Abstract
The international community is divided on R2P in the form of intervention for the protection and restoration of human rights. This paper critically examines and compares the application of the Responsibility to Protect (“R2P”) doctrine as an established universalist norm as opposed to an Asian exceptionalism in its application, using the Rohingya crises in Myanmar as a case in point. The R2P doctrine and its guiding principles are examined to attest that these principles have not been utilized in conflicts in Asia, although the need arose multiple times. In light of the same, the authors argue that the resolution of humanitarian crises as grave as in Myanmar requires a recognition of Asian exceptionalism. The same is done through studying the interventions and responses from the international community in Asian conflicts that required humanitarian intervention, mainly, Nagorno-Karabakh (1994), Cambodia (1991), Sri Lanka (2009), and Timor-Leste (1999). We note that in most cases of Asian conflict, the international community does not intervene and instead, dominant regional powers are relied upon for the resolution of the conflict. Such is the nature of the exceptionalism of the application of the R2P doctrine in Asia, because of which the authors theorize that the Myanmar crisis too is likely to respond to regional rather than global intervention.
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Notes
- 1.
In this paper, for congruence, we shall refer to all forms of the evolution of the humanitarian intervention doctrine of responsibility to protect as R2P (including RtoP as sometimes referred to within the argot of the UN), without prejudice to the more technical sense in which the stylised acronym R2P only coming into existence through the Secretary General’s Report on Implementation of R2P, 2009 (See note 50).
- 2.
Pablo de Greiff, ‘A Normative Conception of Transnational Justice’ (2010) 50 Politorbis 17 <https://www.ihrb.org/pdf/Politorbis_50_Dealing_with_the_Past.pdf> accessed on 29 August 2020.
- 3.
Global Centre for Responsibility to Protect, ‘UN Security Council Resolutions and Presidential Statements Referencing R2P’ (Global Centre for Responsibility to Protect, 17 June 2020) <https://www.globalr2p.org/resources/un-security-council-resolutions-and-presidential-statements-referencing-r2p/> accessed 24 August 2020.
- 4.
Global Centre for Responsibility to Protect, ‘UN Human Rights Council Resolutions Referencing’ (Global Centre for Responsibility to Protect, 12 July 2020) <https://www.globalr2p.org/resources/un-human-rights-council-resolutions-referencing-r2p/> accessed 24 August 2020.
- 5.
Global Centre for Responsibility to Protect, ‘UN General Assembly Resolutions Referencing R2P’ (Global Centre for Responsibility to Protect, 28 October 2019) <https://www.globalr2p.org/resources/un-general-assembly-resolutions-referencing-r2p-2/> accessed 24 August 2020.
- 6.
UN Secretary General Report ‘A Vital and Enduring Commitment: Implementing Responsibility to Protect’ (13 July 2015) UN Doc A/69/981, 20 [11].
- 7.
UNSC Res 814 (26 March 1993) UN Doc S/RES/814; UNSC Res 918 (17 May 1994) UN Doc S/RES/918. It was in response to this challenge that the Government of Canada, together with a group of major foundations, announced at the General Assembly in September 2000 the establishment of the International Commission on Intervention and State Sovereignty (ICISS). Our Commission was asked to wrestle with the whole range of questions—legal, moral, operational and political—rolled up in this debate, to consult with the widest possible range of opinion around the world, and to bring back a report that would help the Secretary-General and everyone else find some new common ground.
- 8.
UNGA ‘Secretary-General presents his Annual Report to General Assembly’ (30 September 1999) UN Doc SG/SM/7136.
- 9.
International Commission on Intervention and State Sovereignty ‘The Responsibility to Protect’ (December 2001) (ICISS Report).
- 10.
Jonah Eaton, ‘An Emerging Norm - Determining the Meaning and Legality of Responsibility to Protect’ (2011) 32 Mich J Intl L 765, 770.
- 11.
ICISS Report (n 9) 8.
- 12.
Ibid 13.
- 13.
Ibid 8.
- 14.
Ibid [1.35].
- 15.
Ibid [2.14].
- 16.
James Turner Johnson, ‘Humanitarian Intervention, the Responsibility to Protect, and Sovereignty: Historical and Moral Reflections’ (2015) 23 Mich St Int’l L Rev 609, 611.
- 17.
Charter of the United Nations (24 October 1945) 1 UNTS XVI (UN Charter), art 2.7. [2.7 is prohibition to intervene. 2.4 is also in question].
- 18.
Ibid art 51.
- 19.
Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law (OUP 2002), 107.
- 20.
ICISS Report (n 9) [2.9]–[2.10].
- 21.
Ibid [2.9], ‘2.9… during the Cold War years state practice reflected the unwillingness of many countries to give up the use of intervention for political or other purposes as an instrument of policy….’.
- 22.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Jurisdiction and Admissibility) [1984] ICJ Rep 441, [91].
- 23.
