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DIPLOMACY ДИПЛОМАЦИЯ

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RESPONSIBILITY TO

RESPONSIBILITY TO PROTECT: THE CONTINUING POST-COLONIAL WESTERN... without the authorization of the Security Council (SC). 5 All these courses of action came to be called “humanitarian intervention” – referred to by some as “the right to intervene”. 6 In Kosovo, the International Community needed to establish a clearer code of conduct for humanitarian interventions, and also advocated for a greater reliance on non-military measures in order to respond and take proper action in such circumstances. It was then that the UN Secretary-General, Kofi Annan brought the issue to the attention of the International Community in 2000. Kofi Annan along with the International Commission of Intervention and State Sovereignty (ICISS), which was sponsored by the Canadian government, presented the report entitled “The Responsibility to Protect” to the UN General Assembly at the end of 2001. 7 The Commission made four main contributions to the relevant international debate. The first contribution, arguably the most important one, was to adopt a new way of talking about “humanitarian intervention”. The Commission suggested that the concept of the “right” to intervene needs to be changed to the “responsibility” 8 to protect the world’s population at grave risk. So there, the right became a responsibility. The second contribution was a new way of looking at the concept of “sovereignty”. As Kofi Annan’s initial solution suggested: “national sovereignty had to be weighed and balanced against individual sovereignty”. 9 Thus, with respect to the new focus on human rights and security, sovereignty was no longer absolute. Sovereignty now made the States responsible for the protection of their own citizens and also for the world’s population in case another State failed to fulfil its responsibility to protect people within its territory due to its inability or unwillingness to do so. Of course, the second responsibility can only be done through UN procedures. 10 The third contribution was to make it very clear for Member States that responsibility to protect is no longer limited to military intervention. It rather embraces three specific responsibilities: A. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting peoples at risk. 11 B. The responsibility to react: to respond to situations of compelling human need with appropriate measures, which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention. 12 C. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert. 13 It is said that the most important principle is to prevent, while the most controversial remains the principle of reaction – or the use of military force. The fourth contribution was to establish the principles of adequate conduct in the use of force within R2P. The problem in the gap between the legitimacy and the legality was hereby 5 Ibid. 6 Verdirame, Guglielmo. "The Law and Strategy of Humanitarian Intervention." The Law and Strategy of Humanitarian Intervention, Ejil: Talk 30 (2013). 7 Ibid. pg. 708. 8 Ibid. 9 Ibid, pg. 709. 10 Ibid. 11 Report of the International Commission on Intervention and State Sovereignty. "The Responsibility to Protect." (2001): 155-75. Pg. XI 12 Ibid. 13 Ibid. DIPLOMACY 18/2016 203

RESPONSIBILITY TO PROTECT: THE CONTINUING POST-COLONIAL WESTERN... addressed. Accordingly, the Council identified five criteria for the legitimacy which should be used by the SC and the International Community when deciding over a humanitarian intervention case 14 – the five criteria include: 1. Just Cause 2. Right Intention 3. Last Resort 4. Proportional Means 5. Reasonable Prospect In terms of the legality, the Commission believed that once the SC takes into account all these five criteria of legitimacy, it will be left with a clear case for coercive intervention. It is submitted that, for the following four reasons, R2P is also set to fail: • Vagueness and lack of a clear legal conduct in R2P; • Security Council deadlock unresolved; • Lack of morality; • Failure of R2P in practice. Vagueness and lack of a clear legal conduct Some scholars believe that the responsibility to protect can arguably be considered as customary international law. 15 Rachel Elizabeth, argues that just because the implementation of R2P involves political calculation by nation states does by no means negate its status as customary international law. 16 She further states: “if R2P is not law because it involves politics, then none of what comprises international law can be considered law”. She suggests that customary international law is based on how States act (including what they say) and why they do so. Rachel believes that R2P fulfils the two requirements. Before critiquing this argument of her, it should be noted that in the 2005 World Summit, States unanimously agreed that each individual state has the responsibility to protect its population against genocide, war crimes, crime against humanity and ethnic cleansing, along, with an international responsibility, through the UN, to use appropriate measures if one State fails to protect its population. Moreover, there are a number of resolutions that bind the States to be responsible for protecting their populations. 17 In short, the 2005 World Summit Outcome Document and its subsequent General Assembly and Security Council reaffirmations, in addition to a number of state-specific resolutions which explain a particular state’s responsibility, and provide significant examples of state practice to demonstrate that states now possess a binding legal obligation to prevent or halt (i.e., protect) crimes against humanity, genocide, ethnic cleansing, and war crimes within their borders. 18 While one can accept Rachel’s argument that R2P is binding on States (which is not a new law imposed on States – there are existing domestic and international laws [jus cogens norms] which already require them to protect their citizens from war crimes, genocide and ethnic cleansing), the argument that R2P indeed makes the International Community responsible and obligated for intervening in another states in order to stop war crimes committed by a state is not convincing. The language of R2P makes the engagement of a foreign State rather 204 14 Along with their explanation which due to the space limitation will not be covered in this paper. 15 Arbour, Louise. "The responsibility to protect as a duty of care in international law and practice." Review of International Studies 34.03 (2008): 447-448. 16 Van Landingham, Rachel Elizabeth. "Politics or Law? The Dual Nature of the Responsibility to Protect." Denver Journal of International Law and Policy 41.1 (2012): 2013-3. Pg. 67. 17 Ibid. pg. 79. 18 Ibid. ДИПЛОМАЦИЯ 18/2016

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    18/2016 Октомври-Декем

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    РОЛЯТА НА МЕЖДУНАР

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    18/2016 October/December DOCENDO DI

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