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Legality, Legitimacy and Human Protection: International Intervention Against ISIS in Syria

Originally posted at the IPI Global Observatory

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As the battle for the tiny Kurdish enclave in Kobane goes into what could be its final phase, and the US-led coalition steps up its air campaign against the so-called Islamic State (ISIS) in Syria, serious questions are being asked about the legality and legitimacy of intervention and about what all this means for the Responsibility to Protect (R2P).

Several prominent commentators have argued that the airstrikes in Syria are illegal because they have not been authorized by the UN Security Council and are not acts of self-defense because ISIS poses no direct threat to the US. But this rests on a mistaken view of the scope of self-defense enshrined in the UN charter. Article 51 of the charter notes the “inherent right” of states to “individual or collective self-defense” (emphasis added). In other words, not only does the government of Iraq have a right to use force to defend itself against ISIS, other states have a right to assist it, as Jason Ralph has pointed out. The absence of a direct threat to the US or its allies does not, therefore, invalidate self-defense as grounds for intervention, because actions against ISIS in Syria are essentially a defensive response to that organization’s armed aggression against Iraq. Indeed, this was precisely the argument US officials employed. While there may be some legal squabbling at the margins, it appears from the international response to the intervention that this is a justification broadly accepted by most member states.

The legal and political case is buttressed somewhat by the position of the Syrian government—though only at the cost of additional complications. Although the US and its allies have gone out of their way to emphasize that they do not need and have not sought the formal consent of Bashar al-Assad’s government for fear of lending legitimacy to a regime responsible for widespread and systematic crimes against humanity, it is evident from both the Syrian government’s statements and its actions that the mission against ISIS enjoys its consent. Not only has the government offered formal consent, it is also cooperating with the US-led effort by standing down its air defenses in the relevant areas of operation. This in itself implies that the US and Damascus are sharing operational information. International law permits states to invite military intervention onto its territory, and the Syrian government’s statements and actions lend further legal weight to the intervention. It has also helped politically, moving Russia from a position of outright opposition to intervention without a UN Security Council resolution in mid-to-late September to one of ambivalence today. While Moscow would prefer to see Syria invited to grant formal consent, it seems to be satisfied that the government is supportive.

Of course, all this raises difficult questions about the extent to which the US and its allies are now actively supporting a regime responsible for untold atrocity crimes against its own population.

This is a particular problem for efforts to fulfill the Responsibility to Protect (R2P), since action that degrades ISIS will necessarily embolden the Syrian regime. It is important to be clear-eyed about some of the potential downside risks associated with this action. On the one hand, relieved of the need to commit forces to the war against ISIS, the Syrian regime will be free to commit greater resources to its campaign against the Free Syrian Army. On the other, any action that degrades the opponents of Damascus will necessarily strengthen the regime’s relative position. With its position strengthened, the regime will likely be less, not more, inclined to negotiate a settlement. As such, it is not surprising that there is no sign yet of any opportunities for a negotiated settlement and nor are they likely while the frontlines remain in flux.

These are difficult and troubling questions, but perhaps the hard reality is that on this specific matter of the threat posed by ISIS to civilians, the interests of the Syrian government, the US-led coalition, and the protection of populations from genocide and other mass atrocities are temporarily aligned. Irrespective of the precise legal justifications for action, important as they are, those following the chaotic scenes in Kobane would be hard-pressed to claim that the US-led airstrikes were not supporting the goals of R2P. By degrading ISIS forces, the strikes have bolstered Kurdish efforts to protect their own and, at the very least, bought civilians more time to flee. This response may be much less than what is needed, may be motivated by a range of concerns of which R2P is just one, and may carry with it downside risks for the long term, but the time for perfect solutions is long past and the airstrikes are supporting frantic efforts on the ground to hold back the ISIS tide and protect Kurdish civilians.

The US-led military intervention has sufficient legal justification and is making a direct contribution to the protection of populations in Syria from genocide and mass atrocities. Whether it will prove to be too little, too late remains to be seen, but the fate of many depends on the international community’s resolve in dealing with the ISIS threat.

Alex J. Bellamy is Professor of Peace and Conflict Studies at The University of Queensland and Director of the Asia Pacific Centre for the Responsibility to Protect. He is also a Non-Resident Senior Adviser at the International Peace Institute.

