CYIL Vol. 5, 2014

RESPONSIBILITY WHILE PROTECTING ȃ AN ALTERNATIVE TO R2P… Although the concept of R2P seemed to be dead from the start, with the ICISS report getting published two months after the terrorist attacks of 9/11, it recorded an unprecedented success on the international scene. Three and a half years after its establishment, R2P was endorsed by the largest ever gathering of the heads of states and governments during the World Summit held in September 2005. The Outcome Document of the Summit contains in its paragraphs 138-139 the universally accepted formulation of R2P. 4 This formulation, albeit differing in some respects from that of the ICISS report, maintains the emphasis upon the responsibility of states to protect their population from certain serious violations of human rights and upon the active role that the international community, led by the United Nations, has to play in this process. In 2006, the concept of R2P was for the first time invoked by the UN Security Council, both in a country-specific 5 and in a thematic resolution. 6 In 2009 the first UN General Assembly plenary meeting on Responsibility to Protect took place, showing a vast support that states from all continents granted to the concept. 7 In 2005-2014, R2P was invoked and/or implemented in several man-made crises occurring mostly on the African continent (the post-elections violence in Kenya, the internal armed conflict in the Sudan, the civil war in Libya, etc.). Not surprisingly, the case giving rise to most controversies among states as well as in the academic community was the first case implying the use of military force – that of Libya (2011). Although the use of force by the NATO forces in Libya (Operation United Protector) was sanctioned by the UN Security Council, 8 the authorisation to take “all necessary measures /…/ to protect civilians and the civilian population” (par. 4), justified implicitly by R2P, was seen as problematic. 9 Doubts about the appropriateness of the military solution to the crisis further increased due to the controversial implementation of the UN Security Council mandate and the alleged overstepping of the mandate by the intervening NATO forces. 4 UN Doc. A/60/L.1, 2005 World Summit Outcome, 15 September 2005. The Outcome Document limits the scope of R2P to four core crimes under international law (genocide, war crimes, ethnic cleansing, and crimes against humanity). It does away with the three-part obligation of states (obligation to prevent, react, rebuild), introducing instead what has since been read as a three-pillar structure (obligation to protect by the national state, obligation to assist by the international community, subsidiary obligation to protect by the international community). The three-pillar structure has been developed by the UN Secretary General and his special advisor for R2P. See Ban Ki-Moon, Responsible Sovereignty: International Cooperation for a Changed World, Berlin, 16 July 2008. 5 UN Doc. S/RES/1706 (2006), Reports of the Secretary-General on Sudan, 31 August 2006. 6 UN Doc. S/RES/1674 (2006), Protection of Civilians in Armed Conflict, 28 April 2006. 7 See ICRtP – http://www.responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs- topics/2493-general-assembly-debate-on-the-responsibility-to-protect-and-informal-interactive- dialogue- (20. 11. 2009). 8 UN Doc. S/RES/1973, The Situation in Libya, 17 March 2011. 9 While Resolution 1970 condemning the crimes committed by the Qaddafi regime was approved unanimously in the UN Security Council, the voting record on Resolution 1973 was more divided, with five states (China, Russia, Brazil, Germany and India) abstaining from the vote.

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