International Humanitarian Intervention: Responsibility to Protect.

Title:

International Humanitarian Intervention: Responsibility to Protect.

Citation:

Box, M. (2019). International Humanitarian Intervention: Responsibility to Protect. Retrieved from www.scholaratlarge.com

Course:

Master of Laws. University of New England

Abstract:

This paper discusses the international law (human rights and criminal) implications of a a scenario involving military intervention to prevent an unfolding humanitarian crisis. Issues discussed including the right to self-determination, collective security, Responsibility to Protect, and the doctrine of universal jurisdiction.

Paper:

The purpose of this paper is to examine the human rights consequences of a scenario involves a militia group, supported by State A, occupying the territory of State B where the dominate ethnic group of State A was a minority. International Organisation Z (IOZ) intervened and restabilised State B’s control over this territory, in the process expelling the ethnic minority. Six question relating to this scenario have been posed: in addressing these questions this paper will be split into two sections. The first section will explore the actions of the militia group and its relationship with State A. In the second section the discussion will move to an examination of the actions of IOZ: its intervention and the implications of the deportation of the ethnic minority group.

It is important to highlight the methodology used in this analysis: it consists of an examination of commentary on simular issues as those posed by this scenario. Such an approach is justified by the observation of former Australian Foreign Minister and member of the International Commission on Intervention and State Sovereignty (ICISS) Gareth Evans: “International law, being the rather odd beast it is, capable of evolving through practice and commentary as well as through formal treaty instruments, these embraces and acknowledgements are to some extent self-fulfilling.” [1] In essence this will be an examination of customary international law along with the black letter law of conventions.[2] Furthermore, it should be noted that the facts provided are not conclusive and lead to several possibilities: it will be necessary to make assumptions and give more than one answer based upon the different assumptions.

Militia Group

This section will explore the actions of the militia group and the support provided by State A: the legality of these actions rests primarily on the notion of self-determination. The right to self-determination is imbedded in International Human Rights Law (IHRL): International Covenant on Civil and Political Rights (ICCPR) and International Covenant of Economic, Social and Cultural Rights (ICESCR) have identical article 2 along with the principle appearing in the United Nations (UN) Charter (Article 1(2)).[3] Malanczuk argues that there have been significant developments since 1945 due to actions within the United Nations General Assembly (UNGA) indicating state practice[4]: for instance the Declaration on Granting of Independence to Colonial Countries and Peoples.[5] Furthermore, this point has judicial support from the International Court of Justice (ICJ) in the East Timor Case[6] which expressed the view that self-determination has become part of customary international law. Customary international law allows for the use of force to achieve self-determination[7] and prohibits members of the international community from providing assistance to a population attempting to achieve self-determination or to frustrate self-determination.[8] Therefore, on face value, it would appear that the militia group is supporting the lawful actions of the minority group to achieve self-determination; however, it is more nuanced.[9]

The right to self-determination developed in the de-colonisation era and hence any interpretation needs to be placed within that context.[10] Malancuzk is unambiguous, arguing that a systematic interpretation of ICCPR and ICESCR, based upon their drafting history and subsequent state practice, the right to self-determination is limited to the de-colonisation process and once that right has been exercised it has been consumed.[11] McBeth, although in principle seeming to agree with Malancuzk, argues that the right may continue for a people “… subjected to alien subjection, domination and exploitation.”[12] This discussion needs also to take into account Article 27 of the ICCPR: Minority Rights. These are special rights conferred upon ethnic, religious and linguistical minority groups to enable them to enjoy their own culture, profess and practice their religion and use their own language.[13] It is argued given the inclusion of this right, without some other action of repression by State B towards the ethnic minority, there is no unilateral right to succeed.[14] This argument is further supported by the “… principle of automatic succession to [colonial] boundaries overrides the principle of self-determination.”[15]

If it is accepted that the actions of the militia were not supported by the principle of self-determination then by logic they would be an act of aggression: aggression has been recognised as part of customary international law, particularly international criminal law (ICL), since at least the Nuremberg trials of 1945-6.[16] It can be implied from the Nicaragua Case[17] that allowing an insurgent group, such as the militia, to use the territory of one state to mount hostilities in another would constitute a breach of article 2(4) of the UN Charter:[18] this is supported by UNGA resolution 2131.[19] Therefore, the actions of the militia group would constitute an offence under ICL which can be tried by any member of the international community under the doctrine of universal jurisdiction.[20] Furthermore, if State B is a party to the Rome Statute[21] or the UN Security Council (UNSC) makes a referral, the International Criminal Court (ICC) can investigate and prosecute.[22] It should be noted that prosecutions against ICL, as occurred in Nuremburg, are against individuals and not states.[23] Hence, individuals, rather than the militia as a whole, can be tried in State B, at the ICC or any state which choses to exercise universal jurisdiction.

