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The Afghan crisis and right to protect policy of UN

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Founder Director Lokbandhu Rajnarayan Law College Varanasi 221302 web: Since 2004

The Afghanistan crisis of 2021 has raised the crucial problem of the choice of means in protecting lives and human rights of civilians. Authorized by the international community as part of military operations, the use of force in protecting civilians has revived the concept of ‘humanitarian war’ and has raised a number of issues for humanitarian organizations, in particular concerning the notion of neutral, impartial, and
independent humanitarian action. The Afghan conflict is of significant size, intensity, and length, there is more likelihood of human rights violations and an increased potential to cross international borders. In light of rising barbarism and women right insensitivities, the possibility of regional instability and fomenting disturbances in other States are  also legitimately making a situation a “danger” or “threat” to the peace.

My article focuses on these humanitarian issues and, inter alia, on the possible impact on humanitarian action of the concept of the Responsibility to Protect by United Nations, which should be made the basis of the intervention in Afghanistan. What drastically is concerning is the impact on neighboring States. The jurisdictional limitations of international law are inherent in situations where internal conflict and human rights violations coincide, such as in the Syrian Civil War, Libya crisis Armenia- Ajerbaijan war or now the ongoing Afghan crisis, mainly due to national self-determination and state sovereignty demonstrating barriers in enabling intervention. The super powers like US & Russia have based their respective engagement in the war or any sort of humanitarian  intervention on the policy objectives they prioritize as it is common saying that US never loses a war it loses the interest as in Crimean and Vietnam wars.

Citing the example of Libya, the Security Council adopted Resolution 1973 On 17 March 2011 authorizing the use of force in Libya. While Germany, Brazil, China, India, and Russia abstained, the resolution drafted by France and the United Kingdom and co-sponsored by Lebanon and the United States received ten favourable votes out of fifteen (South Africa, Bosnia and Herzegovina, Colombia, France, Gabon, Lebanon, Nigeria, Portugal, the United Kingdom, and the United States). Focusing on protecting the civilian population, Resolution 1973 called for an immediate cease-fire and the complete cessation of violence against civilians.

It authorized Member States to take all necessary measures to protect civilians under the UN Charter, while excluding any form of occupation of Libyan territory. ‘No-Fly Zone’ over Libyan airspace was implemented. Finally, extended the other coercive measures like trade embargo.

These  calls for the protection of civilians rights, implicitly attract the concept of the Responsibility to Protect(R2P). R2P provides that every state has the primary responsibility of protecting populations within its jurisdiction against acts of genocide, war crimes, ethnic cleansing, and crimes against humanity. However, if the concerned state is unable or reluctant to stop these crimes, the international community as a whole has a collective and subsidiary responsibility to take appropriate measures to ‘protect the civilian population’ who are victims of war crimes, crimes against humanity, genocide, or ethnic cleansing.

Specifically, R2P rests on three pillars: first the responsibility of each state; second, the responsibility of the international community to support a particular state in exercising its responsibility to protect its people; and finally, in cases where a state fails in its duty, the responsibility of the international community to take diplomatic, humanitarian action or other means to stop these violations. While initially non-violent, these additional measures may be extended to armed or unarmed coercive means, as authorized under Chapter VII of the UN Charter.

Origin of Right to Protect

The word right to protect was conceptualized in the World Summit Outcome Document 2005 after long and arduous negotiations between states. This concept got the strength from Security Council resolution on ‘Protection of Civilians in Armed Conflict’. This resolution attempts to reconcile national sovereignty –a cardinal principle of international law dear to emerging countries and the controversial ‘right or duty of humanitarian intervention’. The rulers of a state that is violently attacking its own civilian population now know, in wake of these resolution, that a reaction up to and including the use of force against them is possible, even if not always probable. Even Chapter VII of the United Nations Charter sets out the UN Security Council’s powers to maintain peace. It allows the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to take military and non-military action to “restore international peace and security”.

The UN has been incredibly successful in increasing the willingness of states to come to a consensus on global goals and has enabled the development of international law and customary norms for state behavior. The social ramifications of violating expectations of state policy act as a deterrent against the majority of infractions, and the UN is a vital platform for providing states with a forum to voice their opposition to a nation’s behavior. But  in today’s scenario it is in dire need of redress.

By reforming the structure of the United Nations Security Council and reassessing state promotion of their humanitarian objectives, the international community can have the capacity and capability to respond to the complex threats modern conflict poses to international peace and security. The UN Security Council have to act on new grounds carved out for international concern and jurisdiction. In case the state is not competent to deliver humanitarian assistance to its subjects the situation itself permits intervention without State consent. These sorts of contemporary conflicts may attract no outside assistance but profound humanitarian or human rights abuses may result.

The comment from Antoine Rougier, published in 1910 in an article on humanitarian intervention is not only significant but apparently looks true in many humanitarian interventions adopted by the US:The conclusion that emerges from this study is that it is virtually impossible to separate the humanitarian from the political motives for intervention and to ensure the absolute disinterestedness of the intervening states. We will notsay that respect for human rights will never be an accessory motive to an intervention: history has shown that it can sometimes be a main reason, but it will never be a unique motive.

From the moment that the intervening powers are judges of the appropriateness of their own action, they will consider this opportunity from the subjective point of view of their current interests. Among many inhumane acts of which they are spectators, they will in preference repress the one that in some respect is harmful to them.

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Founder Director Lokbandhu Rajnarayan Law College Varanasi 221302 web: Since 2004
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