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A Bird in the Hand is Worth Two in the Bush – On the Assumed Legal Nature of the Responsibility to Protect

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Based on the jurisprudence of the International Court of Justice that resolutions of the General Assembly can only create legal provisions in exceptional circumstances, the review of the negotiation history of the Summit Outcome Document and the recent practice of the General Assembly, the Security Council and the Human Rights Council related to the implementation of the agreement on the responsibility to protect leads to the conclusion that no new collective legal obligation has been created. Instead, the responsibility offers an opportunity to improve the implementation of existing legal obligations to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing. If used for the development of a continuum of civil and military action to prevent and halt only these exceptional crimes, the necessary practice and opinio juris might be created over time, to establish the responsibility to protect as a norm of international customary law.


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