INTERNATIONAL COURT OF JUSTICEADVISORY JURISDICTION

STUDY GUIDE

www.modelcj.org 7-9 February 2014

Model Courts of Justice 2014

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LETTER OF THE SECRETARY GENERAL

Dear Participants,

It is my honour to welcome you to the third annual session of Model Courts of Justice. My

name is Fatma Betül Bodur, I am a junior law student at Ankara University; and I will serve

as the Secretary-General of this Conference. Having been a part of this Conference since its

first session; I can assure you that Model Courts of Justice is a tremendous opportunity for

you to enhance your knowledge on international law.

In this year’s session, for the very first time in Turkey, the Advisory Jurisdiction of

theInternational Court of Justice shall be simulated. The Court shall proceed with the main

question of "What is the legal standing of an armed intervention to a state, made by other

state/state groups in response to breaches of Human Rights and International Humanitarian

Law?"The Court’s set-up and this Study Guide have been prepared by the Under-Secretary-

General Ms. Nezahat Yeşim Yargıcı. With her hard work and unique creativity, the ICJ’s

background is presented thoroughly.

I advise you to read the Study Guide, the Handbook and the Rules of Procedure; and to

analyze the Key Documents provided in our website. It is of utmost importance that the

Participants bear in mind that their duty is not to solve the fictional conflict; but to answer the

legal questions that arise from them instead.

Should you have any questions with regards to the academic aspect of the Conference, please

do not hesitate to contact me viasecretary.general@modelcj.org.

I wish to welcome you all in February, in Ankara.

Regards,

Fatma Betül Bodur

Secretary-General

Model Courts of Justice 2014 Conference

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LETTER OF THE UNDER-SECRETARY GENERAL

Most Distinguished Advocates and Judges,

I have the pristine honour of welcoming you to the first ever simulation of the advisory

jurisdiction of the International Court of Justice in Turkey. Not only is it an advanced

academic experience for law students to be acting like judges as they discuss doctrines and

black holes of international law, it is also incredibly beneficial for future lawyers to present

cases of different countries to fully grasp what our future careers will entail.

The case before the Court is a one that creates a great confusion with scholars, judges and

politicians. "What is the legal standing of an armed intervention to a state, made by other

state/state groups in response to breaches of Human Rights and International Humanitarian

Law?"

In the aftermath of the most violent armed conflict in history, the World War II, a prohibition

against the use of force was brought forward by the United Nations, to prevent future wars

from happening. However, in time the concept of modern war evolved from war between

states to “war between states and the people”. From the Gulf War, Somalia, Kosovo and

Libya, this study guide will explore the history and the possible legal standings of such

interventions. It was the former Secretary General of the United Nations Kofi Annan who

said ‘(…) if humanitarian intervention is, indeed, an unacceptable assault on sovereignty,

how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of

human rights that affect every precept of our common humanity?’,

Furthermore the Model CJ Secretariat has prepared a fictional scenario that is inspired and

entails facts from many of these occurring throughout history; the purpose of this was giving

room for creativity in the legal arguments of advocates rather than being limited to a single

country’s position. In the end, our expectation from the Court is to form an understanding

when it comes to armed interventions in response breaches of humanity. Please do not

hesitate to contact me via icj.advisory@modelcj.org if you have any questions

Kind Regards

Nezahat Yeşim YARGICI

Under-Secretary-General responsible for International Court of Justice – Advisory

Jurisdiction

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INDEX

A. INTRODUCTION TO THE INTERNATIONAL COURT OF JUSTICE

I. Development of the Court II. Structure of the Court III. Jurisdiction of the Court IV. Sources Of The Law Available to the Court V. The Contentious Jurisdiction of the Court:

a. The Verdict of the Court VI. The Advisory Opinion Given by the Court B. HISTORY OF ‘HUMANITARIAN INTERVENTION’ AND USE OF FORCE C. CASE STUDIES I. Rwanda 1994: The Question Of Genocide And When It Was Failed To Act II. Kosovo 1999: The Question of Authorization, the Security Council and

‘Humanitarian Intervention’ a. Introduction b. Historical Timeline Of An Intervention c. Legality of the Intervention

III. Darfur 2001: The Question of the Political Nature Of Intervention IV. Libya 2011: The Question of Applicability of the ’Responsibility to Protect’

a. Facts: Before And After Intervention V. Conclusion to Case Studies D. SOURCES OF LAW AVAILABLE TO THE COURT I. Treaties a. The Charter of the United Nations

i. Article 2(4) of the Charter and the Prohibition Against The Use Of Force b. The Convention For The Prevention And Punishment Of The Crime Of

Genocide c. The Geneva Conventions & Additional Protocols and Humanitarian Law d. Constitutive Act Of The African Union: II. Custom

a. Resolutions Of The Security Council b. World Summit 2005 And Responsibility To Protect (R2p)

III. Principles Of International Law a. Principles Of Sovereignty And Non-Intervention

E. THE OFFICIAL STATEMENT REQUESTING AN ADVISORY OPINION FROM THE SECURITY COUNCIL and THE FICTIONAL SCENARIO

İ. The Scenario II. Country Profiles

III. Official Statement Requesting and Advisory Opinion

BIBLIOGRAPHY

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A. INTRODUCTION TO THE INTERNATIONAL COURT OF JUSTICE

(THIS CHAPTER IS OBTAINED FROM B. TUNCAY, Japan v. Russia the

Northern Territories/Kuril Islands Dispute, MODEL COURTS OF JUSTICE 2013)

I. Development

After the destructive effects of world-wide wars, the international community was in need of

an impartial and fair way of solving disputes between [S]tates. The Covenant of the League

of Nations established the Permanent Court of International Justice in 1921 after World War

I.1The Court was meant to be separate from the League, to settle disputes fairly when other

means of diplomacy failed and to give advisory opinions. However, the League of Nations,

which was not able to create a universal peace and prevent World War II, dissolved itself in

1946 along with the Permanent Court of International Justice.2

In the aftermath of World War II, the world-wide reaction was to never come across the

violence of a war in that magnitude. Therefore the need for a stronger world organization to

regulate and if possible prevent use of force by States arose. This led to the drafting of the

Charter of United Nations [(UN)] (entered into force on 24 October 1945).

The International Court of Justice [(ICJ)] was established as the successor of the Permanent

Court of International Justice -the former “world court” of the League of Nations-[and

was]formed in compliance with Article 92 of the UN Charter.3 The Court is defined as the

“principal judicial organ” of the United Nations and the guidelines of its jurisdiction,

structure are explained in the Statute of the Court which is annexed to the UN Charter. Its

procedure and administrative framework is explained in the Rules of Court, which is adopted

and amended by its judges.4

VII. Structure of the Court

“The Court shall be composed of a body of independent judges, elected regardless of their

nationality from among persons of high moral character, who possess the qualifications

1 Cassese, Antonio (2005) International Law, 2nd Edition, New York, Oxford University Press, 2 Sans, Philippe and Kein, Pierre (2001) Bowett’s Law of International Institutions, 5th Edition, London, Sweet&Maxwell 3 Shaw, Malcom N. (2008), International Law, 6th Edition, Cambridge, Cambridge University Press 4 Ibid.

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required in their respective countries for appointment to the highest judicial offices, or are

jurisconsults of recognized competence in international law.”5

The process [of] selecting judges is a mixture of political and legal factors while trying to

maintain the Court’s neutrality from national influence. The list of qualified candidates is

voted on separately in the General Assembly and the Security Council, every three years in

regards to five judges.6 The judges of the [C]ourt are meant to represent an equitable

geographic distribution so the Court can give its ruling in scope of the main legal systems of

the civilized world.7

There are some provisions in its Statute that intend to secure judges of any political pressure

and keep the court impartial to any State. The judges have diplomatic privileges and

immunities, on duty they are not entitled to a retiring age or cannot be dismissed unless a

unanimous vote of the rest of the judges.8 They are elected for 9 years and can be re-elected

and they are entitled to tenure.9 They cannot take part in political activities or pursue a legal

career other than their work for the ICJ. No two judges can be from the same nationality as a

rule.10 The Court is seated in The Hague, Netherlands.11

The decisions of the [C]ourt are taken by a majority of the votes, in case of an equal number

of votes the President shall have the casting vote.12 All decisions of the court are final, non-

appealable and binding

for the [P]arties to it.

Image 1: View of the ICJ

Courtroom (the Great Hall of

Justice) UN Photo/CIJ-

ICJ/Frank van Bee 201313

5Article 2, Statute of ICJ 6 Shaw, Malcolm N. (2003), International Law, 5th Edition, Cambridge, Cambridge University Press 7 Philippe, Sands and Klein, Pierre (2001) Bowett’s Law of International Institutions, 5th Edition, London, Sweet & Maxwell 8 Article 16,17,18, 19 of Statute of ICJ 9 Article 13 of Statute of ICJ 10 Article 3 Statute of ICJ 11 Article 22, Statute of ICJ 12Article 55(2), Statute of ICJ 13 UN Photo/CIJ-ICJ/Frank van Beek, 2013, View of the ICJ Courtroom (the Great Hall of Justice) during the delivery of the Order of the Court on the request for the indication of new provisional measures filed by Costa Rica in the case concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v.

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VIII. Jurisdiction of the Court

The ICJ deals with cases in the scope of the international law as it exists at the time. The

[C]ourt itself stated in many times that it is not an international legislative body, its purpose

is to stay impartial to political aspects of the cases and to party states and apply the

principles and rules of international law as it is.14 Although the efficiency of the Court is

often questioned because of the need of State consent in order for contentious cases to begin,

the significance of ICJ grows in the UN and in the international stage. The Court’s strong

stand to remain fair and transparent in the way it handles disputes and its clear advantages

in comparison to other international courts and tribunals makes ICJ an ideal answer to

today’s international conflicts, most commonly about territorial and maritime disputes but

also [on] cases that are significant to the progress of public international law, such as

Germany v. Italy: Jurisdictional Immunity As A Sovereign State.15

Under the Statute, only States can be parties of contentious cases, though some bodies of the

UN, as the mentioned in the UN Charter, can ask for advisory opinions. Considering some

crucial roles NGOs and other significant (…) [persons] play in some disputes, it is

considered a gap in ICJ’s structure that they are not able to be parties (...) [to] cases. This

gap is ought to be covered by other international tribunals, supervisory bodies and

international commercial arbitration.16As another direct result of accepting that only

“States” ha[ve] the capacity to become a party to a case before the ICJ, authorities with

legal characters that are controversial, such as (...) Kosovo, cannot bring a case before the

Court nor recognize the Court’s jurisdiction on a case brought before the Court by another

[S]tate and become a party to it. While questioning its efficiency, the Court is also criticized

on that point considering the fact that such authorities are the ones which (…) [are]

constantly subject to actions that construed as violation of international law, yet are not able

to seek remedies before the Court.

Nicaragua). <http://www.icj-cij.org/presscom/gallery.php?p1=6&event=20131122_crn> accessed 1 December 2013 14 Shaw, Malcom N. (2008), International Law, 6th Edition, Cambridge, Cambridge University Press 15 I.C.J. Reports: JURISDICTIONAL IMMUNITIES OF THE STATE (GERMANY v. ITALY: GREECE INTERVENING), Judgement, 2012 3 February, General List No. 143 16 Triggs, Gillian D., (2006), International Law: Contemporary Principles and Practices, Australia, LexisNexis Butterworths

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IX. Sources Of Law Applicable to the Court

Public international law or Law of Nations is the [sum of] rules accepted by civilized States

as determining their conduct towards each other.17It may consist of universal elements like

sovereignty of a [S]tate to the United Nations, or regional factors such as the Organization

of American States and European Court of Justice.

Unlike domestic legal systems, international law is not legislated by a specific body nor

enforced by a single body. [Its] checks and balances system relies on mechanisms such as

self-help, retorting, reprisal, demonstration, intervention, war and other means and ways of

international relations, and international bodies like the UN Security Council(the only body

that can mandate things to vast majority of [S]tates in the world), therefore has a significant

political side to it.18

As a result of the lack of a specific legislative body, international law is not certain at some

points, not coherent, not as easily accessible as domestic law and does not come from a

single global legislative body. The Court[’]s sources are explained in the Statue of ICJ,

Article 3819:

“The Court, whose function is to decide in accordance with international law such disputes

as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most

highly qualified publicists of the various nations, as subsidiary means for the determination

of rules of law.”20

It should be noted that the Court can decide on a case (ex aequo et bono) in scope of equity

and the parties will be bound from thereon.21

The Court’s jurisdiction is divided into two; its contentious jurisdiction to resolve conflicts

between party [S]tates and its advisory jurisdiction which can be requested by signified

entities.

17Per Lord Russell of Killowen, L.C. in West Rand Central Gold Mining Co. v. Rex (L.R. (1905) 2 K.B. 407). 18 Shaw, Malcolm N. (2003), International Law, 5th Edition, Cambridge, Cambridge University Press 19Article 38(1), The International Court of Justice Statute 20 Article 38, Statute o bf ICJ 21This provision was never applied. Wallace, Rebecca M. M. and Martin-Ortega, Olga(2009) International Law, 6th Edition, London, Sweet & Maxwell

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X. The Contentious Jurisdiction of the Court:

“All Members of the United Nations are ipso facto parties to the Statute of the International

Court of Justice.”22

This provision states that all members of the UN will accept that accordingly to (…) its

Statute the Court can determine its own competence, allow third parties and indicate

provisional measures of protection but in respect to the fundamental principle of sovereignty

of a [S]tate, the parties will consent to its jurisdiction on a specified matter.23 There are

different ways [S]tates can consent to the inception of a contentious case:

Compromis(Special Agreement): Parties can agree to ICJ's jurisdiction on the subject

matter by a special agreement. Such an agreement commonly called as “Compromis”

or “Special Agreement”, since the only and the core purpose of the agreement is

recognizing the Court’s jurisdiction24

Forum Prorogatum: After the application of one of the parties, the other party can

express or imply to agree that ICJ has or can have jurisdiction on the subject matter.

In such cases, the process begins with the application of a party and the consent of

the other is given afterwards or the actions of the other may be considered as an

implied consent; despite the lack of agreement between the parties or consent of the

other party in regards to the Court’s jurisdiction and which is concluded or given

before the occurrence of a dispute, is brought before the Court the Court’s

jurisdiction is interpreted as validly and duly established.

States can add clauses to bilateral or multilateral agreements to give jurisdiction to

ICJ on the subject matter of these agreements. In that case, when a dispute arise, one

[S]tate’s application to initiate proceedings before the Court may be sufficient, since

the other party recognized the ICJ’s jurisdiction under the agreement.

A [S]tate can unilaterally make a declaration stating that ICJ will have jurisdiction

on the future disputes that may come up.25

Once the jurisdiction is duly established, the Court begins to consider the merits of the case

by restating or interpreting or upholding the law as it is. Such a consideration should be

22 Article 93, The United Nations Charter 23 Articles 36, 41,62 of the Statute of ICJ 24 Triggs, Gillian D., (2006), International Law: Contemporary Principles and Practices, Australia, LexisNexis Butterworths 25 Article 36 of the Statute of ICJ

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conducted in scope of the jurisdiction of the Court it has found exists; the Court is required to

not overstep its jurisdiction, over any case that may come up. As a result of this principle and

since the Court is required to be authorized by [S]tates in order to render a judgment

regarding these [S]tate party’s affairs, the Court will not give a ruling that may affect a third

party who has not consented or legislate.

b. The Verdict of the Court

There are three ways to conclude a case:

1. Parties of the case may reach a settlement and inform the Court in order to stop the

proceedings.

