THE LEGALITY OF INTERNATIONAL INTERVENTION BASED ON
THE RESPONSIBILITY TO PROTECT (R2P) PRINCIPLE
Introduction
The Responsibility to Protect (R2P) principle was born in response to concerns about the
international community's lack of understanding about international intervention, which is
often perceived as a form of violation of a state's sovereignty rather than as a form of human
rights protection. The international community's diverse opinions on international
intervention, in this case within the United Nations (UN), have often hampered the decision-
making process of the UN Security Council1 in its efforts to address crisis situations. The
word 'disagreement' may sound like a simple problem when every country in the world has
its own interests and opinions. However, the Rwandan Genocide in 1994 and the Srebrenica
Massacre in 1995 bear witness to how the international community's 'lack of understanding'
of international intervention has had a profound impact. This concern was later voiced by
Kofi Annan in the 1999 Annual Report of the UN Secretary-General.
Based on these concerns, in 2000 the Canadian government announced at the UN General
Assembly the establishment of an ad hoc commission called the International Commission
on Intervention and State Sovereignty (ICISS). As the name suggests, the establishment of
ICISS is an attempt to find answers to bridge the debate and find consensus between
countries related to international intervention and state sovereignty. ICISS is tasked with
providing answers related to international intervention as an effort to protect human rights,
both in terms of legality, morality, operations, and politics. 3 Based on its research, in 2001,
ICISS introduced the concept of R2P to the world. R2P is a concept where a state has a
responsibility to protect its country from avoidable disasters from mass killings and rape,
from famine but when the country unwilling or unable to fulfill that responsibility, then the
obligation to fulfill that responsibility falls to the wider community.4 When it was first
introduced, there were many who doubted the R2P concept because it was considered to
weaken the position of the UN Charter and/or interfere with the authority of the UN Security
Council, as well as contradict the traditional principles of territorial integrity and national
sovereignty.5 Even so, the R2P concept was finally adapted into a global principle at the
2005 UN World Summit. This was included in Resolution 60/1 2005 World Summit
Outcome (hereafter referred to as UN General Assembly Resolution 60/1).
In the process of its adaptation as a global principle in UN General Assembly Resolution
No. 60/1, the scope of the R2P principle was specified to be a form of protection for the
world population from the crimes of genocide, crimes against humanity, war crimes, and
ethnic cleansing or better known as atrocity crimes.67 Based on Articles 138 and 139 of UN
General Assembly Resolution No. 60/1, international intervention based on the R2P
principle must be carried out in line with what has been regulated in chapters VI, VII, and
VIII of the UN Charter, where all decisions to take action8 must go through the UN Security
Council.
Unfortunately, the absence of a definitive benchmark to determine whether a state has failed
to fulfill its responsibilities makes it difficult to determine whether any decision to intervene
against another state is an objective decision and not interfered with the interests of other
parties that aim to interfere with the sovereignty of a state. The endless debate on
international intervention, in this case carried out under the R2P principle, always revolves
around one fundamental question: does international intervention carried out through the
international organization the UN compromise the sovereignty of a state?
Without excluding the existence of the principle of state sovereignty, using a human rights
perspective, this study aims to emphasize that the protection of human rights should take
precedence over state sovereignty and that international interventions based on R2P
principles should be seen as a manifestation of responsibility. The international community
in upholding and providing protection to the human rights of the population of a state that
has failed to fulfill its obligations and is not a form of violation of the sovereignty of a state.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
Discussion
State Sovereignty and International Intervention
State sovereignty is a concept in international law that developed in mainland Europe in the
mid-century 16. The religious wars that engulfed most countries in Europe at that time
encouraged jurists and philosophers to find a solution to end the war that had lasted for
decades. One of those who contributed his thoughts was Jean Bodin, a French jurist and
philosopher who lived during the French Wars of Religion (1562-1598). In the book Six
Livres de la Republique, Bodin argued that the religious wars between Christians and
Catholics that plagued countries in Europe at that time could be resolved if the king
(sovereign) had full authority over his territory. Bodin's thinking is known as the modern
concept of sovereignty. Bodin's idea of sovereignty became a real concept in international
law after the signing of the Peace Treaty of Westphalia (Westfällischer Friede), a treaty that
marked the end of the Thirty Years' War in the Roman Empire between the Catholic
Habsburgs and their allies and the Protestant Bourbon Dynasty. The Peace Treaty of
Westphalia gave the parties to the treaty the right, with their respective positions as states, to
choose their own domestic structures and religious orientations without interference from
dynasties or churches and also gave minority groups the right to embrace their beliefs freely
and without the threat of forced conversion. Through this explanation, it can be understood
that state sovereignty is a form of power possessed by the state to regulate its territory.
