Philippe Tunamsifu Shirambere (May 2011)
This reflection tries to analyze the Right to interfere; the use of force based on the UN SC Resolution 1973 for the contemporary international law; and the effectiveness of the Resolution and look forward.
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| voting of the Resolution initiated by France |
1. Right to interfere
The right to interfere is the interference in the matters which are essentially internal for another state without an invitation. Consequently, this concept divided humanitarian actors and lawyers. For humanitarian, among them Bernard Kouchner[1], thinks that it is legal because its aims is to protect the fundamental rights of people; for Gareth Evans and Mohamed Sahnoun[2], sovereignty, internally, implies a responsibility to respect the dignity and basic rights of all people within the state. Ved Nanda also argues that a government can no longer “hide behind the shield of sovereignty, claiming non-intervention by other states in its internal affairs, if it fails to protect the people under its jurisdiction from massive violations of human rights[3].” For lawyers, they deny any legitimacy to an intervention that would have no legal basis.
The latter position is in accordance the purposes and principles of the UN Charter; the article 2(1 and 7) which underlines the principles of sovereignty and non interference.
Now the question is to know if the principle of the sovereignty allows governments to abuse the human rights of their own people. The answer is negative and that is why in the Resolution 688(1991)[4], the UNSC, gravely concerned by the repression of the Iraqi civilian population in many parts of Iraq, decided to create the legal authority for other nations to intervene in Iraq for humanitarian purposes.
Indeed, in the Millennium Report of the Secretary-General of the UN[5], Kofi Annan accepted that the principles of sovereignty and non-interference offer vital protection to small and weak states. But to the critics, he posed the question if humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights that offend every precept of our common humanity? Where such crimes occur and peaceful attempts to halt them have been exhausted, the SC has a moral duty to act on behalf of the international community. The fact that we cannot protect people everywhere is no reason for doing nothing when we can. Armed interventions must always remain the option of last resort, but in the face of mass murder it is an option that cannot be relinquished.
2. The use of force based on the UNSC Resolution 1973 for the contemporary International law.
Before talking about the use of force, it seems better to say why it has been forbidden. Indeed, the horrors of war are very often human, material and environmental. By experiencing the World Wars I and II, the need for ways in which human beings and Institutions can remedy and solve problems becomes prioritized because “the same species who invented war is capable of inventing peace[6]”. In that perspective, the victorious powers of the Second World War have realized the necessity of establishing general international organization that would work toward the abolition of war, based on the principle of the sovereign equality of all peace-loving States and with membership by all such States, large or small, for the maintenance of international peace and security. It is within this context that the UN was created.
The preamble of the UN Charter provides for the determination “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”. By contrast, includes a determination “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”. Moreover, the article 55(c) commits the UN to promoting human rights and fundamental freedoms for all without distinction. And the article 56 provides in strong terms that “All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.” To achieve those fundamental goals, the article 1(3) advocates for international co-operation to solve international problems, and encourage respect for human rights and for fundamental freedoms for all. This provision looks to be in accordance with the treaty for the Renunciation of War which condemned recourse to war for the solution of international controversies and renounced it as an instrument of national policy (Kellogg-Briand Pact of 1928). Moreover, the UNGA, in October 24 1970, approves the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States.
That kind of cooperation to work, the article 2(1 and 7) provides the sacred-saint principles of sovereignty and non interference in matters which are essentially within the domestic jurisdiction. That is why, for the UN, it is forbidden to use force against any States except in individual or collective self-defense, as provided in Articles 2(4) and 51 of the Charter. Meaning, by itself, the article 2(4) is part of collective security that is why the recourse to war is prohibited in the most general terms. However, because conflict is an inescapable fact for human existence and within international relations, furthermore the article 51, the Chapter VI of the Charter provides pacific settlement of disputes (article 33,1).
Above, I advocate for the state’s sovereignty which correspond to the obligation to respect every other state’s sovereignty. Sovereignty is also the capacity for a state to be able to protect its own peoples and its borders. Now, the question I am wondering what to do when a state fails with its obligation to protect its own citizens or is itself the perpetrator? Could the international community stand by and do nothing on behalf of the principle of sovereignty? I agree with Ved Nanda (see supra) that a government can no longer hide behind the shield of sovereignty if it fails to protect the people under its jurisdiction.
Indeed, when a situation constitutes a threat to the international peace and security, the UNSC has the primary responsibility for the maintenance of international peace and security acting on their behalf of the member states (article24,1). That is why the Resolution 688(1991) created a precedent about the legal basis to intervene for humanitarian purposes.