2. Applicant party may withdraw.

3. If none of the above happens, the Court will deliver a judgement.26

The decision of the Court is final, binding and non-appealable.27 However, in case (...) new

information comes to light that may change the course of the judgement, a revision may be

asked for.28 The Court may help analyse and clarify its judgement in order for the respective

parties to apply it correctly.

XI. The Advisory Opinions Given by the Court

“The Court may give an advisory opinion on any legal question at the request of whatever

body may be authorized by or in accordance with the Charter of the United Nations to make

such a request.”29

The idea behind this particular type of case is not to settle disputes, but answer questions of

legality and enlighten a legal problem which political bodies may not be competent to solve.

There are some particular aspects of the advisory opinions given by the Court that must be

mentioned: the body which requests the advisory opinion, the Court’sestablishment of

jurisdiction or rejection of the case, the nature of the question and the affects of the

opinion itself.

Advisory opinions of the Court are not given to all those who request it. As the Article 96 of

the UN Charter states:

26 Ibid. 27 Article 60, Statute of ICJ 28 Article 61, Statute of ICJ 29 Article 65(1), Statute of ICJ

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a) The General Assembly or the Security Council may request the International Court of

Justice to give an advisory opinion on any legal question.

b) Other organs of the United Nations and specialized agencies, which may at any time

be so authorized by the General Assembly, may also request advisory opinions of the

Court on legal questions arising within the scope of their activities.30

As a consequence, the General Assembly and the Security Council are the only two bodies

within the UN that are authorised to ask for opinions on ‘any legal question’ when other

bodies and specialized agencies can only bring forth questions relating to their work. 31Extent

of Article 96 was re-examinedwhen the World Health Organization (a specialized body

directing and coordinating authority for health within the United Nations; WHO)32 requested

an advisory opinion titled “Legality of the Use by a State of Nuclear Weapons in Armed

Conflict”. The Court then explained its jurisdiction over advisory opinions as such:

“considered that there are three conditions which must be satisfied in order to found the

jurisdiction of the Court when a request for an advisory opinion is submitted to it by a

specialized agency: the agency requesting the opinion must be duly authorized, under the

Charter of the United Nations, to request opinions from the Court; the opinion requested

must be on a legal question; and this question must be one arising; within the scope of' the

activities of' the requesting agency.”33The Court came to the conclusion that it cannot render

an advisory opinion on the question asked by WHO due to the fact that the question was

related to the legality of using nuclear weapons rather than the effects of nuclear weapons on

health.34Therefore the question was not under the scope of WHO’s activities and the case was

rejected.

Secondly, the establishment of jurisdiction is also based on the condition that the Court does

not reject the case by discretion; the Article 94 of the Charter clearly decides to leave this

decision to the Court by stating “the Court may give an advisory opinion”.35According to the

advisory opinion on ‘the Declaration of Independence in respect of Kosovo’, the discretion

30 Article 96, The United Nations Charter 31 Ibid. 32 International Court of Justice, 'Organs and Agencies of the United Nations Authorized to Request Advisory Opinions' (icj-cij.org ) <http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2&p3=1> accessed 29 November 2013 33 International Court of Justice, 'Summary of LEGALITY OF THE USE BY A. STATE OF NUCLEAR WEAPONS IN ARMED CONFLICT Advisory Opinion' (icj-cij.org 1996) <http://www.icj-cij.org/docket/files/93/14167.pdf> accessed 29 November 2013 34 Ibid. 35 International Court of Justice, 'Summary of LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS ' (icj-cij.org 8 July 1996) <http://www.icj-cij.org/docket/files/95/7497.pdf> accessed 29 November 2013

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to give an advisory opinion is existent in order “to protect the integrity of the Court’s judicial

function and its nature as the principal judicial organ of the United Nations”.However, the

Court takes the view of not refusing an advisory opinion in principle because advisory

opinions represent“its participation in the activities of the Organization.”36This discretion is

often tested in the event of an advisory opinion relating to more contemporary inter-state

questions of law.

In the case ofLegal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory the Court was asked to reject the case by Israel because of multiple

reasons. Firstly the case was in regards to a contentious matter between Israel and Palestine

and Israel rejected the Court’s jurisdiction.37The Wall itself was only a single aspect of a

much wider conflict therefore an opinion focusing just on the Wall could not address the

matter fully.38Furthermore since the General Assembly requesting the opinion already

deemed the Wall to be illegal, any opinion further would be “useless”.39

The Court answered all these claims regarding its jurisdiction. Firstly the Court said“the

Court does not consider that the subject-matter of the General Assembly’s request can be

regarded as only a bilateral matter between Israel and Palestine. Given the powers and

responsibilities of the United Nations in questions relating to international peace and

security, it is the Court’s view that the construction of the wall must be deemed to be directly

of concern to the United Nations in general and the General Assembly in particular”.As a

consequence, the Court’s position was that an advisory opinion may be predominantly

related to a particular state or entity; as long as it can be examined within the scope of

international peace and security or another matter the United Nations focuses

on.40Hencethe approval of those States and entities were not crucial in order to establish

jurisdiction for an advisory opinion.41 To the second argument the Court answered that “it

is aware, and would take into account, that the question of the wall is part of a greater whole.

At the same time, the question which the General Assembly has chosen to ask of the Court is

confined to the legal consequences of the construction of the wall, and that the Court would

only examine other issues to the extent that they might be necessary to its consideration of the

36 International Court of Justice, ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for advisory opinion)’ (icj-cij.org 2004) <http://www.icj-cij.org/docket/files/131/1677.pdf> accessed 29 November 2013 37 Ibid. 38 Ibid 39 Ibid. 40 Ibid. 41 Ibid.

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question put to it”.42Overall, this proves that the Court will focus on the question asked

and will not enlarge the scope of an advisory opinion unless it is necessary that other

facts should be examined. Therefore the scope of the question and its relation to a wider

problem would be irrelevant in order to establish jurisdiction.And lastly, answering the

question of whether the advisory opinion would be useful or not, the Court re-stated its

position from the Legality of Threat or Use of Nuclear Weapons case as: “it is not for the

Court itself to purport to decide whether or not an advisory opinion is needed by the

Assembly for the performance of its functions. The General Assembly has the right to decide

for itself on the usefulness of an opinion in the light of its own needs.”43As a consequence,

the need or the function of the opinion is irrelevant to the Court as the Court’s job is to

clarify a legal situation and the usefulness of the clarification would be the consideration

of the body asking for it.44

Although a situation may rise when the Court rejects giving an opinion, for instance due to

the interests of a party-related, or not having enough information or evidence to reach a

verdict,45the Court’s jurisprudenceshows that, as principle, as long as the criterion from

Article 96 is met, the Court will render an opinion hence it is its role to do so within the

United Nations system.

Another factor that is relevant to the process of an advisory opinion is the question itself.

Article 94 states the question must be of ‘legal character’. In the Western Sahara Case, the

Court enlightened the term ‘legal question’ as “framed in terms of law and rais[ing]

problems of international law . . . are by their very nature susceptible of a reply based on law

(…) [and] appear (…) to be questions of a legal character”46 In order to form a reply for a

legal question, the Court must examine the existing rules and principles, interpret and apply

them to the facts of the case.47 However, a question may also have a political aspect to it.

According to the Nuclear Weapons case political nature of the question does not

disqualify it as a legal question nor the political reasons behind the request for the

advisory opinion or the possible political effect the opinion given.48If it deems necessary

42 Ibid. 43 Ibid. 44 Ibid. 45 Shaw, Malcolm N. “International Law”, 6th Edition, Cambridge University Press 2008 46 Western Sahara, Advisory Opinion, I.8C.J. Reports 1975, p. 18, para. 15 47 International Court of Justice, 'Summary of LEGALITY OF THE USE BY A. STATE OF NUCLEAR WEAPONS IN ARMED CONFLICT Advisory Opinion' (icj-cij.org 1996) <http://www.icj-cij.org/docket/files/93/14167.pdf> accessed 29 November 2013 48 Ibid,

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the Court can also “broaden, interpret or even reformulate the questions put” if the

question lacks clarity, as its primary role is to apply the principles of international law

to cases.49 Whether the question isvague or not, is irrelevant to this process.50Lastly, the

effects of the advisory opinions should be mentioned. Advisory opinions do not have any

legal binding effect but are very influential in the political arena. The Court has rendered

many significant advisory opinions which are addressed and used as a source of international

law by politicians, academics and NGOs.

“Although without binding effect, the advisory opinions of the Court nevertheless carry

great legal weight and moral authority. They are often an instrument of preventive

diplomacy and have peace-keeping virtues. Advisory opinions also, in their way, contribute

to the elucidation and development of international law and thereby to the strengthening of

peaceful relations between States.” (International Court of Justice, Advisory

Jurisdiction)51

B. HISTORY OF ‘HUMANITARIAN INTERVENTION’ AND USE OF FORCE

“But the wise man, they say, will wage just wars.” (Augustine 427: XIX,

7 [1984:861-862])52

The origin of ‘humanitarian intervention’ has emerged from the tension between the belief in

the justice of a war waged against an immoral enemy and the principle of non-intervention as

a corollary to sovereignty.53

From the Roman times to the early Christians,54 the idea of “just war” (bellum justum) is

relatively old. The just and holy wars of mid-millennia which had the purposes of ending

activities such as cannibalism and human sacrifice and spreading Christianity, later on

evolved to purposes like putting an end to atheism and sexual immorality.55In time situations

49 The Construction of the Wall case, ICJ Reports, 2004, pp. 136, 153-4 and 160 50 Ibid. 51 International Court of Justice, 'Advisory Jurisdiction' (icj-cij.org ) <http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2> accessed 30 November 2013 52 Fixdal, Mona and Smith, Dan “Humanitarian Intervention and Just War” published Wiley on behalf of The International Studies Association 53 Chesterman, Simon “Just War or Just Peace? Humanitarian Intervention and International Law” (Oxford Press, 2001). 54 Massingham, Eva “Military intervention for humanitarian purposes: does the Responsibility to Protect doctrine advance the legality of the use of force for humanitarian ends?” International Review of the Red Cross, V. 91 Nmb. 876 December 2009 55 Ibid.

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arose when bothpartiesto aconflict were Christians. The object and justice of war was

questioned then and there.56 The attempts to prevent war altogether started to seem like a

necessity.57 Francisco de Vitoria, the infamous Spanish writer and lawyer wrote in his book

De Indis De Jure Belli (1532):

“1. Christians may serve in war and make war....12. The personal glory, or other advantage,

of a prince is not a just cause of war. 13. Wrong done is the sole and only just cause for

making war. 14. Not every kind and degree of wrong suffices for making war....21. The

justice of a war must be most thoroughly and carefully examined.”58

Later on, in the 17th century, the Dutch political theorist, philosopher and juristHugo Grotius

examined the reasoning of war, and after considering the violence of the religious conflicts in

his lifetime, he disregarded theological reasons to declare war59 and listed three reasons that

may deem a war just:“defence of person, protection of property and punishments for wrong

doing”.60However, the support for the concept of ‘just war’ later declinedwith the

acceptancewith the Peace of Westphalia 1648.Thereon every state was accepted as equalto

oneanother.61As a consequence two different ideas of what was just could not be conflicted

by each other.62

In a wider scope from just war to war, there were no restrictions to the right of war attributed

to the States;63 the principles of non-intervention and prohibition against the use of force are

new ones, starting from the dawn of the 20th century.

The international community, in the aftermath of the World War I and loss of life in that

magnitude, took collective security measures and drafted the Covenant of the League of

Nations in June 1919.64

The Covenant did not have an explicit prohibition against the use of force; however did entail

procedural constraints before resorting to war.65Article 10 of the Covenant states: “The

56 Shaw, Malcolm N. “International Law”, 6th Edition, Cambridge University Press 2008 57 Ibid 58 de Vitoaria, Francisco, “De Indis De Jure Belli”, Part 3 - The Second Relectio Of The Reverend Father, Brother Franciscus De Victoria, On The Indians, Or On The Law Of War Made By The Spaniards On The Barbarians <<http://en.wikisource.org/wiki/De_Indis_De_Jure_Belli/Part_3>> accessed August 29, 2013 59 Opt. Cit. Shaw, Malcolm N. “International Law”, 6th Edition, Cambridge University Press 2008 60 Grotius, Hugo “De Jure Belli ac Pacis” (On the Law of War and Peace), Translated by A. C. Campbell London, 1814 61 Opt. Cit. Shaw, Malcolm N. “International Law”, 6th Edition, Cambridge University Press 2008 62 Ibid. 63Opt. Cite. Shaw, Malcolm N. “International Law”, 6th Edition, Cambridge University Press 2008 64 Ibid.

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Members of the League undertake to respect and preserve as against external aggression the

territorial integrity and existing political independence of all Members of the League. In case

of any such aggression or in case of any threat or danger of such aggression the Council

shall advise upon the means by which this obligation shall be fulfilled.”66 The wording of the

Article -undertake to respect and preserve- doesnot make war an illegal concept in absolute.

As a consequence, the ineffectiveness of the Covenant caused the League to fail in its own

capacity to prevent the World War II.

The Kellogg-Briand Pact of 1928 is the first document explicitly outlawing war; the notion

was welcomed by States after theWorld War I:the Pact was initially signed by 15 States

which consisted of France, the United States, the United Kingdom, Ireland, Canada,

Australia, New Zealand, South Africa, India, Belgium, Poland, Czechoslovakia, Germany,

Italy and Japan.67 Forty-seven more states followed.68The system which emerged had four

elements:

The obligation not to resort to war to solve international controversies;

The obligation to settle disputes exclusively by peaceful means;69

The reservation of the right to self-defence including collective self-defence;

The reservation of the obligations of the League of Nations Covenant.70

The Pact like the current Charter of the United Nations allowed the right of self-defence71 and

brought no enforcement mechanism that might have a deterring effect.72 Prepared in good

faith that it would be effective, the Pact lacked several key points and alongside the Covenant

of the League of Nations, failed to prevent the World War II.73

65 Ibid. 66 Article 10, Covenant of the League of Nations, 26 June 1919, <<http://avalon.law.yale.edu/20th_century/leagcov.asp>> accessed August 27, 2013 67 US Department of State - Office of the Historian, 'The Kellogg-Briand Pact, 1928' (http://history.state.gov/ ) <http://history.state.gov/milestones/1921-1936/kellogg> accessed 30 November 2013 68 Ibid. 69 "Kellogg-Briand Pact 1928". 1928. paper presented at Treaty between the United States and other Powers providing for the renunciation of war as an instrument of national policy, Paris, August 27. 70 Dorn, A. 2008. THE LEAGUE COVENANT AND THE UN CHARTER: A SIDE-BY-SIDE (FULL TEXT) COMPARISON. [e-book] Royal Military College of Canada. http://www.walterdorn.org/pdf/UNCharter-LeagueCovenant-Comparison_Dorn.pdf [Accessed: 7 Nov 2013]. 71 US Department of State - Office of the Historian, 'The Kellogg-Briand Pact, 1928' (http://history.state.gov/ ) <http://history.state.gov/milestones/1921-1936/kellogg> accessed 30 November 2013 72 Ibid. 73 Office of the Historian - Milestones - 1921-1936 - The Kellogg-Briand Pact , US Department of State

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International Law after the World War II, Rise of the United Nations and Human Rights

and Humanitarian Law

In September 1939, the Third Reich invaded Poland and initiated the World War II which

lasted 6 years.74It ended up being the most violent military conflict in history,75 not only

because of death toll on the field but because of the civilian deaths and deaths relating to the

Holocaust which is an estimation of 6 million people.76Overall the number of civilian deaths

is around an estimation of 25 million.77

As the war approached its end, the Allies denied the idea of restoring the League of Nations;

a new organisation for the new era was preferred.78 The United Nations was founded in 1945.