Craig Martin, ‘Challenging and Refining the “Unwilling or Unable” Doctrine’ (2019) 52 Vanderbilt J Transnatl L 1, 5.
The critique offered by Martin to the doctrine offered by Bethlehem was based on the evidence gathered from state positions expressed for endorsing the doctrine as a justification for their own use of force, specifically by Canada, Australia, Netherlands and Germany offering their support for operations against ISIS in Syria and Iraq.
See also page 27–29.
- 24.
ICISS Report (n 9) 12 [2.10], ‘2.10 The established and universally acknowledged right to self-defence, embodied in Article 51 of the UN Charter, was sometimes extended to include the right to launch punitive raids into neighbouring countries that had shown themselves unwilling or unable to stop their territory from being used as a launching pad for cross-border armed raids or terrorist attacks. But all that said, the many examples of intervention in actual state practice throughout the twentieth century did not lead to an abandonment of the norm of non-intervention.’
- 25.
Ibid [3.10]–[3.17].
- 26.
Ibid [3.18]–[3.24].
- 27.
UN Charter (n 17) art 55.
- 28.
ICISS Report (n 9) [3.25]–[3.41].
- 29.
Ibid [4.13], ‘Yet there are exceptional circumstances in which the very interest that all states have in maintaining a stable international order requires them to react when all order within a state has broken down or when civil conflict and repression are so violent that civilians are threatened with massacre, genocide or ethnic cleansing on a large scale.’
- 30.
Ibid [4.37], ‘4.37. Every diplomatic and non-military avenue for the prevention or peaceful resolution of the humanitarian crisis must have been explored…military coercion.. justified.’
- 31.
Ibid [4.13], ‘The Commission found in its consultations that even in states where there was the strongest opposition to infringements on sovereignty, there was general acceptance that there must be limited exceptions to the non-intervention rule for certain kinds of emergencies…cases of violence which so genuinely ‘shock the conscience of mankind’, or which present such a clear and present danger to international security, that they require coercive military intervention.’
- 32.
Ibid [4.16].
- 33.
Ibid [4.18]–[4.31].
- 34.
Ibid [4.33]–[4.36].
- 35.
Ibid [4.37]–[4.38].
- 36.
Ibid [4.39]–[4.40].
- 37.
Ibid [4.41]–[4.43].
- 38.
Ibid [4.17].
- 39.
Carsten Stahn, Jennifer S. Easterday and Jens Iverson, Jus Post Bellum: Mapping the Normative Foundations (OUP 2014) ch 6, 102–22.
- 40.
The need for prevention of conflict, strengthening of legal institutions, commitment to human rights and provision of development programmes was emphasised in the ICISS Report keeping in mind the commitment to rebuilding as in the 1998 Secretary General’s Report. (Report of the Secretary-General, ‘The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa’ (24 July 2014) 16 U.N Doc. A/69/162).
- 41.
ICISS Report (n 9) [5.8]–[5.12].
- 42.
Ibid [5.13]–[5.18].
- 43.
Ibid [5.19]–[5.21].
- 44.
Ibid [4.37], ‘This does not necessarily mean that every such option must literally be tried and have failed…. But it does mean that there must be reasonable grounds for believing that, in all the circumstances, if the measure had been attempted it would not have succeeded.’ (emphasis added).
- 45.
Ibid [4.37].
- 46.
United Nations Secretary General’s High-Level Panel on Threats, Challenges and Change ‘A More Secure World, Our Shared Responsibility’ (December 2004) 56 [203].
- 47.
Jonah Eaton (n 14) 771.
- 48.
UNGA ‘Draft Resolution Referred to the High-level Plenary Meeting of the General Assembly’ UN Doc A/60/L.1 (2005 Summit Outcome).
- 49.
Ibid 31, ‘Para 138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means…The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.
139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations …we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations…We stress the need for the General Assembly to continue consideration of the responsibility to protect populations…bearing in mind the principles of the Charter and international law. We also intend to commit ourselves… to helping States build capacity to protect their populations ….and to assisting those which are under stress before crises and conflicts break out.’
- 50.
UNGA ‘In Larger Freedom: Towards development, security and human rights for all: Report of the Secretary-General’ (21 March 2005) UN Doc A/59/2005 (2005 Report).
- 51.
UNGA ‘Implementing the responsibility to protect: Report of the Secretary-General’ (12 January 2009) UN Doc A/63/77 (2009 Report).
- 52.
M.M. DeGuzman, ‘How Serious are International Crimes? The Gravity Problem in International Criminal Law’ (2012) 51 Col J Transnatl L 18, 32.
- 53.
2009 Report (n 50) [13].
- 54.
Ibid [14] ‘The responsibility to protect, first and foremost, is a matter of State responsibility,…’.
- 55.
Ibid [14] ‘… Responsible sovereignty is of inclusion, not exclusion based on the politics’.
- 56.
Ibid [14].
- 57.
Ibid [21].
- 58.
Ibid [28].
