in contrast to the principle of ‘humanitarian intervention’, which allows for the use of force as a humanitarian imperative without the authorization of such bodies like the Security Council.

CRITICISM

Infringement on National Sovereignty: One of the main concerns surrounding R2P is that it infringes upon national sovereignty. This concern is rebutted by the Secretary General Ban Ki-moon in the report Implementing the Responsibility to Protect.

According to the first pillar of R2P, the state has the responsibility to protect its populations from mass atrocities and ethnic cleansing, and according to the second pillar the international community has the responsibility to help states fulfill their responsibility.

FURTHER READINGS

1. https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf
2. https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf
3. https://gsdrc.org/topic-guides/international-legal-frameworks-for-humanitarian-action/concepts/overview-of-international-humanitarian-law/
4. https://www.eadarsha.com/eng/international-armed-conflict-substitute-to-war/
5. https://www.un.org/en/genocideprevention/about-responsibility-to-protect.shtml