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Abstract
The proposition advanced here is that the failure of the international community to implement R2P respecting the Syrian situation is itself an ‘act of aggression' against the sovereignty of the Syrian State which derives from the sovereignty of the people and does not reside in the Assad regime or any particular Syrian regime. The framing of the responsibility to protect (R2P) and its potential implementation in any particular context, such as Syria, is tragically most often reduced to a semantic game version of Roulette with life or death consequences, with the latter more probable the longer the members of the UN Security Council with veto power play the game and stall on action by force where no peaceful options can end the mass atrocities. Hence human rights advocates must play the semantic game more deftly if they are to be positioned to contribute to saving civilian lives. Here follows then a tentative, but perhaps in some ways audacious attempt at just such semantic gamesmanship in support of R2P as not only a viable principle; but one which goes to the heart of the international rule of law, the intent and meaning of the UN Charter and the very credibility of the UN as a mechanism for the promotion of human rights and the achievement of international peace and security.
Note on contributor
Sonja Grover is a Professor with the Faculty of Education, Lakehead University and is affiliated as Professor with the Northern Ontario School of Medicine in Thunder Bay, Ontario, Canada. She is the guest editor for this special issue of the IJHR on R2P and an Associate Editor of the International Journal of Human Rights. Dr Grover has published numerous books and articles in the area of international law including books on the genocidal forcible transfer of children from their communities to serve as child soldiers in forces committing mass atrocities.
Notes
1 Where a regime is the perpetrator of or complicit in mass atrocity through action or non-action in international crimes that trigger R2P, on the analysis here, it has no moral or legal legitimacy under international law.
2 See Resolution RC/Res.6 http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf (Crime of Aggression: Amendment to the Rome Statute) (accessed 13 May 2015).
3 Rome Statute entered into force 1 July, 2002 http://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf (accessed 13 May 2015).
4 This paper does not address any potential liability of any sort under international law for delegates of the State (individuals) who serve on the UNSC as agents of their respective States and who on behalf of their State have vetoed necessary life saving R2P implementation measures in the face of incontrovertible evidence of the mass atrocity crimes which are covered by R2P and where peaceful means to end the atrocities have all failed.
5 UN Charter signed in San Francisco, California, on 26 June 1945 (Article 1) https://treaties.un.org/doc/publication/ctc/uncharter.pdf (accessed 13 May 2015).
6 ‘UN Member States Egypt and Syria were original members of the United Nations from 24 October, 1945. Following a plebiscite on 21 February, 1958, The United Arab Republic was established by a union of Egypt and Syria and continued as a single Member. On 13 October, 1961, Syria having resumed its status as an independent State, resumed its separate membership in the United Nations. On 2 September, 1971, the United Arab Republic changed its name to the Arab Republic of Egypt.' (UN listing of member States of the United Nations ) http://www.un.org/en/members / (accessed 13 May 2015).
7 UN Charter signed in San Francisco, California, on 26 June 1945 (Article 2[2]) https://treaties.un.org/doc/publication/ctc/uncharter.pdf (accessed 13 May, 2015).
8 See UN to examine Syria chemical weapons attacks (BBC News August 2015 ) http://www.bbc.com/news/world-middle-east-33825861 (accessed 7 August, 2015 ); UN Security Council Resolution 2118 (2013) http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2118.pdf (accessed 24 May 2015). Also see Resolution 2209 (2015) “The Security Council, Expresses deep concern that toxic chemicals have been used as a weapon in the Syrian Arab Republic as concluded with a high degree of confidence by the OPCW Fact-Finding Mission and notes that such use of toxic chemicals as a weapon would constitute a violation of resolution 2118 and of the CWC.” Adopted by the Security Council at its 7401st meeting, on 6 March 2015 (regarding the use of chlorine; reports are that the Assad regime is using barrel bombs to deliver chlorine as a chemical weapon against his Syrian civilian opposition in violation of international law). See Resolution 2209 (2015) Adopting Resolution 2209 (2015), Security Council Condemns Use of Chlorine Gas as Weapon in Syria (UN Press Release 6 March, 2015) http://www.un.org/press/en/2015/sc11810.doc.htm (accessed 24 May 2015).
