A CRITICAL ANALYSIS OF THE STATUS AND APPLICATION OF THE RESPONSIBILITY TO PROTECT DOCTRINE..pdf

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A Critical analysis of the status and
application of the Responsibility to Protect
Doctrine.
BRIAN ASA OMWOYO
14th
January 2013

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Introduction
The doctrine of responsibility to protect, popularly referred to as R2P, has dominated
international humanitarian debates concerning the protection of population from acts that
occasion mass atrocities.1
The quick ascension of the doctrine of responsibility to protect from
an idea to an international norm necessitated one scholar to equate the rise to ‘a blink of the
eye in the history of ideas.”2
Under the 2005 Summit Outcome Document3
, a state has a
primary responsibility to protect its citizens from genocide, war crimes, ethnic cleansing and
crimes against humanity4
; if the state is unwilling or has manifestly failed to protect its
population from the four crimes, the international community has a collective responsibility,
authorised by the Security Council, to protect the population of that state.5
A basic tenet of
responsibility to protect is the concept of sovereignty as responsibility where a state enjoys its
sovereignty rights of non-interference only if it protects its population from acts that could
result in mass atrocities.6
There is a dearth of certainty as to the status of the doctrine of responsibility to protect and
whether it bears any impact in international law.7
The study on the status of the doctrine of
responsibility to protect in international law has generated a heated debate among scholars.
Some scholars have proceeded to describe the doctrine of Responsibility to protect as an
emerging principle of customary international law,8
an emerging norm,9
a guiding principle
and evolving norm meant to articulate how the international community should respond to
humanitarian crisis in situations involving mass atrocities.10
However, other commentators
have posited that the doctrine of responsibility to protect only qualifies as a candidate norm in
the realm of international relations11
and is far from making any legal implication in
international law.12
To them the doctrine is merely a political tool and is unenforceable in
international law.
It is on the basis of this debate that this essay seeks to critically analyse the status of the
doctrine of responsibility to protect. The essay seeks to analyse the legal framework
1
Glanville L., The Responsibility to Protect Beyond Borders (2012) Human Rights Law Review 12:1 pp1-32
2
Evans G., The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All(Washington DC
Brookings 2008)p.28
3
2005 World Summit Outcome Document. UN Doc. A/60/L.1(September 15,2005)
4
Ibid para 138
5
Ibid para 139
6
Carsten Stahn, Responsibility to Protect: Political Rhetoric or Emerging Norm?(2007)American Journal of
International Law Vol 101 no.1 pp99-120.See also Bellamy A., Responsibility to Protect: The Global Effort To
End Mass Atrocities(Polity Press,2009) p.19
7
Mehrdad Payandeh, With Great Power comes Great Responsibility? The Concept of Responsibility to Protect
Within the Process of International Law-making.(2010)35Yale Journal of International Law 470-516.
8
Report of International Commission on Intervention and State Sovereignty,(ICISS) ’The responsibility to
protect’(Ottawa:IDRC,Vol.1 2001)para 2.24 and 6.17
9
UNGA ‘A More Secure World: Our Shared Responsibility’ Report of the High Level Panel on Threats,
Challenges and Change’ (December 2,2004)UN Doc.A/59/565.
10
Evans G., The Responsibility to Protect: An Idea Whose Time has come….. and Gone?(2008)22
International Relations 283
11
Brunne J and Toope S., Norms Institutions and UN Reform: The Responsibility to Protect (2006)2 Journal of
International Law & International Relations. p133
12
Glanville L., The Responsibility to Protect Beyond Borders supra note 1.p1

