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INTRODUCTION
Changes in regimes are frequent and they occur for various reasons. States might have
economic and political interest in such changes, and hence, might have interest in influencing
them. In order to prevent any such unjustified interference, Article 2(4) of the UN Charter
imposes an obligation upon the States of non-interference in internal affairs of another State.
However, over the passage of time, this provision has been diluted for various reasons such
This paper will discuss regime can be changed, which is one of the most extreme forms of
interference under the ‘Responsibility to Protect’ (‘R2P’) doctrine and for the purposes of
The paper is divided into three main parts. Part I will discuss the transition from traditional
security to human security. Part II will discuss regime change as a means to protect civilians
under the R2P doctrine. It will also analyze the recent interventions in Libya and Cote
d’Ivoire. Part III will discuss how the regime can be changed in order restore democracy. It
With the advent of “Human Security”, the International community has moved away from
“Traditional Security”. The latter focused on “security of territory from external aggression
or as protection of national interests in foreign policy or as global security from the threat of
nuclear holocaust. It [is] related to nation-states more than people”. However, with the shift
to “Human Security”, our focus has been to protect the human lives and enhance freedom.
The Commission on Human Security (‘CHS’), has described Human Security, in its final
report ‘Human Security Now’, “to mean protecting people from critical (severe) and
1
pervasive (widespread) threats and situations”.1 Human Security has four elements – people-
‘protection’ as “strategies, set up by states, international agencies, NGOs and the private
sector, [to] shield people from menaces”. It refers to ‘top down’ approach which
acknowledges that people are affected various events, such as natural disasters and conflicts,
which are beyond their control. Human Security mandates protection in a “systematic,
capabilities of the people and allow them to explore ways to guarantee human security for
themselves.
Such a change from traditional security to human security has a strong bearing on how the
law develops and the same will be seen from Part II and Part III.
Responsibility to Protect (‘R2P’) has gathered steam over the years. R2P has given a different
meaning to sovereignty. A sovereign State exercises exclusive control and jurisdiction over
its territory. R2P has reformed the meaning of sovereignty from control to responsibility.3
This implies that every State has an inherent responsibility to protect its citizens.4 However,
1
UNDP, Human Development Report, 3 and 22-23 cited in P.H. Liotta and Taylor Owen, Why Human
Security?, The Whitehead Journal of Diplomacy and International Relations.
http://www.taylorowen.com/Articles/Owen%20and%20Liotta%20-%20Why%20Human%20Security.pdf
2
United Nations Trust Fund for Human Security ‘Human Security in Theory and Practice: An Overview of the
Human Security Concept and the United Nations Trust Fund for Human Security’.
3
International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa:
International Development Research Centre, 2001), p. 13.
4
Id, p. 14.
2
if the States fails or is unwilling to protect the civilians, it is the responsibility of the
This doctrine imputes the ‘Responsibility to React’ upon the International community. This
can include even extreme coercive measures including military action.5 The international
community must be guided by six principles – right authority, just cause, right intention, last
resort, proportional means and reasonable prospects. If one analyzes implementation of R2P
in Libya and Côte d’Ivoire, the main question which arises is whether the States can be
allowed to change the regime themselves or even help the opposition/rebels to overthrow the
government.
The ICISS states that regime change cannot be a legitimate objective under R2P doctrine, but
the States are allowed to “regime’s capacity to harm its own people may be essential to
discharging the mandate of protection – and what is necessary to achieve that disabling will
vary from case to case.”6 In other words, although regime change cannot be an end, but it
can be means to protect the civilians.7 The ICISS report adds that R2P cannot be used to alter
a. Intervention in Libya
The crisis in Libya started from the point when several protestors starting demonstrating in
January 2011. The Gaddafi regime responded violently by using tanks, machine guns, and
snipers against protesters. The violent reaction of the Gaddafi regime was met with criticism
from various International and regional organization like UN High Commissioner for Human
Rights, Council of Europe, Council of League of Arab States, General Secretariat of the
Organization of the Islamic Conference, and African Commission on Human and Peoples’
Rights. UNSC passed Resolution 1970 condemning the violent attacks on peaceful protestors
5
Id, p. 29.
6
Id, p. 35.
