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ICC, R2P, and the International Community’s Evolving Interventionist Toolkit

Frédéric Mégret*

1. Introduction ................................................................................................ 1  2. ICC and R2P: Mutual Convergence ........................................................... 3  

2. 2. The ICC............................................................................................... 7  2.3 R2P...................................................................................................... 12  

3. The Irresistible Attraction of Power ......................................................... 15  3.1. Gravitating Towards the Sovereign.................................................... 16  3.2. Gravitating Towards the Security Council......................................... 21  

4. Who Gains? .............................................................................................. 26  5. Concluding Thoughts ............................................................................... 31  

1. Introduction

Both the ICC and R2P as projects share classic features of idealism: a willingness to put

word above fact; a strong principled and deontological push; an insistence over the

desirable rather than the merely achievable. They are culminations of a tradition of

vibrant international norm entrepreneurship, which they contribute to update in an age of

globalization and cosmopolitan human rights,1 and which involves a mixture of

convincing, nudging and shaming some of the powers that be into apparently accepting

something that they may otherwise not have accepted. They also have their root in some

of the most momentous international legal developments of the times. They are, for

* Associate-Professor at the Faculty of Law, McGill University, and the Canada Resarch Chair on the Law of Human Rights and Legal Pluralism. I would like to express my gratitude to Anne Lagerwall for some helpful and pointed comments. 1 See Ramesh Thakur and Thomas G. Weiss, ‘R2P: From Idea to Norm - and Action?’, 1 Global Responsibility to Protect (2009) 22-53 (describing R2P as ‘the most dramatic normative development of our time’).

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example, at the avant garde of a movement that seeks to endow states with positive as

opposed to negative obligations. States are not only required to simply refrain from

interfering with the affairs of other states, but to actively uphold the laws of war,

prosecute or extradite individuals suspected of atrocities, and rescue peoples in danger. In

this they are also part of a movement of endowing an amorphous ‘international

community’ with a sort of immanent subjecthood.

Both also share a darker side.2 Both are inseparable from old interrogations about the

legitimacy of interfering in the affairs of other states and the suspicion that all

intervention3 is unidirectional, inconsistent or biased. Both share a certain fascination

with violence, either the violence that is in the criminal law or the violence that is in

intervention. They vie for the legitimate control of this violence if only to claim that

atrocities should ultimately be confronted with violence. Both moreover have in common

that they are quite single mindedly focused on the idea that certain international crimes

are the worst thing that can happen to the international system, and that highly unusual

solutions are warranted to deal with them. In this they are obsessed with political

violence, as opposed to the manifold ways in which violence operates in the world and at

the risk of doing violence.4 Finally, they are also, each in its own way, highly

technocratic projects (rich with their assemblies, commissions, special advisers, etc),

imagining a world in which international elites are heavily involved in the prevention of

atrocities through a mix of lobbying, lawyering, and bombing. In this they also always

run the risk of confiscating grass root initiative and abusively speaking in the name of

others.5

2 For an attempt to develop a critique of that darker side in relation to the ICC, see Frédéric Mégret, ‘Three Dangers for the International Criminal Court: A Critical Look at a Consensual Project’, Finnish Yearbook of International Law (2002) 195-247. 3 In this article I will use the term ‘intervention’ to designate not only armed intervention, but any foreign or international policy leading to substantial involvement (and possibly interference) in the affaires of states. Intervention can be civilian, as contemplated by R2P. 4 H. Charlesworth, ‘International Law: A Discipline of Crisis’, 65 The Modern Law Review (2002) 377-392. 5 Frédéric Mégret, ‘Beyond the “Salvation Paradigm’: Responsibility to Protect (Others) V. the Power of Protecting Oneself’, 40 Security Dialogue (2009) 575-595.

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This article will seek to provide a sketch of R2P and the ICC as practices of power rather

than simply as the normative projects purporting to constrain power which they are

commonly presented to be. First, it will show the deep natural complementarity between

the agenda of international criminal justice and that of international interventionism

illustrated by R2P, and how the two must be understood as mutually dependent and

constituted; second, it will reflect on the degree to which these purportedly ‘reformist’

agendas have a tendency to gravitate towards established sources of power, be they states

or the Security Council; third, it will argue that it is states and the Security Council that

emerge all the stronger as a result of the interplay of the R2P and the ICC. The article is

meant as a study in the plasticity of ideas, their importance in shaping agendas even when

they are not strictly binding, and their sometimes neglected implications with power and

violence.

2. ICC and R2P: Mutual Convergence

This section will seek to understand both the ICC and R2P as initiatives of ‘norm

entrepreneurship’ in the international arena.6 Viewing both as resulting from such

entrepreneurship avoids the sort of idealization that has too often resulted from

international legal scholarship, where the ‘international community’ is presented (in its 6 For similar approaches in relation to the ICC C. Fehl, ‘Explaining the International Criminal Court: A “practice Test’ for Rationalist and Constructivist Approaches’, European Journal of International Relations, 10 (2004) 357-394; M. L. P. Groenleer and L. G. Van Schaik, ‘United We Stand? The European Union’s International Actorness in the Cases of the International Criminal Court and the Kyoto Protocol’, Jcms-Journal of Common Market Studies, 45 (2007) 969-998; D. Hawkins, ‘Explaining Costly International Institutions: Persuasion and Enforceable Human Rights Norms’, International Studies Quarterly, 48 (2004) 779-804; Benjamin N. Schiff, Building the International Criminal Court (Cambridge  ; New York: Cambridge University Press, 2008). In relation to R2P, O. F Von Feigenblatt, ‘International Policymaking: The Case of the Norm of the Responsibility to Protect’, Entelequia: Revista Interdisciplinar, 11 (2010) 267-272; J. Brunnee and S. Toope, ‘Norms, Institutions and UN Reform: The Responsibility to Protect’, J. Int’l L & Int’l Rel., 2 (2005) 121-140; R. Thakur and T. G Weiss, 1 ‘R2p: From Idea to Normand Action?’, Global Responsibility to Protect (2009) 22-53; N. Shawki, ‘Responsibility to Protect: The Evolution of an International Norm’, 3 Global Responsibility to Protect (2011) 172-196; B. Loges, ‘A Norm in the Making? The Emergence of the “Responsibility to Protect’(R2P) and UN Security Council Deliberations’; C. Kennedy, ‘Norm Entrepreneurship: Canada’s Tips to Tipping’ (McGill University, 2011).

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wisdom, typically) as having ‘adopted’ certain mechanisms. This begs the question of

why it adopted such mechanisms when it did and why. Seeing international law itself as a

form of norm entrepreneurship, rather than a sort of natural, functional or endogenous

development, highlights the fact that international law is constructed by certain ideas, and

that these ideas do not ‘float freely.’ Instead, they are embedded in a number of

constituencies which, at any point in time, may see the promotion of certain ideas as

worthwhile. Moreover, the element of ‘norm entrepreneurship’ in international law also

makes it possible to understand international legal developments as the result both of

competition and alliances between different actors as well as, inevitably, strategic

thinking and drive for power (understood here as the ability to influence the international

agenda).

The background against this sort of norm entrepreneurship unfolds can be summed up

briefly. First, a world of tantalizing possibilities opened up by the end of the Cold War,

rich with the promise of a reinvigorated international law, a domination of liberal states,

not to mention a bloated military complex with time on its hands and a mandate to be

reinvented (e.g.: NATO). In a context of renewed violence, this world is increasingly

tempted to define itself in terms of its ability to avoid the commission of certain

atrocities. Second, those tantalizing possibilities then create a considerable degree of

anxiety about the potential of international law, its actuality and its effectiveness. Having

invested much in its ability to avert mass international crimes, international law is

precipitated in existential crises each and every time (and there are many) that this

promise seems to have turned out vacuous. Third, a perception of a deep transformation

of the international stage as a result of a general decline of the state, making way for

forms of supranational organization and creating unprecedented opportunities for

intervention and the reinvention of sovereignty.

It is against this background that norm entrepreneurship about the ICC and R2P unfold.

Behind each are, more broadly, what might be described as ‘movements’ purporting to

promote certain ‘projects’. By movement, I mean a loose assortment of international or

internationally minded actors coalescing around a set of goals and seeking to harness

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political energies and good will to achieve these goals.7 A ‘project’ in such a context is a

set of objectives more or less coherently unifying the ‘movement’ and which may impose

ideational or conceptual limitations of its own. A ‘movement’ is not meant as a grouping

that is entirely homogeneous in its composition, but one that over time shares core goals,

and is committed to elucidate strategic priorities from within the movement. The ‘ICC

movement’8 and the ‘R2P movement’9 have some differences, but also have strong

similarities born from a certain mimetism. Both are focused on a core of individual

entrepreneurs and big civil society actors (major human rights INGOs in particular), that

seek to forge alliances with international organizations and some state administrations.

The ICC movement is the older of the two. The idea was for a long time incarnated by a

few isolated academic or intellectual figures (Bassiouni, Ferencz), but became the basis

for a sizeable movement in the 1990s that coalesced under the broad Coalition for the

International Criminal Court banner (Human Rights Watch and Amnesty International,

the Radical Party, the World Federalist Movement), and a renewed

academic/intellectual/professional commitment (in the form of experts, learned socities

and journals for example).10 The R2P movement began in a somewhat more elitist way.

