The Security Council’s reaffirmation of paragraphs 138 and 139 of the Outcome Document, in the operative part of Resolution 1674, reinforced the binding nature of the legal obligations resulting therefrom and the obligations of member States of the United Nations to implement decisions taken in accordance with the Outcome Document (under Article 25 of the Charter). The later statement by the UN Secretary-General that «the provisions of paragraphs 138 and 139 of the Summit Outcome [were] firmly anchored in well-established principles of international law» served only to acknowledge their intrinsic legal strength <*>.
<*> «Implementing the Responsibility to Protect»: Report of the Secretary-General, A/63/677, 12 January 2009, § 3. As to the legal nature of the obligation of the international community, see ICISS Report, cited above, § 2.31; «A More Secure World», cited above, §§ 201 — 202; and General Assembly Resolution 60/1, cited above.
Subsequently, the Security Council <1>, the General Assembly <2> and the Secretary-General <3> applied the rule of responsibility to protect profusely in binding and non-binding documents. In 2007 the Secretary-General appointed a Special Advisor on the Responsibility to Protect, whose office was recently merged with the office of the Special Adviser on the Prevention of Genocide, paving the way for a more comprehensive and coordinated approach to the core problem faced by these offices. In his landmark report «Implementing the Responsibility to Protect», of 12 January 2009 (A/63/677), the Secretary-General interpreted the Outcome Document, acknowledging the role of the General Assembly under the Uniting for Peace procedure to resolve the impasse of the Security Council (paragraphs 11, 57 and 63) <4>. By its Resolution 63/308 (2009), of 7 October 2009 (A/RES/63/308), the General Assembly took note of the Secretary-General’s report, accepting it tacitly.
<1> For example, Resolution 1706, of 31 August 2006, on the situation in Darfur (S/RES/1706 ), Resolution 2014, of 21 October 2011, on the situation of Yemen (S/RES/2014 ), Resolution 1970, of 26 February 2011 (S/RES/1970 (2011)), Resolution 1973, of 17 March 2011 (S/RES/1973 ), Resolution 2016, of 27 October 2011 (S/RES/2016 ), and Resolution 2040, of 12 March 2012 (S/RES/2040 (2012]) on the situation in Libya, Resolution 1975, of 30 March 2011 (S/RES/1975 ) on the situation in the Ivory Coast; and Resolution 2085, of 20 December 2011, on the situation in Mali (S/RES/2085 ).
<2> For example, Resolution 66/176, of 23 February 2011 (A/RES/66/176), and Resolution 66/253, of 21 February 2012 (A/RES/66/253).
<3> In «Larger Freedom: Towards Development, Security and Human Rights for All», cited above, § 132; «Implementing the Responsibility to Protect»: Report of the Secretary-General, A/63/677, 12 January 2009; «Early Warning, Assessment and the Responsibility to Protect»: Report of the Secretary-General, A/64/864, 14 July 2010; «The Role of Regional and Sub-regional Arrangements in Implementing the Responsibility to Protect»: Report of the Secretary-General, A/65/877-S/2011/393,28 June 2011; «Responsibility to Protect: Timely and decisive Response»: Report of the Secretary-General, A/66/874-S/2012/578, 25 July 2012; «Responsibility to Protect: State Responsibility and prevention»: Report of the Secretary-General, A/67/929-S/2013/399, 9 July 2013; «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.
<4> In addition, two references make it clear that, according to the Secretary-General, the UN system concurs with regional and individual enforcement initiatives: «In a rapidly unfolding emergency situation, the United Nations, regional, subregional and national decision makers must remain focused on saving lives through «timely and decisive» action» (paragraph 50), and «this will make it more difficult for States or groups of States to claim that they need to act unilaterally or outside of United Nations channels, rules and procedures to respond to emergencies relating to the responsibility to protect.» (paragraph 66).
- The United Nations practice teachings are clear: if human rights have prevailed over sovereignty and territorial integrity in order to liberate colonised populations from oppression and tyranny, the same applies with regard to non-colonised populations faced with governments that do not represent them and carry out a policy of discrimination and human rights abuses against them. The principle of equality warrants such a conclusion. In both situations, human rights protection comes first, the dignity of the women and men who are the victims of such a policy trumping the interest of the State. Although peace is the primary concern of the international community and the United Nations, which seeks «to save succeeding generations from the scourge of war», this must not be a rotten peace, established and maintained on the basis of the systematic sacrifice of the human rights of the population of a State, or part of it, at the hands of its own government. In these cases, the international community has a responsibility to protect, with all strictly necessary means, the victims.
(b) State practice
- Less recent international practice of military intervention in favour of non-colonised populations by third States includes such examples as the military intervention of Great Britain, France and Russia to protect the Greek nationalists, in 1827, the French military intervention in Syria in favour of the Maronite Christians, in 1860 — 61, the United States intervention in Cuba in 1989, and the joint military intervention of Austria, France, Great Britain, Italy and Russia in the Balkans in favour of Macedonian Christians, in 1905. More recent practice includes the examples of the military intervention of Vietnam in Kampuchea, in 1978 — 1979, that of Tanzania in Uganda, in 1979, or that of the United States, the United Kingdom, France and others in favour of the Kurdish population in Iraq, in 1991.
In the context of secession, the military intervention of India in the conflict with Pakistan is the most cited example, since Pakistan had not only denied the right of internal self-determination of the East Bengali population, but had also abused their human rights <*>. Neither Security Council Resolution 307 (1971), of 21 December 1971 (S/RES/307 (1971)), nor General Assembly Resolution 2793 (XXVI), of 7 December 1971 (A/RES/2793 (XXVI)), considered India as an «aggressor» or «occupant», nor did they ask for the immediate withdrawal of troops <**>.
