İNSAN HAKLARI

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such killing members of the group. The correct answer is A.

In 1948, two milestones took place a day apart. On 9 December 1948, the UN General Assembly adopted the “Convention on the Prevention and Punishment of the Crime of Genocide”, which codified the crime of genocide and became the earliest human rights treaty agreed by the UN General Assembly (UNOGPR2P, n.d.). The next day, the General Assembly ratified the “Universal Declaration of Human Rights” (UDHR). The correct answer is C.

In its 1994 Human Development Report, the UN Development Programme (UNDP) placed the focus on the people-centred approach of human security, and basically defined it as “freedom from fear and want” (King and Murray, 2001-02, 585) in relation to the main components of economic, food, health, environmental, personal, community and political security (Kaldor, 2008, 182). The correct answer is B.

Note that humanitarian intervention and humanitarian aid are not the same concepts and cannot be used interchangeably. The latter as an action is peaceful in character, and it is not in conflict with the notion of state sovereignty as its deployment is based on the consent of the host state. On the other hand, humanitarian intervention is a forceful measure that can be undertaken with or (most commonly) without the consent of the host state (Griffiths and O’Callaghan, 2002, 145-147). The correct answer is D.

When we look at the definition of humanitarian intervention more closely, we see that it refers to an external use of military force with the aim of stopping mass atrocities already happening on the territory of a third state. It can be undertaken unilaterally or collectively, with or without a Security Council authorisation, or the consent of the state that is subjected to the intervention. The correct answer is A.

“Sovereignty as responsibility” understanding was first introduced in the 1990s by Francis Deng and his colleagues. Based on this, the ICISS (2001a, p. 13) argues that “sovereignty as responsibility” also implies that national authorities have the responsibility to protect their populations and that they are accountable for their acts of commission and omission”. The correct answer is B.

The first pillar focuses on “state responsibility”, while the second is concerned about “international assistance and capacity-building”. On the other hand, the third pillar aims for a “timely and decisive response”. The correct answer is A.

Reflecting on the case of Syria, Hollande considered the veto as the core of the problem, and urged the permanent members to adopt “a code of good conduct”, which meant that on a voluntary basis the permanent members would commit themselves to not to cast the veto while considering mass atrocity crime situations (Gözen Ercan, 2016, 122). The correct answer is C.

Paragraph 138 of the 2005 World Summit Outcome Document on R2P: “138: Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it." The correct answer is D.

In the 2005 report, R2P was introduced under the title of “the Rule of Law”, in connection with the “freedom to live in dignity” while the criteria for intervention were dropped and the scope for invoking R2P was narrowed down (Gözen Ercan, 2016, 62). The correct answer is D.

Notwithstanding the positive steps taken as to the universalisation of human rights and fundamental freedoms under the roof of the UN, as the Cold War progressed, new areas of debate emerged with the mass atrocities that were being committed in different parts of the world. As can be understood from Article 1(1) of the UN Charter, the primary purpose of the UN is “to maintain international peace and security” (UN, 1945). To this end, the principles of sovereignty, equality and non-interference in the domestic affairs of states (as enshrined under Article 2 of the UN Charter, consecutively in Paragraphs 1 and 7) along with the prohibition of the threat and use of force (as established under Article 2(4) of the UN Charter) were adopted as acting principles. With reference to international practice, it is possible to observe that during the Cold War years, the UN Security Council strictly upheld the sovereignty of states on grounds of these principles even in the face of mass atrocity crimes that were committed, while the use of veto by the permanent members was a critical factor hampering a healthy decisionmaking process in the Council. In this regard, based on state practice although some scholars claim that there were exemplary practices of what is contemporarily regarded as humanitarian intervention, it is not possible to argue that this was an internationally recognised understanding. In the literature, there are three Cold War era cases that scholars refer to as precedents of contemporary understanding of humanitarian interventions wherein external military force was used to intervene in states experiencing mass violations of human rights. These are the cases of India’s intervention in East Pakistan in 1971, Vietnam’s intervention in Cambodia in 1978, and Tanzania’s intervention in Uganda in 1979. In these three cases, the intervening states based their unilateral uses of military force on the inherent right of self-defence as established under Chapter VII of the UN Charter, specifically Article 51. Their main argument was that the internal situation in their neighbouring countries constituted a threat to their security and territorial integrity (Gözen Ercan, 2016, 43-45).

Paragraph 201 introduces R2P as follows: “[…] There is a growing recognition that the issue is not the “right to intervene” of any State, but the “responsibility to protect” of every State when it comes to people suffering from avoidable catastrophe–mass murder and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation and exposure to disease. And there is a growing acceptance that while sovereign Governments have the primary responsibility to protect their own citizens from such catastrophes, when they are unable or unwilling to do so that responsibility should be taken up by the wider international community—with it spanning a continuum involving prevention, response to violence, if necessary, and rebuilding shattered societies. The primary focus should be on assisting the cessation of violence through mediation and other tools and the protection of people through such measures as the dispatch of humanitarian, human rights and police missions. Force, if it needs to be used, should be deployed as a last resort” (UNGA, 2004).