The claim that the Assad regime is the party responsible cannot be ruled out as improbable given the past chemical attacks in Eastern Ghouta and Mo'damiya areas of Syria attributed to the Assad regime by the international community based in part on evidence collected by independent NGOs such as Amnesty International (see Amnesty International (2015) Syria: Evidence of a fresh war crime as chlorine gas attack kills entire family (17 March 2015); https://www.amnesty.org/en/articles/news/2015/03/syria-war-crime-chlorine-gas-attack/ (accessed 24 May 2015).
9 International Commission on Intervention and State Sovereignty (2001) The Responsibility to Protect Published by the International Development Research Centre http://responsibilitytoprotect.org/ICISS%20Report.pdf (accessed 25 May, 2015), The current author is in accord with the view expressed in the ICISS aforementioned 2001 report that ‘The Security Council should take into account in all its deliberations that, if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation – and that the stature and credibility of the United
Nations may suffer thereby' (viii). Further, this author holds that such actions by States is lawful and consistent with the purposes and principles of the UN Charter where the UNSC does not meet its obligation to implement R2P by proportionate use of military action where all else has failed.
10 Francis, A., Popovski, V., and Sampford, C. eds., Norms of Protection: Responsibility to Protect, Protection of Civilians and Their Interaction. (New York: United Nations University Press, 2012,) 4.
11 Since the international crimes that trigger R2P are arguably all jus cogens violations (see for example Badescu, C.G., Humanitarian Intervention and the Responsibility to Protect: Security and Human Rights [New York: Routledge, 2011], 133); members States of the UN are, on that basis, conferred universal jurisdiction to act to prevent and/or end such grave international mass atrocity crimes where the State that would normally have jurisdiction is unable and/or unwilling to do so even though ostensibly the crimes may be occurring extra-territorially relative to the State implementing R2P
12 “Should popular sovereignty be subjected to attack, the integrity of other rights identified in the UDHR will also be subject to attack” cited from Araujo, R., “Sovereignty, Human Rights, and Self-Determination: The Meaning of International Law”, Fordham international Law Journal 24, no. 5 (2000): 1477–1532, especially 1480.
13 UN Charter (preamble) signed in San Francisco, California, on 26 June 1945 https://treaties.un.org/doc/publication/ctc/uncharter.pdf (accessed 13 May 2015).
14 UN Charter (preamble) signed in San Francisco, California, on 26 June 1945 https://treaties.un.org/doc/publication/ctc/uncharter.pdf (accessed 13 May 2015).
15 Although R2P is not directed to regime change; the latter may be the by-product of the implementation of R2P in certain instances where force has been the only option remaining to protect the people of that State from its own government or other ruling entity. The political independence of the State is not to be equated with the necessary preservation of any particular regime in power in that State especially when that regime systematically and consistently violates jus cogens international law. A state that engages in the crimes covered under R2P is acting beyond its sovereign jurisdiction and hence to stop it doing so is not an attack on territorial integrity or political independence (it is not an attack on State sovereignty)
16 UN Charter (preamble) signed in San Francisco, California, on June 26,1945 (Article 2(4) https://treaties.un.org/doc/publication/ctc/uncharter.pdf (accessed 13 May 2015).
17 UN Charter (preamble) signed in San Francisco, California, on June 26,1945 (Article 2(4) https://treaties.un.org/doc/publication/ctc/uncharter.pdf (accessed 13 May 2015).
18 Vienna Law of Treaties (entered into force 27 January, 1980) (Article 31, 32) https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf (accessed 13 May 2015).
19 Vienna Law of Treaties (entered into force 27 January, 1980) (Article 31) https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf (accessed 13 May 2015).