The idea was initially more the preserve of foreign policy wonks and international

technocrats and its adoption owed much to traditional diplomacy efforts. Nonetheless, it

7 I use the term, I believe, in the sense that David Kennedy uses it, although Kennedy himself never quite defines what he means by a ‘movement’. See D. Kennedy, ‘International Human Rights Movement: Part of the Problem?’, 15 Harv. Hum. Rts. J. (2002) 101-125. For a critique of that lack of définition, see Hilary Charlesworth, ‘Author Author: A Response to David Kennedy’, 15 Harvard Human Rights Journal, (2002) 127-131. 8 The term is often used loosely in the legal litterature on the ICC. See for example J. Crawford, ‘International Law and the Rule of Law’, 24 Adel. L. Rev. (2003) 3-12; S. Mendlovitz and J. Fousek, ‘Enforcing the Law on Genocide’, 21 Alternatives: Global, Local, Political (1996) 237-258; Carrie La Seur, ‘Implementing the Rome Statute: The Australian Experience’, 1 Eyes on the ICC, (2004) 204; D. B Pickard, ‘Proposed Sentencing Guidelines for the International Criminal Court’, 20 Loy. LA Int’l & Comp. LJ, (1997) 123; L. Reydams, ‘A la guerre comme à la guerre: Patterns of Armed Conflict, Humanitarian Law Responses and New Challenges’, 88 International Review of the Red Cross (2006) 729-756. 9 Again, the expression is regularly used in the littérature. See J. Brauer and R. Haywood, ‘Non-state Sovereign Entrepreneurs and Non-territorial Sovereign Organizations’, UNU-WIDER Working Paper, 2010; D. Mickler, ‘Saviors and Survivors: Darfur, Politics, and the War on Terror’, 2 Global Responsibility to Protect (2010) 331-333; H. Slim, ‘Values Versus Power: Responsible Sovereignty as Struggle in Zimbabwe’, 2 Global Responsibility to Protect (2010) 155-160. 10 Heather Schoenfeld, Ron Levi and John Hagan, ‘Crises extrêmes et institutionnalisation du droit pénal international’, 36 Critique Internationale (2007) 37-54.

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has, if belatedly, spurred the emergence of an International Coalition for the R2P11

modelled on that supporting the ICC, that includes many of the same INGOs (the steering

committee features the World Federalist Movement, Human Rights Watch and Oxfam

International), and which is very active in invoking R2P in particular cases.

This section will emphasize how certain fundamental assumptions about the ICC and

R2P shape the sort of norm entrepreneurship that can be embarked upon on their behalf.

The fundamental overlap between the ICC and R2P is their single-minded focus on the

aversion of ‘atrocity crimes’,12 namely genocide, crimes against humanity and war

crimes. These crimes must be prevented as a matter of urgent moral and legal obligation,

and both R2P and the ICC are means towards that end. As practices of power one might

say that their specificity lies in their being technologies of ‘designation of victims’, by

which is meant ‘legitimate’ victims.13 In the peculiar conditions of an increasingly

politically integrated world where the use of force is less and less the exclusive preserve

of state-to-state relations, the ability to designate ‘legitimate victims’ has become crucial

to interference in the affairs of states and, occasionally, to the unleashing of force.14 Its

corollary is of course the stigmatiziation, ostracization and ultimately exposure to

international intervention of those states that have been found to produce ‘victims’. The

ICC and R2P are crucial cogs in this process, which they help to depoliticize as

seemingly the application of legal formula or the product of moral lucidity.

At the heart of the rapprochement between the ICC and R2P movements lies more than a

marriage of circumstance. Both are arguably part of a common broad strategy by the

international community. They are highly complementary because each arguably has in

store for the other what it is missing. The ICC has the ability to highlight victims in a

11 ‘International Coalition for the Responsibility to Protect (ICRtoP)’ <http://www.responsibilitytoprotect.org/> [accessed 20 September 2011]. 12 D. Scheffer, ‘Genocide and Atrocity Crimes’, 1 Genocide Studies and Prevention (2006) 229-250. 13 This is not the place to explore in detail how these technologies work but in the case of the ICC, its vulnerability to referrals ensures that the designation of ‘victims’ remains in ‘safe hands’ from the point of view of traditional political considerations, at least given a record of relatively pliant Prosecutors not keen on majorly upsetting global power balances. It is less clear who decides who is a legitimate victim under R2P, although the UN and the Security Council in particular clearly have the high hand on that process. 14 This is very similar to a point made by M. Mamdani, ‘The Politics of Naming: Genocide, Civil War, Insurgency’, 29 London Review of Books (2007) 5-8.

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more or less incontrovertible way, but has little ability to then fundamentally modify the

circumstances on the ground and needs to dispel the suspicion that it is dangerous for the

very populations it is meant to protect; R2P designates victims with less clear authority

and needs to find further support in other sources, but has the means to trigger a sizeable

intervention, diplomatic, political or military.

2. 2. The ICC The ICC is a project of repression which increasingly finds it hard to be its own end and

must fit into a broader narrative to legitimize itself. Although the appetite for

international criminal repression for its own sake is in some quarters quite considerable,

international criminal justice is also a project that has come under a steady flow of

criticism. Some of this criticism is relatively superficial and the sort that the ICC can

overcome: for example, international criminal tribunals are presented as too slow, too

formal or too expensive. A deeper set of criticisms, however, challenges the extent to

which international criminal tribunals are as beneficial for the international order as their

proponents claim them to be, even were they to function properly.

It may be tempting for some proponents of international criminal justice to assume that

‘justice has no price’ and should be pursued regardless of the costs. Yet the international

legal order is one where it is very difficult to make such absolutist claims convincingly

given the range of alternative possibilities.15 Following a period where international

criminal justice was defended on more metaphysical (justice is a categorical imperative)

or strictly legal grounds (crimes should be punished because this is the law), it has

resolutely entered an era where the pragmatics of punishment (this is what punishing

crimes will achieve) are more consciously put at the forefront. 16 This has put it on a risky

path, however, as cases soon emerged where the rigid pursuit of international criminal

justice may well clash with some of its underlying objectives. For example, a strong

15 Adam M Smith, After Genocide: Bringing the Devil to Justice (Amherst, N.Y: Prometheus Books, 2009). 16 Most characteristic of this school is Payam Akhavan. See Payam Akhavan, ‘Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism’, 31 Human Rights Quarterly (2009) 624-654.

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suspicion has emerged in some cases that international criminal justice has precipitated

renewed violence on the short term by ensuring that tyrants had nothing to lose or, more

realistically, making peace negotiations more difficult as a result of the sidelining of key

diplomatic interlocutors, all at a steep price. This is a critique that was already made in

the context of the former-Yugoslavia and has been consistently made in the context of the

ICC’s own work in Sudan and Uganda for example. It is a particularly stinging critique –

call it the critique of ‘morbid justice’, a justice suspected of adding cadavers to the

already existing mountains - for a movement that prides itself in above all protecting

people.17 Moreover, there is a sense in which international criminal tribunals have either

come to late or even been created as a substitute for what might have been more resolute

action to fend off atrocities (most notably in the case of the Former-Yugoslavia),18 in

effect reinforcing a trend in which judicial cognizance of world events supplants strong

political engagement.19

It is thus vital for the project of international criminal justice to dispel any suspicion that

it proceeds at the cost of some harm to the very people it is supposed to save. One

strategy is to add a list of supplementary benefits that international criminal justice is

supposed to bring beyond the rather narrow goal of putting people behind bars: peace-

making, truth, reconciliation, satisfaction of victims etc.20 However, these goals are

somewhat ephemeral, their overabundance may create confusion,21 and they at any rate

mostly deal with past events. The big prize no doubt would be if international criminal

justice were to save lives, or at least be seen as instrumental in doing so (and certainly not

17 In addition to the larger claim that over time international criminal justice will avert genocide, crimes against humanity and war crimes, international criminal tribunals have increasingly been recast as real-time deterrent. L. Arbour, ‘The Crucial Years’, 2 J. Int’l Crim. Just. (2004) 396-402, 398. This has in turn triggered a fresh round of skepticism. 18 See Simon Chesterman and International Peace Academy, Civilians in War (Lynne Rienner Publishers, 2001) 145-163, 145 (pointing out that ‘through law what the international community was not prepared to achieve through force.’) 19 Martin Mennecke, ‘Punishing Genocidaires: A Deterrent Effect or Not?’, 8 Human Rights Review (2007) 319-339; A. Paulus, Between Incapacity and Indispensability: The United Nations and International Order in the 21st Century (Progress in International Law and Institutions. Soll, 2008) 139-170. 20 R. J Goldstone, ‘Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals’, 28 NYUJ Int’l L. & Pol. (1995) 485-503. 21 M. Damaska, ‘What Is the Point of International Criminal Justice?’, 83 Chi.-Kent L. Rev. (2008) 329-347.

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be seen as contributing to loss of life).22 This explains partly the temptation of bringing

the idea of international criminal repression in closer association with a broad atrocity-

avoiding agenda, such as R2P, that is more specifically geared towards that goal.

Indeed, far from claiming a space entirely of their own and proceeding stubbornly with

prosecutions whatever the costs, as is sometimes feared in the ‘peace v. justice’ debate,

there is every reason to think that key practitioners of international criminal justice have

increasingly internalized the need of relevance to ensure that their work does not lead to

more shedding of blood. This is particularly apparent in the way the relationship fo

international criminal justice to peace processes has been conceptualized, even though

international prosecutors may be loathe to admit that they have responsibilities in that

respect. This was already evident in the case of the ad hoc international criminal tribunals

that were, after all, created by the Security Council to remedy breaches of international

peace and security; but it has also become quite evident for the ICC whose mandate and

source of legitimacy is less evidently instrumental.23 In effect, international criminal

tribunals, despite awareness of their limitations,24 are increasingly seen as one leg of the

