DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

Table of contents

A. The constitutional and legal framework (§ 2)

B. The available domestic remedies (§ 3)

C. Preliminary conclusion: deviating from Cyprus v. Turkey (§§ 4 ‑ 5)

A. Victim status with regard to the applicant’s house and plot of land (§§ 6-7)

B. Victim status with regard to the family graves (§ 8)

C. Preliminary conclusion: the limits of the Pinheiro Principles (§ 9)

A. The time frame of the Court’s assessment (§§ 10-11)

B. The assessment of evidence (§§ 12-15)

C. Preliminary conclusion: Assanidze distorted (§§ 16-18)

A. The majority’s position: exceeding Oruk (§§ 19-20)

B. Responsibility to protec t in international law (§§ 21-35 )

C. Preliminary conclusion: is the Doğan and Others standard really expanded? (§§ 36-40)

I. Introduction ( § 1)

1. Sargsyan is the “twin brother” of Chiragov and Others v. Armenia [GC], no. 13216/05, ECHR 2015 . The procedural reasons for my dissent in the latter case are also valid, in a large measure, in the present case, simply because the flaws in both judgments are similar. As in Chiragov and Others , the present case raises an issue of compatibility of international humanitarian law with the European Convention on Human Rights ( “ the Convention ” ), which the majority avoid. Here again, the majority do not face the thorny questions of the case, both in terms of the evidence presented and the legal questions of the jurisdiction of the respondent State over the ceasefire line and the adjacent area and its “responsibility to protect” civilians within its territory [25] . Having acknowledged that Gulistan is a life-threatening, no-go zone and that the respondent State ’ s refusal of access to civilians to their alleged homes, property and family graves in the extremely sensitive military area of Gulistan is “justified”, the majority nonetheless suggest vague “alternative measures”, derived from the Madrid political proposal [26] , without providing specifics. By treating the cases of Chiragov and Others and Sargsyan as a putative inter-State case, and suggesting to the respondent States similar “alternative measures”, the European Court of Human Rights ( “ the Court ” ) wants to send a message to the conflicting parties. In general, the pages of the judgment exude discontent, amounting to disapproval of the negotiation procedure. Left unstated, but implicit in the majority ’ s reasoning, is that the Court will no longer wait for politicians to come to terms with the Nagorno ‑ Karabakh conflict and its human consequences. If need be, the Court is willing to replace diplomacy, in view of the fact, censured by the majority, that the peace negotiations “have not yet yielded any tangible results” (see paragraph 236 of the present judgment ).

II. Non -exhaustion of domestic remedies ( §§ 2-5)

A. The constitutional and legal framework ( § 2)

2. The majority reject the objection of non-exhaustion of domestic remedies on the basis of two arguments: it was not explained how the available constitutional and legal framework would apply in the specific case of the applicant and insufficient data was provided by the Government on the nature and outcome of the civil proceedings brought by ethnic Armenians in Azerbaijani courts. These arguments are not valid. The majority failed to consider that there were no constitutional or legal provisions in the respondent State prohibiting ownership of property by ethnic Armenians or their return to Azerbaijan or depriving them of their property as a result of the Nagorno-Karabakh conflict. Furthermore, the majority denied en bloc the applicability of norms of the Constitution, the Civil Code and the Land Code to the applicant ’ s claims, implying without any further explanation that the assessment of the facts of the case could not be based on these norms and thus assuming what had to be demonstrated. The logical fallacy incurred is patent. Circulus in demonstrando !

In so doing, the majority imposed their own assessment of domestic law, as if they were sitting as a first-instance court, without giving the domestic courts the opportunity to express their own views on the application of domestic law to a novel legal issue, with possible major systemic legal consequences in view of the estimated number of displaced persons [27] .

B. The available domestic remedies ( § 3)

3. Moreover, there is a judicial system functioning in Azerbaijan with abundant case-law regarding civil cases brought by ethnic Armenians in Azerbaijani courts in housing cases. It is highly regrettable that the majority evaded the crucial question raised by the applicant concerning the alleged existence of an “administrative practice” on the part of the Azerbaijani authorities which would prevent the applicant from making use of existing remedies. In other words, the core of the objection was not dealt with. In any case, given the applicant ’ s ability to instruct a lawyer in the United Kingdom, he could not claim that the judicial system in Azerbaijan was inaccessible to him owing to the lack of a postal service or diplomatic relations between Azerbaijan and Armenia [28] .

C. Preliminary conclusion: deviating from Cyprus v. Turkey ( §§ 4-5)

4. A comparison of the present case with Cyprus v. Turkey ([GC], no. 25781/94, ECHR 2001 ‑ IV) is revealing. In the inter-State case between Cyprus and Turkey, the Turkish Government presented a list of cases brought by Greek Cypriots in Turkish - Cypriot courts, which included cases relating to trespass by other persons and unlawful cultivation of land belonging to Greek - Cypriot plaintiffs in the Karpas area and where the claims of the plaintiffs were accepted by the competent courts of the “Turkish Republic of Northern Cyprus” ( the “TRNC”). The Cypriot Government argued that any remedies which might exist in Turkey or in the “TRNC” were not practical or effective for Greek Cypriots living in the government-controlled area and that they were ineffective for enclaved Greek Cypriots , having regard to the particular nature of the complaints and the legal and administrative framework set up in the north of Cyprus. As regards the case-law of “TRNC” courts referred to by the Turkish Government, the Cypriot Government claimed that it related to situations that were different from those complained of in the application, namely to disputes between private parties and not to challenges to legislation and administrative action. The fate that befell the Cypriot Government ’ s arguments is well known: the Court considered that the Cypriot Government had failed to rebut the evidence laid before the Commission that aggrieved Greek Cypriots had access to local courts in order to assert civil claims against wrongdoers, and held that no violation of Article 13 of the Convention had been established by reason of the alleged absence of remedies in respect of interferences by private persons with the rights of Greek Cypriots living in Northern Cyprus under Article 8 of the Convention and Article 1 of Protocol No. 1 [29] . The same should apply in the present case.

5. The Court should not have double standards, following one line of reasoning with regard to Cyprus and the opposite with regard to Azerbaijan. In the Cypriot inter-State case the Court did not require that the cases dealt with in the occupied part of Cyprus by “TRNC” courts should precisely concern restitution of property claims. It sufficed that civil claims of Greek Cypriots had been entertained by the “TRNC” courts to conclude that these courts had to be regarded as affording remedies to be exhausted. The Azerbaijani Government produced evidence in support of their contention that court remedies were available and highlighted the claims brought by a number of litigants of Armenian origin in Azerbaijani courts in civil cases and specifically in housing cases. This unrebutted evidence should have sufficed for the Government ’ s objection to be accepted.

I am therefore not persuaded that any attempt to use the available domestic remedies was destined to fail. As the Court has reiterated on many occasions, the existence of doubts as to the efficacy of domestic remedies does not absolve the applicant from the obligation to at least try to use them [30] . It is regrettable that this principle is not upheld in the present case. In other words, for the majority, subsidiarity plays no role in this part of Europe.

III. Lack of victim status ( §§ 6-9)

A. Victim status with regard to the applicant ’ s house and plot of land ( §§ 6-7)

6. The applicant ’ s victim status is in doubt. With regard to his house and other property, the majority do not know whether, when and by whom they were destroyed. But the majority cannot be unaware of the fact that, in his first submissions of 10 July 2006, the applicant himself had stated that his house had been destroyed during the bombardment of the village in 1994 [31] . It was only in his heirs ’ later submissions that it was argued that the walls of the house were still standing, while the roof had fallen in, and the applicant had been referring to his father ’ s house when he stated, in his first submissions, that the house had been destroyed. These late submissions merit no credence, and the circumstance that the applicant ’ s heirs even presented to the Court testimonial evidence (Mr Tavad Meghryan ’ s statement) of the present existence of the standing house shows just how far they were willing to go to put up a case.

7. At all events, the evidence produced by the applicant and his heirs in support of his property claims is not convincing, as actually admitted by the majority in paragraph 196 of the present judgment . The contradictory nature of the applicant ’ s submissions was not clarified by his explanations. The probative value of the technical passport with no reference to a primary title of ownership, with an empty field entitled “ L and parcel size according to official documents”, such information being required by Article 2 . 2 of the Standard Reporting Forms Instructions [32] , and with the incorrect official stamp for the issuing authority [33] and the incorrect name of the district in the emblem of the stamp [34] , is close to nil. Not even an extraordinary “flexible” assessment of the face value of that evidence can save it from a strong suspicion of having been fabricated. Furthermore, the applicant based his property claims on written statements of witnesses who had not been submitted to cross ‑ examination, as the majority also acknowledge in paragraph 193 of the present judgment . The witnesses presented contradictory testimony on crucial points. For example, Mr Yura Ghulyan ’s statement that the applicant built his house “on the plot of land provided to him by the collective farm” contradicts that of Mrs Kachatryan, S ecretary to the B oard of the village council of Gulistan, who stated that the applicant had been allowed to divide the plot of land that had already been allotted to his father [35] . The C hairman of the State Land and Mapping Committee of Azerbaijan, Mr Garib Mammadov, himself affirmed that “the village councils referred to in the case had no authority to adopt a decision on allocation of lands adjoining the house” [36] . Mr Ghulyan ’s testimony that there were four rooms on the second floor also contradicts the testimony of Mrs Elmira Chirkinyan and Mrs Lena Sargsyan to the effect that there were three rooms on the second floor [37] . Mrs Lena Sargsyan ’ s testimony that the total area of the plot of land was 1,500 sq. m is contradicted by that of Mrs Elmira Chirkinyan, who said that it was a total of 1,000 sq. m [38] . It beggars belief that the applicant could not offer more reliable evidence. Drawing plans and photos of a house do not represent binding proof of immovable property.

Accordingly, the majority ’ s assumption that the house “still exists though in a badly damaged state” is pure speculation, based on an inadmissible reversal of the burden of proof which exonerates the claimant from proving the existence of the claimed fact and imposes on the respondent party the obligation to prove its non-existence (see paragraph 197 of the present judgment : “In the absence of conclusive evidence that the applicant ’ s house was completely destroyed before the entry into force of the Convention ... ”). The same criticism applies to the land of which the applicant claims to be the owner.

B. Victim status with regard to the family graves ( § 8)

8. The more complex question of the applicant ’ s complaint regarding his right of access to his relatives ’ graves would have merited the Court ’ s attention. Had it been proven that the applicant did indeed live and had his family graves in the area of Gulistan, that claim would have been arguable in the light of Elli Poluhas D ö dsbo v. Sweden [39] . But no sufficient evidence of the applicant ’ s residence and no evidence at all of the existence, location and ownership of the alleged family graves were ever added to the file, thus definitively undermining these claims. On top of these deficiencies, the video evidence produced to the Court is that the two cemeteries in Gulistan have been damaged, but the Court ignores the question of who did it or when the damage was caused. The satellite images did not even show the locations of the cemeteries in the village. To accept the applicant ’ s alleged residence on the basis of incomplete copies of the applicant ’ s former Soviet documents and the alleged existence, location and ownership of his family graves in Gulistan on the sole basis of his own word shows, once a gain, the measure of unlimited flexibility with which the majority approached the evidence produced by the applicant. Finally, the alleged “right to return to the village” as a facet of the applicant ’ s “private life” widens the ambit of Article 8 well beyond its known borders [40] .