Thus, the current situation in Libya shows how the attitude of the international community had been evolved in the contemporary world, and is an excellent illustration for human rights violation while Gaddafi’s claims of west invasion. Indeed, the political protests demanding an end to Muammar Gaddafi’s 42-year reign have become increasingly violent and militarized, resulting in widespread crimes against humanity. The indiscriminate and widespread use of force by Gaddafi’s forces against the Libyan population has clearly turned this situation into crimes against humanity, one of the crimes included in the R2P framework. The protection of civilians from mass atrocity crimes must remain a priority for all parties involved and for the UN as it continues to monitor the crisis. That is why on 17 March[7], ALAIN JUPPÉ, Minister for Foreign Affairs of France, introduced a resolution saying that the situation on the ground is more alarming than ever, marked by the violent re-conquest of cities that have been released”. The UNSC could not stand by and “let the warmongers flout international legality”. He said that the urgent need to protect the civilian population had led to the elaboration of the current resolution. And then, logically, the UNSC adopted the Resolution 1973(2011) further tightened sanctions, approved “no-fly zone” over Libya and authorizing “all necessary measures” to protect civilians from attacks by Muammar Gaddafi’s forces.
What is the understanding of the resolution 1973(2011) and “all necessary measures” means?
According to the paragraphs 138-139 of the 2005 World Summit Outcome Document, the R2P, stipulates: the protection responsibilities of the State; International assistance and capacity-building; and Timely and decisive response (strong preference for dialogue and peaceful persuasion).
For Gareth Evans and Mohamed Sahnoun, “the R2P implies a duty to react to situations in which there is compelling need for human protection. If preventive measures fail to resolve or contain such a situation, and when the state in question is unable or unwilling to step in, then intervention by other states may be required. Coercive measures then may include political, economic, or judicial steps. In extreme cases they may also include military action”[8]. Clearly, the R2P embraces three following specific responsibilities: the responsibility to prevent, to react and to rebuild.
Libya as a member state has the obligation to protect and implement rights and freedoms, but unfortunately it was turn its guns on its own people; meaning it became itself the perpetrator. By preventing the continuity of gross and serious violations of human rights, including arbitrary deprivation of life, on 25 February the Human Rights Council (HRC) adopted a Resolution S-15/L.1[9] in which called for the following: the Libyan government to cease all human rights violations; an international commission of inquiry to be dispatched to Libya; recommendation to the UNGA for the suspension of Libya from the Council[10]. On 26 February[11], the UNSC, in addition to imposing an embargo and financial sanctions, made reference to Libya’s “R2P” and referred the situation to the ICC for investigation into reports of crimes against humanity since 15 February. On 1st March[12], the UNGA unanimously suspended Libya’s membership to the Council.
Because the Libyan authorities failed to comply with resolution 1970(2011) and to protect the Libyan population, finding the escalation of violence, and the heavy civilian casualties, it was time for the international community to take responsibility to act because the situation in Libya continues to constitute a threat to international peace and security. Indeed, is better to understand that the previous resolutions (S-15/L.1, 1970(2011), and GA 11050) were preventive and then the Libyan authorities refused to comply; that is why the resolution 1973(2011), acting in cooperation with the Secretary-General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970(2011), authorizes Member States to protect civilians under threat of attack in Libya, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory.
The meaning of “all necessary measures”, comes when all peaceful means which could bring Gaddafi to comply by protecting its own people were exhausted, the only one lane left was to take stronger measures, including the collective use of force.
Thus, the use of force against Gaddafi’s forces is it consistent with the purposes of the UN Charter and the contemporary international law?
The article 31(1) of the Vienna Convention on the Law of Treaties (1969) provides to interpret a treaty in good faith. Thus, the article 2(4) in fine of the UN Charter provides “to take other appropriate measures to strengthen universal peace”. And then, my interpretation of the article 2(4) and the use of force in Libya crisis for human rights protection are not incompatible with article 2(4) of the UN Charter for the following reasons:
- The R2P allows the international community to act in order to stop the Libyan from mass violation of human rights;
- The resolution 1973(2011) reaffirm its strong commitment to the sovereignty, independence, territorial integrity and national unity of the Libya, while the paragraph 4 excluding a foreign occupation force of any form on any part of Libyan territory;
- The Charter confer to the UNSC the “primary responsibility for the maintenance of international peace and security” (article 24,1); authorize at the article 39 the SC to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and to make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. While the article 25 provides that “the Members of the UN agree to accept and carry out the decisions of the SC in accordance with the present Charter.”
- The intervention is not directed “against the territorial integrity or political independence” of the Libyan Arab Jamahiriya, but is an extraordinary remedy, an exception to the postulates of state sovereignty and territorial inviolability that are fundamental to traditional theory.
Consequently, when a state ratifies a treaty, it signs for the limitation of its own sovereignty. On the 2005 World summit, states unanimously approved the R2P, including Libya, which the purpose is to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This is a limitation of national sovereignty because when Libyan authorities intensify violence and attacks against civilians-mass killing- the international community could not stand by and watch while Libyan people are suffering from the bombardment of Gaddafi’s forces; that is why they have taken their responsibility.