- 59.
Ibid [28]–[29].
- 60.
Ibid [30].
- 61.
Ibid [32]–[33], [35], [47].
- 62.
Ibid [40].
- 63.
Ibid [40].
- 64.
Ibid [50].
- 65.
Christophe Paulussen, Tamara Takacs, Vesna Lazić and Ben Van Rompuy (eds), Fundamental Rights in International and European Law (TMC Asser Press 2016) 73–97.
- 66.
2009 Report (n 50) [49].
- 67.
2009 Report (n 50) in paras. 3 and 18, concerning the duty to prevent.
- 68.
Alexander Orakhelashvili, Collective Security (OUP 2011) 6.
- 69.
See for instance J M Welsh, ‘Norm Contestation and the Responsibility to Protect’ (2013) 5(4) GR2P 365; N Zähringer, ‘Norm evolution within and across the African Union and the United Nations: The Responsibility to Protect (R2P) as a contested norm’ (2013) 20(2) SAJIA 187; A J Kuperman, ‘R2P: Catchy name for a fading norm’ (2011) Ethnopolitics 10(1) 125; N Deitelhoff, ‘Is the R2P failing? The controversy about norm justification and norm application of the responsibility to protect’ 2019 11(2) GR2P 149; L Glanville, ‘Does R2P matter? Interpreting the impact of a norm’ (2016) Coop & Conflict 51(2) 184.
- 70.
UNSC Verbatim Record (17 March 2011) UN Doc S/PV/6498, 5–6. Using the examples of abstention that we have collected in this paragraph follows a deliberate process of arriving at an overview of state practice that occludes the clear existence of a “norm” that may be characterised as R2P but rather points to ambiguity and lack of clear state practice that foregrounds any premature conclusions on the existence of universalism.
- 71.
UNSC Verbatim Record (04 October 2011) UN Doc S/PV/6627, 11.
- 72.
UNSC Verbatim Record (08 October 2016) UN Doc S/PV/7785, 16.
- 73.
Prosecutor v. Duško Tadic (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY IT-94-1-AR72 (2 October 1995), [28] ‘It is clear from [the] text [of Article 39] that the Security Council plays a pivotal role and exercises a very wide discretion under this Article. But this does not mean that its powers are unlimited…’.
- 74.
UNGA Verbatim Record (23 July 2009) UN Doc A/63/PV/97, 5–6.
- 75.
Ibid 10–12.
- 76.
UNGA Verbatim Record (28 July 2009) UN Doc A/63/PV/98, 6–8.
- 77.
UNGA Verbatim Record (28 July 2009) UN Doc A/63/PV/100, 24–7.
- 78.
Ramesh Thakur and Thomas G. Weiss, ‘R2P: From Idea to Norm—and Action?’ (2009) 1 GR2P 22, 35.
- 79.
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 1021 UNTS 278 (Genocide Convention) art 6.
- 80.
Stevie Martin, ‘Sovereignty and Responsibility to Protect Mutually Exclusive or Codependent?’ (2011) 20 Griffith LR 153, 153.
- 81.
2009 Report (n 50).
- 82.
Ibid [64].
- 83.
Ibid [10].
- 84.
ICISS Report (n 9) 36; Simon Chesterman (n 23) 12.
- 85.
Roland Paris, ‘The Responsibility to Protect and the Structural Problems to Preventive Humanitarian Intervention’ (2014) 21 International Peacekeeping 569, 593.
- 86.
2005 Outcome (n 48) 31.
- 87.
2009 Report (n 50).
- 88.
2005 Outcome (n 48).
- 89.
United Nations Office on Genocide Prevention and the Responsibility to Protect, ‘Mandate’ (United Nations Office on Genocide Prevention and the Responsibility to Protect) <https://www.un.org/en/genocideprevention/office-mandate.shtml> accessed 30 August 2020.
- 90.
Ibid.
- 91.
UN Secretary General, ‘Responsibility to Protect: From Early Warning to Early Action’ UN Docs A/72/884 (1 June 2018).
- 92.
Global Centre for Responsibility to Protect, ‘Global Network of R2P Focal Points’ (Global Centre for Responsibility to Protect) <https://www.globalr2p.org/the-global-network-of-r2p-focal-points/> accessed 30 August 2020.
- 93.
Simon Chesterman, Responsibility to Protect and Humanitarian Intervention: From Apology to Utopia and Back Again, The Oxford Handbook on the International Law of Global Security, (OUP, 2021) 802–820.
- 94.
B.S. Chimni, ‘Asian civilizations and international law: some reflections’ (2011) 1(1) Asian JIL 39.
- 95.
Anu Bradford and Eric A. Posner, ‘Universal exceptionalism in international law’ (2011) 52 Harv Int'l LJ 1.
- 96.
