The applicability of the Doctrine of Responsibility to Protect (R2P) in Syria in perspective of Terrorism

LLM International & European Law

Tilburg Law School

Tilburg University

The applicability of the Doctrine of Responsibility to Protect (R2P) in Syria in perspective

of Terrorism

Syeda Sabita Amin

ANR: 883421

Student Registration Number: U1262761

Supervisor: Mr. Dr. A. Meijknecht

Second Reader: Prof. Willem J.M. van Genugten

31st August 2015

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Acknowledgements

It is without a doubt that I would never have been able to get as far as I am today without the

support I have had from my mentors, peers and close ones.

I would like to personally thank Professor Anna Meijknecht for her guidance and support during

my program as well as during the period of my master’s thesis as my supervisor and for her

thoughtful support with my personal life. Additionally I am thankful to Professor Willem van

Genugten for taking the time to be my second evaluator in such short notice.

Furthermore I would like to personally thank my peers Maxime van Gerven, Maria Jose Recalde

Vela and Christina van Kujick for their support with my thesis.

To my parents, loved ones and closest of friends, I am nothing without you and would not have

made it without you.

This is moreover dedicated in loving memory of my older brother; my tormentor, my mentor, my

friend.

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List of Abbreviations

The Arab League AL

Advisory Council on International Affairs in the Netherlands AIV

Al-Nusra Front ANF

Al Qaeda in Iraq AQI

Syrian Arab Republic CoI

Counter-Terrorism Committee CTC

The Free Syrian Front FSA

Gulf Cooperation Council GCC

International Criminal Court ICC

The International Covenant on Civil and Political Rights ICCPR

The International Commission on Intervention and State Sovereignty ICISS

The International Centre for the Study of Radicalization and Political Violence ICSR

Internally Displaced People IDP

Middle Eastern region and North Africa MENA

Organization of the Islamic Conference OIC

Organization for the Prohibition of Chemical Weapons OPCW

Syrian National Council SNC

United Nations UN

United Nations General Assembly UNGA

United Nations Commission on Human Rights UNCHR

United Nations Supervision Mission in Syria UNSMIS

United Nations Security Council UNSC

UN Secretary General UNSG

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Table of Contents

Introduction 5

1.1 Research Question 6

1.2 Methodology and Approach 7

1.3 Purpose of the Research 8

Chapter 2: Legal Framework 9

2.1 The Doctrine of Responsibility to Protect, Humanitarian intervention and the Middle East 9

2.1.1 Definition and sources of R2p 9

2.1.2 R2P in connection with Humanitarian and Military Intervention 18

2.1.3 Differences between R2P and Humanitarian Intervention 20

2.2 R2P and the Middle East 22

2.3 Terrorism 22

2.4 Sub-conclusion 27

Chapter 3: The Middle East 28

3.1 The Arab Spring 28

3.2 Libya 28

3.3 Syria 31


Chapter 4: Syria and the up-rise of Terrorist Actors 37

4.1 Terrorist Actors and Organizations in Syria 37

4.2 Definition of crimes under International Criminal Law 40

4.2.1 Crimes against Humanity and War Crimes 40

4.2.2 Genocide 42

4.2.3 Sexual Slavery, Rape and Enslavement 42

4.2.4 Recruitment of Child Soldiers 43

4.3 Other problems caused by Terrorist Operations 44

4.3.1 IDP and Refugee Crisis 44

4.3.2 Instability and Increase in Foreign Fighters 45

4.4 Response towards Terrorism in Syria 45


Chapter 5: Analysis, Applicability of R2P, and the Future of Syria 47

5.1 Applying R2P to Syria 47

5.2 Difference between Libya and Syria 51

5.3 The future of Syria and the Responsibility to Rebuild 52


Conclusion 54

Bibliography 56

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Introduction

The reoccurrence of horror from mass atrocities has been one of the most troubling characteristics

of international law and human rights. Furthermore, the inability to swiftly have a solution to these

crimes has been equally disappointing. The declaration which was made after World War II of

“Never Again” to genocide was codified in the Convention on the Prevention and Punishment of

the Crime of Genocide1 has persistently shown that states have continued breaching the declaration

and failing human rights.

Without a doubt International law has seen numerous developments over the decades. An

increasing consciousness towards grave human rights violations on major scales has brought

attention to the people around the world and has shown the importance to the international

community to have responsibility towards their states as well as keep an eye out on other states

which are in violation. Treaties have made states not only obliged to protect its citizens, but enables

other states to scrutinize for wrong actions. The concept of responsibility to protect has been one

of the most notable recent contributions to the development of international law and the defence

of human rights.

Although nations may be state parties to treaties and agree to protect the fundamental freedoms of

its citizens and to protect it from any threat including ones from itself, this has not been in the case

and if there is anything that history has taught us it is how even states sometimes betray its nationals

and fail by international standards. A vast number of conflicts around the world have been internal

and in recent years, the Arab Spring has caught the attention of the world.

Humanitarian intervention has been a feature of the international system and its theory is based on

the assumption that states with relation to their own citizens have certain obligations which are

fundamental and basic in nature in order to maintain a standard of relationship with other states2.

There has always been growing concern as to how a crisis in a given state may have regional or

1 United Nation General Assembly (UNGA), Res 260 (III) A (9 December 1948) 2 FK Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention (Kluwer Law

International, 1999)

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international consequences and how turning a blind eye towards it could lead to deleterious

outcomes3.

The events of the Arab Spring brought to attention issues concerning international law concerning

human rights, democracy and fair and electoral processes, the use of force and the operation of

UN Collective security system and sanction and prosecution of international crimes. The theme

that prevails the most from the Arab Spring is the Doctrine of Responsibility to Protect (Hence

forth referred to as R2P).

The concept of R2P has been a lengthy developing process which will be discussed in the coming

sections of this paper. The important issue of this paper is as to how R2P was applied in the case

of Libya where there was the NATO-led UN-mandated intervention to which the UN Secretary

General (henceforth referred to as UNSG) Ban Ki-moon stated that it marked the “coming of age”4

of R2P, however, March 15th marked four years of the conflict in Syria5 and there has been no

intervention. The casualties from the conflict in the last few years have gone into hundred-thousand

with millions of civilians in the state being displaced with the situation continuing to deteriorate

as days pass. The consequences of not applying R2P will be discussed from terrorism prospective

rather than focusing on the civil war and sectarian violence that has been ongoing in Syria,

although there will be an introduction of the civil war in Syria to understand the complete

framework of the thesis.

1.1 Research Question

My research question concerns the conflict which has been ongoing in Syria for the last four years,

and the applicability of the doctrine of responsibility to the situation. The conflict goes on to

highlight the limitations of the doctrine which is discussed in the thesis. Therefore, more precisely,

the central research question of this thesis reads as follows

3 For example the Rwandan genocide as well as Srebrenica. Delay in intervention led to catastrophic turn of

events in a very short period of time. 4 ‘Responsibility to Protect Came of Age in 2011, Secretary General Tells Conference’ (UN Press Release, 18

January 2012) available at <http://www.un.org/press/en/2012/sgsm14068.doc.htm> 5 R Spencer & R Sherlock, ‘Syria’s Four years of Death and Despair: How ordinary lives have change beyond description’ (The Guardian, 15 March 2015) available at

<http://www.telegraph.co.uk/news/worldnews/middleeast/syria/11472832/Syrias-four-years-of-death-and-

despair-how-ordinary-lives-have-changed-beyond-description.html> [accessed August 15th 2015]

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“Given the political dynamics since the Arab Spring and in particular the rise of terrorist actors

in Syria, to what extent can the Doctrine of Responsibility (R2P) be perceived as a tool to solve

the conflict in Syria?”

1.2 Methodology and Approach of the thesis

The legal research methodology is the main method to analyse the research question. Primary

sources, such as international legislation and case-law, will be analysed to provide a theoretical

framework. In addition, to give an accurate portrait of reality, secondary sources such as United

Nations Security Council Resolutions, academic literature and news articles will be used to fill the

gaps caused by primary sources.

Furthermore, this topic is indeed difficult and sensitive to analyse as there are multiple factors

which question the chain of events occurring in the Middle East and North Africa. For one, the

doctrine of R2P is still relatively young and the as my paper discusses terrorism, terrorism has

been in the eye mostly since 9/11 which was in 2001, hence it can also be considered a new aspect

of international law although the idea of terrorism has been around for centuries. This thesis

consists of an interdisciplinary research. On the one hand the legal framework will be analysed

and on the other hand it will focus on current status of the war in Syria and as to why there may

be a possibility for R2P not working as well as it did in Libya (in Syria).

This thesis will look at whether R2P is a good tool to use for intervention in Syria and be as

productive as it was in Libya or whether it will not work due to the difference of certain

circumstances (mainly the involvement terrorist actors and organisations in Syria).

I will begin discussing my thesis on a theoretical perspective initially which discusses the doctrine

of R2P as well as a discussion on terrorist actors and conclude with the theoretical problems that

arise from the applicability of R2P to terrorism.

Subsequently, the following chapters proceed with the empirical framework which discusses the

beginning of the Arab Spring with an introduction on the intervention in Libya as it was the first

time R2P was applied,6 following to the current situation in Syria.

6 United Nations Security Council (UNSC), Res 1973 (17 March 2011) UN Doc S/RES/1973

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Subsequently, the following chapter proceeds to talk about the social vacuum which has been

generated and has created a rise in terrorist actors. This section further goes on to discuss the crimes

under international criminal law which have been committed by the terrorist actors and

organizations.

Before concluding the thesis, I aim to discuss the application of R2P in Syria along with the

differences between the interventions in Libya compared to that of Syria. Before the sub-

conclusion of the chapter, I discuss the future of Syria in light of the doctrine of R2P and what

may be terrorist actors supposing the intervention is successful.

1.3 Purpose of the Research

Post the September 2001 attacks, the world has declared a “War on terrorism” and Islamic

fundamentalist groups around the world continue their operations and have been on the rise. The

Middle East has always been one of the most volatile regions of the world and currently with the

with the Syrian civil war entering its fifth year as well as the growth of the Islamic State of Syria

and Levant (ISIL) which marked their one year anniversary recently,7 the situation has been

deteriorating every day in Syria and the question to assist innocent civilians caught in the battle is

presented to the world. This thesis is an attempt to summarise the situation in Syria as well as to

understand the importance intervention in order to uphold the values of universal human rights to

the Syrian people.

7 L Dearden, ‘Isis Expected to carry out ‘more violence, more advances, more attacks’ as one year anniversary

of Islamic State declaration approaches’ (The Independent, 26 May 2015) available at <http://www.independent.co.uk/news/world/middle-east/isis-expected-to-carry-out-more-violence-more-

advances-more-attacks-as-one-year-anniversary-of-islamic-state-declaration-approaches-10277072.html>

[accessed August 15th 2015]

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Chapter 2: Legal Framework

The doctrine of R2P is a relatively new concept which is still said to be in its infancy. Similarly,

although humanitarian intervention may not be a new concept, and neither is terrorism, a lack of

legal definition creates a sense of ambiguity which makes it difficult for organisations in relation

to have standard precedence when either humanitarian crisis occur or when there terrorist activities

which are to cause the same . How can these theories be understood without clear legal definitions

and would the problems which arise from it be able to be solved with the lack of it? Furthermore,

what would constitute for the serious of the crime in order to have an intervention? This chapter

goes on to explain the various concepts in order to understand the legality of the theories in light

of recent events concerning the doctrines.

2.1 The Doctrine of Responsibility to Protect, Humanitarian intervention & the Middle East

Although it may seem that the doctrines of humanitarian intervention and R2P have similar roles,

the two doctrines are quite distinct from one and another. The following subsection provides the

sources for the principles and their requirements in the realm of international law.

2.1.1 Definition and Sources of R2P

“…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

offend every precept of our common humanity.”8

By definition, responsibility denotes to “actions or forbearances that one is deemed bout to perform

or observe”.9 In the first instance, the primary duty bearers of the R2P are states, and in addition

the international community through the United Nations (henceforth referred to as UN)

furthermore have the responsibility to use applicable diplomatic, humanitarian and other peaceful

methods to protect populations with authorization of the United Nations Security Council

(henceforth referred to as UNSC).10 According to the International Humanitarian Law and the

Responsibility Handbook by the Australian Red Cross, the International Community may refer to

8 K Annan, “We the Peoples”: The Role of the United Nations in the 21st century: Millennium Report of the

Secretary General, A/54/2000 (2000) 9 WA Knight & F Egerton, The Routledge Handbook of the Responsibility to Protect (Routledge, 2012) 10 United Nations General Assembly (UNGA), World Summit Outcome: Resolution Adopted by the General Assembly, UN GAOR, 60th session, Agenda Items 46 and 120, UN Doc A/Res/60/1 (2005)

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states working together through the UN, however, as there is no agreed definition of what

‘international community’ is, while it is evident that responsibility is born by states, it is also

possible to extend this to implement responsibility to non-state actors, non-governmental

organizations and civil society. 11 This is moreover extended according to Knight, that the

definition is “primarily concerned with moral as opposed to causal responsibility.”12 Which in

other words is about who must face consequences rather than the one who caused them. R2P is

related to the notion that states have not only the duty to protect its people to its ability but are

inclined to do so as a moral duty. Similarly, Becker agrees to the definition of responsibility to a

certain extent as he goes on to state that the term responsibility is occasionally used

interchangeably with the notion of ‘obligation’ and that when a state is held ‘responsible’ for an

unlawful act or omission, it bears the legal consequences that flow from the breach of its legal

duties.13

Since the Treaty of Westphalia of 1648 which established ground rules for relations between states

and the fundamental principles of integrity and inviolability of territorial borders, without losing

its essence the definition of sovereignty has been redefined over time14. Sovereignty demands

amongst others the power to wield authority over all individuals living in a territory as well as the

noninterference of other states in national issues15. This notion is legally protected under articles

2(4) and 2(7) of the UN Charter:16 the prohibition of the use or threat of force against the territorial

integrity or political independence of states, and the obligation of the UN not to intervene in the

domestic jurisdiction of states, with the exception of Chapter VII measures.17

It was after the genocide in Rwanda in 1994 as well as the bombing in Kosovo by the North

Atlantic Treaty Organization (henceforth referred to as NATO) was the concept of sovereignty

revisited; does the international community have to rely on the principle of non-interference if a

11 Australian Red Cross, International Humanitarian Law and the Responsibility to Protect (2011) 12 Ibid. 13 T Becker, Terrorism and the State; Rethinking the Rules of State Responsibility (Oxford Hart Publishing, 2006) 14 However, as Genser goes on to state, in light of globalization and a borderless world, in the words of the

former United Nations Secretary General Kofi Annan, the creation of “problems without passports” exist which

demand a paradigm of understanding and response. J Genser, & I Cotler, The Responsibility to Protect: The

Promise of Stopping Mass Atrocities in Our Time (OUP, 2012) 15 A Cassese, International Law (OUP, 2005) 16 United Nations, Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI 17 These articles are further analyzed in the subsequent chapters