The new organisation inherited many of its predecessor’s practice butthe Charter had

additional clauses in relation to prohibiting use of force and the threat to use force, with the

primary goal of bolstering international peace and preventing conflict.79

“Article 2(3): All Members shall settle their international disputes by peaceful means in such

a manner that international peace and security, and justice, are not endangered”(United

Nations Charter 1945)

The Security Council, even today, keeps its position as the primary body responsible for

international peace and security.80

“In order to ensure prompt and effective action by the United Nations, its Members confer on

the Security Council primary responsibility for the maintenance of international peace and

security, and agree that in carrying out its duties under this responsibility the Security

Council acts on their behalf.”Article 24(1) – United Nations Charter

In the aftermath of the World War II, the human rights law leaped forward; from Convention

On The Prevention And Punishment Of The Crime Of Genocide (1948),the Universal

Declaration of Human Rights (1948), Convention against Torture and Other Cruel,

74 World War Two: Summary Outline of Key Events By Bruce Robinson <<http://www.bbc.co.uk/history/worldwars/wwtwo/ww2_summary_01.shtml>> 75 National World War II Museum <<http://www.nationalww2museum.org/learn/education/for-students/ww2-history/ww2-by-the-numbers/world-wide-deaths.html>> Accessed August 30, 2013 76 Ibid. 77 Ibid. 78 Opt. Cite. 78 World War Two: Summary Outline of Key Events By Bruce Robinson <<http://www.bbc.co.uk/history/worldwars/wwtwo/ww2_summary_01.shtml>> 79 Townshend, Charles The League of Nations and the United Nations <http://www.bbc.co.uk/history/worldwars/wwone/league_nations_01.shtml> Accessed August 30, 2013 80 Ibid.

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Inhuman or Degrading Treatment or Punishment (1948)to the International Covenant

On Civil And Political Rights (1966) and the International Covenant On Economic,

Social And Cultural Rights (1966) international law rapidly progressed.81In addition to

these developments, regional human rights treaties were also signed, such as theEuropean

Convention of Human Rights (1953), American Convention on Human Rights (1969) or

the African Charter on Human and Peoples' Rights (1981).

After the World War II, not only the laws governing peace time started developing; but in

direct result of the war crimes committed by both parties, a great importance was given to

developing the law of war -international humanitarian law- which was, at that point in time,

sourced itself from the HagueConventions of 1899 and 1907.82 In 1949 a grand diplomatic

conference was convened in Geneva, the four Geneva Conventions were drafted. Post-World

War I versions of the Conventions I and II were mended and replaced with the 1949 versions:

Geneva Convention I For The Amelioration Of The Condition Of The Wounded

And Sick In Armed Forces In The Field

Geneva Convention II for the Amelioration of the Condition of Wounded, Sick

and Shipwrecked Members of Armed Forces at Sea

Geneva Convention III on relative to the Treatment of Prisoners of War

Geneva Convention IV relative to the Protection of Civilian Persons in Time of

War

The Geneva Conventions are signed by all the States, and the main principles put forth in the

conventions are binding on every State because of their customary status.83

“In addition to the provisions which shall be implemented in peacetime, the present

Convention shall apply to all cases of declared war or of any other armed conflict which

may arise between two or more of the High Contracting Parties, even if the state of war is

not recognized by one of them.” Article 2Geneva Convention I

Later on, the law of war progressed further with the Additional Protocols of 1977, which

brought a wider scope of protection in a more categorized manner - international and non-

81 Opt. Cit. Shaw, Malcolm N. “International Law”, 6th Edition, Cambridge University Press 2008 82 Ibid. 83 Kalshoven, Frits and Zegveld, Liesbeth “Constraints on the Waging of War” 4th Edition, Cambridge University Press 2011

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international- to smaller number of ratifications than the original protocols.84 Additional

Protocol II, as a first, regulated what referred as an “internal armed conflict”. Although

setting a high threshold for what can be qualified as a non-international armed conflict,85 it is

an important document due to the fact that modern wars commonly occur not between states

but in between people and their governments.86

In conclusion, the development in law following the atrocities of the World War IInot only

has the intention of stopping another world war but regulating warfare and promoting the

general well-being of the human with the scope and the widespread of the rights given. These

will be further explained in the chapter:Sources of Law.

C. CASE STUDIES

In order to fully apprehend the legal status of interventions made in order to end human

suffering, the notion should be examined as to its in practice.To achieve this,the four

following case studies where military action was taken due to an internal political conflict

causing violations of human rights and humanitarian law were selected: Rwandan Genocide

of 1994, Humanitarian Crisis in Darfur(Sudan), North Atlantic Treaty Organization’s

(NATO) intervention in Kosovo and lastly the intervention in Libya due course of the Libyan

Civil war of 2011. In each one of these cases one specific aspect of ‘interventions’will be

highlighted. For Rwandait is the question of genocide and the moral duty of interfering, for

Darfur the political aspects of such interventions, for Kosovo the question of authorization of

the Security Council and legality, and for Libya the application of the Responsibility to

Protect doctrine which will be explained in detail below.

VI. Rwanda 1994: The Question Of Genocide And When It Was Failed To Act

“If we'd gone in sooner, I believe we could have saved at least a third of

the lives that were lost...it had an enduring impact on me.” –Bill Clinton

on Rwanda, former President of the United States of America87

84 Ibid. 85 Ibid. 86 Ibid. 87 Kiran Moodley, 'Bill Clinton: we could have saved 300,000 lives in Rwanda' (CNBC.com 2013) <http://www.cnbc.com/id/100546207> accessed 15 September 2013

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The unwillingness of the United Nations to respond, the urgency and need for such

interventions in the face of highest of crimes, genocide is highlighted in this chapter, rather

than the legality of the intervention. This is due to the fact that the both the presence of the

peacekeeping troops and the French intervention were authorized by the Security Council.

Rwandan history for the past century is filled with ethnic conflicts;88 however, in April 1994,

the Hutu militia, after the death of the President in a plane crash (April 6), started an ethnic

cleansing and massacring of the Tutsi (April 7).89

The day after the massacre started, a group of Belgian soldiers were murdered brutally

leading to the withdrawal of the existing 2.500 United Nations peace-keeping troops.90

Following this, French and American civilians were flown out of the country immediately.91

The first Security Council resolution addressing the matter, Resolution 909(adopted April 5,

unanimously) did not mention genocide.92 The Resolution, however, extended the mandate of

the forces already stationed in Rwanda.93

Following Resolution 909, Resolution 912 (adopted April 21, unanimously) askedfor the

immediate cease-fire and prevention of further escalation of the humanitarian crisis. On June

22, the Security Council authorised the French government to intervene.94 The massacre

continued in some parts of the country until the Rwandan Patriotic Front95 took control over

the entire country(July 4).

88 Outreach Programme on the Rwandan Genocide and the United Nations, An Overview, <http://www.un.org/en/preventgenocide/rwanda/education/rwandagenocide.shtml> Accessed September 15, 2013 89 Ibid. 90 BBC News, UN admits Rwanda genocide failure, <http://news.bbc.co.uk/2/hi/africa/714025.stm> Accessed September 15, 2013 91 BBC News, Timeline: 100 days of genocide, <http://news.bbc.co.uk/2/hi/africa/3580247.stm> Accessed September 15, 2013 92UN Security Council, Security Council Resolution S/RES/909 (1994) Resolution 909 (1994) Adopted by the Security Council at its 3358th meeting, on 5 April 1994, 5 April 1994, S/RES/909 (1994), available at: http://www.refworld.org/docid/3b00f13754.html [accessed 30 November 2013] 93 Article 2 of UN Security Council, Security Council Resolution S/RES/909 (1994) Resolution 909 (1994) Adopted by the Security Council at its 3358th meeting, on 5 April 1994, 5 April 1994, S/RES/909 (1994), available at: http://www.refworld.org/docid/3b00f13754.html [accessed 12 November 2013] 94 UN Security Council, Resolution 912 (1994) Adopted by the Security Council at its 3368th meeting, on 21 April 1994, 21 April 1994, S/RES/912 (1994), available at: http://www.refworld.org/docid/3b00f15f2b.html [accessed 3 December 2013] 95The Rwandan Patriotic Front ended the 1994 genocide by defeating the civilian and military authorities responsible for the killing campaign. They are the current political party ruling of Rwanda. PBS, 'Frontline/World Fellows. Rwanda - After Genocide Context' (http://www.pbs.org 2009) <http://www.pbs.org/frontlineworld/fellows/rwanda1103/context.html> accessed 30 November 2013

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The International Criminal Tribunal for Rwanda was founded by the Security Council on

November 8, 1994 in order to try those with primary responsibility for genocide and other

serious violations of humanitarian law.96

Approximately 800.000 people died over the course of 100 days during the Rwandan

Genocide97and 150.000-200.000 Tutsi women were raped.98By the time the genocide started,

there were already UN peace-keeping troops (UNAMIR) stationed in Rwanda but their

mandate was limited to overseeing a peace process prior to the plane crash of the president.

The mandate was not amended even thoughthere were warning signs present, according to

the report of the independent inquiry on the genocide in Rwanda requested by the Secretary

General of the UN.99 When the genocide started it was clear that neither facilities nor the

mandate of UNAMIR would be able to stop the atrocities, yet again no action was

taken.100Security Council’s decision to decrease the numbers of UNAMIR to a minimum

(21st of April) is heavily criticized in the report of the inquiry as: “It is a decision which the

Inquiry finds difficult to justify. The Security Council bears a responsibility for its lack of

political will to do more to stop the killing.” In addition, the Council’s hesitation to use the

word ‘genocide’ as to addressing the situation is deemed as an indication of lack of will to

act.101 The inquiry also adds “...the imperative for international action is not limited to

cases of genocide. The United Nations and its member states must also be prepared to

mobilise political will to act in the face of gross violations of human rights which have not

reached the ultimate level of genocide.”102

Overall the events in Rwanda proved the lack of a system, a system protecting people from

the brutality of government power abuse.103 In addition it also proved that the United Nations,

96 Opt. Cit. Outreach Programme on the Rwandan Genocide and the United Nations, An Overview, <http://www.un.org/en/preventgenocide/rwanda/education/rwandagenocide.shtml> Accessed September 15, 2013 97 Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda (15 December 1999) UN Doc S/1999/1257 98 Outreach Programme on the Rwandan Genocide and the United Nations, An Overview, <http://www.un.org/en/preventgenocide/rwanda/education/rwandagenocide.shtml> Accessed September 15, 2013 99 Ibid. 100 Ibid. 101 Ibid. 102 Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda (15 December 1999) UN Doc S/1999/1257 103 Opt. Cit. Outreach Programme on the Rwandan Genocide and the United Nations, An Overview, <http://www.un.org/en/preventgenocide/rwanda/education/rwandagenocide.shtml> Acccessed September 15, 2013

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reliant entirely on the financial and political support of member states, may prove ineffective

in the face of genocide if the member states are reluctant to act.104

“The capacity of the United Nations to reduce human suffering in Rwanda was severely

constrained by the unwillingness of Member States to respond to the changed circumstances

in Rwanda by strengthening UNAMIR’s mandate and contributing additional troops.”105

If military intervention on humanitarian grounds is illegal, can the current United

Nations system and structure prevent another Rwandan Genocide and the breaches of

customary humanitarian law and jus cogens norms about genocide?

Furthermore is genocide -which is a jus cogens norm- the only breach of humanitarian

law which may allow an intervention on humanitarian grounds to be made or can

smaller crimes and atrocities build grounds for an intervention?

VII. Kosovo 1999: The Question of Authorization, the Security Council and

‘Humanitarian Intervention’

d. Introduction

The humanitarian crisis of 1999 in Kosovo resulted with a unilateral intervention of the North

Atlantic Treaty Organization, which was not authorized by the Security Council to do so. In

this Chapter, the Security Council’s role as the body primarily responsible for international

peace and security and the legality of ‘humanitarian interventions’ without the Council’s

authorization will be questioned.

e. Historical Timeline Of An Intervention

In 1998 the Kosovo region - a region predominantly populated by ethnic Albanians- sought

independence from the Serbian authority. The Kosovo Liberation Army (KLA) went into

uprising against the Serbian government which responded in a violent manner.106 During

their campaign, the Serbian authorities targeted civilians, forcing them to flee from their

homes.107 The text cited below, taken from the report of Human Rights Watch on the matter,

shows the violence increasing in the early parts of the conflict:

104 Ibid. 105 Ibid. 106 ICTY, The Conflict, <http://www.icty.org/sid/322> Accessed September 15, 2013 107 Ibid.

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“On February 28 and March 1, the police mounted a major attack on two other villages in

Drenica: Cirez and Likošane. In both cases, special police forces attacked without warning,

firing indiscriminately at women, children and other non-combatants. Helicopters and

military vehicles sprayed village rooftops with gunfire before police forces entered the village

on foot, firing into private homes. A pregnant woman, Rukia Nebihi, was shot in the face, and

four brothers from one family were killed, apparently while in police custody. Ten members

of the Ahmeti family were summarily executed by the police...

These events in Drenica, in which eighty-three people died, including at least twenty-four

women and children, were the turning point in the Kosovo crisis. Although it is unknown

precisely how large the KLA was up to that point and what its exact structure was, there is no

question that the brutal and indiscriminate attacks on women and children greatly

radicalized the ethnic Albanian population and swelled the ranks of the KLA.”108

In response, the Security Council, on 31st March 1998, adopted the resolution 1160 with 14

votes in favour and one abstention (People’s Republic of China, claiming it is an internal

matter).109 The Council acted under Chapter 7 of the UN Charter, yet the resolution did not

formalize how the situation affected international peace and security,110 it basically

condemned the use of excessive force against civilians and peaceful demonstrators.111

However; the resolution did not create a decrease in the violence. On the contrary; following

Resolution 1160, the situation worsened, resulting with a number of 230.000 refugees and

displaced persons.112 The report prepared by the Secretary General Pursuant to the Security

Council Resolution 1160, shows more recognition of the possibility that the situation, if

continued, would pose a threat to international peace and security:

“Advancing humanitarian disaster can foster destabilization in the region of conflict.