22 This issue has become crucial now that the ICC is operating simultaneously to some of the events over which it has jurisdiction. For example, the organization ‘Save Darfur’ has been encouraging the Court actively to prosecute those accused of genocide in Sudan in an effort to deter them. The ability to save lives is often presented as exceeding the scope of what tribunals can achieve on their own, but nonetheless something to which they should aspire and indirectly contribute. See P Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’, American Journal of International Law (2001) 7-31 (noting that ‘hastily erected bulwarks cannot be expected to save lives when the deluge has already begun’ but that ‘the focus of punishment should be the prevention of such deliberately induced aberrant contexts, within which habitually lawful social relations degenerate into unrestrained violence.’) See also D. J Scheffer, ‘Challenges Confronting International Justice Issues’, 4 New England International and Comparative Law Annual (1998) 1-6, 6 (‘the need to establish such a court reflects the darker vision of our future. It assumes that atrocities will continue to be the norm and require judicial responses. Nonetheless, an effective and efficient permanent criminal court should help deter the commission of these heinous crimes and thus save lives’.) 23 Commentators have increasingly voiced concerns that one should not go without the other. R. Lipscomb, ‘Restructuring the ICC Framework to Advance Transitional Justice: A Search for a Permanent Solution in Sudan’, Colum. L. Rev., 106 (2006) 182; L. Parrott, ‘The Role of the International Criminal Court in Uganda: Ensuring That the Pursuit of Justice Does Not Come at the Price of Peace’, Austl. J. Peace Stud., 1 (2006) 8-29; C. Villa-Vicencio, ‘Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet’, 49 Emory LJ (2000) 205-. 24 International criminal tribunals have typically denied that they should have an immediate, deliberate role in terms of peace making, although peace may result indirectly from their activities. See (‘…[the] matter of international peace and security is not the responsibility of the Prosecutor; it falls within the mandate of other institutions.’) However, the ‘interests of justice’ part of the Prosecutor’s discretion is commonly considered to include attention to what might be some of the immediate side-effects of a case. Clearly, it would be hard to argue that a resumption or an intensification of hostilities, if they are predictable as a

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international community’s multi-pronged conflict management strategy or ‘protection

continuum’,25 rather than as a justice endeavour operating in a vacuum and blind to its

real world consequences.26 For example, Louise Arbour, as Prosecutor of the ICTY,

arguably engaged in a sophisticated game of international statecraft by deciding to indict

Karadzic and Mladic but not Milosevic before the Dayton negotiations, thus contributing

to marginalize the leaders most tainted with violence whilst not excluding the most

useful, and in the process helping to bring about the Dayton agreement.27 The Prosecutor

subsequently made an application for an indictment against Milosevic within weeks of

the outset of the Kosovo campaign, in what was widely seen as a move that could have a

real time impact. More explicitly, although he has certainly fallen short of saying that he

would prioritize the search for peace, ICC Prosecutor Moreno Ocampo has made no

secret of his desire to engage in international prosecutorial policies that, within the broad

horizon of R2P, minimize the disruption to alternative (but nonetheless objectively

competing) mediative efforts.28 In this context, references to R2P are a relatively cost-

free part of the ICC’s quest for legitimacy; they make international criminal justice seem

less like a solitary and quixotic practice and more like a responsible partner in something

result of an indictment, would be in the interest of victims for whom justice is brought. See Kai Ambos, ‘The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC’, in Building a Future on Peace and Justice: Studies on Transitional Justice, Conflict Resolution and Development  : the Nuremberg Declaration on Peace and Justice, ed by Kai Ambos, Judith Large and Marieke Wierda (Springer, 2009) pp. 19-103; Jens David Ohlin, ‘Peace, Security, and Prosecutorial Discretion’, in The Emerging Practice of the International Criminal Court, ed by Carsten Stahn and Göran Sluiter (Leiden: Martinus Nijhoff Publishers, 2009) 85. According to Jens Ohlin, when operating as a result of a Security Council referral, the Prosecutor’s discretion is seriously limited and he should seek to maximize international peace and security. 25 M. Banda, ‘The Responsibility to Protect: Moving the Agenda Forward’, Ottawa, United Nations Association in Canada (2007) 26. 26 On the inevitability of political considerations in exercising prosecutorial discretion, see Luc Côté, ‘Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law’, 3 Journal of International Criminal Justice (2005) 170–171. 27 Of course, this is always justified by the fact that indictments were ready in one case and not in an other, but at the very least this was very opportune diplomatically. 28 For example in relation to Uganda Ocampo claims that as long as negotiations were ongoing with the Lord’s Resistance Army to find an exit to the conflict he ensured that his office’s investigations kept a low profile. See Luis Moreno Ocampo, ‘The Responsibility to Protect: Engaging America’, Keynote Address at the conference The Responsibility to Protect : A Strategy for Engaging America, held in Chicago November 15-17 2006, <http://r2pcoalition.org/content/view/61/86>.

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bigger and more conventionally political.29 At the same time, the development of a strong

R2P concept also ironically relieves the ICC of some of the pressure that might otherwise

bear upon it in terms of averting atrocities, by clearly flagging this as a responsibility of

the larger UN system.

Some of the strategic affinities of the ICC with R2P go further. There is great value in a

certain overlap of goals, beyond the portrayal of international criminal justice as not

inimical to peace and security. The invocation of R2P can help facilitate the operation of

international criminal justice in several ways. For example, once a situation is constructed

in terms of R2P internationally, it already in a sense points to the commission or quasi-

commission of international crimes, thus creating an environment that is politically more

hospitable to prosecutions.30 As I will go on to show, the ICC is supposed to do the same

job for R2P, but that does not prevent – quite the contrary – some mutual support.31

Moreover, a strong R2P agenda may very well help create the conditions needed for

international criminal justice to operate comfortably. There is an overlap between R2P’s

insistence that states enforce the rule of law, and the ICC’s reliance on domestic courts

doing their job to repress atrocity crimes. International community involvement under

R2P may step up the pressure on states to cooperate with the Court, particularly in the

arrest of suspects. In the case of a military intervention, it may even create optimal

conditions: a situation where the ICC can operate at will because the regime that was

responsible for the crimes has been removed. All these considerations, then, go to explain

why R2P is in a sense such a boon for the promotion of the model of international

criminal justice, providing it with a certain contextual legitimacy even as it relieves it of

some of the pressure to perform in terms of atrocity prevention, and helping set the stage

for its deployment in more ways than one.

29 If nothing else, international criminal tribunals know that they can benefit tremendously, in their investigations, from peace having been re-established in the territories under their jurisdiction so that there is also a more vested interest in R2P running its course. 30 For example in the case of Darfur there is no doubt that the Security Council’s creation of a Commission of Inquiry whose terms of reference were clearly influenced by R2P laid the ground for the referral to the ICC and its legitimacy in launching investigations in the region. International Commission of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005. 31 In practice who will first cast the suspicion of international crimes – whether the UN acting under R2P or the ICC – matters little. Most of the time, one will follow the other quite quickly.

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2.3 R2P The starting point for an idea such as R2P32 is very different but nonetheless also one that

requires the help of outside ideas and that converges towards the idea of international

criminal justice. An extremely broad scenario of international community involvement is

envisaged,33 in a context where legitimate fears exist about the potential of legitimate

intervention to turn into illegitimate interference. The challenge after Srebrenica, Rwanda

and Kosovo is to retain some of the urgency of the humanitarian appeal whilst grounding

the international community’s response in some incontrovertible ground that does not

render it vulnerable to the accusation that it is licensing imperialism and neo-colonialism,

not to mention undoing the global regime on the use of force. The challenge for R2P, in

other words, has always been to establish a threshold for international community

involvement that is not accused of being too low or too high. At one end of the spectrum,

strictly ‘humanitarian’ interventions, i.e. designed to rescue populations in need for

example after humanitarian catastrophes (or even from the consequences of climate

change) unacceptably lower the threshold and raise the spectre of a dissolution of the idea

of R2P.34 ‘Humanitarian’ interventions in the sense of ‘ensuring respect for humanitarian

32 Unless otherwise mentioned, when referring to R2P I will have in mind R2P as it was formally endorsed by the General Assembly (2005 World Summit Outcome, A/60/L.1, 15 September 2005, paras. 138-139) the Security Council (S/RES/1674, 28 April 2006) and the Secretary General (U. N.G Assembly and S. Session, Implementing the Responsibility to Protect: Report of the Secretary-General (A/63/677, 2009).). Having said that, it remains difficult to entirely separate that version of R2P with the many debates that went on before it. See G. J Evans and M. Sahnoun, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (International Development Research Centre, 2001). 33 For example, even in its relatively dampened down post World-Summit outcome version, R2P emphasises the need for ‘appropriate diplomatic, humanitarian and other peaceful means’, something which is then understood by the Secretary General as legitimizing a broad ‘international assistance and capacity building’ program. Even though these peaceful modes of intervention are typically less emphasized in R2P commentary, there is no doubt that they strongly reinforce the case for involvement in the affairs of states. In addition, the UN pledges itself to ‘collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate’, something that clearly keeps the military option open. 34 After the Nargys cyclone, Bernard Kouchner, the then French foreign minister sought to have the Security Council adopt a resolution based on R2P allowing forceful action to rescue victims of the cyclone. The project was rejected by the Council, the Secretary General, and has almost universally been criticized since by commentators as wrongheaded. See e.g. Ashley McLachlan-Bent and John Langmore, ‘A Crime against Humanity? Implications and Prospects of the Responsibility to Protect in the Wake of Cyclone