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state commits atrocities against its own citizens, and is humanitarian intervention legitimate

without the approval of the UN?18

Deng, a former Sudanese diplomat, as well as additional authors pursued to change the

understanding of sovereignty from the classic Westphalian and provided that legitimate

sovereignty requires responsibility for good governance and accountability to the international

community, with a higher authority capable of holding the sovereigns accountable.19 Former UN

Secretary-General Kofi Annan continued this line of thought by stating that sovereignty is

redefined by globalization as well as international cooperation, which is composed of human rights

and responsibilities.20

In 1999, The United Nations General Assembly (henceforth referred to as UNGA) revisiting the

tragedies and failures towards protecting Rwanda and Kosovo, and former UN Secretary-General

Kofi Annan21 stressed the need for change towards international attitude regarding humanitarian

crises’.22 The Canadian Government reacted inter alia with Annan’s notes and established in

September 2000 The International Commission on Intervention and State Sovereignty (henceforth

referred to as ICISS or The Commission), which was challenged to write a report called “The

Responsibility to Protect” in December 2001, that elaborated the concept of R2P and intended to

replace a compromised idea of humanitarian intervention.23 In the Commission’s report it is

marked that states bear the responsibility on key principles of the responsibility to prevent, react,

and rebuild.24 Furthermore, it is elaborated that the concept of R2P was established on the core

18 AJ Bellamy, ‘The Responsibility to Protect’, in PD Williams (ed), Security Studies. An Introduction (Routledge, 2013) 19 FM Deng, S Kimaro, T Lyons, D Rothchild & I Zartman, Sovereignty as a Responsibility: Conflict

Management in Africa (Brookings Institution Press, 1996) 20 UN Secretary-General, Secretary-General Presents his Annual Report to the General Assembly. Press Release,

20 September 1999, UN Doc. SG/SM/7136 GA/9596. 21 Kofi Annan was Secretary-General for the period 1999 to 2006 and during the 54th session of the UN General

Assembly in 1999 he was the then Secretary-General. 22 P Heinbecker, ‘Human Security: The Hard Edge’ (2000) Canadian Military Law Journal 11 23 However, the report was written before the atrocious terrorist attacks in of September 2001 and therefore

various issues were not included in the report and a drastic change in America’s foreign policy created problems

in the interpretation of intervention; D Gierycz, ‘From Humanitarian Intervention (HI) to Responsibility to Protect (R2P)’ (2010) 29(2) CJE 110 24 International Commission on Intervention and State Sovereignty (ICISS), Report of the International Commission on Intervention and State Sovereignty, the Responsibility to Protect (IDRC, 2001)

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basics of principle of state sovereignty as well as that of non-interference. The report goes on to

state that the central theme about R2P as

“the idea that sovereign states have a responsibility to protect their own citizens from avoidable

catastrophe – from mass murder and rape, from starvation – but that when they are unwilling or

unable to do so, that responsibility must be borne by the broader community of states.”25

In principle, the definition of sovereignty which was crafted in the report by the Commission did

not derive on the principle of sovereignty as a state prerogative, but on the primary responsibility

of the state to protect its citizens.26 Although the report was received favorably by states such as

Germany, Canada, and the United Kingdom, others such as Russia, China and the India rejected

this report27. Following the events of 9/11 as well as the proceeding invasion of Iraq in 2003 by

the perversion of R2P’s principles which were used by the Bush Administration for the

justification of the invasion,28 at the 2005 World Summit over 150 accepted a more nuanced form

of R2P.

Even though the 2005 document is not an international treaty or a formal legal instrument29, but

rather a document which was adopted by the UNGA and is not subject to treaty interpretation

under the Vienna Convention on the Law of Treaties30, specifically under paragraphs 138 along

with 139 would go on to summarize legal rules which are contained in various instruments and

conventions such as the Convention on the Prevention and Punishment of the Crime of Genocide31

25 Ibid. 26 J Genser, & I Cotler, The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time

(OUP, 2012) 27 AJ Bellamy, ‘Humanitarian Intervention’, in A Collins (ed) Contemporary Security Studies (OUP, 2010) 28 RW Murray & A McKay, Into the Eleventh Hour: R2P, Syria and Humanitarianism in Crisis (E-International

Relations, 2014).; Furthermore, Bellamy goes on to state that initially the states which had rejected the report

were sceptical of such interventions as the US-led one in Iraq as they had feared the misuse of humanitarian

intervention and R2P as a potential abuse. AJ Bellamy, ‘Realizing the Responsibility to Protect’ (2009) 10(2)

International Studies Perspectives 111 29 The general principles of law which is recognized by nations by virtue of Article 38 The Statue of the

International Court of Justice 30 Vienna Convention on the Law of Treaties 23 May 1969 1155 U.N.T.S. 331 31 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948) 78

UNTS 277

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as well as the four Geneva Conventions from 1949 and their additional protocols in 197732. These

paragraphs in the document go on to state that

“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 international community should, as

appropriate, encourage and help States to exercise this responsibility and support the United

Nations in establishing an early warning capability. The international community, through the

United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other

peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect

populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 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 organizations as appropriate, should peaceful means

be inadequate and national authorities are manifestly failing to protect their populations.” 33

Subsequently, this was also endorsed by the UNSC under Resolution 1674 which reaffirmed the

summit’s provisions to protect populations from the four grave crimes as well as the council’s

readiness to adopt appropriate steps where necessary.34

This was further elaborated by the UN Secretary General Ban Ki-Moon at the 2009 General

Assembly Debate, who assured that R2P rests on three pillars:35

32 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the

Field (First Geneva Convention) (adopted 12 August 1949) 75 UNTS 31, Convention (II) for the Amelioration

of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August

1949) 75 UNTS 85, Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva

Convention) (adopted 12 August 1949) 75 UNTS 135, Geneva Convention Relative to the Protection of Civilian

Persons in Time of War (Fourth Geneva Convention) (adopted 12 August 1949) 75 UNTS 287; Protocol

Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I) (adopted 8 June 1977) 1125 UNTS 3; Protocol Additional to the

Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed

Conflicts (Protocol II) (adopted 8 June 1977) 1125 UNTS 609 33 UN General Assembly (UNGA), ‘2005 World Summit Outcome: resolution/adopted by the General Assembly’

(2005) UN Doc A/RES/60/1 34 UN Security Council (UNSC), Res 1674 (2006) UN Doc S/RES/1674 35 UN Secretary-General, Secretary-General defends, clarifies ‘responsibility to protect’ at Berlin Event on

‘Responsible sovereignty: international cooperation for a changed world’, (2008) UN Doc. SG/SM/11701; UN

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I. Protection responsibilities of the state: A state’s individual population must be protected

from genocide, war crimes, ethnic cleansing and crimes against humanity.

II. Timely and decisive response: The responsibility of the Member States to respond

collectively in a timely and diplomatic manner when the state fails to protect its own

population, through the measures under Chapter VI (peaceful means), Chapter VII

(coercive means with authorization of the UN Security Council) and Chapter VIII (regional

arrangements) of the UN Charter.

III. International assistance and capacity-building: The international community’s

commitment to encourage and assist states in meeting those obligations.

Moreover, according to the Secretary General, “the three pillars are not sequential and are of equal

importance; without all three, the concept would be incomplete.”36 R2P does not enforce duties on

states, but rather “confers powers “of a public or official nature” and that assigns jurisdiction”37;

it approves but does not command any kind of decision-making action by individual states or the

international community as a whole in situations of mass atrocities, and therefore, it can be said

that it has no normative effect.38 However, R2P has certainly taken its place in the array of

frameworks against which states measure and assess their own as well as other state’s responses

towards humanitarian crisis. This was further demonstrated by the UNGA passing Resolution

63/308 in October 2009 which reaffirms and recalls the 2005 World Summit Outcome and

continues to consider the importance of R2P39 as well as Resolution 1894 which was passed by

the UNSC in November 2009 which goes on to affirm the same Articles 138 and 139 of the Summit

Outcome document.40

The doctrine of R2P has been stressed by the UNSG over the years stressing the importance

towards the international community and its collective responsibility towards the protection of

human rights. The last report from 2014 “Fulfilling our collective responsibility: international

assistance and the responsibility to protect” outlines ways in which national, regional and

General Assembly (UNGA), Implementing the responsibility to protect. Report of the Secretary-General (2009)

A/63/677 UN Doc 36 Ibid. 37 HLA Hart, The Concept of Law (Oxford Clarendon Press, 1961) as cited in A Orford, International Authority

and the Responsibility to Protect (Cambridge UP, 2011) 38 A Orford, International Authority and the Responsibility to Protect (Cambridge UP, 2011). 39 UN General Assembly (UNGA), Res 63/308 (2009) UN Doc A/RES/63/308 40 UN Security Council (UNSC), Res 1894 (2009) UN Doc S/RES/1894

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international actors may assist states in fulfilling their responsibility to protect from the four grave

crimes in light of the 2005 Outcome document and builds on previous reports addressing the

implementation of the responsibility to protect, early warning and assessment, the role of regional

and sub-regional arrangements, timely and decisive response and State responsibility and

prevention. 41 While the reports do not resolve various ambiguities as well as omissions, they do

recognize the need for political momentum which may assist in resolving R2P.

The concept of human rights is by far much broader than the four grave crimes contained within

the context of R2P, however, the defense of human rights over the years has chipped away at

traditional notions of sovereignty and has made collective action possible against governments the

grave crimes mentioned above42. The Commission goes on to report the six requirements which

were set out by the ICISS to elaborate the responsibility to react. As stated in the report

“When preventive measures fail to resolve or contain the situation and when a state is unable or

unwilling to redress the situation, then interventionary measures by other members of the broader

community of states may be required. These coercive measures may include political, economic

or judicial measures, and in extreme cases – but only extreme cases – they may also include

military action. As a matter of first principles, in the case of reaction just as with prevention, less

intrusive and coercive measures should always be considered before more coercive and intrusive

ones are applied.”43

Moreover, The Commission’s report further provides a list for coercive as well as non-coercive

procedures which initially focus on non-military measures which may be taken. Along with the

three requirements which were set out as the pillars of R2P, the ICISS Commission indicated six

41 UN General Assembly (UNGA), Fulfilling our collective responsibility: international assistance and the

responsibility to protect. Report of the Secretary-General (2014) UN Doc A/68/947–S/2014/449; UN General

Assembly (UNGA), Responsibility to protect: State responsibility and prevention. Report of the Secretary-

General (2013) UN Doc A/67/929–S/2013/399; UN General Assembly (UNGA), Responsibility to protect: timely and decisive response. Report of the Secretary-General (2012) UN Doc A/66/874–S/2012/578; UN

General Assembly (UNGA), The role of regional and sub-regional arrangements in implementing the

responsibility to protect. Report of the Secretary-General (2011) A/65/877–S/2011/393; UN General Assembly

(UNGA), Early warning, assessment and the responsibility to protect. Report of the Secretary-General (2010)

UN Doc A/64/864; UN General Assembly (UNGA), Implementing the responsibility to protect. Report of the

Secretary-General (2009) UN Doc A/63/677 42 WA Knight & F Egerton, The Routledge Handbook of the Responsibility to Protect (Routledge, 2012) 43 International Commission on Intervention and State Sovereignty (ICISS), Report of the International Commission on Intervention and State Sovereignty, the Responsibility to Protect (IDRC, 2001)

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requirements as ‘decision making criteria’ which should be met before military intervention may

be considered. Although the Commission considers that the criteria which they have set out may

not be universally accepted as list for conditions for which military intervention must be met, it

rather proposes that the criteria which they have set may bridge the gap between ‘the rhetoric and

the reality’ when the question of R2P is concerned.44

The first requirement is referred to as the ‘threshold criteria: just cause’ which defines that military

intervention must be limited to circumstances unless “large scale loss of life, actual or apprehended,

with genocidal intent or not, which is the product either of deliberate state action, or state neglect

or inability to act, or a failed state situation; or large scale “ethnic cleansing”, actual or apprehended,

whether carried out by killing, forced expulsion, acts of terror or rape’.45

For a war to be justified as a just cause, how serious does the humanitarian crisis have to be in

order to have military intervention? To come to a justification of the seriousness of a conflict, two

kinds of limits may be studied. The first kind of limit of qualitative in which the rights which are

being breached are basic rights such as right to physical safety (including the right not to be subject

to murder, rape, and assault) as well as the right to survival. The second limit of quantitative in

which there should be a substantial number of persons whose basic rights have been breached.

Both these limits ultimately endorse a just cause criterion which was similarly drawn by the

Commission. Therefore this asserts that for humanitarian intervention to be warranted, there has

to be serious and irreparable harm occurring to human beings or harm which is imminently likely

to occur as well there has to be circumstances of actual or apprehended large scale loss of life

without or without genocidal intent or not which is the product of deliberate action or negligence

or large scale ethnic cleansing whether carried out by killing, forced, expulsion or acts of terror or

rape.46

The second requirement is ‘right authority’ which questions as to body would authorize any such

intervention. Although the Commission states the right authorities as the UNSC which should be

44 TG Weiss, Military–Civilian Interactions: Humanitarian Crises and the Responsibility to Protect (Rowman

and Littlefield Publishers Inc., 2005) 45 E Massingham, ‘Military intervention for humanitarian purposes: does the ‘Responsibility to Protect’ doctrine

advance the legality of the use of force for humanitarian ends?’ (2009) 876 IRRC; International Commission on Intervention and State Sovereignty (ICISS), Report of the International Commission on Intervention and State

Sovereignty, the Responsibility to Protect (IDRC, 2001) 46 J Pattison, Humanitarian Intervention and the Responsibility to Protect; Who should intervene? (OUP, 2010)

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the first port of call, it goes on to state that the General Assembly and Regional Organizations may

act if there is an inability for the UNSC to decide and thus the other organizations would have a

high degree of legitimacy. 47

The third requirement is ‘right intention’ which means that the primary purpose of the intervention

must be to halt or avert human suffering and that regime overthrow is not a legitimate reason for

invoking the doctrine and that the intervention is to benefit the people for whom it is intended

for.48

The fourth requirement is ‘last resort’ meaning that resort to force should only be used when ‘every

diplomatic and non-military avenue for the prevention or peaceful resolution of the humanitarian

crises’ has been exhausted. Furthermore, the Commission goes on to state that often there may be

a lack of time in order for all the options to be exhausted in which case it should be regarded that

‘that there must be reasonable grounds for believing that, in all the circumstances, if the measure

had been attempted it would not have succeeded’.49

The fifth requirement is ‘proportional means’. Proportionality is a fundamental principle of jus ad

bellum50 and the Commission goes on to state that the scale, duration and intensity of the planned

military intervention should be the minimum necessary to secure the humanitarian objective in

question. 51

The last requirement is ‘reasonable prospects’. The Commission dictates that military action can

only be justified if it stands a reasonable chance of success. Furthermore, it goes on to state that

47 E Massingham, ‘Military intervention for humanitarian purposes: does the ‘Responsibility to Protect’ doctrine

advance the legality of the use of force for humanitarian ends?’ (2009) 876 IRRC; International Commission on

Intervention and State Sovereignty (ICISS), Report of the International Commission on Intervention and State

Sovereignty, the Responsibility to Protect (IDRC, 2001) 48 Ibid 49 Ibid 50 The principle of jus ad bellum is the body of rules which governs the lawful use of force. It is distinguished

from the principle of jus in bello which encompasses the rules that apply once force has been applied and a

conflict in underway and applies irrespective of whether the resort to force i.e. jus ad bellum was lawful. H Duffy,

The ‘War on Terror’ and the Framework of International Law (CUP, 2006) 51 Military intervention for humanitarian purposes: does the Responsibility to Protect doctrine advance the

legality of the E Massingham, ‘Military intervention for humanitarian purposes: does the ‘Responsibility to Protect’ doctrine advance the legality of the use of force for humanitarian ends?’ (2009) 876 IRRC; International

Commission on Intervention and State Sovereignty (ICISS), Report of the International Commission on Intervention and State Sovereignty, the Responsibility to Protect (IDRC, 2001)

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‘military intervention is not justified if actual protection cannot be achieved or if the consequences

of embarking upon the intervention are likely to be worse than if there is no action at all’.52

The final responsibility is that of rebuilding which the Commission goes on to state is of paramount

importance and that if military intervention action is taken – because of a breakdown or abdication

of a state’s own capacity and authority in discharging its “responsibility to protect” – there should

be a genuine commitment to helping to build a durable peace, and promoting good governance

and sustainable development.53

2.1.2 R2P in connection with Humanitarian and Military Intervention

Since the Cold War, the Doctrine of humanitarian intervention has been debated upon intensely as

it has also caused tension among states regarding its principle and has impacted millions of peoples

in a number of as well as regions around the world such as in the 1990’s, when humanitarian efforts

were made in various instances such as Liberia, Rwanda, Somalia and Former Yugoslavia among

others54.