3. Effectiveness of the Resolution and look forward
About the effectiveness of the resolution, I can say that it is a just cause because the purposes are to stop violence and killings of people, but also to protect the people of Libya who cried for help. It is a right intention because the right of people must be respected. The use of force authorized by the UNSC; legitimate authority, responded to the idea of “all necessary measures” which was the final resort because Gaddafi’s regime did not comply with the previous resolutions. When the Libyan people used nonviolent actions for the first time, Gaddafi’s forces responded with strong arms, which were not proportional that is why the coalition and NATO nowadays have taken the initiative to destroy the Gaddafi’s armament.
However, I deplore that the shooting was not well targeted by killing many people included rebel members. Also, I agree that Gaddafi could not attack people who demonstrated peacefully and cannot continue violence against his own people, but I’m not comfortable because we cannot install democracy and rule of law with the bombers; that is the fact behind the resolution according to the position of France, United States of America, United Kingdom, etc. I think it might be better to organize military intervention with warplane and send military on the ground in order to oblige parties to open negotiation which could allow them to form a transitional government in order to organize election like in DRCongo in 2002; but this idea cannot work because those who support the R2P in Libya want change regime and Gaddafi to leave the power, that is why the National Transitional Council refuses any negotiation if Gaddafi cannot leave the power.
It is a right of peoples to determine their own political destinies, but the R2P cannot have a hidden agenda to expel a government and install another in its place. Indeed, under traditional international law, war was a licit instrument both for vindicating international rights and for changing them. That is why the Kellogg-Briand Pact of 1928 condemned recourse to war for the solution of international controversies. Since 1945 the Charter prohibits the use of force and promotes international cooperation, but for the contemporary international law, the UNSC has the right to authorize all necessary measure including the use of force in order to protect people under threat. For that, the resolution 1973 rebuilds the recourse to war for human right reason (R2P), but also the misunderstanding to gain an advantage as regime change.
To come to the conclusion, I realize that the R2P which includes the responsibility to prevent, to react and to rebuild, must include also the responsibility to respond: accountability because the resolution 1970 referred the situation to the ICC for the indiscriminate and widespread use of force by Gaddafi’s government against the Libyan population.
To end this paper, I note that the R2P embraces the Genocide Convention which obliges contracting Parties to prevent and to punish (article 1); the duty to prevent genocide is being part of the responsibility to protect. It became like customary international by its adoption unanimously at the 2005 World Summit (opinion juris); it is not binding without the UNSC resolution but the fact that states consent, it became an emergence of general principles of law; it has a doctrinal origin (2001 to 2004; works of the ICISS and the High-level Panel on Threats, Challenges and Change), and by its adoption by the international community it became part of Soft law.
[1] Sandrine Perrot (April 2006), Devoir et droit d’ingérence. Available at http://www.operationspaix.net/Devoir-et-droit-d-ingerence,7285
[2] Gareth Evans and Mohamed Sahnoun(2002), “the Responsibility to Protect”, In Foreign Affairs, volume 81 No. 6, p. 102
[3] Mehrdad Payandeh, With Great Power Comes Great Responsibility? The Concept of the Responsibility To Protect Within the Process of International Lawmaking, p. 485, available at http://www.yjil.org/docs/pub/35-2-payandeh-great-responsibility.pdf
[4] S.C Res. 688, U.N. (1991) adopted by the Security Council on 5 April 1991, available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/596/24/IMG/NR059624.pdf?OpenElement
[5] Kofi Annan, Millennium Report of the Secretary-General of the UN: We peoples, the role of the UN in the 21st Century, available at http://www.un.org/millennium/sg/report/ch3.pdf
[6] DAVID ADAMS (2003), Early History of the Culture of Peace, A Personal Memoire, p. 2. Retrieved November, 10th, 2010, from http://www.culture-of-peace.info/history/page2.html
[7] Security Council Approves ‘No-Fly Zone’ over Libya, Authorizing ‘All Necessary Measures’ to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions http://www.un.org/News/Press/docs/2011/sc10200.doc.htm
[8] Gareth Evans and Mohamed Sahnoun, “the Responsibility to protect”, Foreign Affairs, Volume 81, No 6, 2002, pp. 102-103
[9] Human Rights Council passes resolution on Libya in Special Session http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10768&LangID=E
[10] UN Human Rights Council recommends suspension of Libya, http://www.ohchr.org/EN/NewsEvents/Pages/HRCSpecialSessionLibya.aspx
[11] ICRtoP, “the Crisis In Libya: International Response”, available to http://www.responsibilitytoprotect.org/index.php/crises/crisis-in-libya
[12] GA suspends Libya from Human Rights Council, http://www.un.org/News/Press/docs/2011/ga11050.doc.htm