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governing the responsibility to protect and analyse whether the doctrine of responsibility to
protect has developed into customary international norm. This essay intends to contribute to
the debate by contending that the doctrine of responsibility to protect has not developed to the
level of customary international law and thus it cannot be referred to as an emerging norm in
international law. The essay further contends that the doctrine of responsibility to protect is
not a novel concept in international law and that the doctrine only reaffirms and articulates
extant principles of international law.
This essay proceeds in two parts. Part one discusses whether the concept of responsibility to
protect qualifies as an emerging norm in international law by discussing whether
responsibility to protect meets the general threshold of legality as a norm and whether it has
developed to the level of customary international law. This part also discusses whether the
doctrine of responsibility to protect is a novel idea in international law. Part two will discuss
the application of the doctrine of responsibility to protect and whether it has presented any
significant shift with respect to reacting to humanitarian crises before concluding the essay.
1.0 Responsibility to protect: not an emerging norm in international law.
A norm has been described as ‘shared expectation of proper behaviour of actors.”13
According
to this definition, actors bear an obligation to carry out their functions in conformity with
their shared expectations. Responsibility to protect is a collection of shared expectations that
possess varying qualities which are embedded in the extant principles of humanitarian law
and human rights law.14
This doctrine is not embodied in any treaty and first appeared in the
2005 Summit Outcome Document. However the Summit Outcome Document fails to clarify
its status in international law hence necessitating different construction of the norm.15
Some
scholars contend that it is misleading to refer to responsibility to protect as a legal norm as it
has not become a binding norm in international law16
while others have proceeded to endorse
it as a norm in international law.17
It is imperative to analyse whether responsibility to protect norm satisfies the criteria of
legality as these rules will determine the existence of a shared understanding of legal
expectations and implications among states or actors.18
A norm becomes a legal norm when it
fulfils the criteria of legality and it is subsequently to be effected into practice of legality.19
Lon Fuller, a staunch proponent of natural law theory, posits that for a norm to be acceptable
as a legal norm it ought to be measured in terms of the eight desiderata that demand that the
13
Legro J.,’Which norms matter? Revisiting the ‘Failure’ of internationalism’(1997) 51 International
Organisation p33.See also Martha Finnemore and Kathryn Sikkink,”International Norm Dynamics and Political
Change”(1998)52 International Organisation no 4 p891
14
Bellamy A., The Responsibility to Protect-Five Years On (2010) 24 Ethics & International Affairs. p160.
15
Mehrdad Payandeh, With Great Power Comes Great Responsibility? supra note 7 p481
16
Max Mathews, Tracking The Emergence of New International Norm: The Responsibility to Protect and the
Crises in Darfur(2008)31 B.C Intl Comp. L. Rev. 137-152
17
Brian Babour and Brian Gorlick, Embracing the ‘Responsibility to Protect’: A Repertoire of Measures
Including Asylum from Potential Victims(2008) 20 INTL,J REFUGEE L. 533,535
18
Brunnee J., and Toope S., The Responsibility to Protect and the Use of Force: Building Legality?(2010)
Global Responsibility to Protect p16
19
Ibid pp 12-14

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emerging norm must be:- generally applied, consistent, certain, prospectively applied,
realistic, non-contradictory, communicated to the public and creates congruence between the
alleged norm and the actions of the officials operating under the law.20
For a norm to satisfy the generality desideratum as an emerging legal norm, its application
should not have any form of limitation. Under the paragraph 139 of the Summit Outcome
Document the collective action sanctioned by the United Nations Security Council under
Chapter VII of the UN Charter shall be on ‘a case-by-case basis.” The norm of responsibility
to protect fails the generality desideratum, as the norm is to be applied on a ‘case by case’
basis upon evaluation on whether a state has manifestly failed to protect its population from
situations involving mass atrocities.21
On the desiderata on certainty and clarity, the operation of the pillar two that entails
assistance from international community and pillar three that entails the international
community to take decisive timely action in response to situations of mass atrocities22
are
indeterminate as it remains unclear what is required of the international community in their
reaction.23
It is quite unclear to measure the manifest failure and when and how it is
identified.24
Franck posits that this weakens its compliance pull.25
The norm of responsibility
to protect is ambiguous as during its metamorphosis it emerged as a guiding principle of
international relations and equally sought to establish legal criteria of humanitarian
intervention in international law.26
However, the norm of responsibility to protect has satisfied the desideratum of
communication to the public by its endorsement in the 2005 Summit Outcome Document.27
The norm of responsibility to protect having been linked to existing international norms by
the 2005 Summit Outcome Document clarifies the scope of the norm and its triggering factors
and hence this enhances its consistency with international law.28
From the above, it is
apparent that the norm of responsibility to protect clearly fulfils some measure of legality as a
rule presenting a shared understanding.29
However the norm of responsibility to protect will
have a global impact if it emerges as customary international rule.30
20
Edwin Tucker., The Morality of Law by Lon Fuller(1965)40 Indiana Law Journal pp274-6 .See also Colleen
Murphy, ’Lon Fuller and the Moral Value of the Rule of Law’(2005)24 Law and Philosophy239,at 240-
241.’Desiderata’ term used by Lon Fuller to describe all eight standards; ‘desideratum’ is the singular.
21
Brunnee J., and Toope S., The Responsibility to protect and the Use of Force supra note 18 p.14
22
Ban Ki –Moon “Implementing the Responsibility to Protect: Report of the Secretary General”UN Doc
A/63/677
23
Bellamy A., The Responsibility to Protect-Five Years On supra note 14 p161
24
Casten Stahn, Responsibility to Protect supra note 6 p116
25
Thomas Franck, The Power of Legitimacy Among Nations(New York: Oxford University Press,1990)p.49
26
Mehrdad Payandeh, With Great Power Comes Great Responsibility? Supra note 7 p481
27
Brunnee J., and Toope S., The Responsibility to protect and the Use of Force supra note 18 p13
28
Ibid. See also Carlo Focarelli, The Responsibility to Protect Doctrine and Humanitarian Intervention :Too
many Ambiguities for Working Doctrine.(2008)13 Journal of Conflict & Security Lawpp191-213
29
Brunnee J., and Toope S., The Responsibility to Protect and the Use of Force: Building Legality supra note 18
p. 16
30
Ibid p.17.See also Kwesi Aning and Samuel Atuobi, Responsibility to Protect in Africa: An Analysis of the
African Union’s Peace and Security Architecture.(2009)Global Responsibility to Protect pp90-113