However, over time, many philosophers and jurists have tried to define the concept of state
sovereignty, so that state sovereignty has many definitions and it is not uncommon for these
definitions to conflict with one another.
According to Jasmeet Gulati, from the many definitions that jurists and philosophers have
come up with, state sovereignty has at least four core aspects that generally appear in these
explanations. These four aspects are:
Sovereignty is a power
Of the many definitions of state sovereignty, one of the most commonly accepted aspects is
the definition of state sovereignty as power. As Jean Bodin explained in his book, state
sovereignty is the power that the king (sovereign) has over his territory. Apart from Bodin,
Aristotle also thought that sovereignty is the highest power in a state that can be held by one
person, a group of people, or many people.
Power is vested through some contract
After the first aspect, the aspect that most often arises is about how the sovereign power is
delegated to various authorities (sovereign authority). In a state, the sovereign authority is
the government. Lawyers and philosophers argue that sovereign power is delegated to the
government as the sovereign authority through a contract. This aspect confirms that
sovereign power as the intangible aspect of sovereignty and sovereign authority as the
tangible aspect of sovereignty are two separate things.
The sovereign is only to enforce the sovereign power
This aspect is the answer to the question of why sovereign authority is needed in a state.
According to Marcus Cicero, sovereign authority is needed to apply sovereign power in a
country. Sovereign authority is referred to as the tangible representation of the intangible
aspect of sovereignty, namely sovereign power. Through this explanation, it can be
understood that the government as sovereign authority is only formed to exercise sovereign
power.
The sovereign cannot go against the objectives of the sovereign power
This aspect emphasizes that the government as sovereign authority has limits in exercising
sovereign power. Having mentioned in the previous aspect that sovereign authority is
needed to uphold sovereign power, what then becomes a discussion is the object of
upholding sovereign power itself. According to experts, the object is the basic purpose of
state formation and sovereignty, namely the protection of human life. Based on this
explanation, it can be understood that in exercising its authority as sovereign authority, the
government must not violate the object of enforcing sovereign power to protect its
population.
After World War II and the formation of the United Nations, state sovereignty became one
of the principles adopted by UN member states. The application of the principle of
sovereignty is also accompanied by the application of the principle of non-intervention
which prohibits a country from interfering in the internal affairs of another country. Article 2
numbers 1, 4 and 7 of the UN Charter explain that:
In seeking to achieve the objectives listed in Article 1, the Organization and its members
will act in accordance with the following principles:
1. The organization is based on the principles of equal sovereignty of all members.
4. All members shall, in their international relations, refrain from threatening or
using force against the territorial integrity or political independence of any other state
or in any manner contrary to the purposes of the United Nations.
7. Nothing in the present charter authorizes the United Nations to interfere in what
are essentially internal affairs of a state or obliges its members to settle such affairs
in accordance with the provisions of the present charter; this principle is without
prejudice to the provisions on the use of coercive measures contained in Chapter
VII15.
The application of the principles of state sovereignty and non-intervention in the UN Charter
aims to ensure that each UN member state has an equal position with one another and is free
to manage its internal affairs without interference from other countries, which is so
important considering that not a few UN member states have just achieved independence.