7
Sarah Brockmeier et al., The Impact of the Libya Intervention Debates on Norms of Protection
8
P. 35 of the ICISS Report.
3
and imposed sanctions. Shortly after, Qadhafi had declared that “officers have been deployed
in all tribes and regions so that they can purify all decisions from these cockroaches” and
“any Libyan who takes arms against Libya will be executed”. UNSC, in its Resolution
1973(2011), allowed the States to ‘use all necessary means’. It was the first time that force
was used under the Responsibility to Protect (R2P). Even after military intervention
prevented the attack on Benghazi, force was still continued to be used by NATO. After fall of
Tripoli, NATO forces still continued supporting National Transitional Council (NTC) until
The NATO argued that Gaddafi’s government has lost legitimacy. This statement was also
supported by many countries, such as Germany, which had earlier refused to offer support for
use of force in Libya. European Union issued a statement supporting the same and asked
Gaddafi to relinquish power.9 Regime change was seen as the only way to protect the
civilians. Edward C. Luck (Special Advisor to the United Secretary General) said that “The
goal is to protect populations. It may be in some cases that the only way to protect
populations is to change the regime, but that certainly is not the goal of the R2P per se”.10
Former US President Barack Obama, in one of his statements also said that “it is impossible
to imagine a future for Libya with Qaddafi in power”11 After days of attacks, Gaddafi was
captured and killed on 20th October 2011 during the battle of Sirte and the government led by
In Côte d’Ivoire, the population was divided between support for Laurent Gbagbo and
Alassane Ouattara along ethnic, religious and regional grounds. In the first round of elections,
9
European Council, “Declaration: Extraordinary European Council, EU doc. EUCO 7/1/11 Rev”, 11 March
(Brussels: European Council), para. 7.
10
Bernard Gwertzman, “Will Syria Follow Libya? Interview with Edward C. Luck, Special Advisor to the UN
Secretary-General”, Council on Foreign Relations, 1 September 2011,
11
Barack Obama, David Cameron and Nicolas Sarkozy, “Libya’s Pathway to Peace”, The International Herald
Tribune, 15 April 2011.
4
despite few reported instances of voter intimidation, they were largely peaceful. As no one
emerged as a winner, another round of elections was held in November 2010. In the second
round of elections, Alassane Ouattara was declared the president of Côte d’Ivoire. However,
Constitutional Council invalidated the elections results. The political crises in Côte d’Ivoire
continued as both the factions claimed to have formed the government. UN reported that over
1,000 civilians had died and 500,000 had been displaced. United Nations Operation in Côte
d'Ivoire (UNOCI) reported that Gbagbo forces had used heavy machine guns and mortars
against UN personnel. Human Rights Watch (‘HRW’) and International Committee of the
Red Cross (‘ICRC’) reported that Gbagbo had committed crimes against humanity.12
UNSC, in its Resolution 1528, determined the “situation in Côte d’Ivoire continues to pose a
threat to international peace and security in the region” and authorized the “UNOCI to use
all necessary means to carry out its mandate, within its capabilities and its areas of
UNOCI to use all necessary means within its mandate to protect civilians under threat. It
further reaffirmed the primary responsibility of all States to protect civilians and stated that
the civilian-aimed attacks amounted to crimes against humanity.15 In April 2011, Gbagbo
was arrested after an attack on his house in Abidjan and the government led by him fell.
The intervention in both the countries, Libya and Côte d’Ivoire attracted criticism. China
insisted that the States “must observe the principles of objectivity and neutrality and fully
respect the independence, sovereignty, unity and territorial integrity of the country
12
Côte d’Ivoire: Crimes Against Humanity by Gbagbo Forces 15 th March 2011
https://www.hrw.org/news/2011/03/15/cote-divoire-crimes-against-humanity-gbagbo-forces; Côte d’Ivoire:
Ouattara Forces Kill, Rape Civilians During Offensive 9 th April 2011
https://www.hrw.org/news/2011/04/09/cote-divoire-ouattara-forces-kill-rape-civilians-during-offensive; Who is
responsible for the Duékoué killings? (5th April 2011) http://www.irinnews.org/feature/2011/04/05/who-
responsible-du%C3%A9kou%C3%A9-killings
13
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10893&LangID=E
14
UNSC Resolution 1529 http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1528(2004)
15
UNSC Resolution 1975 http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1975(2011)
5
concerned. There must be no attempt at regime change or involvement in civil war by any
party under the guise of protecting civilians.”16 Brazilian delegate agreed with China’s stance
and said “We must avoid excessively broad interpretations of the protection of civilians,
which could link it to the exacerbation of conflict, compromise the impartiality of the United
Nations or create the perception that it is being used as a smokescreen for intervention or
regime change.”17 Similarly, South African delegated stated international actors must
“respect the will, sovereignty and territorial integrity of the country concerned, and refrain
from advancing political agendas that go beyond the protection of civilian mandates,
However, such objections are unfounded and the State practice as seen in both the cases must
be the correct position of law. These practices show that in a situation where there is a
significant and imminent chance of the oppressive regime to continue committing atrocities
on the population, regime change must be taken as a means to achieve the end of protecting
civilians.