Intervention of International Organisation Z

The purpose of this section is to examine the actions of IOZ. This discussion will begin by examining what sort of standing IOZ has under international law as this will have implications which flow into other areas. A discussion will then be made utilising the doctrine of collective security:  IOZ acting to support the integrity of State B. The section will then conclude with an examination as to whether the Responsibility to Protect (R2P) doctrine applies and the impact of the deportation of the ethnic minority.

There is one assumption which applies to this section: the UNSC has not passed a resolution authorising member states to take ‘all necessary means’ to reverse the actions of the militia.[24] If it had there would be no question as to the legality of the actions of IOZ as it would be authorised by Chapter VII of the UN Charter.[25]  Furthermore, Welsh argues that a mitigating circumstance to acting without UNSC authorisation is that if the action should have been authorised by the UNSC and in failing to do so the UNSC failed in its obligations[26]: this is further explored in a discussion of unilateral intervention and R2P below.

It is important to establish whether IOZ has legal personality on the international stage as that will determine if IOZ is responsible for its actions.[27] Legal personality is not determined by an express convention but is a matter of practice. The characteristics of an organisation possessing international personality are that it is made up of nation states (or other organisations with international personality), is established by a treaty, asserts personality, and has autonomy to act independently from its members.[28]  However, it would appear that each organisation needs to be examined as there is no unifying theory on this subject, being very much linked to the functions and purposes of the organisation.[29] The ICJ affirmed this proposition in Reparations Case[30] stating that “… the rights and duties of an entity such as the Organisation [UN] must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.” Commentary on this matter states that the principles of Reparations Case are not just limited to the UN but are applicable to the wider cohort of international organisations.[31] Furthermore, the Additional Protocol II to the Geneva Convention[32] Article 1(1) contemplates that non-state actors can have legal personality. Given that international organisations such as NATO[33] and the Red Cross[34] have been defined as having international legal personality it is argued that such a status should flow to IOZ.

The first scenario to contemplate the basis for IOZ’s intervention is at the request of State B. Article 51 of the UN Charter makes it clear that an exception to the requirement for UNSC authorisation for the use of force is in self-defence to an armed attack.[35] As discussed above, the ICJ in the Nicaragua Case[36] stated that a group of armed irregular forces crossing the border from one state to another to undertake hostilities constitutes an armed attack. A recent example of state practice in this regards was the military coalition confronting the Islamic State in 2014: Prime Minister Abbott used this principle as justification for Australian involvement.[37] Therefore, if invited in by State B, it is argued that the actions of IOZ would be lawful. There is a caveat on this being the requirement that the actions are necessary and proportionate to the threat.[38]

The next scenario to contemplate would be intervention by IOZ without a request from State B: i.e. unilateral intervention. This would be very similar to the actions of NATO in March 1999 when it conducted an air campaign against Yugoslavian forces to protect the population of Kosovo without an implicit UNSC resolution.[39]  NATO Secretary General Stewart Eldom argued that intervention was justified as there was a ‘humanitarian catastrophe’ developing which threatened the stability of the region.[40] Hence, the emphases was on the legitimacy of the intervention – 19 democracies acting in the wake of the obstruction of two authoritarian regimes for a humanitarian purpose – rather than a strict legal doctrine: that since the end of the Cold War states had a responsibility to step in when the host state is committing abuses to human right which account to crimes against humanity.[41] Furthermore, some commentary suggests there is a latent rule of customary international law allows for such humanitarian intervention in the wake of a humanitarian crisis: this can be traced back to nineteenth intervention in the Ottoman Empire to protect Christians.[42] However, Hehir disputes this arguing that an “… analysis of customary international law prior to the inception of the UN Charter … suggests that no customary law of humanitarian intervention exists[.]”[43] Nevertheless, this intervention leads to a debate regarding the R2P.