The application of the principle of state sovereignty and the principle of non-intervention
began to raise concerns for the international community after not a few governments as
sovereign authority began to abuse their authority. This certainly raises the question of how
far the principles of state sovereignty and non-intervention apply in a country? Power tends
to corrupt and absolute power corrupts absolutely. Lord Acton's statement has once again
become a reality after the emergence of cases where the government, which is supposed to
carry out its obligation to protect its citizens, has become the perpetrator of violations of the
rights of its citizens. This reason also underlies experts' opinions on the fourth aspect of state
sovereignty, which relates to the limits of the government's sovereign authority. As
explained in this aspect, the government in carrying out its role as sovereign authority is
limited by the object of sovereign power, namely the protection of its population. Based on
this explanation, it can be understood that the state, in this case represented by the
government, has the obligation to provide protection for its population, in accordance with
the purpose of the establishment of the state and sovereignty itself. In the field of human
rights, the form of protection is to respect, protect and fulfill the human rights of its
population. The obligation to respect prohibits the state from interfering with or limiting the
fulfillment of human rights. Obligations to protect means that a state has an obligation to
protect its citizens from violations of their human rights. The obligation to fulfil requires the
state to take the necessary actions to realize the fulfillment of human rights. The problem
then arises when The state, which is supposed to act as a protector of its citizens from human
rights violations, is no longer able to carry out its obligations, or even becomes the
perpetrator of human rights violations itself. This then raises the question of who is obliged
to provide protection for the population of a state that violates human rights. When residents
of a state suffer human rights violations, the government of that state has violated its
obligation to provide protection for the interests of its residents. In these cases, the
obligation to provide protection to the population of the country shifts to the international
community to be carried out in accordance with the UN Charter and the General Declaration
of Human Rights (UDHR), as stated in the Report of the Panel Meeting of the UN General
Assembly in 2004.16 The form of accountability of the international community can be in
the form of humanitarian assistance, or international intervention.
The most significant difference between humanitarian assistance and international
intervention lies in consent. In humanitarian assistance, the international community,
usually through nongovernmental organizations such as the International Red Cross,
involves itself in the internal affairs of a country by providing assistance, with the consent or
even request of the country, to meet the needs of its population. Whereas in international
intervention, the international community involves itself in the internal affairs of a country
without its consent.
Under the UN Charter, any action taken by the international community to intervene must be
authorized by the UN Security Council. The UN Security Council is the organ authorized to
determine whether or not the international community needs to take action in dealing with
conflicts that occur within a country, especially if the UN Security Council considers that
the conflict threatens peace, violates peace or is an act of aggression.17 Chapter VII of the
UN Charter explains that, in the event that the UN Security Council deems it necessary for
the international community to take action to intervene in a country's conflict, such action
may take the form of non-forcible interventions such as the imposition of sanctions or the
severance of economic and diplomatic relations, or forcible interventions, often called
humanitarian interventions, using the armed forces of UN member states. In this study, the
author will focus more on humanitarian intervention as a form of international intervention
that is often considered a violation of a country's sovereignty.
Despite all the controversy surrounding it, humanitarian intervention is a manifestation of
the international community's concern for the protection and safety of the world's population
from human rights violations.
Through these definitions, it can be understood that humanitarian intervention is the use of
armed force by a state or a group of states against another state with the aim of providing
protection for the population of that state from violence and human rights violations.
The act of using military force against another country to stop a conflict, regardless of its
purpose, is what then raises opposition to humanitarian intervention, where the intervention
is often considered a violation of sovereignty. One of the humanitarian interventions that
has drawn worldwide condemnation is the intervention that NATO carried out against
Kosovo.25 NATO, which at that time acted without the permission of the UN Security
Council, was considered to have violated the sovereignty of Yugoslavia after carrying out air
strikes on Yugoslav territory for approximately three months.26 On the other hand, the non-
implementation of humanitarian intervention when the Srebrenica massacre occurred still
generated criticism from various parties in the international community because the UN was
considered negligent towards human rights violations that occurred in Srebrenica. The
uncertain international sentiment towards any form of intervention made the decision to
conduct humanitarian intervention a 'no-brainer'. Recognizing this disagreement, Kofi
Annan in the 1999 annual report of the UN Secretary-General encouraged the international
community to find this 'understanding'.
R2P Principles as a Form of Protection of Human Rights
Realizing the need for understanding for the international community in viewing
humanitarian intervention as a form of human rights protection rather than a violation of
state sovereignty, and encouraged by Kofi Annan's question in the 1999 annual report of the
UN Secretary-General, at the 2000 UN General Assembly, the Government of Canada
established ICISS.28 As the name implies, ICISS is an ad hoc commission that aims to find
solutions to bridge the chronic disputes about intervention and state sovereignty, as well as a
way out of the massive and systematic human rights violations that occur in various parts of
the world. ICISS is tasked with providing answers related to international intervention,
especially humanitarian intervention, as an effort to protect human rights, both in terms of
legality, morality, operations, and politics.