Humanitarian intervention is often said to denote a various forms of international actions from the

distribution of humanitarian aid to virtually any form of military intervention regardless to whether

or not it was in response to a serious humanitarian crisis55. However, as there is no legal definition

of humanitarian intervention, the legality as well as efficiency of the doctrine incites the

controversy between the contradicting norms of state sovereignties and that of universal human

rights and non-intervention.

In order to explain humanitarian intervention, Pattison goes on to state four defining conditions in

order to attempt at a definition of humanitarian intervention. To begin with, humanitarian

intervention is military56. This distinguishes various actions which do not commonly regard as

humanitarian intervention such as economic interventions like trade embargoes, boycotts or

sanctions as well as diplomatic interventions even the use of international criminal prosecutions

by referral to the International Criminal Court (henceforth referred to as ICC). The second

52 Ibid 53 International Commission on Intervention and State Sovereignty (ICISS), Report of the International

Commission on Intervention and State Sovereignty, the Responsibility to Protect (IDRC, 2001) 54 A Volsky, ‘Reconciling Human Rights and State Sovereignty, Justice and The Law, In Humanitarian Interventions’ (2007) 3(1) International Public Policy Review 40 55 J Pattison, Humanitarian Intervention and the Responsibility to Protect; Who should intervene? (OUP, 2010) 56 A Roberts, ‘Humanitarian War: Military Intervention and Human Rights’ (1993) 69(3) Int Affairs 429

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condition towards the definition concerns the circumstances of the intervention taking place in

which there is actual or impending grievous suffering or loss of life. The third concerns the body

which may undertake humanitarian intervention i.e. that there is an external agent conducting the

intervention. Finally that the intervention must have a humanitarian intention.57

Thus Pattison concludes the definition of humanitarian intervention as

“Forcible military action by an external agent in the relevant political community with the

predominant purpose of preventing, reducing, or halting an ongoing or impending grievous

suffering or loss of life”58

Concerning the legality of intervention, with regards to the UN Charter, Article 2(1) goes on to

state that the principle of sovereign equality among states which therefore establishes a significant

barrier against interventions of the international community. Additionally, non-intervention is

included in the UN Charter under Article 2(4) which prohibits the threat or use of force against

territorial integrity or political dependence of any state as well as while under Article 2(7) which

explicitly prohibits the UN from unsolicited involvement in the domestic affairs of its member

states.59 Furthermore there have been various UN Resolutions, treaties as well as statements which

validate those principles. Resolution 2625 (XXV) validates the articles by stressing that

“No State or group of States 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 in violation of international law.”60

However, the UNSC expanded its interpretation of Chapter VII of the UN Charter and goes on to

explain in its articles the circumstances under which the UNSC may grant authorization for the

use of force. In virtue of Article 39, the UNSC shall determine the existence of any threat to the

peace, breach of the peace, or act of aggression and will decide what measures shall be need to be

57 J Pattison, Humanitarian Intervention and the Responsibility to Protect; Who should intervene? (OUP, 2010) 58 Ibid 59 A Hehir, The Responsibility to Protect: Rhetoric, Reality and the Future of Humanitarian Intervention

(Palgrave Macmillan, 2012) 60 UN General Assembly (UNGA), Res 25/2625 (1970) UN Doc A/RES/25/2625

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taken. If, however, peaceful measures taken by the UNSC fail, then the UNSC may sanction more

robust measures. 61

2.1.3 Differences between R2P and Humanitarian Intervention

The aspect of R2P can be said to be both broader as well as narrower to than of humanitarian

intervention. To consider how R2P may be broader than humanitarian intervention, as mentioned

above are its three central responsibilities i.e. responsibility to prevent, the responsibility to react

and the responsibility to rebuild, however, it should be noted that the doctrine of R2P is a doctrine

of prevention.62 The international community has first the responsibility to prevent the crisis as to

deter the need for tough action. Actions which fall under these include mediation or preventive

deployment of peacekeeping forces. When these efforts fail and a humanitarian crises is created,

then the international community has the responsibility to react. However, even then humanitarian

intervention is only a part of the equation. In this instance, military intervention falls under

responsibility to react. Still, the international community may pursue other measures short of the

military intervention. Subsequently, in the post-conflict phase, the responsibility to rebuild arises

which ensures that the conditions which arose from military intervention are not repeated. 63

Moreover, the R2P doctrine can said to be narrower than humanitarian intervention in the sense

that humanitarian intervention may be undertaken in a response to various humanitarian crisis.

Additionally, humanitarian intervention is set on legally binding treaties, customary law as well as

conventions whereas R2P principle is not legally binding even though as mentioned earlier its

aspects may be found in conventions.64

Moreover, if the concept of intervention is further analyzed, the ICISS report had a few notable

differences from that of the 2005 World Summit which changes the question of who should

intervene when the issue of R2P arises. These differences changes the authority and conditions of

R2P

I. Whilst in the Commission’s report, R2P transfers to the international community when the

state involved is unable to or unwilling to look after the human rights of its citizens, in the

61 United Nations, Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI 62 SP Rosenberg, ‘Responsibility to Protect: A Framework for Prevention’ (2009) 1(4) Global Responsibility to Protect 442 63 J Pattison, Humanitarian Intervention and the Responsibility to Protect; Who should intervene? (OUP, 2010) 64 Australian Red Cross, International Humanitarian Law and the Responsibility to Protect (2011)

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Summit it is stated that R2P only when national authorities are manifestly failing to protect

its citizens.

II. Military intervention will meet the just cause threshold in circumstances of ‘serious and

irreparable harm occurring to human beings, or imminently likely to occur’ or ‘large scale

ethnic cleansing’ whilst in the Summit it was stated that military intervention will meet the

just cause threshold only in more limited circumstances of ‘genocide, war crimes, ethnic

cleansing and crimes against humanity’.

III. When the state primarily responsible for its peoples fails to act, reacting robustly to the

crisis is a fallback responsibility of the international community in general whereas in the

Summit outcome reacting to a crisis is not a fallback responsibility of the international

community but instead states are only prepared to take collective action on a case-by-case

basis.

IV. The UNSC should be the first port of call for humanitarian intervention, but under the

authority of Resolution 377 if there is a lack of unanimity of the permanent member for

which the UNSC fails to act as required for international peace and security, the UNGA

would consider other recommendations deemed as necessary in order to restore

international peace65 but on the other hand the Summit goes on to state any action must be

taken through the UNSC.

V. Intervention must meet four additional precautionary principles as such right intention, last

resort, proportional means and reasonable prospects in contrast to the Summit’s where no

reference is made to the criteria for intervention.66

Moreover, the Advisory Council on International Affairs in the Netherlands (henceforth referred

to as AIV) goes on to state that R2p differs significantly from and perhaps may even be

incompatible with humanitarian intervention and considers that the two doctrines should not be

confused with one another and affirms the differences which have been mentioned above in its

report.67

65 UN General Assembly (UNGA), Res 377 (V) (1950) UN Doc A/RES/377 (V) A 66 J Pattison, Humanitarian Intervention and the Responsibility to Protect; Who should intervene? (OUP, 2010) 67 Advisory Council on International Affairs, The Netherlands and the Responsibility to Protect: The Responsibility to Protect people from mass atrocities (2010)

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2.2 R2P & the Middle East

As my thesis is concerned with the application of R2P in Syria and Libya, it is important to

understand the view point of the perception of R2P in the region. The Middle East has been a

region of multiple and a times competing, identities and allegiances, all of which have had a vast

impact on foreign policies as well as approaches towards R2P. The foreign policies in the region

has been influenced by memberships of the states in various regional organizations. Other than

Israel, all the states are members of The Organization of the Islamic Conference (henceforth

referred to as OIC) Furthermore, simultaneously the states are also members of The Arab League

(henceforth referred to as AL) as well as Gulf Cooperation Council (henceforth referred to as GCC)

other than Iraq in the latter organization.

As the states of the Middle East are pro-Palestine and go against the views of Israel and Western

states, Thakur goes on to explain that the doctrines of R2P and humanitarian intervention are

perceived as facades of Western powers going back to the imperial and neo-colonial oppressive

ways against weaker states.68

Additionally, since the US-led invasion of Iraq in 2003, this perception has been unchanged. With

the Arab Spring which will be discussed further, along with the deterioration of the region, the

application of R2P in light of recent events can perhaps shed some light for its application.

2.3 Terrorism

“The purpose of terrorism lies not just in the violent act itself. It is in producing terror. It sets out

to inflame, to divide, to produce consequences which they then use to justify further terror.”69

It is universally accepted that every state around the world have an international obligation to

respect human dignity as well as abstain from committing grave human rights violations such as

genocide, slavery, torture, racial and ethnic discrimination and deprivations of rights and freedoms

of people. Ever since the conflict, the Syrian population has been victim to various gross human

rights violations by the terrorist organizations.

68 R Thakur, The United Nations, Peace, and Security; From Collective Security to Responsibility to Protect

(CUP, 2006) 69 ‘Former Prime Minister tony Blair’s in his speech concerning the debate on Iraq to the House of Commons

The Guardian 18 March 2003’ (The Guardian, 2003) available at

<http://www.theguardian.com/politics/2003/mar/18/foreignpolicy.iraq1> accessed august 12th 2015

http://www.theguardian.com/politics/2003/mar/18/foreignpolicy.iraq1

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From the September 2001 attacks in the United States, it has become evident more than before of

how terrorism and the Bush administrations and world’s declaration of the war on terrorism would

affect state laws but also international law. This was followed by terrorist attacks in London,

Madrid, Bali and Mumbai to name a few. It has become a volatile and rising threat that has taken

the world by storm to which the international community began changing their domestic and

foreign policies regarding to terrorism.

To understand as to which legislature may apply, it is necessary to have a legal definition of

terrorism.70 The working binding definition as to what terrorism is, is still incomplete in a way that

only acts which have been described by virtue of international conventions can be categorized as

terrorism71 Nevertheless, simultaneously this leaves the definition of terrorism within the domestic

laws of the member states of conventions, so long as it fulfils the standards of international

conventions regarding to terrorism.

70 S Setty, ‘What's in a Name? How Nations Define Terrorism Ten Years after 9/11’ (2011) 33 U Pa J Int'l L Ins

1 71 Those Conventions are the following: UN Convention on offences and certain other acts committed on board

aircraft (Tokyo Convention) (adopted 14 September 1963) UNTS 704 (No 10106); UN Convention for the

suppression of unlawful seizure of aircraft (Unlawful Seizure Convention) (adopted 16 December 1970) UNTS

867 (No 12325), replaced by the Beijing Convention; UN Convention for the suppression of unlawful acts

against the safety of civil aviation (Civil Aviation Convention), (adopted 23 September 1971) UNTS 974 (No

14118), including Montreal Protocol 1990; UN Convention on the prevention and punishment of crimes against

internationally protected persons, including diplomatic agents (Diplomatic Agents Convention), (adopted 14

December 1973) UNTS 1035 (No 15410); UN International Convention against the taking of hostages (Hostages

Convention), (adopted 17 December 1979) UNTS 1316 (No 21931); N Convention on the physical protection

of nuclear material (Nuclear Materials Convention) (adopted 3 March 1980) UNTS 1456 (No 24631); UN

Convention for the suppression of unlawful acts against the safety of maritime navigation (Maritime Convention),

UNTS 1678 (No 29004), including Protocol 2005; UN Protocol for the suppression of unlawful acts against the

safety of fixed platforms located on the continental shelf (Fixed Platform Protocol) (adopted 14 October 2005)

UNTS 1678; UN Convention on the Marking of Plastic Explosives for the Purpose of Detection (Plastic

Explosives Convention) (adopted 1 March 1991) ICAO Doc S/22393; UN International Convention for the

Suppression of Terrorist Bombings (Terrorist Bombing Convention) (adopted 15 December 1997) UN Doc

A/RES/52/164; UN International Convention for the Suppression of the Financing of Terrorism (Terrorist

Financing Convention) (adopted 9 December 1999) UN Doc A/RES/54/109; UN International Convention for

the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism Convention) (adopted 14 September 2005)

UN Doc A/RES/59/290; UN Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (Beijing Convention) (adopted 10 September 2010), ICAO Doc 9960. D O’Donnell, ‘International

Treaties against Terrorism and the Use of Terrorism During Armed Conflict and by Armed Forces’ (2006)

88(864) IRRC

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Although the earliest efforts were made when the definition was stated under the 1939 Convention

of the Prevention and Punishment of Terrorism, the convention was never adopted and thus never

came into effect.72

The UN finally addressed international terrorism under Resolution 3034 (XXVII) of 18 December

1972, in which it stated the necessity of member states cooperate against forms of terrorism and

“Acts of violence which lie in misery, frustration, grievance, and despair, and which cause some

people to sacrifice human lives, including their own, in an attempt to effect radical changes.”