20 Chemical Weapons Convention (Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction) (entry into force 1997) http://www.opcw.org/chemical-weapons-convention/ (accessed 13 May 2015).
21 Rome Statute Article 33(2) “Superior orders and prescription of law: For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.” (Rome Statute Elements of the Crime (Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May -11 June 2010, International Criminal Court publication, RC/11) http://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf [accessed 13 May 2015]).
22 UN Charter (preamble) signed in San Francisco, California, on 26 June 1945 (Article 1(2)and 2(2) https://treaties.un.org/doc/publication/ctc/uncharter.pdf (accessed 13 May 2015).
23 UN Charter (1945): Article 2(1): “`1. The Organization is based on the principle of the sovereign equality of all its Members.”
24 Stahn, C., “Syria and the Semantics of Intervention: Aggression and Punishment: On Red Lines and Blurred Lines”, Journal of International Criminal Justice 11(5) (2013): 955–977, especially 958.
25 Stahn, C., “Syria and the Semantics of Intervention: Aggression and Punishment: On Red Lines and Blurred Lines”, Journal of International Criminal Justice 11(5) (2013): 955–977, especially 960.
26 Implementation of R2P by all means necessary is: (1) the operationalization of the ergo omnes obligation of States and simultaneously; (2) an act by the R2P -implementing State or States to prevent the erosion of respect for the rule of international law based on justice and respect for fundamental human rights which erosion undermines international peace and security and is inevitable when grave systematic mass atrocity crimes are left to be committed by a State or States unfettered (Contrast the view of Johnson, L.D. AJIL Unbound (American Society for International Law) ‘United for Peace: Does it Still Serve a Useful Purpose?’(July 15, 2014) ‘The difficulty arises with regard to … stopping a genocidal state from murdering parts of its own population. Here, outside the self-defense context and absent a Security Council Chapter VII use of force authorization, it is difficult to see how an Assembly recommendation that States use force squares with the norm reflected in Article 2(4) … ' http://www.asil.org/blogs/%E2%80%9Cuniting-peace%E2%80%9D-does-it-still-serve-any-useful-purpose (accessed 3 July 2015.
27 Recall, for instance, Security Council Resolution 2118 (2013) that ‘the use of chemical weapons anywhere constitutes a threat to international peace and security’ hence the use of force to prevent such occurrences where no other options are available is not inconsistent with Article 2(4) of the UN Charter. At the time of writing there are grounded concerns that the Assad regime likely is continuing the use of chemical weapons against its own people.
28 Recall that Article 24 of the UN Charter (Chapter V) granting the Security Council primary responsibility for upholding international peace and security provides at Article 24(2) that in meeting this obligation the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The latter, it is here argued, necessarily includes in part: (1) maintaining international peace and security grounded on respect for human rights as per Article 1(2) and (2) authorizing the threat or use of force where the aforementioned purpose of the United Nations is sufficiently at risk or compromised and all other options have been exhausted and were unsuccessful.
29 Stahn, C., “Syria and the Semantics of Intervention: Aggression and Punishment: On Red Lines and Blurred Lines”, Journal of International Criminal Justice 11(5) (2013): 955–977, especially 964.
30 Office of the President of the UN General Assembly Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, at p. 2. http://www.un.org/ga/president/63/interactive/protect/conceptnote.pdf (accessed 18 May 2015).
31 Office of the President of the General Assembly Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity at p. 2. http://www.un.org/ga/president/63/interactive/protect/conceptnote.pdf (accessed 18 May 2015).
32 The suggestion here then is that a veto by a UNSC permanent member cannot block the lawful use of force in the implementation of R2P where failure to implement would violate the purposes and principles of the UN Charter -such a veto is extra jurisdictional under the UN Charter in that context . It is here contended that the operation of the UNSC is as an extra checkpoint for the judicial use of force not as an entity with power that can thwart State action required under the UN Charter purposes and principles.