C. Preliminary conclusion: the limits of the Pinheiro Principles ( § 9)

9. When judicial authorities are confronted with undocumented property - restitution claims from refugees and displaced people, a certain degree of flexibility may be required, according to the Pinheiro Principles [41] . Indeed, in situations of forced, mass displacement of people it may be impossible for the victims to provide the formal evidence of their former home, land, property or even place of habitual residence. Nonetheless, even if some flexibility may be admitted in terms of the Court ’ s evidential standards in the context of property claims made by especially vulnerable persons, such as refugees and displaced persons, there should be reasonable limits to the flexible approach of the Court, since experience shows that mass displacement of people fosters improper property claims by opportunists hoping to profit from the chaos. Unlimited flexibility will otherwise discredit the Court ’ s factual assessment. Having failed to meet his burden of proof, the applicant relied on the Court ’ s flexibility, which in this case exceeded all reasonable limits, as it accepted clearly contradictory testimonial and documentary evidence as being sound and reliable. Such blatant contradictions would strongly suggest a fabricated version of the facts, thus undermining the applicant ’ s victim status. In view of these inconsistencies and uncertainties, I can only conclude that this is an artificial case, built on a shaky evidential basis, which was cherry-picked as a convenient mirror image of Chiragov and Others , cited above .

IV. Jurisdiction over the ceasefire line and the adjacent area ( §§ 10-18)

A. The time frame of the Court ’ s assessment ( §§ 10-11)

10 . Gulistan is located between two frontlines of opposing military forces from Azerbaijan and the “Republic of Nagorno-Karabakh” (the “NKR”) . The village and the Azerbaijani military positions are on the north bank of the river Indzachay, which constitutes not only a natural dividing line, but also the ceasefire line drawn up at the end of the war. Both the Azerbaijani and Armenian maps show the village as being situated on the Line of Contact between the two armies as frozen by the Bishkek Protocol of May 1994. The “ NKR ” military positions are on the south bank of the river. The village was almost entirely destroyed, supposedly during battlefield engagements. Agricultural equipment destroyed during the war remains in that state. The place is surrounded by landmines. Every so often wild animals trigger mines. Snipers are actively at work. There are frequent incidents of shooting from both sides, causing casualties. In short, anyone attempting to reach the village or to use the adjacent field risks death or serious injury from the mines or live fire from the opposing armies.

11. The location of the exact positions of the two armies is crucial in determining the issue of jurisdiction. The applicant and the Armenian Government have submitted that the Azerbaijani army is in control of the village, and in particular that it has military positions in the village and on its outskirts, while the “ NKR ” forces are stationed on the other side of the R iver Indzachay. The respondent State categorically denies this, stating that the Armenian military positions are closer to the village, which is within their shooting range, and positioned on a steep slope, providing them with a military advantage [42] . On the two diverging points of fact, namely the presence of the “ NKR ” army in the southern part of the ceasefire line and the presence of the Azerbaijani army in the village of Gulistan, the majority affirm that the forces placed south of the river are those of the “ NKR ” army, and not those of Armenia (see paragraphs 134 and 136 of the present judgment ), and that “there are a number of elements which indicate a presence of Azerbaijan i positions and thus of Azerbaijan i soldiers in the village”, although they add that they do not know whether there have been Azerbaijani forces in Gulistan from 15 April 2002 until the present time (see paragraphs 137 - 38).

In the circumstances of the present case, the Court had to ascertain whether Azerbaijan in fact had effective control over Gulistan and its surrounding area at least after June 1992, namely when the applicant, his family and many other Armenians of the Shahumyan region were allegedly attacked by Government military forces and expelled, and until the date of delivery of the present judgment [43] . As in Šilih v. Slovenia , the military actions in the area of Gulistan at the relevant time (June 1992) did not constitute “the source of the dispute”; instead, they were “the source of the rights claimed” by the applicant, and to that extent come under the jurisdiction ratione temporis of this Court [44] .

B. The assessment of evidence ( §§ 12-15)

12. Basically, the evidence referred to by the majority in support of their conclusions on the jurisdiction issue are the results of the American Association for the Advancement of Science report (“the AAAS report”) , which refers to satellite images taken in 2005, 2009 and 2012, and the DVD submitted by the applicant in 2008 (see paragraph 137 of the present judgment ). I have serious doubts about the use of this evidence.

In a letter of 16 December 2013, the President of the Grand Chamber decided to grant the Government ’ s request, on national security grounds, not to disclose to the Armenia n Government images 6 to 11, 13 and 14, as contained in the report provided by the AAAS in November 2013 at the Court ’ s request. Accordingly, only those parts of the report to which no objections had been made were sent to the applicant and the third-party Government for information. Since there was no legal basis for this request, the applicant and the third-party Government were deprived of relevant information without legal grounds [45] . The Court should therefore have refused that request in the absence of a precise legal framework allowing for the non-disclosure of secret evidence to the parties. Equality of arms oblige .

13. Neither can I accept, as evidence of the presence of Azerbaijani military personnel in Gulistan, the video - recording of the village which constitutes A nnex 3 to the applicant ’ s observations of 21 February 2008. According to the Armenia n Government, the video includes footage of an Azerbaijan i soldier walking among the ruins of Gulistan. In fact, the man in the video cannot be identified as a serviceman, since he is not in military uniform and is unarmed. The origin of the smoke rising from the chimneys of some houses is unknown. It is not impossible that this smoke came from fires lit by the shepherds seen in the DVD submitted in July 2012. Assumptions are always tempting, and sometimes convenient, but should be avoided when a court of law is establishing facts.

14. Finally, I regret that the Court did not consult the results of the October 2006 OSCE mission monitoring the border between the “ NKR ” and Azerbaijan near Gulistan. There is no reliable alternative witness evidence. The testi monies of the “ NKR ” officials and former villagers of Gulistan, as well as the testimonies of Azerbaijan military officers, officials and villagers from neighbouring villages, were collected in circumstances unknown to the Court, without being submitted to cross-examination. The DVDs, which contain footage of Gulistan and the surrounding area, do not provide a clear picture of the exact military positions of the two armies. Finally, regardless of the legal issue of their admissibility, the satellite images of the “trenches”, “revetments”, “military buildings” and “military vehicles” in and around the village are dubious. The construction and replacement of military buildings was noted “in the region north of Gulistan” (page 13 of the AAAS report). The military vehicles were also noticed in the “areas north and west of Gulistan” , vehicle tracks having been spotted 2.5 km north of Gulistan (page 16 of the same report). The “trenches and revetments”, “earthworks” and “earthen barriers” noted were located mostly outside Gulistan. There are no images of “military buildings” or “military vehicles” in Gulistan, and the only images of “trenches and revetments” in Gulistan refer to 2005 and 2009, but the “visual signature of these trenches fades due to disuse through 2012” (page 7 of the same report). One thing is clear: there are no traces of cemeteries in the satellite images (pages 7 and 22 of the same report). In any case, in view of the significant limitations of the AAAS report, which included “insufficient imagery, cloud cover, spectral properties of the imagery, physical geography of the region, and general difficulties in conducting multi-year assessments” (page 22 of the same report), the accuracy and credibility of the report are greatly undermined.

15. In my view, it is imprudent to sustain, solely on this doubtful evidential basis, that one of the armies controls the territory of the village and its surrounding area. In view of these doubts, it would be wiser to proceed by establishing the facts agreed on by both parties, if any, and checking them against objective evidence. Comparison of the parties ’ maps of the area and their respective readings of those maps would seem to show a military position located on the south of the riverside on a height just opposite the village, which would allow servicemen there not only to survey the village and its surrounding area but also to shoot at any moving or static target in the village. On the north bank of the river to the east and north-east of the Gulistan settlement, there seem to be various Azerbaijani army positions, situated in the lowlands, at distances of between 1 and 3 km from the village. Careful assessment of the available evidence admits of no other conclusion.

C. Preliminary conclusion: Assanidze distorted ( §§ 16-18)

16. On the basis of legally controversial and factually contradictory evidence, the majority put forward a typical argument ad consequentiam , drawing the conclusion that the respondent State ’ s responsibility is not “limited” from the fact that no other Convention State has “full responsibility under the Convention” for the events occurring in Gulistan (see paragraph 148 of the present judgment ). Despite the obvious fact that the area is rendered inaccessible by the military circumstances obtaining in the field, the majority accept the “full responsibility” of the respondent State simply because there is no one else to blame for any possible breaches of the Convention in that territory.

17. The fallacious conclusion drawn by the majority is supported by one single argument, namely the comparison with the Assanidze [46] type of situation, on which the majority rely in paragraph 150 of the present judgment. The analogy of the two situations is manifestly forced, because in Assanidze the Georgian Government accepted that the Ajarian Autonomous Republic was an integral part of Georgia and that the matters complained of were within the jurisdiction of the Georgian State. Moreover, apart from the case of Mr Assanidze, with its strong political overtones, there was no problem of judicial cooperation between the central authorities and the local Ajarian authorities. Hence, it is rather artificial to compare the situation of direct military confrontation in Sargsyan with the situation of the Ajarian Autonomous Republic, which never had separatist aspirations and was not a source of conflict between different States.

18. I would adopt a different approach, for two reasons: firstly, the facts are not clear to me, since the file contains insufficient evidence to ascertain the composition and size of the military forces in confrontation, their respective firepower and, more importantly, their exact geographical positioning with regard to Gulistan. Secondly, even accepting the parties ’ maps of the area at face value and assuming that the existence of the physical barrier of the river between Gulistan and the Nagorno-Karabakh army facilitates the Azerba ijani army ’ s access to Gulistan , I do not consider this fact alone sufficient to conclude that the respondent State holds jurisdiction over Gulistan and its surrounding area and that the alleged deprivation of the applicant ’ s rights under the Convention is attributable to Azerbaijan. Apparently, the Nagorno-Karabakh army is closer to the village and in a more favourable strategic position, with the village within firing distance. In fact, Gulistan is situated midway between two armies, neither of which exercises effective control of the area. That is exactly what makes the area so dangerous. For these reasons, therefore, the respondent State lacks jurisdiction.

V. Responsibility for human rights breaches on the ceasefire line and the adjacent area ( §§ 19-40)

A. The majority ’ s position: exceeding Oruk ( §§ 19-20)

19. Having established jurisdiction of Azerbaijan over Gulistan, the majority proceed to assess the Government ’ s justification for the deprivation of the applicant ’ s rights under the Convention. According to the Government, permitting civilian access and circulation in such a hazardous and volatile area would most likely amount to a violation of Article 2 of the Convention. In addition, international humanitarian law should heighten considerations of protecting civilians against the risks prevailing in the area. That is why, the Government further explain, they prohibited civilian access to Gulistan, by means of a secret unpublished order. The Court knows nothing about the date or details of that order [47] . Nonetheless, its compatibility with the Convention is assessed by the majority in view of the patent dangerousness of the local military situation.

20. The majority find that the Government ’ s conduct was, and still is, justified, extending the case-law of Oruk v. Turkey [48] to the present case (see paragraph 233 of the present judgment). The analogy is improper, since the underlying factual situations are not at all comparable. In the Turkish case, the victims lived near a military firing zone, the fatal accident having been caused by the careless conduct of military personnel who had left unexploded ammunition on the ground after their training. Accordingly, there is no similarity to the facts in the present case, whether in terms of space (non-conflict, populated zone), time (peacetime), result (death of a person), or even mens rea (negligence on the part of soldiers). Needless to say, this unfortunate analogy merely served as a pretext for avoiding the central issue of the case. Even assuming the majority ’ s factual premise regarding the effective control of Gulistan by the Azerbaijan i army, which I in fact do not, the case should have been argued on the basis of the restrictions which Article 1 of Protocol No. 1 itself sets out, when read in conjunction with the international humanitarian law obligations, including the obligation to protect civilians (POC), and the broader international-law “responsibility to protect” (R2P) of the respondent State. The effect of such a renvoi is to render the application of Article 1 of Protocol No. 1 conditional upon the way the Court interprets incidenter tantum international humanitarian law and the responsibility to protect [49] .