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This leads as to the question as to whether the norm of responsibility to protect has emerged
as customary international norm. The International Court of Justice in North Sea Continental
Shelf Case held that for a rule to emerge as customary international law there has to be
evidence of a settled practice and a psychological belief that it is law and thus necessitates
full compliance. 31
Resolutions by international organisations and statements by states in those organisations
could be viewed as evidence of state practice and opinion juris as was held by the
International Court of Justice in the Legality of the Threat or Use of Nuclear Weapons case.32
Payandeh contends that the norm of responsibility to protect has evolved in different phases
within a short time hence it is difficult to associate the version of responsibility to protect the
statement by a state is referring to.33
He further contends that the Security Council resolutions
do not expressly refer to responsibility to protect when responding to humanitarian crises
hence it results in a tendency of creating assumptive nexus between the international
community’s reaction in a particular humanitarian crises and the doctrine of responsibility to
protect.34
An example is the case of Libya which despite being referred by some scholars as
the first time the Security Council has put the doctrine of responsibility to protect into
operation,35
the Security Council Resolutions 197036
and 197337
did not mention or make
reference to the norm of responsibility to protect in the resolutions.38
Furthermore it has been argued that humanitarian intervention is part of responsibility to
protect.39
It then follows that for one to determine the states behaviour the state behaviour on
the responsibility to protect one has to look at the inconsistent state’s behaviour with respect
to humanitarian intervention in the past to clearly understand the inconsistency.40
There is no evidence of state practice and opinio juris in the operation of the norm of
responsibility to protect.41
With the absence of state practice and opinio juris the norm of
responsibility to protect cannot be regarded as an emerging norm in international law.42
1.1 Responsibility to Protect not a totally novel concept international law.
31
1969 ICJ Reports 3,44.See also the Military and Paramilitary Activities in and Against Nicaragua 1986 ICJ 14,
97-98
32
(Advisory Opinion)1996,ICJReports,226,255
33
Mehrdad Payandeh, supra note 7 p484
34
Ibid pp484-485
35
Ramesh Thakur,’R2P, Libya and International Politics as the Struggle of Competing Normative Architecture’
in Thomas Weiss et.al The Responsibility to Protect : challenges & opportunities in light of the Libyan
Intervention(2011)e-International Relations. pp12-14
36
Adopted at the 6491st
meeting on 26th
February 2011,UN Doc. S/RES/1970.
37
Adopted at the 6498th
meeting on 17th
March 2011, UN Doc S/RES/1973.
38
Aidan Hehir, ‘The Illusion of Progress: Libya and the Future of R2P’ in Thomas Weiss et.al The
Responsibility to Protect :challenges &opportunities in light of the Libyan intervention(2011)p18
39
Pattison J., Humanitarian Intervention and the Responsibility to Protect: Who should intervene? Oxford
University Press 2010)
40
Stockburger P., The Responsibility To Protect Doctrine :Customary International Law, An emerging Legal
Norm or Just Wishful Thinking?(2010)Intercultural Human Rights Law Review 345 p.391
41
Mehrdad Pyandeh, With Great Power Comes Great Responsibility supra note 7 p484
42
Stockburger P., Responsibility to Protect Doctrine supra note 40 p404

