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Land Rights and Eviction: Weapons of Mass Oppression

By Tanveer Jeewa

Tanveer Jeewa is a candidate for a Masters in Public Law studying at the University of Cape Town (UCT). She was recently selected as a Youth Ambassador at the United Nations where she represented South Africa and Mauritius. There she won the Social Venture Challenge and is now a Resolution Project Fellow. She has recently established an NGO known as RefRights. Her team and herself are working on a software application to facilitate assistance to legal aid for refugees in South Africa. She is also a volunteer at the UCT Refugee Rights Clinic. She is interested in specializing in Human Rights law but is open to learning and exploring different avenues as they come.


‘The land is the only thing in the world worth working for, worth fighting for, worth dying for, because it’s the only thing that lasts.’ – Gerald O’Hara, Gone with the Wind

Land rights and evictions have, for decades, been used as a means to divide communities. Looking at the cases of Brazil, India, and South Africa where land rights have been used to discriminate on the basis of socio-economic conditions, class, and race, this blog post analyses the legal means through which segregation was achieved and the effects of historical discrimination in land ownership on vulnerable communities today. Land rights and evictions are powerful tools which have been used to promote different agendas, such as overpowering minorities and oppressed populations. Land rights and evictions are also tools which can be disguised as ‘development’. To illustrate the complicated nature of land rights and evictions, this post will firstly look at the legal background of land rights control and eviction in apartheid and post-apartheid South Africa. The situation in India is then considered with regards to land rights per caste. Finally, Brazilian favelas are used as an example of failed land rights of the non-wealthy population.

Evictions in South Africa

Section 26 of the Constitution of South Africa concerns the right to housing, while section 26(3) is most applicable to this essay. Section 26(3) is as follows:

No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

This is normally the point of departure for South African courts when these preside over eviction matters. Case law has lengthily qualified this law, and requirements such as meaningful engagement and alternative housing have been said to impose a positive duty on the state. However, as case law indicates, eviction remains a prevalent issue in South Africa. During apartheid, eviction and restriction of land rights were the most used methods to dehumanise communities of colour. Continue reading

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India’s stand on the Responsibility to Protect: The UN Security Council and the Libya crisis

By Heena Makhija 

Heena Makhija is a student at Centre for International Politics, Organizations and Disarmament at Jawaharlal Nehru University in Delhi, undertaking an MPhil in International Organizations.


Jawaharlal Nehru’s idealism and commitment to the maintenance of international peace and security has remarkably influenced India’s response towards international conflicts. In the Security Council, in its capacity as a non-permanent member, India has been a supporter of peaceful and responsible policy decisions for conflict resolution. In the past few decades, international intervention in conflict zones for the protection of civilians from war crimes on account of the failure of domestic state machinery has been a matter of debate in mainstream academia. Though India has been one of the largest contributors to the UN Peacekeeping Missions, its approach to the idea of ‘Responsibility to Protect’ has been cautious.

This paper seeks to analyse India’s approach to the principle of ‘Responsibility to Protect’, especially with regard to where it stands in the UN Security Council discussions. The first section traces India’s evolving stance on the principle of ‘Responsibility to Protect’. The second section analyses India’s stance on the use of R2P in Libya and its reasons for abstaining in the UN Security Council voting on the issue of intervention. The third section seeks to evaluate India’s response and strategy after the military intervention in Libya. The concluding section attempts to bring out the lessons India drew from the Libyan experience and its influence on India’s present-day approach to R2P.