For the sake of completeness, I will further argue the case on the basis of the majority ’ s factual premises and taking into account the State ’ s international humanitarian law obligations, including the obligation to protect civilians, and its responsibility to protect.

B. Responsibility to protect in international law ( §§ 21-35 )

(i) Formation of the customary rule ( §§ 21- 31)

(a) United Nations practice ( §§ 21-24)

21. Article 2 § 4 of the United Nations Charter on prohibition of the use of force is a jus cogens rule, which applies in both inter-State and intra-State cases. This rule may be restricted only by another rule of a similar nature (see Article 53 of the Vienna Convention on the Law of Treaties). The targeting of a population by their own government, which perpetrate s , seek s to perpetrate or allow s the perpetration of genocide, crimes against humanity or war crimes, directly or through private agents acting under its direction or with its connivance, constitutes criminal conduct under treaty and customary law. The prevention and punishment of such crimes is a jus cogens obligation of a non-derogable, imperative nature, in times of both peace and war. In case of the deliberate selection of a part of the population on the basis of a racial, ethnic, religious or other identity-based criterion as a target of a systematic attack, the unlawfulness of the conduct is compounded by the discriminatory intent, which also calls for mandatory prevention and punishment [50] . Thus, the jus cogens prohibition of the use of force may be restricted for reasons of protecting a population from the commission of jus cogens crimes, the application of Article 103 of the UN Charter being excluded in this conflict of norms.

22. Shortly after the end of the Second World War, the UN General Assembly expressed the view that “it [was] in the highe r interests of humanity to put an immediate end to religious and so-called racial persecution and discrimination”, and that therefore governments should “take the most prompt and energetic steps to that end” [51] . In the context of the fight against colonialism, bolder statements were made expressing t he same principle. In paragraph 3 ( 2 ) of the Programme of action for the full implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, approved by General Assembly Resolution 2621 (XXV) ( 12 October 1970 , A/RES/2621 (XXV), see also A/8086), it was affirmed that States “shall render all necessary moral and material assistance” to the oppressed population of another State “in their struggle to attain freedom and independence” [52] . The Basic Principles of the legal status of the combatants struggling against colonial an d alien domination and racist r e gimes, approved by General Assembly Resolution 3103 ( 12 December 1973 , A/RES/3103 (XXVIII)), even declared that

“ [ t ] he struggle of peoples under colonial and alien domination and racist r é gimes for the implementation of their right to self-determination and independence [was] legitimate and in full accordance with the principles of international law”

stating that

“[a]ny attempt to suppress the struggle against colonial and alien domination and racist régimes [was] incompatible with the Charter of the United Nations, the Declaration on Principles of International Law concerning Friendly Relations and Co - operation among States in accordance with the Charter of the United Nations, the Universal Declaration of Human Rights and the Declaration on the Granting of Independence to Colonial Countries and Peoples and constitute[d] a threat to international peace and security”.

More recently, the “right” of peoples forcibly deprived of the right to self-determination, freedom and independence, “particularly peoples under colonial and racist regimes or other forms of alien domination”, to struggle to that end and to seek and receive support was reiterated in paragraph 3 of the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, approved by General Assembly Resolution 42/22 ( 18 November 1987 , A/RES/42/22).

Step by step, the Security Council has enshrined this same “right” to use force in a non-colonial context as well. On the one hand, it referred to grave human rights violations as a threat to international peace and security, since the seminal Resolution 688 (1991) , 5 April 1991 , S/RES/688 ( 1991 ) , later confirmed by many others, such as Resolutions 733 (1992) , 23 January 1992 , S/RES/733 ( 1992 ) , 794 (1992) on the situation in Somalia, 3 December 1992 , S/RES/794 ( 1992 ) , and 1199 (1998) on the situation in Kosovo , 23 September 1998 , S/RES/1199 ( 1998 ) . On the other hand, it authorised the use of “all necessary means” or the taking of “all necessary measures”, including military measures, to put an end to human rights violations, ensure humanitarian aid and restore peace, for example in Resolutions 678 (1990) , 29 November 1990 , S/RES/678 (1990 ) ; 770 (1992) , 13 August 1992 , S/R ES/770 ( 1992 ) ; 794 (1992) , 3 December 1992 , S/RES/794 ( 1992 ) ; 940 (1994) , 31 July 1994 , S/RES/940 ( 1994 ) ; and 1529 (2004) , 29 February 2004 , S/RES/1529 ( 2004 ) .

General Assembly Resolution 43/131 ( 8 December 1988 , A/RES/43/131), considering that “the abandonment of the victims of natural disasters and similar emergency situations without humanitarian assistance constitute[d] a threat to human life and an offence to human dignity”, Resolution 45/100 ( 14 December 1990 , A/RES/45/100), with the first reference to “humanitarian corridor s”, and Resolution 46/182 ( 19 December 1991 , A/RES/46/182), approving the “guiding principles” on humanitarian assistance, and stating that “[ e ] ach State ha[d] the responsibility first and foremost to take care of the victims of natural disasters and other emergencies occurring on its territory ” , reinforced that trend.

23. In other words, a government ’ s treatment of the population living under its authority is no longer an issue which lies within the reserved domain of States. As the Abbé Grégoire also wrote, in his lesser-known Article 15 of the Déclaration du d roit des g ens (1795) , “ Les entreprises contre la liberté d ’ un peuple sont un attentat contre tous les autres ” (an assault on the freedom of one people is an attack against all peoples). States cannot remain indifferent in the face of situations of systematic discrimination and human rights violations. Having been introduced by the International Commission on Intervention and State Sovereignty (ICISS) [53] , advocated in the Secretary ‑ General ’ s note presenting the report of the High-level Panel on Threats, Challenges and Change [54] and adopted in the 2005 World Summit Outcome Document, the rule concerning the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity was formally enshrined in General Assembly Resolution 60/1 of 24 October 2005, which adopted the Outcome Document (A/RES/60/1), and Security Council Resolution 1674 on the protection of civilians in armed conflict ( 28 April 2006 , S/RES/1674 (2006) ) , which endorsed paragraphs 138 and 139 of the World Summit Outcome Document [55] . In undertaking to provide a “timely and decisive” response, the world political leaders affirmed their determination to act not only when the crimes in question were already occurring but also when they were imminent, by using all the permissible and necessary means, including those of a military nature, to avert their occurrence. Conceptually and practically, this responsibility entailed the prevention of such crimes, including the incitement to commit them, as the normative statement of paragraph 138 clarified, reinforced by the statement of political support to the Special Advis e r of the Secretary - General on the Prevention of Genocide in paragraph 140. The nature of the requisite response was not left indefinite, since it must be all-inclusive in order to be “decisive”, and obviously to encompass the full range of coercive and non ‑ coercive enforcement actions available to the Security Council, as shown by the express reference to Chapters VI, VII and VIII of the Charter. Needless to say, the requirements of proportionality were applicable to the international community ’ s response.

With this degree of specificity, the Outcome Document established not only an unambiguous political commitment to use those powers, but set a universally binding obligation to protect populations from the most atrocious human rights violations. This protection extended to all “populations” within the territory of the State, including refugees, migrants, displaced persons and minorities, and not only to “groups”, “civilians” or “citizens” [56] . The indissoluble link between international human rights law, the rule of law and the responsibility to protect was confirmed by placing the latter issue under the heading “IV. Human rights and the rule of law” in the Outcome Document. The apparent casuistic approach (“on a case-by-case basis”) referred to the individual assessment of the adequate and necessary means of addressing each specific situation, and evidently not to the legal rule set out in the Outcome Document, whose normative language (“responsibility”) reflected that of Article 24 of the UN Charter. After imposing an affirmative duty on the Security Council to react to the catalogued international crimes, the Outcome Document omitted to mention the consequences of any Security Council failure to respond. But that omission is highly significant in legal terms. Having regard to the preparatory materials for the Vienna meeting, namely the ICISS and High-level Panel reports, as well as the previous practice of international organisations in Africa, the silence of the Outcome Document left the door open to the possibility of regional or individual enforcement alternatives if the Security Council failed to act. Such regional or individual enforcement measures could, in any event, not be excluded in view of the cogent nature of the international crimes at stake. Finally, by stressing the need for the General Assembly to continue its consideration of the responsibility to protect populations, the Outcome Document enhanced its subsidiary role in this field in the light of the Charter principles and, more broadly, of the general principles of international law and customary international law.

The Security Council ’ s reaffirmation of paragraphs 138 and 139 of the Outcome Document, in the operative part of Resolution 1674, reinforced the binding nature of the legal obligations resulting therefrom and the obligations of member States of the United Nations to implement decisions taken in accordance with the Outcome Document (under Article 25 of the UN Charter). The later statement by the UN Secretary-General that “the provisions of paragraphs 138 and 139 of the Summit Outcome [were] firmly anchored in well-established principles of international law” served only to acknowledge their intrinsic legal strength [57] .

Subsequently, the Security Council [58] , the General Assembly [59] and the Secretary-General [60] applied the rule of responsibility to protect profusely in binding and non-binding documents. In 2007 the Secretary-General appointed a Special Advis e r on the Responsibility to Protect, whose office was recently merged with the office of the Special Adviser on the Prevention of Genocide, paving the way for a more comprehensive and coordinated approach to the core problem faced by these offices. In his landmark report , “Implementing the r e sponsibility to p rotect” ( 12 January 2009 , A/63/677 ), the Secretary-General interpreted the Outcome Document, acknowledging the role of the General Assembly under the “ Uniting for p eace ” procedure to resolve the impasse of the Security Council (paragraphs 11, 57 and 63) [61] . By its Resolution 63/308 (2009) ( 7 October 2009 , A/RES/63/308), the General Asse mbly took note of the Secretary ‑ General ’ s report, accepting it tacitly.

24. The United Nations practice teachings are clear: if human rights have prevailed over sovereignty and territorial integrity in order to liberate colonised populations from oppression and tyranny, the same applies with regard to non-colonised populations faced with governments that do not represent them and carry out a policy of discrimination and human rights abuses against them. The principle of equality warrants such a conclusion. In both situations, human rights protection comes first, the dignity of the women and men who are the victims of such a policy trumping the interest of the State. Although peace is the primary concern of the international community and the United Nations, which seeks “to save succeeding generations from the scourge of war”, this must not be a rotten peace, established and maintained on the basis of the systematic sacrifice of the human rights of the population of a State, or part of it, at the hands of its own government. In these cases, the international community has a responsibility to protect, with all strictly necessary means, the victims.

(b) State practice ( §§ 25-26)

25. Less recent international practice of military intervention in favour of non-colonised populations by third States includes such examples as the military intervention of Great Britain, France and Russia to protect the Greek nationalists in 1827, the French military intervention in Syria in favour of the Maronite Christians in 1860-61, the intervention of the United States of America in Cuba in 1898 , and the joint military intervention of Austria, France, Great Britain, Italy and Russia in the Balkans in favour of Macedonian Christians in 1905. More recent practice includes the examples of the military intervention of Vietnam in Kampuchea in 1978-79, that of Tanzania in Uganda in 1979, or that of the United States of America , the United Kingdom, France and others in favour of the Kurdish population in Iraq in 1991.