<*> On this particular situation see International Commission of Jurists, «The events in East Pakistan», Geneva, 1972.
<**> At this juncture, it is important to note that a modern conception of customary international law, especially in such domains where there is a lack of State practice, like those of State secession, admits the relevance of non-binding resolutions like those of the General Assembly, for the formation of a customary rule (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, pp. 255 — 256, §§ 70 — 73).
- The paradigm shift at the end of the twentieth century is remarkable, most notably in Africa. With the vivid memory of the Rwanda genocide and of the uncoordinated response of the international community to tragedy, African leaders decided to take action, by creating mechanisms for humanitarian intervention and military enforcement operations in intra-State conflicts, including genocide, crimes against humanity, ethnic cleansing, gross violation of human rights and military coups, as follows:
(a) As regards the Economic Community of West African States, see Articles 3 (d) and (h) and 22 of the 1999 ECOWAS Protocol establishing the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security:
«ECOMOG is charged, among others, with the following missions:… b) Peace-keeping and restoration of peace; c) Humanitarian intervention in support of humanitarian disaster; d) Enforcement of sanctions, including embargo; e) Preventive deployment; f) Peace-building, disarmament and demobilisation».
(b) As to the Economic Community of Central African States, see Article 5 (b) of the 2000 Protocol Relating to the Establishment of a Mutual Security Pact in Central Africa:
«Aux fins ci-dessus, le COPAX:… b. peut engager toute action civile et militaire de , gestion et de reglement de conflits».
(c) As regards the Southern African Development Community, see Articles 3 § 2 (e) and (f) and 11 of the 2001 SADC Protocol on Politics, Defence and Security Co-operation:
«The Organ may seek to resolve any significant intra-state conflict within the territory of a State party and a «significant intra-state conflict» shall include: (i) large-scale violence between sections of the population or between the state and sections of the population, including genocide, ethnic cleansing and gross violation of human rights; (ii) a military coup or other threat to the legitimate authority of a State; (iii) a condition of civil war or insurgency; (iv) a conflict which threatens peace and security in the Region or in the territory of another State Party.»
(d) For the Organisation of African Unity, see Article 4 (h) of the African Union Act and Articles 4 (j) and 7 § 1 (f) of the 2002 Protocol relating to the Establishment of the Peace and Security Council of the African Union:
«The Peace and Security Council shall be guided by the principles enshrined in the Constitutive Act, the Charter of the United Nations and the Universal Declaration of Human Rights. It shall, in particular, be guided by the following principles:… j. the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity, in accordance with Article 4(h) of the Constitutive Act.»
According to the so-called Ezulwini consensus, approval by the Security Council can be granted «after the fact» in circumstances requiring «urgent action» and, thus, Article 53 § 1 of the Charter is not always applicable <*>. By lending its institutional authority to the Ezulwini Consensus, the African Commission on Human and Peoples’ Rights Resolution 117 (XXXXII), of 28 November 2007, on «Strengthening the Responsibility to Protect in Africa», further enhanced the lawfulness of this interpretation.
<*> African Union, The Common African Position on the proposed Reform of the United Nations: The Ezulwini Consensus, Executive Council 7th Extraordinary Session, 7 — 8 March 2005 (Ext./EX.CL./2(VII)).
Central to these initiatives is the decisive political will to avoid the tragic inaction of the United Nations in the past, if necessary, by replacing its universal peace and security mechanism by regional multilateral action <1>. The Security Council reacted positively, and has even approved ex post facto military interventions implemented within the framework of these regional and sub-regional mechanisms. For example, it did so explicitly with the ECOWAS intervention in Sierra Leone and in Liberia <2> and the African Union intervention in Burundi <3>, as well as implicitly with the intervention of SADC in the Democratic Republic of Congo <4>. This coherent and consistent practice embodies a positive belief that it is required by international law.
<1> On the United Nations reaction to the Rwanda events see the Carlsson Report of 15 December 1999 (S/1999/1257).
<2> Security Council Resolution 788 (1992), of 19 November 1992 (S/RES/788 (1992)), and Resolution 1497, of 1 August 2003 (S/RES/1497 (2003)), both on the situation on Liberia, and Resolution 1132 (1997), of 8 October 1997 (S/Res/1132/1997 (1997)), and Resolution 1315, of 14 August 2000 (S/RES/1315 (2000)), on the situation in Sierra Leone.
<3> Security Council Resolution 1545 (2004) (S/RES/1545 (2004)) which paid tribute to the African Union intervention, encouraged it to «maintain a strong presence in Burundi to accompany the efforts of the Burundian parties» and authorised the deployment of the United Nations Operation in Burundi (ONUB) for an initial period of six months.
<4> Security Council Resolution 1234, of 9 April 1999 (S/RES/1234 (1999)), which neither endorses nor condemns the operation.
(c) The opinio juris
- Having in mind the genocide of the Armenian population by the Ottoman Empire, Fenwick once stated that lawyers generally believed that there should be a right to stop such massacres, but were unable to determine who had the responsibility to intervene <*>. Sir Hersch Lauterpacht gave the correct answer <**>. Recalling Grotius’ lesson, he admitted that intervention by any State was lawful when a ruler «inflict[ed] upon his subjects such treatment as no one [was] warranted in inflicting», adding:
<*> Fenwick, «Intervention: individual and collective», in American Journal of International Law, vol. 39 (1945), pp. 650 — 651. That question had already been addressed by the founding fathers of international law: Grotius, in De jure belli ac pacis, Libri tres, 2.2.25; Vitoria, in De jure belli, qt. 3, art. 5, § 15; and Vattel, in Le droit des gens ou les principes de la loi naturelle la conduite et aux affaires des nations et des Souverains, book II, chapter IV, § 56.