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law’ have long been rebuffed by key humanitarian actors such as the ICRC, horrified that

their humanitarian mandate might be used to justify more use of force,35 for example

through a hyper-extensive interpretation of common article 1 to the Geneva

Conventions.36 Broad interventions in favour of human rights also seem a recipe for

undue meddling in the affairs of states given the absence of an agreed upon criterion for

even massive or systematic human rights violations.37 Finally, the idea that interventions

can be engaged in propping up democracy seems to have been destined only to a short

life in the early 1990s.38

Conversely, international criminal justice is supposed to provide a reasonably

incontrovertible39 as well as emotionally strong basis for deciding on international

community involvement, whether peaceful or military. The international criminal law

regime over the span of the last decades has constructed the closest thing to an

international taboo. It can count on the powerfully mobilizing force of any appeal to the

fear of a repeat of the Holocaust and assorted crimes, however dubious,40 especially in an

age of ubiquitous global media. It should therefore come as no surprise that R2P’s Nargis’, 3 Global Responsibility to Protect (2011) 37-60; Gareth Evans, ‘The Responsibility to Protect in Environmental Emergencies’, 103 Proceedings of the 103rd Annual Meeting of the American Society of International Law (2009) 27-32; Joanna Harrington, ‘R2P and Natural Disasters’, in W. Andy Knight and Frazer Egerton (eds) Routledge Handbook of the Responsibility to Protect (Routledge : London, forthcoming 2012); Ramesh Thakur, ‘Should the UN invoke the “Responsibility to Protect?’’, The Globe & Mail, May 8 2008. For a moderately supportive view, see Roberta Cohen, ‘The Burma Cyclone and the Responsibility to Protect’, 1 Global Responsibility to Protect (2009) 253-257. 35 Anne Ryniker, ‘The ICRC’s position on “humanitarian intervention’’, 83 International Review of the Red Cross (2001) 527-532. 36 Frits Kalshoven, ‘The Undertaking to Respect and Ensure Respect in All Circumstances: From Tiny Seed to Ripening Fruit’, 2 Yearbook of International Humanitarian Law (1999) 3-61. 37 R. B Lillich, ‘Forcible Self-Help by States to Protect Human Rights’, Iowa L. Rev., 53 (1967) 325. 38 The idea had some popularity following the UN operation in Haiti to restore President Aristide. T. M Franck, ‘The Emerging Right to Democratic Governance’, The American Journal of International Law, 86 (1992) 46-91. Framed in such broad terms the idea has certainly attracted much réservation from international lawyers. See R. Falk, ‘The Haiti Intervention: A Dangerous World Order Precedent for the United Nations’, 36 Harv. Int’l. LJ (1995) 341-358. It is notable that even in the context of the NATO assistance to Lybian forces, the pro-democracy element remained very much muted in UN discourse as a basis for military support of the rebels. 39 Although there are some who find that the delimitation of what crimes should trigger R2P could be narrower and more specific. D. Scheffer, ‘Atrocity Crimes Framing the Responsibility to Protect’, Case W. Res. J. Int’l L., 40 (2007) 111-135. 40 Michael C. Desch, ‘The Myth of Abandonment: The Use and Abuse of the Holocaust Analogy’, 15 Security Studies (2006) 106-145.

14

triggers (genocide, crimes against humanity and war crimes) coincide almost perfectly

with the so-called ‘core crimes’ of the ICC’s jurisdiction.41 The operation of international

criminal justice, crucially, serves to appease anxieties about the inherent political-ness of

international involvement. First, international criminal justice constructs a binary world

of perpetrators and victims, each entirely irreducible to the other.42 It thus foregrounds

the problem of evil and individual agency and backgrounds the role of political projects

(e.g. nationalism) and some cardinal concepts of the international order (e.g.

sovereignty), structural forces, victim implication in some atrocities, or the international

community’s own role in bringing about their commission.43 Second, international

involvement on the basis of R2P is presented as a fundamental moral or legal duty as

opposed to a difficult and inherently contestable political choice. International criminal

justice helps to foreground issues of moral obligation, identity, and faithfulness to certain

ideals even as it backgrounds more fraught issues such as the achievability of the goals,

adequacy of means, possible ulterior motives of the interveners, local perceptions and

demands, historical repetition, etc. Intervention is no longer political, but is presented as

the fulfilling of an obligation imposed, as it were, from outside: ‘we have no choice but to

intervene.’ The convergence of law and morality makes for a command that is unusually

imperious. Third, international criminal justice is pathos-producing, and thus an effective

ally in obtaining public support. In invoking and legitimizing the figure of the ‘victim’, it

helps reconstruct intervention not as something decided and imposed from outside, but as

very much demanded from within, by a martyr population.44 Finally, the notion that a 41 I say almost perfectly because R2P is also triggered when ‘ethnic cleansing’ is committed. Why ethnic cleansing was added when it is most likely to be covered by the existing crimes is a bit of a mystery. It may be that the drafters wanted to keep the option of invoking R2P in cases very much like those of international crimes, but where that element had not been quite formally established yet. At any rate, the practice of R2P so far seems to have focused largely on the existing crimes. See, e.g. the report of the Commission on Darfur, which reduces ethnic cleaning to the crime against humanity of forced displacement. 42 Such is the strength of this image that international criminal tribunals have found it at times exceedingly difficult to judge both sides of a historical episode of violence. For example, the International Criminal Tribunal for Rwanda (hereinafter ICTR) famously never indicted anyone from the Rwandan Patriotic Front despite evidence of war crimes. 43 Frédéric Mégret, ‘Joinder, Fairness and the Goals of International Criminal Justice’, in The Milosevic Trial- An Autopsy, ed by Timothy William Waters (Oxford University Press, 2011). 44 As Ramesh Thakur puts it, ‘Where “humanitarian intervention’ raises fears of domination based on the international power hierarchy, the responsibility to protect encapsulates the element of international solidarity. It implies an evaluation of the issues from the point of view of those seeking or needing support,

15

crime is about to happen or already happening fosters a sense of emergency that is

particularly conducive to pushing the frontiers of intervention, dismissing doubts as

finessing and lack of political courage, etc.

Finally, there are other more discreet ways in which the ICC project might be said to be

helpful to R2P. R2P debates have a clear origin in a perceived need to move beyond the

strictures of the old ‘humanitarian intervention’ debate, which is seen as strongly

associated with Great Power politics and an urge to use force. Critiques havce claimed,

harshly perhaps, that R2P is only an effort at cosmetically recyclying such debates. To

counteract such criticism, the R2P movement crucially needs to develop a strong program

of measures designed to prevent the commission of atrocities. In this context, domestic

criminal justice is specifically designated in several R2P sources as one of the key planks

in the effort to prevent atrocities, and the ICC given a key role in encouraging domestic

court systems to enforce the rule of law (a role which, moreover, it is keen to exercise for

its own reasons via ‘positive complementarity’).45 Here the temporal and causal

relationship between the ICC and R2P is inverted: the Court is no longer just the trigger

of R2P or its concluding stage, but part of an early effort of prevention of crimes (and

thus the circle is closed since each prosecution sealing an episode of past atrocities is also

seen as an investment in the avoidance of future ones). It thus becomes an essential part

of R2P’s effort to cast itself as a much broader and more civilian concept than

‘humanitarian intervention’.

3. The Irresistible Attraction of Power

The ICC and R2P discourses, in addition to showing a strong mutual complementarity

and even dependency, also share a tendency to gravitate towards the very power that they

are supposed to constrain. In that, they illustrate not only the practical difficulties of rather than from that of potential interveners. It refocuses the international searchlight back on the duty to protect the villager from murder, the woman from rape and the child from starvation and being orphaned.’ Ramesh Thakur, ‘Iraq and the Responsibility to Protect’, 62 Behind the Headlines (2004) 1-16. The focus on the raped woman and the child soldier, in particular, have served as powerful tropes historically to justify intervention. 45 Secretary General Report, paras. 18-19.

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change in the international legal order but also at a deeper level their affinity with the

idea of power itself. Both the ICC and R2P begin as discourses challenging power,

particularly sovereign power, in both its internal and external dimensions. As such, they

privilege a heroic discourse of moral responsibility and appeals to justice against the

corruption of politics. Yet without the credible backing of force, international human

rights and humanitarian obligations are presented as weak, as entirely reliant on

traditional modes of implementation that are unsuited for the task. Hence the ICC and

R2P projects soon find themselves obsessed with the need to enlist power for their cause

not only in the sense of needing immediate patrons for the purposes of having certain

ideas endorsed, but because these ideas themselves depend on power to be implemented

on the long term. The irony of the R2P and the ICC movements, then, is a tremendous

tendency to reinforce that which they claim to transcend, sovereign states on the one

hand, and the Security Council on the other.

3.1. Gravitating Towards the Sovereign Both the ICC and R2P are, conspicuously, part of the evolving international social

construction of sovereignty.46 In that, they are of course less novel than a discourse that

contrasts yesterday’s ‘absolute sovereignty’ with today’s ‘relative sovereignty’. The

debate over sovereignty has always arisen at the interface of the permissible and the

impermissible. The idea of ‘sovereignty as responsibility’, or that sovereignty does not

provide a blanket immunity to engage in wanton acts of violence, are all very much part

of the historical baggage of the idea.47 As such they are liable to evolutions but also

remarkably stable on the long run. Nonetheless, within that debate, both R2P and the ICC

appear to be on the utopian end of ‘the sovereignty spectrum’ and can thus at least claim

to be part of a cyclical reaffirmation of the ‘obligation-side’ of sovereignty. Sovereignty

is seen from outside as not being its own foundation but as answerable to something

above it. This is what justifies a discourse of intervention, whether judicial, political or

46 In this, I take my cue from the work of Reus-Smit, which is highly compelling on that point. C. Reus-Smit, ‘Human Rights and the Social Construction of Sovereignty’, Review of International Studies, 27 (2001) 519-538. 47 J. S. Barkin, ‘The Evolution of the Constitution of Sovereignty and the Emergence of Human Rights Norms’, Millenium: Journal of International Studies, 27 (1998) 229.

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military. Both R2P and the ICC, in their own ways, are part of projects to tame or civilize

the power incarnated by sovereignty on the basis of a vigorous cosmopolitan outlook that

emphasizes the transcendent and universal character of obligations owed to human

beings.48

In that respect, the ICC stresses the relative character of sovereignty by insisting that

certain crimes are by nature international and therefore the responsibility of the entire

community. This is despite the fact they may not involve anything particularly

international in the sense of trans-border and may have occurred entirely within the

domestic sphere. Moreover, international crimes are crimes committed exclusively by

individuals, reducing the sovereign to a mere formal envelope, whose specific agency is

almost secondary and, increasingly, does not even provide the temporary respite of

immunities. R2P, for its part, emphasizes the relative character of sovereignty by

insisting on the positive responsibilities it entails in the domestic sphere, and the ability

of the international community to act as the ultimate guarantor that these responsibilities

are taken seriously.

