![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
Responsibility to Protect (R2P) provides a moral basis for collective action through the UN Security Council in reaction to mass atrocity situations. However, this avenue is not always available. The question then arises whether other actors can and should assume responsibility in such circumstances and, if so, which kinds of measures they may pursue. The present article examines this question with a specific interest in the international reactions to the Syrian crisis since 2011. The analysis proceeds on the assumption that the growing usage of solidarity measures outside the UN framework is a sign of the relative success of R2P in terms of gaining ground among international policy-makers. However, according to the article, if solidarity measures as a way of enforcing R2P are to achieve widespread legitimacy, consideration must be paid to the legal concerns generated by this development. In particular, regard must be had to the compatibility of the measures pursued, including asset freeze, arms embargoes and the arming of rebel forces with the law in force.
Note on contributor
Jessica Almqvist is Senior Researcher and Lecturer in Public International Law and International Relations, Faculty of Law, Autonomous University of Madrid. PhD in law from the European University Institute (2002). She has been a Research Associate in the Project on International Courts and Tribunals, Center on International Cooperation, New York University (2002–2004), She was Adjunct Professor, New School, New York (2003–2004), a Researcher at the Foundation for International Relations and External Dialogue in Madrid (2004–2006), and at the Center for Political and Constitutional Studies, Madrid (2006–2009). She is the author of the book Human Rights, Culture and the Rule of Law (Oxford: Hart, 2005); and co-editor of The Role of Courts in Transitional Justice: Voices from Latin America and Spain (London: Routledge, 2011). She has also published various book chapters and articles, most recently, ‘A Human Rights Appraisal of the Limits to Judicial Independence for International Criminal Justice’, in 28 Leiden Journal of International Law (2015): 91–112; and ‘Responding to the Plight of Victims of Terrorism: European Responses and Dilemmas’, in Protecting Vulnerable Groups. The European Human Rights Framework (eds. Francisca Ippolito and Sara Iglesias Sanchez. Oxford: Hart Publishing, 2015: 339–357).
Notes
†Previous versions of this article have been presented in the ISA Human Rights Conference in Istanbul (14-16 June 2014) and in a Lunch Seminar organized by the Centre Charles de Visscher pour le droit international et europeén, Catholic University of Louvain (21 October 2014). The author thanks the participants in these events, especially Pierre d'Argent and Melissa Labonte, for helpful comments. The remaining errors are the responsibility of the author.
1 See Gareth Evans, ‘The French Veto Restraint Proposal: Making it Work’, presented at the international colloquium on ‘Regulating the use of the veto at the UN Security Council in cases of mass atrocities’, organized by the Paris School of International Affairs of SciencesPo and the Ministry of Foreign Affairs of France, 21 January 2015, available at: http://www.globalr2p.org/media/files/vetorestraintparis21jan25i15rev.pdf.
2 The Responsibility to Protect. Report by the International Commission on Intervention and State Sovereignty (December 2001).
3 Ibid. para. 6.28.
4 Ibid. para. 6.39.
5 2005 World Summit Outcome, A/RES/60/1, 16 September 2005, para. 139. Also see A More Secure World: Our Shared Responsibility. Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change, A/59/565, 2 December 2004; and In Larger Freedom: Towards Development, Security and Human Rights for All. Report of the Secretary-General, A/59/2005, 21 March 2005, para. 78.
6 Jose E. Alvarez, ‘The Schizophrenias of R2P’, in Human Rights, Intervention, and the Use of Force, eds. Philip Alston and Euan MacDonald (Oxford: Oxford University Press, 2008), 275–284.
7 Implementing the Responsibility to Protect. Report of the Secretary General, A/63/677, 12 January 2009.
8 Responsibility to Protect: Timely and Decisive Response. Report of the Secretary General, A/66/874-S/2012/578, 25 Jul 2012, para. 32.
9 Ibid.
10 Implementing the Responsibility to Protect. Report of the Secretary General, supra note 6, para. 50.
11 Statement by India. UN General Assembly Informal Interactive Dialogue on the Responsibility to Protect, September 2012 (hereafter UNGAIID 2012). All statements in this dialogue and cited in this article are available at: http://www.globalr2p.org/resources/278.
12 Statement by the UK. UNGAIID 2012.
13 Statements by the Russian Federation and China, UNGAIID 2012.
14 Responsibility While Protecting. Elements for the Development and Promotion of a Concept, A/66/551–S/2011/701, 11 November 2011.