In the context of secession, the military intervention of India in the conflict with Pakistan is the most cited example, since Pakistan had not only denied the right of internal self-determination of the East Bengali population, but had also abused their human rights [62] . Neither Security Council Resolution 307 (1971) ( 21 December 1971 , S/RES/307 (1971)), nor General Assembly Resolution 2793 (XXVI) ( 7 December 1971 , A/RES/2793 (XXVI)), considered India as an “aggressor” or “occupant”, nor did they ask for the immediate withdrawal of troops [63] .

26. The paradigm shift at the end of the twentieth century is remarkable, most notably in Africa. With the vivid memory of the Rwanda genocide and of the uncoordinated response of the international community to tragedy, African leaders decided to take action, by creating mechanisms for humanitarian intervention and military enforcement operations in intra-State conflicts, including genocide, crimes against humanity, ethnic cleansing, gross violation s of human rights and military coups, as follows .

(a) As regards the Economic Community of West African States, see Articles 3 (d) and (h) and 22 of the 1999 ECOWAS Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace - keeping and Security:

“ECOMOG [ECOWAS Cease- F ire Monitoring Group] is charged, among others, with the following missions:

...

b) Peace-keeping and restoration of peace;

c) Humanitarian intervention in support of humanitarian disaster;

d) Enforcement of sanctions, including embargo;

e) Preventive deployment;

f) Peace -building, disarmament and demobilisation ; ”

(b) As to the Economic Community of Central African States, see Article 5 (b) of the 2000 Protocol r elating to the Establishment of a Mutual Security Pact in Central Africa:

“ Aux fins enoncés ci-dessus, le COPAX :

...

b. peut également engager toute action civile et militaire de prévention, gestion et de reglement de conflits ; ”

(c) As regards the Southern African Development Community (SADC) , see Articles 3 § 2 (e) and (f) and 11 § 2 (a) of the 2001 Protocol on Politics, Defence and Security Co-operation:

“The Organ may seek to resolve any significant intra-state conflict within the territory of a State P arty and a ‘ significant intra-state con flict ’ shall include:

(i) large ‑ scale violence between sections of the population or between the state and sections of the population, including genocide, ethnic cleansing and gross violation of human rights;

(ii) a military coup or other threat to the legitimate authority of a State;

(iii) a condition of civil war or insurgency;

(iv) a conflict which threatens peace and security in the Region or in the territory of another State Party.”

(d) For the Organisation of African Unity, see Article 4 (h) of the Constitutive Act of the African Union and Articles 4 (j) and 7 § 1 (f) of the 2002 Protocol relating to the Establishment of the Peace and Security Council of the African Union:

“The Peace and Security Council shall be guided by the principles enshrined in the Constitutive Act, the Charter of the United Nations and the Universal Declaration of Human Rights. It shall, in particular, be guided by the following principles:

...

j. the right of the Union 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, in accordance with Article 4 (h) of the Constitutive Act.”

According to the so-called Ezulwini C onsensus, approval by the Security Council can be granted “after the fact” in circumstances requiring “urgent action” and, thus, Article 53 § 1 of the UN Charter is not always applicable [64] . By lending its institutional authority to the Ezulwini Consensus, the African Commission on Human and Peoples ’ Rights Resolution ACHPR/Res. 117 ( X L II ) 07 on Strengthening the Responsibility to Protect in Africa , 28 November 2007, further enhanced the lawfulness of this interpretation.

Central to these initiatives is the decisive political will to avoid the tragic inaction of the United Nations in the past, if necessary by replacing its universal peace and security mechanism by regional multilateral action [65] . The Security Council reacted positively, and has even approved ex post facto military interventions implemented within the framework of these regional and sub-regional mechanisms. For example, it did so explicitly with the ECOWAS intervention in Sierra Leone and in Liberia [66] and the African Union intervention in Burundi [67] , as well as implicitly with the SADC intervention in the Democratic Republic of the Congo [68] . This coherent and consistent practice embodies a positive belief that such intervention is required by international law.

(c) O pinio juris ( §§ 27-31)

27. Having in mind the genocide of the Armenian population by the Ottoman Empire, Fenwick once stated that lawyers generally believed that there should be a right to stop such massacres, but were unable to determine who had the responsibility to intervene [69] . Sir Hersch Lauterpacht gave the correct answer [70] . Recalling Grotius ’ s lesson, he admitted that intervention by any State was lawful when a ruler “inflict[ ed ] upon his subjects such treatment as no one [was] warranted in inflicting”, adding:

“This is, on the face of it, a somewhat startling rule, for it may not be easy to see why he (Grotius) permits a foreign state to intervene, through war, on behalf of the oppressed while he denies to the persecuted themselves the right of resistance. Part of the answer is, perhaps, that he held such wars of intervention to be permitted only in extreme cases which coincide largely with those in which the king reveals himself as an enemy of his people and in which resistance is permitted.”

In the year of the fall of communism in e astern Europe, the question resurfaced again with much ado on the agenda of the international community. With the Institute of International Law (IIL) approving Article 2 of the 1989 Resolution on The Protection of Human Rights and the Principle of Non- i ntervention in Internal Affairs of States, it was admitted that States, acting individually or collectively, were entitled to take diplomatic, economic and other measures vis-à-vis any other State which had committed grave violations of human rights, notably large-scale or systematic violations, as well as those infringing rights that could not be derogated from in any circumstances, provided such measures were permitted under international law and did not involve the use of armed force in violation of the UN Charter. A contrario , any initiative in accordance with the UN Charter for the purpose of ensuring human rights in another State can be taken by States acting individually or collectively, and should not be considered an intrusion in its internal affairs. Some years late r, quite restrictively, Article VIII of the 2003 IIL Resolution on Humanitarian Assistance reformulated the rule, with much caution, as follows: in the event that a refusal to accept a bona fide offer of humanitarian assistance or to allow access to the victims leads to a threat to international peace and security, the Security Council may take the necessary measures under Chapter VII of the Charter of the United Nations. Meanwhile, both humanitarian intervention [71] and the responsibility to protect doctrine [72] have received attention and support from reputed scholars and experienced practitioners.

28. In view of the practice and opinio mentioned above, the rule of the responsibility to protect shows some important differences with regard to the “right to humanitarian intervention”: firstly, responsibility to protect presupposes the primary State ’ s obligation to respect and protect the human rights of its population, which emphasises the subsidiary preventive and protective role of the international community; secondly, responsibility to protect departs from the concept of the “right” of each State to intervene in another State ’ s internal affairs, by establishing the specific conditions for intervention and hence limiting the discretion of a State to take action against another State; thirdly, responsibility to protect shifts the focus from the “right” of the target State to territorial integrity to the rights of the victims in peril; and , fourthly, and most importantly, sovereignty becomes instrumental to the welfare of the population, and is not an end in itself, the use of force constituting the last-resort instrument to safeguard the fundamental rights and freedoms of the victimised population in the target State.

29. Hence, responsibility to protect corresponds to a customary norm which has benefited from three different but converging lines of development of international law: first ly , human rights do not belong to the reserved domain of sovereignty of States (Article 2 § 7 of the UN Charter) [73] , which excludes from this domain “the outlawing of acts of aggression, and of genocide” and “principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”, respect for which constitutes an erga omnes obligation of States [74] , and where disrespect may constitute a threat to international peace; second ly , State officials have a personal responsibility to protect the population under their political authority, on pain of international criminal responsibility for the delicta juris gentium : genocide, crimes against humanity and war crimes (Articles I, IV, V, VI and VIII of the Convention on the Prevention and Punishment of the Crime of Genocide and Articles 6 to 8 of the Rome Statute of the International Criminal Court), whose prevention and prosecution is also an erga omnes obligation [75] ; third ly , the protection of civilians in armed conflicts is a responsibility of the international community, requiring States to take action jointly or individually to suppress serious violations of the Geneva Conventions or Protocol I thereto (Article 89 of Protocol I a dditional ), as well as any other serious violations of international humanitarian law embodying elementary considerations of humanity, with erga omnes effect, including in non-international armed conflicts between the government of a State and “dissident armed forces or other o rganized armed forces” (Article 1 § 1 of Protocol II a dditional to the four Geneva Conventions) and between the government and non-organised forces, and even in civil strife outside of armed conflict ( c ommon Article III of the Geneva Conventions) [76] . This customary rule applies both to action by a State in foreign territories under its effective control and to the conduct of private persons, in national or foreign territories, when they act under the control of the State [77] .

30. In international law, States have a duty to cooperate to bring to an end, through lawful means, any serious breach by a State of an obligation arising under a peremptory norm of general international law (see Article 41 § 1 of the D raft a rticles on Responsibility of States for Internationally Wrongful Acts of the International Law Commission (ILC)). Any State other than the injured State may invoke the responsibility of the perpetrator State when “[t]he obligation breached is owed to the international community as a whole” and claim from the responsible State the cessation of the internationally wrongful act ( ibid., Article 48 § 1 (b)) [78] .

Mass atrocities committed or condoned by a government against their own population entail such legal consequences in view of the jus cogens nature of these crimes and the erga omnes nature of the corresponding human rights protection obligation. In this context, the legal status of both the collective State responsibility and the extraterritorial individual State responsibility for preventing and stopping jus cogens crimes is unambiguous. As a matter of principle, all States are to be considered as the “injured State” in the case of the delicta juris gentium , whose perpetrators are deemed to be hostis human generis [79] . In the words of Lauterpacht, “the exclusiveness of domestic jurisdiction stops where outrage upon humanity begins” [80] .

31. International human rights law, international criminal law and international humanitarian law have evolved in such a way that they converge into acknowledging the legal obligation to take, collectively or individually, preventive and coercive action against a State which systematically attacks, or condones an attack on, all or part of its population [81] . The human rights based intervention is strictly limited to preventing or stopping mass atrocities in the form of genocide, crimes against humanity, war crimes and ethnic cleansing, and does not purport to change the constitutional system of the target State [82] .

As an ultimum remedium mechanism, human rights based intervention presupposes that where human rights are protected by international conventions, that protection d oes not take the regular form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the international conventions themselves. The use of force by the international community is thus limited by a double subsidiarity, in view of the failure of both the national human rights protection mechanisms and the common international human rights treaty mechanisms.

The international community ’ s subsidiary reaction may take place, in decreasing order of authority, by way of a Security Council resolution [83] , a General Assembly recommendation [84] , an action by a regional organisation whether or not authorised beforehand under Article 53 of the UN Charter, both ad intra or ad extra [85] , and an action by a group of like-minded States or an individual State [86] . Whenever the more authoritative means of response is deadlocked, or it seriously appears that this will be the case, a less authoritative means may be used. Inaction is not an option in the face of a looming or actual tragedy, putting at risk the lives of untold numbers of victims. Not only does the UN Charter not cover the whole area of the regulation of the use of force [87] , the Charter itself also pursues other aims such as the protection of human rights (Articles 1 § 2, 1 § 3 and 55), and the systematic flouting of these rights by a State within its own borders jeopardises international peace and security as well. In such circumstances, States must take joint and separate action to secure the observance of the violated human rights of the victimised population (Article 56 of the UN Charter).

(ii) Responsibility of the Government ( §§ 32-33)

32. Sovereign States are entitled to defend their national territory and protect their populations. This is not only their right, but their obligation as well. Each government has the obligation to maintain or re-establish law and order in the State or to defend its national unity and territorial integrity by “all legitimate means” [88] . While fulfilling these obligations, “all reasonable precautions” are due to avoid any losses of civilian lives and damage to civilian objects [89] . When absolutely necessary, civilian property may be destroyed for military purposes [90] . Civilians should not be arbitrarily displaced from their homes or places of habitual residence, imperative military reasons being necessary to justify such displacement [91] . In the case of forced displacement of civilians, their rights to return to and enjoy their homes and property should be implemented as soon as the reasons for their displacement cease to exist [92] .