By the same token, the ICC and R2P are ultimately projects that are highly embedded –

perhaps more than their proponents would like to concede – in the fabric of sovereignty.

This is of course for the practical and well-known reason that they are highly dependent

on the good will of sovereigns. Whatever the power of civil society (e.g. the coalition for

an ICC, now matched by an R2P coalition on the same model) or international elites (the

International Law Commission, the International Commission on Intervention and State

Sovereignty), it is axiomatic that the goal is always to ratify the project into the structures

of international law. Whether through a diplomatic conference and a treaty (ICC) or a

General Assembly session and resolution (R2P), the need is to obtain some form of 48 Note that this ‘transformationist’ presentation of the projects is often common to both proponents and detractors. For examples of the former, see Jackson Nyamuya Maogoto, State Sovereignty and International Criminal Law  : Versailles to Rome, International and Comparative Criminal Law Series (Ardsley, N.Y.: Transnational Publishers, 2003). For examples of the latter, see G. Roberts, ‘Assault on Sovereignty: The Clear and Present Danger of the New International Criminal Court’, 17 Am. U. Int’l L. Rev. (2001) 35-77; K. Ailslieger, ‘Why the United States Should Be Wary of the International Criminal Court: Concerns Over Sovereignty and Constitutional Guarantees’, 39 Washburn LJ (1999) 80-105; D. A Nill, ‘National Sovereignty: Must It Be Sacrificed to the International Criminal Court’, 14 BYU J. Pub. L., (1999) 119- .

18

sovereign consent, which alone can make a normative commitment to protection

meaningful. Moreover, both the ICC and R2P make high demands on sovereigns to

remain sustainable normative projects long after the point of ratification. The ICC is the

only institution of the two, but it is an institution with feet of clay, that needs state

cooperation (of both immediately concerned and third states) at almost every corner.

International criminal tribunals before it have ignored or provoked key states at their

peril. The implementation of R2P is also constantly reliant on exhorting states to comply

with their commitments. States’ support has to be kept alive constantly by a mixture of

shaming, cajoling and more or less vacuous threatening.

More than simply needing states, the projects have in practice shown a remarkable and

even paradoxical deference to sovereignty that reflects a much deeper intellectual

dependence on the concept. This is evident, for example, in the ICC Prosecutor’s

apparent fascination for the ‘low hanging fruits’ that are state ‘self-referrals’. In fact, with

the single exception of Kenya Moreno Ocampo has resisted using his more radical

proprio motu power, a power that allows him in theory to launch investigations out of his

own initiative. Instead he launched his key investigations in cases – Uganda, Congo –

that had been conveniently forwarded to him by those same states. This was all the more

intriguing given that the proprio motu powers had been hailed a great achievement in

Rome, and that few had anticipated the possibility of ‘self-referrals’. In fact, such is the

allure of state referrals to the Prosecutor that he has actively sought them out from

relevant states. Some will no doubt see this as a symptom of lack of judicial vision, while

others will point to the shrewdness of prioritizing cases that have a high chance of

success, and the sheer legitimacy of prosecuting cases that have a significant measure of

sovereign backing.

Although there is less practice when it comes to R2P, efforts to work through states to

achieve protection are real, and rely on the need for a powerful reinforcement of core

state functions to prevent atrocities. The World Summit Outcome insists that ‘the

international community should, as appropriate, encourage and help States to exercise

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[R2P]’.49 An entire ‘pillar’ of the Secretary General’s strategy to implement R2P,

possibly the most important one, is devoted to such action, working with and for

Governments with a view to ‘capacity-building’ (or, as Ramesh Thakur put it, ‘capacity,

capacity and capacity that strengthen sovereignty and help state authorities to exercise it

more responsibly’).50 The Secretary General goes as far as to suggest that help ‘could

encompass military assistance to beleaguered States deal with armed non-state actors

threatening both the State and its population’.51

Neither the ICC nor R2P are in any profound theoretical way against sovereignty. The

battle is much better understood as one over the continued definition of sovereignty (one

as old as sovereignty itself which, needless to say, never had an immutable meaning)

rather than a frontal challenge to it. In that respect, it also constitutes a subtle

reaffirmation of the legitimacy of sovereignty – in a way that, incidentally, makes

portrayal of the Court as an affront to sovereignty seem oddly out of touch with reality.52

The redefinition exercise proceeds in very much the same terms in both cases. The ICC is

to have complementary jurisdiction, when states are ‘unwilling or unable’ to prosecute

certain international crimes.53 Primary jurisdiction for international courts, as occurred

with the ad hoc international tribunals, is presented as an abnormal exception justified

only Security Council meddling. It is made quite clear that states have primary

responsibility in terms of punishing international crimes over which they have

jurisdiction, consonant with their international obligations. There is no shortage of

arguments as to why this should be so, including those taken from the effectiveness of

domestic criminal law, its proximity, the needs of transitional justice, or… respect for

sovereignty. Moreover, this implies that the Court should be involved in ‘positive

complementarity’ efforts, positively encouraging and even assisting states in exercising

their repressive powers.

49 World Summit Outcome, supra note, para. 138. 50 Ramesh Thakur, Responsibility to Protect : First Do More Good than Harm, http://www.responsibilitytoprotect.org/index.php/component/content/article/172-asia-pacific/1729-ramesh-thakur-responsibility-to-protect-first-do-more-good-than-harm 51 Secretary General report, para. 29. 52 Eric K. Leonard, ‘Discovering the New Face of Sovereignty: Complementarity and the International Criminal Court’, 27 New Political Science (2005) 87-104. 53 ICC Statute, article 17.

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Similarly, R2P in the form it was adopted by the General Assembly, is the latest and most

neutral distillation of a series of formulations that have moved from foregrounding the

problem of international intervention to putting the issue of sovereign responsibilities

(but also, inevitably, prerogatives) at the centre stage. The primary holder of the

responsibility to protect is the state.54 International community intervention, military or

otherwise, is held up as very much a last resort when a state has failed abysmally. The

threshold for international involvement is almost exactly the same as for the ICC.55 In

many ways, R2P is an ode to sovereignty, understood as responsible power.

The projects, in other words, are projects of making good sovereigns, a project as old as

international law itself.56 The circumventing of the sovereignty of a few is based on their

having not lived up to the exigencies of sovereignty; the legitimation of the sovereignty

of others is based on their willingness to stand for a certain concept of sovereignty. This

affinity with sovereignty easily explains the riddle of why so many apparently fully

sovereign states have subscribed to both the ICC and R2P quite willingly, and makes

fierce opponents of both on sovereignty grounds appear more than a little disconnected

about what sovereignty actually entails.57 Some sovereigns no doubt emerge strongly

validated from having successfully withstood the international scrutiny, and if anything

the exercise reinforces a perilous dividing line between ‘good’ and ‘bad’ states.58

Nonetheless, what is remarkable is the extent to which states are merely asked – be it for

the purposes of some higher international purpose – to do what they have always done

54 See World Summit outcome, para. 138 (‘Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it’). 55 World Summit Outcome, para. 139 (The international community shall intervene more forcefully where ‘national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. My emphasis). 56 R. Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’, European Journal of International Law, 16 (2005) 979-1000. 57 D. E Edlin, ‘Anxiety of Sovereignty: Britain, the United States and the International Criminal Court, The’, BC Int’l & Comp. L. Rev., 29 (2006) 1-22; J. R Worth, ‘Globalization and the Myth of Absolute National Sovereignty: Reconsidering the Un-signing of the Rome Statute and the Legacy of Senator Bricker’, Ind. LJ, 79 (2004) 245-265. 58 G. J Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge Univ Pr, 2004).

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and arguably done best historically: to assert their authority, to punish and repress, to

exercise legitimate violence. The ICC and R2P are a contemporary take on an old

international law idea, one hardly invented by late 20th Century utopians, that these

powers be exercised benevolently and for the benefit of their populations.

All in all, it is therefore perhaps not to claim too much to say that ICC and R2P, even as

they are often presented above all as projects of taming sovereigns, are also projects of

legitimizing and enabling at least some them.59 Such are the understandable and of course

not altogether surprising limits of mild reform in the international system.

3.2. Gravitating Towards the Security Council On one account at least, both R2P and international criminal justice stand as stark

departures from a concept of global order based on international peace and security alone.

The concept of international security is itself famously redefined as one of ‘human

security’ the key foundations of which are peace, the rule of law, respect for human

rights, the absence of impunity, and so on.60 Both R2P and the ICC ambition to replace

the casuistry of international politics with respect for hard principles. States shall not

decimate their populations and if they do will expose themselves to a stern response from

the international community. Ad hocism is presented as deeply antithetical to the rule of

law rather than as a manifestation of appropriate political flexibility.61 The element of

discretion is seemingly radically minimized in a context of appeals to categorical

imperatives: there can be ‘no peace without justice’, amnesties are out as an option, all

shall be prosecuted alike, and all atrocities must be stopped. Although the international

59 E. K Leonard, ‘Discovering the New Face of Sovereignty: Complementarity and the International Criminal Court’, New Political Science, 27 (2005) 87-104.For a recent exploration of this tendency of international law to be at its most sovereignty upholding when it claims to be at its most sovereignty transcending, see Frédéric Mégret, ‘Who’s in and Who’s Out? A propos de la protection internationale du monopole de l’exercice de la violence légitime et quelques autres attributs des monstres froids’, Revue Québécoise De Droit International, 2011, forthcoming. 60 Lloyd Axworthy, ‘Human Security and Global Governance: Putting People First’, 7 Global Governance (2001) 19-23. 61 A. Bianchi, ‘Ad Hocism and the Rule of Law’, European Journal of International Law, 13 (2002) 263-272.

