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Biju
P R
Author,
Teacher, Blogger
Assistant
Professor of Political Science
Government
Brennen College
Thalassery
Kerala,
India
My Books
1. Political Internet: State and Politics in the Age of Social Media,
(Routledge 2017), Amazon https://www.amazon.in/ Political- InternetStatePoliticsSocialebo ok/dp/B01M5K3SCU?_encoding= UTF8&qid=&ref_=tmm_kin_swatch_ 0&sr=
2. Intimate Speakers: Why Introverted and Socially Ostracized Citizens Use Social Media, (Fingerprint! 2017)
Amazon: http://www.amazon.in/dp/ 8175994290/ref=sr_1_2?s=books& ie=UTF8&qid=1487261127&sr=1-2& keywords=biju+p+r
1. Political Internet: State and Politics in the Age of Social Media,
(Routledge 2017), Amazon https://www.amazon.in/
2. Intimate Speakers: Why Introverted and Socially Ostracized Citizens Use Social Media, (Fingerprint! 2017)
Amazon: http://www.amazon.in/dp/
It
is often during armed conflicts that human rights are infringed upon the most.
Therefore, over the years, experts have focused much attention on the
formulation of instruments aimed at alleviating human suffering during war and
conflict. Today, three areas of modern international law attempt to provide
protection to victims of war: human rights law, refugee law and humanitarian
law. While these fields are closely linked, they need to be distinguished
systematically. Refugee law has been discussed in Part IV. This chapter focuses
on international humanitarian law, which differs from human rights law in that
it concentrates on specified conflict-related acts and does not give rise to
individual claims.
Humanitarian
law applies in armed conflict, restricting the actions of warring parties,
providing for protection and humane treatment of persons who are not taking
part or can no longer take part in the hostilities. Like international human
rights law, humanitarian law protects the lives and dignity of individuals,
prohibiting torture or cruel treatment, prescribing rights for persons subject
to a criminal justice procedure, prohibiting discrimination and setting out
provisions for the protection of women and children. In addition, humanitarian
law deals with the conduct of hostilities, combatant and prisoner of war status
and the protection of the Red Cross, Red Crescent and Red Crystal emblems.
A
distinction is generally made between the law designed to protect military and
civilian victims of armed conflicts on the one hand, and the laws governing the
way war is waged, on the other.
The
international law of armed conflicts, of which international humanitarian law
is a part, was formulated much earlier than international human rights law.
Important phases in the development of the humanitarian law of armed conflicts
were the (diplomatic) Conferences of Paris (1856), Geneva (1864), St.
Petersburg (1868), Brussels (1874), The Hague (1899, 1907) and Geneva (1949 and
1977).
The
international law instruments adopted at these conferences form the basis of
modern hu471 Human Rights and Armed Conflict manitarian law, the most relevant
being the four Geneva Conventions (1949) and their two Additional Protocols
(1977). The principal purpose of the four Geneva Conventions was to set out
humanitarian rules to be followed in international armed conflict. The
Convention relative to the Protection of Civilian Persons in Time of War (the
Fourth Geneva Convention) lists a number of actions which the parties must
refrain from in all circumstances. These include actions that are recognised as
violating the most basic human rights, such as violence endangering life,
torture and physical or moral coercion, as well as non-compliance with many due
process rights. The Convention forbids in the strongest terms the utilisation
of human shields. It also provides that civilians may not be compelled to work
for an occupying power unless certain strict conditions are met (Article 51).
The Additional Protocols to the Geneva Conventions, which were adopted by the
Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law applicable in Armed Conflicts (1977), are major developments
in this context.
The
International Committee of the Red Cross (ICRC) monitors compliance with the
Geneva Conventions and the Protocols by, inter alia, visiting places of
detention, receiving complaints of breaches of humanitarian law and addressing
concerns to governments.
In
recent years humanitarian intervention, the maintenance of peace and the
protection of collective security, as well as the protection of cultural
property, have received increased attention in relation to humanitarian and
human rights law. The last mentioned issue has a place in Additional Protocol I
to the Geneva Conventions in Chapter III dealing with civilian objects.