Furthermore, the lack of credibility of the threat to use international forces caused the

Federal Republic of Yugoslavia’s continuation of the military offensive resulting in egregious

humanitarian abuses in Kosovo.”113

108 Human Rights Watch, 'VIOLATIONS OF THE RULES OF WAR BY GOVERNMENT FORCES' (hrw.org ) <http://www.hrw.org/legacy/reports98/kosovo/Kos9810-04.htm#P302_28514> accessed 27 November 2011 109 Greenwood, Christopher, “Humanitarian intervention: the case of Kosovo”, London School of Economics Research Online, November 2008 110 Ibid. 111 United Nations Security Council Resolution S/RES/1160, 31 March 1998 112 Report Of The Secretary-General Prepared Pursuant To Resolution 1160 (1998) Of The Security Council 113 Ibid.

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On September 23rd 1998, the Security Council adopted another resolution, Resolution 1199.

This time the Council recognized the situation as “a threat to peace and security in the

region” placing the situation under the scope of Chapter VII of the United Nations Charter.114

All of the members of the Council voted in favour except People’s Republic of China who

abstained. The resolution includes the below-mentioned operative clauses:

“Demands further that the Federal Republic of Yugoslavia, in addition to the measures

called for under resolution 1160 (1998), implement immediately the following concrete

measures towards achieving a political solution to the situation in Kosovo as contained in the

Contact Group statement of 12 June 1998:

(a) cease all action by the security forces affecting the civilian population and order the

withdrawal of security units used for civilian repression...

(c) facilitate, in agreement with the UNHCR and the International Committee of the Red

Cross (ICRC), the safe return of refugees and displaced persons to their homes and allow

free an unimpeded access for humanitarian organizations and supplies to Kosovo;

(d) make rapid progress to a clear timetable (...) with the Kosovo Albanian community called

for in Resolution 1160 (1998), with the aim of agreeing confidence-building measures and

finding a political solution to the problems of Kosovo”

Resolution 1199 accepted the situation as a threat to international peace and security,

deeming the situation as officially under the scope of the Chapter VII of the United Nations.

This resolution was binding on both parties of the conflict since it was drafted under Chapter

VII of the UN Charter. However, the violence did not decrease, just three days after the

Security Council’s resolution the below-mentioned violence took place:

“26 September 1998, Gornje Obrinje

..Eighteen members of one family killed by Yugoslav forces. The victims were reportedly shot

at close range and their bodies mutilated. Sixteen of the victims were women, children or

elderly people. In nearby Golubovac, 13 men were also reportedly summarily executed.

114 UN Security Council, The situation in Kosovo, Resolution 1199 (1998) Adopted by the Security Council at its 3930th meeting, on 23 September 1998, 23 September 1998, S/RES/1199 (1998), available at: http://www.refworld.org/docid/3b00f14f40.html [accessed 27 November 2013]

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According to the sole survivor, they were laid face down and beaten before being shot in

turn.”115

Following the atrocities, in October 1998, North Atlantic Treaty Organization’s (NATO)

possible air strikes were being discussed.116However, it did not take place because of the

ongoing negotiations between the United States of America,Milosevic government, the KLA

and other heads of ethnic groups.117 This led to a temporary ceasefire which enabled the

refugees and displaced persons to find shelter during winter.118 Meanwhile, the Security

Council passed another resolution on 24th October 1998, adopted under Chapter VII with 13

votes in favour and 2 abstentions:People’s Republic of China and Russian Federation.

“Endorses and supports the agreements signed in Belgrade on 16 October 1998 between the

Federal Republic of Yugoslavia and the OSCE, and on 15 October 1998 between the Federal

Republic of Yugoslavia and NATO, concerning the verification of compliance by the Federal

Republic of Yugoslavia and all others concerned in Kosovo with the requirements of its

resolution 1199 (1998), and demands the full and prompt implementation of these

agreements by the Federal Republic of Yugoslavia;”119

Following these, 2.000 unarmed OSCE (Organization for Security and Co-operation in

Europe) personnel were deployed in the area. However,the ceasefire broke down in the face

of these killings in Racak:“15 January 1999: Forty-five ethnic Albanians killed. The victims

included three women, a 12-year-old child and several elderly men. Many of the victims had

reportedly been shot through the head at close range and some showed signs of

mutilation.”120

Following the resolution and the killings in Racak, parties got together in Rambouillet,

France for negotiations. An interim treaty was on the talks between Kosovo Albanians and

Serbia; however, Yugoslavia refused.121 Moreover the Rambouillet Accord would create a

115 Amnesty International, “Document - Federal Republic Of Yugoslavia (Kosovo): After Tragedy, Justice?”, EUR 70/80/99, May 1999 116 Roberts, Adam “NATO’s Humanitarian War over Kosovo”, Survival vol.41, no. 3, Autumn 1999, pp. 102-03, The International Institute for Strategic Studies 117 Ibid. 118 Operation Allied Force <http://www.globalsecurity.org/military/ops/allied_force.htm> Accessed on September 24, 2013 119 United Nations Security Council Resolution, S/RES/1203 (1998) 24 October 1998 120 Amnesty International, “Document - Federal Republic Of Yugoslavia (Kosovo): After Tragedy, Justice?”, EUR 70/80/99, May 1999 121 García-Orrico, Débora “Kosovo”

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largely autonomous Kosovo.122In the proposal there was a clause that allowed NATO, with

its personnel and weaponry to be actively involved and have the privilege of moving freely in

land, air and territorial waters of FRY.123 The talks failed to come through as Serbian and

Russian delegations refused, Serbian side claiming it is a breach of sovereignty to have

NATO troops navigate freely in the country.124

Henry Kissinger- former Secretary of State of the United States of America and Nobel Peace

Prize laureate- said about the Accords: “The Rambouillet text, which called on Serbia to

admit NATO troops throughout Yugoslavia, was a provocation, an excuse to start bombing.

Rambouillet is not a document that an angelic Serb could have accepted. It was a terrible

diplomatic document that should never have been presented in that form.”125

The negotiations came to an end mid-March 1999. On 23rd March Secretary General of

NATO made the following statement:

“Let me be clear: NATO is not waging war against Yugoslavia...Our objective is to prevent

more human suffering and more repression and violence against the civilian population of

Kosovo... We must stop an authoritarian regime from repressing its people in Europe at the

end of the 20th century. We have a moral duty to do so. The responsibility is on our

shoulders and we will fulfil it.”126

On the 24th of March, NATO started bombing under the name Operation Allied Force.127

There was no resolution supporting or authorizing this action prior to it. 26th of March the

Security Council gathered, with a draft resolution from Russia on table which demanding an

immediate ceasefire. During the debatesSlovenian ambassador to the Council spoke in favour

of the intervention by stating: “the Security Council had the primary, but not exclusive

responsibility for the maintenance of international peace and security.”128 12 members of

the Council voted against the draft resolution.129

122 Opt. Cite Roberts, Adam “NATO’s Humanitarian War over Kosovo”, Survival vol.41, no. 3, Autumn 1999, pp. 102-03, The International Institute for Strategic Studies 123 Went, Larry “From Kosovo: The KFOR Experience”, The Command and Control Research Program (CCRP) 124 Ibid. 125 Daily Telegraph, June 28th 1999 cited in Lustig, Robin “Kosovo: Judges Speak” <http://www.bbc.co.uk/blogs/worldtonight/2010/07/kosovo_the_judges_speak.html> Accessed on September 27, 2013 126 North Atlantic Treaty Organization, Press Release (1999)040, March 23, 1999 127 Opt. Cite Roberts, Adam “NATO’s Humanitarian War over Kosovo”, Survival vol.41, no. 3, Autumn 1999, pp. 102-03, The International Institute for Strategic Studies 128 Opt.Cite García-Orrico, Débora “Kosovo” 129 Ibid.

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NATO’s bombardment lasted until 10th of June, 1999 when Security Council passed

Resolution 1244 which was passed under Chapter VII. The resolution authorized

“Establishment of an interim administration for Kosovo to be decided by the Security

Council of the United Nations to ensure conditions for a peaceful and normal life for all

inhabitants in Kosovo”130The resolution however did not condemn NATO’s action.

“The international security presence with substantial North Atlantic Treaty Organization

participation must be deployed under unified command and control and authorized to

establish a safe environment for all people in Kosovoand to facilitate the safe return to their

homes of all displaced persons andrefugees.”131 (Annex 2, Article 4)

f. Legality of the Intervention

The legality of the military intervention of NATO in Kosovo has been the subject of many

debates. The first question is whether such intervention on humanitarian grounds is legal. The

second question is whether such intervention can be made with or without the approval of the

Security Council. The second question is more specific to the topic and therefore will be

examined in detail.

The Security Council, according to the Charter of the United Nations has the primary

responsibility to maintain international peace and security. In addition at the time of NATO’s

intervention, the Security Council had already passed a resolution recognizing the violence in

Kosovo as a threat to international peace and security. Recognizing the situation under the

scope of Chapter VII of the Charter would give the primary responsibility of responding to it

to the Security Council. However the structure of the Council, especially the veto rights have

slowed or hampered the process of responding to crisis scenarios throughout its history. In

the scenario where the Security Council fails to take action, can other bodies interfere?

Article 53 of the UN Charter states that regional bodies are not authorized to do so: “no

enforcement action shall be taken under regional arrangements or by regional agencies

without the authorization of the Security Council...” As a consequence it can be said that

drafters of the Charter wanted to ensure and to protect the primary role of the Council on

maintaining international peace and security.131Nevertheless the drafters of the Charter, when

130 United Nations Security Council Resolution 1244(1999) 131 Dajena Kumbaro, 'THE KOSOVO CRISIS IN AN INTERNATIONAL LAW PERSPECTIVE: SELF-DETERMINATION, TERRITORIAL INTEGRITY AND THE NATO INTERVENTION ' (North Atlantic Treaty Organisation : Office of Information and Press 2001) <http://www.nato.int/acad/fellow/99-01/kumbaro.pdf> accessed 30 November 2013

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creating the veto powers of the permanent five members, did not anticipate how it may deem

the Council powerless in many situations.132 So the question remains whether an

authorization from the Security Council is needed to make such intervention legal?

The report prepared for NATO’s Office of Information and Pressby Dajena Kumbaro titled

“The Kosovo Crisis in an International Law Perspective: Self-Determination, Territorial

Integrity and the NATO Intervention” sheds some light on the matter:

“Those upholding the idea of the absolute monopoly of the Security Council believe that the

legal situation changes when humanitarian intervention is authorised by the Security Council

in accordance with the provisions provided in the Charter. The use of force by the UN

through the Security Council is thus supposed to have greater legitimacy than intervention by

a single State, because it represents a broader base of consensus. Others disapprove of this

monopoly held by of the Security Council, and recognise it to be a right of regional agencies

as well. Support for multilateral intervention generates from the assessment that, if an

enforcement action is authorised by a formal international process (for instance, voting in the

Security Council) with a broad base of consensus, then this action acquires legitimacy, which

it would otherwise lack if States were to intervene unilaterally. Some of the Security Council

permanent members like China and Russia and several developing countries argue that

recognition of the unilateral right to intervene would allow and encourage interference in the

internal affairs of States. However, as the advocates of unilateral intervention suggest, the

fact that decisions to that end will be made in a collective way does not mean that these will

be more legal decisions, or putting it in Walzer's terms[American political thinker, author of

‘Just and Unjust Wars’], that the war will be more just war: 'more' means more power, and

not necessarily more just.”133

Conclusion

The action taken by NATO in Kosovo, although in response to a humanitarian crisis, was not

under the scope of the UN Charter. The Charter in Article 2(4) prohibits the use of force with

132 Ibid 133 Ibid.

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two exceptions: inherent right of self-defence134 and Chapter VII action taken by the Security

Council.135

In case of Kosovo, there is no matter of self-defence since there was no aggression, threats or

use of force against a NATO member-state. Furthermore, Operation Allied Force was not

authorized by the Security Council, therefore lacks legal grounds in accordance with Chapter

VII.136 However, according to the Charter; the Security Council cannot pass resolutions if any

one of the Permanent Members, namely People’s Republic of China, United States of

America, United Kingdom, France, Russian Federation, votes against it. Therefore when a

humanitarian crisis such as Kosovo comes up, in order to take enforceable action, which does

not fall in the scope of Article 2(4) of the Charter, all Permanent Members must either vote in

favour or abstain.

It should be questioned at this point: What will occur when ethnic cleansing or a large

scale humanitarian crisis breaks out and Security Council is unable to respond? If

Security Council is unable to respond, can other international bodies intervene or do

they need a type of authorization from the Security Council? Does international law

provide basis for such an action, like NATO’s in Kosovo?

VIII. Darfur 2001: The Question of the Political Nature Of Intervention

“We must show, above all, that we mean what we say when we promise

to put the values of justice, tolerance and freedom into action across the

world. We owe that to the people of Darfur and to the memory of those

who died in Rwanda.”137Tony Blair, Former Prime-Minister of United

Kingdom of Great Britain and Northern Ireland

The events and actions taken in Darfur when humanitarian crisis was on the rise are not in the

context of a ‘humanitarian intervention’ but rather the United Nations intervening in a

situation under the scope of its Charter. However the scope of the operation and how the

134 Article 51, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 30 November 2013] 135 Chapter VII, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 30 November 2013] 136 Opt.Cite García-Orrico, Débora “Kosovo” 137<<http://www.independent.co.uk/voices/commentators/tony-blair-if-darfur-is-not-to-be-another-rwanda-we-must-act-and-now-to-avert-catastrophe-416305.html>> Accessed September 15, 2013

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response was formed is an indication of the state practice on intervening when humanitarian

crises arose.138

In March 2003, conflict arose between government forces and rebels from the Sudan

Liberation Army (SLA) and the Justice and Equality Movement (JEM). The strikes of the

Arab Janjaweed militias led to the rise of human rights violations and createdmass

movements of refugees to the borders and it was quickly recognized as “one of the worst

humanitarian crises in the world.”139 Secretary-General Kofi Annan repeatedly pointed out

the needs of the 600.000 displaced persons.140 As the attacks on Darfur intensified, the

refugee flow to the border of Chad grew immensely, so did the reports of rapes, murders and

overall targeting of the civilian population.141

However, the actions taken by the Security Council and the UN as a whole was not to

intervene and prevent the murders, it was to help those who escaped it;142 this is an indication

of the lack of political will regarding Darfur. After much pressure from the international

community and press, in July 2004 -17 months after the initiation of the conflict- the Security

Council called the government to direct the Janjaweed to drop their weapons.143 The situation

was recognized as genocide by the United States of America later that year.144 In 2005, the

leaders of the Janjaweed were referred to the International Criminal Court.145The violence

kept escalating until the point where UN peace-keeping mission was made with the

cooperation of the African Union.

The Situation in Darfur, alongside the Rwandan genocide, proves the international

community the political nature of intervention and international criminal justice.146

Can the responsibility to protect doctrine, indeed create a clear-cut legal mechanism in

order to respond to atrocious crimes such as genocide or would the political nature of

international law prevent such direct and clear cut application?

138 Mills, Kurt “Which Responsibility in Darfur?” Peace Review: A Journal of Social Justice, 20:175–183 139 The UN Responds to the Crisis in Darfur: A Timeline <http://www.un.org/news/dh/dev/scripts/darfur_formatted.htm> accessed September 15, 2013 140 Ibid. 141 Ibid. 142 Opt. Cit. Mills, Kurt “Which Responsibility in Darfur?” Peace Review: A Journal of Social Justice, 20:175–183 143 Ibid. 144 Ibid. 145Ibid. 146Ibid.