AP R2P Seminar: Summary of the Gender Related Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea

Siobhan Hobbs, Gender Advisor to the Commission of Inquiry

The Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea was mandated by the Human Rights Council in March 2013 to investigate the systematic, widespread and grave violations of human rights in the Democratic People’s Republic of Korea, with a view to ensuring full accountability, in particular for violations which may amount to crimes against humanity.[1] The Commission’s detailed findings were made public on February 17, and presented to the Human Rights Council on 17 March 2014. Below is a summary of the gender-related findings of the Commission. The detailed findings of the Commission are available on the Commission’s website.[2]

Gender-based Discrimination[3]

The Commission found that gender-based discrimination is pervasive in the DPRK and intersects with the discrimination based on the state-assigned social class system (Songbun) resulting in many vulnerable groups. Discrimination against women in particular is prevalent in all areas of society. Although the State encouraged women’s participation in state-based employment in the early years, as the economy declined women were shed from state employment thus losing their right to state pensions and childcare facilities. Many women, survival-driven during the famine of the 1990s, began operating private markets. However, the State imposed many restrictions on female-dominated markets, including the restriction that only women over 40 can engage in trading and women are targeted to pay bribes or fines. There is recent evidence that women are beginning to object and to resist such impositions. Sexual and gender-based violence against women is prevalent throughout all areas of society. Victims are not afforded protection from the State, support services or recourse to justice. The male dominated state preys on both economically advancing and marginalised women extracting bribes and fines from those that can pay, transactional sex from the marginalised and perpetrating sexual and gender-based violence without fear of prosecution.

Discrimination against women also intersects with a number of other human rights violations, placing women and girls in a position of vulnerability. Violations of the rights to food and to freedom of movement have resulted in women and girls becoming vulnerable to trafficking and increased engagement in transactional sex and prostitution. These violations have also contributed to the malnourishment of women and children during the periods of food shortage.[4] The complete denial of the freedoms of expression and association has been a large contributing factor to the generally unequal status of women vis-à-vis men. These limitations have, inter alia, prevented women from collectively advocating for their rights as women have done elsewhere in the world.

Trafficking in Women and girls[5]

Since 2006, over 70% of DPRK nationals reaching the Republic of Korea have been women and as it is likely more women than men remain in China (due to trafficking), the ratio of women to men leaving the DPRK is likely higher than those recorded to have reached the ROK. Women are pushed into leaving due to the difficulties that women particularly face inside the DPRK, especially during times of famine, as well as on going challenges as a result of the political system; women have relatively more freedom of movement and can go undetected for longer; and traffickers disguised as brokers are more willing to assist the travel of a woman with the intention of selling her in China.

The Commission estimates that a large percentage of women and girls who cross the border from the DPRK to China unaccompanied become victims of trafficking in persons, mainly for purposes of exploitation in forced marriage, forced concubinage and to a lesser extent forced prostitution under conditions of control by others. Women and girls are lured to China by brokers operating within the DPRK with the intention of selling her to a Chinese household, or into prostitution once in China, with or without the woman’s knowledge and/or consent. Traffickers also approach vulnerable and desperate women and girls inside the DPRK promising to take them to another province in the DPRK where paid agricultural work is possible but instead take the women to China. Trafficking networks operate to pick up women that have crossed into China without the assistance of a broker, and those that may have escaped from traffickers, or husbands to whom they were sold too.

Inside China, victims of trafficking are at high risk of sexual and domestic violence; do not have access to basic services such as health and education; nor the protection of the state increasing their vulnerability. Fearing capture and forcible repatriation to the DPRK further increases their vulnerability and causes children they bear to become effectively stateless as registration of their birth would alert authorities to the illegal status of the mother.

Sexual violence against the forcibly repatriated[6]

In an attempt to deter citizens from fleeing the country, the DPRK authorities subject those who were forcibly repatriated from China or were caught in the process of trying to reach China to torture, inhumane treatment and imprisonment. Among other things, the forcibly repatriated are subjected to:

  • Forced repeated squatting whilst naked (also known as ‘pumping’) as a means to dislodge items that may be concealed in vaginal and anal cavities, and cause pain to persons concealing items in such a manner.
  • Vaginal cavity searches in an unsanitary and degrading manner. These searches are conducted for the primary purpose of stealing items from detainees.
  • Other forms of sexual violence such as forced nudity and sexual assaults.
  • Humiliating treatment such as being asked derogatory and sexual questions and refused sanitary napkins.