Other
recent international efforts to lessen human suffering resulting from conflict
is the fight against the widespread use of anti-personnel mines and small arms
and the efforts to curb easy funding such as the trade in ‘conflict diamonds’
and the use of drug revenues to finance conflicts.
A.
Relationship between human rights and humanitarian law
The
relationship between human rights law and the law of armed conflicts is easily
explained in a schematic way (see the diagram below). Four different situations
may apply to a country at a specific point in time. A distinct set of
international standards is applicable to each of the four situations
identified. The diagram shows the scope of application of the two areas of
international law.
The
level of protection afforded by human rights law is the highest in ‘normal’
situations, i.e., in times of peace, and may diminish during times of
non-international armed conflict or international conflict.
International
humanitarian law is only applicable when there is a non-international armed
conflict (common Article 3 to the Geneva Conventions and Protocol II apply) and
an international armed conflict (the four Geneva Conventions and Protocol I
apply).
International
humanitarian law is specifically designed to regulate the contact of parties to
an armed conflict. Its provisions already take into account the principles of
humanity, military necessity and proportionality and therefore do not allow for
derogation. These norms that apply in all circumstances are spelled out in the
common Article 3, included in each of the Geneva Conventions, which reads:
In
the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict
shall be bound to apply, as a minimum, the following provisions:
1.
Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria. To this
end the following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the above-mentioned persons:
a.
Violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
b.
Taking of hostages;
c.
Outrages upon personal dignity, in particular humiliating and degrading
treatment;
d.
The passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognised as indispensable by civilised peoples.
2.
The wounded and sick shall be collected and cared for. An impartial
humanitarian body, such as the International Committee of the Red Cross, may
offer its services to the Parties to the conflict. [...] While human rights law
provides for derogation of some rights in times of emergency, it is important
to note that several human rights may not be derogated from under any
circumstance (see I§2.B).
1. INTERNATIONAL ARMED CONFLICT
Broadly
speaking, international armed conflicts involve different states whereas
noninternational armed conflicts involve government and rebel forces within the
territory of one state. This distinction is not always applicable. In the wake
of the emergence of numerous new states - as a result of sometimes violent
decolonisation - the international community recognised that certain ‘internal’
conflicts should be treated as if they were international armed conflicts. As a
result, ‘wars of national liberation’ were included under Protocol I of the
Geneva Conventions. This means that participants in such wars are granted the
status of prisoners of war if captured (see below).
Protocol
I to the 1949 Geneva Conventions (1977) relates to international armed
conflicts. The international law regarding these types of conflicts is less
related to the human rights discussed in this handbook. Nevertheless, Article
75 of Protocol I stipulates certain rights for individuals while Article 1
refers explicitly to the Martens clause (introduced at the 1899 Hague Peace
Conference). The Martens clause states that in cases which are not covered by
the above-mentioned Conventions and their Protocols, civilians and combatants
‘remain under the protection and authority of the principles of international
law derived from established custom, from the principles of humanity and from
the dictates of public conscience’. It should be noted that expressions such as
‘principles of humanity’ and ‘public conscience’ have not yet been defined in
terms of human rights.
Article
75 of Protocol I regulates the rights of individuals who find themselves in the
power of a party to a conflict of which they are not subjects. Article 75 could
be regarded as a mini-convention on the protection of basic human rights during
international armed conflicts. In fact, the article’s authors carefully studied
all the material provisions of the ICCPR and distilled from it the regulations
they considered most important and which can be expected to be observed, even
in times of war. Paragraph 1 of Article 75 contains the same prohibition of
discrimination as Article 2 ICCPR. Paragraph 2 of Article 75 reads:
The
following acts are and shall remain prohibited at any time and in any place
whatsoever, whether committed by civilian or military agents:
(a)
Violence to the life, health or physical or mental well-being of persons, in
particular:
- murder,
- torture of all kinds, whether physical or mental,
- corporal punishment,
- mutilation;
(b)
Outrages upon personal dignity, in particular humiliating and degrading
treatment, enforced prostitution and any form of indecent assault;
(c)
The taking of hostages;
(d)
Collective punishments;
(e)
Threats to commit any of the foregoing acts.