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IX. Libya 2011: The Question of Applicability of the ’Responsibility to Protect’

An international military intervention was executed in Libya in 2011 in response to the on-

going civil war.147 The rebellion against the long-standing and single-handed ruling of

Colonel Muammar Gaddafi started in February 2011, inspired by the Tunisian uprising and

the wave of pro-democracy protests in the North African/Mediterranean region -commonly

known as the Arab Spring-.148 The uprisings later evolved into a civil war when government

forces controlled by Gaddafi retorted with force to the rebels.149 Following two months of

uncertainty, the Security Council authorized international actors to conduct military

interventions in order to protect civilians in its Resolution 1973.150

Libya is the most recent exampleof a Security Council-authorized military intervention to a

State, made by other States/State groups in order to prevent human suffering and violations of

human rights and humanitarian law.151(In addition, the intervention of Libya was conducted

after the Responsibility to Protect (examined below) doctrine which was created in 2005 and

is explained in detail below.)

b. Facts: Before And After Intervention

In February 2011, protests started in Benghazi after Fethi Tarbel, a human rights activist was

detained by the government.152A week later Gaddafi made a statement vowing to “die a

martyr”153 as the crackdown on the protestors increased. By the end of the month the number

of deaths reached an estimated 1000.154

147Nytimes.com. 2013. Events in Libya: A Chronology. [online] Available at: http://www.nytimes.com/2011/08/29/timestopics/libyatimeline.html?pagewanted=all&_r=0 [Accessed: 13 Nov 2013]. 148 Zifcak, S. 2012. REFLECTIONS ON A DECADE OF INTERNATIONAL LAW: INTERNATIONAL LEGAL THEORY: SNAPSHOTS FROM A DECADE OF INTERNATIONAL LEGAL LIFE: THE RESPONSIBILITY TO PROTECT AFTER LIBYA AND SYRIA. Melbourne J. of Int'l Law, 13 pp. 59--569. 149 Ibid. 150 Siskind, J. 2013. Humanitarian Intervention, R2P and the case of Libya. in Keynote Address Presented to International Relations Society Annual Conference [speech] Canadian Lawyers for International Human Rights, March 2011. 151 Opt. Cite. Zifcak, S. 2012. REFLECTIONS ON A DECADE OF INTERNATIONAL LAW: INTERNATIONAL LEGAL THEORY: SNAPSHOTS FROM A DECADE OF INTERNATIONAL LEGAL LIFE: THE RESPONSIBILITY TO PROTECT AFTER LIBYA AND SYRIA. Melbourne J. of Int'l Law, 13 pp. 59--569. 152 Reuters. 2013. TIMELINE-Libya's uprising against Muammar Gaddafi. [online] Available at: http://www.reuters.com/article/2011/03/30/libya-idUSLDE72K0KK20110330 [Accessed: 13 Nov 2013]. 153 Weinberg, A. 2011. Libya: The timeline. [online] Available at: http://firstread.nbcnews.com/_news/2011/03/24/6337732-libya-the-timeline [Accessed: 13 Nov 2013]. 154 UN News Service Section. 2013. UN News - Ban calls on Security Council to consider immediate steps to stop killings in Libya. [online] Available at:

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The Secretary-General of the UN, Ban-Ki Moon called the Security Council for session by

stating “When a State is manifestly failing to protect its population from serious international

crimes, the international community has the responsibility to step in and take protective

action in a collective, timely and decisive manner..”155

On February 26th the Security Council, unanimously voted in favour of Resolution

1970.156The resolution, whilst condemning the humanitarian crisis, entailed four measures in

accordance with Chapter VII of the United Nations Charter: an arms embargo,157freezing the

assets of the Gaddafi family,158 a travel ban159 and referring the situation to the International

Criminal Court:160

“Deploring the gross and systematic violation of human rights, including therepression of

peaceful demonstrators, expressing deep concern at the deaths ofcivilians, and rejecting

unequivocally the incitement to hostility and violenceagainst the civilian population made

from the highest level of the Libyan government...Recalling the Libyan authorities’

responsibility to protect its population...”161(Security Council Resolution S/RES/1970

(2011))

The following days the European Union initiated more sanctions within itself162 and the

United Nations General Assembly suspended Libya’s membership to the Human Rights

Council.163 Moreover the Arab League called for the creation of a no-fly zone over Libya by

the Security Council.164 In addition to the alienation of the Gaddafi government from the

international arena, a national council formed in Benghazi declared itself the sole

http://www.un.org/apps/news/story.asp/story.asp?NewsID=37628&Cr=Libya&Cr1=#.UoNz0vnI1GI [Accessed: 13 Nov 2013]. 155 Ibid. 156 UN News Service Section. 2013. UN News - Security Council imposes sanctions on Libyan authorities in bid to stem violent repression. [online] Available at: http://www.un.org/apps/news/story.asp/story.asp?NewsID=37633&Cr=Libya&Cr1=#.UoNzePnI1GI [Accessed: 13 Nov 2013]. 157 Ibid. 158 Ibid. 159 Ibid 160 Ibid. 161 Resolution 1970. 2011. Resolution passed by United Nations Security Council, New York, 26 February. United Nations, p. S/RES/1970 (2011). 162 Opt. Cite. 162 Reuters. 2013. TIMELINE-Libya's uprising against Muammar Gaddafi. [online] Available at: http://www.reuters.com/article/2011/03/30/libya-idUSLDE72K0KK20110330 [Accessed: 13 Nov 2013]. 163 Weinberg, A. 2011. Libya: The timeline. [online] Available at: http://firstread.nbcnews.com/_news/2011/03/24/6337732-libya-the-timeline [Accessed: 13 Nov 2013]. 164 Opt. Cite. Zifcak, S. 2012. REFLECTIONS ON A DECADE OF INTERNATIONAL LAW: INTERNATIONAL LEGAL THEORY: SNAPSHOTS FROM A DECADE OF INTERNATIONAL LEGAL LIFE: THE RESPONSIBILITY TO PROTECT AFTER LIBYA AND SYRIA. Melbourne J. of Int'l Law, 13 pp. 59--569.

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representative of the Libyan people,165 creating further questions about the legitimacy of

governmental power.

On the 17th of March, in response to the ineffective results of the Resolution 1970, the

Security Council passed Resolution 1973.166

The Resolution 1973 needs to be examined in detail because of its significance in

development of the responsibility to protect doctrine.

The resolution starts by pointing out that the obligation to stopthe violations of humanitarian

law may which wasallocated to the Libyan authorities was not carried out and the violations

may have reached to the level of “crimes against humanity”:167

“Reiterating the responsibility of the Libyan authorities to protect the Libyan

population...Condemning the gross and systematic violation of human rights, including

arbitrary detentions, enforced disappearances, torture and summary

executions...Considering that the widespread and systematic attacks currently taking place in

the Libyan Arab Jamahiriya against the civilian population may amount to crimes against

humanity...”168

Resolution 1973 increased the measures taken in Resolution 1970, such as the asset freezing

and the travel ban.169 However, the most significant clauses were the ones related to the

military intervention. The military intervention was set to have a wide scope by the resolution

since it entailed “all necessary measures”:170

165 Opt. Cite. Reuters. 2013. TIMELINE-Libya's uprising against Muammar Gaddafi. [online] Available at: http://www.reuters.com/article/2011/03/30/libya-idUSLDE72K0KK20110330 [Accessed: 13 Nov 2013]. 166 Weinberg, A. 2011. Libya: The timeline. [online] Available at: http://firstread.nbcnews.com/_news/2011/03/24/6337732-libya-the-timeline [Accessed: 13 Nov 2013]. 167 Opt. Cite. Zifcak, S. 2012. REFLECTIONS ON A DECADE OF INTERNATIONAL LAW: INTERNATIONAL LEGAL THEORY: SNAPSHOTS FROM A DECADE OF INTERNATIONAL LEGAL LIFE: THE RESPONSIBILITY TO PROTECT AFTER LIBYA AND SYRIA. Melbourne J. of Int'l Law, 13 pp. 59--569. 168 Resolution 1973. 2011. Resolution passed by United Nations Security Council, New York, 17 March. United Nations, p. S/RES/1973 (2011) 169Opt. Cite. Zifcak, S. 2012. REFLECTIONS ON A DECADE OF INTERNATIONAL LAW: INTERNATIONAL LEGAL THEORY: SNAPSHOTS FROM A DECADE OF INTERNATIONAL LEGAL LIFE: THE RESPONSIBILITY TO PROTECT AFTER LIBYA AND SYRIA. Melbourne J. of Int'l Law, 13 pp. 59--569. 170 Opt. Cite. Resolution 1973. 2011. Resolution passed by United Nations Security Council, New York, 17 March. United Nations, p. S/RES/1973 (2011)

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“4. Authorizes Member States...acting nationally or through regional organizations or

arrangements...to take all necessary measures... to protect civilians and civilian populated

areas under threat of attack in the Libyan Arab Jamahiriya...”171

Nevertheless, the resolution brings a restriction to possible actions to-be-taken by stating

“while excluding a foreign occupation force of any form on any part of Libyan

territory”.172173 Additionally the resolution gave in enforcement rights to member states with

regards to the no-fly zone:174

“Authorizes Member States..., acting nationally or through regional organizations or

arrangements, to take all necessary measures to enforce compliance with the ban on

flights”175

The Resolution, first of its kind to authorize member states to intervene in a wide scope176

was passed with 10 votes in favour and 5 votes abstaining.177 According to the report of the

Department of Public Information of the UN, the Resolution divided the house, and the

countries abstaining expressed doubts about the vagueness of the wording of the

resolution:“The representatives of China and the Russian Federation, explaining their

abstentions, prioritized peaceful means of resolving the conflict and said that many questions

had not been answered in regard to provisions of the resolution, including, as the Russian

representative put it, how and by whom the measures would be enforced and what the

limits of the engagement would be. He said the resolution included a sorely needed

ceasefire, which he had called for earlier. China had not blocked the action with a negative

vote in consideration of the wishes of the Arab League and the African Union, its

171 Ibid. 172 Resolution 1973. 2011. Resolution passed by United Nations Security Council, New York, 17 March. United Nations, p. S/RES/1973 (2011) 173 Opt. Cite. Zifcak, S. 2012. REFLECTIONS ON A DECADE OF INTERNATIONAL LAW: INTERNATIONAL LEGAL THEORY: SNAPSHOTS FROM A DECADE OF INTERNATIONAL LEGAL LIFE: THE RESPONSIBILITY TO PROTECT AFTER LIBYA AND SYRIA. Melbourne J. of Int'l Law, 13 pp. 59--569. 174 Ibid. 175 Resolution 1973. 2011. Resolution passed by United Nations Security Council, New York, 17 March. United Nations, p. S/RES/1973 (2011) 176 Opt. Cite. Zifcak, S. 2012. REFLECTIONS ON A DECADE OF INTERNATIONAL LAW: INTERNATIONAL LEGAL THEORY: SNAPSHOTS FROM A DECADE OF INTERNATIONAL LEGAL LIFE: THE RESPONSIBILITY TO PROTECT AFTER LIBYA AND SYRIA. Melbourne J. of Int'l Law, 13 pp. 59--569. 177 "SECURITY COUNCIL APPROVES ‘NO-FLY ZONE’ OVER LIBYA, AUTHORIZING ‘ALL NECESSARY MEASURES’ TO PROTECT CIVILIANS, BY VOTE OF 10 IN FAVOUR WITH 5 ABSTENTIONS". 2011. Paper presented at Security Council 6498th Meeting (Night), United Nations, 17 March. New York: Department of Public Information • News and Media Division.

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representative said. The delegations of India, Germany and Brazil, having also abstained,

equally stressed the need for peaceful resolution of the conflict and warned against

unintended consequences of armed intervention.”178

Two days after the adoption of Resolution 1973, first air strikes on Libyan territory were

conducted by the French military.179 By 31st of March NATO had taken over the command of

the military intervention.180 NATO’s operations lasted the following months, until the last

strong-hold of Col. Gaddafi - his hometown Sirte- fell October 20th as the Colonel himself

was captured and killed.181 On October 31st NATO’s operation in Libya was concluded.182

To conclude, the Libyan civil war and international community’s response was the first time

the Responsibility to Protect doctrine was tested.

Can NATO’s intervention in Libya be a precedent for future interventions? Was the

responsibility to protect criteria applied thoroughly? Was it timely, proportionate and

necessary? Can the international community interfere in all cases of civil wars? Is the

threshold of human rights abuses in Libya enough for the Security Council to authorize

such intervention or should the threshold to breach sovereignty be higher, such as cases

of genocide?

X. Conclusion to Case Studies

Overall these four case studies were given to highlight the case-by-case nature and

implementation of rules of international law. It is significant that the applicable law explained

in the following chapters is understood and be traced back to be applied retrospectively to the

case studies, regardless of the political situation of the time when they occurred. If that would

be the case, if there was a pre-designated unison response -deprived from the existing sources

of international law- to such atrocities how different would the events of Rwanda, Kosovo

and Darfur would be?

178Ibid. 179BBC News. 2011. French plane opens fire in Libya. [online] Available at: http://www.bbc.co.uk/news/world-africa-12795971 [Accessed: 13 Nov 2013]. 180NATO. n.d. NATO - NATO and Libya. [online] Available at: http://www.nato.int/cps/en/natolive/topics_71652.htm [Accessed: 20 Oct 2013]. 181Al Jazeera English. 2013. Battle for Libya: Key moments. [online] Available at: http://www.aljazeera.com/indepth/spotlight/libya/2011/10/20111020104244706760.html [Accessed: 20 Oct 2013]. 182Opt. Cite. NATO. n.d. NATO - NATO and Libya. [online] Available at: http://www.nato.int/cps/en/natolive/topics_71652.htm [Accessed: 20 Oct 2013].

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D. SOURCES OF LAW AVAILABLE TO THE COURT

“1. The Court, whose function is to decide in accordance with international law such

disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most

highly qualified publicists of the various nations, as subsidiary means for the determination

of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et

bono, if the parties agree thereto.”(Article 38, Statute of the International Court of Justice

Annexed to the Charter of the United Nations, 1945)

The Statute of the International Court of Justice puts forth three main sources of international

law that shall be applied when the Court is hearing a case: international conventions,

international custom and general principles of law recognized by civilized nations.183 In

addition, Article 38 encompasses subsidiary sources, such as judicial decisions and academic

opinion.184

Hence the Court exercises its jurisdiction in accordance with sources of international law as

explained in its Statute. Therefore the case relating to “an armed intervention to a state,

made by other state/state groups in response to serious breaches of Human Rights and

International Humanitarian Law”will be examined in the light of these sources. However,

other material, such as the resolutions of the General Assembly, which are not binding

because of their recommendatory nature,185 will be also explained in detail due to their

significant correlation with the case. In addition, it should be noted that a General Assembly

resolution may set out a general principle of international law, or may gain widespread

183 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 184 Ibid. 185 Article 10, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013]

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acceptance and constant application which may lead the way to the formation of custom

which will beexplained further in the Chapter: Custom.186 For instance the Universal

Declaration of Human Rights is a General Assembly resolution yet it is regarded as a

customary source of international law, through constant practice and application.187

The sources will be examined in the following chapters in the order given in the Statute and

in accordance with their relation to the case.

