The International Criminal Court and Consolidation of the Responsibility to Protect as an International Norm

in Global Responsibility to Protect
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Consolidation of R2P as a robust global norm is not yet assured, because of continued disagreement among the powers as to the concept’s appropriate application, and even as to its meaning. The process of R2P norm consolidation likely will be linked to progress in the development of the International Criminal Court – another recent initiative of the international system focused on atrocity crimes, and itself also in a formative phase. Continued expansion of ICC membership, ICC effectiveness at bringing atrocity crime perpetrators to justice, and ICC contributions to developing greater international agreement on the definition and application of R2P could accelerate norm consolidation. But if key members of the UNSC remain outside the ICC, and if some major powers continue to seek to circumscribe both the meaning and the application of R2P in the UNSC, R2P norm consolidation will remain elusive.

The International Criminal Court and Consolidation of the Responsibility to Protect as an International Norm

in Global Responsibility to Protect

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References

1

A/RES/60/1 16 September 2005paragraphs 138-40; S/RES/1674 28 April 2006; S/RES/1706 31 August 2006.

2

Roger Cohen‘African Genocide Averted’The New York Times3 March 2008 www.nytimes.com/2008/03/03/opinion/03cohen.html (All websites cited in this article were accessed on 4 June 2012); S/RES/1970 26 February 2011; S/RES/1973 17 March 2011; The White House ‘Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate Regarding the Lord’s Resistance Army’ The White House press release 14 October 2011 www.whitehouse.gov/the-press-office/2011/10/14/ letter-president-speaker-house-representatives-and-president-pro-tempore; James Traub ‘No Apology Necessary’ Foreign Policy 28 October 2011 www.foreignpolicy.com/articles/ 2011/10/28/no_apology_necessary.

3

 See for example John Bolton‘Aspirations Don’t Make Foreign Policy’The Globe and Mail3 November 2009 www.responsibilitytoprotect.org/index.php/crises/128-the-crisis-in-burma/1953-john-boltonaspirations-dont-make-foreign-policy; Steve Groves ‘Obama Wrongly Adopts U.N. “Responsibility to Protect” to Justify Libya Intervention’ 31 March 2011 www.heritage.org/research/reports/2011/03/libya-intervention-obama-wrongly-adopts-un-responsibility-to-protect; David Reiff ‘R2P R.I.P.’ The New York Times 7 November 2011 www.nytimes.com/2011/11/08/opinion/r2p-rip.html?pagewanted=all.

7

As of 1 July 2012Guatemala became the 121st State Party.

12

Vincent A. Auger‘The Responsibility to Protect: Six Years After’Air & Space Power Journal 2/2 (2011) p. 86 citing Kofi Annan ‘Two Concepts of Sovereignty’ The Economist 16 September 1999 www.economist.com/node/324795. Francis Deng’s work on developing the responsibility concept was also important. See for example Francis M. Deng Sakikiel Kamaro Terrence Lyons Donald Rothchild and William Zartmann Sovereignty as Responsibility: Conflict Management in Africa (Washington D.C.: Brookings Institution Press 1996).

18

Noha Shawki‘Responsibility to Protect: The Evolution of an International Norm’Global Responsibility to Protect3/2: 172-96 (2011).

21

Jeffrey Legro‘Which Norms Matter? Revisiting the Failure of Internationalism’International Organization51/1: 31-63 (1997). For a discussion on indicators of norm legitimacy see also Thomas M. Franck ‘The Emerging Right to Democratic Governance’ The American Journal of International Law 86/1: 46-91 (1992).

31

Ibid p. 16.

39

Ernie Regehr‘U.S. Tries to Water Down UN “Right to Protection” Reform’The Record8 September 2005 www.ploughshares.ca/content/us-tries-water-down-un-right-protection-reform-global-summit-wants-add-muscle-protect-worlds.

42

Ibid p. 24.

46

Ibid p. 21.

52

Ibid p. 16.

60

S/2011/612 p. 2.

62

Ibid p. 4.

64

Thomas Grove‘Russia to Sell Arms to Syria, Sales Overall to Rise’Reuters17 August 2011 www.reuters.com/article/2011/08/17/us-russia-arms-idUSTRE77G41X20110817.

86

The Associated Press‘African Union Opposes Warrant for Qaddafi’The New York Times4 July 2011 www.nytimes.com/2011/07/03/world/africa/03african.html.

102

Patricia M. Wald‘Genocide and Crimes Against Humanity’Washington University Global Studies Law Review6/3: 621-33 (2007). A lack of consensus regarding the distinction between genocide and crimes against humanity was evident in the divergent opinions of ICTY judges. Schabas explains ‘judgments of different trial chambers of the ICTY have taken the [genocide] law in opposite directions.’ For example one ruling concludes that ‘forcible transfer of a population’ can constitute genocide while another ruling states that only physical and biological destruction constitute genocide. See William A. Schabas ‘Has Genocide Been Committed in Darfur? The State Plan or Policy Element in the Crime of Genocide’ in Ralph J. Henham and Paul Behrens (eds.) The Criminal Law of Genocide: International Comparative and Contextual Aspects (Hampshire U.K.; Burlington: Ashgate 2007). See also William A. Schabas ‘Genocide Crimes Against Humanity and Darfur: The Commission of Inquiry’s Findings on Genocide’ Cardozo Law Review 27/4 : 1703-21 (2006).

103

Arieff et al‘International Criminal Court Cases in Africa’ p. 15; see also Antonio Cassese ‘Flawed International Justice for Sudan’ 15 July 2008 www.project-syndicate.org/commentary/cassese4/English.

106

S/PV.6528 4 May 2011.

107

Ibid p. 7.

113

Martin Chulov‘Syria: UN Lists Names of Assad Officials who could Face ICC Prosecution’The Guardian18 August 2011 www.guardian.co.uk/world/2011/aug/18/syria-un-assad-officials-icc-prosecution; International Federation for Human Rights Bashar Al Assad: Criminal Against Humanity July 2011 www.fidh.org/IMG/pdf/reportsyria2807eng.pdf.

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