<**> H. Lauterpacht, «The Grotian Tradition in International Law», in British Year Book of International Law, vol. 23 (1946), p. 46.
«This is, on the face of it, a somewhat startling rule, for it may not be easy to see why he (Grotius) permits a foreign state to intervene, through war, on behalf of the oppressed while he denies to the persecuted themselves the right of resistance. Part of the answer is, perhaps, that he held such wars of intervention to be permitted only in extreme cases which coincide largely with those in which the king reveals himself as an enemy of his people and in which resistance is permitted.»
In the year of the fall of communism in Eastern Europe, the question resurfaced again with much ado on the agenda of the international community. With the Institute of International Law approving Article 2 of the 1989 Resolution on «The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States», it was admitted that States, acting individually or collectively, were entitled to take diplomatic, economic and other measures any other State which had committed grave violations of human rights, notably large-scale or systematic violations, as well as those infringing rights that could not be derogated from in any circumstances, provided such measures were permitted under international law and did not involve the use of armed force in violation of the UN Charter. A contrario, any initiative in accordance with the Charter for the purpose of ensuring human rights in another State can be taken by States acting individually or collectively, and should not be considered an intrusion in its internal affairs. Some years later, quite restrictively, Article VIII of the 2003 Resolution on Humanitarian Assistance reformulated the rule, with much caution, as follows: in the event that a refusal to accept a bona fide offer of humanitarian assistance or to allow access to the victims leads to a threat to international peace and security, the Security Council may take the necessary measures under Chapter VII of the Charter of the United Nations. Meanwhile, both humanitarian intervention <*> and the responsibility to protect doctrine <**> have received attention and support from reputed scholars and experienced practitioners.
<*> In the twentieth century, most notably: Rougier, «La de l’intervention «, in Revue de Droit International Public, 17 (1910), pp. 468 — 526; Stowell, «Intervention in International Law», Washington, 1921; Franck and Rodley, «After Bangladesh: the law of humanitarian intervention by military force», in American Journal of International Law, vol. 67 (1973), pp. 275 — 303; Fonteyne, «The customary international law doctrine of humanitarian intervention: its current validity under the UN Charter», in California Western International Law Journal, vol. 4 (1974), pp. 203 — 270; Klintworth, «Vietnam’s Intervention in Cambodia in International Law», Canberra, 1989; Benjamin, «Unilateral Humanitarian Intervention: Legalizing the Use of Force to Prevent Human Rights Atrocities», in Fordham International Law Journal, vol. 16 (1992), pp. 120 — 158; Torrelli, «De l’assistance l’ingerence humanitaires», in International Review of the Red Cross, vol. 74 (1992), pp. 238 — 258; Forbes and Hoffman (eds.), «Political Theory, International Relations and the Ethics of Intervention», London, 1993; , Humanitarian intervention: an inquiry into law and morality, second edition, Irvington-On-Hudson, 1997; Cassesse, «Ex inuria ius oritur: Are we moving towards international legitimation of forcible humanitarian countermeasures in world community», in European Journal of International Law, vol. 10 (1999), pp. 23 — 30; Independent International Commission on Kosovo, «The Kosovo Report», 2000, pp. 167 — 175; Wheeler, «Legitimating humanitarian intervention: principles and procedures», in Melbourne Journal of International Law, vol. 2 (2001), pp. 550 — 567; Saving Strangers: Humanitarian Intervention in International Society, Oxford, 2002; Terry, «The Paradox of Humanitarian Action: Condemned to Repeat», New York, 2002; Lepard, Rethinking Humanitarian Intervention, Penn State University Press, 2002; Welsh, Humanitarian Intervention and International Relations, Oxford, 2006; and Thakur, «Humanitarian Intervention», in Weiss and Daws (eds.), The Oxford Handbook on the United Nations, Oxford, 2007, pp. 387 — 403.
<**> Among others: Deng and Zartman, Sovereignty as Responsibility: Conflict Management in Africa, Washington, 1996; Weiss, Military-Civilian Interactions: Humanitarian Crises and the Responsibility to Protect, Lanham, 2005; and Krause (eds.), From Rights to Responsibilities: Rethinking Interventions for Humanitarian Purposes, Geneva, 2006; pour le Droit International (ed.), La de , Paris, 2008; Evans, The Responsibility to Protect: Ending mass atrocity crimes once and for all, Washington, 2008; Arbour, «The responsibility to protect as a duty of care in international law and practice», in Review of International Studies, vol. 34, pp. 445 — 458; Bellami, Responsibility to Protect, London, 2009; Global Politics and the Responsibility to Protect: From Words to Deeds, New York, 2010; Kuwali, The Responsibility to Protect, Implementation of Article 4 (h) Intervention, Leiden, 2011; Ferris, The Politics of Protection: The Limits of Humanitarian Action, Washington, 2011; Hoffmann and Nollkaemper (eds.), Responsibility to Protect From Principle to Practice, Amsterdam, 2012; Knight and Egerton (eds.), The Routledge Handbook of the Responsibility to Protect, New York, 2012; Francis et al. (eds.), Norms of Protection, Responsibility to Protect, Protection of Civilians and their Interaction, Paris, 2012; Genser and Cotler (eds.), The Responsibility to Protect, the Promise of Stopping Mass Atrocities in our Time, Oxford, 2012; Zyberi (ed.), An Institutional Approach to the Responsibility to Protect, Cambridge, 2013; Hajjami, La de , Brussels, 2013; and the Sphere Project, Humanitarian Charter and Minimum Standards in Humanitarian Response, 2011, and the Core Humanitarian Standard on Quality and Accountability, 2014.