Armed with these four basic objectives, in 2001, ICISS introduced the concept of R2P to the
world. R2P is the ICISS' answer to four pre-defined basic objectives. According to the
ICISS Report, R2P is a conceptualization of the idea that a sovereign state has the obligation
to protect its own population from avoidable disasters-from mass murder and rape, from
famine-and when the state is unwilling or unable to carry out its obligations, then those
obligations must be shouldered by the wider community34.
From these basic principles it can be understood that the primary obligation of a sovereign
state is to protect its population. In the event that the population of a state is in danger due to
internal conflict, rebellion, repression or state failure and the state in question is unwilling or
no longer able to carry out its obligations, then the principle of non-intervention that
originally applied must be set aside and the obligation to protect the population of the state
will be taken over by the international community. The waiver of the principle of non-
intervention and the transfer of the obligation to provide protection for the population to the
international community, which is then often referred to as international intervention, is the
last alternative and is only done when a state is considered truly no longer able or at all
unwilling to carry out its primary obligations. In this regard, it should be emphasized that the
focus of international intervention should not be on the international community's right to
intervene, but rather the obligation to protect populations from harm. International
intervention is merely a form of shifting the actor holding that obligation.
Speaking of legality, the ICISS argues that the implementation of humanitarian intervention
can be justified as long as it is carried out in certain circumstances.
The establishment of these circumstances aims to provide clear boundaries as to when
humanitarian intervention is justified, and does not constitute a violation of sovereignty.
In addition, to ensure that international intervention is carried out appropriately, the ICISS
explains that the implementation of international intervention under R2P follows several
precautionary principles, namely:
Right Intention
The primary objective of international intervention, regardless of any implicit motives of the
intervening party, should be to stop and/or avoid human suffering. It should be a multilateral
operation and have the support of neighboring states and victims.
Last Resort
Military intervention is a last resort that can only be justified when all non-military efforts to
prevent conflict escalation have been made and have failed to stop the conflict.
Proportional Means
Minimizing the scale, duration and intensity of the intervention is necessary to keep the
impact on public safety to a minimum.
Reasonable Prospects
The imposition of intervention must be accompanied by a careful calculation of the
likelihood of success in stopping or preventing the suffering of a country's population,
taking into account whether the intervention will improve or worsen the situation.
The ICISS report on the concept of R2P does not only focus on the intervention actions that
the international community can take, but divides it into three specific responsibilities,
namely:
Responsibility to Prevent
The international community has an obligation to identify the root causes and proximate
causes of internal conflicts and problems that potentially jeopardize the safety of a country's
population.
Responsibility to React
In the event that a state's internal conflict has endangered its population, the international
community must react to the situation with due consideration. This can take the form of
sanctions, reporting to an authorized international judicial body, or military intervention.
Responsibility to Rebuild
Post-conflict situations, especially after military intervention, require the international
community to provide assistance in restoring, reconstructing and reconciling conflict-
affected countries to their original state.
The concept of R2P was initially opposed by UN member states who thought that the
existence of this concept weakened the position of the UN and the UN Security Council as
institutions that have the authority to intervene against a country when necessary. However,
the concept was later adapted as a global principle at the 2005 UN World Summit.
Unlike the six circumstances in which humanitarian intervention can be justified that have
been established by the ICISS previously, UN General Assembly Resolution No. 60/1
focuses R2P as a form of protection of the population of a country from genocide, war
crimes, ethnic cleansing, and crimes against humanity. The elimination of state collapse and
natural disasters as reasons for justifying humanitarian intervention, according to the author,
is based on the significant difference between these two circumstances and the four
circumstances listed in UN General Assembly Resolution No. 60/1. In the state of genocide,
war crimes, ethnic cleansing, and crimes against humanity, there are criminals where
humanitarian intervention can make a difference by stopping these crimes. Whereas in a
state collapse or natural disaster, the application of humanitarian intervention with military
force tends to be inappropriate and is likely to worsen the situation 46 . The circumstances in
which humanitarian intervention can be justified according to UN General Assembly
Resolution No. 60/1 are four crimes known as atrocity crimes.