Humanitarian intervention, R2P and India

Though the idea of humanitarian intervention in conflict zones has existed for decades, its conceptualization under the aegis of ‘Responsibility to Protect’ is fairly new. India, given its experience with colonialism, inherited a divided, exploited and dependent society that was vulnerable to internal dissension and external interference (Ayoob, 2004, p. 99). Therefore, India accorded utmost priority to the principles of democracy and sovereignty whilst dealing with international actors. India’s apprehensions were triggered immediately after independence, as when it referred the issue of Jammu and Kashmir to the UN Security Council, instead of a fruitful resolution, Cold War politics shadowed the UN leading to a deadlock. In the light of the Kashmir issue, Indian leadership began to resist approaching multilateral institutions to intervene in conflict areas fearing a threat to its state sovereignty (Ganguly, 2016, p. 363). India’s response to the concept of international intervention in states’ affairs has been fluctuating over the years. In the 1960s, while India was quick to defend its intervention in Goa to drive out the Portuguese by force, on the other hand, it was highly critical of the Anglo-French intervention in Egypt over the issue of the Suez Canal. At the United Nations, India actively caucused with Asian and African nations for supporting the resolution demanding compliance with the UN resolutions and a ceasefire (Nayudu, 2016). Following an idealist and moral approach, while India continued to criticize the Western bloc at international forums for its interventionist policies, India itself came under fire for its semi-interventionist conduct in its immediate neighbourhood. When the domestic turmoil in East Pakistan led to a huge influx of refugees, India argued that Pakistan’s internal conflict had become a grave concern for India’s security (Bass, 2015, p. 232). Indira Gandhi decided to intervene militarily in view of the failure of diplomatic efforts and Bangladesh emerged as an independent nation in 1971. India justified its interventionist role on the grounds of self-defence as Pakistan had initiated the war (Ganguly, 2016, p. 364). India’s armed involvement in East Pakistan in 1971 is viewed as one of the world’s foremost successful attempts at humanitarian intervention against genocide (Mehta, 2011, p. 100). Side-lining its ethical commitment to state sovereignty, India also briefly intervened in Sri Lanka’s civil war between the armed forces and the Liberation Tigers of Tamil Eelam (LTTE) in 1987. Thus, despite its strong commitment to the principle of upholding state sovereignty, India’s stand was based on its own national interest and on the merit of each case.

However, in the 1990s, several incidents of mass atrocities on civilian populations emerged. As evidence of heinous crimes against unarmed populations started surfacing in the international arena, demands for humanitarian intervention increased. No principled approach or international law existed for handling cases such as Somalia, Rwanda, and Kosovo. Disagreements emerged on whether the international community exercised a right to intervene. If yes, then how should it be carried out and under whose authority? (Evans & Sahnoun, 2002). The ‘Responsibility to Protect’, or the R2P norm, emerged from the International Commission on Intervention and State Sovereignty (ICISS) report in 2001 and was codified in the World Summit Outcome document in 2005 (Bloomfield, 2015). The UN Secretary General’s 2009 Report ‘Implementing the Responsibility to Protect’ placed the three pillars of the R2P principle in the public discourse. Pillar One focused on the protection responsibilities of the state, Pillar Two dealt with international assistance and capacity-building, and Pillar Three enshrined timely and decisive response from the international community (Assembly, 2009). However, international intervention in domestic conflicts for the protection of civilians from genocide, war crimes, and ethnic conflict has been under normative criticism and contestation since its very inception (Mahdavi, 2015, pp. 8-9).

India approached the principle of R2P with suspicion and caution. Given the international climate that favoured a decisive policy to curtail domestic atrocities, India did not resist the first two pillars of R2P as they were in coherence with India’s foreign policy. India favoured a ‘soft’ approach where policy-makers supported measures such as diplomatic missions and unarmed ceasefire monitoring missions (Bloomfield, 2015, p. 31). However, India rendered strong opposition to the third pillar of R2P, describing it as an unnecessary interference in domestic concerns of a state and a tool of powerful nations to topple over existing regimes and threaten the state sovereignty. Nirupam Sen, Permanent Representative of India to the United Nations until 2009, openly voiced his criticism of the R2P principle in UN meetings and portrayed it as military humanism and re-emergence of humanitarian intervention in a new facet (Teitt, 2012, p. 200).