If repressive regimes of Gadaffi and Gbagbo were not removed from power, the “R2P
situation” or “R2P concern” would have continued. As per Gareth Evans, “R2P situation” has
been defined –
occur, or where the situation could deteriorate to this extent in the medium or longer
term unless appropriate preventive measures are taken. They are situations, actual or
16
S/PV.6531, 10 May 2011 cited in Alex J. Bellamy “The Responsibility to Protect and the Problem of Regime
Change” http://www.e-ir.info/2011/09/27/the-responsibility-to-protect-and-the-problem-of-regime-change/
17
Id.
18
Id.
6
community simply because of the particularly conscience-shocking character of the
In both the cases, considering past conduct of the two regimes, there was a reasonable belief
that the crimes committed by the regimes would continue, until their opposition was not
finished and the “R2P scenario” have prevailed. Therefore, regime change in both the case
was justified.
Regime change has also seen in cases where the UNSC wanted to restore democracy.
Legality of intervention for such purposes is difficult to reconcile with Article 2(4) of the UN
Charter as they are intrinsically linked with internal affairs of a State. Such interventions are
different from traditional humanitarian interventions as the latter requires imminent or grave
injury20, which might not be the case in the former. Pro-democratic government interventions
State practice before the Cold War Era does not favor the legality of pro-democratic
interventions.22
USA was highly criticized for its pro-democracy interventions in Dominic Republic, Grenada
and Panama. In 1963, the democratic government in Dominic Republic was overthrown by
junta, which was also uprooted from power in a military coup. The American delegate
justified the intervention by saying that “Our interest lies in the re-establishment of
constitutional government and, to that end, to assist in maintaining the stability essential to
19
Gareth Evans-The Responsibility to Protect Ending Mass Atrocity Crimes Once and for All-Brookings
Institution Press (2008), p. 72.
20
See Malvina Halberstam, The Legality of Humanitarian Intervention, 3 CARDOZO J. INT'L & COMP. L. 1,
7-8 (1995)
21
Lori Fisler Damrosch, Changing Conceptions of Intervention in International Law, in EMERGING NORMS
OF JUSTIFIED INTERVENTION 91, 97 (Laura W. Reed & Carl Kaysen eds., 1993)
22
Nowrot, Karste and Emily W. Schabacker. "The Use of Force to Restore Democracy: International Legal
Implications of the ECOWAS.
7
the expression of the free choice of the Dominican people.”23 This stance was heavily
criticized by various States as it interfered with the internal affairs of the State.24
Similarly, in the pro-democracy military intervention by USA, Jamaica and Barbados and
Organization of East Caribbean States (OECS) in Grenada, where Maurice Bishop ousted Sir
Eric Gairy led democratically elected government. After increasing disagreement among the
ruling party, Maurice Bishop’s government was toppled in a military coup in 1983. The
intervening States justified their intervention for re-establishing the constitutional order in the
Further, in 1989 American intervention (Operation Just Cause) in Panama, the USA invaded
Panama to arrest General Noriega, who had rejected the election of Guillermo Endara.
President Bush claimed that the intervention was done in furtherance of restoring
democracy27, which had become “universal value of our time”.28 UNGA29 and Organization
Era, we can notice a tilt in favor of democracy in terms of change in the interpretation of
23
Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 56
BRIT. Y.B. INT'L L. 189, 227 (1985) cited in Nowrot, Karste and Emily W. Schabacker. "The Use of Force to
Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone." American
University International Law Review 14, no. 2 (1998): 312-412.
24
Id.
25
Robert Beck, “Grenada”, Max Planck Encyclopedia of Public International Law
26
G.A. Res. 38/7, U.N. GAOR, 38th Sess., Supp. No. 47, at 19, U.N. Doc. A/38/47 (1983) cited in Robert Beck,
“Grenada”, Max Planck Encyclopedia of Public International Law. Oxford University Press
27
Address to the Nation Announcing United States Military Action in Panama, 25 WEEKLY COMP. PRES.