A decade later the UNGA acknowledged that effective actions against terrorism could be improved

by having an internationally suitable definition of international terrorism. 73 The need for

cooperation was reaffirmed in Resolution 46/51, unfortunately there was still a lack of agreement

on a definition.74 The Declaration on Measures to Eliminate International Terrorism was one of

the first documents that contained elements of terrorism. This document stated that

“Criminal acts intended or calculated to provoke a state of terror in the general public, a group

of persons or particular persons for political purposes are in any circumstance unjustifiable,

whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or

any other nature that may be invoked to justify them”.75

Furthermore, the GA declared terrorism as a threat to, amongst others, international peace and

security, and human rights.76 The importance for a detailed framework covering the prevention,

repression and the elimination of terrorism provided the GA with the decision to establish an Ad

Hoc Committee for the draft of an international convention that would cover these characteristics,

especially in the context of terrorist bombings.77 The Ad Hoc Committee stated that several

delegations stressed the need for a definition on terrorism and the formation of an effective

72 H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP, 2006) 73 UN General Assembly (UNGA), Res 42/159 (1987) UN Doc A/RES/42/159. 74 UN General Assembly (UNGA), Res 46/51 Measures to eliminate international terrorism, (1991) UN Doc

A/RES/46/51 75 UN General Assembly (UNGA), Res 49/60 Annex: Declaration on Measures to Eliminate International Terrorism, (1994) UN Doc A/RES/49/60 (1994) 76 Ibid, 77 UN General Assembly (UNGA), Res 52/210 (1996) UN Doc A/RES/51/210

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international legal regime for counterterrorism, as well as differentiating between terrorism and

the right to resist foreign occupation.78

After the 9/11 attacks on the World Trade Center, the UNSC issued Resolution 1373 authorizing

its members to take proactive steps against terrorism, which included measures such as

criminalization of the provision of funds to terrorists cells, bring wrongdoers to justice and

preventing the movement of terrorists through border controls and made it binding to all UN

member states under virtue of Chapter VII of the UN Charter.79 Furthermore, it established the

Counter-Terrorism Committee (henceforth referred to as CTC) which would oversee the

implementation of the Resolution, but it would not monitor performance against human rights or

safeguard the rule of law.80 Although the CTC did not impose sanctions on non-compliant states,

it had bestowed a certain degree of legitimacy on their counter-terrorism efforts. 81Though, this

was altered later on when the UNSC issued new resolutions ‘reminding’ states to comply with

their human rights obligations.82

In 2004 the UNSC adopted Resolution 1566, which contained elements of what is to be considered

terrorism.83 According to paragraph 3 of the Resolution, these elements are

“Criminal acts, including against civilians, committed with the intent to cause death or serious

bodily injury, or taking of hostages; With the purpose to Provoke a state of terror in the general

public or in a group of persons or particular persons; Intimidate a population; Or compel a

government or an international organization to do or to abstain from doing any act; Which

constitute offences within the scope of and as defined in the international conventions and

protocols relating to terrorism; Based on political, philosophical, ideological, racial, ethnic,

religious or other considerations.”

78 UN General Assembly (UNGA), Report of the Ad Hoc Committee established by General Assembly

resolution 51/210 (1996) UN Doc A/55/37 79 UN Security Council (UNSC), Res 1373 (2001) UN Doc S/RES/1373 80 EJ Flynn, ‘The Security Council’s Counter-Terrorism Committee and Human Rights’ (2007) 7(2) Hum Rts L

Rev 371 81 K Roach, The 9/11 Effect: Comparative Counter-Terrorism (CUP, 2011) 82 See for example UN Security Council (UNSC), Res 1456 (2003) UN Doc S/RES/1456 paras 4(ii), 6; UN Security Council (UNSC), Resolution 1566 (2004) UN Doc S/RES/1566; UN Security Council (UNSC), Res

1624 (2005), UN Doc S/RES/1624 83 UN Security Council (UNSC), Res 1566 (2004) UN Doc S/RES/1566

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The UNGA took a significant step in September 2006 by adopting the United Nations Global

Counter-Terrorism Strategy by virtue of Resolution 60/288.84 This thorough document covers a

strategy of action involving of four measures, specifically to address the conditions encouraging

the spread of terrorism, to prevent and combat terrorism, to build States’ capacity to prevent and

combat terrorism and to support the role of the United Nations system in this concern, and to

safeguard respect for human rights and the rule of law as the fundamental basis of the fight against

terrorism, with reference to UNGA resolution 60/158 as the fundamental outline85. Furthermore,

another significant stand from the GA Resolution is reference to the non-refoulement obligation

under international refugee and human rights law.86

Additionally, the Resolution also highlights the role of the Special Rapporteur on the promotion

and protection of human rights as well as fundamental freedoms while countering terrorism, whose

mandate was established by the United Nations Commission on Human Rights (henceforth

referred to as UNCHR).87 The Special Rapporteur noted that the lack of a definition on terrorism

could perhaps lead to breaches of article 15(1) of the International Covenant on Civil and Political

Rights (henceforth referred to as ICCPR)88 as well as the principle of non-discrimination and

equality before the law. However, the Special Rapporteur concluded that an act is a terrorist

offence if the act was committed with the intention of causing death or serious bodily injury; for

the purpose of provoking a state of terror, intimidating a population, or compelling a Government

84 UN General Assembly (UNGA), Res 60/288 ‘The United Nations Global Counter-Terrorism Strategy’ (2006)

UN Doc A/RES/60/288 85 Ibid 86 UN General Assembly (UNGA), Res 60/158 ‘Protection of human rights and fundamental freedoms while

countering terrorism’ (2006) UN Doc A/RES/60/158) 87 United Nations High Commissioner for Refugees (UNCHR), Res 2005/80 ‘Protection of Human Rights and

Fundamental Freedoms While Countering Terrorism’ (2005) UN Doc E/CN.4/RES/2005/80. See also UN

Human Rights Council (UNHRC), Res 15/15 ‘Protection of Human Rights and Fundamental Freedoms while

countering terrorism: mandate of the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism’ (2010) UN Doc A/HRC/RES/15/15; United Nations High

Commissioner for Refugees (UNCHR), Res 22/8 ‘Protection of Human Rights and Fundamental Freedoms while

countering terrorism: mandate of the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism’ (2013) UN Doc A/HRC/RES/22/8 88 Article 12 (1) states that Article 15. 1. No one shall be held guilty of any criminal offence on account of any

act or omission which did not constitute a criminal offence, under national or international law, at the time when

it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for

the imposition of a lighter penalty, the offender shall benefit thereby. International Covenant on Civil and

Political Rights, (adopted 16 December 1966) UNTS 999 (No. 14668)

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or international organization to do or abstain from doing any act; and constituting offences under

international conventions and protocols relating to terrorism.89

Furthermore, terrorism is not explicitly addressed under R2P, however, it could be covered as the

acts of terrorism do qualify as crimes against humanity, war crimes, or genocide. As Genser states,

that in theory R2P could be understood to encompass state responsibility to repress transnational

terrorism operating within its territory and conventions which concern terrorism could be

applied.90

Moreover, one of the biggest development in the field of international criminal law, was the

establishment of the International Criminal Court (ICC), however, The Rome Statute establishing

the ICC and its governing document does not include terrorism within its jurisdiction. Although,

the preamble to the statue identifies the link between peace and justice, declaring that “grave

crimes threaten the peace, security and well-being of the world”.91 92 Analysis of this will be made

in the subsequent chapters which discuss the current situation in Syria.

2.4 Sub-conclusion

The release of the report by the ICISS was at an unfortunate timing as the world’s attention shifted

from a positive change towards humanitarian intervention and air to terrorism and the war that was

raging towards it. It can be concluded that a legal definition of the concepts mentioned above is

vital in order to have a unified understanding of the notions of R2P, humanitarian intervention as

well as terrorism. With all the concepts still being in in its early stages, it is also difficult to fix the

problems immediately. The lack of legal definitions are essential in order to tackle human rights

violations and safeguard the rule of law.

89 UN Economic and Social Council (ECOSOC), Promotion and Protection of Human Rights. Report of the

Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, (2005) UN Doc E/CN.4/2006/98, paras 26-50 90 J Genser, & I Cotler, The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time

(OUP, 2012) 91 JK. Kleffner Complementarity in the Rome Statute and National Criminal Jurisdictions 2008 92 A Cohen, Prosecuting Terrorists at the International Criminal Court: Reevaluating an Unused Legal Tool to

Combat Terrorism’ (2012) Mich St L Rev

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Chapter 3: The Middle East

The shift in major politics and corruption from governments triggered various events which has

made the region one of the world’s most volatile region. 93 What is the history behind the

revolutions and how has the world as well as UNSC reacted towards it in order to tackle the

volatility? How was the UNSC able to approve the doctrine of R2P for the first time? The

following chapter aims to provide an account of the past which has shaped the current instability

and provides insight as to the social vacuum that has been created which caused an up-rise of

terrorist actors and activities which is discussed in the subsequent chapter.

3.1 The Arab Spring

The Arab Spring was a series of anti-government protests by nationals around the Middle Eastern

region and North Africa (henceforth referred to as MENA). The demonstrations were a way of the

people protesting the democratization of the affected states and greater liberalizations. On 17th

December 2010, a 26 year old fruit vendor set himself a blaze and died in a desperate attempt

against the bureaucratic indifference and corruption in Tunisia. His death triggered intense

antigovernment protests which led the then President of Zine el-Abidine Ben Ali to flee to Saudi

Arabia in exile. This led to demonstrations which were comparably peaceful to what was ahead in

the latter months in Egypt, Yemen, Algeria, Morocco, Jordan, and civil wars which were to follow

in Libya and Syria94.

3.2 Libya

“Our consensus was strong, and our resolve is clear. The people of Libya must be protected and

in the absence of an immediate end to the violence against civilians, our coalition is prepared to

act and act with urgency.”95

93 FL Jenista, ‘The Volatile Middle East’ (2006) 27(3) Torch 94 G Blight, S Pulham & P Torpey, ‘Arab spring: an interactive timeline of Middle East protests’ (The Guardian,

5 January 2012) available at <http://www.theguardian.com/world/interactive/2011/mar/22/middle-east-protest-

interactive-timeline> accessed July 31st, 2015 95 D Jackson, ‘Obama: 'The people of Libya must be protected'’ President Barack Obama giving a press

conference on enforcement of United Nations Security Council, Resolution 1973 (2011) 17 March 2011 S/RES/1973 (USA Today, 2011) available at

<http://content.usatoday.com/communities/theoval/post/2011/03/obama-the-people-of-libya-must-be-

protected/1#.VZb6fvmqpBc> accessed July 27th 2015

http://www.theguardian.com/world/interactive/2011/mar/22/middle-east-protest-interactive-timeline


http://content.usatoday.com/communities/theoval/post/2011/03/obama-the-people-of-libya-must-be-protected/1#.VZb6fvmqpBc


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Muammar Gaddafi became the political dictator of Libya since he overthrew the then monarchy

in 1969. Since then, he ruled Libya with an iron fist under his military regime. The first protests

in Libya began on 15 February 2011 in Benghazi which then lead to more Anti-Gaddafi

demonstrations to spread across other cities in the country. These protests led to the establishment

of a provisional government based in Benghazi known as the National Transitional Council with

the defined goals to overthrow the government in Tripoli 96 . Witnessing the Arab Spring

revolutions that were in Tunisia and Egypt, Gaddafi massacred at least several hundred of his own

people97 even though at the same time he tried to calm the demonstrations by announcing the

release of political prisoners. However, the situation escalated when he referred to the population

as “cockroaches” “rats” as well as “cowards and traitors” and threatened to make them extinct by

“cleansing Libya house by house”. This reminded the world of how the Tutsi’s during the Rwandan

genocide were described in 1994.98 Till this date there is no verified number on the death toll of

Libyans. According to the ICC, prior to the outbreak of the civil war, an estimated 500-700

civilians were killed in February 2011.99

By the end of February, as violence escalated, regional organizations AL, OIC and GCC had

condemned the acts of the Libyan government. The organizations suspended Libya’s membership

from the organizations which was seen as a surprise as the regional organizations have always

supported the regime in Libya.100 The international community reacted too to the atrocities, which

led to the United Nations Security Council to pass Resolution 1970 which explicitly appealed for

the Libyan authorities the responsibility to protect its population, adopting an arms embargo, travel

bands and freezing of assets and most importantly the threat of prosecution by the International

Criminal Court.101 However, the response from the Libyan government was them stating that the

Resolution was premature and requested suspension of operation until the inquisitions were

verified, however, continued the mass atrocities towards its citizens such as random detentions,

96 Cornell University Library, ‘Arab Spring: A research & Study Guide’ available at

<http://guides.library.cornell.edu/c.php?g=31688&p=200751> accessed July 28th 2015 97 I Black and O Bowcott, ‘Libya protests: Massacres reported as Gaddafi imposes news blackout’ (The Guardian,

18 February 2011) available at <http://www.theguardian.com/world/2011/feb/18/libya-protests-massacres-

reported> 98 G Evans, ‘Libya and its aftermath: the limits of intervention? Implementing Resolution 1973: A case of

overreach’ in Stockholm International Peace Research Institute (SIPRI) Yearbook (OPU, 2012) 99 Ibid 100 T Dune & J Gifkins, ‘Libya and the State of Intervention’ (2011) 65(5) AJ Int’l Affairs 515 101 United Nations Security Council (UNSC), Res 1970 (2011) S/RES/1970

http://guides.library.cornell.edu/c.php?g=31688&p=200751

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torturing civilians and killing them102. Upon verifications of the grave human rights violations and

the violence which was surrounding it, the regional organizations the requested the United Nations

Security Council to take measures which would protect the civilians in Libya103.