- In view of the practice and opinio mentioned above, the rule of responsibility to protect shows some important differences with regard to the «right to humanitarian intervention»: firstly, responsibility to protect presupposes the primary State’s obligation to respect and protect the human rights of its population, which underlines the subsidiary preventive and protective role of the international community; secondly, responsibility to protect departs from the concept of the «right» of each State to intervene in another State’s internal affairs, by establishing the specific conditions for intervention and hence limiting the discretion of a State to take action against another State; thirdly, responsibility to protect shifts the focus from the «right» of the target State to territorial integrity to the rights of the victims in peril; and fourthly, and most importantly, sovereignty becomes instrumental to the welfare of the population, and is not an end in itself, the use of force constituting the last-resort instrument to safeguard the fundamental rights and freedoms of the victimised population in the target State.
- Hence, responsibility to protect corresponds to a customary norm which has benefited from three different but converging lines of development of international law: first, human rights do not belong to the reserved domain of sovereignty of States (Article 2 § 7 of the UN Charter) <1>, which excludes from this domain «the outlawing of acts of aggression, and of genocide» and «principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination», respect for which constitutes an erga omnes obligation of States <2>, and where disrespect may constitute a threat to international peace; second, State officials have a personal responsibility to protect the population under their political authority, on pain of international criminal responsibility for the delicta juris gentium: genocide, crimes against humanity and war crimes (Articles I, IV, V, VI and VIII of the Genocide Convention and Articles 6 to 8 of the Rome Statute of the International Criminal Court), whose prevention and prosecution is also an erga omnes obligation <3>; third, the protection of civilians in armed conflicts is a responsibility of the international community, requiring States to take action jointly or individually to suppress serious violations of the Geneva Conventions or Protocol I thereto (Article 89 of Additional Protocol I), as well as any other serious violations of international humanitarian law embodying elementary considerations of humanity, with erga omnes effect, including in non-international armed conflicts between the government of a State and «dissident armed forces or other organized armed forces» (Article 1 § 1 of Additional Protocol II to the four Geneva Conventions) and between the government and non-organised forces, and even in civil strife outside of armed conflict (Common Article III of the Geneva Conventions) <4>. This customary rule applies both to action by a State in foreign territories under its effective control and to conduct of private persons, in national or foreign territories, when they act under the control of the State <5>.
<1> The reserved domain is an evolving concept, defined negatively by the lack of international norms regulating a certain issue and not positively by its inclusion in a closed catalogue of issues (Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, p. 25, § 59; and Institute of International Law, 1954 Resolution on La du domaine et ses effets).
<2> Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, p. 33, §§ 33 — 34; and Institute of International Law, Article 1 of the 1989 Resolution on The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States.
<3> Application of the Convention on the prevention and Punishment of the Crime for Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, p. 221, § 430 («the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible»); Barcelona Traction, Light and Power Company, Limited, Judgment, cited above, p. 32, § 34; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p. 23; and Resolution ICC-ASP/5/Res.3, adopted at the 7th plenary meeting on 1 December 2006, by consensus. As the ICJ put it, when referring to genocide, States must cooperate «in order to liberate Mankind from such an odious scourge». The obligation to prevent and prosecute war crimes resulted already from the Geneva treaty and customary law. The obligation to do likewise regarding crimes against humanity is a direct consequence of the Rome Statute. Ethnic cleansing may be criminally punished both as a war crime or a crime against humanity.
<4> See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, pp. 199 — 200, §§ 155 — 158, and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 60, § 178. Most of the universally ratified Geneva treaty law codifies customary law, which means that every State, whether or not it is a party to the specific conflict, is obliged to ensure respect for these rules and to take action, jointly or individually, in order to protect civilians in armed conflict. Admittedly, this obligation requires States to ensure that no other State commits genocide, war crimes or crimes against humanity. The action undertaken must evidently be in accordance with the State’s obligations under the Charter (Article 109).
<5> Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 62, §§ 109 — 110; Democratic Republic of the Congo v. Uganda, cited above, p. 231, §§ 178 — 180; and Bosnia and Herzegovina v. Serbia and Montenegro, cited above, pp. 207 — 211, §§ 399 — 406; see also Article 8 of International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts. The extent of the effective control test will not be dealt with in this opinion.
- In international law, States have a duty to cooperate to bring to an end, through lawful means, any serious breach by a State of an obligation arising under a peremptory norm of general international law (see Article 41 § 1 of the Draft Articles on State Responsibility for Internationally Wrongful Acts of the International Law Commission (ILC)). Any State other than the injured State may invoke the responsibility of the perpetrator State when «[t]he obligation breached is owed to the international community as a whole» and claim from the responsible State the cessation of the internationally wrongful act (ibid., Article 48 § 1 (b)) <*>.
<*> As the ILC explained, Article 48 § 1 (b) «intends to give effect to the statement by ICJ in the Barcelona Traction case, where the Court drew «an essential distinction» between obligations owed to particular States and those owed «towards the international community as a whole». With regard to the latter, the Court went on to state that «[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes» (see ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, cited above, p. 127). These Draft Articles apply to breaches of inter-State obligations of a bilateral character, as well as to international responsibility for breaches of State obligations owed to an individual, groups of individuals or the international community as a whole.
