Introduction

The Responsibility to Protect (RtoP) is a twenty-first century idea, first described in the December 2001 Report of the International Commission on Intervention and State Sovereignty. The new century began with a re-conceptualisation of the notions of ‘responsibility’ and ‘sovereignty’; notions that required revitalisation to ensure that citizens within states would be protected from avoidable harm. Reflecting this goal, the 2001 Report shifted the focus from rights (the right to intervene) to duties (the responsibility to react to mass atrocities). The 2004 Report of the High Level Panel on Threats, Challenges and Change gave further definition to the scope of the so-called emerging norm, referring to the ‘collective international responsibility to protect’, through Security Council-authorised intervention as a last resort, populations falling victim to genocide and other large-scale killing, ethnic cleansing or other serious violations of international humanitarian law. In the 2005 World Summit Outcome Document, which further emphasised the preventive aspect of RtoP, the categories of crime were simplified to include genocide, war crimes, ethnic cleansing and crimes against humanity. In his 2009 Report on ‘Implementing the Responsibility to Protect’, the Secretary-General of the United Nations (UN) stressed that: ‘The responsibility to protect, first and foremost, is a matter of State responsibility, because prevention begins at home and the protection of populations is a defining attribute of sovereignty and statehood in the twenty-first century.’

RtoP may be viewed as a matter of State responsibility in a different sense from that employed by the Secretary-General. The codification of the rules governing the responsibility of States for internationally wrongful acts was one of the first topics on the agenda of the International Law Commission (ILC) when it commenced its work in 1948. Coincidentally, it was in 2001 that the ILC's codification effort culminated in the adoption of the Articles on State Responsibility. The formulation of the rules concerning the regime applicable to wrongful acts of particular seriousness, such as genocide, proved especially complex. In view of the ILC's travails in this respect, the notion of a ‘serious breach of an obligation arising under a peremptory norm of general international law’ entailing special consequences in the form of obligations on third States, may ultimately be said to reflect a twentyfirst century idea as well, even if rooted in established principles.