As Libyan authorities had failed to abhor to Resolution 1970, the UNSC had no choice but to order

Resolution 1973 which was the first time that the UNSC had mandated military intervention as a

solution to protecting civilians against a de jure functioning government104 and authorized member

states to “Take all measures” to protect the civilians as well as establishing a No Fly Zone.105

One of the greatest obstacles was the lack of consensus over the necessity to use force, which was

the reason five states chose to abstain against the Resolution.106 Although all the members of the

UNSC condemned Gaddafi’s actions, Brazil and Germany questioned the worth of the long term

effects such as worsening matters instead of an act of conflict resolution. Additionally, India

questioned as to the ambiguities of authorization while China stated its foreign policy of the nonuse

of force whereas Russia contemplated that it could potentially lead to a large-scale military

intervention.107

Two operations were set out. The first one on 19 March 2011 called Operation Odyssey Dawn,

was led by a US-military coalition that levelled Gaddafi’s air-defense systems, established a no-

fly zone over most of the country and forced his army to retreat from the cities where they were

attacking.108 The second operation, Operation Unified Protector, started on 31 March 2011 in order

to implement the three objectives of Resolution 1973, namely the weapons embargo, the no-fly

zone and the protection of civilians.109 Deadlock emerged due to the lack of training of the rebels,

no clear strategic end state and the limited objective of protecting civilians.110 In order to break the

102 PD Williams, ‘Briefing: The Road to Humanitarian War in Libya’ (2011) 3(2) Global Responsibility to

Protect; B Berti, ‘Forcible Intervention in Libya: revamping the ‘political of human protection’?’ (2014) Global

Change, Peace & Security 103 S Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13(1) Melb J Int'l L 104 United Nations Security Council (UNSC), Res 1973 (2011) S/RES/1973. 105 Ibid 106 J Morris, ‘Libya and Syria: R2P and the spectre of the swinging pendulum’ (2013) 89(5) Int Affairs 107 PD Williams & AJ Bellamy, ‘Principles, politics, and prudence: Libya, the Responsibility to Protect, and the

use of military force’ (2012) 18(3) Global Governance 278; BD Jones, ‘Libya and the responsibilities of power’

(2011) 3(53) Survival: Global Politics and Strategy 108 CS Chivvis, ‘Libya and the Future of Liberal Intervention’ (2012) 6(54) Survival: Global Politics and Strategy 109 F Gaub, ‘The North Atlantic Treaty Organization and Libya: Reviewing Operation Unified Protector’ (2013)

Letort Paper Series 110 CS Chivvis, ‘Libya and the Future of Liberal Intervention’ (2012) 6(54) Survival: Global Politics and Strategy

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deadlock, more military aircraft was provided and the rebels were trained, equipped and well-

supplied.111 Eventually Gaddafi was found by the rebels and killed in October 2011. It was

reported this year that that the Libyan conflict had produced over 434,000 Internally Displaced

People (henceforth referred to as IDP) and around close to 30,000 refugees from Libya.112

The use of military force approved by the UNSC in Libya marked the first time that intervention

in a sovereign state took place against the expressed will of the intervened state’s government. To

some, this intervention was seen as a new dawn to the doctrine of R2P.113 According to Gareth

Evans “the international military intervention in Libya is not about bombing for democracy or

Muammar Gaddafi’s head. Legally, morally, politically and militarily, it has only one justification:

protecting the country’s people”114. However, as Wilson would go on to state, that there were

indications that the states which made the efforts of intervention in Libya were actually very much

committed towards a regime change, even though stopping short of making it the base objective

of NATO rather than commitment towards the objects of R2P.115

3.3 Syria

‘It’s absolutely sickening… I watched a little baby die today. Absolutely horrific … No one here

can understand how the international community can let this happen. … There is just shells,

rockets and tank fire pouring into civilian areas of this city, and it is just unrelenting.’116

The Syrian conflict has triggered one of the worst humanitarian crisis since World War II117.

Entering its fifth year of war, the conflict has had over an estimated 220,000 people killed and over

11 million people which is more than half of Syria’s population, displaced by the civil war and

111 Ibid 112 UN High Commissioner for Refugees (UNHCR), ‘Numbers of internally displaced in Libya double since

September’ (UNHCR, 30 June 2015) available at: <http://www.refworld.org/docid/5594f8264.html> 113 RW Murray & A McKay, Into the Eleventh Hour: R2P, Syria and Humanitarianism in Crisis (E-International

Relations, 2014) 114 S Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13(1) Melb J Int'l L 115 G Wilson, ‘The United Nations Security Council, Libya and Resolution 1973: Protection of Civilians or Tool

for Regime Change?’ (2013) 116 ‘Journalist Marie Colvin video report from Homs, Syria: “I Saw a Baby Die Today”’ (BBC News, February

2012) available at <http://www.bbc.com/news/world-middle-east-17120484> accessed on June 29th 2015 117 J Egeland (Secretary General of the Norwegian Refugee Council), ‘This is the Worst Refugee Crisis since WWII. It’s Time for Us to Rethink Our Response’ (Huffington Post, 15 September 2014) available at

<http://www.huffingtonpost.com/jan-egeland/refugee-crisis-wwii-aid-_b_5791776.html> accessed on June 29th

2015

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sectarian violence118. Even with the record high figures and more than a thousand days into the

conflict, there shows no end to this conflict in the zone.

Prior to the conflict Syria already had complications with the diverse demographic fabric which

had a varied group of ethnic and religious groups coexisting within artificially contrived borders

drawn following the First World War, however, since the war the precise demographic numbers

are indefinable.119 In the words of the UNSG Ban Ki-moon, Syria has become a “proxy war with

regional and international players arming one side or the other”120

The conflict has escalated faster than any conflict in recent times. This comes from the strong

sectarian component which has been around for decades. The majority of the Syrian population

was composed of Sunni Muslims whereas the government and the heavily armed Shabiha militia

as well as the Syrian President Bashar al-Assad who inherited Syria’s dictatorship from his father

are all of the Alawite Shite minority group. There are many opposition groups against the Assad

regime, with the largest and most significant one being the Syrian National Council (henceforth

referred to as SNC), that stands as an umbrella to the Sunni majority. Combined with SNC is the

main armed group known as The Free Syrian Front (henceforth referred to as FSA).121 While vast

human rights violations have been committed by the Syrian government as well as the Shabiha

militia, it has also been reported that opposition groups have equally breached human rights.122

Syria followed the other countries revolting during the Arab Spring and just like it did in Libya

the situation escalated rapidly, when in February 2011 the protests against the government broke

out by opposition groups questioning poverty, inequality, and the desire for democracy and human

rights obligations.123 Despite international condemnation of the atrocities which have been taking

118 Global Centre For the Responsibility to Protect, ‘4 years, 4 Vetoes, 220,000 dead: Statement on the Fourth

Anniversary of the Syria conflict’ (2015) available at <http://www.globalr2p.org/publications/361> accessed on

June 29th 2015 119 FC Hof & A Simon, ‘Sectarian Violence in Syria’s Civil War: Causes, Consequences, and Recommendations

for Mitigation’ (The Center for the Prevention of Genocide, United States Holocaust Memorial Museum, 2013) 120 United Nations Secretary-General Ban Ki-moon, ‘Remarks to the General Assembly on Syria’ (UN News, 3

August 2012) available at: <http://www.un.org/sg/ statements/index.asp?nid=6224> accessed on June 29th 2015 121 J Gifkins, ‘The UN Security Council Divided: Syria in Crisis’ (2012) 3(4) Global Responsibility to Protect

377 122 ‘Deadly Reprisals: Deliberate Killings and Other Abuses by Syria's Armed Forces’ (Amnesty USA, 14 June 2012) available at <http://www.amnestyusa.org/research/reports/deadly-reprisals-deliberate-killings-and-other-

abuses-by-syria-s-armed-forces> accessed on June 29th 2015 123 S Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13(1) Melb J Int'l L

http://www.amnestyusa.org/research/reports/deadly-reprisals-deliberate-killings-and-other-abuses-by-syria-s-armed-forces


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place in Syria since war broke out, initially, there appeared to be only very limited keenness

towards some form of military intervention. However, this attitude changed after the aftermath of

chemical weapons and the rise of terrorist actors in the state.124

In Dara’a the peaceful protests began in March after two children were detained and tortured after

allegedly painting anti-government graffiti on public buildings, to which the Syrian armed forces

reacted with violence by attacking protesters and firing at a funeral, causing the spread of protests

to other cities.125 The President Assad, publicly proclaimed that the incident as well as the problem

was a conspiracy of armed gangs, terrorists and imperialist forces.126 Subsequently, in April 2011

the government sent the army to repress the protesters, retorting more violently and intense, to

which the protesters started to demand regime change instead of reforms.127

Numerous efforts were made to address the situation, but all of them were unsuccessful. On 27

April 2011 the matter was discussed within the UNSC.128 In October 2011 the first attempt,

prompted by France, Germany, Portugal and the UK, to permit non-coercive measures

condemning the systematic human rights abuses and the use of force by the Syrian authorities,

with a threat of punitive measures in case of non-compliance.129 Lebanon, Brazil, South Africa as

well as India abstained, whereas China and the Russian Federation vetoed the draft.130 Russia

referred to the Libyan experience and the mission creep of regime change, while China used its

foreign policy to veto the resolution as it did when the Libyan conflict was in question. Brazil

abstained on grounds of obtaining broad support and act as a single voice while India wanted to

give Syria necessary time to stop the violations, and Lebanon as well as South Africa argued that

the principle of sovereignty should not be violated.

124 G Wilson, ‘Applying the Responsibility to Protect to the “Arab Spring”’ (2014) 35(2) Liverpool LR 157 125 UN Human Rights Council (UNHCR), Report of the independent international commission inquiry on the

Syrian Arab Republic, (2011) A/HRC/S-17/2/Add.1 126 B Mroue, ‘Syrian President Orders Release of Some Protesters; Cabinet is named’ (The Washington Post, 15

April 2011) 127 N Blanford, ‘Repeal of Hated Emergency Law is “Too Little, Too Late”’ (The Times, 22 April 2011); E

Barry, ‘As Nations Line Up against Syrian Government, Russia Sides Firmly with Assad’, (The New York Times,

28 January 2012) 128 United Nations Security Council (UNSC), The Situation in the Middle East – 6524th meeting (2011)

S/PV.6524 129 United Nations Security Council (UNSC), France, Germany, Portugal and United Kingdom of Great Britain and Northern Ireland: Draft Resolution (2011) S/2011/61. 130 United Nations Security Council (UNSC), The Situation in the Middle East – 6527th meeting (2011)

S/PV.6627

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A second attempt was made in February 2012, which called for a political transition, explicitly

ruling out coercive measures.131 There were no abstentions, but Russia and China exercised their

veto on the grounds that the resolution would give opening to regime change.132 Kofi Annan

became a Joint Special Envoy and devised a six-point plan to end the violence133 which was

adopted in April 2012 in Resolution 2042 that authorized the dispatch of 300 unarmed observers

to monitor the ceasefire, followed by Resolution 2043 that established the United Nations

Supervision Mission in Syria (henceforth referred to as UNSMIS) for the same purpose. 134

Nevertheless, in May 2012 the violence restarted and an effort was made to extend the mandate of

UNSMIS combined with a threat of sanctions if Syria didn’t comply.135 Accordingly China and

Russia vetoed the draft and Pakistan and South Africa abstained.136 China found the resolution

flawed and would erode international trust and infringe on sovereignty, whereas Russia claimed

that the Resolution was biased. Moreover, Pakistan stated that the coercive approach

counterproductive whereas South Africa emphasized the need for consensus within the UNSC.

It was after the chemical attacks in August 2013, was Resolution 2118 passed in order to destroy

Syria’s chemical arsenal, endorsing the Organization for the Prohibition of Chemical Weapons

(henceforth referred to as OPCW).137 A series of reports from within Syria showed how the

chemical attacks had killed a large number of innocent civilian population including a large

number of children amongst the number of causalities, in rebel-held areas of Damascus, for which

the attack was described as one of the world’s most lethal chemical attacks since the 1980’s.138 In

January and February 2014 negotiations were launched between Syrian parties in Geneva, but

131 United Nations Security Council (UNSC), Bahrain, Colombia, Egypt, France, Germany, Jordan, Kuwait,

Libya, Morocco, Oman, Portugal, Qatar, Saudi Arabia, Togo, Turkey, United Arab Emirates, United Kingdom

of Great Britain and Northern Ireland and United States of America: Draft Resolution (2012) S/2012/77 132 United Nations Security Council (UNSC), ‘The Situation in the Middle East – 6711th meeting’ (2012)

S/PV.6711 133 United Nations General Assembly (UNGA), ‘The Situation in the Syrian Arab Republic’ (2012)

A/RES/66/253 134 United Nations Security Council (UNSC), Res 2042 (2012), S/RES/2042; United Nations Security Council

(UNSC), Res 2043 (2012) S/RES/2043 135 United Nations Security Council (UNSC), France, Germany, Portugal and United Kingdom of Great Britain

and Northern Ireland and United States of America: Draft Resolution (2012) S/2012/538. 136 United Nations Security Council (UNSC), The Situation in the Middle East. Report of the Secretary-General

on the implementation of Security Council resolution 2043 (2012) (S/2012/523) (2012) S/PV.6810. 137 United Nations Security Council (UNSC), Res 2118 (2013) S/RES/2118). 138 D Evans & K Yacoub Oweis. ‘Syria gas ‘kills hundreds’; Security Council meets’ (Reuters, 21 August 2013)

available at <http://in.reuters.com/article/2013/08/22/syria-crisis-chemicals-idINDEE97K03720130822>

accessed July 24th 2015

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ended in failure.139 As a response, Resolution 2139 was adopted, where for the first time there was

consensus on the humanitarian dimension by demanding the allowance of humanitarian assistance

and putting an end to all forms of violence.140 As a follow up to Resolution 2139, on 14 July 2014.

Resolution 2165 was passed which authorizes the UN to provide cross border humanitarian aid

without the consent of the Syrian government through Turkey, Jordan as well as Iraq and

establishing a monitoring mechanism for six months to monitor the implementation.141

In May 2014, the UNSC wanted to refer the situation of Syria to the International Criminal Court

(ICC), but China and Russia vetoed.142 Russia, again, argued that the Western powers pursued

regime change and that the whole debate about Syria was damaging the P5 unity, to which China

agreed and once again relied on the principles of sovereignty. 143 Finally, the UNSC passed

Resolution 2163 that extends the mandate of UNDOF for six months and condemning the fighting

and military activity around their area of operation.144

Towards the end of 2014, The Human Rights Council’s Commission of Inquiry on the Syrian Arab

Republic (henceforth referred to as CoI) had published nine major documents which had

documented grave human rights violations in Syria. 145 The CoI reported of not only pro-

government armed forces but also of opposition and Islamist groups and the widespread of

violations of international humanitarian law.

Subsequently, in March 2015 the UNSC passed Resolution 2209 reaffirming Resolution 2118

which was passed and recalling the protocol for the prohibition of Chemical weapons and to which

139 N Tocci, ‘On Power and Norms. Libya, Syria, and the Responsibility to Protect’ (2014) Transatlantic Paper

Series No 2 140 United Nations Security Council (UNSC), Res 2139 (2014) S/RES/2139 141 United Nations Security Council (UNSC), Res 2165 (2014) S/RES/2165 142 United Nations Security Council (UNSC), Albania, Andorra, [...] United States of America: Draft Resolution

(2014) S/2014/348 143 United Nations Security Council (UNSC), The Situation in the Middle East (22 May 2014) S/PV.7810. 144 United Nations Security Council (UNSC), Res 2163 (2014) S/RES/2163. 145 United Nations Human Rights Council (UNHRC), Report of the Independent International Commission of

Inquiry on the Syrian Arab Republic (2014) A/HRC/25/65. All of the reports of the Commission of Inquiry, including the ninth report, titled Rule of terror: Living under ISIS in Syria, are available at

http://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/; S Adams, ‘Failure to Protect: Syria and the UN

Security Council’ (2015) 5 Global Centre for the Responsibility to Protect Occasional Paper Series

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threatened the use of force as it had condemned the use of any chemicals as weapons in Syria

during civil war146.

As the civil war continues, Syria’s problems do not end there. The conflict is further worsened by

the rise of terrorist actors and organizations which have caused an alarming rate of human rights

violations and is threatening to destabilize the region by its rapid expansion. The UNSC has passed

several resolutions against terrorist activities in Syria as well which are discussed in the subsequent

chapters.