The Commission finds that such acts against persons attempting to flee the country amount to crimes against humanity.[7]

Forced abortions and infanticide against repatriated mothers and their children[8]

The Commission finds that there is a widespread prevalence of forced abortion and infanticide against repatriated mothers and their children, constituting crimes against humanity.[9] Forced abortions and infanticide are conducted to prevent the birth of ethnically mixed Korean children, seen as a contamination of the “pure Korean race”. They are also intended as an additional punishment for women who have left the DPRK and became pregnant in China, and are conducted in a number of brutal (and unsterile) ways without anaesthetic.

Sexual and Gender-based violence in the prison system[10]

Inmates of political prisons are generally not permitted to form relations; on rare occasions “marriages” are arranged between model prisoners, the prisoners have no say in the choice of partner. Women who are not in authorised relationships and become pregnant are subjected to forced abortion and additional punishment including torture or execution. Rape and other forms of sexual violence is commonly perpetrated against women and girls in the political prison camps, particularly teenage girls and young women, by guards taking advantage of the coercive environment and climate of impunity within the camps. The Commission finds that such acts amount to crimes against humanity.[11]

Rape and forced abortions are also common within the ordinary prison system. Largely due to the fact that the majority of those that flee to China and are subsequently repatriated are women, there is an increasing number of women in the ordinary prison system. While sexual contact between guards and prisoners is not condoned by the prison authorities, the power differential between guards and inmates makes it easy for guards to abuse and rape prisoners with impunity. The instances of rape include cases where guards demand sex in exchange for food or other essential goods that prisoners require to survive the ordinary prison camp, thus taking advantage of the coercive circumstances of the prison environment. The Commission finds that such acts amount to crimes against humanity.[12]

The abduction of women from other countries[13]

 From the late 1970s, the DPRK abducted several women from other countries to be sexual partners for foreigners within the country and some of the leaders. In an effort prevent the birth of ethnically mixed Korean children, women were “given” to American army deserters as wives. The Commission finds that DPRK authorities have committed and are committing crimes against humanity against the victims of international abduction.[14]

 Slides from presentation may be seen here.

[1]A/HRC/RES/22/13.

[2]http://www.ohchr.org/EN/HRBodies/HRC/CoIDPRK/Pages/ReportoftheCommissionofInquiryDPRK.aspx

[3] Section IV.B.2 Discrimination against women [300-320], from page 85; Section IV.B.5 The impact of discrimination on economic, social and cultural rights [330-345] from page 93.

[4] Section IV.D. 1(f)(ii) impact of violations of the right to food on women [554- 560] from page 167.

[5] Section IV.C. 2(d)(i) trafficking in women and girls [455-471] from page 132. Forcible repatriation to the DPRK further increases their vulnerability and causes children they bear to become effectively stateless as registration of their birth would alert authorities to the illegal status of the mother.

[6] Section IV.C. 2(d)(ii) Sexual violence and other humiliating acts against women, in particular invasive searches [415 – 422] from page 117: (ii) Situation of children born to mothers who flee or are trafficked from the DPRK [472 – 477] from page 139.

[7] Section V.E. 1(c) Rape and other forms of sexual violence [1106-1107] from page 336.

[8] Section IV.C. 2(e) Forced abortion and infanticide against repatriated women and their children [424 – 434] from page 122.

[9] Section V.E. 1(c) Rape and other forms of sexual violence [1105] 336.

[10] Section IV.E. 3(d) Sexual violence in the political prison camps [763 – 766] from page 237; 4(a)(v) rape and forced abortions in the ordinary prison system [809 -813] from page 255.

[11]Section V.B. 1(g) Rape and other forms of sexual violence [1054-1056] from page 327.

[12]Section V.C. 1(c) Torture, rape and other grave sexual violence [1076-1077] from page 331.

[13] Section IV.F. 1(g) [963- 975] from page 304.

[14] Section IV.D Crimes against humanity targeting persons from other countries, in particular through international abduction, [1138-1153] from page 345.