IV. Treaties

Vienna Convention on the Law of Treaties defines a treaty as “an international agreement

concluded between States in written form and governed by international law”.188In order to

be bound by a treaty, convention, charter, statute, pact or an act189 the consent of a state “may

be expressed by signature, exchange of instruments constituting a treaty, ratification,

acceptance, approval or accession, or by any other means if so agreed”.190

e. The Charter of the United Nations

The United Nations Charter is the founding document of the United Nations.191 It was signed

in San Francisco United Nations Conference on the International Organization in 26th of

June, 1945.192 It encompasses the main goals and fundamental values of the organization in

addition to the annexed Statute of the International Court of Justice.193The Charter, since

1945, has been signed by 144 states, with the addition of 49 initiating states; an overall of 193

states are parties to it.194 It was drafted after the World War II and the League of Nations’

failure to prevent it. As a consequence the Charter includes many articles relating to

186 Beckman, R. and Butte, D. 2013. Introduction to International Law. [e-book] International Law Students Association. Available through: PDF http://www.ilsa.org/jessup/intlawintro.pdf [Accessed: 20 Nov 2013]. 187 Cançado Trindade, A. 2013. Universal Declaration of Human Rights Paris, 10 December 1948. [online] Available at: http://legal.un.org/avl/ha/udhr/udhr.html [Accessed: 20 Nov 2013]. 188 Article 2, United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, available at: http://www.refworld.org/docid/3ae6b3a10.html [accessed 21 November 2013] 189 Shaw, M. 2003. International law. Cambridge, U.K.: Cambridge University Press. 190 Article 11, United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, available at: http://www.refworld.org/docid/3ae6b3a10.html [accessed 21 November 2013] 191 Un.org. 2013. Charter of the United Nations: Introductory Note. [online] Available at: http://www.un.org/en/documents/charter/intro.shtml [Accessed: 21 Nov 2013]. 192 Ibid. 193 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 194 Treaties.un.org. 2013. UNTC. [online] Available at: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=I-1&chapter=1&lang=en [Accessed: 21 Nov 2013].

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international peace and security, in addition to Article 2, which sets out a prohibition of the

use of force.195

j. Article 2(4) of the Charter and the Prohibition Against The Use Of Force

“All Members shall refrain in their international relations from the threat or use of force

against the territorial integrity or political independence of any state, or in any other

manner inconsistent with the Purposes of the United Nations”(Article 2, Charter of the

United Nations, 1945)

The prohibition against the use of force is significant for the inspection of the legality of

armed interventions on humanitarian grounds. The Charter brings within itself some

exceptions to this rule, such as self-defence196 and action taken by the Security Council in

accordance with Chapter VII of the Charter.197 However, an armed intervention on

humanitarian grounds is not one of them; therefore the notion is in conflict with Article

2(4).198The Article is deemed customary according to Malcolm Shaw,199a famous British

legal academic.200Further sources exist claiming the norm is jus cogens, a peremptory norm

which no derogation is allowed.201

According to this Article every state that has signed the Charter has the duty, as in an

absolute obligation, to not to resort to force as a way to solve international

issues.202Nevertheless, firstly it must be noted that there are some clashes203 in the views of

what constitutes ‘use of force’ however the dominating view is that it addressed military

force,204which would encompass the direct or indirect usage of armed force to a another

195 Article 2, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 196 Article 51, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 197 Chapter VII, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 198 Shaw, M. 2003. International law. Cambridge, U.K.: Cambridge University Press. 199 Ibid. 200 Essexcourt.net. 2013. Professor Malcolm Shaw QC | Essex Court Chambers. [online] Available at: http://www.essexcourt.net/members/37 [Accessed: 21 Nov 2013]. 201 B. Kioko, 'The right of intervention under the African Union’s Constitutive Act: From non-interference to non-intervention' [2003] IRRC 807. 202 "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations". 1970. Resolution adopted by the General Assembly of the United Nations, New York, 24 October. Twenty-fifth session: The United Nations, A/RES/25/2625 203 Heselhaus, S. n.d. International Law and the Use of Force. [e-book] Encyclopaedia of Life Support Systems. http://www.eolss.net/sample-chapters/c14/e1-36-01-02.pdf [Accessed: 21 Nov 2013]. 204 Ibid.

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state.205In addition what level of intensity of the force will indicate a violation of the Article

2(4) is uncertain.206

Additionally, the Article also refers to threat of use of force.207 This term was further

enlightened in the Nuclear Weapons advisory opinion of the International Court of Justice

given in 1996: “The notions of "threat" and "use" of force under Article 2, paragraph 4, of

the Charter stand together in the sense that if the use of force itself in a given case is illegal -

for whatever reason - the threat to use such force will likewise be illegal.”208As a result, if

the action which is the subject to the threat is illegal, the threat itself is also illegal.209

The meaning of territorial integrity and political independence is explained again by the

International Court of Justice in the Corfu Channel case between the United Kingdom and

Albania.210 “The Court can only regard the alleged right of intervention... such as has, in the

past, given rise to most serious abuses and such as cannot, whatever be the present defects in

international organization, find a place in international law...Between independent States,

respect for territorial sovereignty is an essential foundation of international relations...”211

Article 2(4) also specifies that it would be breached when the threat or use of force is

inconsistent with the Charter of the United Nations.212 The Charter brings the two

aforementioned exceptions to the rule: self defence and Chapter VII action taken by the

Security Council.

Article 51 of the Charter reads as: “Nothing in the present Charter shall impair the inherent

right of individual or collective self-defence if an armed attack occurs against a Member of

the United Nations, until the Security Council has taken measures necessary to maintain

international peace and security.”213 The International Court of Justice decided in the

Nicaragua Case that this inherent right was not only protected by the Charter but also the

205 Ibid. 206 Ibid. 207 Article 2, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 208Legality Of The Threat Or Use Of Nuclear Weapons, International Court of Justice Advisory Opinion, 1996 rep.103 available at: http://www.un.org/law/icjsum/9623.htm[accessed 20 November 2013] 209 Ibid. 210 Shaw, M. 2003. International law. Cambridge, U.K.: Cambridge University Press. 211 Corfu Channel Case (UK v Albania) (Judgement) [1949] ICJ Rep 4 212 Article 2, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 213 Article 51, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013]

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Image 2: T. Franck “Who killed Article 2(4)?”

international customary law.214 If a state breaches Article 2(4) of the Charter and uses force

against a state, Article 51 is legal grounds to use force in order to protect its territorial

integrity and political sovereignty.215

However, there are limitations to the extent of the force that can be used in the name of self-

defence, which are projected by the case law of the International Court of Justice. According

to the judgement of the Court on the Nicaragua Casereads as:“specific rule whereby self-

defence would warrant only measures which are proportional to the armed attack and

necessary to respond to it, a rule well established in customary international

law”.216Furthermore in the Nuclear Weapons opinion, the Court renounced its standing as:

“The submission of the exercise of the right of self-defence to the conditions of necessity and

proportionality is a rule of customary international law.”217Therefore, action reliant on

Article 51 must be necessary and proportionate, which then can be designated for each

individual case.

The second exception to the rule is action taken by the Security Council under Chapter VII.

This is in regard to the ‘Action with Respect to Threats to the Peace, Breaches of the Peace,

and Acts of Aggression’, a power given only to the Security Council which has the “primary

responsibility for the maintenance of international peace and security”.218

Overall the prohibition against the use of

force is an absolute prohibition with few

and precisely outlined exceptions,

brought forward by a very significant

document, the United Nations Charterand

regarded as custom by predominant

214 Shaw, M. 2003. International law. Cambridge, U.K.: Cambridge University Press. 215 Article 2 and Article 51, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 216Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986, available at: http://www.refworld.org/docid/4023a44d2.html [accessed 21 November 2013] 217 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996, available at: http://www.refworld.org/docid/4b2913d62.html [accessed 21 November 2013] 218 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013

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scholars.

At this point, another debate regarding Article 2(4) must be given attention to, due to its

correlation in regards to the legality intervention on humanitarian grounds. Argued by pro-

interventionists,219 Article 2(4) is null due to the fact that it was constantly breached.220 In

1970, 25 years after the Charter was signed, Thomas M. Franck - former professor of law at

New York University, expert on international law- wrote an article221 claiming that, although

the Charter was drafted with noble intentions in order to prevent war, the repeated violations

due to self-interested states “killed” the Article and it is no longer modern or applicable.222 He

supported the idea by stating that the United Nations was an over-ambitious body relying on

the idea that the permanent five members of the Security Council would be in unity in the

course of stopping future wars from happening.223However, the 25 years following the San

Francisco Conference proved the entire system wrong and the Article 2(4) was undermined to

the level that “only the words remain”.224

“What killed Article 2(4) was the wide disparity between the norms it sought to establish and

the practical goals the nations are pursuing in defence of their national interest.”(Franck,

T.M., 1970)225

The question remains whether an Article after finding no practice due to the high numbers of

violations can remain intact.226According to the Secretary-General’s High-level Panel Report

on Threats, Challenges and Change, 2004: “For the first 44 years of the United Nations,

Member States often violated these rules and used military force literally hundreds of times,

219 Hurd, I. 2011. Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. [e-book] Carnegie Council for Ethics in International Affairs. http://faculty.wcas.northwestern.edu/~ihu355/Home_files/is%20hi%20legal.pdf [Accessed: 22 Nov 2013]. 220 Ibid. 221 Ibid. 222 Franck, T. 1970. Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States. The American Journal of International Law, 64 (5), pp. 809-837. Available at: http://www.jstor.org/stable/2198919 [Accessed: 22 Nov 2013]. 223 Ibid. 224 Ibid. 225 Franck, T. 1970. Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States. The American Journal of International Law, 64 (5), pp. 809-837. Available at: http://www.jstor.org/stable/2198919 [Accessed: 22 Nov 2013]. 226 Opt. Cite. Hurd, I. 2011. Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. [e-book] Carnegie Council for Ethics in International Affairs. http://faculty.wcas.northwestern.edu/~ihu355/Home_files/is%20hi%20legal.pdf [Accessed: 22 Nov 2013].

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with a paralysed Security Council passing very few Chapter VII resolutions and Article 51

only rarely providing credible cover.”227

Another claim on the matter is a norm of law becoming desuetude due to routine

breaching.228 Whether Article 2(4) is made desuetude for this reason is something that was

never claimed by any state as defence for using force.229 However there is legal ground to the

notion, including the Vienna Convention on the Law of Treaties230

“Article 60: Termination or suspension of the operation of a treaty as a consequence of its

breach

2. A material breach of a multilateral treaty by one of the parties entitles:

(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole

or in part or to terminate it...

(c) any party other than the defaulting State to invoke the breach as a ground for suspending

the operation of the treaty in whole or in part with respect to itself if the treaty is of such a

character that a material breach of its provisions by one party radically changes the position

of every party with respect to the further performance of its obligations under the treaty.

3. A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of

the treaty...”231

Overall if the prohibition intended with Article 2(4) has become desuetude, then the

concept of war is not illegal,232 a war waged in order to eliminate human suffering

would also not be illegal.

227 The Secretary-General’s High-level Panel. 2004. Threats, Challenges and Change, A more secure world: our shared responsibility. [report] United Nations General Assembly. 228 Opt. Cite. Hurd, I. 2011. Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. [e-book] Carnegie Council for Ethics in International Affairs. http://faculty.wcas.northwestern.edu/~ihu355/Home_files/is%20hi%20legal.pdf [Accessed: 22 Nov 2013]. 229 Ibid. 230 Ibid. 231 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, available at: http://www.refworld.org/docid/3ae6b3a10.html [accessed 23 November 2013] 232 Opt. Cite. Hurd, I. 2011. Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. [e-book] Carnegie Council for Ethics in International Affairs.

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Ian Hurd, in his article titled -“Is Humanitarian Intervention Legal? The Rule of Law in an

Incoherent World”- adds another argument to accompany the aforementioned argument

relating to Article 2(4): Because interventions on humanitarian grounds are a newly emerging

practice, it “may not count as a “violation” at all. It is instead constructive noncompliance,

which signals that humanitarianism is becoming legal even while Article 2(4) remains in

place. Seeing international law as fluid in this way turns it into “social practice” rather than

a set of fixed and external standards...”233

In conclusion, although arguments exist on the grounds that intervention on humanitarian

grounds may not be violating Article 2(4), authors like Shaw believe that the prohibition set

by the Charter is not likely to be incompatible with such concept. Shaw statesthat such

intervention “has some support in pre-Charter law and it may very well have been the case

that in the nineteenth century such intervention was accepted under international law.

However, it is difficult to reconcile today with Article 2(4) of the Charter unless one either

adopts a rather artificial definition of the ‘territorial integrity’ criterion in order to permit

temporary violations or posits the establishment of the right in customary law.”234

Is the prohibition against the use of force still intact, regardless of the number of wars

that has happened since the drafting of the Charter? Or did it become desuetude in

time? Is the prohibition absolute? Is it customary? Is it outdated in the face of new

norms, such as the responsibility to protect one’s population? Is the prohibition open to

interpretation? Does it balance the needs of humans,for instance in the face of genocide

or crimes against humanity with the principle of not resorting to force in international

relations?

f. The Convention For The Prevention And Punishment Of The Crime Of Genocide

The Convention for the Prevention and Punishment of the Crime of Genocide (the Genocide

Convention) was accepted in the General Assembly of the United Nations in December 9th,

1948.235According to Article I of the Convention236 and the case ‘Prevention and Punishment

233 “As defined by Emanuel Adler and Vincent Pouliot, The Practice Turn in International Theory (Cambridge: Cambridge University Press, 2011)” cited in Hurd, I. 2011. Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. [e-book] Carnegie Council for Ethics in International Affairs. 234 Shaw, M. 2003. International law. Cambridge, U.K.: Cambridge University Press. 235 William A. Schabas, 'CONVENTION FOR THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE ' (United Nations Audiovisual Library of International Law 2008) <http://legal.un.org/avl/pdf/ha/cppcg/cppcg_e.pdf> accessed 26 November 2011

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of the Crime of Genocide’, genocide is a crime under international law.237 The definition of

genocide is obtained from Article 2:

“genocide means... act committed with intent to destroy, in whole or in part, a national,

ethnical, racial or religious group, as such: (a) Killing members of the group;(b) Causing

serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the

group conditions of life calculated to bring about its physical destruction in whole or in

part;(d) Imposing measures intended to prevent births within the group;(e) Forcibly

transferring children of the group to another group.”

It must be noted that for the purposes of this case, individual criminal responsibility for

genocide-related crimes will not be examined however state responsibility for crimes as

explained by the International Court on the aforementioned case, ‘Prevention and

Punishment of the Crime of Genocide’, will be examined due its direct relation to the

Responsibility to Protect approach.

