국제법상 “보호책임”의 개념성립과 적용 사례

Abstract

This paper have mainly three points: developments process of conception of the responsibility to protect (R2P), debates of conception of R2P in UN and international legal issues in application practice(Ex: Libya case)of R2P regarding military intervention and international humanitarian intervention. The responsibility to protect (R2P) is a norm or set of principles based on the idea that sovereignty is not a privilege, but a responsibility. R2P focuses on preventing and halting four crimes: genocide, war crimes, crimes against humanity, and ethnic cleaning. R2P is a norm, not a law in International society. R2P provides a framework for using tools that already exist (such as mediation, early warning mechanism, economic sanctions and chapter VI powers of UN) to prevent mass atrocities. Civil society organizations, States, region organizations, international institutions all have a role to play in the operationalization of R2P. The authority to employ the last resort and intervene militarily rests solely with United Nations Security Council and the General Assembly. Following the genocide in Rwanda and the international community’s failure to intervene, former UN Secretary General Kofi Annan in his Millennium Report asked the question, when does the international community intervene for the sake of protect civilians?The Canadian government established the International Commission on Intervention and State Sovereignty (ICISS) to September 2000. In December 2001, ICSS released its report. “Responsibility to Protect. Building on the idea that sovereignty is a responsibility, the report outlined that the international community has the responsibility to prevent mass atrocities with economic, political, and social measures, to react to current crises by diplomatic engagement, more coercive, military intervention as a last resort, and to rebuild by bringing security and justice to the victim population and by finding the root cause of the mass atrocities. The African Union pioneered the concept that the international community has a responsibility to intervene in crisis situations if the State failing to protect populations. In the founding charter of the AU in 2005, Africans nations declared that “the protection of human and people’s rights” would be a principle objective of the AU and that AU had right “to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.”On March 19, 2011, the United Nations Security Council (UNSC) approved resolution 1973 which reiterated the responsibility of the Libyan authorities to protect the Libyan population. UNSC Resolution 1973 on Libya case was the first application of R2P. The UNSC resolution reaffirmed “that parties to armed conflicts bear the primary responsibility to take all feasible steps to ensure the protection of civilians....” It demanded “an immediate cease-fire in Libya, including an end to the current attacks against civilians, which it said might constitute ‘crimes against humanity’.... It imposed a ban on all flights in the country’s airspace, a no-fly zone,and tightened sanctions on the Gadaffi regime and its supporters.” The subsequent military action by NATO resulted in mixed opinions. Detractors of the intervention believe that problems in Libya are best resolved amongst Libyans. The Libyan case exposes international legal issues and a fundamental moral dilemma. However, there are many criticisms in practice of R2P from prospective of international law as follows:- R2P and national sovereignty - R2P Scope too narrow - Use of Military Intervention - R2P may promote Humanitarian Intervention - Selectivity in the Security Council of UN Furthermore, R2P has yet three conceptual institutional and political challenges.