Paragraphs
3 and 4 of Article 75 contain due process rights, while paragraph 5 deals with
the treatment of female prisoners. Paragraph 6 emphasises that the various
regulations of the Article remain in force on the cessation of hostilities for
people who are still being detained. Paragraph 7 contains provisions on the
prosecution and trial of persons who have been accused of war crimes or of
crimes against humanity.
A
prisoner of war (POW) is a combatant who is imprisoned by an enemy power during
an armed conflict. The first international convention to define the
requirements for combatants to be eligible for treatment as prisoners of war
was the Second Hague Convention (1899). The 1949 Geneva Conventions are the
main conventions today that provide a framework for protective rights of POWs.
The basic principle is that being a soldier is not a punishable act in itself.
The laws apply from the moment a prisoner is captured until he is released or repatriated.
It is prohibited to torture prisoners, and a prisoner can only be required to
give his name, date of birth, rank and service number (if applicable).
According
to Article 4 Third Geneva Convention Relative to the Treatment of Prisoners of
War, protected combatants include military personnel, guerrilla fighters and
certain civilians. To be entitled to prisoner of war status, the combatant must
conduct operations according to the laws and customs of war, that is, be part
of a chain of command, wear a uniform and bear arms openly. Thus,
franc-tireurs, terrorists and spies are excluded. It also does not include
unarmed non-combatants who are captured in time of war; they are protected by
the Fourth Geneva Convention. Non-combatant is a military term describing
persons not engaged in combat, such as civilians and medical personnel.
Persons
who do not have the status of wounded or sick member of armed forces (protected
by the First and Second Geneva Convention) or prisoner of war (protected under
the Third Geneva Convention) are considered protected persons under the Fourth
Geneva Convention Relative to the Protection of Civilian Persons in Time of
War. Article 4 defines protected persons as the following:
Persons
protected by the Convention are those who, at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the hands
of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by
it. Nationals of a neutral State who find themselves in the territory of a
belligerent State, and nationals of a co-belligerent State, shall not be
regarded as protected persons while the State of which they are nationals has
normal diplomatic representation in the State in whose hands they are. [...]
Article
5 of the same Convention circumscribes the rights of protected persons when
they commit hostile acts:
Where
in the territory of a Party to the conflict, the latter is satisfied that an
individual protected person is definitely suspected of or engaged in activities
hostile to the security of the State, such individual person shall not be
entitled to claim such rights and privileges under the present Convention as
would, if exercised in the favour of such individual person, be prejudicial to
the security of such State. Where in occupied territory an individual protected
person is detained as a spy or saboteur, or as a person under definite
suspicion of activity hostile to the security of the Occupying Power, such
person shall, in those cases where absolute military security so requires, be
regarded as having forfeited rights of communication under the present
Convention. In each case, such persons shall nevertheless be treated with
humanity, and in case of trial, shall not be deprived of the rights of fair and
regular trial prescribed by the present Convention. They shall also be granted
the full rights and privileges of a protected person under the present
Convention at the earliest date consistent with the security of the State or
Occupying Power, as the case may be.
In
addition to terms such as prisoner of war and protected persons, some countries
have introduced the term ‘illegal combatants’ (also referred to as unlawful
combatants). This term refers to persons who carry arms or engage in warlike
acts in alleged violation of the law of war. Such persons are not necessarily
considered lawful combatants and therefore are not necessarily accorded the
rights of prisoners of war. The term ‘illegal combatant’ was first introduced
in 1942 by the United States Supreme Court decision in the case ex
parte Quirin (317 U.S. 1 (1942)). In this case, the Supreme Court
upheld the judgement of a United States military tribunal regarding several
German saboteurs in the United States. This decision states:
[T]he
law of war draws a distinction between the armed forces and the peaceful
populations of belligerent nations and also between those who are lawful and
unlawful combatants. Lawful combatants are subject to capture and detention as
prisoners of war by opposing military forces. Unlawful combatants are likewise
subject to capture and detention, but in addition they are subject to trial and
punishment by military tribunals for acts which render their belligerency
unlawful. The spy who secretly and without uniform passes the military lines of
a belligerent in time of war, seeking to gather military information and
communicate it to the enemy, or an enemy combatant who without uniform comes
secretly through the lines for the purpose of waging war by destruction of life
or property, are familiar examples of belligerents who are generally
deemed not to be entitled to the status of prisoners of war, but to be
offenders against the law of war subject to trial and punishment by military
tribunals.