AP R2P Statement to UN General Assembly

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Remarks to the United Nations General Assembly

Informal and Interactive Dialogue on International Assistance and the Responsibility to Protect

New York 8 September 2014

Thank you, Mr. Moderator.

Thank you for organizing this informal and interactive dialogue on International Assistance and the Responsibility to Protect.

Thanks too to the eminent panelists for illuminating the steps that should be taken to make the Responsibility to Protect a “lived reality”. In particular, the Asia Pacific Centre for R2P welcomes and endorses Dr. Surin Pitsuwan’s comments and congratulates him on the leadership he is providing as Chair of the High Level Advisory Panel on R2P in Southeast Asia. Efforts like this are indispensable as we work to deliver on the commitment to R2P that was made in 2005.

Our mission is to support the advancement of R2P in the Asia Pacific region. We support the mandate of the Special Adviser on the Responsibility to Protect and we congratulate the Secretary-General and Dr. Welsh on this important and timely report.

The primary responsibility to protect rests with the state. As such, the international community’s primary responsibility must be to provide encouragement and assistance. Our ultimate goal is to help one another reinforce the habits of protection and to build the necessary capacities.

Mr. Moderator, let us be frank about the magnitude of the challenges we confront. We are daily confronted by agonizing acts of barbarity committed by groups that reject the basic principles of humanity and decency advanced by this Assembly.

When this Assembly committed itself to the Responsibility to Protect nearly a decade ago, it promised that the entire membership of the UN would stand together to protect populations from the worst of crimes known to humanity. International assistance, the topic of today’s dialogue, is one of the principal ways in which we can do that.

Mr. President, I would like to highlight five points about international assistance.

First, we should make a virtue of asking for assistance by celebrating and commending those states that do. Responsible sovereigns do not try to soldier on by themselves against the odds. They ask for help. We should encourage states to ask for help and congratulate and embrace those that do. In so doing we should establish amongst us a spirit of cooperation that facilitates mutual support.

Second, it is important to think strategically about international assistance and to set aside the necessary resources. When Member States ask for international assistance, it is imperative that the international community as a whole responds in a timely fashion by providing what is needed. Be it military assistance to the government of Iraq, surveillance assistance to root out terrorists in Nigeria or technical assistance to support the rule of law in Nepal, R2P commits us all to doing what we can. Only by backing our words with deeds will we achieve our common goal.

Third, international assistance should pay particular attention to the protection of women and girls and to the urgent need to empower women as agents of protection. We need to ensure that more practical support is given to women human rights defenders. In many parts of the world, these women are the first line of protection for marginalized and minority groups.

As called for by UN Security Council Resolution 1325, international assistance should contribute to the goal of ensuring that women are empowered and represented in peacemaking activities and in relevant political, judicial and security sectors. Our deliberations on Pillar II of R2P provide an opportunity to redouble our efforts to empower women as agents of protection.

We should not forget that widespread and systematic sexual violence can constitute acts of genocide, war crimes and crimes against humanity. Assistance aimed at preventing these crimes is rightfully part of our discussion today. International assistance is a crucial part of that equation.

Fourth, we underscore the need to deny perpetrators the capacity to commit these crimes. Controlling small arms and light weapons is a crucial part of that equation. Therefore, we welcome the Arms Trade Treaty and call on states to ratify and implement it. States should also redouble their efforts to control the flow of small arms.

Finally, it is time to mainstream the responsibility to protect throughout the UN system so that atrocity prevention becomes part of the daily-lived reality of the organization and its partners. The Secretary-General called for the mainstreaming of R2P in his first report on the topic and we are delighted that Mr. Dieng and Dr. Welsh have committed themselves to advancing this objective. The prevention of genocide and other atrocity crimes must become part of what we do every day. The Secretary-General’s report is a significant contribution and provides a pathway for incorporating an atrocity prevention mindset into the work of the UN system as a whole.

Mr. Moderator, the challenge now is to translate the commitment this Assembly made in 2005 into a lived reality. That demands of us a renewed determination to take the practical steps necessary to protect people in need. That is the challenge that lies before the General Assembly. We are confident that it is a challenge that you will meet, with the help of the UN, regional bodies and organizations like ours.

Thank you.

Alex Bellamy, Executive Director

Asia Pacific Centre for the Responsibility to Protect

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