This piece is part of a two-part series regarding the application of the R2P doctrine in Yemen. This first part explores the concept of R2P and the second part will concern the specific application of this doctrine to Yemen.
Between April and July 1994, the world watched in shock horror while Tutsis were murdered in a campaign of mass ethnic cleansing, carried out by the Hutu militia in Rwanda. While there was no operative international program prepared to deal with a genocidal campaign of such proportions, the United Nations (‘UN’) scrambled to intervene without violating the basic principles of international law which form the basis of article 2 of its own Charter (‘UN Charter’). The United Nations Security Council (‘UNSC’) struggled to reach consensus regarding the most appropriate approach not only in Rwanda, but also in Bosnia, as members of the P-5 battled with their respective allegiances and geopolitical motivations. Inaction by the UNSC during the Bosnian Civil War is suggested by some to be one of the contributing factors behind the mass killings across the region, and most notably, the Srebrenica massacre. Following these atrocities, and born from inaction, the Responsibility to Protect (‘R2P’) doctrine was established. The doctrine been criticised since its creation and has failed, on occasion, to effectively manage the conflict it seeks to end or prevent. Despite these shortcomings, humanitarian intervention, specifically the R2P doctrine, remains a viable option to mitigate the effects of the humanitarian crisis in Yemen.
What is the ‘R2P’ doctrine?
The R2P doctrine is based on a number of general principles of international law, including, the principle of State sovereignty, non-intervention and non-interference. It cannot be suggested yet that the R2P doctrine could be considered a general principle of law; however, there is emerging academic commentary which argues there is a dualist international order with two complementary pillars to ensure the operative function of international cooperation during emergency. The pillars are: (1) State sovereignty, or the protection of State autonomy; and (2) human rights, or the protection of individual autonomy. While the concept of humanitarian intervention has not achieved customary status, the argument of a dualist system would suggest that State sovereignty must be accompanied by protection for individuals within those States in the event of actual or imminent harm. It could be suggested that R2P may become, or is becoming, an erga omnes obligation. There is an inherent tension however between the two pillars, which is where apprehension to adopt R2P as the ‘new standard’ likely stems from. Further, the prevention of crimes which the R2P doctrine seeks to mitigate have customary status [see, for example, at 99], which lends itself to the argument that humanitarian intervention could be considered emerging custom.
Sovereignty, Non-Intervention and Non-Interference
State sovereignty favours political separation and operates on three foundational pillars: (1) sovereignty: no one is above the State; (2) territoriality: the existence of defined borders between States; and (3) autonomy: the exercise of government sovereignty within those borders. This has allowed, and continues to allow, States to operate freely without fear or threat of external interference.
The principle of non-intervention is a rule of international law which restricts the ability of outside nations to interfere with the internal affairs of another State. The UN Charter protects this principle by prohibiting intervention, the use of force, or the threat of the use of force between States, which has been confirmed as custom. This principle was affirmed as customary status in Corfu Channel [at p. 35], and the Nicaragua case [at paragraph 73].
At international law, States are prohibited from interfering in the internal affairs of other States. This principle is also based on the foundation of the Westphalian system, and was affirmed in the Nicaragua case, in which the International Court of Justice held States should be free from fear of interference by another State.
The R2P doctrine emerged as a framework to empower national governments to protect civilians from mass atrocities and allows for the international community to intervene when a national government is either unable, or unwilling, to do so. It creates an obligation for the international community to cooperate and protect the fundamental human rights of civilians. It was first codified by the African Union in 2000. Article 4(h) of the Constitution of the African Union vests the right to intervene in a State for humanitarian purposes in the event of war crimes, genocide or crimes against humanity occurring in a member State. The framework which currently exists was developed at the International Commission on Intervention and State Sovereignty (‘ICISS’) in 2001 and was subsequently adopted at the World Summit in 2005. The framework provides a process under which the decision to intervene in the affairs of a State must be measured. The threshold of that decision must start at the principle of non-intervention, at which point all decisions to intervene must be justified [at p.31]. The use of humanitarian intervention through the R2P doctrine must consider a State’s interest in maintaining autonomy and sovereignty. The ICISS report parallels portions of the Hippocratic Oath, which dictates that physicians must ‘first do no harm’ in their pursuit of treatment. It is perhaps an extension of this parallel where the emergence of the R2P doctrine exists in international law. While States enjoy the right to sovereignty and non-interference by other governing bodies, they must also do everything in their power to protect their own citizens or request assistance in doing so from the international community. Failure or refusal to provide adequate support in cases of violence which ‘shock the conscience of mankind’ or such a present and clear danger to international security that the international community is provided grounds for military intervention [at p.73]. The ICISS report found even in States where there was opposition to interference, there was still general acceptance of an exception to the rule [at p.31].