The
legal status of ‘illegal combatant’ or ‘enemy combatant’ as defined by some
countries since 2001 has been criticised by many states parties to the Geneva
Conventions, international institutions such as the ICRC and NGOs. These
criticisms have pointed out that terms such as ‘illegal combatant’ or ‘enemy
combatant’ have been used to deny detainees basic civil rights, such as the
right to a counsel, a speedy trial and the right to appeal. It has been argued
that this gives governments a right to arbitrarily suspend the rule of law in
an unacceptable way. Many governments and human rights organisations worry that
the introduction of the ‘illegal or enemy combatant’ status sets a dangerous
precedent for other regimes to follow, in addition to undermining the Geneva
Conventions. These concerns have found response and support by the United
States Supreme Court. In Hamdi et al. v. Rumsfeld et al. (2004)
the Supreme Court concluded that although Congress authorised the detention of combatants
in the narrow circumstances alleged in this case, due process demands that
people held in the United States as enemy combatants be given a meaningful
opportunity to contest the factual basis for their detention before a neutral
decision maker. The Court further held on the same day that detention may be
challenged by detainees with this status. The petitioners, two Australians and
twelve Kuwaitis, were captured abroad during hostilities, and were being held,
since early 2002 - along with, according to the government’s estimate,
approximately 640 other non-Americans - in military custody at the Guantanamo
Bay Naval Base, Cuba, which the United States occupies under a lease and
treaty. The Supreme Court held that United States courts have jurisdiction to
consider challenges to the legality of the detention of foreign nationals
captured abroad in connection with hostilities and who, in this case, are
incarcerated at the Guantanamo Bay Naval Base. In response to this judgement,
the Bush administration in 2006 passed the Military Commission Act, which
maintained that military trials for ‘illegal combatants’ were necessary due to
the extraordinary circumstance of the ‘war on terror’, The act attempted to
legitimise the suspension of habeas corpus. This was resolutely
contradicted in the Supreme Court case of Boumediene et al v. Bush (2008),
where it was reaffirmed that the US court system has jurisdiction to consider
challenges to the incarceration of enemy combatants detained in Guantanamo Bay.
The decision further established that the US laws and Constitution are
inherently ‘designed to survive and remain in force in extraordinary times’.
2. INTERNAL ARMED CONFLICTS
For
decades common Article 3 of the Geneva Conventions was the only written rule
containing generally applicable humanitarian norms related to internal armed
conflicts. Article 3 requires parties to the Conventions to respect the
integrity of persons who are not directly involved in the hostilities. As the
scale and intensity of internal or civil wars increased significantly in the
1960s and 1970s, the 1977 Diplomatic Conference decided to extend and elaborate
this article in Protocol II to the 1949 Geneva Conventions.
The
Preamble of Protocol II establishes the principle that every human being must
be protected in times of war. The extent to which this applies, and the people
whom it protects, is described in the Protocol.
Article
1(1) Protocol II specifies the criteria for its application. Insurgents must
have military forces or other organised armed troops who control part of the
territory and who are capable of sustaining coherent military operations.
Clearly, with these kinds of criteria, in practice, the Protocol will apply
almost exclusively to civil wars in which battles and military operations take
place on a large scale. Situations involving internal disturbances and tensions
- such as riots and isolated actions - are expressly excluded from the
Protocol.
The
provisions concerning humanitarian treatment most clearly show a relationship
with human rights law. They require behaviour that respects the human rights
and dignity of civilians in a conflict situation. Article 4 requires the
parties to respect the person, honour, convictions and religious practices of
all persons not directly involved or no longer taking part in the hostilities,
and states that ‘they shall in all circumstances be treated humanely without
any adverse distinction’. The provisions protecting children are an important addition.
