L’obbligo di prevenzione del genocidio al di fuori del proprio territorio come base della responsabilità di proteggere. Rilievi critici

The last decade has been characterised by a very animated scientific debate relating to the admissibility of humanitarian intervention based on the doctrine of the Responsibility to Protect, that shapes in a new way the concept of territorial sovereignty and seems to redefine the rules about the use of international force. This essay, after a brief review of the general practice in relation to the Responsibility to Protect, attempts to evaluate the impact on this field of the provision of an obligation for States to prevent genocide outside their territory, according to Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide, as interpreted by the International Court of Justice in the Bosnia v. Serbia case (2007). According to this decision, there are different obligations arising from the Convention for the States and the territorial scope of the Convention varies with each particular set of obligations; the Court affirms that, in addition to the concept of jurisdiction – related to the punishment of the facts and therefore territorially limited – there is also the new concept of influence – with the aim of preventing genocide, based on factual and legal criteria not bound by territoriality. Several academics have argued that the Court’s words are an important jurisprudential foundation for the Responsibility to Protect: therefore in this essay conditions, procedures and limits of such an intervention will be analysed, in particular the problem of its compatibility with general international law and the U.N. Charter. The conclusion is that the obligation to prevent genocide outside the territory of a State cannot legitimize a humanitarian intervention beyond the existing limits of international law. This confirms that the Responsibility to Protect is only a political doctrine and therefore without any possible application outside the U.N. system of collective security