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criminal justice movement may acknowledge its debt to the Security Council in the

1990s, the creation of the ad hoc tribunals by the Council is seen as a pragmatic

concession to reality but one ultimately unworthy of the ideals of justice. The ICC thus

emerges ideal-typically as a permanent court with potentially universal jurisdiction and a

Prosecutor with proprio motu powers of investigation, largely free from the sort of

instrumentalization characteristic of ‘victors’ justice’. As to proponents of R2P, they

similarly deplore that the history of humanitarian involvement to prevent or stop

atrocities has been marred by selectivity and ad hocism. The R2P movement never quite

makes it to making international involvement a legal obligation, but it certainly affirms a

solemn duty to prevent or stop atrocities consistently, the idea being that intervention to

prevent atrocities should never be held hostage to political games and calculations.62

In this, both R2P and the ICC are seemingly part of a rejection of a real-politics or even

managerial approach to international peace and security, one that might be criticized as at

best a manifestation of Great Power interest, and at worst a security and order exercise

oblivious to the moral challenges involved. The Security Council is seen as initially

focusing too much on a concept of security that minimizes issues of protection, rights and

justice63 and, even more importantly, as too selective and discretionary a tool to be the

reliable backbone of a principled policy,64 not to mention form the basis for an

international rule of law.65 It is seen as corrupting of both the sanctity of international

justice and the neutrality of humanitarian action. Moreover, the Council’s limited

membership and close association with big powers makes it suspect not only of engaging

in politics (which in itself is anathema to the ICC and, to a lesser extent, to R2P), but in

62 ‘Consistency’ is a key theme of the Secretary General’s Report on R2P. Report, supra, paras. 2, 11, 31, 55, 57, and 62 (‘the credibility, authority and hence effectiveness of the United Nations in advancing the principles relating to the responsibility to protect depend, in large part, on the consistency with which they are applied. This is particularly true when military force is used to enforce them.’) 63 ‘The Security Council and the Protection of Civilians’, in Human Security and the New Diplomacy: Protecting People, Promoting Peace, ed by Robert Grant McRae and others (McGill-Queen’s Press - MQUP, 2001) pp. 223-230. 64 For a classical presentation of the ‘humanitarian impulse’ as ‘the maximum to which the comunity of states can aspire’ see Thomas G. Weiss, ‘The Humanitarian Impulse’, in The UN Security Council: From the Cold War to the 21st Century, ed by David Malone (Lynne Rienner Publishers, 2004). 65 Kenneth Manusama, The United Nations Security Council in the Post-cold War Era: Applying the Principle of Legality (Martinus Nijhoff Publishers, 2006).

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the politics of a few states.66 It is both the limitations of the Council in terms of

international criminal justice (ad hoc international criminal tribunals) and of rescuing

populations (Kosovo) that precipitate the ICC and R2P projects.

Both, however, find that they are congenially weak if they fail to enlist some element of

centralized enforcement at the international level. The most practically successful

international criminal tribunals, Nuremberg and Tokyo, were so because they were

backed by an almost imperial show of force, in the form of Allied or American

occupations of Germany and Japan. For all the discourse about the international criminal

tribunals representing the international community, it is perhaps a little too easily

forgotten to what extent almost all have profited from the backing of major powers.

Under normal international conditions, such relative feats of judicial power as Nuremberg

or even the ICTY cannot be easily replicated. The ICC is a court that only has jurisdiction

over those states that have judged it propitious to submit to it. Although in practice this

includes states that have committed international crimes, the biggest ‘offenders’ are likely

to remain outside its purview. And although R2P makes much of the fact that it is

primarily states that must do the work when it comes to protecting populations, there is

little that cajoling can achieve when confronted with a state that is adamant that its

sovereignty protects it from international scrutiny and is committed to a path of atrocities.

What can in a sense save the humanitarian aspiration from wishful thinking is that it is

backed ultimately by the prospect of resolute international community intervention, if

need be by force. Not even R2P’s tireless prose can mask the fact that its first (state

responsibility) and second (international support of the state) pillars are of little avail if

somewhere down the road the threat of something more powerful and overwhelming is

not contemplated. Moreno Ocampo identified quite clearly in relation to both the ICC and

R2P that ‘the power to act, enforcement, is our main common challenge.’67

As a result, both the ICC and R2P as, essentially, normative projects in search of

powerful patrons, are tempted to come closer to the Security Council, the single most

66 Jose Alvarez, ‘The Once and Future Security Council’, The Washington Quarterly, 18 (1995) 3-20. 67 Ocampo, Engaging America, supra note 28.

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important international dispenser of legitimate violence. This is more than simply bowing

to the reality of an externally imposed international politics; it is also certainly more than

acknowledging the legal superiority of the Charter, the binding character on all of

Chapter VII resolutions, and the need to find a space within the UN normative

architecture: these are important matters in their own right but one would hesitate to

describe them as causal. Rather, there is an element of conscious design in reaching out

to and seeking to work with the Council that is a mix of realism and a subtle

understanding that the ICC and R2P are also an aspiration to exercise power for certain

positive ends,.

Neither however is in any position historically to ‘demand’ anything from the Council, so

the effort is instead to work as norm entrepreneurs do, speaking the Council’s own

language and trying to cajole the powers that be in an attempt to gain something from

them without compromising too much of one’s essence. The Rome Statute, for example,

engages in a complex trade off with the Council. It does recognize the power of the

Council to defer investigations.68 That was a power that was probably never really its to

recognize since the Council could have exercised it anyhow, but the gesture at least

serves to project a vision of the ICC dealing with the Council at arm’s length. It is

nonetheless a significant symbolic concession. It seems to recognize that the relationship

between justice and peace is not as straightforward as presented by ICC proponents, since

the Council may consider that it is in the interest of ‘international peace and security’ to

suspend investigations (in other words, although it may be true that‘there can be no peace

without justice,’ there can also be much justice with very little peace).69 The rigidity of

the demand for justice is thus toned down in advance in cases where to press for

convictions too strongly might backfire (at least the ICC can blame deferral of

68 Rome Statute of the International Criminal Court, adopted 17 July 1998, UN Doc. A/CONF.183/9, UNTS No. 38544, in force 1 July 2002, Article 16. 69 The significance of the trade offs involved as a challenge for policy is now clearly recognized, with an increasingly shared assumption that, although the ICC Prosecutor may not be able to acknowledge such things openly, part of the responsibility for getting the right mix lies in him or her. N. Grono and A. O’brien, ‘Justice in Conflict? The ICC and Peace Processes’, in Courting Conflict? Justice, Peace and the ICC in Africa, ed by Nicholas Waddell and Phil Clark (Royal African Society, 2007).

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investigations on the Council, rather than having to make such a decision itself as a fully

responsible political actor).

In this symbolic exchange, as it were, the ICC does get the tremendous potential backing

of the Council referring situations to it.70 This is truly decisive for the Court as it

potentially extends its jurisdiction beyond states parties, i.e. to those states which for

good real political reasons (from their point of view) have opted to remain safely outside

the arrangements of the Rome Statute. In effect, it promises a way to use power against

power, to harness the power of the Council to put all states within theoretical reach at

least of the Court. It comes as no surprise therefore that the ‘situations’ examined by the

ICC that were most clearly directed at sovereigns against their will were the ones referred

to the Court by the Council (Sudan and Libya). Needless to say, they were so referred to

much civil society applauses.

R2P also gives the Security Council a central role. Begun with the Kosovo episode as a

debate about whether ‘coalitions of the willing’ should fly to the rescue of populations in

danger even in the absence of Security Council authorization, the question is eventually

fundamentally reframed after a decade of arm wringing as how the Security Council

should behave when dealing with situations involving atrocities.71 Superficially, the

Council is ‘targeted’ for soft reform (permanent members, for example, are encouraged

not to use their veto power in R2P situations), yet in practice R2P also solemnly validates

its role, all the more so that ultimate intervention remains discretionary and largely

submitted to the imperatives of international peace and security. This makes the

Council’s willingness to intervene at least the symbolic linchpin of the whole cascading

R2P logic.

In the process of enlisting the Council’s support for their normative enterprises, the ICC’s

aspiration to international criminal justice and R2P’s aspiration to the absoluteness of the

humanitarian imperative, however, are both exposed as ultimately weak and dependent 70Ibid., Article 13 b. 71 This is quite clear in paragraph 129 of the World Summit Outcome which effectively rules out any ‘coalition of the willing’ and reinstates a strong sense of Council legality.

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on the very sort of power whose limitations they condemn. The only way for the ICC to

obtain jurisdiction over the cases that may matter most is through resort to the Security

Council’s logic of exception, and its ultimate ability to designate who gets prosecuted and

when. The Court thus ends up being highly subservient to the Security Council power

logic that was supposed to be so lethal to the fundamental justice of international criminal

justice. Indeed, the ICC Prosecutor has enthusiastically pursued every referral sent to him

by the Council, as shown for example by his very quick response in the Libya case, at the

risk of appearing subservient to it.72 R2P for its part is an attempt to elevate the protection

of certain populations above the vagaries of politics. Yet in its World Summit Outcome

version it crystallizes both the fundamental legalism of the humanitarian impulse and the

unease with an international order that would be driven primarily by a moral impulse. All

decisions to intervene with force are to be taken by the Security Council and, save for a

vague commitment by the Council to act in the spirit of R2P , hardly a dent has been

made (and maybe none was ever meant to be made) into the fortress.