33. In the context of secession, military action by the parent State against the seceding movement and intervening third States is, in principle, justified. The obligation to defend territorial integrity applies unless the secession complies with the following requirements: (1 ) the seceding population fulfil the Montevideo criteria [93] for statehood, namely they constitute a permanent population and have a defined territory, a government and the capacity to enter into relations wit h other States; (2 ) prior to secession the seceding population were not allowed fair participation in a government that represented the whole populati on of the former State; and (3) the seceding population were systematically treated by the government, or by a part of the population of the parent State whose action was condoned by the government, in a discriminatory manner or in a manner disrespectful of their human rights [94] .

When secession complies with these requirements, military action of the government of the parent State against the seceding population and intervening third States is no longer lawful. A State forfeits the right to defend its territory when it systematically breaches the human rights of a part of its population, or condones such breaches by private agents.

(iii) Responsibility of the international community ( §§ 34-35)

34. Sovereignty, equality of all States and prohibition of the threat or use of force against another State are the founding principles of the UN Charter of the United Nations. These principles have a practical consequence, already set out in the well-known Article 7 of La Déclaration du Droit des Gens (1795) : “ Un peuple n ’ a pas le droit de s ’ immiscer dans le gouvernement des autres ” (no people has the right to interfere in the government of others). An allegation of human rights violations in another State may evidently provide a convenient pretext for intrusion into its internal politics and, even worse, for the overthrow of legitimate governments, as the “manifestation of a policy of force, such as has, in the past, given rise to most serious abuses” [95] . Nevertheless, the mere circumstance that the right to intervene may be abused is not per se decisive of its existence or otherwise in international law. One should remember the wisdom of Grotius:

“We know , it is true, from both ancient and modern history, that the desire for what is another ’ s seeks such pretexts as this for its own ends; but a right does not cease to exist in case it is to some extent abused by evil men . [96] ”

During the first decade of the twenty-first century, the following rule of customary international law crystallised:

States have the legal obligation to prevent and stop the commission, preparation and incitement thereto, of genocide, war crimes, ethnic cleansing and crimes against humanity. When a State commits these crimes, condones the commission of these crimes or is manifestly unable to oppose their commission in the national territory or the territories under its effective control, the international community has a legal obligation to react with all adequate and necessary means, including the use of military means, in order to protect the targeted populations. The reaction must be timely, effective and proportionate. By order of precedence, the power to take action is vested in the following authorities: the UN Security Council under Chapters VI and VII of the UN Charter, the UN General Assembly under the “Uniting for Peace” Resolution and regional or sub-regional organisations in accordance with their respective statutory framework, whether ad intra or ad extra . When the primary authorities are deadlocked, or it seriously appears that this will be the case, any State or group of States will be competent to take action.

35. In the context of secession, third States are prohibited from taking military action against the parent S tate on the pretext that the seceding population is entitled to self-determination. Thus, the territory of a State cannot be the object of acquisition by another State resulting from the threat or use of force, no territorial acquisition resulting from the threat or use of force shall be recognised as legal, and every State has the duty to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in another State [97] .

The rule of non-interference in favour of a seceding population has an exception, namely the situation where the government of the parent State is not representative of the seceding population and systematically abuses its human rights or condones a systematic attack by private agents against them. In this situation, strictly necessary military action taken by third States in favour of the seceding population is lawful after the latter have established control of their territory and declared their secession. Military action by third States prior to that time constitutes prohibited intervention in the internal affairs of another State [98] .

If, in addition to the above-mentioned requirements, the interference envisages the protection of a seceding population which is ethnically the same as that of the third -party State, the lawfulness of the interference is even less questionable, because it closely equates to a situation of self ‑ defence. In any event, as to obligations under international humanitarian law and in relation to non-derogable human rights provisions, self-defence does not preclude the wrongfulness of conduct of the intervening third State [99] .

C. Preliminary conclusion: is the Doğan and Others standard really expanded? ( §§ 36-40)

36. The applicant claims that the Shahumyan region was subjected to a blockade by the Azerbaijani g overnment in the early 1990s. In June 1992 Gulistan came under direct attack by Azerbaijani forces and the population of the village, including the applicant and his family, were expelled and fled to Nagorno-Karabakh and Armenia. He complains of being denied the possibility of returning to his home and property and enjoying them, or of obtaining compensation for the loss thereof.

37. In paragraph 32 of the present judgment, the majority accept that

“ [ i ] n April and May 1991 the USSR i nternal f orces and the special purpose militia units ( ‘ the OMON ’ ) of the Azerbaijan SSR launched a military operation with the stated purpose of ‘ passport checking ’ and disarming local Armenian militants in the region. However, according to various sources, the government forces, using the official purpose of the operation as a pretext, expelled the Armenian population from a number of villages in the Shahumyan region, thus forcing them to leave their homes and flee to Nagorno-Karabakh or Armenia. The expulsions were accompanied by arrests and violence towards the civilian population. In 1992, when the conflict escalated into a full-scale war, the Shahumyan region came under attack by the Azerbaijani forces.”

Plainly speaking, the majority establish that the respondent State attacked the Armenian population of the Shahumyan region and forced them to flee, as the applicant claims, but unfortunately they find it unnecessary to discuss “whether the reasons for the applicant ’ s displacement have ceased to exist” (paragraph 232 of the present jdugment ).

Instead of dealing with the thorny issue of the “reasons for the forced displacement” and their persistence from at least 2006 until the present day, the majority invoke vague “safety considerations” without any evaluation of the six classic circumstances precluding the wrongfulness of conduct that would otherwise not be in conformity with the international obligations of the State concerned: consent (Article 20 of the ILC Draft a rticles on Responsibility of States for Internationally Wrongful Acts), self-defence (Article 21), countermeasures (Article 22), force majeure (Article 23), distress (Article 24) and necessity (Article 25). What is more, the argument of “safety considerations” is supported by a forced analogy with Oruk (cited above), a case without the slightest connection to the facts of the present case.

38. Even though the respondent State ’ s international obligations evolved in 1992 (year of the alleged forced displacement), in 2006 (year of the lodging of the application) and in 2015 (year of delivery of the present judgment), there is nonetheless a continuum between its international humanitarian obligations and the human rights obligations it assumed with the adoption and entry into force of the Convention in Azerbaijan. Thus, the Court should not have adjudicated upon the alleged deprivation of the applicant ’ s rights without assessing the “source of the rights claimed” [100] .

With a view to fully clarifying the existence of the “source” of the rights claimed, the essential questions to be addressed are the following: d id the Azerbaijani g overnment attack the Armenian population and expel it from the Shahumyan region in June 1992 and, if so, did it have any justification for that action? Did the attack and expulsion of the Armenian population comply with the respondent State ’ s humanitarian obligations? Were the reasons for the expulsion of the Armenian population still valid in 2006 when the applicant filed his complaint? Were the restrictions imposed on the applicant ’ s return to Gulistan valid in view of the respondent State ’ s responsibility to protect the lives of civilians in Gulistan and its surroundings?

Gulistan may be a no-man ’ s-land, but it is certainly not a legal vacuum in Europe. There is a law regulating the frontline between two armies facing each other, and that law is international humanitarian law, including the obligation to protect civilians, as well as the responsibility to protect. Arti cle 1 of Protocol No . 1 refers to general principles of international law as a ground for restricting the right to property, and the principles of military necessity, the protection of civilians and responsibility to protect are such principles.

39. Although the majority consider the deprivation of the right of access to the house, property, land and village “justified”, they purport to impose positive obligations on the respondent State, such as the setting up of a property - claims mechanism to deal with the restoration of property rights and compensate for the loss of enjoyment. The authority invoked is Doğan and Others [101] . Again, the reference is misplaced. For two reasons: firstly, unlike the applicants in Doğan and Others , the applicant in the present case was not an internally displaced person, since he was living in Armenia; secondly, in Doğan and Others the Court left open the question whether the refusal of any access to Boydaş village until 22 July 2003 on the ground of terrorist incidents in and around the village was lawful and pursued a legitimate aim, concentrating its examination on the issue of proportionality, while in the present case, the majority expressly consider the g overnment ’ s conduct to be “justified by safety considerations”, namely , they found that the governmental order restricting access to Gulistan pursued a legitimate aim.

40. Furthermore, Armenian refugees, like the applicant, could already benefit from a 1991 Order legalising property swaps between individuals. The majority note this fact, but dismiss it as irrelevant with the argument that “the applicant has not been involved in such an exchange” (paragraph 239 of the present judgment ). Implicitly, the majority presuppose that the Government had the obligation to identify and locate all the displaced persons from the conflict who had lost their property, including those living abroad, in order to “involve” them in the property - swap mechanism. Such presupposition places an unreasonable burden on the Government. Furthermore, the majority did not even venture to check whether the applicant had ever taken the initiative to be involved in such a property exchange and had been denied that possibility. Finally, no objective grounds pertaining to the swap mechanism itself are given by the majority to reject it as a satisfactory means of implementing the Government ’ s obligation to put in place administrative measures to secure the applicant ’ s individual rights [102] .

In any event, if the majority intended to expand the Doğan and Others standard for positive obligations in the case of Article 1 of Protocol No. 1 claims by in t erna tiona lly displaced persons, they failed [103] . Conscious of the inexistence of a legal basis for “alternative measures”, the majority not only give them a hypothetical formulation (paragraph 238 of the present judgment : “it would appear particularly important”), but also downgrade them to mere obiter dicta , not covered by an Article 46 injunction in the operative part of the judgment. In this context, the mention of these measures resonates more like wishful thinking than a legally binding obligation.

VI. Final conclusion ( §§ 41-42)

41. The Westphalian State is passé . Sovereignty is no longer what it was in the seventeenth century. After one century of mass murders committed by political leaders against their own peoples, like the Armenians under Tala a t Pa s ha , the Ukrainians under Stalin, the Jews under Hitler, the Cambodians under Pol Pot, and the Tutsi at the hands of the Hutu, the international community came up with a two-pronged response: on the one hand, in Rome it established the rules on international criminal responsibility of political and military leaders and, on the other, in Vienna it affirmed sovereignty as the responsibility to protect human rights , and the international community ’ s subsidiary responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity in the face of the national authorities ’ manifest failure to ensure their protection. Being at the intersection of international human rights law, international criminal law and international humanitarian law, the responsibility to protect is not a mere political catalyst for international action. It is a customary international rule which creates human rights protection obligations for States. Action aimed at their implementation is thus also subject to the international rule of law, including that of the Convention. Therefore, when implemented by Contracting Parties to the Convention, the responsibility to protect is subject to the oversight of this Court. Those who seek to enforce international law must be fully accountable.

42. While in Chiragov and Others the majority did not clarify whether the Azerbaijani Government had failed in their obligation to protect the human rights of their population of Armenian origin and had thus laid the grounds for remedial secession by the “ NKR ” and ultimately for the intervention of a foreign nation in the opening of a humanitarian corridor in Lachin, with its enduring negative consequences for the applicants, the majority in the present case omitted, once again, to consider the respondent State ’ s international obligation to prevent and stop the breaches of the human rights of the Armenian population of the Shahumyan region and the subsequent continuous human rights restrictions on the ceasefire line between its own ar my and the army of the “N KR ”. I regret that the majority failed in both cases to give a principled response to matters of this magnitude.

