The Responsibility to Protect in Libya and Syria

Mass Atrocities, Human Protection, and International Law

Yasmine Nahlawi

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429865701
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book offers a novel and contemporary examination of the 'responsibility to protect' (R2P) doctrine from an international legal perspective and analyses how the doctrine was applied within the Libyan and Syrian conflicts as two recent and highly significant R2P cases.

The book dissects each of R2P's three component pillars to examine their international legal underpinnings, drawing upon diverse legal frameworks – including the laws of the UN, laws of international organisations, human rights law, humanitarian law, criminal law, environmental law, and laws of State responsibility – to extract conclusions regarding existing and emerging host and third-State obligations to prevent and react to mass atrocity crimes. It uses this legal grounding to critically examine specific aspects of the Libyan and Syrian R2P cases, engaging with some of the more traditional debates surrounding R2P's application, most notably those that pertain to the use of force (or lack thereof), but also exploring some of the less-researched non-military methods that were or could have been employed by States and international organisations to uphold the doctrine. Such an analysis captures the diversity in the means and actors through which R2P can be implemented and allows for the extraction of more nuanced conclusions regarding the doctrine's strengths and limitations, gaps in enforceability, levels of State support, and future trajectory.

The book will be of interest to scholars and students in the field of international law and human rights law.

1 Introduction

The ‘responsibility to protect’ (R2P) doctrine was developed in 2001 in response to a question posed by then-UN Secretary-General Kofi Annan to States: ‘If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?’¹ Here, Annan was referring to the international community’s failure to react in a timely and effective manner to the genocides perpetrated in Srebrenica (in the former Yugoslavia) as well as in Rwanda in the 1990s.² Equally significant in this respect was the North Atlantic Treaty Organization’s (NATO) military intervention in Kosovo in 1999 in response to ethnic cleansing committed by Serb forces against Kosovar Albanians, conducted without United Nations Security Council (UNSC) authorisation given the threat of the impending Russian veto.³ Together, these cases exposed compelling weaknesses within the international legal system – and within the UNSC framework in particular – to respond effectively and consistently to gross breaches of human rights norms. R2P thus emerged to put words to deeds regarding the international community’s commitment to ‘never again’ allow mass atrocities to occur. With a central purpose of ensuring human protection from mass atrocity crimes (defined as genocide, war crimes, crimes against humanity, and ethnic cleansing⁴), the doctrine has succeeded in stirring a significant amount of international debate surrounding the roles that host States (those in which the atrocities are perpetrated) and third-party States (those that have no direct link to an atrocity situation) can or should assume in preventing and responding to mass atrocity situations.⁵ It is within these debates that this book emerges.

1 Report of the Secretary-General, ‘We the Peoples: The Role of the United Nations in the Twenty-First Century’ (2000) UN Doc A/54/2000 Para 217.

2 On the international responses to the Srebrenica and Rwanda genocides, see Fernando R. Tesón, ‘Collective Humanitarian Intervention’ (1995–1996) 17 Michigan Journal of International Law 323, 362–69; Thomas H. Lee, ‘The Law of War and the Responsibility to Protect Civilians: A Reinterpretation’ (2015) 55 Harvard International Law Journal 251, 279–81.

3 On NATO’s unauthorised intervention in Kosovo, see Bruno Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 European Journal of International Law 1; Louis Henkin, ‘Kosovo and the Law of “Humanitarian Intervention”’ (1999) 93 American Journal of International Law 824; Christopher Greenwood, ‘International Law and the NATO Intervention in Kosovo’ (2000) 49 International and Comparative Law Quarterly 926.

4 See 2005 World Summit Outcome, UNGA Res 60/1 (24 October 2005) UN Doc A/RES/60/1 Para 138.

5 See ‘Key developments on the Responsibility to Protect at the United Nations from 2005–2017’ (International Coalition for the Responsibility to Protect, 2018) <http://www.responsibilitytoprotect.org/index.php/about-rtop/the-un-and-rtop>.

1.1 This book at a glance

R2P was endorsed unanimously by States in the United Nations General Assembly (UNGA) as part of the 2005 World Summit Outcome document, although there is widespread agreement that it does not (yet) represent an international legal norm.⁶ Nevertheless, analysing R2P as a purely political or ‘soft law’ tool short-changes the legal value that the doctrine possesses or has the potential to impart. This book seeks to unpack R2P’s basis within international law and to situate its tenets within wider existing and emerging norms, drawing upon diverse legal regimes – including the laws of the UN, laws of international organisations, international human rights law, international humanitarian law, international criminal law, international environmental law, and laws of State responsibility – to determine which aspects of this doctrine are grounded within existing international legal norms, and those which require further development in order to fully actualise the doctrine’s ideals and aspirations.

This book furthermore examines the doctrine’s application in the two contemporary and highly significant case studies of Libya and Syria, in which non-violent anti-government protests within each of these States beginning in February and March 2011, respectively, deteriorated into mass atrocity situations following brutal government crackdowns. The choice of these case studies stems from two primary considerations. First, both conflicts are widely recognised as compelling R2P situations with far-reaching ramifications with respect to the doctrine’s operationalisation. Namely, they appealed to the doctrine’s full scope so that robust measures, including the use of force, were required to counter seemingly deliberate and gross failures of the respective governments to protect their populations. These cases can be asserted, perhaps boldly, to challenge the very viability of R2P, namely, whether this is a doctrine that can or does indeed deliver upon the promise of ‘never again’ allowing mass atrocity crimes to be committed. As such, the Libyan and Syrian cases can be branded as contemporary watershed moments for R2P with the potential to impart a distinct trajectory upon the doctrine’s future progression (or lack thereof).