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The doctrine of responsibility to protect has been described as a novel idea.43
To others the
norm is anchored on already existing norms of international law.44
The doctrine, however,
avails a new application of human security perspective that has over the years eluded policy
makers at the United Nations.45
Rosenberg argues that the responsibility to protect doctrine
has not only reaffirmed the extant principles of international law but it has also innovated
and signalled prospective development in international law hence the doctrine should not be
dismissed as not having added any value to existing norms of international law.46
It is on this
basis that this essay assesses whether the doctrine of responsibility to protect is a new
phenomenon having any impact on the existing principles of international law.
The doctrine of responsibility to protect presents a conceptual shift from the traditional
sovereignty to sovereignty as responsibility.47
The concept of sovereignty as responsibility
bears the notion that a state waives its national sovereignty right when it commits, facilitates
the commission, manifestly fails, or is unwilling to protect its population against mass
atrocities.48
Sovereignty has been the structural paradigm of international law since the Peace of
Westphalia of 1648 was entered.49
Sovereignty operates simultaneously with other
independent norms of international law namely prohibition of use force and non-
intervention.50
The idea of ‘sovereignty as responsibility’ cannot be said to be a novel idea in international
law 51
In the late twentieth century intervening states sought to justify the legality of their
action for humanitarian intervention by referring to sovereignty as responsibility and arguing
that humanitarian intervention were within the principles of non-intervention and use of
force.52
The concept reaffirms the position by international law that a state has a primary
obligation to protect its population from basic human rights violations while at the same time
it owes a legal obligation to the international community.53
The obligation by states to protect
its population from genocide, war crimes and crimes against humanity is enshrined in the
43
Bellamy A.,The Responsibility to Protect –Five Years On supra note14 p143
44
Abour L., The Responsibility to Protect as a duty of Care in International Law and Practice(2008) 34Review
of International Studies p.447
45
Edward Luck, ‘The United Nation and Responsibility to Protect’,(August,2008) Policy Analysis Brief .The
Stanley Foundation at p.5available online at
http://www.stanley-foundation.org/publications/pab/LuckPAB808.pdf last accessed on 11/1/13.
46
Sheri Rosenberg, ‘Responsibility to Protect: A Framework for Prevention’ in Bellamy, Davies and
Glanville(eds)The Responsibility to Protect and International Law (Martinus Nijhoff Publishers, 2009). Global
Responsibility to Protect 442-477 p 442
47
Thomas Weiss, ‘Whither R2P?’ in Thomas Weiss et.al The Responsibility to Protect : challenges &
opportunities in light of the Libyan Intervention supra note 34 p7
48
David Aronofsky ,The International Legal Responsibility To Protect Against Genocide, War Crimes and
Crimes Against Humanity :Why National Sovereignty does not Preclude its exercise(2007)13 ILSA J INT’L &
COMP L. p318
49
Cassese A., International Law, 2nd
Edition(Oxford University Press,2005)p48
50
Mehrdad Payandeh, With Great Power Comes Responsibility? Supra note 7 p 486
51
Carsten Stahn Responsibility to Protect supra note 6 p 111
52
Ibid p.113
53
Abour L.,The Responsibility to protect as a duty of care in international law and practice supra note 44 p446

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principles of state responsibility, international Criminal law and International Human rights
law.54
Under the principle of state responsibility states are under a duty to cooperate and bring to an
end through lawful means a breach of obligation arising out of a peremptory norm in
The states’ obligation prohibiting and preventing violation of peremptory
norms is erga omnes.56
The prohibition and prevention of the crime of genocide was qualified
as a peremptory norm in case Bosnia Herzegovina v. Serbia.57
On whether war crimes and
crimes against humanity qualify as peremptory norms, commentators have given no clear
justification with some only basing on the argument that there is concrete evidence to show
that they indeed qualify as peremptory norms.58
Glanville uses the prohibition against the
crime of genocide’s peremptory status to qualify the other crimes as peremptory
norms.59
With respect to the crime of ethnic cleansing Scheffer argues that it has a de-facto
identity as a crime against humanity that could also grow to the possibilities of marching with
crimes of genocide and war crimes.60
The identification of the Security Council as the chief United Nations body to authorise a
collective action by states is as stipulated 2005 Summit Outcome is not a novel idea as it
reaffirms the position of Chapter VII of the UN Charter.61
The affirmation that coercive action
shall be employed by the international community as a last resort after diplomacy and other
peaceful means have failed reaffirms the proportionality principle of international law.62
On the other hand, the doctrine responsibility to protect can be said to have partly developed
some aspects of the extant norms of international law. 63
According to Rosenberg the doctrine
of responsibility to protect has not only unearthed but articulated and crystalized the
obligation to act by both the individual state and the international community in the face of
mass atrocities.64
The doctrine of responsibility to protect develops the duty to protect
encompassed under the international human rights law which vests a positive obligation on
states to end violations of rights.65
The International Law Commission’s articles identified
that certain breaches were so grave as to trigger not only a right but certain action by
54
Sheri Rosenberg,The Responsibility to Protect supra note 46 p448
55
Articles on Responsibility of States for internationally Wrongful Acts Pt II,Chapter 3 in Report of the
International Law Commission on the Works of its Fifty-third session ,UN GAOR 56th
session No 10 at 43 UN
Doc.A/56/10
56
Barcelona Traction Light and Power Company Limited (Belgium v. Turkey)ICJ 1964
57
International Court of Justice , Case Concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide(Bosnia Herzegovina v. Serbia and Montenegro)General List no.91 26
February 2007
58
Christian J Tams., Enforcing Obligations Erga Omnes in International Law(Cambridge University Press
2005) pp144-5
59
Glanville L., The Responsibility to Protect Beyond Borders supra note 1 p.16 and 26
60
David Scheffer, Crimes Against Humanity and the Responsibility to Protect in Lela Nadya Sadat (ed)Forging
a Convention for Crimes Against Humanity(Cambridge University Press,2011) p 319
61
Mehrdad Payandeh, With Great Power comes Great Responsibility? Supra note 7 p494.
62
Ibid p498
63
Carsten Stahn Responsibility to Protect supra note 6 p.115
64
Sheri Rosenberg, Responsibility to Protect: A Framework for Prevention supra note 46 p448
65
Ibid p. 448. See also Casten Stahn Responsibility to Protect supra note 6 p115