India’s approach as a UN Security Council non-permanent member and the Libya crisis

In 2009, Hardeep Singh Puri, the new Permanent Representative of India to the United Nations, took charge and continued to adopt a pragmatic approach to R2P. However, maintaining its firm stand on treating intervention as the last resort, India did accept the peacekeeping principle of PoC (Protection of Civilians) while stressing its preference for Pillar One and Pillar Two of R2P (Bloomfield, 2015, pp. 33-34). India was running for non-permanent membership of the UN Security Council in the forthcoming year, thus flexibility and a pragmatic stance was in coherence with its aspirations. India was selected as a non-permanent member of the Security Council in 2010 with a record result of 187 affirmatives out of 191 votes (Krause, 2016, pp. 24-25).  India entered the Security Council in 2011 as a non-permanent member after a gap of 18 years. Undoubtedly, India wanted to prove itself to be a worthy contender for a permanent seat at the horseshoe table. Adding ‘value’ to the proceedings by acting as an objective bridge between member states and active participation was a necessary medium to strengthen its claim (Mishra and Kumar, 2013).

At the beginning of 2011, the escalating crisis in Libya was one of the crucial challenges encountered by the Security Council. Rebellion groups under the umbrella of ‘Arab Spring’ that had engulfed the Middle East revolted against Muammar Gaddafi, leading to a civil war in the country (Shrivastav, 2011, p. 3) The matter was brought to UN Security Council’s attention by a faction of revolting Libyan officials as reports of gross violations of human rights and a crackdown on civilians began surfacing. Gaddafi already had a turbulent history as sanctions were imposed over his role in the 1988 terrorist attack on the Pan American Flight 103 (Puri, 2016, pp. 59-60). The public opinion was full of rage and contempt for the Libyan leader and there was ample evidence that mass atrocities were being inflicted on the civilians by the state.

Resolution 1970 was passed by the UN Security Council on 26th February 2011 after a marathon 12-hour session (Puri, 2016, p. 69). The resolution called for an end to violence in Libya with immediate effect, an arms embargo, and referred the conflict to the International Criminal Court (ICC). India, along with China, Brazil, and South Africa had their reservations about the ICC referral and favoured a calibrated approach of first threatening with a referral in a future date (Puri, 2016, p. 71). Despite the initial reservations, India went ahead and voted in favour of resolution 1970. India’s affirmative stand can be attributed to two major reasons. First, India was at the table after a long hiatus and abstaining or voting negatively on an issue of heinous crimes against civilians while international community including African and Non-Aligned Movement nations favoured strict action, it would have served as a setback for India’s aspirations. Secondly, closer ties with the United States might have had a role to play in shaping India’s decision (Ganguly, 2016).  

In March 2011, the UN Under-Secretary-General stated that the Gaddafi Regime was using heavy artillery and air and naval assets against civilians and rebels (Puri, 2016, p. 81). This marked the onset of an official intervention in Libya through Resolution 1973 and the US encouraged promulgating Chapter VII of the UN charter for authorizing the use of force. Resolution 1973 was adopted by the Security Council on 17th March 2011, with 5 members – Brazil, Russia, China, India, and Germany – abstaining (Puri, 2016, p. 90). Resolution 1973 was one of the most debated and controversial decisions in the history of R2P (Bellamy, 2011). India, though voted in favour of Resolution 1970, abstained from voting on Resolution 1973. In order to understand the reasons behind India abstention, it is necessary to understand the contents of Resolution 1973. As stated in the official press release of the UN Security Council (2011),

Demanding an immediate ceasefire in Libya, including an end to the current attacks against civilians, which it said might constitute “crimes against humanity”, the Security Council this evening imposed a ban on all flights in the country’s airspace — a no-fly zone — and tightened sanctions on the Gaddafi regime and its supporters. Adopting resolution 1973 (2011) by a vote of 10 in favour to none against, with 5 abstentions (Brazil, China, Germany, India, Russian Federation), the Council authorized Member States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory — requesting them to immediately inform the Secretary-General of such measures.