The framework for R2P provides criteria to establish the exceptional circumstances in which a State or multilateral organisation may seek leave to engage in humanitarian intervention. The threshold test is the (i) ‘just cause’ principle [at p.32]. Once the threshold has been passed, there are five additional criteria which must be considered when determining if the humanitarian need outweighs the protection of the principle of non-intervention. The remaining criteria are: (ii) right authority, (iii) right intention, (iv) last resort, (v) proportional means, and, (vi) reasonable prospects.
In cases of humanitarian intervention, ‘just cause’ is satisfied when there is imminent or irreparable harm affecting civilians and that harm must be sufficient to warrant intervention [at p.32]. The harm referred to in the ICISS report includes crimes now found in the Rome Statute, commonly referred to as atrocity crimes: genocide, crimes against humanity and war crimes (with the exception of the recent addition of the crime of aggression, although violations of the general principles of international law which lay the foundation for the R2P doctrine are found in the chapeau elements for the crime of aggression).
The element of right authority requires the identification of individuals, or groups, with requisite decision-making power to authorise military intervention. The normal course of action dictates it is the responsibility of individual States to act in a way which is cogent with a standard of protection for civilians who may be suffering harm or where the harm is imminent. Article 24 of the UN Charter places the burden on the UNSC to intervene when a State is unable, or unwilling, to provide adequate protection to its own citizens. This is mirrored in other areas of international law, for example, the article 13 exception of the Rome Statute, which allows the UNSC to refer matters before the International Criminal Court. In theory, the R2P doctrine should step in where normal means of diplomatic relations have proven ineffective. Further, article 51 of the UN Charter grants power to the UNSC to intervene through the use of collective self-defence if the circumstances dictate necessity.
The intention of the intervention, military or otherwise, must be to end or prevent imminent human suffering. The ICISS report concluded that intervention for humanitarian purposes is best served by multilateral organisations, as it will temper the likelihood of politically motivated intervention. The power conferred on the UNSC is meant to provide legitimacy to States who require assistance, or step in if a State infringes on the human rights of individuals or causes undue suffering. This does not require the UN to act as a vigilante for international law, but instead, as a conduit for maintaining international cooperation and stability.
Intervention, especially military, must be treated as the final option for resolution during conflict [at p. XXI]. Those ordering intervention must be of a reasonable belief that all other means of conflict resolution have been explored, or implemented, and must have grounds to believe humanitarian intervention is the option with the best prospect for success in the circumstances.
The scale, duration and intensity of intervention must be the minimum necessary to achieve the objective of human protection and preventing human suffering [at p. XXI]. The principle of proportionality is commonplace in international law and is considered a central tenet in the decision-making processes which predate military engagement. The same principles apply in cases of peaceful counter measures and intervention. The reaction must not outweigh the harm suffered and it must evaluate the rights which have been violated [at 52].
There must be a reasonable chance of success of ending, or preventing, human suffering by means of humanitarian intervention. The consequences of engaging in such acts must not outweigh the intended benefit to the individuals within the State in question. The criteria of reasonable prospects are directly connected to the criteria of proportionality and should not be considered separately [at 224].
In the next part of this series, these criteria will be applied to the situation in Yemen.
Alana Bonenfant is an LLM (Research) student at Bond University. Originally from Calgary, Canada, Ms Bonenfant holds a Bachelor of Laws (Honours) and a Bachelor of Arts (International Relations) from Bond University.