8
states66
and there was need for states to cooperate to bring to an end these breaches through
peaceful means.67
The responsibility to protect has developed this realm of international law
as it emphasises on the need for collective responsibility and channelling that responsibility
vide the Security Council.68
This has a shift in how the international community responds to
humanitarian crises as states no longer possess a positive duty to protect but a collective
responsibility to protect populations in the face of mass atrocities.69
Initially the International Law Commission had prohibition of genocide as the only
peremptory norm but later included prohibition against war crimes and crimes against
humanity as peremptory norms.70
Under the 2005 Summit Outcome Document the doctrine of
responsibility to protect extends these crimes as it entails the protection of the population
from crimes of genocide, war crimes ethnic cleansing and crimes against humanity.71
Hence it could be argued that the doctrine of responsibility to protect reaffirms and partly
develops already existing norms of international law hence it is not a totally novel idea in
2.0. Application of the responsibility to protect doctrine.
The doctrine of responsibility to protect is viewed as the most comprehensive framework for
approaching humanitarian crisis.73
One commentator observes that if the states concerned
complied with the primary guidelines of the doctrine of responsibility to protect before the
Iraq invasion in 2003 the status and repute of humanitarian intervention would have been
different.74
The doctrine of responsibility to protect is engaged at the pre-conflict stages and
remains actively involved even at the post conflict stages until sobriety returns and a rule of
law respecting human right is in place.75
The doctrine has three sets of interrelated
responsibilities namely to prevent, to react and to rebuild.76
The responsibility to prevent was regarded by the ICISS report as the most important
dimension of the doctrine of responsibility to protect.77
Abour argues that the responsibility to
protect doctrine derives it major legal attributes from the law on prevention and punishment
of genocide.78
He further argues that the general acceptance by most states that the crime of
genocide is an international crime has developed into customary international law.79
In the
66
Articles on State Responsibility supra note 55 Article 40(2).
67
Ibid Article 41(1)
68
Casten Stahn Responsibility to Protect supra note 6 115
69
Glanville L., The Responsibility to Protect Beyond Borders supra note 1 p 9
70
Ibid p.26
71
2005World Summit Outcome Document supra note 3 para 139
72
Carsten Stahn Responsibility to Protect supra note 6 p111
73
Hamilton R., The Responsibility to Protect from Document to Doctrine-But What of
Implementation?(2006)19 Havard Human Rights Journal 289-297 p 289
74
Vasuki Nesiah, From Berlin to Bonn to Baghdad(2004)17 Havard Human Rights Journal 97
75
Abour L., The Responsibility to Protect as a Duty of Care in International Law, supra note 44 p
76
International Convention on Intervention and State Sovereignty (ICISS).The responsibility to Protect supra
note 8.
77
Ibid p.XI
78
Abour L. The Responsibility to Protect as a duty of care in international law and practice supra note 44p.450
79
Ibid