33 World Summit Outcome Document (September, 2005), para 139 (World Summit Outcome Document: International Coalition for the Responsibility to Protect (Outcome Document of the High-level Plenary Meeting of the General Assembly, September 2005). http://responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs-topics/398-general-assembly-r2p-excerpt-from-outcome-document (accessed 13 May, 2015).
34 World Summit Outcome Document (September, 2005), para 139 id.
35 World Summit Outcome Document (September, 2005), para 139 id.
36 UN Charter (1945). Hence, on the analysis here, it is not a necessary block to the use of force in implementing R2P, where force is the only option, that such action is vetoed at the UNSC nor that “Neither do the Council's procedures have any provision for due process of law nor are its decisions subject to judicial review.”(compare Office of the President of the UN General Assembly at p. 2). Recall on this point the “Uniting for Peace Resolution” UN General Assembly Resolution 377 (V) A (1950) 3 November, 1950 regarding the United Nations’ and member State responsibility to uphold UN Charter principles and objectives which obligation is not obviated by the UNSC failure to fulfil its mandate of maintaining international peace and security and in doing so with due regard to international law and respect for human rights as required under the purposes and principles expressly stated in the UN Charter:
Conscious that failure of the Security Council to discharge its responsibilities on behalf of all the Member States … does not relieve Member States of their obligations or the United Nations of its responsibility under the Charter to maintain international peace and security[nor]deprive the General Assembly of its rights or relieve it of its responsibilities under the Charter in regard to the maintenance of international peace and security (http://www.un.org/en/sc/repertoire/otherdocs/GAres377A(v).pdf [accessed 2 July 2015]).
37 Office of the President of the General Assembly Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity at p. 1 http://www.un.org/ga/president/63/interactive/protect/conceptnote.pdf (accessed 18 May 2015).
38 Human Rights Watch World Report 2015 Syria https://www.hrw.org/world-report/2015/country-chapters/syria Grave abuses of human rights were committed and continue to be committed by government and non-government forces in Syria.
39 Office of the President of the General Assembly Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity at p. 2 http://www.un.org/ga/president/63/interactive/protect/conceptnote.pdf (accessed 18 May 2015).
40 Office of the President of the General Assembly Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity at p. 2 http://www.un.org/ga/president/63/interactive/protect/conceptnote.pdf (accessed 18 May, 2015)
41 Office of the President of the General Assembly Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity at p. 2 http://www.un.org/ga/president/63/interactive/protect/conceptnote.pdf (accessed 18 May 2015).
42 Office of the President of the General Assembly Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity at p. 2 http://www.un.org/ga/president/63/interactive/protect/conceptnote.pdf (accessed 18 May 2015).
43 Syria: UN urged to defy Assad on aid or risk lives of hundreds of thousands http://www.theguardian.com/world/2014/apr/28/legal-experts-urge-united-nations-ignore-assad-ban-aid-syria-rebels
44 Amnesty International: Syria http://www.amnestyusa.org/our-work/countries/middle-east-and-north-africa/syria (accessed 7 August 2015); See also, for instance, Human Rights Watch, Death From the Skies: Deliberate and Indiscriminate Air Strikes on Civilians (2013) https://www.hrw.org/report/2013/04/10/death-skies/deliberate-and-indiscriminate-air-strikes-civilians (accessed 7 August 2015); Amnesty International, Torture Archipelago: Arbitrary Arrests, Torture, and Enforced Disappearances in Syria's Underground Prisons Since March 2011 (2012) http://www.hrw.org/reports/2012/07/03/torture-archipelago-0 (accessed 7 August 2015); Amnesty International, By All Means Necessary: Individual and Command Responsibility for Crimes Against Humanity in Syria (2011) http://www.hrw.org/sites/default/files/reports/syria1211webwcover_0.pdf (accessed 7 August 2015).
45 Office of the President of the General Assembly Concept note on responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity at p. 3 http://www.un.org/ga/president/63/interactive/protect/conceptnote.pdf (accessed 18 May 2015).