It is notable that the minimum age for military service has been set at 15
years of age.
Article
5 prescribes special protection to persons whose freedom is limited in
connection with the armed conflict. Two categories of people are defined:
people whose freedom of movement is restricted in some way (for example because
they live in a cut-off area) enjoying only limited protection; and internees or
prisoners who enjoy full protection. With respect to these detained or interned
persons, Article 5 distinguishes two types of obligations: a) absolute minimum
obligations in relation to the protection of the sick or wounded and the right
to individual or collective help and to practice religion. As far as the
provision of food and drink, hygienic facilities and working conditions are
concerned, the same criteria apply as for the local population; and b)
obligations that must be taken into account within the limitations of what is
feasible. These relate to the personal circumstances of female detainees and prisoners,
the distance to the battlefield, the right to medical treatment and
protection against certain forms of medical practices or negligence. The
latter obligation is an absolute minimum requirement according to the
Explanatory Memorandum to the approving act.
Article
6 contains a number of fair trial rules that are also found in Articles 14 and
15 ICCPR. If, for example, a party that is in rebellion decides to hold trials,
it must create a judicial organisation for that purpose. As long as the law
cannot be carried out by a court in accordance with a reasonable procedure, no
judgements may be passed or sentences carried out. Article 6 seems to allow for
the creation of courts for the duration of the conflict, provided their
independence is guaranteed. In other words, they must not be subject to
external controls and must be impartial. Similar cases must be dealt with in
the same manner. Moreover, Article 6 recommends that amnesty be granted on the
largest scale possible upon cessation of the hostilities.
Protocol
II applies to anyone who is wounded, sick or shipwrecked and stipulates that
such people must be cared for and protected. It also lays down the duty to
protect medical personnel, without any distinction between military personnel
and civilians. It likewise applies to medical units and means of transport and
to the discharge of medical duties in a general sense. If medical units are
abused, their protection ceases. This applies to both military and civilian
medical units.
Finally,
Article 6 stipulates that civilian populations may not be the object of
attacks. Article 13 sets out the principle of distinction, specifying that
attacks on groups of the population and individual citizens are prohibited in
all circumstances, as are threats of violence. The enforced movement of
civilian populations is also forbidden, unless their safety is at risk or
urgent military interests require them to be moved.
Organisations
such as the ICRC can offer their services, but they can only take action with
the consent of the state on whose territory the conflict is taking place.
3. HUMANITARIAN INTERVENTION
Humanitarian
intervention refers to the use of force against one state by another state or
states with the declared objective of ending or reducing suffering within the
first state. That suffering may be the result of civil war, humanitarian
crisis, or crimes by the first state including genocide. Humanitarian
intervention is traditionally justified for instances of massive human rights
violations – when put in motion by an international body, such as the UN
Security Council, with reference to, e.g., Article 28 UDHR which establishes
the right to a social and international order in which human rights are
realized.
The
Chapter VII powers mandate the UN Security Council to sanction intervention to
meet threats to international peace and security. Any such action runs counter
to the general principle of non-intervention stated in the Charter, Article
2(4), which reads:
All
Members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations.
Some
of those opposing interventionist tendencies argue that the Western countries
are motivated by neo-imperialism as opposed to concern for human rights, and
that the so-called humanitarian mission is merely a modern version of the
civilising missions previously used to justify colonisation. Despite these
voices, in the late 1990s the definition of ‘threats to international peace’
was drastically broadened to justify intervention in Somalia and Yugoslavia
where forces under UN auspices intervened without securing permission from the
states in question. The marked change in the nature of modern armed conflict,
where internal conflicts have replaced inter-state conflict and civilians now
make up the vast majority of casualties, has led to a call for the remodelling
of humanitarian intervention. The genocides in Cambodia, Rwanda and Bosnia, as
well as crimes against humanity in Kosovo, East Timor and Darfur, demonstrated
massive failure by the international community to prevent atrocities, thus
confirming the need for a shift from state sovereignty to the security of the
community and the individual.