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case of Bosnia Herzegovina v. Serbia80
the International Court of Justice held that the
Genocide Convention invokes an obligation to all states to do all they reasonably can to
prevent genocide beyond their borders.81
The Court further held that this responsibility is
only incurred where there is a manifest failure by a state to take all measures to prevent
genocide which were within their power and reach.82
States have a duty of due diligence as
they are required to use all means reasonably available to them so as to prevent genocide.83
In assessing whether a state has discharged its the responsibility to prevent the Court
emphasised that the duty to act under the responsibility to prevent arises the very moment
that state learns of the existence of the imminent risk of genocide being perpetrated.84
In
addition the Court held that states that were at close proximity to the state perpetrating the
crime of genocide bear a higher responsibility as they are in a better position to prevent the
act of genocide but this did not mean the other states were relieved of their obligations.85
From the above, it is evident that the doctrine of responsibility to protect as enshrined in the
2005 Summit Outcome Document reiterates the legal obligation in relation to the crime of
genocide hence it could be argued that the 2005 Summit Outcome Document wanted an equal
legal obligation be accorded to war crimes, ethnic cleansing and crimes against humanity.86
The responsibility to prevent also lies on the members of the Security Council as they are
able to wield more influence.87
The ICISS Report indicated that permanent five members of
the Security Council should refrain from using their veto in situations in need of prevention.88
Abour contends that there is an international public interest where states are obligated not to
inhibit other willing and able states from discharging their duty to protect.89
Article 26 of the
Draft Articles on Responsibility of International Organisation stipulates that an international
organisation could be held liable for breach of obligation arising from peremptory norms of
However Glanville observes that there is no law in place that calls for the
members of the Security Council to justify their exercise veto nor are there any guidelines for
the permanent five of the Security Council to adhere to.91
80
(Bosnia v. Serbia) supra note 55
81
Ibid para 430
82
Ibid
83
Glanville L.The Responsibility to Protect beyond Borders supra note 1 p17
84
Abour L., The Responsibility to Protect as a duty to care in international law and practice supra note 44 p 455
85
Ibid p 454
86
Ibid. p451
87
Glanville L., The Responsibility to Protect beyond Borders supra note 1 p20
88
ICISS Report supra note 8 para 6.13 and 6.20
89
Abour L.,The Responsibility to Protect as a duty to care in international law and practice supra note 42 p453
90
Draft Articles on Responsibility of International Organisation with Commentaries adopted by the
International Law Commission at the Sixty Third session in 2011 and submitted to the General Assembly as part
of the Commission’s Report covering the Work of that session, Yearbook of International Law Commission Part
II Vol II A/66/10
91
Glanville L.,The Responsibility to Protect Beyond Borders supra note 1 p.23

10
From the above it could be argued that states bear the responsibility to prevent and have a
duty to employ due diligence by all necessary means possible to prevent the crimes of mass
atrocities.92
Responsibility to react in responsibility to protect is the use of non-consensual military force
under the authorisation of the Security Council.93
Article 2(4) of the UN Charter allows the
use of force when effecting Chapter VII of the Charter.Under the 2005 Summit Outcome
Document upon the manifest failure or unwillingness by a state, the international community
through the Security Council operating on a case by case basis shall employ diplomatic and
other peaceful measures failure of which coercive measures may be employed as the last
resort.94
Sovereign right is deemed to be hinged on the condition that the state fulfils its
responsibility.95
Under Article 24(1) of the UN Charter the Security Council has the primary
responsibility to maintain peace and security.
Payandeh contends that the aspect of ‘manifest failure’ as enshrined in the 2005 Summit
Outcome Document presents a rather vague threshold because it is not clear when and how
this situation can be identified and which criteria could be used to identify the shift of
responsibility to the international community.96
Stahn contends that the complementarity
aspect entailing the shift of responsibility may also be employed to challenge the legality and
timing of the collective action.97
For example in the case of Darfur where some states in the
Security Council raised concerns that it would be premature to take collective action since the
crises had not reached a stage which it could be identified that the domestic government of
Sudan had manifestly failed to protect its population.98
Since the endorsement of the doctrine of responsibility to protect in the 2005 Summit
Outcome Document, the doctrine has been inconsistently applied in both justifying and
condemning against unilateral interventions or interventions beyond the scope of the doctrine
in various situations under humanitarian crisis involving mass atrocities.99
Furthermore the
aspect that the Security Council shall act on a case by case basis creates a lot of
inconsistencies.100
A recent example of the inconsistency in application of the doctrine of
responsibility to protect by the Security Council could be seen in the Council’s varying
reactions in the Libya101
and Syria102
cases . In the Libyan in March 2011 the UN Security
Council vide Security Council Resolution 1970 in an attempt to solve the crisis peacefully.
The government continued with the systematic attacks on its population necessitating the
92
Ibid
93
Bellamy A.,Responsibility to Protect:The Global Effort to End Mass Atrocities supra note 6 p.132
94
2005 Summit Outcome Document supra note 3 para 139
95
Mehrdad Payandeh With Great Power Comes Great Responsibility/supra note 7p 493
96
Ibid p.498
97
Carsten Stahn, Responsibility to Protect supra note 6 p117
98
Ibid. See also Alex Bellamy, Responsibility to Protect or a Trojan Horse? The Crisis in Darfur an the
Humanitarian Intervention After Iraq(2005)19 Ethics & International Affair31
99
Bellamy A., The Responsibility to protect –Five Years On supra note 14 p149
100
Mehrdad Payandeh, With Great Power Comes Great Responsibility? supra note 7 p.496
101
Weiss T.,et.al The Responsibility to protect :Challenges &Opportunity in light of the Libyan
Intervention(2011)e-International Relations pp1-40
102
Williams P.,Ulbrick J., and Worboys J., Preventing Mass Atrocity Crimes: The Responsibility to Protect and
the Syria Crisis(2011)Case Western Reserve Journal of International Law 45