Initially, atrocity crimes was a term used in reference to three international crimes, namely
genocide, crimes against humanity and war crimes. After the 2005 UN World Summit, the
scope of the term atrocity crimes was expanded to include crimes of ethnic cleansing.
Atrocity crimes are seen as serious crimes against humanity. Although equally categorized
as atrocity crimes, genocide, crimes against humanity, war crimes, and ethnic cleansing have
different target victims, namely:
Genocide
Stipulated in the Convention on the Prevention and Punishment of the Crime of Genocide,
the crime of genocide includes acts committed with the aim of destroying, in whole or in
part, a national, ethnic, racial or religious group, such as:
Killing group members;
Causing serious bodily or mental harm to group members;
Intentionally creating living conditions that physically damage group members, in
whole or in part;
Take measures that prevent births in these groups;
Forcibly transferring children from one group to another.
Based on the elaboration of article 2 of the convention, although the target of the crime of
genocide is individualized, victims of the crime of genocide are targeted because of their
membership in the group.
Crime Against Humanity
According to Control Council Law No. 10,48 crimes against humanity are the crimes of and
offenses which include but not limited to murder, extermination, enslavement, deportation,
imprisonment, torture or other inhumane treatment of civilians, or persecution on political,
racial or religious grounds in time of peace or war49 . Although non-civilian populations can
still be victims of crimes against humanity, the primary target of crimes against humanity is
the civilian population.
War Crime
In simple terms, war crimes are a form of violation of international humanitarian law. As
stipulated in the four Geneva Conventions of 1949 and the 1977 Additional Protocol I, both
combatants and non-combatants can be victims of war crimes. Victims of war crimes can
include those protected under the conventions, namely combatants injured or sick on the
battlefield, combatants injured or sick at sea due to shipwreck, prisoners of war, civilians, as
well as parties not involved in combat, including armed forces that have surrendered their
weapons or are in a state of Hors de Combat.
Ethnic Cleansing
After being added as one of the atrocity crimes at the 2005 UN World Summit, until now
ethnic cleansing has no legal definition and has not been explicitly regulated in international
legal instruments. Excessive nationalism that assumes that one ethnicity has a higher
position than another, or the understanding that the leader and the led must be of the same
ethnicity often triggers ethnic cleansing. Attempts to homogenize an area are often carried
out by force by carrying out forced assimilation, mass deportation, or genocide. 51 Based on
this explanation, the victims of ethnic cleansing are certain ethnic groups that are eliminated
in order to create a more ethnically homogenous environment.
The position of the four as international crimes is based on the understanding that the four
atrocity crimes injure basic human dignity, especially those who should be most protected
by the state, both in peace and war. 52 The tendency of atrocity crimes to threaten the safety
of life of a country's population is certainly contrary to the basic purpose of state formation
and sovereignty itself. In addition, through the explanation of the four crimes, it can be
understood that atrocity crimes violate not only one, but various basic human rights listed in
the UDHR, a declaration that is recognized and whose respect and fulfillment have been
promised by UN member states. One of the most fundamental rights violated by atrocity
crimes is the right to life.
Article 3 of the UDHR clearly states that 'everyone has the right to life, liberty and security
of person'53, so it is certain that crimes such as genocide, war crimes, ethnic cleansing and
crimes against humanity contravene this article. The provision of the right to life in the
UDHR is coupled with the existence of Articles 5 and 9 of the UDHR which state that 'no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment'
and 'no one shall be subjected to arbitrary arrest, detention or exile', rights which are also
violated in the event of atrocity crimes. In line with the purpose of state formation and
sovereignty to protect the safety of the state's population, in the event that a state is no
longer able to cope with or even becomes a perpetrator of atrocity crimes, the international
community should take over the responsibility to protect the state's population by enforcing
humanitarian intervention using the R2P principle as a reference.
Based on this explanation, the author's statement about how the R2P principle is a form of
protection of human rights is certainly unquestionable. The application of humanitarian
intervention based on the R2P principle to stop atrocity crimes is the same as stopping
human rights violations, which also means providing protection and upholding the human
rights of the population affected by the four crimes.
