The Concept of Unilateral Non-Forcible Measures

The Responsibility to Protect (hereafter RtoP), as defined in the World Summit Outcome Document (WSO Document), is a narrow but deep concept that encompasses, under its three pillars, a set of highly diversified measures. The most politically disputed among them and also the most legally controversial are measures falling under the third pillar, which concerns ‘the timely and decisive response’ by the international community to the manifest failure of the territorial state to protect its population from genocide, war crimes, ethnic cleansing, and crimes against humanity (hereafter RtoP crimes). Those measures can have different forms depending on the context in which they take place, the actors they involve, the authoritative backing they get, and the means they resort to.

This text focuses on one particular type of third-pillar measures, namely unilateral non-forcible measures. The term, taken from the literature on sanctions, is used here to designate measures which are adopted by individual states, groups of states or international organisations to prevent or stop RtoP crimes. These measures have four main characteristics. First, they are non-consensual in nature, which means that they take place without the consent of the territorial state. This requirement is met both when the consent is explicitly denied and when it is prima facie given, but either lacks validity or the conduct allegedly based on it exceeds its limits. Second, the measures are unilateral, that is, adopted outside the United Nations (UN) system, without an authorisation from the UN Security Council. This excludes from the scope of the definition measures undertaken in the framework of sanction regimes established under Chapter VII of the UN Charter. Sanctions imposed by regional organisations and individual states, on the contrary, remain included, because unlike the UN sanctions, they do not enjoy any privileged position under international law.

Third, the measures are non-forcible in nature, in the sense that they do not involve the use of military force. That does not preclude them from being coercive in nature, as they in most cases will have to be to prevent or halt RtoP crimes. Yet, coercion needs to stop short of the use of military force. The measures can be compatible with international law or involve derogations from specific treaty provisions or general customary rules.