CYIL Vol. 5, 2014

RESPONSIBILITY WHILE PROTECTING ȃ AN ALTERNATIVE TO R2P… Council” 25 and be carried out in conformity with the UN authorising resolution and with the standards of international law. The use of force may only come as a last resort measure, after the exhaustion of all other available means, and it can “under no circumstance /…/ generate more harm than it is authorized to prevent”. 26 The context of UN-mandated operations is further reflected in the requirements that military operations approved under R2P be subject to strict monitoring and that, in case the intervening forces overstep their mandate or fail to respect international standards, accountability be ensured. The crucial role is entrusted to the UN Security Council, as the organ with “the primary responsibility for the maintenance of international peace and security” (Article 24 par. 1 of the UN Charter) and as the main guarantor of the UN collective security system. The emphasis placed upon the close monitoring and accountability can again be read as a reaction to the Operation United Protector, which was left uncontrolled by the UN, with large discretion, amounting de facto to unlimited power, granted to the intervening NATO forces. In sum, the first reading of RwP focuses on the implementation of the military component of Pillar Three of R2P, stressing the limits imposed upon the action by the authorising UN Security Council resolution, just war criteria and general international law. The second reading of RwP goes beyond Pillar Three, paying attention to R2P in its totality. This reading seeks to explain the relationship between the three pillars of R2P. To recall, the first pillar is the primary responsibility of states to protect their populations from the four core crimes under international law. The second pillar pertains to the responsibility of the international community to encourage and assist states in fulfilling their primary responsibility. The third pillar relates to the subsidiary responsibility of the international community to protect populations from the core crimes by all available diplomatic, political and, as a last resort, military means, in case of a manifest failure of the state to assume its primary responsibility. This three-pillar structure was introduced in the 2005 Outcome Document (par. 138-139) and later on elaborated upon by the Special Advisor of the UN Secretary-General on Responsibility to Protect, Edward C. Luck. 27 The prevailing opinion is that no hierarchy and no fixed sequencing exist between the three pillars of R2P and that flexibility is needed when R2P is applied, to take into account the context of a particular situation (case-by-case approach). Brazil does not fully share this view, as clearly visible from the statements of its representatives. Under RwP, in the second reading of the concept, there is “a political

25 Ibid., par. 11(f). 26 Ibid., par. 11(e).

27 UN Docs A/63/677, Implementing the responsibility to protect, Report of the Secretary General, 12 January 2009; A/64/864, Early warning, assessment and the responsibility to protect, Report of the Secretary General, 14 July 2010; A/65/877–S/2011/393, The role of regional and subregional arrangements in implementing the responsibility to protect, Report of the Secretary General, 28 June 2011; A/66/874–S/2012/578, Responsibility to protect: timely and decisive response, Report of the Secretary General, 25 July 2012.

29