4. Who Gains?

Of course, the process of enlisting the help of sovereigns or the Council is also one that is

supposed to simultaneously rein them in. The ICC and R2P want to harness the power of

the sovereign but for very particular, virtuous ends. In that respect, they are very much in

tune with a long tradition of international law.73 R2P and to a lesser extent the ICC are

part of an old line of projects to reimagine the power of the Council as something less

self-sufficient and that can be harnessed for some higher goal. In that aspiration to

‘civilize’ the Council they are evocative of endless debates about whether the Council is

‘bound by international law’74 or even whether it should not have a more central role in

enforcing international law (as opposed to simply pursuing a certain form of order).75

72 Simon Jennings, ‘Playing Politics With the ICC’, 2011 <http://www.isn.ethz.ch/isn/Current-Affairs/ISN-Insights/Detail?lng=en&id=127520&contextid734=127520&contextid735=127517&tabid=127517> [accessed 22 September 2011]. 73 E. A Nadelmann, ‘Global Prohibition Regimes: The Evolution of Norms in International Society’, 44 International Organization (1990) 479-526. 74 Thomas M. Franck, ‘The “Powers of Appreciation’: Who Is the Ultimate Guardian of UN Legality?’, 86 The American Journal of International Law (1992) 519-523; Dapo Akande, ‘The International Court of

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However, the attempt to instrumentalize the powers that be is one that is fraught with

ambiguity. It is not clear, in particular, who is doing whose bidding. Both R2P and the

ICC are not just powerful forces reshaping legitimate uses of violence – they are also

constantly at risk of becoming instruments of that violence. The ICC has the potential to

become a means for sovereigns to wield certain forms of power.. For example, the

working assumption during most of the genesis of the ICC project was the ‘impunity’

hypothesis, i.e. the idea that in certain key circumstances states would be crucially

reluctant to use their criminal jurisdiction. Needless to say these cases exist, and the ICC

structure is designed to address them. But aside from such cases, the history of

transitional justice is also littered with cases where states have only been too happy to

exercise their criminal powers, and have at times done so with a zeal that was a serious

threat to due process. The ICC (and ad hoc international criminal tribunals before it)76

quite characteristically does very little to prevent these excesses, seeming to prefer almost

any repressive policy to the prospect of impunity.77 It arguably gives a free rein in

advance to robust repression, in ways that may be clearly in tension with the international

criminal justice project’s own supposedly liberal ambitions. More importantly, it makes

itself in advance complicit with states’ very traditional use of the criminal law to assert

sovereignty and public order, instil a certain discipline, and construct grand judicial

narratives that shape national projects (e.g. Eichmann in Jerusalem).

Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations?’, 46 International and Comparative Law Quarterly (1997) 309-343. 75 See e.g. Vera Gowlland-Debbas, ‘Security Council Enforcement Action and Issues of State Responsibility’, 43 International and Comparative Law Quarterly (1994) 55-98; Paul C. Szasz, ‘The Security Council Starts Legislating’, 96 The American Journal of International Law (2002) 901-905. 76 The extent to which the engine of an international criminal justice based solely on the perceived danger of impunity could sputter when confronted with a reality that belied that hypothesis was dramatically illustrated in the 1990s by the ICTR. There, the international community was left seeking an impunity that was not there (Rwanda was fully committed to punishing the génocidaires and at any rate the Tribunal had more or less decided not to prosecute members of the new regime) whilst having very little to say on the conditions in which Rwanda carried out its own prosecutions. This is even though these conditions left much to be desired and were probably much more worrisome than the risk of impunity. 77 This has given rise to a so far inconclusive debate among international criminal lawyers. See KJ Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, Criminal Law Forum, 17 (2006) 255-280; G. S McNeal, ‘ICC Inability Determinations in Light of the Dujail Case’, Case Western Reserve University Journal of International Law, 2007, 325-350.

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The best illustration that the ICC is often not forcing states to do that which they do not

want to do as much as providing them with an alternative way of doing what they want to

do anyway, is the largely unforeseen (although hardly unforeseeable) case of state ‘self-

referrals’. Although these could be seen as manifestations of welcome sovereign virtue,

they typically evidence a willingness by some states to have the benefits of criminal

prosecutions without the costs, or even more ominously to instrumentalize the

international community to do their dirty work for them. It is remarkable that countries

like Uganda have used their referrals to the Court as ways to deal with (however

criminal) non-state actors. It is perhaps even more remarkable that the ICC Prosecutor

has gladly obliged.78 Whereas the international criminal justice movement was once

premised on ‘the anti-State worldview of jurists pursuing human rights through coercive

global regimes’, some argue that it is now only natural that if non-state actors are ‘in a

position to challenge and undermine the authority of States, often with catastrophic

result’, then states may be ‘victims rather than villains’.79 International criminal justice is

thus on a course to becoming a device to assist states that are too weak and whose

authority is challenged by non-state actors. A similar scenario is quite evident with R2P,

whose genesis reflected a deep scepticism about the legitimacy of sovereignty and the

need to occasionally override it, but which may still end up being enthusiastically

invoked by states seeking to better stigmatize and control certain non-state actors and

attracted, for example, by the Secretary General’s hints of military assistance.

Internationally, it is also apparent that it would be quite wrong to see R2P and the ICC as

somehow ‘imposing their terms’ on a reluctant Security Council. The Council in many

ways has been more than willing to endorse these new responsibilities precisely because

it largely contributed to their popularization. In that respect, Kosovo is the tree that hides

the forest, the one notable case where the Council did not rally around a humanitarian 78 For a strong critique, W. A Schabas, ‘Complementarity in Practice: Some Uncomplimentary Thoughts’, 19 Criminal Law Forum (2008) 5-33. 79 This thesis is expounded in Payam Akhavan, ‘Self-Referrals Before the International Criminal Court: Are States the Villains or the Victims of Atrocities?’, 21 Criminal Law Forum (2010) 103-120. See also Andreas Th. Müller and Ignaz Stegmiller, ‘Self-Referrals on Trial: From Panacea to Patient’, 8 Journal of International Criminal Justice (2010) 1267-1294.

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cause – but for reasons that had less to do with a wholesale rejection of the relevance of

humanitarian concerns for intervention than their circumstantial clashing with

considerations of high politics. Even in the case of Kosovo, a majority of Security

Council permanent and temporary members supported an intervention.

For the most part, it is worth noting that the 1990s and 2000s have been an absolutely

receptive moment for humanitarian and justice concerns by the Council. This is a story

that has been told elsewhere and thus need not be retold here.80 It began with the

invocation of the threat to civilians to justify no-fly zones (Irak), and continued with the

invocation of humanitarian crises to justify the mandate of certain peacekeeping

operations (Somalia, Bosnia). It was marked by the invention of new methods to deal

with threats to international peace and security such as the creation of international

criminal tribunals. Characteristically, the resolution referring the Libyan situation to the

ICC was adopted unanimously, despite three of the permanent members having serious

misgivings about the Court and not being parties to it. This speaks to how dominant a

certain humanitarian discourse has become before the Council. The resort to a variety of

humanitarian and human rights justifications for Security Council action must be read in

the light of a post-Cold War world that was ripe with the hubris of a new sense of

possibilities. It served to reinvigorate the concept of international peace and security and

to update it beyond its canonical meaning focused on inter-state violence.

The import of justice concerns for the Security Council in this context is quite evident.

First, they obviously enrich the Council’s modes of interventions in complex conflicts.

International criminal justice, in particular, can act as a powerful way to delegitimize

heads of states that are seen as standing in the way of international peace and security.

80 See Mark R. Hutchinson, ‘Restoring Hope: UN Security Council Resolutions for Somalia and an Expanded Doctrine of Humanitarian Intervention’, 34 Harvard International Law Journal (1993) 624-640; Richard B. Lillich, ‘The Role of the UN Security Council in Protecting Human Rights in Crisis Situtations: UN Humanitarian Intervention in the Post-Cold War World’, 3 Tulane Journal of International and Comparative Law (1995) 1-18; Fernando R. Tesón, ‘Collective Humanitarian Intervention’, 17 Michigan Journal of International Law (1995-1996) 323-372; Sean D. Murphy, ‘The Security Council, Legitimacy, and the Concept of Collective Security after the Cold War’, 32 Columbia Journal of Transnational Law (1994-1995) 201-288.

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More generally, justice concerns have fundamentally helped the Council reframe its

mandate in more thoroughly intrusive ways, beyond either the sort of collective action

anticipated by the Charter (Korea, Iraq) or traditional peacekeeping operations. Intrusive

UN policies had arguably existed throughout the Cold War as Secretariat practices,81 but

the Council has helped make them more mainstream, alongside a more explicit licensing

of violence in defense of humanity. The trend is very much one in which the Council is

moving away from a strict understanding of collective security and reinventing itself as

an occasional enforcer of international law. Although R2P is often criticized for being a

weak standard, its influence in framing the international community’s response to Libya

or to the Ivory Coast has already been discreet but unmistakable.82 The association with

humanitarianism and judicialism has also powerfully helped reframe the legitimacy of the

Council, not as an increasingly passé body dominated by the victors of the Second World

War, but as being at the forefront of the defense of certain values.

Indeed, the discourse of atrocities, whenever the Council decides to deploy it, is a

powerful permissive force in justifying intervention, one that is increasingly effective at

silencing dissent as a form of complicity with atrocities. Nor has this increased legitimacy

for the Council come at the price of exacting demands on it. The Council can but is not

obliged to either defer or refer situations to the ICC; it can freeze or accelerate the work

of international criminal justice at will. In other words, it remains, fundamentally, the

81 See Anne Orford, International Authority and the Responsibility to Protect (Cambridge University Press, 2011). 82 Resolution 1970 referring the Libya situation to the ICC does not explicitly mention R2P but does unequivocally ‘recall the Libyan authorities’ responsibility to protect its population’. Moreover, as one author cogently remarked : “nonetheless, its flavour impregnates the decision. In referring the situation to the ICC, and thus sending a clear signal to unscrupulous leaders that their crimes will not go unpunished, the UN Security Council brings the responsibility to protect to the forefront of the battle to maintain international peace and security in the world.’ Marianne Ducasse-Rogier, ‘Libya, the UN, the ICC and the Responsibility to Protect’, Clingendael Diplomatic Studies Programme CDSP | Publications <http://www.clingendael.nl/cdsp/publications/?id=8353> [accessed 21 September 2011].The same could be said of all subsequent SC resolutions which, although they may have avoided a reference to R2P out of deference to Russian or Chinese concerns, nonetheless essentially base the authorization to use force on an almost word for word repetition of R2P mantras (the need to protect civilians, the suspicion of crimes against humanity, the responsibility of the Libyan government, etc). On Ivory Coast, see resolution 1975, 30 March 2011 (invoking various forms of governmental responsibility in its Preamble, although not mentioning R2P as such). The leadup to UN and French intervention was also full of R2P invocations. See UN Press Release, UN Secretary-General’s Special Advisers on the Prevention of Genocide and the Responsibility to Protect on the Situation in Côte d’Ivoire, 29 December 2010.