15 See e.g. Statements by The Netherlands and Chile, UNGAIID 2012.
16 Statement by the EU, UNGAIID 2012.
17 UNSC res 1653 /2006 of 27 January 2006. A complete list of resolutions is available at: http://www.globalr2p.org/resources/335.
18 UNSC res 1706 (2006) of 31 August 2006.
19 UNSC res 2139 (2014) of 22 February 2014.
20 Other UN organs appealing to R2P include the General Assembly and the Human Rights Council. See UNGA res 63/308 of 14 September 2009, and HRC res S-19/1 of 4 July 2012. The Deteriorating Situation in the Syrian Arab Republic, and the Recent Killings in El-houlen.
21 UNSC res 2118 of 27 September 2013.
22 The OPCW-UN Joint Mission was established to oversee the elimination of the chemical weapons programme of Syria in October 2013 in accordance with UNSC res 2118 (2013), S/213/591 (7 October 2013) and S/213/603, 11 October 2013.
23 The operation was completed on 30 September 2014. See OPCW press release, 1 October 2014.
24 John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 2nd ed., 1999), 98–99. Also see Louise Arbour, ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’, Review of International Studies 34, no. 03 (2008): 445–458. For a critique, see e.g. Philip Cunliffe, ‘Dangerous Duties: Power, Paternalism, and the “Responsibility to Protect”’, Review of International Studies 36 Supplement S1 (2010): 79–96.
25 John Rawls, supra note 23.
26 See ICISS report (2001), supra note 1, which refers to these mentioned limits as “precautionary principles (4.16 ff). Also see High-Level Panel report (2004), supra note 4 at 67, and the Secretary-General report (2005), supra 4 at 33.
27 John Rawls, supra note 43.
28 UN R2P report (2012), supra note7, making a reference to the Report of the International Commission of Inquiry on Libya, A/HRC/19/68, 8 March 2012.
29 UN R2P Report (2012), supra note 7, para. 55. Also see Report Unacknowledged Deaths: Civilian Casualties in NATO's Air Campaign in Libya. Human Rights Watch, 14 May 2012.
30 Margret P. Doxey, International Sanctions in Contemporary Perspective, 2nd ed. (New York: St. Martin's, 1996), attesting to the fact that the imposition of sanctions as a substitute to military force has a long history. Also see Michael Reisman, ‘Sanctions and International Law’, Intercultural Human Rights Law Review, 4 (2009): 9–20.
31 The Role of Regional and Sub-regional Arrangements in Implementing the Responsibility to Protect. Report of the Secretary-General, A/65/877–S/2011/393, 27 June 2011, para. 36. Also see UN R2P Report (2012), supra note 7, para. 31.
32 David Cortright and George Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s (Boulder, CO and London: Lynne Rienner Publishers, 2000).
33 UNSC res 2127 of 5 December 2013 (Central African Republic); and UNSC res 2140 of 26 February 2014 (Yemen).
34 See e.g. Human Rights First, Syria Sanctions Fact Sheet. Existing Sanctions and Future Steps the Administration Should Take (June 2012).
35 Turkey imposes economic sanctions on Syria, BBC News, 30 November 2011.
36 Council Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria and Council Regulation No. 442/2011.
37 Council Implementing Decision 2011/302/CFSP of 23 May 2011 implementing Decision 2011/273/CFSP concerning restrictive measures against Syria.
38 Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria.
39 Council Implementing Decision (CFSP) 2015/383 of 6 March 2015 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria.
40 Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP.
41 Council Decision 2011/735/CFSP of 14 November 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria, para. 4.
42 Decisions of the Arab League adopted on 27 November and 3 December 2011 are available in Arabic at: http://www.sipri.org/databases/embargoes/eu_arms_embargoes/syria_LAS/league-of-arab-states-embargo-on-syria-.
43 For this definition of ‘arms embargo’, see SIPRI database on arms embargoes, available at: http://www.sipri.org/databases/embargoes.
44 Fulfilling our collective responsibility: international assistance and the responsibility to protect. Report of the Secretary-General, A/68/947-S/2014/449, 11 July 2014.
45 Pieter D. Wezeman, ‘Arms Transfers to Syria’, SIPRI Yearbook 2013: Armaments, Disarmament and International Security (Oxford: Oxford University Press, 2013), 269–273.
46 ‘Arab League allows members to arm rebels and offers seat to opposition’, Albawaba News (7 March 2013).
47 Council Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria, arts. 1 and 2. Also see Council Decision 2011/782/CFSP of 1 December 2011 concerning restrictive measures against Syria and repealing Decision 2011/273/CFSP.
