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The principal purpose of the current dissertation is to investigate both theoretical and practical implications of the ‘responsibility to react’ for the doctrine of humanitarian intervention. The idea of the ‘responsibility to react’ is enrooted in the provisions of the UN Charter, which articulate that the Security Council of the United Nations is obliged to respond to extreme menaces to international peace and security by means of humanitarian intervention.

Due to a large number of inconsistencies and gaps in the international legal regulation of the right to use force and intervene, the ‘responsibility to react’ is frequently misinterpreted and misused by many states. All these circumstances speak of the necessity to conduct an up-to-date research on the ‘responsibility to react’ and its manifestation in the framework of international humanitarian intervention. After the preliminary review of the issue in question, it is decided to formulate the following problem statement: The entitlements and commitments of the UN Security Council must be augmented by the unambiguous, comprehensive, and exhaustive conditions regulating when the military forces must be employed.

The qualification of the problem statement is the core objective of the present study. However, the present research also aims at reaching a set of additional objectives such as:

  • To investigate theoretical aspects of the ‘right to react’ and its pertinence to the doctrine of humanitarian intervention.
  • To critically examine the key fundamentals of the humanitarian intervention doctrine.
  • To compare and contrast legal provision of the ‘responsibility to react’ and the humanitarian intervention doctrine.
  • To explicate all the pros and cons of the humanitarian intervention doctrine.
  • To make pertinent recommendations on the improvement of international humanitarian law through the proper implementation of the ‘responsibility to react’.

Additionally, the present research will provide exhaustive answers to a number of research questions. The research questions are enumerated as follows:

1) What is the nexus between the ‘responsibility to react’ and intrinsic concepts of the international legal system, including peace, justice, respect for human rights, etc.?

2) What is the main disparity between the acceptance of the doctrine of humanitarian intervention and a positive obligation of the international community to intervene?

3) How is it possible to protect international peace and security by prohibiting the use of force?

1.2. Definition of terms

In order to prevent semantic ambivalence and to ensure the terminological consistency of the study, it is decided to define the most relevant concepts, which are going to be used in the current dissertation. The definitions are formulated as follows:

a) The ‘responsibility to react’ should be regarded as the legal obligation to respond to situations of extreme threat to international peace and security by means of the humanitarian intervention in order to safeguard human lives, when the preventive measures have proven to be inadequate or fruitless. Sometimes, the terms ‘responsibility to react’ and the responsibility to protect are used as interchangeable. However, the sameness of the aforementioned concepts still needs to be proved.

b) The doctrine of humanitarian intervention must be recognized as a landmark doctrine of international public law, which determines all terms and conditions with regard to the state’s right to use military force against another state in order to cease violations of human rights in the targeted state or eliminate another extreme threat to international peace and security.

CHAPTER II: LITERATURE REVIEW

2.1. Theoretical dimensions of the ‘responsibility to react’

Article 24 (1) of the United Nations Charter states that ‘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 [...]’ (UN Charter, 1945, Article 24 (1)). The aforesaid prescription of the UN Charter underlies the international legal idea or, according to some scholars, the doctrine of the ‘responsibility to react’. Before the interpretation of the doctrine starts, it is necessary to construe the legal commitment of the UN Security Council, which is articulated in Article 24 (1) of the United Nations Charter.

The above-captioned article stipulates that the UN Security Council is obliged to preserve international peace and security because of several unambiguous reasons. First, the obligation to maintain international peace and security has been conferred on the UN Security Council as its primary responsibility by the member-states after signing the United Nations Charter. Second, it is incumbent on the UN Security Council to preserve international peace and security in order to guarantee timely and efficient action by the United Nations. Third, the UN Security Council must carry out its duties in the framework of the aforementioned responsibility on the behalf of the member-states.

In view of the above, it should be purported that Article 24 (1) of the UN Charter provides a concise and abstract determination of what the ‘responsibility to react’ is. Neither the aforesaid article nor other provisions of the UN Charter prescribe detailed instructions for the practical implementation of the ‘responsibility to react’. Assuredly, the lack of the comprehensive legal regulation of the ‘responsibility to react’ causes the Security Council’s failures to respond to different threats to international peace and security.

According to Hitoshi Nasu, the inability of the Security Council to react in the situation when Israel conducted its third massive military penetration into southern Lebanon in July 2006 undermines the general reputation of the UN Security Council as a responsive and accountable organ. In his study, Hitoshi Nasu emphasizes the fact that during 34 days of the third large-scale military raid by Israel across the southern Lebanese border, the UN Security Council, the organ primary responsible for the maintenance of international peace and security, was inactive.

The case of Israeli-Lebanese conflict clearly demonstrates the reluctance of the UN Security Council to interfere in the real military conflict at its early stage. The aforementioned military situation proves the insufficiency of the legal regulation of the ‘responsibility to react’. In other words, Article 24 (1) of the United Nations Charter does not specify all possible occasions when the UN Security Council must react.