In
2001, the International Commission on Intervention and State Sovereignty
articulated the concept of ‘Responsibility to Protect’ (R2P). This posits that
a nation’s sovereignty concerns not so much its borders, but rather its
position as the principle guardian of its citizens - providing a legal and
ethical basis for the intervention by external actors (preferably the
international community through the UN) in a state that is unwilling or unable to
prevent or stop genocide, massive killings and other massive human rights
violations. The responsibility to protect citizens shifts to the international
community when the state is either unable or unwilling to protect its people.
The concept was endorsed by the United Nations 2005 ‘World Summit Outcome
Document’ where Heads of State and government agreed in paragraphs 138 and 139
that:
Each individual State has the responsibility to
protect its populations from genocide, war crimes, ethnic cleansing and crimes
against humanity. This responsibility entails the prevention of such crimes,
including their incitement, through appropriate and necessary means. We accept
that responsibility and will act in accordance with it. The international
community should, as appropriate, encourage and help States to exercise this
responsibility and support the United Nations in establishing an early warning
capability.
The international community, through the United
Nations, also has the responsibility to use appropriate diplomatic,
humanitarian and other peaceful means, in accordance with Chapters VI and VIII
of the Charter, to help protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity. In this context, we are prepared to take
collective action, in a timely and decisive manner, through the Security
Council, in accordance with the Charter, including Chapter VII, on a
case-by-case basis and in cooperation with relevant regional organizations as
appropriate, should peaceful means be inadequate and national authorities
manifestly fail to protect their populations from genocide, war crimes, ethnic
cleansing and crimes against humanity. We stress the need for the General
Assembly to continue consideration of the responsibility to protect populations
from genocide, war crimes, ethnic cleansing and crimes against humanity and its
implications, bearing in mind the principles of the Charter and international
law. We also intend to commit ourselves, as necessary and appropriate, to
helping States build capacity to protect their populations from genocide, war
crimes, ethnic cleansing and crimes against humanity and to assisting those
which are under stress before crises and conflicts break out.
Several
important advancements have taken place since 2005, including the Security
Council unanimous adoption of Resolution 1674 on ‘the Protection of Civilians
in Armed Conflict’, which expressly refers to the R2P. In Resolution 1706,
authorising the sending of UN peacekeeping troops to Darfur, the Security Council
also referred to Resolution 1674 and paragraphs 138 and 139 in the Summit
Outcome Document.
The
UN Secretary-General has appointed a Special Adviser on the Prevention of
Genocide and a Special Adviser to the Secretary-General with a focus on the
Responsibility to Protect. Due to some states opposition to the R2P, the
position was revised to focus on the ‘responsibility to protect populations
from genocide, ethnic cleansing, war crimes and crimes against humanities’.
Despite
growing consensus on the R2P, traditional opponents of intervention have
maintained their resistance. In 2007, a Security Council resolution on the
situation in Burma was vetoed by China and Russia arguing that the country ‘did
not pose a threat to peace and security in the region, and that the internal
affairs of the state did not have a place within the Security Council.’ UN
Security Council Resolution 1769, which authorised the deployment of a UN-AU
force in Darfur did not refer to the Responsibility to Protect or to the
Protection of Civilians Resolution. Furthermore, during the UNGA Fifth
Committee bi-annual budget debate in 2008, the Committee declined funding of
the office of the new Special Adviser on R2P. Some Members argued that the R2P
had never been agreed to ‘as a norm’.
These
difficulties, coupled with the lack of an appropriate response by the
international community in Darfur, Somalia, Burma and the Democratic Republic
of Congo, indicate the tremendous efforts needed to garner action in existing
and potential R2P situations.
At
the regional level, the Responsibility to Protect has been embraced strongly by
the African Union. Article 4 of its Constitutive Act proclaims its right to
intervene in instances of grave violations. The Ezulwini Consensus, while
recognising that primary responsibility rests with the Security Council, allows
for the possibility that the Union 481 Human Rights and Armed Conflict may
receive from the Council after-the-fact approval for intervention in extreme
emergencies. The African Standby Force, to be operational by 2010, is
envisioned to help fulfil the African Union’s commitment to the Responsibility
to Protect.
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