Expanding and Strengthening are not the same thing: The Dangers of Calling for ICC and R2P Expansion – Natasha Dianne Wheatley-Caffrey

The International Criminal Court (ICC) and the norm of responsibility to protect (R2P) are both meant to help reduce the frequency of violence against civilians, particularly at the ‘atrocity’ level. The ICC can prosecute individuals for various war crimes or crimes against humanity under several different circumstances and R2P gives the international community the right to intervene inside states that are not protecting their citizens (or in many cases, actively committing violence against them). Both can be seen as measures of deterrence against future crimes as states do not want to see their sovereignty put below civilians’ safety and individuals do not want to end up jailed by the ICC. The two institutions also have an intervention function: R2P can physically stop an atrocity with the right intervention and the ICC can arrest perpetrators.

However, it seems that everyone wants the ICC and R2P to do more. Bellamy argues that the internationally community did not take the R2P norm far enough in supporting the 2012 Annan plan for Syria. Ainley believes that the ICC needs to do more to actively support the rule of law development for domestic judicial systems to reduce the need for the ICC. Ainley not only calls for the ICC to pursue traditional rule of law support programs but also to dive into broader good governance issues as well as economic development. Both are calling for an enormous level of mission or norm creep, depending on the institution. Not only are the two institutions not built for the agendas that Bellamy and Ainley are proposing, but widening their goals will actually reduce the good that they already accomplish, even if it is not the level of impact that was originally hoped for.

The ICC currently receives a significant amount of criticism for bias and correcting that should be the organization’s first priority. The Court is seen too often as a tool of the Western powers, cherry-picking cases for prosecution that are favorable to the United States and others. How will it help that perception if it starts programming that emphasizes neo-liberal economic development policies or Western governance structures? Furthermore, the Court will lose legitimacy if it fails in these new endeavors, which it would be likely to do. There is no one currently employed by the Court that has any real experience in good governance or economic development. It wasn’t designed to perform those functions and it doesn’t have the experience to do so. Expanding into those areas would require reallocating the little resources it has away from its core function of investigating and prosecuting war crimes. The appearance of the Court working outside its mandate and ignoring its original function will not help it rebuild credibility.

The R2P norm suffers from a similar disease at present. It is also viewed in some places as a tool of Western powers to interfere in the domestic affairs of other states. It is also seen as something that is only applied when politically convenient.  Perhaps Bellamy is correct that we needed to do more in Syria but the assertion that R2P needs to be interpreted more broadly comes with real red flags. Specifically, Bellamy says that R2P needs to cover the responsibility of states to constrain its citizens from committing atrocities in other places. How could this be done?  R2P certainly already allows for the international community to intervene at times when citizens of one country commit atrocities in another – but in the country where the atrocity occurs. How can R2P be interpreted to justify action against a country when nothing is happening inside that country? Even if you can justify such an interpretation, you are leaving the door open for the norm to be exploited further. Would countries actually want Western powers to interfere in their affairs, including possible military action, just because one of their citizens committed a crime there? I doubt it.

 

The ICC and R2P are important institutions that need to be strengthened and protected, not expanded and diluted.

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One thought on “Expanding and Strengthening are not the same thing: The Dangers of Calling for ICC and R2P Expansion – Natasha Dianne Wheatley-Caffrey

  1. The ICC and R2P are indeed human rights innovations that are worth strengthening. I believe there is value in expanding them as well. However, expansion can be thought of in two ways. The first would be to expand the institutions themselves – something you are wary of, and for good reason – by broadening their mandate to include economic and governance considerations. You rightly point out that pursuing such a course could give further credence to the critique that said institutions have been exploited by Western powers as vehicles for their own respective national interests. A second way of view expansion, however, would be increased diffusion of ICC and R2P norms within national institutions. As Luis Moreno-Ocampo states in addressing this with respect to the ICC (within the context of the Ainley piece), “As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.” In principle, a similar statement could be made with regard to R2P. The gradual and increased diffusion of norms created by the ICC and R2P at the national level would decrease violence against civilians, which – it can be argued – is the spirit of the innovations in the first place. In this way, I would envision the “expansion” of the ICC and R2P as being represented in increasing measure in countries around the world. This is how international treaties and conventions really become powerful, not by becoming organizations in themselves that expand and enforce, but by becoming enshrined in domestic law in countries around the world. The question becomes how to better advocate for expanded diffusion, and then who exactly is responsible for the advocating.

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