Mass atrocities committed or condoned by a government against their own population entail such legal consequences in view of the jus cogens nature of these crimes and the erga omnes nature of the corresponding human rights protection obligation. In this context, the legal status of both the collective State responsibility and the extra-territorial individual State responsibility for preventing and stopping jus cogens crimes is unambiguous. As a matter of principle, all States are to be considered as the «injured State» in the case of the delicta juris gentium, whose perpetrators are deemed to be hostis human generis <*>. In the words of Lauterpacht, «the exclusiveness of domestic jurisdiction stops where outrage upon humanity begins» <**>.
<*> Both General Assembly Resolution 2840 (1971), of 12 December 1971, on the question of the punishment of war criminals and of persons who have committed crimes against humanity (A/RES/2840(XXVI)), and its Resolution 3074 (1973), of 3 December 1973, on «Principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity» (A/RES/3074(XXVIII)), underscore the States» obligation to take steps for the arrest, extradition, trial and punishment of these criminals.
<**> See H. Lauterpacht, «The Grotian Tradition», cited above, p. 46.
- International human rights law, international criminal law and international humanitarian law have evolved in such a way that they converge into acknowledging the legal obligation to take, collectively or individually, preventive and coercive action against a State which systematically attacks, or condones an attack on, all or part of its population <*>. The human-rights based intervention is strictly limited to preventing or stopping mass atrocities in the form of genocide, crimes against humanity, war crimes and ethnic cleansing, and does not purport to change the constitutional system of the target State <**>.
<*> This should not be confused with a right to a State-building, prodemocracy intervention, aimed at expanding a certain model of political governance (see Nicaragua v. United States of America, cited above, pp. 109 — 110, § 209). The ICJ admitted humanitarian intervention to «prevent and alleviate human suffering, and to protect life and health and to ensure respect for the human being without discrimination to all in need» in Nicaragua, and not merely to the contras and their dependants (p. 125, § 243). Nevertheless, it is obviously unrealistic to suppose that it will be possible to eradicate a policy of systematic human rights abuse without some change in terms of the political regime of the target State.
<**> This should also not be confused with a right to intervention based on a general negative assessment of the human rights situation in a particular country (contrast with Nicaragua v. United States of America, cited above, pp. 134 — 135, § 268).There must be an element of systematicity in the infringement of human rights (see on this systematic element, my separate opinion in Mocanu and Others, cited above). Such an element is present in the types of crimes which trigger responsibility to protect.
As an ultimum remedium mechanism, human-rights based intervention presupposes that where human rights are protected by international conventions, that protection did not take the regular form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves. The use of force by the international community is thus limited by a double subsidiarity, in view of the failure of both the national human rights protection mechanisms and the common international human rights treaty mechanisms.
The international community’s subsidiary reaction may take place, in decreasing order of authority, by way of a Security Council resolution <1>, a General Assembly recommendation <2>, an action of a regional organisation whether or not authorised beforehand under Article 53 of the Charter, both ad intra or ad extra <3>, and an action of a group of like-minded States or an individual State <4>. Whenever the more authoritative means of response is deadlocked, or it seriously appears that this will be the case, a less authoritative means may be used. Inaction is not an option in the face of a looming or actual tragedy, putting at risk the lives of untold numbers of victims. Not only does the Charter not cover the whole area of the regulation of the use of force <5>, the Charter itself also pursues other aims such as the protection of human rights (Articles 1 § 2, 1 § 3 and 55), and the systematic flouting of these rights by a State within its own borders jeopardises international peace and security as well. In such circumstances, States must take joint and separate action to secure observance of the violated human rights of the victimised population (Article 56 of the Charter).
<1> The 2005 World Summit Outcome Document, § 139. The clause urging the five permanent Members of the Security Council not to veto action aimed at preventing or stopping genocide or ethnic cleansing was not included in the final version. The ICISS report («The Responsibility to Protect», cited above, § 6.21), the High-level Panel report («A More Secure World», cited above, § 256) and the Secretary-General («Implementing the Responsibility to Protect», cited above, § 61) have voiced their agreement with that restriction of the veto power.
<2> General Assembly Resolution 377 (V) A, of 3 November 1950, or «Uniting for Peace Resolution» (A/RES/377, see also A/1775 (1951)). On the role of this Resolution, see ICISS, «The Responsibility to Protect», cited above, § 6.30, Independent International Commission on Kosovo, «The Kosovo Report», Oxford, 2000, p. 166, and the Secretary-General’s report, «Implementing the Responsibility to Protect», cited above, § 56. In fact, the General Assembly has already made significant use of this Resolution, such as by calling upon all States and authorities «to continue to lend assistance to the United Nations action in Korea», which meant military assistance (Resolution 498 (V), of 5 November 1951 (A/RES/498 (V)), «establishing» peacekeeping operations in Egypt (Resolution 1000 (ES-I), of 5 November 1956 (A/RES/1000 (ES-I)), «requesting» the Secretary-General «to take vigorous action… to assist the Central Government of the Congo in the restoration and maintenance of law and order throughout the territory of the Republic of Congo», thus confirming the mandate of the UN Operation in the Congo (Resolution 1474 (ES-IV), of 16 September 1960 (A/RES/1474 (ES-IV)) and condemning South Africa for occupation of Namibia and calling for foreign military assistance to the liberation struggle (Resolution ES-8/2, cited above). The so-called «Chapter VI measures» relied on the target State’s consent, but neither the text nor the spirit of Resolution 377 excludes its use in order to recommend the use of force in situations of breach of the peace even where consent is lacking.
