Introduction

The objective of this chapter is to spell out the legal consequences of ‘responsibility to protect’ (RtoP) for the Security Council and its members. The chapter is a thought experiment, because the binding legal force of RtoP is not settled. My argument is that, once RtoP is accepted as a full-fledged legal principle, the Security Council (and its members) would be under a legal obligation to authorise and take sufficiently robust action in RtoP situations. The chapter then discusses the problems engendered by the acceptance of such a material obligation and instead suggests a procedural obligation to justify inaction.

Content of RtoP

The General Assembly's World Summit Outcome Document (WSO Document) of 2005 defined RtoP in paragraph 138 for the individual state and in paragraph 139 for the international community. The initially broad and fuzzy scope of RtoP, as suggested in the 2001 Report of the International Commission on Intervention and State Sovereignty (ICISS)3, has been narrowed and more precisely circumscribed in state practice. It is now agreed that RtoP relates (only) to the core crimes as defined in Articles 6-8 of the International Criminal Court (ICC) Statute (genocide, war crimes, and crimes against humanity including ethnic cleansing). It is also clear that responsibility first of all rests on the territorial state. Finally and most importantly, states have accepted the residual responsibility of the international community: if the territorial state is unwilling or unable to grant protection, it is for the international community to step in.

The Security Council as One Bearer of RtoP

Security Council not Legibus Absolutus

If RtoP is a legal (or at least nascent legal) principle, then the Security Council's duty to take sufficiently robust action in an RtoP situation is not only a moral duty, but a legal one. The premise of any legal obligation on the side of the Council to act is that this body is not a purely political organ acting in a law-free zone, but subject to legal limits.

In contrast, the traditional reading of the United Nations (UN) Charter was that the Security Council was the quintessential political organ of the organisation, and had full powers without international legal limits. This traditional view was defensible with the observation that pernicious consequences need not be feared.