As Indian representative Hardeep Singh Puri pointed out, India was highly skeptical of the ground realities in Libya and in absence of official clarification it did not want to take any decision in haste. Moreover, the mandate of the UN and ceasefire procedures to be implemented were vague and threatened the sovereignty of Libyans. India was also deeply concerned about the safety of its nationals in Libya, as only a third of them had been evacuated (Puri, 2016, p. 85). Internationally, India did not want to support a resolution that might lead to a regime change and escalate the crisis in absence of any certainty on how a military intervention would shape. Domestic concerns also played a pivotal role in shaping India’s stand. Supporting a precedent that validates intervention might have backfired given the conflicts and secessionist tendencies within India. Also, aiding the Western democracies to intervene in a Muslim state carried a threat of backlash from the Muslim population within India (Ganguly, 2016). Since there was no clarity about the end goals of this operation, it would have been difficult for the Indian government to justify its support for this resolution to its coalition partners and domestic constituencies (Shrivastav, 2011).

Despite numerous justifications for abstaining on Resolution 1973, some critics consider it to be a lost opportunity where India could have supported the Western powers and substantiated its claim of being a compelling democratic rising power in the international fora (Ganguly, 2016, p. 369). India is also criticized for ‘inaction’ and its unwillingness to take strong decisions and act as a responsible power (Pillai, 2012). However, the critics must take into consideration that not following the West on a resolution that was against India’s ethical foreign policy approach as well as its national interest, India exercised its autonomy in foreign affairs. Moreover, India did vote in favour of Resolution 1970, thus its commitment to the protection of civilians in Libya cannot be questioned (Shrivastav, 2011). Though India had serious concerns about the procedures to be adopted under Resolution 1973, it still abstained from voting rather than putting in a negative vote, thus paving the way for the passing of resolution without acting as a hindrance. A liberal approach of supporting democracy and protection of human rights guided India’s policy as India’s abstention achieved a middle ground – it did not degrade its relations with the West or the Arab world (Bloomfield, 2015, p. 41).


India’s response post-Libya intervention

As soon as Resolution 1973 passed, NATO warplanes surrounded Libyan airspace dropping their lethal arsenal. Indiscriminate bombing and full-scale military intervention made it very clear to the international community that the resolution aimed at regime change rather than putting an end to the cycle of violence.  Resolution 1973 had five major goals – a ceasefire with the mediation of the African Union, use of all necessary means to protect civilians, a no-fly zone, an arms embargo, and targeted sanctions. Notably, with the passing of the resolution, members of NATO side-lined the African Union and the sole focus was on the use of all necessary means by bombing Libya (Puri, 2016, p. 92). Within a month, it became clear to the Indian policymakers that NATO was pursuing a regime change in Libya (Puri, 2016, p. 103).

India was highly critical of the way the operation was unfolding in Libya. In the subsequent Security Council meetings, Indian UN Representative Hardeep Singh Puri was actively denouncing the manner in which Resolution 1973 was being implemented. In a sharp exchange of words in April 2011, he pointed to the Council that the reports showcased arming of the rebel groups by the NATO forces. It was also increasingly clear that the goal of regime change was getting the better of all objectives, but that was neither mentioned per se in Resolution 1973 nor was it approved by the Security Council (Puri, 2016, p. 102). He concluded that Libya gave a bad name and raised serious questions about the credibility of the principle of R2P. Violation of human rights did not appear to be the reason for intervention in the state affairs, rather deeper strategic issues such as oil fields and incompatible leadership emerged as motivating factors for the operation (Khandekar, 2015, p. 121). NATO’s military action in Libya followed the official passage of Resolution 1973, setting a dangerous example on how the official channels were used to authorize an operation that did not end the violence or civil strife in Libya rather it sowed seeds for a turbulent future in the region.

As the Libyan crisis broke out, though India was voicing its opposition, it came under scrutiny within India from media, public, and the opposition who actively analysed India’s stand on the matter. Indian media was quick to point out the direct impact of Libyan crisis on the oil prices and the plight of Indians who were still stranded in the war-torn country (Bloomfield, 2015, p. 9). Policymakers extensively questioned India’s abstention on the resolution. Left-oriented parties with their anti-Western rhetoric saw India’s inability to vote against the resolution as its failure to give structure to its anti-imperial foreign policy ideals (Chishti, 2011). On the other hand, realists pointed out that India might not be willing to intervene directly in the internal affairs of states but its support for the resolution that might stabilize the region would have served its long-term interests in international forums (Rajamohan, 2011).