Initially, it should be mentioned that international law does not create obligations,

punishments or the likewith regards to state liability for crimes.238 These are examined in an

individual basis.239However, the International Court gives three interpretations for why a

state would be responsible if it commits genocide-related crime.240 Firstly states are bound

byobligations bestowed on them by the treaties they have signed and ratified.241 If such norm

is breached, liability will arise hence it is a principle of international law that agreements

should be kept (pacta sund servanda).242 If a party to the Genocide Convention breaches the

Convention, it can be held liable, but on these ground it would not be criminal liability.243

236 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277, available at: http://www.refworld.org/docid/3ae6b3ac0.html [accessed 26 November 2013] 237 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), 11 July 1996, available at: http://www.refworld.org/docid/4040ba0c4.html [accessed 26 November 2013] 238Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), Summary of Judgement, 26 February 2007 , available at http://www.icj-cij.org/docket/files/91/13687.pdf[accessed 26 November 2013] 239 Ibid. 240 Ibid. 241 Shaw, M. 2003. International law. Cambridge, U.K.: Cambridge University Press. 242 Article 26, United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, available at: http://www.refworld.org/docid/3ae6b3a10.html [accessed 23 November 2013] 243Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), Summary of Judgement, 26 February 2007 , available at http://www.icj-cij.org/docket/files/91/13687.pdf[accessed 26 November 2013]

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Secondly the Court found that nothing in the Genocide Convention which narrows its scope

to only individual criminal liability.244 Thirdly, the Court finalizes its standing as “having

reviewed said history, the Court concludes that it may be seen as supporting the conclusion

that Contracting Parties are bound not to commit genocide, through the actions of their

organs or persons or groups whose acts are attributable to them”.245

The Genocide Convention, Article I states: “The Contracting Parties confirm that genocide,

whether committed in time of peace or in time of war, is a crime under international law

which they undertake to prevent and to punish.” Whether this Article gives other states the

right to intervene and stop genocide is debated,246 yet Ian Hurd claims that reading the Article

in such way would be illogical since if such right was given, it would be explicit in the

text.247 Therefore the text should be read in a restrictive manner.248

Overall, the Genocide Convention outlaws genocide, conspiring to commit genocide, direct

and public incitement to commit genocide, attempting to commit genocide, complying in

genocide. It also encompasses an Article stating the parties to it undertake to prevent such

activities. However the question remains: Can the Genocide Convention create legal

grounds for unilateral intervention to state by another state?

g. The Geneva Conventions & Additional Protocols and Humanitarian Law

Humanitarian law or the law in war (jus in bello) is rules and customs governing armed

conflicts in order to minimize human suffering.249 The focus of humanitarian law is entirely

the state of war itself, therefore its application must be upheld regardless of the how or

whythe armed conflict started.250 Pre-war law relating to the use of force and prevention of

war (jus ad bellum) is independent from humanitarian law; this is due to the fact that

humanitarian law aims to protect the human without consideration to the party they belong

to.251

244 Ibid. 245 Ibid. 246 Opt. Cite. Hurd, I. 2011. Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World. [e-book] Carnegie Council for Ethics in International Affairs. 247 Ibid. 248 Ibid. 249 International Committee of the Red Cross, 'What are jus ad bellum and jus in bello?' (icrc.org 2004) <http://www.icrc.org/eng/resources/documents/misc/5kzjjd.htm> accessed 01 December 2013 250 Ibid. 251 Ibid.

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International humanitarian law is governed predominantly by the Geneva Conventions of

1949.252 The four conventions govern the rules of war from indiscriminate weapons to

prisoners of war and the protection of civilians. They are also deemed customary because of

their widespread acceptance and application.253 Moreover, in1977, two Protocols addition to

the Geneva Conventions were signed.254 Especially the Additional Protocol II was regarded

as an achievement because it was drafted to regulate civil wars in contrast of the Geneva

Conventions which regulate international armed conflicts (except common Article 3).255

The Geneva Conventions and the Additional Protocols will now be examined under the scope

of ‘humanitarian intervention’.

The Common Article I of the Conventions is as follows: “The High Contracting Parties

undertake to respect and to ensure respect for the present Convention in all

circumstances.”256 This Article creates an obligation to apply and oversee the application of

the Conventions on every state.257The Additional Protocol I; however, connects this

responsibility with the United Nations in Article 89: “In situations of serious violations of the

Conventions or of this Protocol, the High Contracting Parties undertake to act, jointly or

individually, in co-operation with the United Nations and in conformity with the United

Nations Charter.”258259Firstly, it must be noted that Additional Protocol I governs internal

conflicts therefore it is not applicable during a civil war. Additional Protocol II, which is

applicable in internal situations, states: “1. Nothing in this Protocol shall be invoked for the

purpose of affecting the sovereignty of a State or the responsibility of the government, by all

legitimate means, to maintain or re-establish law and order in the State or to defend the

national unity and territorial integrity of the State. 2. Nothing in this Protocol shall be

252 International Committee of the Red Cross, The Geneva Conventions of 1949 and their Additional Protocols' (icrc.org 2004) <http://www.icrc.org/eng/war-and-law/treaties-customary-law/geneva-conventions/index.jsp > accessed 01 December 2013 253 Opt. Cite. 253 Kalshoven, Frits and Zegveld, Liesbeth “Constraints on the Waging of War” 4th Edition, Cambridge University Press 2011 254 Igor P. Blishchenko, 'Adoption of the 1977 Additional Protocols' (icrc.org 1997) <http://www.icrc.org/eng/resources/documents/article/other/57jnv3.htm> accessed 01 December 2013 255 Ibid. 256 International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, available at: http://www.refworld.org/docid/3ae6b36d2.html [accessed 1 December 2013] 257 A. Ryniker, 'The ICRC’s position on “humanitarian intervention”' [2001] IRRC 527. 258 Ibid. 259 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005, available at: http://www.refworld.org/docid/43de21774.html [accessed 1 December 2013]

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invoked as a justification for intervening, directly or indirectly, for any reason whatever, in

the armed conflict or in the internal or external affairs of the High Contracting Party in the

territory of which that conflict occurs.”

As conclusion humanitarian law cannot be a base for unilateral ‘humanitarian intervention’

because the law of the use of force is governed by other rules or customs. However, Anne

Ryinker, when explaining the position of the International Committee of the Red Cross -

neutral organization ensuring humanitarian protection and assistance for victims of war and

armed violence-states:

“International humanitarian law cannot serve as a basis for armed intervention in

response to grave violations of its provisions; the use of force is governed by the United

Nations Charter...While armed intervention in response to grave violations of human

rights and international humanitarian law may be unavoidable in certain extreme

situations, what we expect of the community of States is that they should not view either

such intervention or the situations that have caused it as inevitable. To systematically use

armed intervention for humanitarian purposes would amount to an abdication by the

international community of its true responsibilities: preventing conflict and promoting the

basic values expressed in international humanitarian law.”260

As to the legality of ‘humanitarian intervention’, it is a question of jus ad bellum

because it is in regards to whether it has standing in international law. Jus in bello is

only enacted when the intervention itself is taking place. However it should be

questioned whether breaches of humanitarian law and long-standing customs of war

during an internal armed conflict would create moral or legal grounds for third party

intervention.

h. Constitutive Act Of The African Union:

African Union (AU) is an Africa-based interstate organization which has as its goal to rid the

continent of the remaining vestiges of colonization and apartheid; to promote unity and

solidarity among African States.261The Union is governed by the Constitutive Act of the

African Union which came into force in 2000.262When it was drafted, African nations were in

260 A. Ryniker, 'The ICRC’s position on “humanitarian intervention”' [2001] IRRC 527. 261 'AU in a Nutshell' (African Union ) <http://www.au.int/en/about/nutshell> accessed 21 November 2013 262 African Union, '' (Constitutive Act ) <http://www.au.int/en/about/constitutive_act> accessed 24 November 2013

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the wake of the Rwandan genocide, in addition to the other gross governmental human rights

violations happened in the 20th century, such as Uganda under the rule of Idi Amin or the

Central African Republic under the rule of Bokassa.263 The failure to prevent the genocide in

Rwanda, however,influenced head of states of Africa to entail measures to the Constitutive

Act to eliminate the possibility of repetition.264

“The Union shall function in accordance with the following principles:

(g) non-interference by any Member State in the internal affairs of another;

(h) the right of the Union to intervene in a Member State pursuant to a decision of the

Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes

against humanity...”265

The mechanism for the intervention starts with the Peace and Security Council of the AU.266

This power was given to the Council with the Protocol of the Peace and Security Council.267

“The PSC can assess a potential crisis situation, send fact-finding missions to trouble spots

and authorise and legitimise AU intervention in internal crisis situations.”268The examining

of facts in a region by the PSC may happen on two instances: the Council may act on its own

or on the request of a member state.269The right to intervention in the AU was developedin

the light of the ‘Responsibility to Protect’ (explained in detail below) concept.270

Thereforethe interventions will take place if the situation at hand is in compliance with the

criterion of put forth in ‘Responsibility to Protect’.271 Given that the countries that which the

Union consists of signed the Constitutive Act, it should be pointed out that such intervention

may not violate territorial integrity or political independence because it was pre-approved by

the member states, therefore not violating the prohibition against the use of force.272

263 B. Kioko, 'The right of intervention under the African Union’s Constitutive Act: From non-interference to non-intervention' [2003] IRRC 807. 264 Ibid. 265 Constitutive Act of the African Union, Art. 4. 266 T Murithi, 'Chapter 3: The responsibility to protect, as enshrined in article 4 of the Constitutive Act of the African Union' in (eds), African Security Review 16.3 (1st, Institute for Security Studies, ). 267 Ibid. 268 Ibid. 269 B. Kioko, 'The right of intervention under the African Union’s Constitutive Act: From non-interference to non-intervention' [2003] IRRC 807. 270 Ibid. 271 Ibid. 272 Bryan D. Kreykes, Toward a Model of Humanitarian Intervention: The Legality of Armed Intervention to Address Zimbabwe's Operation Murambatsvina, 32 Loy. L.A. Int'l & Comp. L. Rev. 335 (2010). Available at: http://digitalcommons.lmu.edu/ilr/vol32/iss3/1

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However, this may be in contrast with Article 53 of the UN Charter which states: “no

enforcement action shall be taken under regional arrangements or by regional agencies

without the authorization of the Security Council, with the exception of measures against any

enemy state”.

Nevertheless, executing an intervention requires the utmost care in order to create a balance

between intervening on humanitarian grounds and interfering in sovereign affairs of a state.

Therefore the question remains whether the African Union can intervene unilaterally or with

the authorization from the United Nations, completely in compliance with the Responsibility

to Protect doctrine.

V. Custom

Custom is, according to the Article 38 of the Statute of the ICJ“evidence of a general

practice accepted as law”.273International custom flourishes from state practice. In order for

custom to form constant state practice by a significant amount of states establishing a norm is

needed.There must be a general recognition with practice enough to amount an obligation

binding the States in terms of international law (opinio juris).274275However, if a state is

constantly objecting to the rule, it is not bound and custom is not formed.276

In the light of this definition, the following questions are significant: Is the prohibition

against the use of force customary? Is the Kellogg-Briand Pact customary? Was it

supported by constant state practice? Have there been enough state practice and no

persistent objectors as to the formation of custom in regards to ‘humanitarian

intervention’?Is the doctrine of responsibility to protect customary?

In the following chapters, the preamble clauses of the Security Council resolutions and the

resolutions of the General Assembly will be examined. This is due to the fact that although

these written sources are not binding, as stated by the ICJ in the Nuclear Weapons case, they

may point to existent state practice and opinio juris: “The Court notes that General Assembly

resolutions, even if they are not binding, may sometimes have normative value. They can, in

certain circumstances, provide evidence important for establishing the existence of a rule or

273 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 274 Henderson, Conway W., (2010), Understanding International Law, United Kingdom, Wiley-Blackwell 275Aust, Anthony,(2010), Handbook of International Law, 2nd Edition, Cambridge, Cambridge University Press 276 Shaw, M. 2003. International law. Cambridge, U.K.: Cambridge University Press.

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the emergence of an opinio juris. To establish whether this is true of a given General

Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it

is also necessary to see whether an opinio juris exists as to its normative character.”277

c. Resolutions of The Security Council

In this chapter, specific resolutions of the Security Council will be examined with a focus on

the preambulatory clauses of a resolution summarizes the intent behind, therefore for the

resolutions significant to the case, it may be useful to understand the reasoning of the

Security Council prior to an intervention. This may, in addition, prove whether a constant

practice regarding Responsibility to Protect has been established or not. As of October 2013,

fifteen resolutions passed from the Security Council addressing the responsibility of states to

protect their populations278some examples of such resolutions are cited below:

Sudan –Security Council Resolution 1706 adopted 31 August, 2006: The resolution called for

immediate deployment of peacekeeping forces to Sudan in the face genocide, war crimes,

ethnic cleansing and crimes against humanity.279 The Council reaffirmed the principles set

out by the World Summit 2005, addressing Responsibility to Protect as explained in

paragraphs 138 and 139 of the outcome document of the summit.280

“Recalling...protection of civilians in armed conflict, which reaffirms inter alia the provisions

of paragraphs 138 and 139 of the 2005 United Nations World Summit outcome

document...reiterating its strong condemnation of all violations of human rights and

international humanitarian law in Darfur...”

Libya - Security Council Resolution 1973 adopted 17 March, 2011: Authorizing international

military authorization with the phrase “all means necessary”, the resolution also involved a

strong reference to the principle: “Reiterating the responsibility of the Libyan authorities to

277Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996, available at: http://www.refworld.org/docid/4b2913d62.html [accessed 1 December 2013] 278 UN Security Council Resolutions Referencing R2P' (Global Centre for The Responsibility to Protect 2013) <http://www.globalr2p.org/resources/335> accessed 27 November 2013 279 'Security Council Makes R2P Reference in resolution on Darfur' (International Coalition for Responsibility to Protect ) <http://www.responsibilitytoprotect.org/index.php/crises/37-the-crisis-in-darfur/792-security-council-makes-reference-to-r2p-in-resolution-on-darfur> accessed 27 November 2013 280 UN Security Council, Resolution 1706 (2006) Reports of the Secretary-General on the Sudan, 31 August 2006, S/RES/1706 (2006), available at: http://www.refworld.org/docid/453786b60.html [accessed 27 November 2013]

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protect the Libyan population and reaffirming that parties to armed conflicts bear the

primary responsibility to take all feasible steps to ensure the protection of civilians”281

Sudan – Security Council Resolution 2109 adopted on 11 August, 2013:“Recalling the

Presidential Statement of 12 February 2013 that recognized that States bear the primary

responsibility to protect civilians as well as to respect and ensure the human rights of all

individuals within their territory and subject to their jurisdiction as provided for by

relevant international law..”

Do these resolutions prove that ‘humanitarian interventions’ under the doctrine of

Responsibility to Protect is already incorporated in the United Nations system and state

practice regarding the matter?

d. World Summit 2005 And Responsibility To Protect (R2P)

“People should not be afraid of their governments. Governments

should be afraid of their people.”-V, V for Vendetta (2005)

In 2001, International Commission on Intervention and State Sovereignty gathered in Canada

in order to explain the confusion in law after NATOs intervention in Kosovo 1999. This

document introduced the concept of Responsibility to Protect or in short R2P, is a new

approach to the question of “legality of humanitarian intervention”.

