2. The concept and the idea of the R2P
3. The Law of Armed Conflict in International Law
4. A theoretical approach to deadly conflicts
5. The Responsibility to Protect and the Jus post Bellum
Today’s International Law and therefore also the Law of Armed Conflict emerged on the idea of state sovereignty and that the only actors in the international relations are the sovereign nations.
Nowadays appearance of conflicts shows, that most conflicts within the last two decades have been intrastate conflicts1. A few of them produced more violence and more victims in shorter period than most of the conflicts before. At least since the experience of the enormous tragedies in the mid 90s of the last century, like the genocide in Rwanda and the systematic organized use of force against civilians on the Balkans, there has been a great effort to take the Law of Armed Conflict to a new level, where interventions might be conducted even if the sovereignty of states will be violated and where the International Community has a responsibility to exercise prevention and re-building in order to avoid such tragedies again. One concept that has been recognized by most countries on the World Summit 2005 and achieved within a remarkably short period a huge rhetorical presence in the international community is the concept of the Responsibility to Protect (R2P). Not yet quite a part of the International Law but to some extend a recognized norm without an operationalization, the R2P deals with the idea that sovereignty is not more an exclusive privilege of a nation but a responsibility for countries. An intervention by the International Community might therefore be necessary when the country fails to provide and ensure this responsibility to protect its population. In theory therefore the concept of the R2P aims with a certain set of tools at three different phase; before a violent conflict breaks out with means of prevention, when an armed conflict takes place by using different means up to an intervention in order to stop further violence and after the settlement of a armed conflict with means of reconciliation and rebuilding to avoid another outbreak of violence again.
The following essay focuses on the phase when the actual fighting and violence stops, the phases of de-escalation and consolidation, where within the concept of the R2P the means and tools of rebuilding and conciliation shall avoid another fighting again. The underlying research question consequently asks: if the concept of the R2P addresses prevention, conflict management as well as post conflict rebuilding, does there exist an obligation and a legal justification within this context for a jus post bellum under the international law? Measures for an after conflict time rebuilding have never been before part of a wider legal concept to fight violent conflicts. It often was treated as part of development efforts and policies, but never as a legal obligation for an intervening party. For this reason some legal experts call it already a jus post bellum. The term of the jus post bellum then describes the legal responsibility and commitment of the international community as well as certain individual nations within the overall frame of the R2P. The hypothesis for that reason is that the concept of the Responsibility to Protect will fail to prevent deadly conflicts as long there is no legal obligation and an international tool set for a jus post bellum as a pre-conflict prevention of a new outbreak.
Within the essay, the author wants to provide an overview of the Concept of the R2P, the legal perception of this concept in the context of the Law of Armed Conflict and especially of the obligations and possibilities coming along with this concept after the end of violent conducts. The research question therefore provides the framework for this essay, whilst the hypothesis shall be used to prove limitations and possibilities of a legal concept that might develop towards a jus post bellum. As a result the essay is into three major parts which subsequently merge into section dedicated to the idea of a legal embedding of a jus post bellum. First the basic idea and the concept of the Responsibility to Protect should be emphasized. Afterwards the existing structure of the Law of Armed Conflict will be outlined. Before putting then the attained insights together, as mentioned before, a third section should highlight the theoretical key elements of an escalation towards deadly conflicts with the special focus at the phase after to stop of violence.
All insights should then be reviewed under aspect of the concept of the R2P and a possible jus post bellum, before going back in the final section to the initial research question and the hypothesis. The conclusion should provide an answer to them as well as an outlook to the possible future development.
2. The concept and idea of the R2P
In 1999, after world has witnessed gross and systematic violations of human rights in Rwanda, Srebrenica, Congo, Sudan, Somalia and Kosovo within the last decade, the UN Secretary General Kofi Annan initiated a thought process about the principals of sovereignty, humanity and moral responsibilities, by asking the General Assembly what could be done to prevent and stop future atrocities2. In response to his appeal an independent group of international experts formed the International Commission on Intervention and State Sovereignty on behalf of the United Nations (ICISS). The ICISS issued in 2001 a report, which laid out a foundation stone for the R2P concept, which should replace the idea of a Humanitarian Intervention3. Within this report the focus was moved towards the victims, putting them in the centre of any contemplation, away from any legal discussion about sovereign rights and the dispute of general obligation to intervene. The report reflects on how to move beyond any moral or legal barrier related to the idea of a Humanitarian Intervention and the issues originated by the UN Security Council and its blockade by not achieving a consensus amongst the permanent five members.
Therefore the concept of the R2P narrows the relevant cause and focuses on four major atrocities: genocide, war crimes, crimes against humanity and large scale ethnic cleansing within an intrastate conflict. These four major crimes, so called mass atrocity crimes, are the only reasons for breaking up the traditional law of sovereignty. Consequently the R2P follows a three level approach, often called the three pillars of the concept, which outline the intensity of possible international involvement and the related requirements4 :
1. Every state has an obligation to provide security and safety for his people. It is the state’s responsibility to protect his population and his citizen from the above named mass atrocity crimes.
2. In case of the state fails or is unable to provide protection and security for his population against the mass atrocity crimes on its own, the international community has the responsibility to provide assistance and help to the state in order to restore his ability and capacity to assume control again and to establish a secure environment for his population.
3. If the state continuously fails to provide protection from mass atrocities and to fulfill his responsibilities, whether he is not capable or it is done by intent, the international community has the full responsibility to react and to ensure the protection of the vulnerable populations. All actions taken by the international community or individual countries should also follow an escalation ladder and be proportional. Starting with the use of peaceful means like mediation and talks, it could increase towards economic sanctions or embargos. The use of military force for interventions should always be the last resort.
Closely related to these three pillars are the means and tools the R2P concept proposes to counter any mass atrocity. All means and tools are again separated into three phases, the phase before any aggression starts; during the aggression and the phase after the end of the atrocities. Whilst the phase before the break out requires mainly means of early warning, which are widely agreed, the most disputed means are the ones required during any aggression, mainly an intervention, and afterwards, summarized under the term of rebuilding. One of the most significant innovations in the R2P concept is that mandate for an intervention does not necessarily be legitimized by the UN Security Council, other principles and mechanisms to provide a stable mandate are also imaginable. In particular procedures similar like the ‘United for Peace Resolution’ mechanism have been the basis for this interpretation of the R2P intervention criteria.
In accordance with the report of the ICISS, any military intervention by the international community related to the Responsibility to Protect, has to meet six moral and legal conditions’ at all times5 :
- first the presence of a legitimate or just cause;
- secondly the intervention has emerged by the right intention;
- then the use of military force has to be the final resort;
- furthermore the use of forces has to be mandated by a legitimate authority, obviously meaning the only authority in the international relations - the UN Security Council;
- any intervention has to be undertaken with proportional means,
- and last but not least, all actions have to follow a strategy including a reasonable prospect for the success of the operation and an exit strategy as well as a concept for post intervention rebuilding
1 HIICR, Conflict Barometer 2010, http://hiik.de/de/konfliktbarometer/index.html.
2 Gierycz, Dorota, From Humanitarian Intervention (HI) to Responsibility to Protect (R2P), in: Criminal Justice Ethics, Vol. 29, No.2, Page 112 - 113, 2010.
4 Bellamy, Alex J., When is it right to fight? International law and Jus ad Bellum, 2009.
5 Varwick, Johannes, Humanitaere Intervention und die Schutzverantwortung (R2P), Page 9, 2009.