It was evidently clear for India that the UN Security Council resolution 1973 was not implemented and formulated in a way that was in sync with the noble cause of R2P. As a policy approach, the Libyan experience brought back India’s serious concerns with Pillar Three of R2P. India did try to mould its position by voting in favour of Resolution 1970, but the aftermath of NATO’s intervention in Libya made India reiterate its initial hostility towards Pillar Three. India’s long-standing scepticism about the Western powers and the limited ability of a military intervention to solve humanitarian crisis were validated by the Libyan experience (Krause, 2016).


India and the future of R2P

Resolution 1973 advanced the debate on the principle and implementation of R2P. In hindsight, it is possible that the Security Council might not have authorized the resolution had it known that it would be used in a selective manner for military action in Libya (Puri, 2016, p. 103). India’s fears were proven right with the breakdown of the Libyan state after the intervention. During its two-year stint as the non-permanent member of the Security Council, India maintained a calculated and pragmatic approach towards intra-state conflicts. With respect to R2P, India’s lessons learned from Libya’s experience were clearly visible in its approach to the crisis in Syria. It was very evident that critics of the resolution 1973 were not going to throw Syria down the same road. In October 2011, when a resolution to condemn the actions of Bashar-al-Assad in Syria was put for vote in the UN Security Council, China and Russia used their veto and India abstained with a view to prevent any further Western intervention. India was not in denial of the disturbing situation in Syria but wanted to pursue a calibrated approach. It is evident from the fact that under the presidency of India, the UN Security Council issued an initial statement on Syria that condemned the use of force on the civilians by the authorities (Puri, 2016).

Towards the end of its term, India did vote in favour of putting non-military sanctions against the Assad regime, but Russia and China continue to use their vetoes to block the resolutions. Overall, during its term in the UN Security Council, India depicted active support for the first two pillars of R2P. It never voted in negative and fluctuated between abstaining and voting in favour of the resolutions. India was clear about not endorsing any narrowly worded document that might be twisted by the Western nations as it happened in Libya (Bloomfield, 2015). At the beginning of 2013, with the rise of the Islamic State as the situation in the Middle East took a critical turn, it became evidently clear that the means to implement R2P had not succeeded in Libya.

If we analyse India’s role in the Libyan conflict and larger debate on R2P, it had been wise on India’s part to remain on the side-lines. Libya was a test case and its outcome rightly hardened India’s aversive stance to the idea of military intervention in conflict zones. It also paved way for a renewed debate on the concept of R2P. India argued that responsibility does not end with a military response. When the principle is applied, it must respect the fundamental aspects of the UN Charter including the sovereignty and integrity of member states (Mishra and Kumar, 2013). Thus, India supported the Brazilian proposal for the ‘Responsibility while Protecting’ (Krause, 2016, p. 35). Protection of civilians from autocratic and abusive regimes is undoubtedly essential, but it should not compromise on the sovereignty and territorial integrity of the state.  

To conclude, India’s initial critical stance towards the principle of R2P softened in the prelude to its membership of the UN Security Council in 2011. Whether it was the international pressure or the desire to take a strong stand, India though maintained its practical demeanour, it did flirt with the idea and partially supported Pillar Three of the R2P. The disastrous outcomes of the NATO intervention in Libya where regime change and Western aspirations overshadowed the positive dimensions that R2P aimed to achieve, brought India back to its calculated and cautious approach. In the post-2012 scenario, India has time and again stressed the anomalies in the system of international intervention aspect of R2P. As a post-colonial state, India, especially after the Libyan experience, finds it difficult to endorse Western interventionist policies. Though India asserts the highest value to the territorial integrity of a state, India’s stand on R2P cannot be consistent and might fluctuate on the case to case basis in the future, keeping in mind its national interest and aspirations (Ganguly, 2016).



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