46 International Law Commission (2001) Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries (Article 50) http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf (accessed 24 May 2015).
47 UN Charter (1945) signed in San Francisco, California, on 26 June 1945 (Article 1[4]) https://treaties.un.org/doc/publication/ctc/uncharter.pdf (accessed 13 May 2015).
48 Referring here to instances in which the State that controls the territory upon which these grave international crimes are occurring is unwilling or unable to prevent these mass atrocity crimes and force is the only option left available.
49 International Law Commission (2001) Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries (Article 50) http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf (accessed 24 May 2015).
50 Note that implementation of countermeasures also are in the Draft Principles grounded on the recognition of respecting fundamental human rights first and foremost as reflected in the following for example: ‘First, for some obligations, for example those concerning the protection of human rights, reciprocal countermeasures are inconceivable.' International Law Commission (2001) Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries (Chapter II Countermeasures Commentary [item 5]) http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf (accessed 8 August 2015).
51 Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/AMENDMENTS/CN.651.2010-ENG-CoA.pdf.
52 The Rome Statute amendments regarding a State act of aggression and the crime of aggression committed by individuals of that State makes reference to the United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974: http://crimeofaggression.info/documents/6/General_Assembly_%20Resolution_%203314.pdf. That resolution it should be noted: (1) does not preclude the use of lawful force. … Nothing in this Definition shall be construed as in any way enlarging or diminishing the scope of the Charter, including its provisions concerning cases in which the use of force is lawful' (Article 6); (2) stipulates that the acts listed at Article 3 (reproduced in the amendments to the Rome Statute regarding the crime of aggression) as qualifying as acts of aggression are so designated provided there is no “relevant circumstance” that would disqualify them as such as per Article 2 of the Resolution (Arguably the imminent threat of and/ or occurrence of mass atrocity crimes triggering R2P is such a ‘relevant circumstance' where all peaceful means to end the atrocities have been exhausted and failed and hence would preclude referral by the UNSC to the ICC); and (3) specifies at Article 7 that ‘Nothing in the Definition [of Aggression], and in particular Article 3 [which lists acts of aggression], could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right … nor the right of these peoples to struggle to that end and to seek and receive support in accordance with the principles of the Charter and the above-mentioned declaration' [2625 (XXV) Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations http://www.un-documents.net/a25r2625.htm]. Note that the latter Declaration stipulates amongst other things that: ‘Every State has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter' and not to interfere with States that are ‘conducting themselves in compliance with the principle of equal rights and self-determination of peoples … and thus [are States] possessed of a government representing the whole people belonging to the territory … '
53 Cited from Crawford, J., Law Commissions Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002), 79.
54 The Legality of Military Action in Syria: Humanitarian Intervention and Responsibility to Protect‘The UN Charter provides 2 clear exceptions to the prohibition of the use of force: self defence and authorization by the UN Security Council http://www.ejiltalk.org/humanitarian-intervention-responsibility-to-protect-and-the-legality-of-military-action-in-syria/ Blog of the European Journal of International Law (Dapo Akande August 28, 2013, Accessed 24 May, 2015).' On the analysis of the current author arguably the implementation of R2P by force where the only option is a self-defence of the integrity of the international system grounded on certain basic law such as jus cogens law and simultaneously defence on behalf of the people (a protection of their sovereignty) which is under siege by their own government and sometimes also that government's proxies through means that include genocide, war crimes, ethnic cleansing and or crimes against humanity.
55 Hossain, K., “The Concept of Jus Cogens and the Obligation Under The U.N. Charter”, Santa Clara Journal of International Law 3, no. 1 (2005): 71–98: ‘the Charter of the United Nations reflects the norm of jus cogens as its fundamental principle' (abstract); ‘The role of the Security Council is also to safeguard the hierarchical norms of international law. … In this sense, the Security Council itself is also under an obligation to follow such legal principles … ’ (97).