11
Security Council to authorise intervention under pillar three of responsibility to protect in
resolution 1973 to end the atrocities against the population in Libya.103
On the other hand in
Syria the government continues to engage in gross attack systematic on the population and
engaging in mass atrocities but two permanent members of the Security Council insist on the
adherence to the norms of international law.104
The application of responsibility to protect remains unclear as to what would be the remedy
in the event the international community through the Security Council fails to take any
action.105
Hamilton contends that in the event of an inaction by the Security Council the
Secretary General under the provision of Article 99 of the UN Charter could raise the matter
directly to the Security Council which in his opinion threatens the maintenance of
international peace and security and that requires collective security action under Chapter VII
of the UN Charter.106
In the alternative the General Assembly could convene an emergency
session under the ‘United for Peace’ where recommendations may be made by a two-third
majority.107
However Payandeh contends that these recommendations by the General
Assembly are non-binding recommendations with respect to collection security actions.108
The International Court of Justice in the Certain Expenses of the United Nations Case defined
‘action’ as the coercive enforcement action and that if ‘action’ was required the General
Assembly was required forward the issue to the Security Council.109
The ICISS Report presented a detailed criteria on the use of military intervention such as just
cause, right intention, proportional means right authority, reasonable prospects and last
resort.110
The 2005 Summit Outcome Document does not pick up this criteria and leaves the
aspect in broad and general terms only reaffirming the element of the principle of
proportionality that calls on the military action to be the last resort.111
The 2005 Summit Outcome Document includes Chapter VIII of the UN Charter and declares
that the international community through the Security Council should cooperate with the
regional organisations and use appropriate diplomatic, humanitarian and other peaceful
means to help protect population from mass atrocities.112
The endorsement of the Security
Council as the body to authorise intervention in the face of mass atrocities has restricted the
intervention by regional organisations which are closer to the states that perpetrate the mass
atrocity and would mean delayed action in the face of mass atrocities.113
103
Roger Shahanan, R2P:Seeking Perfection in an imperfect World in Weiss T.,et al, supra not 95 p26.
104
Williams,Ulbrick and Worboys J. Preventing Mass Atrocity Crimes supra note 96 p2
105
Carsten Stahn The Responsibility to Protect supra note 6 p117
106
Hamilton R.,The Responsibility to Protect from Document to Doctrine-But What of Implementation? supra
note 70 p290
107
Ibid
108
Mehrdad Payandeh, With Great Power Comes Great Responsibility? Supra note 7 p502
109
Advisory Opinion 1962 ICJ 151,164-165
110
ICISS Report 2001 supra note 73
111
Mehrdad Payandeh With Great Power Comes Great Responsibility supra note 7 p497
112
2005 Summit Outcome Document supra note 3 para 139
113
Mehrdad Payandeh With Great Power Comes Great Responsibility? supra note7 pp 507-8