[1] . See, for example, E. Benvenisti, The International Law of Occupation ( Oxford: Oxford University Press, 2012), at p. 43; Y. Arai-Takahashi, The L aw of O ccupation: C ontinuity and C hange of I nternational H umanitarian L aw, and its I nteraction with I nternational H uman R ights L aw (Leiden: Martinus Nijhoff Publishers, 2009), at pp. 5-8; Y. Dinstein, The International Law of Belligerent Occupation (Cambridge: Cambridge University Press, 2009), at pp. 42-45, §§ 96-102; and A. Roberts, “ Transformative Military Occupation; Applying the Laws of War and Human Rights ” , American Journal of International Law , vol. 100 (2006), p. 580 , at pp. 585-86.

[2] . Most experts consulted by the ICRC in the context of the project on occupation and other forms of administration of foreign territory agreed that “boots on the ground” are needed for the establishment of occupation – see T. Ferraro, “ Expert Meeting: Occupation and O ther Forms of Administration of Foreign Territory ” (Geneva: ICRC, 2012), at pp. 10, 17 and 33; see also E. Benvenisti, cited avove, at p p . 43 et seq. ; V. Koutroulis, Le d é but et la fin de l’application du droit de l’occupation (Paris: É ditions Pedone, 2010) , at pp. 35-41.

[3] . T. Ferraro, cited above , at pp. 17 and 137, and Y. Dinstein, cited above, at p. 44, § 100.

[4] . J . -M . Henckaerts, and L. Doswald-Beck, Customary International Humanitarian Law , (Geneva/Cambridge: ICRC/Cambridge University Press, 2005 ).

[5] . See Chiragov and Others v. Armenia [GC], no. 13216/05, ECHR 2015 .

[6] . A . Nollkaemper and I . Plakokefalos ( eds ), Principles of Shared Responsibility in International Law – An Appraisal of the State of the Art , Cambridge, Cambridge University Press 2014, p. 278.

[7] . See M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011.

[8] . See Shamayev and Others v. Georgia and Russia , no. 36378/02, ECHR 2005 ‑ III.

[9] . See Furman v. Slovenia and Austria , no. 16608/09 , 5 February 2015.

[10] . See Rantsev v. Cyprus and Russia , no. 25965/04, ECHR 2010.

[11] . See IlaÅŸcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004 ‑ VII .

[12] . See Ivanţoc and Others v. Moldova and Russia , no. 23687/05 , 15 November 2011 .

[13] . See Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others , ECHR 2012 .

[14] . See Parastayev v. Russia and Georgia (dec.), no. 50514/06 , 13 December 2011.

[15] . Case Concerning Certain Phosphate Lands in Nauru ( Nauru v . Australia ) ( P reliminary O bjections ), Judgment, ICJ Reports 1992, p. 240.

[16] . See the concurring opinion of Judge Bonello in Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011 .

[17] . See the separate opinion of J udge Elaraby in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, ICJ Reports 2004 , p. 136 .

[18] . See the concurring opinion of Judge Loucaides in Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004 ‑ II .

[19] . Y . Dinstein, The International Law of Belligerent Occupation , Cambridge , Cambridge University Press, 2009, p. 44 .

[20] . See Al-Skeini and Others (Respondents) v. Secretary of State for Defence (Appellant) ; Al ‑ Skeini and Others (Appellants) v. Secretary of State for Defence (Respondent) (Consolidated Appeals) , [2007] UKHL 26, United Kingdom: House of Lords (Judicial Committee), 13 June 2007.

[21] . R. Wilde, “Compliance with human rights norms extraterritorially: ‘human rights imperialism’?” in L. Boisson de Chazournes and M.G. Kohen ( eds ), International Law and the Quest for its Implementation , Brill, 2010, p. 328.

[22] . S ee the reference to the motion for a recommendation of the Parliamentary Assembly of the Council of Europe “ ‘ Lawless areas ’ within the territory of Council of Europe member States” cited by Judge Kovler in Ilaşcu and Others .

[23] . See Azemi v. Serbia (dec.), no.11209/09, 5 November 2013.

[24] . See Stephens v. Cyprus, Turkey and the United Nations (dec.), no. 45267/06 , 11 December 2008 .

[25] . I refer to the rule formulated in the Report of the International Commission on Intervention and State Sovereignty (ICISS), “The Responsibility to Protect”, International Development Research Centre, Ottawa, 2001.

[26] . I refer here to the Organi z ation for Security and Co-operation in Europe (OSCE) Minsk Group’s Co-Chairs ’ last articulation of the Basic Principles, of November 2007, in Madrid.

[27] . I have already referred to this censurable way of proceeding in a case where not as many people were potentially interested in the outcome of the case (see my separate opinion appended to Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, ECHR 2013).

[28] . See Pad and Others v. Turkey (dec.), no. 60167/00, § 69, 28 June 2007, and International Law Commission (ILC), Third r eport on d iplomatic p r otection (A/CN.4/523), 2002, §§ 82-83.

[29] . See Cyprus v. Turkey , cited above, § 324. Moreover, the Court concluded that there had been a violation of Article 13 of the Convention by reason of the failure to provide Greek Cypriots not residing in northern Cyprus with any remedies to contest interferences with their rights under Article 8 of the Convention and Article 1 of Protocol No. 1. To reach such a conclusion, the Court proceeded with a thorough analysis of the constitutional framework of the “TRNC”. That did not happen in the present case. As shown above, a similar analysis in the present case would have demonstrated that no constitutional restraints existed for restitution of property claims by citizens of Armenian origin.

[30] . See, for example, Sardinas Albo v. Italy (dec.), no. 56271/00, ECHR 2004-I, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX.

[31] . See A nnex 10 to the applicant’s observations dated 31 May 2010, which contains the applicant’s statement dated 10 July 2006.

[32] . See A nnex 32 to the Government’s submissions of 3 July 2012.

[33] . See , in the technical passport , the erroneous reference to “The State Republic – Azerbaijan SSR” instead of the correct reference to “The Republic of Azerbaijan”.

[34] . See , in the technical passport , the erroneous reference to the “Shahumyan district” instead of the correct reference to the “Goranboy district”.

[35] . Compare Mr Ghulyan ’s statement in A nnex 13, dated 15 May 2010, the applicant’s observations dated 31 May 2010, and paragraph 5 of Mrs Kachatryan’s statement.

[36] . See A nnex 34.

[37] . See A nnex 12 to the applicant’s observations dated 31 May 2010, § 7, and A nnex 14 to the applicant’s observations of the same date, § 11.

[38] . See A nnex 12 to the applicant’s observations dated 31 May 2010, § 8.

[39] . See Elli Poluhas D ö dsbo v. Sweden , no. 61564/00, § 24, ECHR 2006-I.

[40] . Compare and contrast paragraph 257 of the present judgment with the statement in Loizidou v. Turkey (merits), 18 December 1996, § 66, Reports of Judgments and Decisions 1996 ‑ VI , where the Court found, when interpreting the concept of “home” in Article 8: “Nor can that term be interpreted to cover an area of a State where one has grown up and where the family has its roots but where one no longer lives.”

[41] . See P rinciple 15.7 of the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons , invoked in the judgment. The considerable degree of the Court’s flexibility enjoyed by the Court can be seen in paragraphs 140, last sentence, and 141 of the present judgment.

[42] . See the various testimonies of Azerbaijani officers in Annexes 2 to 8 to the submissions of the Government of 3 July 2012.

[43] . In Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 330 and 392, ECHR 2004-VII, the Court assessed the effective control until the date of delivery of the Grand Chamber judgment. This approach was confirmed in Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others , §§ 109 and 111, ECHR 2012 .

[44] . See Šilih v. Slovenia [GC], no. 71463/01, §§ 159-63, 9 April 2009. For my interpretation of the Court’s ratione temporis jurisdiction, see my separate opinion in Mocanu and Others v. Romania [GC], nos. 10865/ 09 and 2 others, ECHR 2014.

[45] . Rule 33 of the Rules of Court provides for the possibility of restricting public access to certain documents in the interests of public order or national security. It omits any rule on the restriction of disclosure of evidence to one party. The General Instruction for the Registry on the treatment of internal secret documents approved by the President of the Court in March 2002 does not apply to the evidence provided by the parties either. Fina lly, the Practice Direction on written p leadings issued by the President of the Court in November 2003 and amended in 2008 and 2014 (“Secret documents should be filed by registered post”) is manifestly insufficient.

[46] . See Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004 ‑ II .

[47] . See the letter of 27 August 2013 from the Azerbaijani Mini stry of Defence, Annex 3, and § 18 of the respondent State’s submissions of 18 September 2013. Here again, without a rule for the protection of confidential evidence, the respondent party cannot be blamed for not having provided the Court with the sensitive evidence.

[48] . See Oruk v. Turkey , no. 33647/04, 4 February 2014.

[49] . This principle was set out in Varnava and Others v. Turkey ([GC], nos. 16064/90 and 8 others , § 185, ECHR 2009) with regard to Article 2 of the Convention, but is applicable to all Convention provisions: “Article 2 must be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict.” This interpretation results from the need to avoid fragmentation of international law, since the “internal rules” of the Court (the Convention and its P rotocols) must be applied coherently with “external rules” (see on this topic my separate opinion appended to Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC] , no. 47848/08, ECHR 2014 ). If international humanitarian law provides a higher degree of protection than the Convention, the States P arties to the Convention cannot invoke it in order to avoid compliance with international humanitarian law (Article 53 of the Convention). This provision has major potential for the enforcement of international humanitarian law by this Court, which is in line with Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties. Unfortunately, in the present case, the majority admitted the applicability of international humanitarian law but concluded that it did not provide a “conclusive answer” ( see paragraph 232 of the present judgment ).

[50] . Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide and Article 89 of the Protocol a dditional I to the Geneva Conventions. See also on jus cogens crimes, Human Rights Committee, General Comment No. 29, States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11 (2001), § 11 (“States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence”) ; International Law Commission (ILC) D raft a rticles on Responsibility of State s for Internationally Wrongful Acts, with commentaries, Article 26, p. 85 (“Those peremptory norms that are clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination”) ; and Rules 156 to 1 61 in the ICRC Study on Rules of customary international humanitarian law , in J.-M. Hen c kaerts and L. Doswald-Beck, Customary International Humanitarian Law , v olume I, Geneva, 2005 .

[51] . UN General Assembly Resolution 103 (I), on Persecution and Discrimination, 19 November 1946.

[52] . A notable example is General Assembly Resolution ES-8/2 on the question of Namibia ( 14 September 1981 , A/RES/ES-8/2), which “calls upon Member States, specialized agencies and other international organizations to render increased and sustained support and material, financial, military and other assistance to the South West Africa People ’ s Organization to enable it to intensify its struggle for the liberation of Namibia”.

[53] . ICISS, “The Responsibility to Protect”, cited above, 2001, §§ 2.24, 4.19-4.36 (“emerging guiding principle”). In the Commission’s view, military intervention for human protection purposes is justified in order to halt or avert “large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape” (§ 4.1).

[54] . “ A m ore s ecure w orld: o ur s hared r esponsibility” , 2 December 2004, A/59/565, §§ 201-08 (“ the emerging norm of collective international responsibility to protect”). In the High-level Panel’s view, “ [t] here is a growing recognition that the issue is not the ‘right to intervene’ of any State, but the ‘responsibility to protect’ of every State when it comes to people suffering from avoidable catastrophe – mass murder and rape, ethnic cleansing by forcible expulsion and terror, and deliberate starvation and exposure to disease” (§ 201).