<3> ICISS, «The Responsibility to Protect», cited above, § 6.31 — 6.35 («there are recent cases when approval has been sought ex post facto, or after the event (Liberia and Sierra Leone), and there may be certain leeway for future action in this regard»), «A More Secure World», cited above, § 272, Report of the Security Council Ad Hoc Working Group on conflict prevention and resolution in Africa, of 30 December 2005 (S/2005/833), § 10, and «Fourth report on responsibility of international organizations» by the Special Rapporteur Giorgio Gaja, § 48 (A/CN.4/564). The Secretary-General’s report, «Implementing the Responsibility to Protect», cited above, § 56, referred to the use of force by regional or subregional arrangements «with the prior authorization of the security Council». The World Summit Outcome Document envisages cooperation between the Security Council and the «appropriate» regional organisation, meaning one from within the geographical area of the conflict. But practice has shown that the Security Council may pick another choice. For example, Resolution 1484 (2003), of 30 May 2003, authorised the European Union-led Operation Artemis in the Democratic Republic of the Congo during the Ituri conflict.
<4> The World Summit Outcome Document did not exclude these possibilities. As explained above, they derive not only from the jus cogens nature of the crimes at stake, but also from the erga omnes nature of the human rights protection obligation.
<5> Nicaragua v. the United States, cited above, p. 94, § 176, and ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, cited above, p. 85: «But in applying some peremptory norms the consent of a particular State may be relevant. For example, a State may validly consent to a foreign military presence on its territory for a lawful purpose. Determining in which circumstances consent has been validly given is again a matter for other rules of international law and not for the secondary rules of State responsibility.»
(ii) Responsibility of the respondent Government
- Sovereign States are entitled to defend their national territory and protect their populations. This is not only their right, but their obligation as well. Each government has the obligation to maintain or re-establish law and order in the State or to defend its national unity and territorial integrity by «all legitimate means» <1>. While fulfilling these obligations, «all reasonable precautions» are due to avoid any losses of civilian lives and damage to civilian objects <2>. When absolutely necessary, civilian property may be destroyed for military purposes <3>. Civilians should not be arbitrarily displaced from their homes or places of habitual residence, imperative military reasons being necessary to justify such displacement <4>. In the case of forced displacement of civilians, their rights to return to and enjoy their homes and property should be implemented as soon as the reasons for their displacement cease to exist <5>.
<1> Article 3, al. 1, of the 1977 Additional Protocol II to the Geneva Conventions.
<2> Article 13 of the 1977 Additional Protocol II to the Geneva Conventions and Article 57 of the 1977 Additional Protocol I to the Geneva Conventions, and Rules 1 to 10 and 15 of the International Committee Red Cross (ICRC) Study on Rules of customary international humanitarian law, in Henkaerts and Doswald-Beck, Customary International Humanitarian Law, Volume I, Geneva, 2005.
<3> Article 52 of the 1977 Additional Protocol I to the Geneva Conventions, Article 14 of the 1977 Additional Protocol II to the Geneva Conventions, Article 53 of 1949 Convention IV relative to the protection of civilian persons in time of war, Article 6 (b) of the Charter of the International Military Tribunal, Articles 46 and 56 of the Hague Regulations Respecting the Laws and Customs of War on Land, and Rules 51 and 52 of the ICRC Study on Rules of customary international humanitarian law.
<4> Article 17 the 1977 Additional Protocol II to the Geneva Conventions, Rules 129 and 130 of the ICRC Study on Rules of customary international humanitarian law, and Principle 6 of the Guiding principles on internal displacement (E/CN.4/1/1998/53/Add.2), of 11 February 1998.
<5> Article 49 of the Fourth Geneva Convention and Rule 132 of the ICRC Study on Rules of customary international humanitarian law.
- In the context of secession, military action by the parent State against the seceding movement and intervening third States is, in principle, justified. The obligation to defend territorial integrity applies unless the secession complies with the following requirements: (1) the seceding population fulfil the Montevideo criteria for statehood, namely they constitute a permanent population and have a defined territory, a government and the capacity to enter into relations with other States; (2) prior to secession the seceding population were not allowed fair participation in a government that represented the whole population of the former State; and (3) the seceding population were systematically treated by the government, or by a part of the population of the parent State whose action was condoned by the government, in a discriminatory manner or in a manner disrespectful of their human rights <*>.
<*> See my separate opinion appended to Chiragov and Others v. Armenia [GC], No. 13216/05.
When secession complies with these requirements, military action of the government of the parent State against the seceding population and intervening third States is no longer lawful. A State forfeits the right to defend its territory when it systematically breaches the human rights of a part of its population, or condones such breaches by private agents.
(iii) Responsibility of the international community
- Sovereignty, equality of all States and prohibition of the threat or use of force against another State are the founding principles of the Charter of the United Nations. These principles have a practical consequence, already set out in the well-known Article 7 of the du Droit des Gens (1795), «Un peuple n’a pas le droit de s’immiscer dans le gouvernement des autres» (no people has the right to interfere in the government of others). An allegation of human rights violations in another State may evidently provide a convenient pretext for intrusion into its internal politics and, even worse, for the overthrow of legitimate governments, as the «manifestation of a policy of force, such as has, in the past, given rise to most serious abuses» <*>. Nevertheless, the mere circumstance that the right to intervene may be abused is not per se decisive of its existence or otherwise in international law. One should remember the wisdom of Grotius: «We know, it is true, from both ancient and modern history, that the desire for what is another’s seeks such pretexts as this for its own ends; but a right does not cease to exist in case it is to some extent abused by evil men.» <**>
<*> On the principle of non-intervention, see Article 15 (8) of the Covenant of the League of Nations, Article 8 of the 1933 Montevideo Convention on Rights and Duties of States, Article 1 of its 1936 Additional Protocol on Non-Intervention, and Article 3, al. 2, of Additional Protocol II to the Geneva Convention. In the UN practice, United Nations General Assembly Resolution 36/103, of 9 December 1981, approving the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States (A/RES/36/103), Resolution 2625 (XXV), of 24 October 1970, containing the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (A/8082 (1970)), and Resolution 2131 (XX), of 21 December 1965, which adopted the Declaration on the Inadmissibility of Intervention and Interference in the Domestic Affairs of States, and Article 4 of the 1949 ILC Draft Declaration on Rights and Duties of States. In the ICJ case-law, see Nicaragua v. United States of America, cited above, p. 126, § 246, and Corfu Channel case, Judgment of April 9th, 1949, ICJ Reports 1949, p. 35, from where the citation in the text is taken.