W.A. Callahan, ‘Sino-speak: Chinese exceptionalism and the politics of history’ (2012) 71(1) J Asian Stud 33; CY Woon, ‘China’s contingencies: Critical geopolitics, Chinese exceptionalism and the uses of history’ (2018) 23(1) Geopolitics 67; J.V. Feinerman, ‘Chinese participation in the international legal order: rogue elephant or team player?’ (1995) 141 The China Quarterly 186.
- 97.
D.A. Desierto, ‘Postcolonial international law discourses on regional developments in South and Southeast Asia’ (2008) 36 Int'l J Legal Info 388.
- 98.
Bardo Fassbender, Anne Peters, Simon Peter & Daniel Hogger, The Oxford Handbook of the History of International Law (OUP 2012) ch 39.
- 99.
R.P. Anand, ‘Attitude of the Asian-African states toward certain problems of international law’ (1966) 15(1) ICLQ 55; D.P. Fidler, ‘Introduction: Eastphalia Emerging?: Asia, International Law, and Global Governance’ (2010) 17(1) Ind J Global Legal Studies 1.
- 100.
R.P. Anand, International Law and the Developing Countries’ Confrontation or Cooperation (Banyan Publications, 1984) 56.
- 101.
A. Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’ (2006) 27 (5) TWQ 739.
- 102.
C. Welzel, ‘The Myth of Asian Exceptionalism: Response to Bomhoff and Gu’ (2012) 43(7) Journal of Cross-Cultural Psychology 1039.
- 103.
D.P. Fidler, ‘The Asian century: Implications for international law’ (2005) 9 SYBIL 19; G.M. Abi-Saab, ‘The newly independent states and the rules of international law: an outline’ (1962) 8 Howard LJ 95.
- 104.
S.E. Davies, ‘The Asian rejection?: International refugee law in Asia’ (2006) 52(4) AJPH 562; K. Anderson, ‘An Asian Pinochet-Not Likely: The Unfulfilled International Law Promise in Japan's Treatment of Former Peruvian President Alberto Fujimori’ (2002) 38 Stan J Int'l L 177.
- 105.
Brian Orend, The Morality of War (Broadview Press 2006) 160.
- 106.
Md Kamruzzaman, ‘Argentinian Court Decision Brings Hope for Rohingya’ (Anadolu Agency, 2 June 2016) <www.aa.com.tr/en/americas/argentinian-court-decision-brings-hope-for-rohingya/1861967> accessed 30 August 2020.
- 107.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Request for the Indication of Provisional Measures: Order) General List no 178 [2020] ICJ 1, 12.
- 108.
ICC Pre-Trial Chambers III, Situation in the People's Republic of Bangladesh/Republic of The Union of Myanmar (14 November 2019) ICC-01/19, 51 [114].
- 109.
Simon Chesterman, ‘Asia’s Ambivalence about International Law and Institutions: Past, Present and Future’, (2016) 27 Eur J Int'l L 945, 960.
- 110.
Ibid 962.
- 111.
M. Sornarajah, ‘The Asian Perspective to International Law in the Age of Globalization’, (2001) 5 Singapore J Int'l & Comp L 284, 310.
- 112.
Ibid 285.
- 113.
Ibid 285.
- 114.
Simon Chesterman (n 109) 957.
- 115.
Ibid 957.
- 116.
UNGA ‘The Role of Regional and Subregional Arrangements in Implementing Responsibility to Protect’ (28 June 2011) UN Doc A/65/877.
- 117.
High-Level Advisory Panel on the Responsibility to Protect in Southeast Asia, ‘Mainstreaming the Responsibility to Protect in Southeast Asia: Pathway Towards a Caring ASEAN Community’ <https://www.un.org/en/genocideprevention/documents/responsibility-to-protect/HLAP%20Report_FINAL.pdf> accessed 30 August 2020.
- 118.
ASEAN ‘Indonesia funds US$500,000 to support ASEAN efforts in the repatriation of displaced persons in Myanmar’ (20 December 2019) <https://asean.org/indonesia-funds-us500000-support-asean-efforts-repatriation-displaced-persons-myanmar/> accessed 30 August 2020.
- 119.
UNSC ‘Security Council Approves ‘No-Fly Zone’ over Libya, Authorizing ‘All Necessary Measures’ to Protect Civilians, by Vote of 10 in Favour with 5 Abstentions’ (17 March 2011) Press Release SC/10200.
- 120.
Christopher Zambakari (2016) ‘The Misguided and Mismanaged Intervention in Libya: Consequences for Peace’ (2016) 25(1) Afr Sec Rev 44, 47.
- 121.
Marcos Tourinho, Oliver Stuenkel & Sarah Brockmeier, ‘Responsibility while Protecting: Reforming R2P Implementation’ (2016) 30(1) Global Society 134, 136.
- 122.
Heidarali Teimouri and Surya P Subedi, ‘Responsibility to Protect and the International Military Intervention in Libya in International Law: What Went Wrong and What Lessons Could Be Learnt from It?’ (2018) 23(1) J.C. & S.L 3, 29.
