Sample Undergraduate 2:2 International Law Assignment

The application of the Responsibility to Protect doctrine

Introduction

This paper will consider the application of the Responsibility to Protect doctrine in the context of third party nation State activity in Syria and Crimea. More specifically, this work aims to start a discussion about the way in which the Responsibility to Protect doctrine may function and be used by States in the situations presented in Ukraine and Syria, taking the interventions discussed in 2018 as examples. What makes these situations particularly interesting to study is that unlike more common contexts involving the intervention on the territory of a State which is perpetrating human rights abuses, the intervention here may well be not against forces of the host state, but against forces of a  third party sovereign State.  While it is not possible to explore the issues such an eventuality would present in any detail, this essay will present observations which aim to help contribute to a wider discussion, as well as to reach some basic preliminary conclusions.

Responsibility to Protect – doctrine review

The essence of the Responsibility to Protect doctrine is that each State has a responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. In the 2005 World Summit Outcome, States also agreed to help one another protect populations and declared their readiness to take collective action through the Security Council, on a case-by-case basis, where peaceful means are inadequate and national authorities are manifestly failing to protect their populations. [1]  The operative point for collective action here is that the national authorities are manifestly failing to carry out that task. Extending that logic should mean that this doctrine will also apply in cases of civil war where there is no central authority exercising complete control over a certain territory.  This appears to have been the case in practice in Libya in 2011. At the very least, some scholars do believe that the United Nations Security Council authorisation for military intervention in Libya was an example of the Responsibility to Protect doctrine in action and that this step was motivated by the concerns which underlie the doctrine.[2] Those concerns, to be clear, were to ensure that the doctrine of Responsibility to Protect act as ‘an antidote to the inaction that had plagued the UN during the genocides in Cambodia, Rwanda and Srebrenica’ and that it ‘represents a solemn commitment by the international community to never again be passive spectators to genocide, war crimes, ethnic cleansing or crimes against humanity’.[3] In some ways (perhaps in many ways), the Responsibility to Protect Doctrine is linked and similar to the concept of Humanitarian Intervention in International Law, which is described by scholars in similar terms.[4] The Security Council’s role in such cases is grounded in Article 39 of the Charter of the United Nations, which states that the Security Council has the authority to determine whether there is a threat ‘to the peace, breach of the peace, or act of aggression’ and also to determine measures necessary to ‘restore international peace and security’.[5] Read with Article 42, this means that the Council can authorise military action. Article 39 gives individual States no such power.[6]

It should be noted, however, that the Responsibility to Protect does not solely mean to protect via military intervention – in fact this is at the top end of the spectrum of possible responses.[7] Former UN Secretary General Kofi Annan has, in the past, provided a rather lucid summary of the theoretical progression of this principle and its route to a potential practical application. The former Secretary General underscores firstly that the first and most proximate Responsibility to Protect populations from the relevant types of egregious human rights violations, lies with their own State.[8] However, where a situation comes to pass where the government of that State is unwilling or unable to protect its population from such abuses, the international community also has a responsibility; however, the former Secretary General points out that discharging this responsibility involves the use of diplomatic, humanitarian and other ways of protecting the population of the State in question from human rights abuses. The World Summit Outcome envisages collective action through the Security Council under the Charter if peaceful means are inadequate. It does not require every non-military measure to have been tried.[9]

The position of Kofi Annan highlights how high the threshold for intervention is and the emphasis placed in International law on the inviolability of national sovereignty. Furthermore, this statement demonstrates that military intervention on Responsibility to Protect grounds requires Security Council authorisation. Kofi Annan is not alone in this assessment however, with at least some academic commentary being of the same opinion. [10] The Responsibility to Protect doctrine poses certain interesting questions – for example, whether it can be used as justification to attack the forces of a third state operating in the territory of a State which is failing to protect its citizens, or whether the Responsibility to Protect can be used as justification to attack the forces of such a third state if they are already engaged in that territory under the Responsibility to Protect? These are big questions which cannot be answered fully here. However, this paper will aim to make some salient observations and start a debate.

Syria and Crimea – Different yet similar contexts

The Civil War in Syria has left little doubt of the existence of serious human rights abuses across the territory, including the genocide committed by ISIS against the Yazidis, as the UN Commission of Inquiry found in 2016. [11]  What made Syria particularly complex in 2018 was that so many players were involved concurrently. Most notably, serious allegations have been made against Turkey and Russia. In the case of Turkey, reports in 2018 alleged shelling of civilians and forced displacement during the offensive in Afrin, northern Syria. [12] Russia on the other hand has been linked to several cases of alleged human rights violations, usually involving attacks on civilians. [13]

Russia occupied and purported to annex Crimea in 2014, intervened in eastern Ukraine and launched its full-scale invasion in February 2022. In 2025 the European Court of Human Rights held Russia responsible for widespread violations arising from the conflict in Ukraine from 2014. The judgment concerned events up to 16 September 2022, when Russia ceased to be a party to the European Convention on Human Rights.[14] In its 2024 Crimea judgment the Court had already found violations of the right to a fair trial and freedom of expression, among others.[15]