<**> De jure belli ac pacis, Libri tres, 2.2.25.
During the first decade of the twenty-first century, the following rule of customary international law crystallised:
States have the legal obligation to prevent and stop the commission, preparation and incitement thereto, of genocide, war crimes, ethnic cleansing and crimes against humanity. When a State commits these crimes, condones the commission of these crimes or is manifestly unable to oppose their commission in the national territory or the territories under its effective control, the international community has a legal obligation to react with all adequate and necessary means, including the use of military means, in order to protect the targeted populations. The reaction must be timely, effective and proportionate. By order of precedence, the power to take action is vested in the following authorities: the Security Council under Chapters VI and VII of the UN Charter, the General Assembly of the United Nations under the «Uniting for Peace» Resolution and regional or sub-regional organisations in accordance with their respective statutory framework, whether ad intra or ad extra. When the primary authorities are deadlocked, or it seriously appears that this will be the case, any State or group of States will be competent to take action.
- In the context of secession, third States are prohibited from taking military action against the parent state on the pretext that the seceding population is entitled to self-determination. Thus, the territory of a State cannot be the object of acquisition by another State resulting from the threat or use of force, no territorial acquisition resulting from the threat or use of force shall be recognised as legal, and every State has the duty to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in another State <*>.
<*> Article 11 of the 1933 Montevideo Convention on Rights and Duties of States, paragraph 5 of the Declaration on the Strengthening of International Security adopted by the General Assembly Resolution 2734 (XXV), of 16 December 1970 (A/RES/25/2734), and Article 5 (3) of the General Assembly Resolution 3314 (XXIX), of 14 December 1974, on the definition of the crime of aggression (A/RES/3314(XXIX)).
The rule of non-interference in favour of a seceding population has an exception, namely the situation where the government of the parent State is not representative of the seceding population and systematically abuses their human rights or condones a systematic attack by private agents against them. In this situation, strictly necessary military action taken by third States in favour of the seceding population is lawful after the latter have established control of their territory and declared their secession. Military action by third States prior to that time constitutes prohibited intervention in the internal affairs of another State <*>.
<*> For the prohibition on recognising as a State a secessionist territory which is the result of the use of unlawful force by a third State, see the case of the «Turkish Republic of Northern Cyprus» after Turkey’s invasion of Cyprus (Security Council Resolutions 541 (1983), of 18 November 1983 (S/RES/541 (1983)), and 550 (1984), of 11 May 1984 (S/RES/550 (1984)).
If, in addition to the above-mentioned requirements, the interference envisages the protection of a seceding population which is ethnically the same as that of the intervening third State, the lawfulness of the interference is even less questionable, because it closely equates to a situation of self-defence. In any event, as to obligations under international humanitarian law and in relation to non-derogable human rights provisions, self-defence does not preclude the wrongfulness of conduct of the intervening third State <*>.
<*> ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, cited above, p. 74.
- Preliminary conclusion: is the and Others standard really expanded?
- The applicant claims that the Shahumyan region was subjected to a blockade by the Azerbaijani Government in the early 1990s. In June 1992 Gulistan came under direct attack by Azerbaijani forces and the population of the village, including the applicant and his family, were expelled and fled to Nagorno-Karabakh and Armenia. He complains about being denied the possibility of returning to his home and property and enjoying them, or of obtaining compensation for the loss thereof.
- In paragraph 32 of the judgment, the majority accept that:
«in April-May 1991 the USSR Internal Forces and the special purpose militia units («the OMON») of the Azerbaijan SSR launched a military operation with the stated purpose of «passport checking» and disarming local Armenian militants in the region. However, according to various sources, the government forces, using the official purpose of the operation as a pretext, expelled the Armenian population of a number of villages in the Shahumyan region, thus forcing them to leave their homes and flee to Nagorno-Karabakh or Armenia. The expulsions were accompanied by arrests and violence towards the civilian population. In 1992, when the conflict escalated into a full-scale war, Shahumyan region came under attack by Azerbaijani forces.»
Plainly speaking, the majority establish that the respondent State attacked the Armenian population of Shahumyan region and forced them to flee, as the applicant claims, but unfortunately they find it unnecessary to discuss «whether the reasons for the applicant’s displacement have ceased to exist» (paragraph 232).
Instead of dealing with the thorny issue of the «reasons for the forced displacement» and their persistence from at least 2006 until the present day, the majority invoke vague «safety considerations» without any evaluation of the six classic circumstances precluding the wrongfulness of conduct that would otherwise not be in conformity with the international obligations of the State concerned: consent (Article 20 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts), self-defence (Article 21), countermeasures (Article 22), force majeure (Article 23), distress (Article 24) and necessity (Article 25). What is more, the argument of «safety considerations» is supported by a forced analogy with Oruk (cited above), a case without the slightest connection to the facts of the present case.