3.4 Sub-conclusion

As evidenced from the summary of events, it is astonishing how one man’s self-immolation to

demonstrate the dissatisfaction and corruption to protest a government has caused an escalation of

chain of events in the Arabian region and triggered the Arab Spring. It could be argued that not

since the collapse of the Soviet Union or the fall of the Berlin wall has change and instability swept

across a region as quickly as it can be seen over the last few years. However, even after the UNSC

sanctioned the use of force in accordance with the doctrine of R2P, the lack of consensus over the

necessity to use force among the UNSC states continues to be a problem and leaves the council

paralyzed when R2P is concerned towards Syria. This delay has caused millions of people to suffer

and the creation of a social vacuum which has left an up-rise of terrorist actors which is discussed

in the successive chapter.

146 United Nations Security Council (UNSC), Res 2209 (2015) S/RES/212209

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Chapter 4: Syria and the up-rise of Terrorist Actors

In addition to the various human rights violations by the Syrian Government as well as armed

opposition groups147, the social vacuum which stands has been a scope for an up-rise in terrorist

organizations and their combatant’s activities in Syria. Although the civil war may have acted as

a catalyst of violence and human rights violations, was the country a home to these organizations

already? Under international criminal law, what crimes have these non-state actors committed?

Furthermore, how have other states reacted towards these violations by the terrorists? This chapter

goes on to describe such organizations origin and the crimes under international criminal law.

4.1 Terrorist Actors and Organizations in Syria

One of the most prominent terrorist groups in the world is Al Qaeda. The mere mention of it

generates images of efficient and systematic terror and violence of a network of terrorist actors

around the world. By 2010 it was seen that the network was possibly on a decline as it had lost

militarily in Iraq and seemed as politically irrelevant during the revolts of the Arab Spring. With

the death of Osama bin Laden however in 2011, it was said that the Al Qaeda network became

stronger and began to be on the rise again.148 However, since the Syrian civil war, the network was

seen to have been rebuilt as various affiliate networks and was said to have recovered from its

losses and remerge by taking advantage of political turmoil and western failures. It is said that Al

Qaeda affiliates now occupy more territory in the Arab world than at any time in its history.149

Among the terrorist organisations operating in Syria is Al Qaeda’s affiliate network known as Al-

Nusra Front (henceforth referred to as ANF),150 formed in 2011 when Al Qaeda in Iraq (henceforth

147 See, for example, Human Rights Watch, ‘Syria: Armed opposition groups committing abuses’ (20 March

2012) available at <http://www.hrw. org/news/2012/03/20/syria-armed-opposition-groups-committing-abuses>

accessed on July 23rd 2015; K Fahim, ‘UN official warns Syrian rebels about atrocities’ (New York Times, 10

September 2012) available at <http://www.nytimes.com/2012/09/11/ world/middleeast/united-nations-warns-

syrian-rebels-over-atrocities.html> accessed on July 23rd 2015; CJ Chivers, ‘Brutality of Syrian rebels posing

dilemma in West’ (New York Times, 5 September 2013) available at <http://www.nytimes.com/2013/09/05/

world/middleeast/brutality-of-syrian-rebels-pose-dilemma-in-west.html> accessed July 23rd 2015;, United

Nations Human Rights Council (UNHRC), Report of the Independent International Commission of Inquiry on

the Syrian Arab Republic (2014) A/HRC/25/65 148 K Zimmerman, The al Qaeda Network- A New Framework for Defining the Enemy (American Enterprise Institute, Critical Threats Project, 2013) 149 A Ibrahim, The Resurgence of Al-Qaeda in Syria and Iraq (United States Army War College Press, 2014) 150 Also known as the Nusra or Jabhat-al-Nusra

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referred to as AQI) sent one of its operatives Abu Muhammad al-Julani to Syria to organise jihadist

cells in the region.151 The organization gained prominence among rebel organisations in Syria for

its consistent supply of arms and funding as well a foreign fighters. AL was the first to claim

responsibility for terrorist attacks which had killed civilians.152

The second Islamist group operating in Syria is the Islamic State in Iraq and the Levant (henceforth

referred to as ISIL).153 ISIL is a transnational Sunni Islamist insurgent and terrorist group which

has expanded its control over north-western Iraq and north-western Syria since 2013.154 Founded

by the Jordanian extremist Abu Musab al-Zarqawi155 ISIL is composed of fundamentalist Sunni

Muslims, and its roots can be traced back to Iraq, to first being called Jama’at al-Tawhid wa’al-

Jihad and then AQI as it pledged its allegiance to Al Qaeda. The group used to target the Iraqi

government and the American forces in Iraq as well as attacked Shia Muslims and Christians.

Although Zarqawi was killed by US and Iraqi Intelligence agencies, the organisation soon has had

multiple leaders who continue the atrocities of the organisation, and currently is led by Abu Bakr

al-Baghdadi.156 Al-Baghdadi announced a merger of ISIL to Al Qaeda to AL as an effective

takeover of the group in order to assist the creation of the Islamic State. However, this was rejected

and Al Qaeda stated that only ANF would be its sole Syrian offshoot.157

Primarily, ISIL had limited its operations to attacking the Assad Regime and other resistance

factions within the Syrian territories and took advantage of the ongoing civil war in the country.

However, in early January 2014, ISIL had captured the cities Ramadi and Fallujah but it wasn’t

until the fall of the Iraqi city, Mosul, on 6 June 2014 had ISIL gained momentum and shocked the

151 T Jocelyn, ‘Al Qaeda in Iraq, Al Nusrah Front Emerge as Rebranded Single Entity.’ (2014) Long War Journal 152 ‘Profile: Syria’s Al-Nusra Front’ (BBC news, 10 April 2013) Available at <http://www.bbc.com/news/world-

middle-east-18048033> accessed July 29th 2015 153 Also known as Islamic State of Iraq & Syria (ISIS) as well as Islamic State (IS) although not recognized and

Arabic

acronym Daesh) 154 CM Blanchard, CE Humud, K Katzman & MC Weed, ‘The “Islamic State” Crisis and U.S. Policy’ (2015)

Congressional Research Service 155 H Austin, ‘Global jihadis or al Qaeda wannabes: Who are the Islamic State of Iraq and the Levant?’ (NBC

news, January 11 2014) available at <http://worldnews.nbcnews.com/_news/2014/01/11/22243203-global-

jihadis-or-al-qaeda-wannabes-who-are-the-islamic-state-of-iraq-and-the-levant?lite> accessed July 29th 2015 156 ‘Syria Iraq: The Islamic State militant group’ (BBC news, 2 August 2014) available at <http://www.bbc.com/news/world-middle-east-24179084> accessed July 29th 2015 157 ‘Al-Qaeda disavows ISIS militants in Syria’ (BBC News, 3 February 2014) available at

<http://www.bbc.com/news/world-middle-east-26016318> accessed July 29th 2015

http://worldnews.nbcnews.com/_news/2014/01/11/22243203-global-jihadis-or-al-qaeda-wannabes-who-are-the-islamic-state-of-iraq-and-the-levant?lite


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world by capturing entire districts and provinces.158 ISIL combatants have massacred Syrian and

Iraqi opponents, including civilians, often whom are from minority groups, murdered foreign aid

workers, combatants, and journalists, of whom gruesome videos of their executions were shown

to the world. On 29 June 2014, the organization declared the change of its name to Islamic State

which was denied by the UN, various governments as well as most Muslim Scholars to be void

and null.159

Despite the overt clash between ANF and ISIS, both Islamist groups share common ideologies and

objectives. They have had similar sanctions and violent actions in Syria. Similarly, both groups

have been responsible for the abduction of civilians and single out Christians, Turkmen, Kurds,

Yazidis, Shia as well as Sunni’s who have disputed against their strict interpretation of Islamic

Sharia Law and imposed discriminatory taxes, or forced conversions on such minorities.160 They

have imposed strict and discriminatory rules on women and girls they have abducted and forcibly

married, forcibly conversed into Islam, and enslaved women and girls. Furthermore. They have

said to have been abductions of children such as when ISIL kidnapped 130 Kurdish children in

2014161. There have been many more instances of kidnapping and forcing children to youth camps

and training them to be military fighters in combat.

Although both groups believe in the establishment of Islamic States, tensions between the groups

and by March 2014, over 3,000 fighters had been killed in battles between ISIS and ANF, as ANF

as well as smaller opposition groups view ISIL to be far too extreme and violent in their

158 K Bouzis, ‘Countering the Islamic State: U.S. Counterterrorism Measures’ (2015) 38(10) Studies in Conflict

& Terrorism 885 159 ‘BBC to review use of 'Islamic State' after MPs protest against term, More than 120 MPs, backed by David

Cameron, sign letter saying name gives legitimacy to terrorist group that is neither Islamic nor a state’ (The

Guardian, 29 June 2015) available at <http://www.theguardian.com/media/2015/jun/29/bbc-to-review-use-of-

islamic-state-after-mps-protest-against-term> accessed July 29th 2015; ‘Muslim leaders reject Baghdadi's

caliphate; Prominent Muslim leaders rebuke the Islamic State group's self-proclaimed caliphate, calling it 'void'

and 'deviant'’ (Al Jazeera, 7 July 2014) available at http://www.aljazeera.com/news/middleeast/2014/07/muslim-

leaders-reject-baghdadi-caliphate-20147744058773906.html> accessed July 29th 2015 160 N Rayman, ‘ISIS May Have Committed Genocide Against Iraq Minorities, Report Says (Time.com, 27

February 2015) available at <http://time.com/3726484/isis-isil-iraq-minorities-genocide/> accessed July 29th 2015 161 Syria: ISIS Holds 130 Kurdish Children. Kept hostage for a month. 30 June 2014

https://www.hrw.org/news/2014/06/30/syria-isis-holds-130-kurdish-children

http://www.theguardian.com/media/2015/jun/29/bbc-to-review-use-of-islamic-state-after-mps-protest-against-term


http://www.aljazeera.com/news/middleeast/2014/07/muslim-leaders-reject-baghdadi-caliphate-20147744058773906.html


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interpretation of Islamic Law.162 Furthermore, the attack on FSA by ISIL in September 2013 and

ANF and FSA in January 2014 began the rebel-on-rebel fighting which has further added to the

conflict in Syria.

4.2 Definition of crimes under International Criminal Law

The protection of civilians during conflict have long been enshrined by virtue of Geneva

Conventions of 1949 along with their additional protocols of 1977 as well as the Hague

Regulations, which were the first formal documentations regarding the acceptable use of force

during wartime and set the standard for what constitutes a war crime.163 International human rights

law and refugee law furthermore creates obligations towards states to protect their citizens in

various ways whether or not there stands a conflict.164 The violent and brutal attacks by ISIL and

ANF can be further explained in accordance to various conventions and treaties.

4.2.1 Crimes against humanity and war crimes

ISIL has been consistently violent and these acts can be legally defined under “crimes against

humanity”. The first time such acts were referred to and legally defined were under Article 6 of

Nuremberg Charter from 1945.165 It is now recognized that crimes against humanity fall under

definition of crimes under customary international law, has the status of jus cogens and functions

as erga omnes and are therefore are prohibited regardless of the offender’s nationality or of the

national laws. 166 Furthermore, Nuremberg further established that non-state actors such as

terrorists may also be under international law. 167

One of the distinct features of crimes against humanity is that the murder and inhumane acts168 are

wide-spread and systematic, which is further verified under the Rome Statue by virtue of Article

162 ‘ISIL says it faces war with Nusra in Syria’ (Al-Jazeera, 8 march 2014) available at

<http://www.aljazeera.com/news/middleeast/2014/03/isil-says-it-faces-war-with-nusra-syria-

20143719484991740.html> accessed 18th August 2015 163 G Evans, ‘Libya and its aftermath: the limits of intervention? Implementing Resolution 1973: A case of

overreach’ in Stockholm International Peace Research Institute (SIPRI) Yearbook 2012 (OUP, 2012) 164Ibid 165 H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP, 2006) 166 SR Ratner, JS Abrams, & JL Bischoff, Accountability for Human Rights Atrocities in International Law

Beyond the Nuremberg Legacy (OUP, 2009) 167 Ibid 168 Inhumane acts falls under a broad definition and can be found under various international and national legal

instruments. It can range from serious bodily harm to cruel treatment which can be found under Article 8 of the

ICC statue.

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7.169 In order to fulfill the requirement of ‘widespread’, this may be satisfied by the scale of the

crime by the number of victims.170

With regard to ‘systematic’ there have been various cases which have supported that this

requirement would be satisfied by the continuous nature of the attack and additionally as further

stated by the ICC statue that the acts “require a high degree of orchestration and methodical

planning.171 Furthermore, the acts must be targeted towards a civilian population.172

The brutal attacks which ISIL has carried out has not only been targeted to civilian population but

against military persons as well. By international law, there is a distinct difference the crimes

against humanity towards civilians and that of military as then they are treated as war crimes.173

By definition, the acts which ISIL combatants have been responsible for instantly fall under these

requirements to fulfill the definition of crimes against humanity other brutal acts they have

committed can be defined under international criminal law as well which are discussed below.