- 123.
M. Nasser-Eddine, ‘How R2P Failed Syria’ (2012) 28 FJHP 16, 18.
- 124.
UNGA ‘General Assembly Adopts More Than 60 Resolutions Recommended by Third Committee, Including Text Condemning Grave, Systematic Human Rights Violations in Syria’ (19 December 2011) Press Release GA/11198.
- 125.
Security Council Report, ‘Chronology of Events: Syria’ (Security Council Report) <http://www.securitycouncilreport.org/chronology/syria.php?page=all&print=true> accessed 28 August 2020.
- 126.
Muditha Halliyadde, ‘Syria – Another Drawback for R2P?: An Analysis of R2P's Failure to Change International Law on Humanitarian Intervention’ (2016) 4 Ind J L & Soc Equality 215.
- 127.
Ibid 221.
- 128.
Ibid 227–229.
- 129.
Patricia Carley, ‘Nagorno-Karabakh: Searching for a Solution’ (United States Institute for Peace 1 December 1998) <www.usip.org/publications/1998/12/nagorno-karabakh-searching-solution-0> accessed 30 August 2020.
- 130.
Volker Jacoby, ‘The role of the OSCE: An assessment of international mediation efforts’ (2005) 17 Accord <https://www.c-r.org/accord/nagorny-karabakh/role-osce-assessment-international-mediation-efforts> accessed 30 August 2020.
- 131.
Sabine Freizer, ‘Twenty years after the Nagorny Karabakh ceasefire: an opportunity to move towards more inclusive conflict resolution’ (2014) 1:2 Caucasus Survey 109, 109.
- 132.
Bishkek Protocol (adopted 5 May 1994) <https://peacemaker.un.org/sites/peacemaker.un.org/files/Bishkek%20Protocol.pdf> accessed on 30 August 2020.
- 133.
UNSC Res 853 (29 July 1993) UN Doc S/RES/853; UNSC Res 874 (14 October 1993) UN Doc S/RES/874.
- 134.
Laura McGrew and Scott Worden, ‘Lessons from Cambodia’s Paris Peace Accords for Political Unrest Today’ (United States Institute for Peace 16 May 2017) <https://www.usip.org/publications/2017/05/lessons-cambodias-paris-peace-accords-political-unrest-today> accessed 30 August 2020.
- 135.
Office of the High Commissioner of Human Rights, ‘Cambodia - 20 years on from the Paris Peace Agreements’ (Office of the High Commissioner of Human Rights, 21 October 2011) <https://www.ohchr.org/EN/NewsEvents/Pages/Cambodia-20yearsonfromtheParisPeace.aspx> accessed on 24 August 2020.
- 136.
UNSC Res 717 (16 October 1991) UN Doc S/RES/717.
- 137.
UNSC ‘Security Council Press Statement on Sri Lanka’ (13 May 2009) Press Release SC/9659.
- 138.
UN Secretary General ‘Secretary General’s Panel of Experts on Sri Lanka’ (31 March 2011).
- 139.
UNSC Res 1264 (15 September 1999) UN Doc S/RES/1264.
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Annexure
Annexure
Geography | Characteristics | Resolutions | Excerpts | |
|---|---|---|---|---|
Libya
| Phase (2011-current) (Pre-Intervention Laws/Humanitarian Intervention Laws/R2P) | R2P | Res. 1970 (2011), Res. 1973 (2011), Res. 2009 (2011), Res. 2016 (2011), Res. 2017 (2011), Res. 2022 (2011), Res. 2040 (2012), Res. 2095 (2013), Res. 2144 (2014), Res. 2146 (2014), Res. 2174 (2014), Res. 2208 (2015), Res. 2213 (2015), Res. 2214 (2015), Res. 2238 (2015), Res. 2240 (2015), Res. 2259 (2015), Res. 2273 (2016), Res. 2278 (2016), Res. 2298 (2016), Res. 2323 (2016), Res. 2357 (2017), Res. 2362 (2017) and Res. 2441 (2018) | Resolution 1970 (2011)- “Mindful of its primary responsibility for the maintenance of international peace and security under the Charter of the United Nations,” “4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;” Resolution 1973 (2011)- “2. Stresses the need to intensify efforts … decisions of the Secretary-General to send his Special Envoy to Libya and of the Peace and Security Council of the African Union to send its ad hoc High Level Committee to Libya with the aim of facilitating dialogue…” “4. Authorizes Member States …acting nationally or through regional organizations or arrangements… to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians.. excluding a foreign occupation force of any form on any part of Libyan territory,” Resolution 2009 (2011) “12. Decides to establish a United Nations Support Mission in Libya (UNSMIL), under the leadership of a Special Representative of the Secretary-General…” |
Classification of crisis (Internal/International) | Internal | |||
Cause for discussion (Reasons by Secretary General for Reference) | Report of use of force against civilians | |||
Response of UNSC | Imposed various restriction and bans, referred Libyan situation to the ICC, authorised the member states to take all necessary measures, and established the United Nations support mission in Libya | |||
Reactions of relevant stakeholders (Action Taken by neighbouring member states/regional organisations/ other member states) | Condemnation by the league of Arab States, the African Union, and the secretary general of the organisation of the Islamic conference The Peace and security council of the African Union established an ad hoc high-level committee on Libya | |||
Syria