The second reason for the choice of Libya and Syria is that they share a number of fundamental similarities that make them prime situations for comparison: both emerged within Arab States with similar histories of repressive governments.⁷ Both commenced within a month of each other and within the wider context of the Arab Spring,⁸ meaning that the international community was, generally speaking, reacting to two relatively similar cases at roughly the same time.⁹ Most importantly, in both situations, the governments failed in their responsibilities to protect their populations by committing war crimes and crimes against humanity against them.¹⁰ As per the R2P doctrine, this then shifted the responsibility for the protection of these populations upon the international community. However, as detailed throughout this book, the international reactions to these two situations were widely inconsistent. An analysis of these differing reactions helps to extrapolate legal conclusions regarding the doctrine’s strengths, limitations, gaps in enforceability, acceptance by States, and anticipated future trajectory.

6 See, for example, S. Pandiaraj, ‘Sovereignty as Responsibility: Reflections on the Legal Status of the Doctrine of Responsibility to Protect’ (2016) 15 Chinese Journal of International Law 795.

7 See, for example, Tarik Kafala, ‘Gaddafi’s Quixotic and Brutal Rule’ (BBC News, 20 October 2011) <http://www.bbc.co.uk/news/world-africa-12532929>; Martin Asser, ‘The Muammar Gaddafi Story’ (BBC News, 21 October 2011) <http://www.bbc.co.uk/news/world-africa-12688033>; HRC, ‘Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in the Syrian Arab Republic’ (15 September 2011) UN Doc A/HRC/18/53 Para 22; Ghayath Naisse, ‘A Revolution on the March’ (International Viewpoint, 2011) <http://www.internationalviewpoint.org/spip.php?article2272>.

8 The term ‘Arab Spring’ refers to a wave of popular anti-government protests that emerged within the Middle East and North Africa region (specifically, in Tunisia, Egypt, Libya, Bahrain, Yemen, and Syria) beginning in December 2001 which led to the overthrow of dictatorships in Tunisia, Egypt, Libya, and Yemen.

9 The Libyan uprising began on 15 February 2011 while that of Syria began on 6 March 2011. HRC, ‘Report of the International Commission of Inquiry to Investigate all Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya’ (12 January 2012) UN Doc A/HRC/17/44 Para 27; ‘Bashar al-Assad: Criminal against Humanity’ (International Federation for Human Rights, July 2011) at 6 <http://www.fidh.org/IMG/pdf/reportsyria2807eng.pdf>.

10 As further detailed in Sections 6.1 and 7.1 of this book.

This book adopts a distinct approach to examining the Libyan and Syrian R2P cases. First, it endeavours to highlight the multitude of actors that were (or could have been) involved in the doctrine’s implementation. A significant set of scholarly works, for example, focus upon the UNSC (and its role in authorising the use of force) when assessing international responses to the Libyan and Syrian crises.¹¹ Other pieces restrict their investigations to the reactions of individual States or regional or international organisations.¹² In exploring the actions of a diverse set of international actors, however, this book allows for an analysis of each actor’s unique contributions to the implementation of R2P in Libya and Syria, respectively, as well as an understanding of how their joint responses through various international legal frameworks (could have) facilitated a reaction that transcended any one of their individual contributions. This is important as it emphasises that R2P’s enforcement is not contingent upon any single actor within the international system, but that it rather integrates the actions of a range of entities and requires collective and wide-ranging responses in order to present an effective front against mass atrocities.

11 See, for example, Justin Morris, ‘Libya and Syria: R2P and the Spectre of the Swinging Pendulum’ (2013) 89 International Affairs 1265; Andrew Garwood-Gowers, ‘The Responsibility to Protect and the Arab Spring: Libya as the Exception, Syria as the Norm?’ (2013) 36 University of New South Wales Law Journal 594.

12 See, for example, Colin Warbrick, ‘British Policy and the National Transitional Council of Libya’ (2012) 61 International and Comparative Law Quarterly 247; Alex de Waal, ‘African Roles in the Libyan Conflict of 2011’ (2013) 89 International Affairs 365; Tilman Rodenhäuser, ‘Human Rights Obligations of Non-State Armed Groups in other Situations of Violence: The Syria Example’ (2012) 3 International Humanitarian Legal Studies 263; Kurt Mills, ‘R2P and the ICC: At Odds or in Sync?’ (2015) 26 Criminal Law Forum 73; Olivia Flasch, ‘The Legality of the Air Strikes against ISIL in Syria: New Insights on the Extraterritorial Use of Force against Non-State Actors’ (2016) 3 Journal on the Use of Force and International Law 37; Alex Whiting, ‘An Investigative Mechanism for Syria: The General Assembly Steps into the Breach’ (2017) 15 Journal of International Criminal Justice 231.

Second, this book devotes extensive consideration to non-military means through which R2P can be invoked, whereas the traditional approach has been to assess R2P’s success or lack thereof in Libya and Syria through the lens of military intervention.¹³ Importantly, the book does engage with some of the more traditional debates surrounding R2P’s application, most notably those pertaining to the use of force (or lack thereof), but it also, crucially, investigates some of the less-researched non-military methods that were or could have been pursued by States and international organisations to uphold the doctrine. Such means include, for example, the suspension of States from regional and interna...