[55] . It should be noted that Resolution 1674 contains the first official reference by the Security Council to the responsibility to protect and that this reference is made in connection with the protection of civilians in armed conflict. Thus, the responsibility to protect and the protection of civilians have mutually reinforced their respective legal dimensions. The protection of civilians in armed conflict was first promoted by the Security Council under a comprehensive package of measures approved by Resolutions 1265 (1999), 17 September 1999 , S/RES/1265 (1999) , and 1296 (2000) , 19 April 2000 , S/RES/1296 (2000). This latter Resolution emphasised , for the first time, the Security Council’s responsibility to take “appropriate steps” for the protection of civilians during armed conflict, since “the deliberate targeting of civilian populations or other protected persons and the committing of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security”. The same position of principle was affirmed in Resolution 1894 (2009) ( 11 November 2009 , S/RES/1894 ( 2009 ) ), which reiterated the Security Council’s “willingness to respond to situations of armed conflict where civilians are being targeted or humanitarian assistance to civilians is being deliberately obstructed, including through the consideration of appropriate measures”.

[56] . These less inclusive expressions were used in the ICISS Report (“ The Responsibility to Protect ”), cited above, “A m ore s ecure w orld”, cited above, and “In Larger Freedom: Towards Development, Security and Human Rights for All”, Report of the Secretary-General, 21 March 2005, A/59/2005 . The word “populations” avoided the exclusion of non-civilians from the am bit of beneficiaries of the responsibility to protect. The emphasis on “its populations” envisaged the inclusion of all permanent or temporary residents within the national territory and the territories over which the State had effective control.

[57] . “ Implementing the r esponsibility to p rotect”: Report of the Secretary-General , 12 January 2009, A/63/677, § 3. As to the legal nature of the obligation of the international community, see ICISS Report, cited above, § 2.31; “A m ore s ecure w orld”, cited above, §§ 201-02; and General Assembly Resolution 60/1, cited above.

[58] . For example, Resolution 1706 on the situation in Darfur, 31 August 2006, S/RES/1706 ( 2006 ); Resolution 2014 on the situation in Yemen, 21 October 2011, S/RES/2014 ( 2011 ); Resolution 1970, 26 February 2011 , S/RES/1970 (2011) , Resolution 1973, 17 March 2011 , S/RES/1973 ( 2011 ), Resolution 2016, 27 October 2011 , S/RES/2016 ( 2011 ), and Resolution 2040, 12 March 2012 , S/RES/2040 (2012 ) on the situation in Libya ; Resolution 1975 on the situation in Côte d’Ivoire , 30 March 2011 , S/RES/1975 ( 2011 ) ; and Resolution 2085 on the situation in Mali, 20 December 2011, S/RES/2085 ( 2011 ) .

[59] . For example, Resolution 66/176, of 23 February 2011 (A/RES/66/176), and Resolution 66/253, of 21 February 2012 (A/RES/66/253).

[60] . In “Larger Freedom: Towards Development, Security and Human Rights for All”, cited above, § 132; “Implementing the r esponsibility to p r otect”: Report of the Secretary ‑ General, cited above ; “Early Warning, Assessment and the Responsibility to Protect”: Report of the Secretary-General, 14 July 2010, A/64/864; “The r ole of r egional and s ub-regional a rrangements in i mplementing the r esponsibility to p rotect”: Report of the Secretary-General, 28 June 2011, A/65/877-S/2011/393; “Responsibility to p rotect: t imely and decisive r es ponse”: Report of the Secretary ‑ General, 25 July 2012, A/66/874-S/2012/578; “Responsibility to p rotect: State r esponsibility and prevention”: Report of the Secretary- General, 9 July 2013 , A/67/929-S/2013/399 ; “Fulfilling o ur c ollective r esponsibility: i nternational a ssistance and the r esponsibility to p rotect”: Report of the Secretary-General, 11 July 2014, A/68/947-S/2014/449.

[61] . In addition, two references make it clear that, according to the Secretary-General, the UN system concurs with regional and individual enforcement initiatives: “In a rapidly unfolding emergency situation, the United Nations, regional, subregional and national decision makers must remain focused on saving lives through ‘timely and decisive’ action” ( § 50), and “this will make it more difficult for States or groups of States to claim that they need to act unilaterally or outside of United Nations channels, rules and procedures to respond to emergencies relating to the respons ibility to protect.” (§ 66).

[62] . On this particular situation , see International Commission of Jurists, The events in East Pakistan, 1971 , Geneva, 1972.

[63] . At this juncture, it is important to note that a modern conception of customary international law, especially in such domains where there is a lack of State practice, like those of State secession, admits the relevance of non-binding resolutions like those of the General Assembly, for the formation of a customary rule ( Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion , ICJ Reports 1996, §§ 70-73).

[64] . African Union, Common African Position on the P roposed Reform of the United Nations ( The Ezulwini Consensus ) , Executive Council , 7 th Extraordinary Session, 7 ‑ 8 March 2005 (Ext./EX.CL./2(VII)).

[65] . On the United Nations reaction to the Rwanda event s, see the UN Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda (Carlsson Report), 15 December 1999 , S/1999/1257.

[66] . Security Council Resolution 788 (1992), 19 November 1992 , S/RES/788 (1992), and Resolution 1497 (2003) , 1 August 2003 , S/RES/1497 (2003), both on the situation i n Liberia, and Resolution 1132 (1997), of 8 October 1997 (S/R ES /1132/1997 (1997)), and Resolution 1315 (2000) on the situation in Sierra Leone, 14 August 2000 , S/RES/1315 (2000).

[67] . Security Council Resolution 1545 (2004) , S/RES/1545 (2004 ), which paid tribute to the African Union intervention, encouraged it to “maintain a strong presence in Burundi to accompany the efforts of the Burundian parties” and authorised the deployment of the United Nations Operation in Burundi (ONUB) for an initial period of six months.

[68] . Security Council Resolution 1234 (1999) , 9 April 1999 , S/RES/1234 (1999), which neither endorses nor condemns the operation.

[69] . C.G. Fenwick, “Intervention: I ndividual and C ollective”, American Journal of International Law , vol. 39 (1945), pp. 650-51. That question had already been addressed by the founding fathers of international law: H. Grotius, De jure belli ac pacis, l ibr i tres , 2.2.25; F. de Vitoria, De jure belli , qt. 3, A rt icle 5, § 15; and M. de Vattel, Le droit des gens ou les principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des s ouverains , book II, chapter IV, § 56.

[70] . H. Lauterpacht, “The Grotian Tradition in International Law ”, The British Year Book of International Law , vol. 23 , (1946), p. 46.

[71] . In the twentieth century, most notably: A. Rougier, “La théorie de l’intervention d’humanité”, Revue g énérale de d roit i nternational p ublic , 17 (1910), pp. 468-526; E.C. Stowell, Intervention in International Law , Washington, 1921; T.M. Franck and N.S. Rodley, “After Bangladesh: the L aw of H umanitarian I ntervention by M ilitary F orce”, American Journal of International Law , vol. 67 (1973), pp. 275-303; J.-P.L. Fonteyne, “The C ustomary I nternational L aw D octrine of H umanitarian I ntervention: I ts C urrent V alidity under the UN Charter”, California Western International Law Journal , vol. 4 (1974), pp. 203-70; G. Klintworth, Vietnam’s Intervention in Cambodia in International Law , Canberra, 1989; B.M. Benjamin, “Unilateral Humanitarian Intervention: Legalizing the Use of Force to Prevent Human Rights Atrocities”, Fordham International Law Journal , vol. 16 (1992), pp. 120-58; Torrelli, “De l’assistance à l’ingerence humanitaires”, International Review of the Red Cross , vol. 74 (1992), pp. 238-58; I. Forbes and M. Hoffman (eds), Political Theory, International Relations and the Ethics of Intervention , London, 1993; F.R. Téson, Humanitarian intervention: an inquiry into law and morality , second edition, Irvington ‑ On ‑ Hudson, 1997; A. Cassesse, “ Ex inuria ius oritur : Are W e M oving towards I nternational L egitimation of F orcible H umanitarian C ountermeasures in W orld C ommunity”, European Journal of International Law , vol. 10 (1999), pp. 23-30; Independent International Commission on Kosovo, The Kosovo Report , Oxford University Press, 2000, pp. 167-75; N.J. Wheeler, “Legitimating H umanitarian I ntervention: P rinciples and P rocedures”, Melbourne Journal of International Law , vol. 2 (2001), pp. 550-67; Saving Strangers: Humanitarian Intervention in International Society , Oxford, 2002; F. Terry, Condemned to Repeat? The Paradox of Humanitarian Action , New York, 2002; B.D. Lepard, Rethinking Humanitarian Intervention , Penn State University Press, 2002; J.M. Welsh, Humanitarian Intervention and International Relations , Oxford, 2006; and R. Thakur, “Humanitarian Intervention”, in T.G. Weiss and S. Daws (eds), The Oxford Handbook on the United Nations , Oxford, 2007, pp. 387-403.

[72] . Among others: F.M. Deng et al. , Sovereignty as Responsibility: Conflict Management in Africa , Washington, 1996; T.G. Weiss, Military-Civilian Interactions: Humanitarian Crises and the Responsibility to Protect , Lanham, 2005; O. Jütersonke and K. Krause (eds ), From Rights to R esponsibilities: R ethinking I nterventions for H umanitarian P urposes , Geneva, 2006; Société Française pour le Droit International (ed.), La Responsabilité de Protéger , Paris, 2008; G. Evans, The Responsibility to Protect: Ending M ass A trocity C rimes O nce and for A ll , Washington, 2008; L. Arbour, “The responsibility to protect as a duty of care in international law and practice”, Review of International Studies , vol. 34, pp. 445-58; A.J. Bellami, Responsibility to Protect , London, 2009 , and Global Politics and the Responsibility to Protect: From Words to Deeds , New York, 2010; D. Kuwali, The Responsibility to Protect, Implementation of Article 4 (h) Intervention , Leiden, 2011; E.G. Ferris, The Politics of Protection: The Limits of Humanitarian Action , Washington, 2011; J. Hoffmann and A. Nollkaemper (eds), Responsibility to Protect From Principle to Practice , Amsterdam, 2012; W.A. Knight and F. Egerton (eds), The Routledge Handbook of the Responsibility to Protect , New York, 2012; A. Francis et al. (eds), Norms of Protection, Responsibility to Protect, Protection of Civilians and their Interaction , Paris, 2012; J. Genser and I. Cotler (eds), The Responsibility to Protect : T he Promise of Stopping Mass Atrocities in our Time , Oxford, 2012; G. Zyberi (ed.), An Institutional Approach to the Responsibility to Protect , Cambridge, 2013; N. Hajjami, La Responsabilité de Protéger , Brussels, 2013; and the Sphere Project, Humanitarian Charter and Minimum Standards in Humanitarian Response , 2011, and the Core Humanitarian Standard on Quality and Accountability , 2014.

[73] . The reserved domain is an evolving concept, defined negatively by the lack of international norms regulating a certain issue and not positively by its inclusion in a closed catalogue of issues ( Aegean Sea Continental Shelf , Judgment, ICJ Reports 1978, § 59; and Institute of International Law, 1954 Resolution on La détermination du domaine réservé et ses effets ).

[74] . See Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) , Judgment, ICJ Reports 1970, §§ 33-34; and Institute of International Law, Article 1 of the 1989 Resolution on The Protection of Human Rights and the Principle of Non- i ntervention in Internal Affairs of States.