- Even though the respondent State’s international obligations in 1992 (year of the alleged forced displacement), in 2006 (year of the lodging of the application) and in 2015 (year of delivery of the present judgment) have evolved, there is nonetheless a continuum between its international humanitarian obligations and the human rights obligations it assumed with the adoption and entry into force of the Convention in Azerbaijan. Thus, the Court should not have adjudicated upon the alleged deprivation of the applicant’s rights without assessing the «source of the rights claimed» <*>.
<*> , cited above, §§ 159 — 163.
With a view to fully clarifying the existence of the «source» of the rights claimed, the essential questions to be addressed are the following: Did the Azerbaijani Government attack the Armenian population and expel them from Shahumyan region in June 1992 and, if so, did it have any justification for that action? Did the attack and expulsion of the Armenian population comply with the respondent State’s humanitarian obligations? Were the reasons for the expulsion of the Armenian population still valid in 2006 when the applicant filed his complaint? Were the restrictions imposed on the applicant’s return to Gulistan valid in view of the respondent State’s responsibility to protect the lives of civilians in Gulistan and its surroundings?
Gulistan may be a no-man’s-land, but it is certainly not a legal vacuum in Europe. There is a law regulating the front line between two armies facing each other, and that law is international humanitarian law, including the obligation to protect civilians, as well as the responsibility to protect. Article 1 of Protocol No. 1 to the Convention refers to general principles of international law as a ground for restricting the right to property, and the principles of military necessity, protection of civilians and responsibility to protect are such principles.
- Although the majority consider the deprivation of the right of access to the house, property, land and village «justified», they purport to impose positive obligations on the respondent State, such as the setting up of a property claims mechanism to deal with the restoration of property rights and compensate for the loss of enjoyment. The authority invoked is and Others <*>. Again, the reference is misplaced. For two reasons: firstly, unlike the applicants in and Others, the applicant in the present case was not an internally displaced person, since he was living in Armenia; secondly, in and Others the Court left open the questions whether the refusal of any access to village until 22 July 2003 on the ground of terrorist incidents in and around the village was lawful and pursued a legitimate aim, concentrating its examination on the issue of proportionality, while in the present case, the majority expressly consider the government’s conduct to be «justified by safety considerations», i.e., they found that the governmental order restricting access to Gulistan pursued a legitimate aim.
<*> and Others v. Turkey, Nos. 8803 — 8811/02, 8813/02 and 8815 — 8819/02, ECHR 2004-VI, cited in paragraph 234 of the judgment.
- Furthermore, Armenian refugees, like the applicant, could already benefit from a 1991 Order legalising property swaps between individuals. The majority note this fact, but dismiss it as irrelevant with the argument that «the applicant has not been involved in such an exchange» (paragraph 239). Implicitly, the majority presuppose that the Government had the obligation to identify and locate all the displaced persons from the conflict who had lost their property, including those living abroad, in order to «involve» them in the property swap mechanism. Such presupposition places an unreasonable burden on the Government. Furthermore, the majority did not even venture to check whether the applicant had ever taken the initiative to be involved in such a property exchange and had been denied that possibility. Finally, no objective grounds pertaining to the swap mechanism itself are given by the majority to reject it as a satisfactory means of implementing the Government’s obligation to put in place administrative measures to secure the applicant’s individual rights <*>.
<*> and Others, cited above, § 346.
In any event, if the majority intended to expand the and Others standard for positive obligations in the case of Article 1 Protocol No. 1 claims by internationally displaced persons, they failed <*>. Conscious of the inexistence of a legal basis for «alternative measures», the majority not only give them a hypothetical formulation (paragraph 238: «it would appear particularly important»), but also downgrade them to mere obiter dicta, not covered by an Article 46 injunction in the operative part of the judgment. In this context, the mention of these measures resonates more like wishful thinking than a legally binding obligation.
<*> It is significant that, in paragraph 226, the majority consider it appropriate to examine the applicant’s complaint with a view to establishing whether the respondent Government have complied with their «positive obligations» under Article 1 of Protocol No. 1, but in the following text never refer again to this expression, using instead the expression «alternative measures».
- Final conclusion
- The Westphalian State is . Sovereignty is no longer what it was in the seventeenth century. After one century of mass murders committed by political leaders against their own peoples, like the Armenians under Talat Pacha, the Ukrainians under Stalin, the Jews under Hitler, the Cambodians under Pol Pot, the Tutsi at the hands of the Hutu, the international community came up with a two-pronged response: on the one hand, in Rome it established the rules on international criminal responsibility of political and military leaders and, on the other, in Vienna it affirmed sovereignty as responsibility to protect human rights and the international community’s subsidiary responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity in the face of the national authorities’ manifest failure to ensure their protection. Being at the intersection of international human rights law, international criminal law and international humanitarian law, responsibility to protect is not a mere political catalyst for international action. It is a customary international rule which creates human rights protection obligations for States. Action aimed at their implementation is thus also subject to the international rule of law, including that of the Convention. Therefore, when implemented by Contracting Parties to the Convention, responsibility to protect is subject to the oversight of this Court. Those who seek to enforce international law must be fully accountable.
42. While in Chiragov and Others the majority did not clarify whether the Azerbaijani Government had failed in their obligation to protect the human rights of their population of Armenian origin and had thus laid the grounds for remedial secession by the «Nagorno-Karabakh Republic» and ultimately for the intervention of a foreign nation in the opening of a humanitarian corridor in Lachin, with its enduring negative consequences for the applicants, the majority in the present case omitted, once again, to consider the respondent State’s international obligation to prevent and stop the breaches of the human rights of the Armenian population of Shahumyan region and the subsequent continuous human rights restrictions on the ceasefire line between its own army and the army of the «Nagorno-Karabakh Republic». I regret that the majority failed in both cases to give a principled response to matters of this magnitude.