INTRODUCTION

The drafting of a comprehensive International Convention on Crimes Against Humanity (Convention) raises the fundamental question of whether and how the emerging principle of the responsibility to protect (R2P) will be integrated with the legal obligations set forth in a finalized Convention. It is entirely possible to draft the Convention without any reference to R2P and without even any inference of the relationship between the defined crimes against humanity set forth in the Convention and the State responsibility measures that frame the application of R2P. Indeed, the anticipated approach to such a drafting exercise might be to set forth a State responsibility to criminalize well-defined crimes against humanity in domestic law for purposes solely of individual criminal responsibility, but to remain silent with respect to the responsibility of the State itself, including its government and military, to protect civilian populations from the commission of crimes against humanity by the State and its institutional organs.

In this chapter, I propose a more ambitious methodology. The reason R2P arises as a challenge for State action and, in more extreme circumstances, Security Council action, is because of the commission of genocide, crimes against humanity, ethnic cleansing, or war crimes (hereinafter together referred to as “atrocity crimes”) of such gravity that a moral and arguably legal duty arises to end the criminal conduct.