The International Criminal Court and the Responsibility to Protect: Is this Marriage to be Performed?

Introductory remarks

The International Criminal Court (hereinafter, the ICC or the Court) and Responsibility to Protect (hereinafter, the RtoP or the Doctrine) have a remarkable number of aspects in common. They share a parallel history, both having developed in the last decade; a common cultural background, privileging individual dignity over state sovereignty; and mutatis mutandis they both pursue the aim of preventing and putting an end to mass atrocities and international crimes. Many have separately examined different aspects of both the Doctrine and the Court, only a few have enquired of the relationship between them. One reason of this scholastic lacuna is that the RtoP and the ICC fall within different — and often incommunicable — fields of study. Using the effective metaphor of the three separate tribes of international law (internationalists, pénalists, droit de l’hommistes)[1], the RtoP has been researched mainly by internationalists, given its impact on the State sovereignty, the ius ad bellum and on the UN system. On the other hand, the studies related to the ICC generally have an international criminal law or transitional justice approach. As a result, the RtoP and the ICC are usually examined as separate areas of study, regardless of the potential dynamics and synergies between them.

From both a methodological and practical point of view a comparison between a judicial institution and a Doctrine can be controversial. Indeed, the ICC is a permanent Court established by an international treaty, that is the 1998 Rome Statute, which clearly defines the functioning of its organs. Conversely, the RtoP is a concept still in evolution. Various subjects (the UN Secretary General, the Security Council and single States) have been able to stretch the Doctrine according to different contexts and purposes (international cooperation, humanitarian intervention), creating what has been defined as a “Tower of Babel”. Thus, the Doctrine is to be considered as a tool for diplomacy, rather than for international criminal justice. This notwithstanding, under different perspectives, a strong synergy exists between the two.

After a decade of parallel evolution (from the comprehensive analysis of the International Commission on Intervention and State Sovereignty of 2001 and the entry into force of the Rome Statute in 2002), the 2009 UN Secretary General Report “Implementing the Responsibility to Protect” expressly marked the connection between the Doctrine and the Court. According to Ban Ki-Moon, indeed, [b]y seeking to end impunity, the International Criminal Court and the United Nations-assisted tribunals have added an essential tool for implementing the responsibility to protect, one that is already reinforcing efforts at dissuasion and deterrence. Two years later, the UN Security Council adopted Resolution 1970 of 2011 through which it referred the situation of Libya to the ICC. The Resolution recalled “the Libyan authorities’ responsibility to protect its population” and therefore made these parallel histories intersecting and affirmed the existence of a relationship between the Doctrine and the Court in facing a situation of crisis.

Still, it is unclear whether an effective interplay between the doctrine and the Court is in fact desirable. The paper will consequently present the arguments in favour and against the synergy between the ICC and the RtoP, identifying the current obstacles to the celebration of their marriage.

Adelante, con juicio: Reasons for a Synergy

The ICC and the RtoP share the same philosophical origin, namely, what has been defined as liberal cosmopolitanism. This school of thought, which dominated the UN discourse in the 1990s, considered universal democracy and criminal justice as the best ways to achieve global peace. The main differences between the Doctrine and the Court might indeed be interpreted as an opportunity to complement each other by fulfilling the aim of ending mass atrocities, while holding those responsible for the commission of international crimes accountable.

Since the moment its Statute was drafted, the ICC has been referred to as a “Giant without legs”. Such an expression emphasises the strength of the legal structure of the Court and, at the same time, its dependency on the cooperation of States when it comes to implement its decisions. Conversely, as a diplomatic tool, the RtoP can influence state policies, to the point of challenging their sovereignty, in order to protect their populations from mass atrocities. Yet, the Doctrine lacks a defined legal framework for its action, which exposes RtoP to the risk of being misused by political actors. In any case, theoretically, the RtoP might empower the ICC with the necessary State cooperation to effectively carry out investigations and prosecutions in a certain situation. At the same time, the Court may provide the Doctrine with an independent judicial scrutiny for its action.

More generally, the action of the ICC in certain situations could ideally have a deterrent effect in relation to the perpetration of mass atrocities, thus contributing to the purpose of the RtoP. However, the ICC’s deterrent effect is highly disputed. Many scholars affirm that it is too early to reach definitive conclusions about the possibility for the Court to deter international crimes. Some critics in fact accuse the ICC of causing the opposite effect, by jeopardising peace processes and, as it has been the case in the Darfur situation and on the occasion of the Court’s issuing of the arrest warrants for al-Bashir, provoking violent reactions by politically-influential individuals when charged with international crimes.

“This Marriage is not to be Performed”: Arguments Against a Synergy

The ICC and the RtoP also share the fact of experiencing a paradoxical contradiction. They were in fact both conceived to be independent from any political power in order to affirm the principle of rule of law. Only then it would have been possible to end impunity with regard to the perpetrators of international crimes and identify those appropriate cases that would need an intervention of the international community to end mass atrocities. Conversely, both the Court and the Doctrine have been subjected to criticisms for applying double standards and being influenced by political powers, including the permanent members of the Security Council.

The influence of the Security Council over the ICC is partially regulated by the Rome Statute. The Council is indeed empowered inter alia to trigger the jurisdiction of the Court and to temporarily suspend its proceedings. Most importantly, part of the influence is exerted through extra-legal pressures (most notably, the lack of support to obtain the necessary cooperation by relevant States), which are in fact difficult to contrast with any statutory countermeasures. In addition, the ICC is struggling to carry out its action in situations where it is expected to play a role in contrasting on-going atrocities. As for the Libya situation, for instance, the Security Council specifically mentioned the RtoP when it triggered the Court’s jurisdiction through Resolution 1970/2011. However, so far the ICC has not been able to prosecute the responsible persons. The Prosecutorial strategy privileged domestic proceedings over international prosecution, despite risks of grave violations of the due process rights of the accused.

At the same time, RtoP received similar criticisms for lack of impartiality. The Doctrine has been recalled by different actors with contradictory criteria. The opposite approaches of the international community towards the 2011 Libya and 2013 Syria crises are recalled as examples of double standards. The absence of a clear legal framework shows that the Doctrine has not reached a definitive shape. Even the core elements of the RtoP, such as the concept of “sovereignty as responsibility”, are challenged within diplomatic talks in order to obtain a wider support among States. Given the current situation, the Doctrine is not able to contribute to the implementation of international justice in a situation of crisis, nor can it benefit from a judicial scrutiny of the Court for assessing situations where intervention is worthwhile.

Conclusions

As in Manzoni’s novel “The Betrothed”, many obstacles occur in the celebration of the marriage between the ICC and the RtoP. Their common sources, their shared cultural origin, or DNA, might lead one to conclude that it would be even better not performing the union at all. However, given their recent creation, which is less than 15 years ago, it might be too early for an effective interplay between the two. Both the Court and the Doctrine are still in the process of developing their identity, by finding their place within the international law system and, most of all, struggling for their independence from the political power.

[1]Clapham A., ‘Concluding Remarks: Three Tribes Engage on the Future of International Criminal Law’, in Journal of International Criminal Justice, (2011), 9, 689.

betrothed

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1 Comment

Filed under International Criminal Law, Public International Law

One response to “The International Criminal Court and the Responsibility to Protect: Is this Marriage to be Performed?

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