| Phase (2011-current) (Pre-Intervention Laws/ Humanitarian Intervention Laws/ R2P) | R2P | Res. 2042 (2012), Res. 2043 (2012), Res. 2059 (2012), Res. 2118 (2013), Res. 2139 (2014), Res. 2165 (2014), Res. 2191 (2014), Res. 2209 (2015), Res. 2235 (2015), Res. 2254 (2015), Res. 2258 (2015), Res. 2286 (2016), Res. 2314 (2016), Res. 2319 (2016), Res. 2328 (2016), Res. 2332 (2016), Res. 2336 (2016), Res. 2393 (2017) and Res. 2401 (2018) | Resolution 2042 (2012) “Reaffirming its support to the Joint Special Envoy for the United Nations and the League of Arab States…following General Assembly resolution A/RES/66/253 of 16 February 2012 and relevant resolutions of the League of Arab States,” “2. Calls upon the Syrian government to implement visibly its commitments in their entirety, as it agreed to do in its communication to the Envoy” “7. Decides to authorize an advance team of up to 30 unarmed military observers to liaise with the parties and to begin to report on the implementation of a full cessation of armed violence in all its forms by all parties, pending the deployment of the mission referred to in paragraph 5…” Resolution 2043 (2012)- “Decides to establish for an initial period of 90 days a United Nations Supervision Mission in Syria (UNSMIS) under the command of a Chief Military Observer, comprising an initial deployment of up to 300 unarmed military observers as well as an appropriate civilian component as required by the Mission to fulfil its mandate,…” Resolution 2118 (2013)- “Stressing that the only solution to the current crisis in the Syrian Arab Republic is through an inclusive and Syrian-led political process based on the Geneva Communiqué of 30 June 2012…” “7. Decides that the Syrian Arab Republic shall cooperate fully with the OPCW and the United Nations, including by complying with their relevant recommendations…” Resolution 2165 (2014)- “Reaffirming the primary responsibility of the Syrian authorities to protect the population in Syria …” |
Classification of crisis (Internal/ International) | Internal | |||
Cause for discussion (Reasons by Secretary General for Reference) | Violent repression of civilians | |||
Response of UNSC | Deployed United Nations Supervision Mission in Syria (UNSMIS) to ensure implementation of the “Preliminary understanding” | |||
Reactions of relevant stakeholders (Action Taken by neighbouring member states/regional organisations/ other member states) | League of Arab states suspended Syria’s membership and imposed sanctions on its failure to abide by Arab league’s Peace Plan. Also, Arab league along with UN sent out a joint special envoy to Syria | |||
Cambodia
| Phase (1978–1989) (Pre-Intervention Laws/ Humanitarian Intervention Laws/R2P) | Pre-IL | Res. 668 (1990), Res. 717 (1991), Res. 718 (1991), Res. 728 1992), Res. 745 (1992), Res. 766 (1992), Res. 783 (1992), Res. 792 (1992), Res. 810 (1993), Res. 826 (1993), Res. 835 (1993), Res. 840 (1993), Res. 860 (1993) and Res. 880 (1993) | Resolution 668 (1990)- “Also taking note with appreciation of the efforts of the countries of the Association of South-East Asian Nations and other countries involved in promoting the search for a comprehensive political settlement” Resolution 717 (1991)- “2. Decides to establish…United Nations Advance Mission in Cambodia immediately…with members of the Mission to be sent to Cambodia immediately after the signing” Resolution 810 (1993)- “Recognizes that the Cambodians themselves bear the primary responsibility for the implementation of the Paris Agreement and for the future stability and well-being of Cambodia” |
Classification of crisis (Internal/International) | International | |||
Cause for discussion (Reasons by Secretary General for Reference) | Implementation of the comprehensive Cambodian peace agreements (Paris Peace Agreements) | |||
Response of UNSC | Deployed multiple UN bodies to ensure cease-fire and conduct democratic election as per the Paris peace agreement | |||
Reactions of relevant stakeholders (Action Taken by neighbouring member states/regional organisations/ other member states) | Attempt to broker peace by association of South-East Asian nations | |||
Azerbaijan-Armenia
| Phase (1988-current) (Pre-Intervention Laws/ Humanitarian Intervention Laws/R2P) | Pre-IL + R2P | Res. 822 (1993), Res. 853 (1993), Res. 874 (1993) and Res. 884 (1993) | Resolution 853 (1993)- “6. Endorses the continuing efforts by the Minsk Group of the CSCE to achieve a peaceful solution to the conflict, including efforts to implement resolution 822 (1993)…” Resolution 874 (1993)- “Taking note of the high-level meetings which took place in Moscow on 8 October 1993 and expressing the hope that they will contribute to the improvement of the situation and the peaceful settlement of the conflict,” “1. Calls upon the parties concerned to make effective and permanent the cease-fire established as a result of the direct contacts undertaken with the assistance of the Government of the Russian Federation in support of the CSCE Minsk Group; 2. Reiterates again its full support for the peace process being pursued within the framework of the CSCE…” Resolution 884 (1993)- 4. Demands from the parties concerned the immediate cessation of armed hostilities and hostile acts, the unilateral withdrawal of occupying forces …in accordance with the “Adjusted timetable of urgent steps to implement Security Council resolutions 822 (1993) and 853 (1993)” |
Classification of crisis (Internal/ International) | International | |||