Legality

From the above, it is clear that on the one hand, in the territories which this paper is concerned with, there are serious allegations of egregious human rights violations and a reasonably developed doctrine for intervention on the other.  However, military interventions under the Responsibility to Protect doctrine are seen as the last resort, not in the least due to the fact that military aggression against another State is explicitly contrary to international law.[16] The hypothetical situation under analysis here is different from the more common Responsibility to Protect context, since the question under consideration is whether it would be legal to strike not against the host State, but against a third party which is also a sovereign state. Saying nothing of how wise such an act would be,  the issue of legality straddles both the standard question of whether an intervention in the host state would be legal as well as the question of the legality of using force against the soldiers of other sovereign states. With regard to the former, there is much contention over whether the 2018 strikes on Syrian territory could be justified without Security Council approval. The UK invoked a separate doctrine of humanitarian intervention, whose status in international law is disputed.[17] The most serious impediment to the legality of any intervention in Syria is the principle of territorial integrity, which underlines the inviolability of a nation State’s borders in most circumstances.[18] The fact that this, forms the basis of legal opposition for intervention does, however, present interesting consequences. For instance, the Assad government invited Russian military assistance in 2015. Such consent matters within its scope. It does not excuse breaches of humanitarian law or settle the basis for a Russian presence after that government fell in 2024. Turkey invoked self-defence for its 2018 operation in Afrin. Its assertion alone did not establish that the conditions of self-defence were met. Ukraine did not consent to Russia’s use of force on its territory.

Conclusions

The consequences of the above are difficult to explore in such a short space. A third State may, at Ukraine’s request, assist it in collective self-defence against Russia’s armed attack, subject to necessity and proportionality. The legal basis would be Article 51 of the Charter. Responsibility to Protect gives no independent right to attack Russian forces in Ukraine or Turkish forces in Syria. In either case, Security Council authorisation could provide a basis for collective action within the terms of the mandate. Equally, a State cannot make its own troops immune from lawful defensive action by calling its operation Responsibility to Protect. Naturally, these observations are merely preliminary and a much more thorough analysis is needed for issues of this complexity.

Bibliography

International Instruments

Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

Secondary Source Commentary

Adams S (Dr), ‘Libya and the Responsibility to Protect’  (2012) Global Centre for the Responsibility to Protect Occasional Paper Series No. 3, http://www.globalr2p.org/media/files/libyaandr2poccasionalpaper-1.pdf accessed 22 June 2018.

ANF News, ‘New massacres and war crimes by the Turkish army in Afrin’ (2018) March 5, ANF News, https://anfenglish.com/rojava/new-massacres-and-war-crimes-by-the-turkish-army-in-afrin-25295 accessed 22 June 2018.

Annan K(United Nations Secretary-General), ‘In Larger Freedom: Towards Development, Security and Human Rights for All’ (2005) 21 March (UN Doc A/59/2005).

Aydogan G, ‘Turkey is committing war crimes in Afrin’ (2018) Green Left Weekly https://www.greenleft.org.au/content/turkey-committing-war-crimes-afrin  accessed 22 June 2018.

Baruch P S and Weinstock B, ‘Military Intervention in Syria: Is It Legal?’ (2013) September 11, The Institute for National Security Studies, INSS Insight No. 465.

BBC News, ‘Syria war: Turkey 'indiscriminately shelling civilians in Afrin'  (2018) February 28, BBC News, http://www.bbc.com/news/world-middle-east-43228472 accessed 22 June 2018.

Bodette M, ‘Turkey is committing war crimes in Afrin, Syria’ (2018) February, The Region, http://theregion.org/article/12691-turkey-is-committing-war-crimes-in-afrin-syria accessed 22 June 2018.

Hakimi M, ‘Toward a Legal Theory on the Responsibility to Protect’ (2014) no. 2 Yale Journal of International Law 39.

Human Rights Watch, ‘Russia Backs Syria in Unlawful Attacks on Eastern Ghouta’ (2018) March 18,

HRW, https://www.hrw.org/news/2018/03/18/russia-backs-syria-unlawful-attacks-eastern-ghouta accessed 22 June 2018.

Human Rights Watch, ‘Syria/Russia: Airstrikes, Siege Killing Civilians’ (2017) December 22 HRW https://www.hrw.org/news/2017/12/22/syria/russia-airstrikes-siege-killing-civilians accessed 22 June 2018.

Kritsiotis D, ‘Reappraising Policy Objections to Humanitarian Intervention’ (1998) 19 Michigan Journal of International Law 1005,.

Lemnitzer J (Prof), ‘Syria strikes violated international law – are the rules of foreign intervention changing?’ (2018) April 18, The Conversation, http://theconversation.com/syria-strikes-violated-international-law-are-the-rules-of-foreign-intervention-changing-95184 accessed 21 June 2018.

Marxsen C, ‘The Concept of Territorial Integrity in International Law – What Are the Implications for Crimea?’ (2014) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Heidelberg Journal of International Law) Available at SSRN: https://ssrn.com/abstract=2515911 accessed 22 June 2018.

MIGS, ‘Genocide and Mass Atrocities Alert: Syria’ (n.d.) http://migs.concordia.ca/documents/StantonGenocideandMassAtrocitiesAlert.pdf accessed 22 June 2018.

Peters A, ‘The Security Council's Responsibility to Protect’ (2011) Vol. 8, No. 1, International Organisations Law Review, Available at SSRN: https://ssrn.com/abstract=1772702 accessed 22 June 2018.

Sarkin J, ‘The Responsibility to Protect and Humanitarian Intervention in Africa’ (2010) 2(4) Global Responsibility to Protect  371.

Wallace S and Mallory C, ‘Applying the European Convention on Human Rights to the Conflict in Ukraine’ (2016)  University of Cambridge Faculty of Law Research Paper No. 48/2016. Available at SSRN: https://ssrn.com/abstract=2845407 accessed 22 June 2018.