Introduction

The beginning of the third millennium witnessed the coining, adoption and rise of the humanitarian doctrine of ‘Responsibility to Protect’ (RtoP), composed of three elements, namely the duty to prevent, the duty to react and the duty to rebuild. The scope and character of this overarching principle remain contentious and are vigorously debated in key international political fora, such as the General Assembly (GA) of the United Nations (UN). Operationalising the responsibility to protect has been rightly described by the UN Secretary-General as one of the cardinal challenges of our time. In spite of considerable literature on different aspects of the responsibility to protect and related issues, little if any attention has been paid to the important role that key international judicial institutions such as the International Court of Justice (ICJ) can play in interpreting and developing the emerging overarching principle of responsibility to protect. This chapter provides a brief analysis of the possibilities and the ICJ's legal findings relevant to developing, interpreting and enforcing relevant obligations falling under the responsibility to protect.

In addition to acknowledging and elucidating the concept of RtoP, the 2005 World Summit Outcome Document (WSO Document) entrusted the UNGA with continuing consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. As a result, this important issue, intrinsically related to global human security and human rights protection, became part of the GA's agenda. The Security Council (SC) has also reaffirmed the provisions of paragraphs 138 and 139 of the WSO Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The UN Charter provides that the ICJ is one of the main organs of the organisation and its principal judicial organ.

Entrusted with settling inter-State disputes and advising the main UN organs and specialised agencies on legal matters, the ICJ can assist in providing more clarity on this issue through interpreting and developing the rationale behind the concept, and the incumbent legal duties upon States, while offering the necessary legal venue for enforcing obligations arising under the RtoP.