Whilst crimes against humanity are targeted towards civilians, war crimes constitute as crimes

which take place during armed conflict. Under Article 8 of the Rome Statue, if there is an armed

conflict, the rules of international humanitarian law apply including accountability for such

crimes.174 Although the Rome Statue does not specifically elaborate as to what may constitute as

an armed conflict, it relies on its interpretation under the Geneva Conventions and the additional

protocols.175 Although the civil war in Syria could be regarded as a non-international armed

conflict, ISIL and its operations as well as the nature of its conflict against the state can be regarded

as an international armed conflict.176 As foreign combatants are involved against ISIL, this further

169 Rome Statute of the International Criminal Court (adopted 17 July 1998) 170 ILC’s Commentaries to the Draft Code of Crimes, Commentary to Article (18(4); The term widespread was

furthermore verified in the cases of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Tadic, [1995] ICTY Appeals Chamber IT-94-I and Prosecutor v Blaskic, Trial Judgment [2000] ICTY IT-95-

14-T 171 H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP, 2006) 172 Article 7(2) ICC statue 173 H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP, 2006) 174 Article 8 Rome Statute of the International Criminal Court (adopted 17 July 1998) 175 A Cohen, Prosecuting Terrorists at the International Criminal Court: Reevaluating an Unused Legal Tool to

Combat Terrorism’ (2012) Mich St L Rev 176 Ibid

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supports the definition. ISIL has even released violent videos showing some of their murders, such

as the horrific death of Jordanian pilot who was captured and burned alive.177

4.2.2 Genocide

Many minority communities in the region remain to be under threat of both Islamist groups. ISIL

has systematically targeted minorities in both Iraq and Syria. In light of the definition of genocide

provided under the Genocide convention, the Rome state reflects the conditions under Article 6 as

“any of the acts committed with the intent to destroy in whole or in part, a national, ethnical, racial

or religious group or such by killing members of the group, or causing serious bodily or mental

harm, or deliberately inflicting life conditions which are calculated to bring physical destruction

of the group in whole or in part, and forcibly transferring children of the group to another

group.”178

From report, ISIL has been systematically killing, force fully converting and furthermore used rape

as a weapon of war,179 and working towards creating an Islamic State only inhabited by Sunni

Muslims who follow their strict interpretation of Islam.180

4.2.3 Sexual Slavery, Rape and Enslavement

Under Article 1 of the Slavery Convention of 1926, the definition of slavery is stated to be as

“The status or condition of a person over whom any or all of the powers attaching to the right of

ownership are exercised and slave trade includes all acts involved in the capture, acquisition or

disposal of a person with intent to reduce them to slavery”.181

177 ‘ISIS video shows Jordanian hostage being burned to death’ (The Guardian, 4 February 2015) available at

<http://www.theguardian.com/world/2015/feb/03/isis-video-jordanian-hostage-burdning-death-muadh-al-

kasabeh> accessed August 17th, 2015 178 Article 6 of the Rome Statute of the International Criminal Court (adopted 17 July 1998) 179 L Crider, ‘Rape as a War Crime and Crime against Humanity: The Effect of Rape in Bosnia-Herzegovina

and Rwanda on International Law (2011) paper prepared for the Alabama Political Science Association

Conference held at Auburn University, March 30-31, 2012 180 ISIL may have committed genocide, war crimes in Iraq, says UN human rights report’ (UN News Centre, 15 March 2015) available at <http://www.un.org/apps/news/story.asp?NewsID=50369#.VdMXN_mqpHw>

accessed August 13th, 2015 181 Slavery Convention (adopted 25 September 1926) 60 LNTS 253

http://www.theguardian.com/world/2015/feb/03/isis-video-jordanian-hostage-burdning-death-muadh-al-kasabeh


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Although sexual violence was neglected during the Nuremberg trials, such acts of violence were

recorded in the Rwanda and Yugoslavian conflicts.182 In light of Article 7(1)(g), 8(2)(b)(xxii), as

well as 8(2)(e)(vi) of the Rome Statue further confirms sexual violence constituting a grave breach

of the Geneva Conventions. 183

Various reports by organizations and the media have reported ISIL’s atrocious crimes towards

women and girls; from forcibly converting to Islam, to being sold or given as ‘gifts’, raping,

enslaving Yazidi and Christian girls and using them as sex slaves.184

4.2.4 Recruitment of Child Soldiers

ISIL has been prominently known to abduct, recruit, and train children since they began their

terrorist operations. Boys who were not Muslims were forced to convert and join military training.

Videos which show children under the age of 16 as part of their ‘Cubs of the Caliphate’ program,

in which the children are shown to be participating in live-fire exercises inside ISIL’s “kill house”

which is an indoor firing range which has been used to train the recruited children.185 Children are

furthermore used as suicide bombers by ISIL often, 18 of which have been used over the last six

months in 2015.186 Under the Rome Statute by virtue of (Article 8(2)(b)(xxvi)) in its definition of

war crimes, states that “conscripting or enlisting children under the age of fifteen years into

national armed forces or using them to participate actively in hostilities in international or internal

armed conflict”.187 Whilst the same is stated regarding internal armed conflict under (Article

8(2)(e)(vii)).188

182 J Park, ‘Sexual Violence as a Weapon of War in International Humanitarian Law’ (2007) 1 Int'l Pub Pol Rev

13 183 Rome Statute of the International Criminal Court (adopted 17 July 1998) 184 ‘ISIL may have committed genocide, war crimes in Iraq, says UN human rights report’ (UN News Centre,

15 March 2015) available at <http://www.un.org/apps/news/story.asp?NewsID=50369#.VdMXN_mqpHw>

accessed August 13th, 2015 185 M Bloom, ‘Cubs of the Caliphate: The children of ISIS’ (foreignaffairs.com, 2015) available at

<https://www.foreignaffairs.com/articles/2015-07-21/cubs-caliphate> accessed August 13th, 2015 186 ‘Dozens of child soldiers recruited by ISIL in Syria killed since the start of 2015’ (Telegraph, 15 July 2015)

available at <http://www.telegraph.co.uk/news/worldnews/islamic-state/11741503/Dozens-of-child-soldiers-recruited-by-Isil-in-Syria-killed-since-the-start-of-2015.html> accessed July 30th, 2015 187 Article 8(2)(b)(xxvi)) Rome Statute of the International Criminal Court (adopted 17 July 1998) 188 (Article 8(2)(e)(vii)) Rome Statute of the International Criminal Court (adopted 17 July 1998)


https://www.foreignaffairs.com/articles/2015-07-21/cubs-caliphate

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Furthermore, the UNSC adopted Resolution 2160 in 2014 which expressed its strong concern

regarding the recruitment and use of children in armed conflict in particular to violent and terrorist

activities by Al Qaeda and similar extremist groups. 189

4.3 Other problems caused by Terrorist Operations

Other than violating gross human rights and crimes of humanity, the ISIL and ANF has created

one of the worst refugee crisis in the world as well as a disturbance in international security by

attracting foreign fighters and promoting global terrorism as discussed below in detail.

4.3.1 IDP and Refugee Crisis

The Syrian conflict as estimated by the UN that the total number of refugees have exceeded over

4 million, which confirms it as the world’s single largest refugee crisis. Furthermore, around 7.6

million Syrians have been internally displaced in Syria and around12.2 million need humanitarian

assistance.190 In addition to the Syrian refugees, the conflict has also resulted in displacement of

around 560,000 registered Palestinian refugees.191 As mentioned, the UNSC passed resolutions

2139 as well as 2165 in accordance with humanitarian needs which opens the borders without the

consent of the Syrian government and aids for the Syrian people to flee to neighboring states with

very little provisions for legal status as most Arab countries have not ratified the Refugee

Convention relating to the Status of Refugees of 1951 as well as its 1967 Protocol.192 When in

1991 former UNSG Boutros Boutros-Ghali appointed Deng as his Special Representative on IDPs,

Deng reported that as refugees are not afforded special protection and are more vulnerable to a

combination of violence, disease, and depravation which makes their mortality sometimes as much

as 50 times higher than general population.193

189 UN Security Council (UNSC), Res 2160 (2014) S/RES/2160 190 United Nations High Commissioner for Refugees (UNHCR), ‘UNHCR: Total number of Syrian refugees

exceeds four million for first time.’ (UNHCR Press release, 9 July 2015) available at

<http://www.unhcr.org/559d67d46.html> accessed July 30th, 2015 191 B Berti, ‘The Syrian Refugee Crisis: Regional and Human Security Implications January’ (2015) 17(2)

Strategic Assessment <http://www.inss.org.il/uploadImages/systemFiles/adkan17_4ENG_7_Berti.pdf>

accessed August 15th, 2015 192 General Assembly resolution 429 (V) of 14 December 1950 UN Convention relating to the Status of Refugees

(adopted 28 July 1951) 193 TG Weiss, Humanitarian intervention (Polity Press, 2012); FM Deng, ‘The impact of state failure on

migration’ (2004) Mediterranean Quarterly; AJ Bellamy, ‘The Responsibility to Protect and the problem of

military intervention’ (2008) 84(4) Int Affairs 615

http://www.unhcr.org/559d67d46.html

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4.3.2 Instability and Increase in Foreign Fighters

ISIL not only threatens Syria, but it threatens the entire Middle East as well as the rest of the world

due to its capability in quickly seizing territory.194 The organization has been ranked as the most

well-funded jihadist terrorist organization with its daily income of US $1 to 2 million. 195

Moreover, the organization has attracted more foreign fighters than any past or present conflict,

the exact numbers of which are unknown. However, according to a report to a London based

research center The International Centre for the Study of Radicalization and Political Violence

(henceforth referred to as ICSR), in the second half of 2014 the overall foreign fighters in Syria

and Iraq exceeded 20000.196 Furthermore, the territories of ISIL has now not only been restricted

to Syria but has shown allegiance by various terrorist organizations around the world.197 This is

evidence in itself of the dangers that ISIL pose on international security and human rights concerns

by the growth of its network at such a rapid pace.

4.4 Response towards Terrorism in Syria

Since the conflict began in Syria, over the last few years the UNSC has passed several resolutions

in reference to Al Qaeda and ISIL, and their acts of terrorism. However, as far as a use of force is

concerned, so far the US-led military operation against ISIL in both Iraq and Syria has so far been

confined to airstrikes as well as training local security forces198. The United States began airstrikes

against ISIL in September 2014199

194 K Bouzis, ‘Countering the Islamic State: U.S. Counterterrorism Measures’ (2015) 38(10) Studies in Conflict

& Terrorism 885 195 M Levitt, ‘Don’t Bank on Bankrupting ISIS, but Here is How We Shrink Its Wallet’ (The Hill, 13 November

2014) Available at <http://thehill.com/blogs/pundits-blog/defense/224611- dont-bank-on-bankrupting-isis-but-

heres-how-we-shrink-its-wallet> accessed July 23rd 2015 196 PR Neumann, ‘foreign fighter total in Syria/Iraq now exceeds 20,000; surpasses Afghanistan conflict in the

1980s’ (26 January 2015) available at <http://icsr.info/2015/01/foreign-fighter-total-syriairaq-now-exceeds-

20000-surpasses-afghanistan-conflict-1980s/> accessed July 7th 2015 197 ‘Russia’s Caucasus Islamists ‘pledge allegiance’ to ISIS’ available at

<http://english.alarabiya.net/en/News/middle-east/2015/06/24/Russia-s-Caucasus-Islamists-pledge-allegiance-

to-ISIS-.html> august July 7th 2015; Somalia terror group Al Shabaab 'to pledge allegiance to ISIS' available

at <http://www.dailymail.co.uk/news/article-3156072/Somalia-terror-group-Al-Shabaab-pledge-allegiance-

ISIS-terrifying-expansion-Caliphate.html#ixzz3ipYUp9V7> accessed august 7th 2015; Nigeria’s Boko Haram

pledges allegiance to Islamic State available at <http://www.bbc.com/news/world-africa-31784538>accessed

august 7th 2015 198 C Mills, L Brooke-Holland & B Smith, ‘ISIS/Daesh: the military response in Iraq and Syria’ (2015) UK House of Commons Briefing Paper no 06995 199 ‘US begins air strikes against Islamic State in Syria’ (BBC News, 23 September 2014) available at


http://thehill.com/blogs/pundits-blog/defense/224611-%20dont-bank-on-bankrupting-isis-but-heres-how-we-shrink-its-wallet


http://english.alarabiya.net/en/News/middle-east/2015/06/24/Russia-s-Caucasus-Islamists-pledge-allegiance-to-ISIS-.html


http://www.dailymail.co.uk/news/article-3156072/Somalia-terror-group-Al-Shabaab-pledge-allegiance-ISIS-terrifying-expansion-Caliphate.html#ixzz3ipYUp9V7


http://www.bbc.com/news/world-africa-31784538

http://www.bbc.com/news/world-middle-east-29321236

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Along with the Unites States, the United Kingdom, France, and Australia have all similarly ruled

out sending troops on the ground as President Bush goes on to reaffirm that he would not commit

to sending armed forces on the ground as the US did for Iraq.200 Similar to the US Canada, Jordan,

Bahrain, United Arab Emirates, Saudi Arabia, Qatar and Turkey have led airstrikes in Syria in an

effort to combat ISIL. 201

The UNSC with regards to ISIL and Al Qaeda operations in Syria passed Resolution 2170 in

August 2014 which was the first major resolution which was passed that condemned the systematic

and widespread attack and human rights violations under international humanitarian law by ISIL

and ANF. The resolution expressed concern for civilians killed by the terrorist groups and

reaffirmed the responsibility of UN member states to protect civilians in their territories. 202

Additionally, in January 2015, the UNSC unanimously passed Resolution 2199 to further respond

to the threat of ISIL as well as ANF and other Islamist groups associated in light of Resolution

2170. The resolution highlights condemnation of oil smuggling, looting of antiquities, kidnapping

for ransom, donations and finance and furthermore that states do not supply weapons and arms to

ISIL and ANF.203 However, the Council has yet to pass on resolution which may apply the R2P

doctrine as they concluded to in Libya.

4.5 Sub-conclusion

Because of all the events, the political as well as economic fragmentation has plunged millions of

people into despair and has there is no doubt that Syria has become a web of violence which shows

no signs of end. ISIL and ANF have committed grave human rights violations under international

criminal law and have managed to create a humanitarian crisis which may take years to recover

from not just for Syria but the entire Arabian region. In the following chapter, the central question

of the thesis is discussed as to the extent of applicability of the doctrine of R2P with regards to

terrorists in Syria.

200 ‘Obama, Kerry: No US troops will be sent into combat against ISIS in Iraq, Syria’ (CNN, 17 September 2014)

<http://edition.cnn.com/2014/09/17/politics/obama-isis/> accessed 12th august 201 ‘US-led airstrikes on ISIS in Syria: Who's in, who's not’ (CNN, 2 October 2014)

<http://edition.cnn.com/2014/09/23/world/meast/syria-airstrikes-countries-involved/> accessed 12th august 2015 202 UN Security Council (UNSC), Res 2170 (2014) S/RES/2170 203 UN Security Council (UNSC), Res 2199 (2015) S/RES/2199

http://edition.cnn.com/2014/09/17/politics/obama-isis/

http://edition.cnn.com/2014/09/23/world/meast/syria-airstrikes-countries-involved/

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Chapter 5: Analysis, Applicability of R2P, and the Future of Syria

The last chapter of my thesis is finally to answer the research question of this thesis which is

“Given the political dynamics since the Arab Spring and in particular the rise of terrorist actors

in Syria, to what extent can the Doctrine of Responsibility (R2P) be perceived as a tool to solve

the conflict in Syria?”.

In order to first be able to apply the doctrine of R2P in Syria, as mentioned in chapter 2 of the

thesis when the definition and criteria of R2P were set, the components of the doctrine have to be

satisfied. That is that sovereign states have a responsibility to protect their own citizens from

avoidable catastrophe. Both Libyan as well as Syrian states had failed in protecting their citizens.

Secondly, that when states are unwilling or unable to do so, which in the case of Libya was the

failure of the government’s choice in diplomatic sanctions or in the case of Syria, the constant

expansion of the ISIL network and the government’s inability to stop the atrocious crimes or

contain the situation, after exhausting peaceful diplomatic and effective sanctions that

responsibility must be borne by the broader community of states and military force may be used

as a measure of last resort.

5.1 Applying R2P to Syria

Furthermore, along with the components of R2P which were scrutinized as to the applicability of

R2P, the next step is examining at whether the six requirements are fulfilled with regards to

terrorist activities in Syria.

The first requirement that states that military intervention must be limited to circumstances unless

in regards to the ‘threshold just cause’ where there is “large scale loss of life or ethnic cleansing

with genocidal intent that is a product of deliberate action or neglect or inability to act as well as

acts of terror and rape”. With reference to Chapter 4, it is evident that the violent crimes against

civilians as well as combatants by ISIL and ANF fulfil this criteria. Furthermore, how serious does

the humanitarian crisis have to be in order to justify military intervention? With reference to the

two kinds of limits which may be examined in order to justify the war, being qualitative rights as

well as quantitative rights, it is additionally established as to the seriousness of the crimes

committed by ISIL and ANF.