Cause for discussion (Reasons by Secretary General for Reference) | Territorial dispute over region of Nagorno-Karabakh | |||
Response of UNSC | Condemning the violence and support for intervention attempt by the CSCE | |||
Reactions of relevant stakeholders (Action Taken by neighbouring member states/regional organisations/ other member states) | Brokering of cease-fire by Russia | |||
Sri Lanka
| Phase (1983–2009) (Pre-Humanitarian Intervention Laws/ Humanitarian Intervention Laws/R2P) | HIL + R2P | UNHRC- A/HRC/Res/S-11/1, Report of the secretary general’s panel of experts on Sri Lanka, Reports of Secretary General on Armed Conflict in Sri Lanka 2007–2011, UNSC Press Statement- SC/9659 2009 | SC/9659 “The members of the Security Council strongly condemn the Liberation Tigers of Tamil Eelam (LTTE) for its acts of terrorism over many years, and for its continued use of civilians as human shields, and acknowledge the legitimate right of the Government of Sri Lanka to combat terrorism The members of the Security Council express deep concern at the reports of continued use of heavy calibre weapons in areas with high concentrations of civilians, and expect the Government of Sri Lanka to fulfil its commitment in this regard SECRETARY GENERAL’S PANEL OF EXPERTS ON ACCOUNTABILITY IN SRI LANKA “The Panel’s determination of credible allegations reveals a very different version of the final stages of the war than that maintained to this day by the Government of Sri Lanka The Government says it pursued a “humanitarian rescue operation” with a policy of “zero civilian casualties.” In stark contrast, the Panel found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity. Indeed, the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.” |
Classification of crisis (Internal/ International) | Internal | |||
Cause for discussion (Reasons by Secretary General for Reference) | Civil War by insurgents (LTTE and breakaway factions), use of civilians as human shields, use of child soldiers | |||
Response of UNSC | Authorized the establishment of monitoring and report mechanism at the field level Also created the security council working group on children in armed conflict for Sri Lanka | |||
Reactions of relevant stakeholders (Action Taken by neighbouring member states/regional organisations/other member states) | In 1987 the Indo-Sri Lankan Accord was signed which implied military intervention in a foreign country and interference in internal affairs | |||
Timor-Leste
| Phase (1975–1999) (Pre-Humanitarian Intervention Laws/ Humanitarian Intervention Laws/ R2P) | HIL | S/RES/384 (1975), S/RES/1264 (1999), S/RES/1410 (2002) | 1. S/RES/384 (1975) “Regretting that the Government of Portugal did not discharge fully its responsibilities as administering Power in the Territory under Chapter XI of the Charter, 1. Calls upon all States to respect the territorial integrity of East Timor as well as the inalienable right of its people to self-determination … 2. Calls upon the Government of Indonesia to withdraw without delay all its forces from the Territory; 3. Calls upon the Government of Portugal as administering Power to co-operate fully with the United Nations so as to enable the people of East Timor to exercise freely their right to self-determination; 4. Urges all States and other parties concerned to co-operate fully with the efforts of the United Nations to achieve a peaceful solution to the existing situation and to facilitate the decolonization of the Territory;” 2. S/RES/1264 (1999) 15 September 1999 “3. Authorizes the establishment of a multinational force under a unified command structure, pursuant to the request of the Government of Indonesia conveyed to the Secretary-General on 12 September 1999, with the following tasks: to restore peace and security in East Timor, to protect and support UNAMET in carrying out its tasks and, within force capabilities, to facilitate humanitarian assistance operations, and authorizes the States participating in the multinational force to take all necessary measures to fulfil this mandate; 7. Stresses that it is the responsibility of the Indonesian authorities to take immediate and effective measures to ensure the safe return of refugees to East Timor;” 3. S/RES/1410 (2002) “Noting that the emerging institutions in East Timor remain fragile and that in the period immediately after independence assistance will be required …” |
Classification of crisis (Internal/ International) | International | |||
Cause for discussion (Reasons by Secretary General for Reference) | Indonesian invasion of East Timor as it was decolonizing from Portugal in 1975 Anti-independence violence that erupted in 1999, rehabilitation and investigation into the deaths during the 1999 Civil unrest Protecting the independence of East Timor | |||
Response of UNSC | In 1975, upon a referral from the UNGA, the UNSC in its resolution S/RES/384 (1975); In 1999 authorised deployment of multinational force pursuant to the request by the Government of Indonesia, through resolution S/RES/1264 (1999) | |||
Reactions of relevant stakeholders (Action Taken by neighbouring member states/regional organisations/other member states) | Indonesia approached the UNSC | |||
Libya
