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The Responsibility to Protect: A Legal and Rights-based Perspective

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This article analyses the responsibility to protect from a legal and rights-based perspective. It shows that the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity is rooted in existing International Human Rights Law (IHRL) and International Humanitarian Law (IHL). These crimes fall under the jurisdiction of the International Criminal Court (ICC) and evoke serious international legal consequences under all circumstances, also if tried by national courts. Protection of the individual against atrocities is a primary responsibility of states. However, if a state is unable or unwilling to exercise its protection obligations, these shift to international organisations, including the United Nations or any other authority controlling the territory and its population. The article further analyses various protection tools available within the UN human rights machinery, in particular the Human Rights Council (HRC) and the Office of the High Commissioner for Human Rights (OHCHR) and concludes that they could play a much stronger role in preventing and addressing the atrocities and that the most important obstacle in this respect is the prevailing institutional gap between human rights and security matters within the UN. The article concludes that the responsibility to protect clause adopted by consensus by the 2005 World Summit in its Outcome Document (GA Resolution A/60/1) constitutes an important commitment towards implementing these universal rights and obligations which are lacking enforcement and continue to be violated, especially in armed conflicts. It also identifies research and policy recommendations that may facilitate operationalisation of this important clause.


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