48 Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria, para. 1.1. See annex for list of items. Council Decision 2015/837/CFSP of 28 May 2015 amending Decision 2013/255/CFSP extends the application of restrictive measures until 1 June 2015. Further exemptions to the sanctions regime include Council Decision 2013/760/CFSP of 13 December 2013 amending Decision 2013/255/CFSP concerning restrictive measures against Syria, para. 2.
49 OXFAM, ‘A Fairer Deal for Syrians’. 190 Oxfam Briefing Paper, 9 September 2014: 14. So far, France is the only EU member actually transferring weapons. The UK has supplied non-lethal equipment, assistance and training to the Syrian opposition.
50 Statement delivered by the Permanent Mission of South Africa to the UN, UNGAAID, September 2012.
51 On 4 July 2014, the US bombed an ISIS military base in Syria in an attempt to rescue hostages, including those who were later murdered.
52 ‘Arab Meet Vows All-out Efforts to Crush IS Terror’, Arab news (8 September 2014).
53 Canada, France, UK, Australia, Germany, and The Netherlands have not participated directly in the airstrikes in Syria. See A Fantz, ‘Who's Doing What in the Coalition Battle Against ISIS?’, CCN News, 7 October 2014. See also US Department of Defense, ‘Coalition Airstrikes Against ISIL in Syria, Iraq Continue’, News Release (3 September 2015), available: http://www.defense.gov/News-Article-View/Article/616186/coalition-airstrikes-continue-against-isil-in-syria-iraq.
54 Pentagon to deploy 400 troops to train Syrian rebels, Reuters, 16 January 2015.
55 Syrian Observatory for Human Rights, ‘President Obama Urges Congress to Pass a Joint Resolution Authorizing the Use of Force Against ISIL’ (22 January 2015).
56 Noah Bonsey, ‘What Obama Does Not Understand About Syria’, Foreign Policy (26 November 2014).
57 Peter Goodman and Erin Banco, ‘ISIS Gaining Strength, Warns Iraqi VP Ayad Allaqi’, International Business Times (22 January 2015).
58 This statement was made in a press briefing in Geneva. See ‘In focus: Syria’, UN News Centre (15 January 2015).
59 Alan Nissel, ‘The ILC Articles on State Responsibility: Between Self-help and Solidarity’, 38 NYU Journal of International Law & Politics (2005–2006): 355; and Bruno Simma, ‘From Bilateralism to Community Interest in International Law’, in: Recueil des Cours (Collected Courses of the Hague Academy of International Law) 1994, no. 6: 217–387.
60 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UNGA res 56/83 of 12 December 2001, and corrected by document A/56/49(Vol. I)/Corr.4. According to article 40, a breach is serious or grave if it involves a gross or systematic failure of the responsible State to fulfil an obligation arising from a peremptory norm of general international law.
61 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, para. 146.
62 For the relevance of R2P in legal analysis, see Carsten Stahn and Catherine Harwood, ‘Why Reports about the “Death of R2P” May be Premature: Links between the Responsibility to Protect and Human Rights Fact-finding’, ESIL Reflections 3, no. 5 (2014); and Anne Orford, ‘Rethinking the Significance of the Responsibility to Protect Concept’, ASIL Proceedings 2012: 27–31.
63 Nina H.B. Jorgensen, ‘The Obligation of Cooperation’, in The Law of International Responsibility, eds. James Crawford, Alain Pellet, and Simon Olleson (Oxford: Oxford University Press, 2010), 695–701.
64 Martti Koskenniemi, ‘Solidarity Measures: State Responsibility as a New International Order?’ British Yearbook of International Law 71 (2001): 337–335, reflecting on article 41.1 ILC draft Articles of 2001, according to which ‘States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40′.
65 UNSC res 156 of 9 September 1960. Also see Michael Akehurst, ‘Enforcement Actions by Regional Agencies, with Special Reference to the Organization of American States’, British Yearbook of International Law 42 (1967): 174–227.
66 Congressional Research Service [CSR], 22 January 1991, 14.
67 Mary Ellen O'Connell, The Power & Purpose of International Law. Insights from the Theory & Practice of Enforcement (New York: Oxford University Press, 2011), 243–248.
68 UNSC res 713 of 25 September 1991, para. 6.
69 Peter Malanczuk, ‘Countermeasures and Self-Defense as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility’, in United Nations Codification of State Responsibility, eds. Marina Spinedi and Bruno Simma (New York, Oceana Publications, 1987): 197–286; Ademola Abass, Regional Organisations and the Development of Collective Security: Beyond Chapter VIII of the UN Charter (Oxford: Hart Publishing, 2004), 46–52.