International Intervention Under R2P Principles Does Not Violate State Sovereignty
Through the previous discussion, it can be understood that the principle of state sovereignty
and international intervention actually have the same goal, namely It provides protection for
the citizens of a country from actions that could potentially threaten their human rights.
After World War II and the rise of colonialism, state sovereignty, coupled with the principle
of non-intervention, became an important instrument in relations between states by ensuring
that each state has an equal position with each other. By giving the state the authority to
manage its own internal affairs and prohibiting interference from other countries, the state
government as a sovereign authority has the authority to take actions deemed necessary to
provide protection for its population from potential threats brought by other countries, such
as colonization or invasion. Meanwhile, international intervention is an attempt by the
international community to protect the population of a country when the government as the
sovereign authority abuses its authority and takes actions that threaten the safety of the
country's population. When the government as sovereign authority violates the basic
purpose of the establishment of sovereignty54, the authority possessed by the government as
sovereign authority will automatically disappear. By posing a threat to the life and safety of
its population, the government is actually harming sovereignty itself. For this reason,
international intervention, especially humanitarian intervention, is necessary to stop the
abuse of power by the government as sovereign authority. According to Lauterpacht, when a
state acts cruelly and arbitrarily to the point of violating the human rights of its population,
intervention with humanitarian purposes can be justified.55 Intervention can only be said to
violate state sovereignty when the government as sovereign authority carries out its duty to
provide protection to its population in accordance with its responsibilities. In the event that
the intervention is carried out when a state has properly carried out its obligations, then the
international intervention not only violates the sovereignty of the state, but also violates
applicable international law. However, when the government as sovereign authority violates
the basic purpose of sovereignty and the intervening party aims to fulfill that purpose, then
the intervention cannot be considered as violating sovereignty itself.
In fact, the difference between the principles of state sovereignty and international
intervention is only about who plays a role in providing protection for the population of a
country. If state sovereignty serves as a form of protection by the government of a country
for its population from external powers, then international intervention is an effort to protect
the population of a country from internal power threats provided by the international
community. The endless debate about state sovereignty and international intervention should
not occur if the international community begins to understand that both are equally focused
on protecting the rights of the population and the safety of a country's population. It is this
commonality of purpose between state sovereignty and international intervention that the
ICISS as the commission that came up with the R2P principle seeks to communicate. 57
R2P is an attempt to shift the narrative from international intervention as an act that violates
state sovereignty to the takeover of state obligations by the international community, in the
event that the state is no longer able to carry out its responsibility to provide protection for
its population. Although there are differences between the R2P principles resulting from
ICISS research and the R2P principles adapted in UN General Assembly Resolution 60/1,
where the R2P principles in the resolution focus more on protecting the population of a
country from four atrocity crimes, both still have the same goal. R2P, both in the ICISS
research and UN General Assembly Resolution 60/1, is a solution to the international
community's disagreement in addressing international interventions that are often considered
a form of violation of a country's sovereignty. The existence of the R2P principle guarantees
that the human rights of a country's population will always be protected. When the
government of a country as the sovereign authority that should hold the obligation to protect
its population is no longer able or even becomes the perpetrator of human rights violations,
especially the four atrocity crimes, then the international community has the responsibility
to take over the obligation.
The obligations of the state and the role of the international community in the R2P principle
have been listed in Articles 138 and 139 of UN General Assembly Resolution 60/1. The
obligations of the state and the role of the international community are then known as the
three-part R2P principle with the following coverage:
The state's responsibility to protect its population from four crimes, genocide, war
crimes, ethnic cleansing, and crimes against humanity;
The obligation of the international community to assist a country in fulfilling its
responsibilities;
The obligation of the international community through the UN to take timely and
decisive action where states fail to protect their populations from one or more of the
four crimes.
Based on these three pillars, it can be understood that the state is the main actor that has the
obligation to provide protection for its population from crimes of genocide, war crimes,
ethnic cleansing, and crimes against humanity. The obligation of the international
community only arises when the state is deemed incapable of carrying out its
responsibilities, in accordance with what is stated in the second and third pillars of the R2P
principle, where the community is obliged to provide protection for the population.