Humanitarian intervention “the use of military means ‘across state borders’ by a state, a group of states, or an international and/or regional organisation (Abiew, 1998, 18) in order to prevent or halt ‘widespread and grave violations of the fundamental human rights of individuals other than [… the intervener(s)’s] own citizens’, (Holzgrefe, 2003, 18) with or without the consent of the target state that is subjected to the use of force in its own territory as a result of the intervention” (Gözen Ercan, 2016, 18-19).

Pillar one is about states’ responsibility to protect their populations from the commission and incitement of the four atrocity crimes, which is summed up with the notion of sovereignty as responsibility. Pillar two is about the international assistance to be provided to states to enable them in fulfilling their responsibility to protect their populations. Pillar three is about devising a collective, “timely and decisive response” in the case of the failure of a state, which can be delivered through measures ranging from peaceful to coercive. Within this pillar, the use of force can be utilised only as a last resort with the authorisation of the Security Council under the mandate of Chapter VII of the UN Charter.

Accordingly, at the state level sovereignty as  responsibility understanding was embraced, while at the international level the international community was deemed responsible for the protection of populations when states are unable. Under the separate heading of the “Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes Against Humanity,” Paragraph 138 defined states’ own responsibility to protect their populations from the four grave crimes of genocide, war crimes, ethnic cleansing and crimes against humanity” (hereinafter, mass atrocity crimes), and includes the prevention of these crimes as well as their incitement (UNGA, 2005b). While the international community’s responsibility to assist states in fulfilling their individual responsibility was referred to in Paragraph 138, Paragraph 139 urged for collective action on a case-by-case basis. Such action is to be undertaken with the mandate of the Security Council, first through means pertaining to Chapter VI and Chapter VIII of the UN Charter. The Paragraph also noted that in grave circumstances the use of force can be carried out only as a last resort by the sanctioning of the Security Council under the mandate of Chapter VII.

Pillar one is about states’ responsibility to protect their populations from the commission and incitement of the four atrocity crimes, which is summed up with the notion of sovereignty as responsibility. Pillar two is about the international assistance to be provided to states to enable them in fulfilling their responsibility to protect their populations. Pillar three is about devising a collective, “timely and decisive response” in the case of the failure of a state, which can be delivered through measures ranging from peaceful to coercive. Within this pillar, the use of force can be utilised only as a last resort with the authorisation of the Security Council under the mandate of Chapter VII of the UN Charter.

In its report, the ICISS introduced the concept of the Responsibility to Protect, which is commonly abbreviated as “R2P” (and also as “RtoP” in the literature). The main aim of the Commission was to shift the terms of the debate from the existence of a “right to intervene” towards establishing a “responsibility to protect”. Especially in the post-Cold War era, pro-intervention states have interpreted humanitarian intervention as a “right to intervene”, which meant that they could intervene if and whenever they wanted. Such approach is highly problematic from human security and international law perspectives. First, the acceptance of a right to intervene does not assure that there will be a timely response to mass atrocities. When humanitarian intervention is perceived as a right, it means that states are not obliged to take action but can or may do so if they want to. This, in return, as it was experienced in Rwanda in the 1990s, may result in inaction even when an intervention is obviously necessary to protect populations. Moreover, it does not include in its toolkit measures for enabling prevention or post-intervention reconstruction. Second, from a legal perspective, the interveners are not obliged to obtain the Security Council’s authorisation as humanitarian interventions can be carried out by a variety of actors (such as but not limited to a willing state, a coalition of states, a regional and/or international organisation) without an obligation to acquire consent or authorisation. Hence, as it was the case in the Cold War era examples, it makes unilateral interventions much easier and abuses of the doctrine more likely. Overall, such shortcomings constitute a challenge to the sovereignty, territorial integrity and political independence of the targeted state, as well as to the prohibition of threat and use of force (ICISS, 2001a, 16).

Humanitarian intervention “the use of military means ‘across state borders’ by a state, a group of states, or an international and/or regional organisation (Abiew, 1998, 18) in order to prevent or halt ‘widespread and grave violations of the fundamental human rights of individuals other than [… the intervener(s)’s] own citizens’, (Holzgrefe, 2003, 18) with or without the consent of the target state that is subjected to the use of force in its own territory as a result of the intervention” (Gözen Ercan, 2016, 18-19).

Human security According to the Commission on Human Security (2003, 4), the term refers to “protecting fundamental freedoms— freedoms that are the essence of life[;] … protecting people from critical (severe) and pervasive (widespread) threats and situations[;] …using processes that build on people’s strengths and aspirations[;] … creating political, social, environmental, economic, military and cultural systems that together give people the building blocks of survival, livelihood and dignity”.

A Three Pillar Strategy for Implementing R2P In the report, based on the consensus of 2005, Ban focused on devising a three-pillar strategy directed towards tackling issues related to R2P’s implementation. The three-pillar strategy took up on the two responsibilities—prevention and reaction—that were reflected in Paragraphs 138 and 139 of the World Summit Outcome Document. Accordingly, in line with Paragraph 138, the first pillar focuses on “state responsibility”, while the second is concerned about “international assistance and capacity-building”. On the other hand, the third pillar aims for a “timely and decisive response” as enshrined under Paragraph 139.