DOC. 1974-75 (Dec. 20, 1989) cited in
28
David Wippman, “Defending Democracy Through Foreign Intervention”, http://www.hjil.org/articles/hjil-19-
3-wippman.pdf
29
G.A. Res. 240, U.N. GAOR, 44th Sess., at 1, U.N. Doc. A/RES/44/240 (1989).
30
CP/RES. 534, OAS Permanent Council, OEA/ser. G /P/RES.534 (800/89) corr. 1 (1989).
8
violent overthrow of democracy and unconstitutional establishment of government and
The meaning of sovereignty has move from protection of a fictional State to protection of
people’s sovereignty.31 This can be seen from several international documents and State
practice. Article 21(3) of the Universal Declaration of Human Rights (‘UDHR’), which forms
a part of Customary International Law, states that “the will of the people shall be the basis of
where will of the people has been sidelined.33 Paragraph (a) of Article 25 guarantees the right
to "take part in the conduct of public affairs directly or through freely chosen
representatives."
the Organization of American States (OAS) provides in Article 21 that in case efforts have
failed to reverse the ‘unconstitutional interruption in the democratic order’ of a State Party,
the OAS General Assembly will suspend the membership of that particular State. Similarly,
other regional organizations such as African Union, European Union, MERCOSUR and
OSCE have provided for mechanism and procedure to be adopted in a case where a
31
Reisman, W. Michael, "Sovereignty and Human Rights in Contemporary International Law" (1990). Faculty
Scholarship Series. Paper 872.
32
Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc. A/810, at 71 (1948).
33
The Situation in Southern Rhodesia: Resolutions Adopted by the General Assembly and the Security Council
of the United Nations, reprinted in 60 AJIL 921 (1966) cited in Reisman, W. Michael, "Sovereignty and Human
Rights in Contemporary International Law" (1990). Faculty Scholarship Series. Paper 872.
34
See Article 23 of African Charter on Democracy, Elections and Governance; Article 4, Constitutive Act of the
African Union.
9
States against threats to democracy.35 It propounded preventive actions aiming to help states
build capacity to respond to threats, responsive actions and coordinated response to coup
leaders, actions for restoring democracy, and actions to secure individual responsibility for
governments as legitimate.37 Other methods of coming into power have been condemned. 38
Examples of such condemnation can be found in the case of Burundi 39, Sierra Leone40,
Chad41 and Côte d’Ivoire42.43 Prominent international law scholars tell us that representative
a. Intervention in Haiti
In September 1991, Jean-Bertrand Aristide led government was overthrown by military junta
under the leadership of Lt. Gen. Raoul Cedras. The UNGA45 and OAS condemned the coup
and called for reinstallation of the democracy. The OAS Ministers of Foreign Affairs, in its
resolution on 3rd October 1991, reiterated the demand and called for diplomatic, economic
and financial isolation and suspension of all financial aids to the country. UNSC and OAS
35
Report of an Independent Task Force, ‘Threats to Democracy: Prevention and Response’
http://www.cfr.org/content/publications/attachments/Democracy_TF.pdf
36
Id.
37
Cécile Vandewoude, The Democratic Entitlement and Pro-Democratic Interventions: Twenty Years After
Haiti? Anuario Mexicano de Derecho Internacional, vol. XII, 2012, pp. 779-798
http://www.scielo.org.mx/pdf/amdi/v12/v12a21.pdf
38
Id.
39
S.C. Res. 1072, U.N. SCOR, mtg. 3695, U.N. Doc. S/RES/1072 (Aug. 30, 1996), at 2; S.C. Res. 1719, U.N.
SCOR, mtg. 5554, U.N. Doc. S/RES/1719 (Oct. 25, 2006), at 1.
40
S.C. Res. 1132, U.N. SCOR, mtg. 3822, U.N. Doc. S/RES/1132 (Oct. 8, 1997), at 2
41
S.C. Res. 1778, U.N. SCOR, mtg. 5748, U.N. Doc. S/RES/1778 (Sept. 25, 2007), at 1; S.C. Res. 1834, U.N.
SCOR, mtg. 5981, U.N. Doc. S/RES/1834 (Sept. 24, 2008), at 1; S.C. Res. 1861, U.N. SCOR, mtg. 6064, U.N.
Doc. S/RES/1861 (Jan. 14, 2009), at 1.
42
S.C. Res. 1962, U.N. SCOR, mtg. 5458, U.N. Doc. S/RES/1962 (Dec. 20, 2010), at 1.