70 Mary Ellen O'Connell, The Power & Purpose of International Law. Insights from the Theory & Practice of Enforcement, supra note 66: 276.
71 International Law Institute, ‘Protection of Human Rights and the Principle of Non-intervention in Internal Affairs of States’, Institut de Droit International Annuaire 63 (1989): 38. Also see Jochen A. Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’, Recueil des Cours 248 (1994): 388–389.
72 Linos Alexandre Sicilianos, ‘Countermeasures in Response to Grave Violations of Obligations Owed to the International Community’, in The Law of International Responsibility, supra note 62: 1141; Pierre-Emmanuel Dupont, ‘Countermeasures and Collective Security: The Case of the EU Sanctions against Iran’, Journal of Conflict & Security Law 14, no. 3 (2012): 301–336; Dennis Alland, ‘Countermeasures of General Interest’, European Journal of International Law 12, no. 5 (2012): 1221–1239.
73 Case C–402/05 P and C–415/05, P. Kadi and Al Barakaat International Foundation v. Council and Commission [2008] ECR I–6351; and Case T-85/09 Kadi v Commission [2010] ECR II-5177. Also see Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission and others v. Kadi, judgment of the Court of Justice, 18 July 2013, paras. 99–100.
74 Joined Cases T-329/12 and T-74/13, Mazaan Al-Tabbaa v. Council [2014], judgment of the General Court, 9 July 2014; Case T-572/11, Samir Hassan v. Council [2014], judgment of the General Court, 16 July 2014; and Case T-293/12, Syria International Islamic Bank v. Council, judgment of the General Court, 11 July 2014.
75 Case T-572/11, Samir Hassan v. Council [2014], judgment of the General Court of Justice, 16 July 2014, paras. 86-95; and Joined Cases T-329/12 and T-74/13, Mazaan Al-Tabbaa v. Council [2014], judgment of the General Court, 9 July 2014. Also note Syria International Islamic Bank v. Council, judgment of the General Court of 11 July 2014, paras. 45–66.
76 UN R2p Report (2011), supra note 30, para. 36.
77 UN Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, A/RES/25/2625, 24 October 1970, and UN Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, A/20/2131 (1965), 21 December 1965.
78 Corfu Channel (Albania v. United Kingdom). Merits, Judgment of 9 April 1949, ICJ Reports 1949, p. 4; Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14; and Armed Activities on the Territory of the Congo (DRC v. Uganda). Merits, Judgment. I.C.J. Reports (2005).
79 Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14, para. 206.
80 Democratic Republic of Congo vs. Uganda (2005), supra note 77, para. 164.
81 Nicaragua vs. United States of America, supra note 78, para. 206.
82 Ibid. para 208.
83 OXFAM, ‘A Fairer Deal for Syrians’, supra note 48.
84 Letter dated 20 September from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, S/2014/691, 22 September 2014. See also Identical letters dated 25 November 2014 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary-General and the President of the Security Council, S/2014/851, 26 November 2014.
85 UNSC meeting, S/PV.7271, 16 September 2014: 43.
86 Ibid. p. 19.
87 See e.g. Jennifer Tahran, ‘Pesky Questions for International Law: What's the basis for airstrikes in Syria?’, Opinio Juris, 23 September 2014. Also see Louise Arimatsu and Michael Schmitt, ‘The Legal Basis for the War Against ISIS Remains ontentious’, The Guardian, 6 October 2014.
88 UNSC res 2170 (2014) of 15 August 2014. Also see UNSC res 2178 (2014) of 24 September 2014 (singling out the challenge posed by foreign terrorist fighters).
89 Ibid, para. 1.
90 Ibid, para. 6.
91 UNSC meeting, S/PV.7242, 15 August 2014: 3.
92 A. Barnard and E. Schmitt, ‘U.S. Focus on ISIS Frees Syria to Battle Rebels’, New York Times, 8 October 2014, available online: http://www.nytimes.com/2014/10/09/world/middleeast/us-focus-on-isis-frees-syria-to-battle-rebels.html?_r=0.
93 UNSC res 2139 of 22 February 2014, UNSC res 2165 of 14 July 2004, and UNSC 2191 of 17 December 2004.
94 Antonio Cassese, ‘Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’, European Journal of International Law 10, no 1 (1999): 23–30.