The international community made attempts both to extend and explicate the constricted implications of Article 24 (1) of the UN Charter by way of elaborating the doctrine of the responsibility to protect. Despite visible sameness of the ‘responsibility to react’ and responsibility to protect, the two ideas are not interchangeable. Thus, according to Carsten Stahn, the term responsibility to protect has been elaborated by the International Commission on Intervention and State Sovereignty in its 2001 report ‘The Responsibility to Protect’ (Stahn, 2007, p. 99). In Stahn’s opinion, the key idea of the report is to show that it is incumbent on sovereign states to protect their own citizens from extreme catastrophes, such as mass murder, genocide, starvation, etc., but if the states are reluctant or unable to do so, the responsibility to protect must be carried out by the wider conglomeration of states.

Before the practicability of the responsibility to protect is verified, it is reasonable to analyze the original provisions of the doctrine incorporated in the report of the International Commission on Intervention and State Sovereignty. It should be purported that the analyzed report consists of eight main parts, such as: 1) the policy challenge; 2) a new approach: ‘the responsibility to protect’; 3) the responsibility to prevent; 4) the responsibility to react; 5) the responsibility to rebuild; 6) the question of authority; 7) the operational dimension; and 8) the responsibility to protect: the way forward.

Thus, the responsibility to react is considered to be one of the constituents which comprise the doctrine of the responsibility to protect. According to the report, the responsibility to react is one of the main elements of the responsibility to protect doctrine, which implies the commitment to respond to situations of overpowering human necessity with pertinent measures. The last may include measures of enforcement, such as sanctions and international prosecution, ‘and in extreme cases military intervention’ (ICISS, 2001, p. xi). In the introductory provisions of the report, the International Commission on Intervention and State Sovereignty clarifies that the responsibility to protect implies not just the responsibility to react, but the ‘responsibility to prevent’ and the ‘responsibility to rebuild’ as well.

The extent of the responsibility to protect is wider than the extent of the ‘responsibility to react’. Moreover, the preliminary analysis of the report evinces that the ‘responsibility to react’ is regarded as one of several constituents of the responsibility to protect doctrine. In order to determine whether the above-captioned part of the doctrine relates to the responsibility of the UN Security Council to react to extreme menaces to international peace and security, this report needs to be put under examination.

The creators of the report contend that the essence of the responsibility to protect lies in the provision of life-supporting guardianship and furtherance to population at risk. Thus, the responsibility to protect is complex and has three undeniable and vital components, including the responsibility to react. The fourth part of the report contains the comprehensive interpretation of what the ‘responsibility to react’ is. According to section 4.1 of the Report, the ‘responsibility to react’ must be carried out by the broader community of states only if a sovereign state is incapable or reluctant to correct the situation (ICISS, 2001, p. 29).

In December 2004, the aforementioned idea was accepted and construed in the context of the debate on the United Nations reform.  At that time, the High-Level Panel on Threats, Challenges and Change composed its own report on the consequences of humanitarian catastrophes in Somalia, Bosnia and Herzegovina, Rwanda, Kosovo, Darfur, and Sudan. In this light, the Panel’s report ‘A more secure world: our shared responsibility’ clearly articulates that the sovereign states are directly and primarily responsible for the protection of their own populations from humanitarian catastrophes, and when the states fail to carry out the responsibility to protect due to their unwillingness or incapability, the responsibility to do so must be taken up by the ‘wider international community’.

In this connection, Stahl assay that the report of the UN high-level panel extends the dimensions of the report of the International Commission on Intervention and State Sovereignty.

Returning back to the discussion of the ‘responsibility to react’, a mental note should be made that the report on the responsibility to protect speaks of tough threshold conditions, which must be satisfied before the military intervention is justified. In other words, the International Commission on Intervention and State Sovereignty agrees that the ‘responsibility to react’ may involve to the necessity to resort to military intervention only in extreme and exceptional cases.

However, the UN Charter contains no provision clarifying what an extreme case is. Thence, there is a problem of drawing the line in defining when military intervention is, prima facie, justifiable, or defensible. In addition to the question of justice, Simon Chesterman emphasizes the problem of legality. According to the researcher, the question of legality of the humanitarian intervention seems to be settled in the framework of the United Nations. That is, the UN Charter unambiguously forbids the use of military force, with the only exceptions being coercive actions authorized by the Security Council and self-defense .  This notwithstanding, Article 24 (1) of the UN Charter articulates that the enforcement actions may be authorized by the UN Security Council only in extreme cases of threats to international peace and security.