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ultimate arbiter of the international criminal justice’s reach and temporality when matters

of high politics are involved. It can do so, remarkably, even in cases where some of its

members are not themselves parties to the Rome Statute and therefore get the benefits of

instrumentalizing the Court without any of the exposure or obligations.83 Its power in

cases where it refers a case comes close to the power of deciding who gets prosecuted in

the sense that the referral of a situation is the most decisive – much more so in a sense

than the later individualization of indictments by the Prosecutor.84 The Council can also

but is not strictly obliged to act on R2P; when it does ‘as appropriate’ and ‘on a case by

case basis’, it will be able to draw on all the rhetorical benefits that come from

association with a ‘courageous’ stance on behalf of mankind; when it fails to do so, it will

always be able to invoke the fact that R2P is more guiding thread than legal obligation,85

and reassert the primacy of classical international peace and security, which are

prerequisites to atrocity prevention anyhow. Moreover, the Council is helped by a pliant

international prosecutor who is very keen to respond positively to referrals if that means,

in his own words, that ‘the International Criminal Court could add legitimacy to the

Security Council’s decision to apply the Responsibility to Protect concept.’86 The net

effect seems to be that it is, ultimately, the Council that emerges as the crucial arbiter in

designating who is a ‘legitimate victim’, and whose mission is successfully rebranded

from one based on order and security to being the ultimate guarantor of the survival of

the innocent, without conceding anything in terms of its composition or its discretion.

5. Concluding Thoughts 83 This is all the more so that both in Sudan and Libya specific exemptions from jurisdiction were drafted to exclude non-Sudanese and non-Lybian nationals of non-states parties from the Court’s reach. 84 It is a power, moreover, that is not constrained by any of the normal liberal constraints on the criminal trial since no actual individual is involved. Hence the Security Council can deplore a ‘genocide’ or ‘crimes against humanity’ in a way that is bound to have some influence on international judicial institutions work, but without any of the constraints that come with judicial determinations. 85 See Office of the President of the General Assembly, Concept note on the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. UN Doc. A/63/958, Annex (9 September 2009). 86 Ocampo, Engaging America, supra note 28.

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Discourse on R2P and the ICC is a mixture of millenarian hubris about achievements and

potential on the one hand, and constant mortification and hand wringing about the

limitations put in their way on the other. In fact, the paradox is that R2P and the ICC are

both weak and powerful, and not necessarily for the reasons or in the way that is often

thought.

The convergence of the ICC and R2P agendas before the Security Council suggests a

much stronger degree of normative entrenchment of evolving ideas about sovereignty and

international authority than each would indicate separately. As a result of these combined

moves, international community jnvolvement is able to appear as endowed with all

virtues: humanitarian in the old sense, crime preventing in the new sense, and

international peace and security fostering. There is no reason to think, though, that this

overlap will significantly change practices; rather its emergence is probably a sure sign

that practices have already very significantly changed. This runs against the general

consensus that both independently and certainly in conjunction the ICC and R2P are

fundamentally international legal order-altering moves, of almost revolutionary

proportions. Instead, there is a sense that the effect of these moves is first and foremost to

reinscribe the centrality of the state, at the expense, for example, of any more radical

critique of the role of sovereignty in producing violence: the degree, for example, to

which genocide, war crimes and crimes against humanity are not just pathologies of the

state system but also arguably very much contained within it; the degree to which the

response to all of the above is itself inscribed in violence, be it that of the criminal law or

of armed intervention.

Moreover, alone and in conjunction, the ICC and R2P reinforce the centrality and

exceptionality of the Security Council by updating its mandate, giving it a gloss of

legitimacy and leaving it as the ultimate arbiter of international politics. Rather than

fearing that R2P and the ICC will create new possibilities of ‘political’ abuse, the concern

should be that they will make it even more difficult to unmask power logics at work in

the Council. In essence, R2P and the ICC can also be seen as having a role in ‘softening’

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targets for the Council through increased stigmatization. Perhaps the genius of R2P (and

to a lesser extent the ICC) is that it makes appear as a duty that the international

community might reluctantly but heroically occasionally endorse, that which the Council

has been only too happy to do when it suited it. In this context also, the discourse of

radical innovation in the Council’s mission can and should be contrasted with the reality

of the inertia of Council reform when it comes to its composition and modus operandi.

Indeed if these evolving new normative alignments raise one fear it is not that there will

be a dearth of interventions, but that the hydraulic pressure of international criminal

justice, combined with a very broad mandate to discipline sovereigns, and a Security

Council on the lookout for ways to reinvent its mission will further entrench a very

unequal mix of highly intrusive interventions in some cases (for example in Africa), and

absolute inaction in other cases. In this context, there is a strong suspicion that the

combined operation of the ICC and R2P makes it much easier for the international

community to interfere in the affairs of some states and even go to war against them by

providing a broad legal and moral cover for such action. By the time the pressure of

international criminal justice and R2P have been brought to bear, there is always a risk

that the ‘international community’ will corner itself and others into thinking (through the

mass media, through endless repetition of the unfathomable consequences that would

follow) into intervening. The danger in the end may not be that the powers that be not

believe in the need of humanitarian intervention, but that they believe in it a little too

readily.

More insidious effects may be involved as the Council moves beyond international peace

and security traditionally conceived. When the international community does intervene,

the danger is that it will increasingly conceive itself as doing so primarily to ‘stop crime’,

which may turn out to be a remarkably impoverishing way of seeing both the goals and

potential negative effects of intervention. The strictly humanitarian vision implicit in

traditional debates on humanitarian intervention made it tempting to reduce those who

benefited from an international intervention to pure bodies in need, human ‘matter’

waiting to be rescued. The international community made no distinction based on

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whether those suffering were victims of a campaign of brutal war, a genocide or a

tsunami. This turned out to be a mistake that the international community paid dearly in

the 1990s, when it fell for the belief that Bosnians were dying because of lack of food

rather than at the hands of snipers. In that respect, international criminal justice has had

the significant effect of nudging the international community beyond a purely neutralist

humanitarian stance and peacekeeping’s traditional emphasis on impartiality. It forces the

Security Council to take into account the fact that there may indeed be differences in the

moral standing of parties to conflicts.

However, it does so in ways that are themselves deeply problematic. First, even more so

than traditional humanitarianism, international criminal justice and R2P seem to rely on a

concept of victimhood that denies victims any agency. Victims are always ‘pure’ victims

rather than complex historical actors, not to mention themselves involved in some

measure of wrongdoing. Although this is not an inevitable consequence of international

criminal justice, in practice it does seem to be its consistent by-product. Paradoxically, it

is almost as if what agency is not recognized in victims is then over-invested in those

responsible for atrocities. The oppressors are presented hyper-agents, rational calculators,

and cold-blooded killers. These combined pressures end up radically discounting the

impact of political passions, cataclysmic events and massive political change. They

portray the international community as merely exercising a police function against a few

psychopaths, rather than as exerting some more fundamentally political pressure in the

midst of profoundly historical events. The debilitating effect of international criminal

justice on our representation of populations as nothing else than victims of the genocidal

tyrant also fits nicely within R2P’s ‘wardship’ view of sovereignty. It is for the

international community to step in to fill a ‘vacuum’ left by the defaulting state, rather

than any local actor or fighting population since the latter are presumed to either not exist

or be too compromised.87

87 Frédéric Mégret, ‘Beyond the “Salvation Paradigm’: Responsibility to Protect (Others) vs the Power of Protecting Oneself’, 40 Security Dialogue (2009) 575-595.

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The effects of such a reductionist view have already been felt in the limitations of the

intervention in Libya in 2011, one which from the start had difficulty deciding between a

view of the crisis as entailing primarily a humanitarian catastrophe, crimes committed by

the tyrant, a threat of massive regional destabilization, or the political problem of

succession in a very complex domestic environment. The perception that atrocities are

being or are about to be committed powerfully increased pressures to intervene, and

helped cement a fragile consensus, even among states normally lukewarm about the

possibility, that Libyan sovereignty must be breached. The fact that intervention has been

prompted by other factors as well, does not change the fact that R2P norms and ICC

involvement have had a powerfully facilitative effect.

However, some of the very factors that make the principle of an intervention popular in

such a case, also significantly obscure how it should unfold and its real foundation. The

international community seemed to move beyond strict humanitarianism (protect the

population), towards international criminal justice enforcement (freeze Gaddafi's assets,

arrest him), but in ways that bore only a passing relation to facts on the ground (a

revolution aimed at toppling a tyrannical regime). This hesitation was a by-product of the

normative dilemmas that resulted from the conflation of peace, justice and

humanitarianism. Populations were to be protected ‘from atrocities’ but in ways that

excluded thinking about the origin of these atrocities except in the most succinct form

(e.g. Gaddafi's personal evil). The goal of the international intervention was then formally

reduced to indefinitely preserving a sort of atrocity-free stalemate, even if that

stalemate’s very indecisiveness ended up being a rampant cause of more violence. Yet as

time passed on, it became clearer that what was going on in Libya had more to do with

classic ‘regime change’ under another name, than the R2P/ICC agenda conveyed, and

that the ability to move seamlessly from one semantic register to the next was reminiscent

of other, remarkably less consensual, interventions. It is not hard to see how the

confusion of moral sentiments and calculation, international peace and security and

justice, creates many opportunities for more brutal forms of interest to seep in. The

danger is that the notion of international peace and security which formed the basis of

Security Council action for much of its first decades will have been so broadened as to

36

lose any residual analytic trenchancy and, with it, any residual ability to constrain the

actions of those who control the levers of force.