The international community has an obligation to provide assistance for a state to carry out
its responsibilities, or take action when the state is unwilling or unable to carry out its
responsibilities. Meanwhile, the authority to intervene based on the principle of R2P is
specifically regulated in Article 139 of UN General Assembly Resolution Number 60/1
which explains that the international community, through the UN, has the obligation to
protect the population of a country from atrocity crimes by using diplomacy and/or other
peaceful efforts, in accordance with Chapters VI and VIII of the UN Charter. In the event
that peaceful efforts are deemed unable to provide adequate protection for the population of
the country, then the international community through the UN Security Council can take
action in accordance with its authority stipulated in Chapter VII59 of the UN Charter. From
this explanation, it can be understood that any intervention carried out under the R2P
principle must be carried out through the UN Security Council.
The adoption of the R2P principle provides space for the international community, through
the UN, to take the necessary action when faced with the occurrence of four atrocity crimes,
which include the crimes of genocide, war crimes, ethnic cleansing and crimes against
humanity. This is a manifestation of the international community's responsibility to take
over a state's obligation to provide protection for the population of a state when that state is
no longer willing or able to carry out its obligations. International intervention based on the
R2P principle does not violate the sovereignty of the state because it is carried out when the
state is not carrying out its obligations as a sovereign authority or even becomes a party that
injures sovereignty itself by endangering the security and safety of its population. In the R2P
principle, both the state and the international community are actors who have an obligation
to protect the population of a country from violations of their human rights, where the
international community will only intervene when the state as the main obligation holder
cannot carry out its duties in protecting the population from atrocity crimes. In accordance
with this explanation, it can be concluded that international intervention based on the R2P
principle is not a violation of state sovereignty, but rather a form of responsibility of the
international community to protect and uphold the human rights of a country's population.
Starting from this conclusion, the author argues that the R2P principle which provides space
for the international community to take over the responsibility of the state in providing
protection for the country's population can be a real solution to several ongoing international
conflicts. One of the conflicts where international intervention based on the R2P principle
can be applied is the conflict that still overshadows Myanmar. Although the international
community should not be involved In the process of changing the regime of a country's
government, the international community should still take action when civilians are
victimized in this 'transfer' of power. According to UNHCR report A/HRC/49/72, at least
1,500 Myanmar civilians were killed in the coup process launched by the Tatmadaw on
February 1, 2021. The coup, which was carried out on the basis of allegations of fraud in
Myanmar's 2020 elections, was characterized by arbitrary detention, the use of violence
against demonstrators, extrajudicial killings, and also torture in detention by the
Tatmadaw.60 This action certainly contradicts the obligation of a state government as a
sovereign authority to provide protection to its population and can clearly be categorized as
crimes against humanity.61 For this reason, it is appropriate for the international community
to take action to stop the atrocities that have occurred by enforcing international intervention
based on the principle of R2P.
Conclusion
Based on the description that has been described, it can be concluded that international
intervention based on the principle of R2P is not a violation of state sovereignty, but rather a
form of community responsibility international intervention in providing protection for the
human rights of a country's population from atrocity crimes that include genocide, war
crimes, ethnic cleansing and crimes against humanity. This conclusion is based on the
understanding that state sovereignty and international intervention actually have the same
purpose and do not contradict each other. State sovereignty and international intervention
both aim to provide protection for the population of a country. The difference between the
two lies only in who provides the protection. State sovereignty, which is the authority
possessed by a state to regulate its internal affairs without interference from other countries,
positions the state as a protector of its population from threats coming from external parties,
such as the threat of colonization or invasion. Meanwhile, international intervention is an
effort made by the international community in providing protection for the population of a
country when the state has failed to carry out this role. The existence of the R2P principle
itself aims to bridge the disagreement of the international community in viewing
international intervention by focusing the act of intervention as an effort to protect the
country's population from the four atrocity crimes and emphasizing that international
intervention is only the takeover of responsibility, from the state by the international
community, to provide such protection. This explanation reaffirms the author's assertion that
international intervention under the R2P principle is an effort to protect and uphold human
rights by the international community. The presence of this principle should be a real
solution in an effort to resolve conflicts that hit countries in the world. The UN Security
Council as an organ authorized to determine the actions that can be taken by the
international community must maximize the application of the R2P principle as the basis for
enforcing international intervention when the world is faced with conflicts involving four
atrocity crimes.