12
The responsibility to rebuild is the most uncontested element of the doctrine of responsibility
to protect.114
Bellamy contends that this is the best way of ensuring protection of civilians
from genocide and mass atrocities is through a society composed of responsible states.115
In
2005 the United Nations formed the Peace Building Commission and was charged with the
responsibilities; to marshal resources and propose integrated strategies for post conflict, to
focus attention on the reconstruction and institution building efforts and to improve ways of
improving coordination among all relevant actors.116
Abour contends that there are multilateral judicial mechanism such as the International
Criminal Court and the International Criminal Tribunal of Rwanda and Yugoslavia that help
in dealing with the punishment component of reconstruction and peace building.117
The
International Criminal Court has is mandated under the Rome Statute to conducted
proceeding against perpetrators of genocide, war crimes, ethnic cleansing and crimes against
humanity when the host state fails to act.118
From the above its evident that responsibility to protect is involved all along from the pre-
conflict stages until to post conflict stage however its application in the responsibility to react
remains inconsistent.
Conclusion
There is a general understanding the doctrine of responsibility to protect of responsibility
continues to be at the centre of the debate when humanitarian crises arises. The doctrine of
responsibility tries to reshape correct the aspect of humanitarian intervention but
transforming the right to intervene to a collective responsibility. It lays out a blue print of
how the international community should respond.
However, it remains difficult to find any evidence in practice to show that the norm of
responsibility to protect has indeed become a customary international law.119
The unclear
circumstance when and how manifest failure of a state could be identified has made the
application of responsibility to protect to continue to be referred as a renamed humanitarian
intervention. It would be too early to refer to the norm of responsibility to protect as an
emerging norm in international law.
The norm however cannot be dismissed as apolitical rhetoric or a wishful thinking as it has
not only articulated but has developed already existing norms of international law. It clarifies
and fortifies the aspect of human security that should be diligently protected by states.
This essay contends that the norm of international law has not achieved the status of
customary international law unless state practice changes we might see the norm of
114
Bellamy A., Responsibility to Protect supra note 89 p167
115
Ibid
116
General Assembly Resolution 1645 of 20th
December 2005 and Resolution 60/180 adopted on 30 December
2005.)
117
Abour L.,The Responsibility to Protect as a duty to care in international law and practice supra note 42
pp456-7
118
Article 17 of the Rome Statute
119
Stockburger P.,The Responsibility to Protect Doctrine supra note 36 page404

13
responsibility to protect being used to justify all manner of humanitarian intervention,
However it is too early in time to criticise this norm as it possesses a comprehensive
framework for implementing future intervention. Security having been charged with the duty
of authorising the collective action should ensure its implement without political weighings
and partisan interests .As of now states should understand the doctrine of responsibility and
employ the midset of the ICISS Commission to be able to fully appreciate responsibility to
protect.

14
BIBLIOGRAPHY
Books
Bellamy, Davies and Glanville, The Responsibility to Protect and International Law
(Martinus Nijhoff Publishers 2009)
Bellamy, ‘Responsibility to Protect: The Global Effort to End Mass Atrocities’(Polity
Press,2009)
Cassese A., International Law 2Edition (Cambridge University Press 2005)
Christian Tams, ‘Enforcing Obligations Erga Omnes in International Law’ (Cambridge
University Press2005)
David Scheffer, ‘Crimes Against Humanity and the Responsibility to Protect’ in Nadya
Sadat(ed) ‘Forging a Convention for Crimes Against Humanity’.(Cambridge University
Press,2011)
Pattison J., ‘Humanitarian Intervention and the Responsibility to Protect: Who should
Intervene.’(Oxford University Press 2010)
Thomas Franck ‘The Power of Legitimacy Among Nations’(New York: Oxford University
Press1990)
Journals
Abour L., ‘The Responsibility to Protect as a duty of care in international law’ (2008)34
Review of International studies
Aronofsky D., ‘The International Legal Responsibility To Protect Against Genocide War
crimes and Crimes against humanity :Why National Sovereignty does not Preclude Its
exercise’ (2007) 3ILSA J INT’L 7 COMP L
Bellamy, ‘The Responsibility to Protect-Five Years On’ (2010)24 Ethics & International
Affairs
Brian Babour and Brian Gorlick, ‘Embracing the Responsibility to Protect and the Use of
Force: A Repertoire of Measures Including Asylum from Potential Victims’ (2008)INT’L
REFUGEE L
Brunnee and Toope S., ‘The Responsibility to Protect and the Use of Force: Building
Legality?’ (2010)Global Responsibility Report
Brunnee and Toope S., ‘Norms, Institutions and the UN Reform: The Responsibility to
Protect’ (2006)2 Journal of International Law and International Relations
Casten Stahn, ‘Responsibility to Protect: Political Rhetoric of Emerging Norm?’ (2007) Law
American Journal of International

15
Glanville L., ‘The Responsibility to Protect Beyond Borders’(2012)Human Rights Law
Review
Hamilton R., ‘The Responsibility to Protect form Document to Doctrine-But What of
Implementation?’ (2006)9Havard Human Rights Journal
Legro J., ‘Which Norms Matter? Revisiting the Failure of Internationalism’ (1997)51
International Organisation
Max Mathews ‘Tracking the emergence of New International Norm: The Responsibility to
Protect and the Crises in Darfur’ (2008)IBC INT’L COMP L Rev
Mehrdad Payandeh, ‘With Great Power Comes Great Responsibility? The Concept of
Responsibility to Protect within the Process of International law-making’ (2010) Yale Journal
of International Law

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