Hence, it follows that the International Commission on Intervention and Sovereignty of States correctly claims that the term ‘extreme cases’ is very abstract and obscure. Nevertheless, the ICISS suggests that the starting point in determining when military intervention is defensible should be the principle of non-intervention. According to section 4.12 of the ICISS’s report on ‘the responsibility to protect’, the principle of non-intervention in international affairs coincides with the medical principle of Hippocrates - ‘first do no harm’.  In this light, the ICISS correctly remarks that the intervention in the national affairs of states may be very harmful. Moreover, intervention can destabilize the social order of countries and cause the political turmoil. That is why the principle of non-intervention is advocated, and states are encouraged to solve their own internal problems and prevent them from growing into a menace to international peace and security.

It is possible to notice that the ‘responsibility to react’ is an exception to the principle of non-intervention. According to the report of the ICISS, the ‘responsibility to react’ is applicable only when all states are interested in preserving a stable international order under the circumstances requiring the states to respond ‘when all order within a state has broken down or when civil conflict and repression are so violent that civilians are threatened with massacre, genocide or ethnic cleansing on a large scale’.

The above-mentioned statement outlines the ‘extreme cases’ when it is incumbent on the UN Security Council to react under provisions of Article 24 (1) of the UN Charter. These ‘extreme cases’ should be specified as follows: a) the collapse of all order within a state; b) the extremely violent civilian conflict threatening with massacre, genocide, or ethnic cleansing on a large scale; c) the extremely violent repression menacing with massacre, genocide, or ethnic cleansing on a large scale.

Elaborating on the research, it is possible to add that the ‘responsibility to react’ with military enforcement is only justifiable when the ‘responsibility to prevent’ has been depleted. This means that, in ‘extreme cases’ mentioned above, the Security Council, as well as any other pertinent international body, is required to undertake all possible measures of prevention prior to the fulfillment of the ‘responsibility to react’. However, the ICISS remarks that some cases require immediate response, and, therefore, the preventive measures can have no time to work themselves out. In such circumstances, the UN Security Council must have reasonable grounds to believe that the employment of preventive measures would have never succeeded.

After everything has been given due to the consideration, it is possible to infer that the ‘responsibility to react’, which is prescribed in Article 24 (1) of the UN Charter, overlaps the ICISS’s responsibility to protect. The term responsibility to protect is wider than the concept of ‘responsibility to react’. Actually, protection means not only military response but also reconstruction and prevention.

In the context of the ‘responsibility to react’, it should be pointed out that Article 24 (1) of the UN Charter provides only general conditions on when the UN Security Council is obliged to react. Also, the aforesaid article of the UN Charter stipulates when the reaction of the UN Security Council is justifiable and defensible. Nonetheless, the provisions of the UN Charter are insufficient for the proper carrying out of the responsive measures.

In order to eliminate the problem of deficiency in legal regulation of the responsibility to react, the International Commission on Intervention and State Sovereignty has adopted the doctrine of the responsibility to protect. In this doctrine, a large number of significant issues, such as humanitarian intervention and ‘responsibility to react’, are interpreted. Thus, the comparative analysis of the UN Charter and the ICISS’s report on the responsibility to protect provides reasonable grounds to state that the report extinguishes the dimensions of the UN Security Council’s ‘responsibility to react’ by designating conditions and limitations in respect of cases when the ‘responsibility to react’ must be fulfilled. The two international documents, the UN Charter and ICISS’s report on the responsibility to protect, help to summarize the theoretical dimensions of the ‘responsibility to react’ in the following points:

  • Along with the ‘responsibility to prevent’ and ‘responsibility to rebuild, the ‘responsibility to react’ is a constituent of a wider international legal doctrine - the responsibility to protect.
  • Article 24 (1) of the United Nations Charter forms the legal basis for the ‘responsibility to react’.
  • The ‘responsibility to react’ means the obligation of the international community to respond to situations of extreme human need with pertinent measures, including measures of enforcement, such as sanctions and international prosecution, and, in extreme cases, military intervention.
  • The ICISS defines ‘extreme cases’ in a which military intervention is justifiable and defensible. They are civil turmoil, genocide, massacres, terrorism, etc.

After the critical review of the ICSS’s report and the relevant provisions of the UN Charter dealing with the ‘responsibility to react’, a mental note should be made that the doctrine of the responsibility to protect is to a certain degree undeveloped. Thus, Carlo Focarelli finds out that the contemporary humanitarian intervention aims at implementing the responsibility to protect, and such implementation ‘is not only feared as imperialistic by several weak states, but it also fails to find an unconditioned support even amongst the most powerful states’.  Focarelli contends that the innovative nature of the responsibility to protect as an emerging legal norm, as well as the prospects of this norm to emerge in the future, remains rather unclear than distinct.

Thus, further investigations need to be conducted in order to clarify the capabilities and limitations of the responsibility to protect doctrine, emphasizing its constituent of the ‘responsibility to react’.

Code: Sample20

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