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required.⁶⁵⁴ However, the proposition here does not suggest alternatives to the UNSC collective enforcement powers in reaction to atrocity crimes when they occur. Ultimately these subsequent endorsements and recognition of R2P provides a comprehensive consideration of the imperative norm of R2P in the official documents of the United Nations which presents a concrete indication of the advancement of R2P implementation.

Consequently, the emergence of the concept of R2P resulting from the deliberations on the intervention-sovereignty debate by ICISS in 2001 to a globally recognized and a large extent acceptance international norm that has established a more effective response to conscience-shocking situations than the international community has put together since the creation of the United Nations. However, if the R2P concept is to constitute a fundamental framework of reference within which horrendous human rights breaches are to be evaluated with the attendant appropriate response, it has to clearly attract global recognition and acceptance. Perhaps, it is the greater need to sustain the global recognition and application of the R2P principle that concerted effort is galvanized to maintain and advance the universal acceptability of the rapidly evolving norm of R2P.Thus, the High-Level Panel on Threats, Challenges and Change in its report, titled: A More Secure World, Our Shared Responsibility that was submitted to the UN Secretary-General in December, 2004 explicitly adopted the concept of R2P in its entirety in the following words: „We endorse the responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide or other large-scale killing, ethnic cleansing or serious violations of an international humanitarian law which sovereign governments have proved powerless or unwilling to protect.⁶⁵⁵

6.2.3 The Status of the 2005 World Summit Outcome Document and 2001 ICISS Report

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Therefore, inspite of the adoption of the Outcome Document by heads of government under the auspices of the UNGA, it is not an international treaty or other established legal framework and has not in any way crystallized into the rule of customary international law.⁶⁵⁶

The creation of international legal rule is generally a consequence of international treaties and customary international law. The 2005 Outcome Document is a product of the UNGA Resolution 60/1 which adopted the tenets of the R2P. However, the resolution of the UN General Assembly is not yet attained the status of a formal source of international law. It is pertinent to emphasize that the powers vested on the UNGA are explicitly prescribed by the UN Charter according to which the General Assembly is restricted to discussion on matters within the confine of the Charter and the maintenance of international peace and security, referring matters or making recommendations to the UN Security Council or to undertake studies so as to promote international cooperation.⁶⁵⁷ Thus, inspite of the significance of the adoption of the World Summit Outcome Document by the UN General Assembly, it is devoid of any legal obligation in terms of its application.

The 2001 ICISS Report laid the ground work for the adoption and recognition of R2P by the World Summit Outcome Document. However, neither the ICISS Report nor the Outcome Document adopted by the UN General Assembly can create international legal obligation. Essentially, positive international law makes it explicit that the ICISS Report and the Outcome Document together with the R2P tenets adumbrated thereto do not constitute a fresh source of international law. On the contrary, the relevant stipulations of the Outcome Document relating to R2P are at best political statements by heads of government and the UN General Assembly re-asserting extant international legal rules, potentially laying the foundational framework for the creation of new legal obligation in the future. Going by the stipulations of the Outcome Document, it merely re-asserted extant legal rules of treaty and customary law prohibiting and requiring the prevention of war crimes, crimes against humanity and genocide.One thing is clear though, that the Outcome Document laid emphasis on the prevention rather than the

656 The World Summit Outcome Document is not a source of international law as prescribed by the Statute of the International Court of Justice, Article 38.

657 See generally Articles 10-14.

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prosecution of the atrocity crimes. It is our submission that the Outcome Document by this approach built on existing legal rules of international law instead of the creation of new set of legal rules. However, the contribution of the ICISS Report together with the World Summit Outcome Document and the subsequent adoption of the tenets of R2P espoused in these documents has fundamentally redefined the discourse on the intervention-sovereignty dichotomy, changed expectations and affected state attitude. The R2P concept-encapsulated in the ICISS Report and World Summit Outcome Document is yet to satisfy the requirements ofopinio juris backed by uniform state practice.⁶⁵⁸

The relevant portion of World Summit Outcome Document dedicated to the concept of R2P starts with an assertion of the extant legal rules. In particular, paragraph 138 stipulates that, „Each individual state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity.‟Essentially, this stipulation amounted to restating the existing legal rules contained in certain international legal instruments. This is illustrated in theConvention on the Prevention and Punishment of the Crime of Genocide, the four Geneva Conventions and Customary legal rules relating to crimes against humanity as articulated through the work and decision of the International Criminal Tribunal for the Former Yugoslavia and Rwanda. The only new addition to the Outcome Document is the inclusions of ethnic cleansing on the list of crimesthat states have responsibility to protect their citizens.

Furthermore, the second sentence of paragraph 138 of the Outcome Document is also a reflection of extant international law by asserting that „this responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means.‟ However, the international legal instrument creating international criminal responsibility for genocide and war crimes and the customary rules prohibiting crimes against humanity further incorporate the obligation to prevent crimes inclusive of the prevention of incitement.The Outcome Document also stipulated in paragraph 138 that, states „accept that responsibility‟ which is not anything new in that the extant legal rules in relation to the prevention and punishment of atrocity crimes in context bind state parties thereto by virtue of pacta sunt servanda doctrine.However, the existing treaties and customary rules that seek to prevent and punish acts of genocide, war crimes and

658 See North Sea Continental Shelf Case (1968) ICJ Report 1.

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crimes against humanity place emphasis on the obligations of the sovereign states.The Outcome Document in its paragraph 138 affirms the obligation of the international community to employ peaceful measures. In essence the Outcome Document seeks to create a subsidiary level of prevention, complementary but subordinate to the protection exercised by the sovereign states. Thus, as made manifest in the complementarity jurisdictional principle of the International Criminal Court, the tendency of complementary international action can encourage sovereign states to undertake actions and present a viable alternative if the sovereign authority is unable or unwilling to take action.⁶⁵⁹

Despite its shortcomings, the Outcome Document marked a significant milestone in the development of the R2P Principle and represented a formidable political statement.

It re-asserted the fundamental principles of international law, placing emphasis on prevention rather than reaction. It pointed out the responsibility on states to help each other in the prevention of atrocity crimes. The responsibilities encapsulated in the Outcome Document are anchored on extant international legal rules and the tools of multilateral response are also restricted to the prevailing measures at the disposal of the UNSC contemplated within the precinct of the UN Charter.All these, notwithstanding, the importance of the UN Security Council‟s re-affirmation of the relevant portion of the World Summit Outcome Document derived from the UN Charter, according to which,

„the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present charter.‟⁶⁶⁰ Consequently, from the legal dimension, the wording of UN Security Council in its Resolution 1674 fell short of an official decision necessitating member states to undertake the implementation of the R2P principle. However, it seems that this development will pave the way for the substantive codification of the concept of R2P.