After the recent escalations between United States and Syria, regarding the civil war and employment of chemical weapons in it by the Syrian government, the debate regarding Responsibility to protect [R2P] has once again gained momentum. The responsibility of United States to protect the common people of Syria was debated aggressively in the circuits of international law and diplomatic corners. It is essential to note that the responsibility to protect has been used by United States and its allies to defend their subsequent aggressive actions against countries in Asia.
Additionally, in some cases, American authors have used the same responsibility to develop a right of a nation to protect its own citizens against any prospect of threat regardless of its remoteness. Such absolute right, though, emerging from a well recognized principle of international law, is no more than an overstretched piece of imagination in international legal jurisprudence, no matter how effective in practical sense.
However, America’s concern about Syria was mainly twofold- firstly, the hostility of Syrian government towards western nations and its proximity with Iran and secondly, its use of chemical weapons against rebels coupled with concerns of casualty among civilians. The first is a matter of international diplomacy while the later, focuses on a matter of International Humanitarian Law [IHL] and International Human Rights Law [IHR].
It is pertinent to understand the existence and status of this responsibility in International Law before we can talk about its merits. The right has always been at the centre of United Nations theory on State intervention and state sovereignty. The R2P finds its first mention, not literally but in principles, in 1946 UN General Assembly discussions. The Draft Declaration of Rights and Duties of States 1949 was the next document that founded the principle of this responsibility.
In 2005 World Summit, the states recognized the existence of a jus cogens [peremptory norm] in form of the responsibility of the nations to protect their citizens from war crimes, genocide, ethnic cleansing and crime against humanity. And in case, the concerned state parties fail to take corrective measures, peaceful in nature, to protect their citizens against these four crimes, it shall be incumbent upon the International Community as whole to protect those citizens and their rights. This responsibility or duty of international community, which includes international organizations and group of states, is, ideally, to be routed through United Nations or Security Council. However, in absence of a proper and binding enforcement mechanism in international law, the duty has lost its sanctity.
The situation becomes more complex when the concerned state actively takes part in situations which propagates these crimes against humanity against its own citizen. And the situation deteriorates even further when there is a complex situation of civil war. In order to understand Syria conflict, in light of this responsibility, it is essential to understand the arguments against this responsibility.
Mr. Kortesky, a noted jurist and ILC member in 1950, while discussing this responsibility, listed his opposition in three points. Firstly, he argued that these rights go against the concept of sovereign equality. Secondly, he denied the existence of such a right ever in international customary law. Thirdly, he argued that this responsibility will give rise to a right that will be so absolute and arbitrary in nature, that it will become impossible to regulate or channelize international relations within and by diplomacy.
Today, even after 63 years of that debate, his contentions and apprehensions still hold ground. In fact, they have gained much ground after 2005 R2P doctrine was formally adopted and tangible jurisprudence started emerging. In 2009, UN General Secretary Baan Ki-moon presented the authoritative report titled “Implementing the responsibility to protect” which talked about existence of this duty only in cases of the four aforementioned crimes.
In 2011, UNSC affirmed the existence of responsibility of Libyan government to protect civilians in the armed conflict. The actions by NATO were also defended by US supportive authors as a mere implementation of duty to protect. They argued that the talk is not an end in itself and robust measures can be taken if diplomacy is being used as a delaying tactics. As of now, the R2P comprises of responsibility to prevent, protect and rehabilitate. It calls for international humanitarian intervention only in cases where diplomacy has failed or is not bearing fruits as expected.
However, Syria calls for a new approach towards this responsibility. The frequent employment of such a responsibility cannot be permitted in the interest of sovereign equality. International humanitarian interventions cannot be the primary option. R2P cannot and should not be allowed to be used an enabling provision to bypass diplomatic channels to solve disputes. The primary objective of this responsibility was to safeguard the human rights of every citizen in cases of armed conflicts and similar situations under IHR.
However, same IHL and IHR do not permit targeted killings or extra-judicial killings, as employed by NATO, in recent limited interventions. Targeted Killings through Aero-raids, Drones and guided missiles are not permitted under international law prima facie.
The considerations of a successful international order of peace with uniformity of practices and sovereign statehood shall prevail over R2P. As Benjamin Franklin once remarked, there was never a good war, or a bad peace. A limited approach and applicability of this responsibility is required in order to protect the customary practices of diplomacy, international cooperation, coordination and friendly relations.
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