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International Coalition for the Responsibility to Protect

The International Criminal Court and the Responsibility to Protect (RtoP)

The International Criminal Court

The Rome Statute of the International Criminal Court (ICC) was adopted in July 1998 and came into force on 1 July 2002. Motivated by a desire to end impunity, the intention behind the ICC’s creation was to fill the conspicuous gaps in international criminal justice, which were previously only addressed intermittently by ad hoc tribunals, such as the Nuremberg Trials, the Tokyo War Crimes Trial, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for Yugoslavia (ICTY).

While an initial mandate to consider an International Criminal Court was proposed shortly after the founding of the United Nations, political and diplomatic realities stalled its progress. Nevertheless, with the conclusion of the Cold War came reinvigorated calls for the Court, and the events in such places as Rwanda and the Former Yugoslavia accentuated the need. To this effect, the modern conception of the ICC was received with enthusiasm by members of the international community as a serious deterrent to the commission of atrocities. The Rome Statute, the treaty on which the Court is founded, secured 66 ratifications in April 2002 and as of June 2009, 109 of the 192 United Nations member states have ratified the Rome Statute. The ICC is the first permanent international judicial body mandated to investigate the commission of and to try alleged perpetrators for the most serious crimes: war crimes, crimes against humanity and genocide.

The ICC has jurisdiction over the acts of individuals, not states.  The Rome Statute explicitly indicates that  royalty, heads of state, and other officials are not exempt from its jurisdiction; in short, there is no immunity[1] for individuals before the ICC, as demonstrated by the arrest warrant issued for Sudanese president Omar al-Bashir. The organ of the Court charged with investigating and presenting evidence against alleged offenders is the Office of the Prosecutor (OTP). The OTP can initiate an investigation of situations if one of three conditions are met: i) a State Party to the Rome Statute has referred a situation involving a State also party to the Statute (this includes self-referrals); or, ii) the Prosecutor has applied to and received approval from the judges of the Court to begin an investigation into a situation in a State which is party to the Statute; or, iii) the Security Council has referred the situation to the OTP for investigation, regardless of whether the situation country is a State Party.

The Rome Statute provides new guarantees for justice for women, extends the coverage of gender related crimes such as rape, and includes historic advances in the protection and rights of victims.[2]  In particular, the ICC involves victims as an independent third party, as opposed to their traditional role of witnesses for the Prosecution or Defence. The Rome Statute affords important protection to children, including prohibitions against the recruitment of children as soldiers. The first trial heard before the ICC involves indictments against Thomas Lubanga of the DRC for his involvement in the enlistment and conscription of child soldiers under the age of 15 and for the use of these children as active participants in hostilities.[3]

As well, the Court also possess jurisdiction over the Crime of Aggression; however, pursuant to the Rome Statute the ICC is unable to exercise this jurisdiction until States Parties reach consensus on the definition of the offence and the conditions on the Court’s jurisdiction. A Special Working Group on the Crime of Aggression recently completed its efforts in attempting to draft a provision, yet some work remains to be done. A draft will be considered at the first Review Conference on the Rome Statute to take place in 2010.

The Responsibility to Protect

RtoP asserts that the primary responsibility of the protection of civilians from genocide, war crimes, crimes against humanity and ethnic cleansing within their borders lies with the state, only when the state is unwilling or unable to fulfill this responsibility does the responsibility yield to the international community. In exercising this responsibility, the international community must act within a continuum of actions ranging from prevention to reaction to rebuilding. These principles were included, as paragraphs 138 and 139, in the Outcome Document of the 2005 World Summit.

The responsibility to prevent is the single most important aspect of the RtoP norm, aimed at addressing root and direct causes of conflict that may put human security at risk. The responsibility to react consists of a wide spectrum of measures, including economic, political and diplomatic tools, with the very last resort being military intervention, and only if such intervention meets a stringent set of criteria. The responsibility to rebuild focuses on the recovery, reconstruction and reconciliation of a state; aimed at preventing potential recurrences of humanitarian crises.

The Rome Statute of the International Criminal Court and the Responsibility to Protect

The nuances in the principles of the primary and secondary responsibility to protect are not unlike the principle of complementarity upon which the Rome Statute is based. Complementarity holds that national legal systems retain primary responsibility for the investigation and prosecution of Rome Statute crimes; the ICC only assumes jurisdiction when nations are unable or unwilling to hold legitimate proceedings concerning the related offences. Both the ICC and the RtoP reinforce the responsibilities of sovereign nations; similarly the secondary responsibility of the RtoP norm--in particular the use of force--can only be exercised (under Chapter VII) when the state involved is unwilling and unable to fulfill their primary responsibility to act. Thus, both the ICC and the RtoP norm primarily require cooperation from sovereign states to fulfill their obligation in preventing the worst crimes known to humanity from being committed.

The ICC and the RtoP norm enjoy a complementary relationship; they work together towards the prevention of crimes against humanity, war crimes and genocide. As recommended by the International Commission on Intervention and State Sovereignty (ICISS), the utilization of judicial remedies whether through national systems or the ICC, is one of the ‘reaction mechanisms’ within the conception of RtoP. This notion is further emphasized in Secretary-General Ban Ki-moon’s report, in which he asserts that all states should be party to the Rome Statute and assist the ICC as a vital step in fulfilling the protection responsibilities of the state (Pillar One). As well, Ban highlights the deterrent effect of the ICC in his discussion of timely and decisive responses (Pillar Three), in which he suggests reminding the perpetrators that their actions are, “subject to prosecution by the International Criminal Court,” may dissuade them from their course of action.

RtoP employs the judicial authority of the ICC both as a reactionary tool invoked in response to instances of these crimes, as well as, a means of deterrence so as to prevent these crimes from occurring. In turn, the RtoP norm reinforces the complementarity principle of the ICC, in which primary responsibility falls upon sovereign states; as such the RtoP norm aids the ICC’s quest to end impunity by advocating for states to assume judicial responsibilities.

Hence, in order for the international community to truly progress towards actualizing the refrain of “never again”, a multifaceted approach is required: the international community must act to collectively promote the universal acceptance of the RtoP norm, and in addition, states need to support and assist the ICC. Together these components of international law and international relations produce a comprehensive foundation of deterrence and justice, and provide a basis upon which RtoP can realize the transition from concept to practice.

[1] Article 27.

[2] See, for example, Article 7, para. 1(g); Article 8, para. 2(b)(xxii); and Article 68.

[3] Article 8, para. 2(b)(xxvi).


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