The R2P was developed as a concept by the ICISS -- sponsored by the Canadian government[44] -- which involves a five point criteria to determine if intervention is justified: (1) just cause, (2) right intervention, (3) last resort, (4) proportionate means, and (5) reasonable prospects.[45] R2P became part of the hotly debated UN World Summit of 2005 and was unanimously endorsed by the UNGA: latter being affirmed by UNSC resolution 1674 (2006).[46] Evans argues this was a rather remarkable achievement since there were only a handful of successful outcomes from the summit.[47] Nevertheless, it has been argued that this is more of a codification of existing practice as consensus could not be reached for non-UNSC sanctioned intervention.[48] On this basis, without UNSC authorisation, it seems unlikely that the intervention by IOZ would be lawful.

Furthermore, the lawfulness of IOZ’s intervention is further complicated as not every breach of human rights justifies a R2P intervention: these only being genocide, crimes against humanity, war crimes and ethnic cleansing.[49] There is nothing in the facts of the scenario to suggest that the militia has committed genocide or ethnic cleansing; however, it is possible that during their occupation they may have committed crime against humanity -- a ‘widespread or systematic attack directed against any civilian population’ resulting in such acts as murder, rape etc[50] -- which is a common tactic of such an insurgent group.[51] If the actions did meet the threshold of genocide, for instance by conducting massacres,[52] then under the Genocide Convention of 1948 the militia’s actions may trigger independent obligation to act thereby justifying IOZ’s intervention: this provision is also considered part of customary international law.[53] The second complicating factor is that of disinterestedness: being that the primary goal of the intervention should be humanitarian on behalf of the international community and not to advance the individual or collective political interest of states particularly those which conduct the intervention.[54] Furthermore, like with NATO intervention in Kosovo[55] and ECOWAS[56] intervention in Liberia, there is the prospect that the UNSC may retrospectively adopt/approve the actions of IOZ. The likelihood of this seems unlikely due to the actions of IOZ during its intervention, where attention will now focus.

When IOZ took control of the territory occupied by the militia they were in ‘effective control’ and hence a ‘human rights paradigm’ was established making IOZ responsible for the protection and promotion of those rights in the territory.[57]  The facts of this scenario outline that in the process of regaining control of the territory occupied by the militia, IOZ expelled the ethnic minority to State A. A forced removal either physically or through fear to produce an ethnically homogenous population came to prominence in the breakup of Yugoslavia becoming known as ‘ethnic cleansing’.[58] Although ‘ethnic cleansing’ is not a distinct breach of IHRL or ICL it does constitute both. Furthermore, as outlined above, the actions would meet the criteria for a crime against humanity and hence it would trigger provisions of the Rome Statute.[59] However, the ICC can only exercise jurisdiction over individuals from a state party to the Rome Statute or by referral of the UNSC.[60] It is argued by Welsh that “… deportation and forcible transfer of populations are manifestly at odds with freedom of movement …”[61] and hence would be a breach of IHRL. It is unlikely that IOZ would be a party to ICCPR since an inspection of the UN treaties depository shows that no international organisation is a party to the convention.[62] Nor would it likely to be possible to bring actions against the individual member states of IOZ who might be parties to ICCPR since such liability is vested in the IOZ as a consequence of its distinct international personality.[63] However, freedom of movement is guaranteed in the Universal Declaration of Human Rights (UDHR)[64]: the UDHR is considered part of customary international law most notably by its unanimous adoption and subsequent state practice.[65] However, this does not mean that IOZ can be brought unilaterally before the ICJ for breaches of these obligations: in keeping with the principles of sovereignty the ICJ can only exercise jurisdiction if the actor with international personality consents.[66] However, as indicated by the Nicaragua Case it is possible for the ICJ to make an advisory determination based upon the information already in its possession should one party fail to cooperate.[67]

Conclusion

This paper has discussed a scenario where a militia group operating out of State A seized territory from State B consisting of an ethnic minority. IOZ has intervened re-establishing State B’s control over the territory and in the process expelling the ethnic minority to State A. As has been shown, the actions of the militia group are unlikely to be considered supporting a legitimate exercise of self-determination and hence would constitute the ICL act of aggression. Those responsible can be tried in State B, at the ICC or in any other state wishing to exercise universal jurisdiction. It seems unlikely that without UNSC authorisation, or a request for assistance from State B, that IOZ’s action would be lawful. The prospect of gaining post hoc adoption of the intervention by the UNSC also seems unlikely given the ethic cleaning undertaken by IOZ. This action would affect any ‘legitimacy’ mitigation or possible evoking of the R2P principle due to its disproportionality. IOZ cannot be unilaterally brought before the ICJ; however, as demonstrated in Nicaragua Case if IOZ fails to cooperate the ICJ can give an advisory ruling based on information before it.