Together with the World Summit 2005, the Outcome Document, the intention is toreform the

concept of sovereignty from its main element of territorial control to a responsibility of

protecting the population “from genocide, war crimes, ethnic cleansing and crimes against

humanity”282 Therefore when the sovereign state is (i) clearly unwilling or unable to fulfil

its responsibility to protect;(ii) in itself the perpetrator of crimes or atrocities; and/or

(iii)Where people living outside a certain state are directly threatened by actions taking

place there, the principle of sovereignty is no longer a hold-up against an intervention to

“prevent, protect and rebuild”.283

281Resolution 1973. 2011. Resolution passed by United Nations Security Council, New York, 17 March. United Nations, p. S/RES/1973 (2011) 282 World Summit 2005, Outcome Document, adopted by the United Nations General Assembly, September 15, 2005 283 Massingham, Eva “Military intervention for humanitarian purposes: does the Responsibility to Protect doctrine advance the legality of the use of force for humanitarian ends?” International Review of the Red Cross, V. 91 Nmb. 876 December 2009

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At World Summit 2005, R2P was again deliberated on, was adopted in a United Nations

General Assembly Resolution.284The document explains the possible intervention as “In this

context, we are prepared to take collective action, in a timely and decisive manner,

through the Security Council, in accordance with the Charter, including Chapter VII,

on a case-by-case basis and in cooperation with relevant regional organisations as

appropriate, should peaceful means be inadequate and national authorities are

manifestly failing to protect their populations from genocide, war crimes, ethnic

cleansing and crimes against humanity.”285

Naturally the drafters of the Outcome Document prescribed some criteria and conditions for

the intervention to take place, in order to create a clear-cut legal mechanism when it comes to

breaching the prohibition against the use of force from Article 2(4) of the Charter.286

In the context of an armed intervention due to a failure of state in its responsibility to Protect,

firstly, the use of force must be seen as a last resort, when all else fails to end the human

suffering, the urgency of the situation and the gravity of the violations leave no other option,

an intervention may be in order.287 The intervention must be authorized by the Security

Council.288 In its military aspect, it must be proportionate, the common military approach

must be unambiguous, unified in command and must be in cooperation with humanitarian

organizations and must be in total adherence with international humanitarian law.289It should

be noted nothing in the R2P doctrine allows unilateral action without authorization from the

Security Council. This way the concept is integrated into the United Nations system and it

cannot be used to justify unilateral interventions.

The authorization from the Security Council, however, is a matter of academic conflict. Since

the notion behind R2P is to alleviate human suffering290 and if this notion is to prevail when

it comes to long standing principles such as territorial integrity and prohibition against the use

of force, then the decision making process must be apolitical as much as it can be. However,

the Security Council has the same structure it had when it was found 65 years ago with

284 UN General Assembly, 2005 World Summit Outcome : resolution / adopted by the General Assembly, 24 October 2005, A/RES/60/1, available at: http://www.refworld.org/docid/44168a910.html [accessed 1 December 2013] 285 Ibid. 286 Ibid. 287 Ibid. 288 Ibid. 289 Report of the International Commission on Intervention and State Sovereignty, December 2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf, accessed August 26, 2013 290 Ibid.

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regards to the permanent members. The decision making process is dependent on the

permanent members to not use their veto powers. Therefore if any of the permanent members

disregard grave human rights violations for political reasons, the intervention would not be

able to take place. The aforementioned case studies, in especial Rwanda, Darfur and Kosovo

can be given as examples for when the political nature of the Security Council and because of

it, action may be delayed or not taken.

Although the applicability of R2P is still to be tested, it should be noted that it clarifies the

pre-2005 practice. This is due to the fact that the criteria of multilateralism through the UN

system were integrated and R2P was debated and accepted as a General Assembly resolution

rather than remaining as a vague concept.

The reactions to R2P vary. Some more optimistic theorists say it is a ‘workable consensus’ in

the face of a deadlock of principles.291 Other more sceptical theorist says it will fail due to

“insufficient political will”.292 Overall, it is an attempt to legally define and set out the basic

principles for ‘humanitarian intervention’; however both of the documents, although

politically influential,have no binding affect.

The question remains if Responsibility to Protect is sufficient enough to balance

territorial integrity, sovereignty, prohibition against the use of force and humanitarian

relief.

VI. Principles Of International Law

b. Principles Of Sovereignty And Non-Intervention

“Our job is to intervene… state frontiers should no longer be seen as

watertight protection for war criminals or mass murderers. The fact that a

conflict is 'internal' does not give the parties any right to disregard the

most basic rules of human conduct.” June 1998, Kofi Annan:

The principles of sovereignty and non-intervention are well intact within the UN Charter,

customary international law, and case law of the ICJ and so forth. According to the

International Commission on Intervention and State Sovereignty (ICISS), sovereignty “has

291 MacFarlane, S. Neil, Thielking, Carolin J. and Weiss, Thomas G., ‘The Responsibility to Protect: is anyone interested in humanitarian intervention?’, Third World Quarterly, Vol. 25, 2004, pp. 977–992. 292 Ibid.

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come to signify, in the Westphalian concept, the legal identity of a state in international

law”.293 This identity is protected by the principle of non-intervention; both are integrated to

the UN Charter with the following clauses of Article 2:

“1. The Organization is based on the principle of the sovereign equality of all its Members.

7.Nothing contained in the present Charter shall authorize the United Nations to intervene

in matters which are essentially within the domestic jurisdiction of any state or shall

require the Members to submit such matters to settlement under the present Charter; but

this principle shall not prejudice the application of enforcement measures under Chapter

VII.”294

In 1965 the General Assembly of the United Nations passed a resolution titled “Declaration

on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of

Their Independence and Sovereignty”. The resolution was passed under the influence of the

decolonization process of the time295 and encompassed the following clause: “No State has

the right to intervene, directly or indirectly, for any reason whatever, in the internal or

external affairs of any other State. Consequently, armed intervention and all other forms of

interference or attempted threats against the personality of the State or against its political,

economic and cultural elements are condemned.”296

The ICJ renounced the principles in 1986, for the case Military and Paramilitary Activities

between Nicaragua and the United States of America as: “The Court should now mention the

principle of respect for State sovereignty, which in international law is of course closely

linked with the principles of the prohibition of the use of force and of non-intervention. The

293 International Commission on Intervention and State Sovereignty, 'The Responsibility to Protect' (responsibilitytoprotect.org 2001) <http://responsibilitytoprotect.org/ICISS%20Report.pdf> accessed 01 December 2013 294 Article 2, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930.html [accessed 20 November 2013] 295 Edward McWhinney, 'GENERAL ASSEMBLY RESOLUTION 2131 (XX) OF 21DECEMBER 1965 DECLARATION ON THE INADMISSIBILITY OF INTERVENTION IN THE DOMESTIC AFFAIRS OF STATES AND THE PROTECTION OF THEIR INDEPENDENCE AND SOVEREIGNTY ' (United Nations Audiovisual Library of International Law 2012) <http://legal.un.org/avl/pdf/ha/ga_2131-xx/ga_2131-xx_e.pdf> accessed 01 December 2013 296 Ibid.

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basic legal concept of State sovereignty in customary international law, expressed in, inter

alia, Article 2, paragraph 1, of the United Nations Charter...”297

Overall, the principles were integrated in international law by many sources, however in the

light of atrocities such as the Rwandan Genocide and humanitarian crisis in Kosovo, the

concept of sovereignty was started to be examined under a new scope.298 In addition to the

sovereignty as control, the notion was started to be reshaped as sovereignty as

responsibility.299 The new form of sovereignty not only gave the authority to rule and govern

a state but also brought with it a responsibility, to protect the citizens under the jurisdiction of

the state and promote their welfare.300

If the principle of sovereignty is extended, including sovereignty as responsibility, when a

government fails to protect its population or be the cause of the harm inflicted upon them,

then that government cannot be regarded as sovereign.301 Therefore, in the case where the

international community sees upon itself the responsibility to protect that population, such

action would not breach the principles of sovereignty and non-intervention.302

“A. State sovereignty implies responsibility and the primary responsibility for the

protection of its people lies with the state itself.

B. Where a population is suffering serious harm, as a result of internal war, insurgency,

repression or state failure, and the state in question is unwilling or unable to halt or avert

it, the principle of non-intervention yields to the international responsibility to protect.”303

297 Military and Paramilitary Activities (Nicaragua/United States of America) Merits. I. 27.6.1986 I.C.I.Reports 1986, p. 14 298 International Commission on Intervention and State Sovereignty, 'The Responsibility to Protect' (responsibilitytoprotect.org 2001) <http://responsibilitytoprotect.org/ICISS%20Report.pdf> accessed 01 December 2013 299 Ibid. 300 Ibid. 301 Ibid. 302 Ibid. 303 International Commission on Intervention and State Sovereignty, 'The Responsibility to Protect' (responsibilitytoprotect.org 2001) <http://responsibilitytoprotect.org/ICISS%20Report.pdf> accessed 01 December 2013

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E. THE OFFICIAL STATEMENT REQUESTING AN ADVISORY OPINION FROM

THE SECURITY COUNCIL and THE FICTIONAL SCENARIO

I. The Scenario

The Theocratic Republic of Ruritania has been politically and economically stable and has

been single-handedly ruled by the same family over 40 years. The current head of state has

been in power for the past 20 years, his father was in power before him. Duringhis rule,

Ruritania was known to be stable and strong before the conflict, especially in comparison to

the neighbouring states. Ruritania had good relations with its neighbours who share the same

religion and cultural values. The state had a strong economy and military. The region

Ruritania is in has experienced international and internal armed conflicts, regime changes,

guerrilla wars, long-standing dictatorships throughout its history.

Like Ruritania, long-standing authoritarian one-man regimes were very common in the

neighbouring countries. However, for the past 3 years there has been a wave of democratic

uprisings and some of these authoritarian regimes in the neighbouring countries were

removed from power by militant rebel powers. The states which went through regime

changes in the past years have not stabilized yet and many of them are on the verge of

extremist governments. In most of them, the opposition groups are divided and without

central leadership, but when put together, they represent a vast majority.

The internal armed conflict in Ruritania started two years ago. However it has been

intensifying ever since without a certain superiority of the parties, the governmental forces or

the rebel forces. The United Nations General Assembly has agreed the situation has now the

status of a civil war.

Nevertheless, Ruritanian rebel movements enjoy strong international support. However since

they are not united due to the ethnic and political differences between the groups, the

international community is divided between clear cut recognition of them as state. As a

consequence of the division among rebels the conflicts were not centralized but spread out to

different fronts. There are small towns that only the rebel controls but the government

remains in control of all the major cities, including the trade centres and the capital. The

conflict has now shut the country down. The numbers estimate 7-10million civilians to be

displaced and most taking refuge in neighbouring countries.

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The numbers show massive violations of human rights, international obligations,

international law and customs by the government and by the rebel forces. A recent video

posted by the rebels displays the use of chemical weapons and cluster bombs on rebel forces

by the government. There are reports by different human rights organizations which points

out that government of Ruritania carries out mass executions, attacks on hospitals and

hospital personnel, entering and massacring entire households, horrifying torture methods,

systematic denial of food, water and energy supplies to the cities controlled by the rebel

groups, prevention or withholding medical treatment in state facilities, disproportionate

attacks on civilian groups, unlawful detention and no access to fair trial, killing and torturing

of children (mainly boys) and rape to both men and women.

There are number of reports that also show use of human shields and torture and execution by

the rebel groups but they are not as widespread as the government.

The situations escalades tragically the summer of 2013, with the rebels advance to the capital,

Ruappa. The government now uses a big number of chemical weapons and cluster bombs on

the neighbouring cities which the rebels use as base and the reports of civilian deaths up to

25.000 have reached the international media.

In the meantime missiles coming from Ruritania striked a neighbouring country which has

been expressing support for the rebel groups, theGarabonian Republic. The Ruritanian

disowned the attack, claiming the government has no control over the current armament

movement in the country, blaming the attack on the rebel.

Garabona is a member of NATO and hosts a large number of Ruritanian refugees. The used-

to-be-friendly relations are now in the verge of war, as Garabona shuts its border and starts

stacking military forces in the region. Garabona has not activated the collective-defence

clause in the North Atlantic Treaty.

Ruritania has signed and ratified the following agreements:

Rome Statute of the International Criminal Court

The Convention For The Prevention And Punishment Of The Crime Of Genocide

International Covenant on Civil and Political Rights;

International Covenant on Economic, Social and Cultural Rights;

Convention on the Rights of the Child

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UN Convention against Torture

Geneva Conventions and the Additional Protocols I and II

Charter of the UN and its annex, the Statute of the International Court of Justice

Although there have been many attempts by the UN to observe and stabilize the situation but

they have failed. The observation teams haven’t been allowed in Ruritania for the past year

and the peacekeeping troops were allowed for a slight period of time when a cease-fire was in

place but were called back when the fighting began again.

The Security Council made many attempts and prepared resolutions condemning the situation

but the government remains unresponsive. Braslavia, a permanent member of the UN

Security Council has called for an armed intervention on humanitarian bases, and showed the

example of Kosovo and Libya. Braslavia is known to have military presence in neighbouring

countries and has a reputation for many political and armed interventions it has executed in

various countries, some which worsened the situation in the hosting countries. An opposing

permanent member, Findera opposed Braslavia saying armed intervention on humanitarian

reasons has no place in the law or the UN Charter furthermore they have to respect state

sovereignty and principle of non-intervention, prohibition against the use of force which are

in the UN Charter and firm-standing customs. Braslavia points out the breaches of

international law and the Rome Statute, pointing out Ruritania’s situation and attitude as a

threat to international peace and security and thatthe Security Councilmust weigh humanity

against everything.

Braslavia and Findera agree that there is not a clear explanation in the law and urge the

Security Council to ask the International Court of Justice. With a unanimous decision the

Security Councilpassed resolution 4102 which is given below.

II. Country Profiles

Garabonian Republic:Garabonia shares a long border with Ruritania. It is a secular republic

with human rights, democratic values and with a population majority sharing religious values

with Ruritania. Garabonia is a member of the collective self-defence organization, NATO.

The two countries have been in diplomatic and economic cooperation prior to the civil war in

Ruritania. The flow of Ruritanian refugees to the Garabonian border have been massive

therefore the relations between the two states were tense. 1 year into the conflict the when

bombing and mobilizing military personnel in the border of Garabona, missiles coming from

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Ruritania striked Garabona territory, causing the death of 5 border control personnel and 2

Ruritanian refugees. Ruritania claimed it was a mistake however Garabonian authorities

closed the border for self-defence reasons and 250.000 Ruritanian refugees were piled and

got stuck on the Ruritanian side of the border. The international community pressured

Garabona to open the border; however Garabona brought the matter to NATO.

Kingdom of Braslavia: This is an ex-colonial country that played a lead role in the war

against terrorism and has a history of military interventions overseas. Braslavia is a member

of NATO and permanent five of the Security Council. Braslavia has the frontline in defence

of human rights however allegedly, on many occasions, violated humanitarian law and

human rights law in previous wars overseas. Braslavia is a strong supporter of R2P.

Federation Findera: This is an ex-communist state, another permanentmember of the

Security Council, extremely anti-interventionist unless situations such as genocide arise.

Findera has close relations with Ruritania andallegedly provides arms for the government

forces.

Republic of South Morino:South Morino is a member of Security Council and African

Union. The state is rather impartial to the Ruritanian civil war, the democratic state is

however supporting the doctrine of Responsibility to Protect.

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III. Official Statement Requesting an Advisory Opinion

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