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The second requirement is that of ‘right intention’ which the primary purpose of the intervention

is so as to avert human suffering and that the intervention is to benefit the people for whom it is

intended for. With regards to terrorism, the brutal acts of violence is a constant reminder of the

grave human rights violations which are taking place in the hands of terrorist actors in Syria.

Therefore, this condition would be easily fulfilled as that is the main intention rather than regime

change.

Subsequently, the third requirement which is that of ‘last resort’ that requires that diplomatic and

non-military option needs to be exhausted by the international community before any coercive

military means may be resorted to.204 In the application of this requirement in light of terrorism,

this is difficult as terrorists are non-state actors. Diplomatic and economic sanctions are easier to

be applied to states as mentioned in light of basic concepts of international law since it is law made

for states by states.205 Hence with this fundamental principle that states are subject to international

law, an option which might work prior to coercive military force would be coercive diplomacy.

However, bearing in mind of the non-state actor mindset, coercion is exceptionally difficult and

the prospects for success is not promising.206

Moreover, as mentioned earlier, the ICISS report states that if there is a lack of time for all the

requirements to be exhausted, it should be regarded on the case of reasonable grounds to firmly

believe that all the measures attempted would have not succeeded.207 Hence, with reference to the

non-state actors in Syria, it can be concluded that this requirement would be fulfilled as the

reasonable grounds confirm that attempted measures would not succeed.

The fourth requirement which would authorize any intervention is the requirement of the ‘the right

authority’. As mentioned in the Commission’s report, it is stated that the UNSC should be the first

port of call, however, it further mentions that the General Assembly as well as Regional

organizations may act if there is an inability for the UNSC to come to a decision concerning

intervention and the high degree of legitimacy.208

204 E Massingham, ‘Military intervention for humanitarian purposes: does the ‘Responsibility to Protect’

doctrine advance the legality of the use of force for humanitarian ends?’ (2009) 876 IRRC 205 H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP, 2006) 206 TS Thomas, ‘Beyond Pain: Coercing Violent Non-State Actors’ (2010) 207 Ibid 208 E Massingham, ‘Military intervention for humanitarian purposes: does the ‘Responsibility to Protect’

doctrine advance the legality of the use of force for humanitarian ends?’ (2009) 876 IRRC; International

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As described even in the ICISS Commission’s report, regional organizations play a vital role in

the protection of international law, peace, and security and goes on to state that a collective

intervention may be perused within the regional organizations defined borders.209 As it was seen

in the case of Libya at first, the role regional organizations play is extremely important. The LAS

took firm action against Libya which was joined by the OIC as well in condemning the government

and suspending Libya from its membership and the same was seen with Syria.

Moreover, the legal framework of the UN and cooperation of regional organizations is

incorporated under Chapter VIII of the UN Charter which further demonstrates the consensus of

relationship for working towards peace and security of the UNSC and organizations.210

With that in mind, there have been a few regional organizations which have to a certain degree

assumed responsibility towards addressing terrorism. 211 In this circumstance, the regional

organization in the Middle East such as OIC, AL or GCC would have a better at tackling ISIL by

first of having a legal definition which further defines ISIL’s terrorist activities and agenda.

The Arab Convention on the Suppression of terrorism was adopted by the AL in 1998 and under

Article 1(2) goes on to define terrorism

“Any act or threat of violence, whatever its motives or purposes, that occurs for the advancement

of an individual or collective criminal agenda, causing terror among people, causing fear by

harming them, or placing their lives, liberty or security in danger, or aiming to cause damage to

Commission on Intervention and State Sovereignty (ICISS), Report of the International Commission on

Intervention and State Sovereignty, the Responsibility to Protect (IDRC, 2001) 209 International Commission on Intervention and State Sovereignty (ICISS), Report of the International

Commission on Intervention and State Sovereignty, the Responsibility to Protect (IDRC, 2001) 210 United Nations, Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI 211 Regional Organization Conventions include Arab Convention of the Suppression of Terrorism( (‘Arab

Convention’) (adopted 22 April 1998); Convention of the Organization of the Islamic Conference on Combating

International Terrorism (adopted 1 July 1998); European Convention on the Suppression of Terrorism (adopted

27 January 1977); Organization of American States (OAS) Convention to Prevent and Punish Acts of Terrorism

Taking the Form of Crimes against Persons and Related Extortion that are of international significant, (adopted

February 1971); Organization of African Unity (OAU) Convention on the Prevention and Combating of Terrorism (adopted 1999); South Asian Association for Regional Cooperation (SAARC) regional Convention

on Suppression of terrorism (Adopted 4 November 1987); Treaty on Cooperation among State Members of the

Commonwealth of Independent States in Combating Terrorism (adopted 4 June 1999)

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the environment or to public or private installations or property or to occupy or to seize them, or

aiming to jeopardize a national resource.”212

Moreover, as it was affirmed in the Tadic Case, in the event of an armed conflict, “International

humanitarian law continues to apply in the whole territory of the warring states or in the case of a

non-international conflict, the whole territory under the control of a party, whether or not actual

combat takes place there.”213 As these regions have similar ethnic and religious values, as well as

the effect of spill-over across national borders when a human catastrophe arises, the states with

have a strong collective interest for dealing swiftly as well as effectively towards resolving the

issue.

Furthermore, to support the above, according to the AIV, in a situation where the requirements of

R2P are fulfilled but the UNSC is still unable or unwilling to conclude to a decision, it follows that

the international community, as embodied by the UN, has not managed to take the responsibility

and therefore strictly speaking the doctrine of R2P has failed and therefore the AIV goes on to

state that the use of force without UN authorization is prohibited under existing international law.

However, in the absence of the mandate of the UNSC, an intervention could be legitimized on the

grounds of an ‘exceptional humanitarian emergency’.214 The AIV further goes on to state that it

believes that the future of R2P rests at a regional level. The AIV believes that the future of R2P

lies largely at regional level due to greater proximity to the local area and therefore it can be more

effective to take measures, including preventive measures, at regional than at global level.215

Hence the regional organizations may be able to work towards not only intervention in Syria, but

also towards rebuilding it.

The fifth requirement is ‘proportional means’ as mentioned under the principle of jus ad bellum

which means that the scale, duration, and intensity of the strategic military intervention should be

proportionate and that the use of force should be the minimum necessary in order to secure the

humanitarian objective in question. The first enforcement in this regard could be enforcing a no-

212 Arab Convention of the Suppression of Terrorism( (‘Arab Convention’) (Adopted 22 April 1998) 213 Prosecutor v. Tadic, [1995] ICTY Appeals Chamber, IT-94-I 214 Advisory Council on International Affairs, The Netherlands and the Responsibility to Protect: The

Responsibility to Protect people from mass atrocities (2010) 215 Ibid

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fly zone in order to protect the citizens, which would be regarded as a temporary authority in order

to achieve the objectives of R2P. 216 Furthermore, the no-fly zone would have an added benefit.

The final requirement as to whether R2P application could be fulfilled is the requirement of

‘reasonable prospects’. As the Commission went on to comment that military intervention can

only be justified if there stands a reasonable chance of success. With regards to the threat of ISIL

and ANF, this condition has a possibility of success as an intervention in order to combat the

human rights violations committed would go on for actual protection of civilians in Syria.

Therefore with regards to terrorism, the R2P doctrine may be applied as a tool in order to solve

the conflict.

5.2 Difference between Libya and Syria

As mentioned, Libya was the first instance that the doctrine of R2P was applied. The UNSC’s

framing of the crises with regards to R2P as well as the authorization of Resolution 1970 and 1973

made Libya distinct from other cases of humanitarian intervention to stop mass atrocities such the

intervention by NATO in 1999 which was unauthorized by the UNSC in Kosovo, but legitimate.217

Four years since the conflict in Syria began and the UNSC has not authorized an intervention in

Syria even though it did not take long for the Council to come to the decision of passing Resolution

1973 in Libya. In case of Libya, intervention was regarded as of utmost importance as the

government failed to protect its people and began killing them instead. In Syria, however, not only

is the government responsible for the same as Libya, but terrorist organizations are equally if not

more responsible for the grave human rights violations. In the case of Libya, for intervention, rebel

actors working against the government were assisted in order to fulfil the R2P doctrine by

NATO218 with regards to Syria the opposition against the government are mostly extremist actors

from terrorist organizations.219

216 PR Williams, JT Ulbrick & J Worboys, ‘Preventing atrocity crimes in Syria: the responsibility to protect.’

(2012) 45 Case JIL 217 H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP, 2006) 218 S Zifcak, ‘The Responsibility to Protect after Libya and Syria’ (2012) 13(1) Melb J Int'l L 219 Human Rights Watch (HRW), ‘Syria: Executions, Hostage Taking by Rebels’, (HRW, 11 October 2013)

available at: <http://www.hrw.org/news/2013/10/10/syria-executions-hostage-taking-rebels>, Accessed 5th

august 2015

http://www.hrw.org/news/2013/10/10/syria-executions-hostage-taking-rebels

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5.3 The Future of Syria and the Responsibility to Rebuild

Lastly, the last responsibility under R2P is the responsibility to rebuild; which as mentioned above

so that the reason of the intervention is not reported again. With regards to ISIL and ANF in Syria,

if once the terrorist operations seize after a triumphant in part of in whole and their combatants are

apprehended, what jurisdiction would they be under?

One of the basic concepts of international law is that it is law made for states by states for which

a basic prevailing principle is that while states are the subject of international law, non-state actors

such as terrorists as well as terrorist organizations fall within the broad non-state category and

therefore for which the principle source of applicable law is national law. 220

As neither Iraq nor Syria are parties to the Rome Statute, it would be difficult to prosecute persons

responsible for the inhumane crimes while being a part of ISIL. The problem of territorial

jurisdiction arises with regards to Article 12(2)(a) of the Rome Statute. However, considering there

are also foreign fighters present in ISIL operations, they may fall under Article 12(2)(b) that is

able to give jurisdiction over citizens of a Rome Statute signatory.221

However, as there is no legally binding definition of terrorism, does that create a gap in the legal

order towards combatting ISIL? The first point to consider is that even if there is an absence of

definition of terrorism, it does not mean that the acts of violence carried out cannot be criminalized.

Secondly, a lack of definition does not signify a lack of obligations on states or actors to refrain

from participating in or supporting acts of terrorism and to take proactive counter-terrorist

measures. States will always have obligations in respect of the repression of terrorism and such.

222

If ISIL may seize its operations or if their combatants are apprehended, what jurisdiction would

they be under? As neither Iraq nor Syria are parties to the Rome Statute, it would be difficult to

prosecute persons responsible for the inhumane crimes while being a part of ISIL. The problem of

territorial jurisdiction arises with regards to Article 12(2)(a) of the Rome Statute. However,

220 H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP, 2006) 221 Rome Statute of the International Criminal Court (adopted 17 July 1998) 222 H Duffy, The ‘War on Terror’ and the Framework of International Law (CUP, 2006)

53 | P a g e

considering there are also foreign fighters present in ISIL operations, they may fall under Article

12(2)(b) that is able to give jurisdiction over citizens of a Rome Statute signatory.223

Moreover, if instead of prosecuting under the ICC is not possible as there are a variety of conditions

to apply, an Ad hoc tribunals can be established in order to trial foreign combatants who are

captured as well being as being trialed in their domestic courts. Under Chapter VII of the UN

Charter the UNSC has broad powers to take measures such as when the two ad hoc tribunals were

made for the grave human rights violations in Rwanda and Yugoslavia. 224

5.4 Sub-conclusion

With regards to my research question, “Given the political dynamics since the Arab Spring and in

particular the rise of terrorist actors in Syria, to what extent can the Doctrine of Responsibility

(R2P) be perceived as a tool to solve the conflict in Syria?”, considering not only the civil war but

also with regard to saving people from the grasps of terror of organisations such as ISIL and ANF,

if the UNSC does not authorize the use of military force in order to intervene in order to stop grave

human rights violations and end the large scale loss of life, regional organisations should intervene

and give the authority as the requirements of the doctrine of R2P are satisfied with regards to the

terrorist actors in Syria.

Indeed, the situation in Syria is very different from that of Libya and with ISIL and ANF being

only a part of the problem along with the civil war, the need for an intervention has become more

apparent than before. However, to compare the success or fail rate whichever way it is seen of

Libya to that of Syria would be wrong. The entire dynamic of the region has been destabilized and

is getting worse and comparison will not be a good idea as the concept of R2P is new, Libya was

its only first application, and, hence, to declare it a hopeless and irrelevant mechanism is speaking

too soon. With terrorist organizations such as ANF and ISIL operating in Syria alongside the rebel

groups and Assads regime, it seems Syria’s future will not be able to be fixed at a wave of a hand,

however, there is hope that an intervention would save millions of people and began a process to

rebuild the region.

223 Rome Statute of the International Criminal Court 17 July 1998 224 United Nations, Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI

54 | P a g e

Conclusion

"What I have seen and heard today underlines the timeliness of the UN Security Council Resolution

2139 on humanitarian access and the need for all sides to implement this resolution".225

The doctrine of Responsibility to Protect was created by world leaders in order to protect

populations from atrocious crimes which violate the four grave human rights like those perpetrated

by ISIL and ANF. It is a simple principle which holds that all states should protect their own

populations from genocide, war crimes, ethnic cleansing and crimes against humanity; that states

should assist one another to achieve this goal; and that when a state manifestly fails to protect its

population from these crimes, the international community should take timely and decisive action

using all the instruments placed at its disposal by the UN Charter.

Although the gap between the legality and legitimacy remains, the main thought of consideration

should arise from the fact that millions of human lives are at stake. The desire to save innocent

civilians should come as a more legitimate reason than that which blocks intervention because it

is not legal. Therefore, when the awareness of the importance of human rights and their lives rises,

it automatically shifts a bit towards legitimacy. Years after the NATO intervention in Kosovo,

although during the conflict the actions of NATO were considered highly controversial, it

ultimately was regarded as legitimate.

The doctrine of R2P as a basis for military intervention under the complete support from the UNSC

is likely to remain problematic because of the reluctance of some of the permanent member states,

namely Russia and China, to support actions which may be alleged as further eroding away the

concept of state sovereignty and the non-intervention of internal affairs. However, their decision

to consider abstaining from Resolution 1973 rather than vetoing could be regarded as a noteworthy

development towards the use of force in order to stop a humanitarian crisis. However as Adam’s

puts it, no one has sovereignty over Syria as the civil war, sectarian violence, and the expansion

of terrorist organizations is tearing the state apart.226 Therefore, if the question of sovereignty is

225 Filippo Grandi on his visit to Syria. L Doucet, ‘Syria Crisis: A Palestinian plea from the Yarmouk refugee camp’, (BBC, 25 February 2014). 226 S Adams, ‘Failure to Protect: Syria and the UN Security Council’ (2015) 5 Global Centre for the

Responsibility to Protect Occasional Paper Series

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concerned, in this regard then with regard to R2P, the doctrine may be a tool in solving the conflict

with regard to terrorism.

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