Nicolas Michel, ‘La responsabilité de protéger – Une vue d’ensemble assortie d’une perspective suisse’, in: Revue de droit suisse. – Bâle. – Vol. 131 (2012). Halbbd. II, no 1, p. 5-109. – Numéro thématique: Le droit suisse face aux défis du droit international [The Responsibility to Protect – An overview together with a Swiss perspective].
Michel – Une vue d’ensemble assortie d’une perspective suisse
Background
Nicolas Michel is a distinguished scholar of international law at the Graduate Institute in Geneva. He was a professor international law at the University of Fribourg and a legal advisor on international law to the Swiss Government. He subsequently took up the position of head of the legal department of the UN Secretary General’s office. During this period, he worked inter alia on the emerging doctrine of Responsibility to Protect (R2P).
Summary
The paper which translates as the Responsibility to protect – An overview from a Swiss perspective details the history of the responsibility to protect and its adoption as well as the controversies that surround it. The concept of the responsibility to protect was born in 2001. The foundations were from an international commission created by Canada as a response to an interpellation of the Secretary General of the United Nations Kofi Annan. It was adopted by the General Assembly in 2005. The first time the Security Council referred to it explicitly was in 2011, in regard to Libya, however the concept has not been used in the recent Syrian crisis. The goal of the concept is to remind states and the international community of their responsibility to prevent humanitarian catastrophes. The concept rose against the background of the inactivity in Rwanda and Srebrenica and the subsequent military intervention without authorization of the Security Council.
Although the concept is strongly supported four main aspects are controversial: (i) The basis for the responsibility to protect: sovereignty as the basis of responsibility other than the concept of humanitarian intervention, being in contradiction with sovereignty, responsibility to protect is considered to be a component of sovereignty but at the same time is seen as a weakening of state sovereignty. (ii) The scope of the responsibility to protect: The authors of the concept were aiming to cover “considerable loss of human lives” and “ethnic cleansing on large scale”, while the General Assembly limited it to genocide, war crimes, ethnic cleansing and crimes against humanity. The exclusion of natural catastrophes and change of regime is (controversially) discussed. (iii) The normative character of the responsibility to protect: Is the responsibility political, moral, or legal, does the concept has a legal character? In any case, the responsibility is supported and already implemented in a high number of existing legal rules. (iv) The Security Council’s role: Measures of the Security Council are discussed, for example when they do not respect fundamental human right standards or where it is incapable to act.
Switzerland supports the emergence and implementation of the concept. A number of its positions have been integrated, others still deserve to be promoted and defended with determination.