INTRODUCTION: USING ‘JUDICIAL FORCE’ TO ENCOMPASS A MEANS TO AN END FOR R2P

The responsibility to protect (R2P) is undoubtedly one of the most topical, but also controversial, concepts in international law. One reason for this is that its conceptualisation and implementation require exigent legal concepts to be employed in a way that is different to their conventional use and definition. Examples of concepts pertaining to this include those of sovereignty and responsibility. The doctrine of state responsibility, which was gradually formulated by inter-state arbitration practices during the 18th and 19th centuries, refers to the breach of international law by a state as the basis of its liability. However, within the context of R2P, responsibility is not associated with liability. This responsibility is reshaped towards protection and is seen as a duty for states and, more generally, for the entire international community. As such, R2P is a nascent and intuitive concept resulting from necessity and sustained by the strong will of the international community (beyond states) as well as our own morality and ethics rather than state practice. It has a fairly broad scope of application aimed at human security and encompassing a ‘continuum of prevention, reaction and rebuilding, spanning from early warning to diplomatic pressure, and to coercive measures’.

R2P was first defined by the International Commission on Intervention and State Sovereignty (ICISS) in 2001. ICISS employed the language of ‘R2P’ instead of that of the ‘right of intervention’ with a view to re-characterising the concept of sovereignty ; thus, a concept that was formerly perceived as a tool for controlling citizens was then asserted as a responsibility to ensure their safety, protect their lives and promote their welfare. This conceptual change in thinking seems recent, but, in fact, was advanced by Deng decades earlier – although his focus was on the protection of internally displaced people and on international assistance to complement the incapacity of weak states. More recently, the UN Secretary-General, Ban Ki-moon confirmed this understanding stating that ‘sovereignty confers responsibility, a responsibility to ensure protection of human beings from want, from war and from repression’.