43
Cécile Vandewoude, The Democratic Entitlement and Pro-Democratic Interventions: Twenty Years After
Haiti? Anuario Mexicano de Derecho Internacional, vol. XII, 2012, pp. 779-798
http://www.scielo.org.mx/pdf/amdi/v12/v12a21.pdf
44
See Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AM. J. INVL L. 46 (1992)
45
UNGA Res 46/7
46
U.N. SCOR, 49th Sess., 3413th mtg. at 1, U.N. Doc. S/RES/940 (1994).
10
UNSC Resolution 841 was passed referring to the situation in Haiti as “exceptional” in nature
and imposed oil and arms embargo and asset freeze. After New York Pact and Governors
Island Agreement were reached, UNSC passed UNSC Resolution 861 to suspend the sanction
imposed and called for immediate enforcement of the agreement. However, when the Cedras-
led Government refused to comply with the Governors Agreement, UNSC passed Resolution
leadership.47 However, Mexico, Uruguay and Cuba, voted against use of force as internal
political situation in Haiti did not translate into an external threat constituting threat to
‘international peace and security’. The resolution was operationalized by Operation ‘Uphold
Unity condemned the coup and called for “the immediate restoration of constitutional order”,
and called upon other States “to refrain from recognizing the new regime and lending support
in any form whatsoever to the perpetrators of the coup d'etat” and assured assistance to “the
people of Sierra Leone to restore constitutional order to the country”.48 The UNSC too
condemned the coup and asked for “unconditional restoration of …government”.49 When the
military junta refused to step down and decided to stick to its ground, the UNSC, acting
under Chapter VII of the UN Charter, passed Resolution 1132 imposed an embargo on
diamonds and petroleum. Also, under Chapter VIII of the UN Charter, the UNSC authorized
47
UNSC RES/940 (1994)
48
COUNCIL OF MINISTERS, Sixty Sixth Ordinary Session 28-31 May 1997 CM/Dec.330-363
(LXVI)https://www.au.int/web/sites/default/files/decisions/9622-
council_en_28_31_may_1997_council_ministers_sixty_sixth_ordinary_session.pdf
49
UNSC ‘Statement by the President of the Security Council’ [6 August 1997] UN Doc S/PRST/1997/42
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PRST/1997/42; UNSC Resolution 1132
https://documents-dds-ny.un.org/doc/UNDOC/GEN/N97/267/13/PDF/N9726713.pdf?OpenElement
11
ECOWAS to initiate steps relating to the measures taken. When ECOWAS was successful in
removing the military junta from power, the President of UNSC, welcomed “the fact that the
rule of the military junta [had] been brought to an end”, and stressed “the imperative need
for the immediate restoration of the democratically elected Government of President Tejan
resolution 1132”.50
From the above-mentioned State practice, we can notice that there has been a shift from the
restore democracy to an acceptance of such interventions. However, I still believe that mere
overthrow of democracy would not legitimize an intervention. In the both the case of Sierra
Leone and Haiti, the UNSC had also recognized the inflow of refugees in the neighboring
countries and other accompanying factors as ‘threat to international peace and security’. This
shows that any significant internal dispute coupled with transboundary effect would permit
the States to intervene. As it was also held by the Permanent Court of International Justice
(‘PCIJ’) in Tunis and Morocco Case that “the question of whether a certain matter is or is not
solely within the jurisdiction of a state is an essentially relative question; it depends on the
international relations, we can infer that the prohibition of intervention in internal affairs of
another State as mentioned in Article 2(4) of the UN Charter has been diluted and the ambit
of what may constitute ‘threat to international peace and security’ has been expanded.
CONCLUSION
50
STATEMENT BY THE PRESIDENT OF THE SECURITY COUNCIL
3857th meeting of the Security Council, 26 February 1998
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PRST/1998/5
51
Nationality decrees issued in Tunis and Morocco Case, PCIJ, ser. B, no 4, 1923, p 143
12
From the above undertaken analysis of four case studies – Libya, Côte d’Ivoire, Haiti and
Sierra Leone – one can notice that the non-intervention principle has been significantly
diluted to an extent where the international community has been allowed to change or atleast
help the opposition/rebels to topple the government. This change is in the favor of the Human
Security as, it feeds to the principle of ‘protection’, i.e., shielding innocent civilians from
harm, which cannot be controlled by them. In Libya and Côte de’Ivoire, where Libyans and
Ivorians were under a constant threat from their respective government, the international
community stepped in and shielding such people. This leads to the second limb of Human
Security, i.e., ‘empowerment’. By changing the regime or helping the people to change the
regime, the people are empowered by enabling them to choose their own government and
13