‘Failures to Protect’ in International Law

André Nollkaemper

SHARES Research Paper 26 (2013), ACIL 2013-15

➡ Click here to download the paper. Also available on SSRN.

Published in: M. Weller (ed.), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015), pp. 437-464.

Every new mass atrocity tends to provoke a critique of outside actors that failed to protect populations. Many observers are no longer content with condemning perpetrators and extend their moral outrage to bystanders who should have done more. However, from a legal perspective there is something disingenuous about applying a ‘failure to protect critique’ in one brush to both perpetrators and bystanders. This paper argues that failures to protect of bystanders are built in and to a large extent induced and legitimized by the international legal system. International law provides a framework for political debate on how this shared responsibility should be performed: who should protect where and when. But this framework allows individual bystanders to hide behind a failing political process, and to escape individual responsibility for failures to protect.

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