The notion of the responsibility to protect rests on three fundamental pillars, each susceptible to different normative and conceptual challenges. The crimes included in the first pillar – genocide, war crimes, crimes against humanity and ethnic cleansing – constitute some of the most heinous breaches of international law. The inclusion of these crimes, however, raises certain questions, of which the two most fundamental are: first, whether reliance on international crimes is the most desirable approach at all; and second, whether the choice of the crimes that are included is convincing. The present contribution offers some reflections on these questions by addressing the normative and conceptual implications of choosing these crimes as potential triggers of RtoP.

Is Reliance on International Crimes the Best Approach?

In 2001, the report of the International Commission on Intervention and State Sovereignty (ICISS) took a very different approach to RtoP from that which emerged in later documents. As a comprehensive attempt to conceptualise RtoP, the Report postulated that the responsibility of states – other than the territorial state – was triggered by the population ‘suffering major harm’ and by the unwillingness or inability of the state concerned to halt or avert such suffering. In contrast to the 2004 High-Level Panel Report, the 2005 ‘In Larger Freedom’ Report and the 2005 World Summit Outcome Document, the ICISS report did not rely on a list, let alone an exhaustive list, of international crimes. Instead, the initial notion of RtoP indicated that – at its core – the concept was about the serious harm that a population suffered. One might ask whether this initial, less legalistic approach did not capture the essence of the notion of RtoP better than the exhaustive list that emerged from later documents. From a moral standpoint, it appears to be at least debatable that a population suffering from, or being threatened by, serious harm is any less deserving of protection if and when the harm does not amount to one of the crimes mentioned in the later documents, than when it does. Equally hard to sustain, however, would be an alternative argument that stretched the notions of these crimes, in order to bring as many situations that one considered appropriate within the reach of RtoP.