References:

Primary Sources

Abbott, Tony, 'Australian Defence Force contribution to international coalition against ISIL.' (Speech delivered at the Joint Press Conference, Darwin, 14/09/2014)

United Nations office of Legal Affairs, Status of Treaties - International Covenant on Civil and Political Rights <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en>

Case Law

Nicaragua v USA [1986] ICJ Rep 14

Portugal v Australia [1995] ICJ Rep 90 ('East Timor Case')

Repreation for injuries suffered in the service of the United Nations [1949] ICJ Reps 174

Multilaterial conventions

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),  (entered into force 8 June 1977) ('Additional Protocol II to the Geneva Convention')

Rome Statute of the International Criminal Court,  (entered into force 1 July 2002) ('The Rome Statute')

Statute of the International Court of Justice,  (entered into force 24 October 1945)

Commentary (Articles)

Evans, Gareth, 'From Humanitarian Intervention to the Responsibility to Protect' (2006) 24(3) Wisconsin International Law Journal 703

Morrison, Fred L., 'Legal Issues in the Nicaragua Opinion' (1987) 81(1) The American Journal of International Law 160

Commentary (Books)

Bantekas, Ilias and Lutz Oette, International Human Rights: Law and Practice (CUP, 2013)

Coleman, Katharina, International Organisations and Peace Enforcement: The politics of international legitimacy (Cambridge University Press, 2007)

Hehir, Aidan, The Responsibility to Protect: Rhetoric, Reality and the Future of Humanitarian Interventian (Palgrave Macmillan, 2012)

Jamison, Matthew, 'Humanitarian intervention since 1990 and 'liberal interventionism'' in Brendan Simms and D. Trims (eds), Humanitarian Intervention: a history (Cambridge University Press, 2011) 365

Kilcullen, David, Counter Insergency (Scribe, 2010)

Malanczuk, Peter, Akehurst's Modern Introduction to International Law (Routledge, 1997)

McBeth, Adam, Justine Nolan and Simon Rice, The International Law of Human Rights (Oxford University Press, 2nd ed, 2017)

O'Neill, Nick and Robin Handley, Retreat from Injustice: Human Rights in Australian law (The Federation Press, 1994)

Owen, James, Nuremberg: Evil on trial (Headline Review, 2006)

Silber, Laura and Allan Little, The Death of Yugoslavia (Penguin Books/BBC Books, 1996)

Stern, Jessica  and J.M. Berger, ISIS: The State of Terror (William Collins, 2016)

Triggs, Gillian, International Law: Contemporary principles and practice (LexisNexis Butterworths, 2006)

Welsh, Jennifer, 'R2P's next ten years: Deepening and extending the consensus' in Alex Bellamy and Tim Dunne (eds), The Oxford Handbook of the Responsibility to Protect (Oxford University Press, 2016) 186

White, N. D., The Law of International Organisations (Manchester University Press, 1996)

EndNotes:

1. Gareth Evans, 'From Humanitarian Intervention to the Responsibility to Protect' (2006) 24(3) Wisconsin International Law Journal 703, 713.

2. Adam McBeth, Justine Nolan and Simon Rice, The International Law of Human Rights (Oxford University Press, 2nd ed, 2017) 174.

3. Ibid. 327; Peter Malanczuk, Akehurst's Modern Introduction to International Law (Routledge, 1997) 326-327.

4. Malanczuk, above n  3, 327.

5. Gillian Triggs, International Law: Contemporary principles and practice (LexisNexis Butterworths, 2006) 159; Malanczuk, above n 3, 327

6. Portugal v Australia [1995] ICJ Rep 90 ('East Timor Case').

7. Malanczuk, above n 3, 318, 336; Triggs, above n  5, 595.

8. Malanczuk, above n 3, 318; Triggs, above n 5, 597.

9. McBeth, Nolan and Rice, above n 2, 75.

10. Ibid. 74-5; Malanczuk, above n 3, 335.

11. Malanczuk, above n 3, 335, 339.

12. McBeth, Nolan and Rice, above n 2, 75.

13. Ibid. 108.

14. Malanczuk, above n 3, 338; Triggs, above n 5, 247.

15. Malanczuk, above n 3, 335.

16. James Owen, Nuremberg: Evil on trial (Headline Review, 2006) 6.

17. Nicaragua v USA [1986] ICJ Rep 14.

18. Malanczuk, above n 3, 320; Triggs, above n 5, 596.

19. Malanczuk, above n 3, 319.

20. Ilias Bantekas and Lutz Oette, International Human Rights: Law and Practice (CUP, 2013) 602, 607.

21. Rome Statute of the International Criminal Court,  (entered into force 1 July 2002) ('The Rome Statute').

22. Jennifer Welsh, 'R2P's next ten years: Deepening and extending the consensus' in Alex Bellamy and Tim Dunne (eds), The Oxford Handbook of the Responsibility to Protect (Oxford University Press, 2016) 186, 196; Rome Statute of the International Criminal Court,  (entered into force 1 July 2002) ('The Rome Statute'). Articles 12 and 13.

