45 / 532
29
RESPONSIBILITY WHILE PROTECTING ȃ AN ALTERNATIVE TO R2P…
Council”
25
and be carried out in conformity with the UN authorising resolution
and with the standards of international law. The use of force may only come as a last
resort measure, after the exhaustion of all other available means, and it can
“under no
circumstance /…/ generate more harm than it is authorized to prevent”.
26
The context of UN-mandated operations is further reflected in the requirements
that military operations approved under R2P be subject to strict monitoring and that,
in case the intervening forces overstep their mandate or fail to respect international
standards, accountability be ensured. The crucial role is entrusted to the UN Security
Council, as the organ with
“the primary responsibility for the maintenance of international
peace and security”
(Article 24 par. 1 of the UN Charter) and as the main guarantor of
the UN collective security system. The emphasis placed upon the close monitoring
and accountability can again be read as a reaction to the Operation United Protector,
which was left uncontrolled by the UN, with large discretion, amounting
de facto
to
unlimited power, granted to the intervening NATO forces. In sum, the first reading of
RwP focuses on the implementation of the military component of Pillar Three of R2P,
stressing the limits imposed upon the action by the authorising UN Security Council
resolution, just war criteria and general international law.
The
second reading
of RwP goes beyond Pillar Three, paying attention to R2P
in its totality. This reading seeks to explain the relationship between the three pillars
of R2P. To recall, the first pillar is the primary responsibility of states to protect their
populations from the four core crimes under international law. The second pillar
pertains to the responsibility of the international community to encourage and assist
states in fulfilling their primary responsibility. The third pillar relates to the subsidiary
responsibility of the international community to protect populations from the core
crimes by all available diplomatic, political and, as a last resort, military means, in case
of a manifest failure of the state to assume its primary responsibility. This three-pillar
structure was introduced in the 2005 Outcome Document (par. 138-139) and later on
elaborated upon by the Special Advisor of the UN Secretary-General on Responsibility
to Protect, Edward C. Luck.
27
The prevailing opinion is that no hierarchy and no fixed
sequencing exist between the three pillars of R2P and that flexibility is needed when
R2P is applied, to take into account the context of a particular situation (case-by-case
approach).
Brazil does not fully share this view, as clearly visible from the statements of its
representatives. Under RwP, in the second reading of the concept, there is
“a political
25
Ibid.,
par. 11(f).
26
Ibid.,
par. 11(e).
27
UN Docs A/63/677,
Implementing the responsibility to protect,
Report of the Secretary General,
12 January 2009; A/64/864,
Early warning, assessment and the responsibility to protect,
Report of
the Secretary General, 14 July 2010; A/65/877–S/2011/393,
The role of regional and subregional
arrangements in implementing the responsibility to protect,
Report of the Secretary General, 28 June 2011;
A/66/874–S/2012/578,
Responsibility to protect: timely and decisive response,
Report of the Secretary
General, 25 July 2012.