[75] . Application of the Convention on the P revention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro ) , Judgment, ICJ Reports 2007, § 430 (“ the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible ”); Barcelona Traction, Light and Power Company, Limited , cited above, § 34; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide , Advisory Opinion , ICJ Reports 1951; and Resolution ICC-ASP/5/Res.3, adopted at the 7th plenary meeting on 1 December 2006, by consensus. As the International Court of Justice ( ICJ ) put it, when referring to genocide, States must cooperate “in order to liberate m ankind from such an odious scourge”. The obligation to prevent and prosecute war crimes resulted already from the Geneva treaty and customary law. The obligation to do likewise regarding crimes against humanity is a direct consequence of the Rome Statute. Ethnic cleansing may be criminally punished both as a war crime or a crime against humanity.

[76] . See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion, ICJ Reports 2004, §§ 155-58, and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) , Judgment, ICJ Reports 2005 , § 178 . Most of the universally ratified Geneva treaty law codifies customary law, which means that every State, whether or not it is party to the specific conflict, is obliged to ensure respect for these rules and to take action, jointly or individually, in order to protect civilians in armed conflict. Admittedly, this obligation requires States to ensure that no other State commits genocide, war crimes or crimes against humanity. The action undertaken must evidently be in accordance with the State’s obligations under the UN Charter (Article 109).

[77] . Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America) ( Merits ) , Judgment, ICJ Reports 1986, §§ 109-10; Democratic Republic of the Congo v. Uganda , cited above, §§ 178-80; and Bosnia and Herzegovina v. Serbia and Montenegro , cited above, §§ 399-406; see also Article 8 of International Law Commission’s Draft a rticles on Responsibility of State s for Internationally Wrongful Acts . The extent of the effective - control test will not be dealt with in this opinion.

[78] . As the ILC explained, Article 48 § 1 (b) “intends to give effect to the statement by ICJ in the Barcelona Traction case, where the Court drew ‘an essential distinction’ between obligations owed to pa rticular States and those owed ‘towards the international community as a whole’. With regard to the latter, the Court went on to state that ‘[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes ’” (see ILC Draft a rticles on Responsibility of States for Internationally Wrongful Acts with commentaries, cited above, p. 127). These Draft a rticles apply to breaches of inter-State obligations of a bilateral character, as well as to international responsibility for breaches of State obligations owed to an individual, groups of individuals or the international community as a whole.

[79] . Both General Assembly Resolution 2840 (1971) on the question of the punishment of war criminals and of persons who have committed crimes against humanity, 1 8 December 1971, A/RES/2840 (XXVI), a nd its Resolution 3074 (1973) on Principles of international co-operation in the detection, arrest, extradition and punishm ent of persons guilty of war crimes and crimes against humanity , 3 December 1973, A/RES/3074 (XXVIII), underscore the States’ obligation to take steps for the arrest, extradition, trial and punishment of these criminals .

[80] . H. Lauterpacht, cited above, p. 46.

[81] . This should not be confused with a right to a State-building, pro - democracy intervention, aimed at expanding a certain model of political governance (see Nicaragua v. the United States of America , cited above, § 209). The ICJ admitted humanitarian intervention to “prevent and alleviate human suffering, and to protect life and health and to ensure respect for the human being without discrimination to all in need” in Nicaragua, and not merely to the contras and their dependants (§ 243). Nevertheless, it is obviously unrealistic to suppose that it will be possible to eradicate a policy of systematic human rights abuse without some change in terms of the political regime of the target State.

[82] . This should also not be confused with a right to intervention based on a general negative assessment of the human rights situation in a particular country (contrast with Nicaragua v. the United States of America , cited above, § 268).There must be an element of systematicity in the infringement of human rights (see on this systematic element, my separate opinion in Mocanu and Others , cited above). Such an element is present in the types of crimes which trigger the responsibility to protect.

[83] . The 2005 World Summit Outcome Document, § 139. The clause urging the five permanent m embers of the Security Council not to veto action aimed at preventing or stopping genocide or ethnic cleansing was not included in the final version. The ICISS report (“The Responsibility to Protect”, cited above, § 6.21), the High-level Panel report (“A m ore s ecure w orld”, cited above, § 256) and the Secretary-General (“Implementing the r esponsibility to p rotect”, cited above, § 61) have voiced their agreement with that restriction of the veto power.

[84] . General Assembly Resolution 377 (V) A, 3 November 1950, or the “Uniting for Peace ” Resolution (A/RES/377 (V) , see also A/1775 (1951)). On the role of this Resolution, see ICISS, “The Responsibility to Protect”, cited above, § 6.30, Independent International Commission on Kosovo, “The Kosovo Report”, cited above, p. 166, and the Secretary- General’s report, “Implementing the r esponsibil ity to protect”, cited above, § 56. In fact, the General Assembly has already made significant use of this Resolution, such as by calling upon all States and authorities “to continue to lend assistance to the United Nations action in Korea”, which meant military assis tance (Resolution 498 (V), 5 November 1951 , A/RES/498 (V)), “establishing” peacekeeping operations in Egypt (Resolution 1000 (ES-I), 5 November 1956 , A/RES/1000 (ES-I)), “requesting” the Secretary-General “to take vigorous action … to assist the Central Government of the Congo in the restoration and maintenance of law and order throughout the territory of the Republic of Congo”, thus confirming the mandate of the UN Operation in the Congo (Resolution 1474 (ES-IV), 16 September 1960 , A/RES/1474 (ES-IV)) , and condemning South Africa for the occupation of Namibia and calling for foreign military assistance to the liberation struggle (Resolution ES-8/2, cited above). The so-called “Chapter VI ½ measures” relied on the target State’s consent, but neither the text nor the spirit of Resolution 377 excludes its use in order to recommend the use of force in situations of breach of the peace even where consent is lacking.

[85] . ICISS, “The Responsibility to Protect”, cited above, §§ 6.31-6.35 (“there are recent cases when approval has been sought ex post facto , or after the event (Liberia and Sierra Leone), and there may be certain leeway for future action in this regard”), “A m ore s ecure w orld”, cited above, § 272, Report of the Security Council Ad Hoc Working Group on conflict prevention and resolution in Africa, of 30 December 2005 (S/2005/833), § 10, and “Fourth report on responsibility of international organizations” by the Special Rapporteur Giorgio Gaja, § 48 (A/CN.4/564). The Secretary-General’s report, “Implementing the r esponsibility to p rotect”, cited above, § 56, referred to the use of force by regional or subregional arrangements “with the prior authorization of the S ecurity Council”. The World Summit Outcome Document envisages cooperation between the Security Council and the “appropriate” regional organisation, meaning one from within the geographical area of the conflict. But practice has shown that the Security Council may pick another choice. For example, Resolution 1484 (2003), of 30 May 2003, (S/RES/1484/2003) , authorised the European Union-led Operation Artemis in the Democratic Republic of the Congo during the Ituri conflict.

[86] . The World Summit Outcome Document did not exclude these possibilities. As explained above, they derive not only from the jus cogens nature of the crimes at stake, but also from the erga omnes nature of the human rights protection obligation.

[87] . Nicaragua v. the United States of America , cited above, § 176, and ILC Draft a rticles on Responsibility of States for Internationally Wrongful Acts, cited above, p. 85: “But in applying some peremptory norms the consent of a particular State may be relevant. For example, a State may validly consent to a foreign military presence on its territory for a lawful purpose. Determining in which circumstances consent has been validly given is again a matter for other rules of international law and not for the secondary rules of State responsibility.”

[88] . Article 3 § 1 of the 1977 Protocol a dditional II to the Geneva Conventions.

[89] . Article 13 of the 1977 Protocol a dditional II to the Geneva Conventions and Article 57 of the 1977 Protocol a dditional I to the Geneva Conventions, and Rules 1 to 10 and 15 of the ICRC Study on Rules of customary international humanitarian law (cited above) .

[90] . Article 52 of the 1977 Protocol a dditional I to the Geneva Conventions, Article 14 of the 1977 Protocol a dditional II to the Geneva Convention s , Article 53 of the 1949 Fourth Geneva Convention relative to the protection of civilian persons in time of war, Article 6 (b) of the Charter of the International Military Tribunal , Articles 46 and 56 of the Hague Regulations Respecting the Laws and Customs of War on Land, and Rules 51 and 52 of the ICRC Study on Rules of customary international humanitarian law (cited above) .

[91] . Article 17 of the 1977 Protocol a dditional II to the Geneva Conventions, Rules 129 and 130 of the ICRC Study on Rules of customary international humanitarian law, and Principle 6 of the Guiding principles on internal displacement (E/CN.4/1/1998/53/Add.2), 11 February 1998.

[92] . Article 49 of the Fourth Geneva Convention and Rule 132 of the ICRC Study on Rules of customary international humanitarian law (cited above) .

[93] . Article 1 of the Montevideo Convention on the Rights and Duties of States (“the Montevideo Convention”) , 26 December 1933, 165 LNTS 19 .

[94] . See my separate opinion appended to Chiragov and Others , cited above .

[95] . On the principle of non-intervention, see Article 15 § 8 of the Covenant of the League of Nations, Article 8 of the 1933 Montevideo Convention on Rights and Duties of States, Article 1 of its 1936 Additional Protocol o n Non-Intervention, and Article 3 § 2 of Protocol II a dditional to the Geneva Convention s . In the UN practice, United Nations General Assembly Resolution 36/103, 9 December 1981, A/RES/36/103 , approving the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, Resolution 2625 (XXV), 24 October 1970, A/8082 (1970) , containing the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the UN Charter, and Resolution 2131 (XX), 21 December 1965, which adopted the Declaration on the Inadmissibility of Intervention and Interference in the Domestic Affairs of States, and Article 4 of the 1949 ILC Draft Declaration on Rights and Du ties of States. In the ICJ case ‑ law, see Nicaragua v. the United States of America, cited above, § 246, and Corfu Channel case , Judgment, ICJ Reports 1949, from where the citation in the text is taken.

[96] . H. Grotius , op . cit . , 2.2.25.

[97] . Article 11 of the Montevideo Convention , op. cit. , paragraph 5 of the Declaration on the Strengthening of International Security adopted by the General Assembly Resolution 2734 (XXV), 16 December 1970 , A/RES/25/2734, and Arti cle 5 (3) of the General Assembly Resolution 3314 (XXIX) on the definition of the crime of aggression, 14 December 1974, A/RES/3314 (XXIX).

[98] . For the prohibition on recognising as a State a secessionist territory which is the result of the use of unlawful force by a third State, see the case of the “Turkish Republic of Northern Cyprus” after Turkey’s invasion of Cyprus (Security Council Resolutions 541 (1983), 18 November 1983 , S/RES/541 (1983), and 550 (1984), 11 May 1984 , S/RES/550 (1984).

[99] . ILC Draft a rticles on Responsibility of States for Internationally Wrongful Acts, cited above, p. 74.

[100] . See Šilih , cited above, §§ 159-63.

[101] . See DoÄŸan and Others v. Turkey , nos. 8803/02 and 14 others , ECHR 2004-VI, paragraph 234 of the present judgment.

[102] . See Ilaşcu and Others , cited above, § 346.

[103] . It is significant that, in paragraph 226 of the present judgment , the majority consider it appropriate to examine the applicant’s complaint with a view to establishing whether the Government have complied with their “positive obligations” under Article 1 of Protocol No. 1, but in the following text never refer again to this expression, using instead the expression “alternative measures”.