23. Owen, above n 16, 3; Welsh, above n 22, 196.

24. Katharina Coleman, International Organisations and Peace Enforcement: The politics of international legitimacy (Cambridge University Press, 2007) 200.

25. Ibid.; Welsh, above n 22, 188; Evans, above n 1, 711.

26. Welsh, above n 22, 188.

27. N. D. White, The Law of International Organisations (Manchester University Press, 1996) 28.

28. Triggs, above n 5, 176-177.

29. White, above n 27, 29, 31.

30. Repreation for injuries suffered in the service of the United Nations [1949] ICJ Reps 174 180.

31. White, above n 27, 34; Triggs, above n 5, 177; Malanczuk, above n 3, 93.

32. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),  (entered into force 8 June 1977) ('Additional Protocol II to the Geneva Convention').

33. Coleman, above n 24, 197.

34. Malanczuk, above n 3, 92.

35. Aidan Hehir, The Responsibility to Protect: Rhetoric, Reality and the Future of Humanitarian Interventian (Palgrave Macmillan, 2012) 62.

36. Nicaragua v USA [1986] ICJ Rep 14 103-4.

37. Tony Abbott, 'Australian Defence Force contribution to international coalition against ISIL.' (Speech delivered at the Joint Press Conference, Darwin, 14/09/2014) ; Jessica  Stern and J.M. Berger, ISIS: The State of Terror (William Collins, 2016) 94-95.

38. Triggs, above n  5, 590.

39. Matthew Jamison, 'Humanitarian intervention since 1990 and 'liberal interventionism'' in Brendan Simms and D. Trims (eds), Humanitarian Intervention: a history (Cambridge University Press, 2011) 365, 370.

40. Coleman, above n 24, 198.

41. Ibid. 201; Triggs, above n 5, 604-605; Evans, above n 1, 706.

42. Welsh, above n 22, 189 and 199.

43. Hehir, above n 35, 66-67.

44. Evans, above n 1, 707.

45. Ibid. 710-711; Welsh, above n 22, 197-198.

46. Welsh, above n 22, 192; Hehir, above n 35, 76.

47. Evans, above n 1, 714.

48. Hehir, above n 35, 78, 83; Welsh, above n 22, 192.

49. Welsh, above n 22, 193; Hehir, above n  35, 55.

50. Rome Statute of the International Criminal Court,  (entered into force 1 July 2002) ('The Rome Statute'). Article 7.

51. David Kilcullen, Counter Insergency (Scribe, 2010) 4.

52. Welsh, above n 22, 196.

53. Evans, above n 1, 705; Hehir, above n 35, 64-65.

54. Welsh, above n 22, 198; Hehir, above n 35, 55; Coleman, above n 24, 211.

55. Coleman, above n 24, 255.

56. Welsh, above n 22, 199.

57. Ibid. 196.

58. Laura Silber and Allan Little, The Death of Yugoslavia (Penguin Books/BBC Books, 1996) 307.

59. See Rome Statute of the International Criminal Court,  (entered into force 1 July 2002) ('The Rome Statute'). Articles 5, 12 and 13.

60. Welsh, above n  22, 196; Rome Statute of the International Criminal Court,  (entered into force 1 July 2002) ('The Rome Statute'). Articles 12 and 13.

61. Welsh, above n 22, 194.

62. United Nations office of Legal Affairs, Status of Treaties - International Covenant on Civil and Political Rights <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en>.

63. Triggs, above n 5, 179-180.

64. Article 13; McBeth, Nolan and Rice, above n 2, 20-22

65. Ibid. 23; Nick O'Neill and Robin Handley, Retreat from Injustice: Human Rights in Australian law (The Federation Press, 1994) 166.

66. McBeth, Nolan and Rice, above n 2, 44, 172.

67. Fred L. Morrison, 'Legal Issues in the Nicaragua Opinion' (1987) 81(1) The American Journal of International Law 160, 163; See also  Statute of the International Court of Justice,  (entered into force 24 October 1945) Article 53.