The first instance of proper application of R2P can be traced back to the situation in Libya where the UNSC authorized intervention under an umbrella of protecting measures, resulting in the intervention being led by the North Atlantic Treaty Organization (“NATO”).Footnote 119 The implementation of R2P, however, has been criticized heavily after this intervention due to the complexity of foreign involvement created in Libya, which was worsened by the infringement of the NATO mandate by their operations.Footnote 120 What emerged was outright warfare against rebel forces and the NATO-backed government that further caused a stalemate in the UNSC.Footnote 121 R2P in Libya encountered several criticisms, specifically in Pillar 3, accelerating the redefining of non-coercive measures and respecting human rights in cases of protective intervention.Footnote 122
Syria
The ongoing crisis in SyriaFootnote 123 straddles a wide range of human rights violations that the international community has been aware ofFootnote 124 and condemnedFootnote 125 on multiple occasions since 2011.Footnote 126 The implementation of R2P through the UNSC was unsuccessful, initially due to the objections by Russia and China, who anticipated a similar excess of force like the UNSC had approved in the case of Libya.Footnote 127 Non-coercive measures such as regional cooperation through the League of Arab States, sanctions, and diplomatic measures have not yielded any success due to an uncooperative Syrian government.Footnote 128 Exhausting all the measures apart from direct military intervention leads to the conclusion of inaction in Syria.
Nagorno-Karabakh Conflict
An immediate response to the conflict came from the Russia Federation and the Organization for Security and Cooperation in Europe (“OCSE”), who held multiple talks and high-level meetings toward a resolution.Footnote 129 The Minsk Group of OCSE was formed primarily to resolve the Nagorno-Karabakh questionFootnote 130 resulting in the (arguably inconclusiveFootnote 131) Bishkek Protocol of 1994 establishing a cease-fire.Footnote 132 The role of the UNSC remained limited to observing the Minsk Group’s and the Russian Federation’s efforts.Footnote 133
Cambodia
The conflict came to an end in 1991 with the Comprehensive Cambodian Peace Agreements (“the Paris Peace Agreement”).Footnote 134 The document highlights the role of international communities in coming together to broker peace. It not only laid out the process of ending the conflict and building a democratic institution of the people of Cambodia, but also laid out plans for rehabilitation and reconstruction of Cambodia.Footnote 135 The Agreement was followed by a UNSC brokered Accord for its implementation, under which the UN established the United Nations Transitional Authority in Cambodia to assist with elections for a new government.Footnote 136
Sri Lanka
UNSC did not make any official statements barring a Press Release in 2009.Footnote 137 A report of the UN Panel of Experts in 2011Footnote 138 found credibility in several serious allegations that the Sri Lankan Government had committed serious war crimes and crimes against humanity. Yet there was no international action invoking R2P through the course of the civil war in Sri Lanka.
Timor-Leste
The UNSC authorized deployment of international force under Chapter VII of the Charter to curb the violence upon the request of the representatives of Timor-Leste under express agreement from Indonesia.Footnote 139
Analysis
Unlike interventions in Africa and the Middle East, our study shows that Asian conflicts are rarely ever intervened upon by the international community and the UNSC and are often resolved through regional cooperation. The four case studies present a broad range of resolutions to potential R2P mandating situations, indicating one important common factor in their diversity, the role of a strong regional power in the main solution. In each of the conflicts, one particular regional organization/nation played a key role in either involving the international community or resolving the conflict themselves. This is particularly visible in the case study of Sri Lanka and Nagorno-Karabakh, which particularly relied on dominant neighboring countries for resolution. In the case of Timor-Leste as well, the role of Indonesia being the initial intervener in the conflict, coupled with them approaching the UNSC for discussion due to the international nature of the conflict given the involvement of Portugal does further highlight the importance of neighboring nations in such conflicts. The study of Cambodia although the only case of collective international involvement, still shows the importance of regional organizations in implementing the peace agreement.
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Raman, R., Arvind, L., Gupta, P., Khanna, p. (2023). R2P: A Comparative Study: Between Universalism and Asian Exceptionalism. In: John, M., Devaiah, V.H., Baruah, P., Tundawala, M., Kumar, N. (eds) The Indian Yearbook of Comparative Law 2020. The Indian Yearbook of Comparative Law. Springer, Singapore. https://doi.org/10.1007/978-981-99-5467-4_11
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