The Responsibility to Protect and the International Criminal Court: America's New Priorities

R2P Coalition and the Center for International Human Rights Final R2P-ICC Conference Report

Over the course of the past five years, the international community has adopted, with varying degrees, two related means for responding to and preventing the atrocity crimes of genocide, crimes against humanity, war crimes and ethnic cleansing. The first is the “Responsibility to Protect Doctrine” (R2P), which the U.N. General Assembly adopted - with U.S. endorsement - in September 2005. R2P mandates effective responses to widespread assaults on civilian populations at the national level first but, if necessary, through collective international action. Many focused on R2P implementation have sought to apply the doctrine in country specific cases and have considered a range of political, economic, diplomatic, and military intervention options. What has been absent from these debates, however, is  any serious discussion on the judicial arm of R2P, i.e., when an international judicial response can either
support or replace military options.

In order to move away from ad hoc, unilateral, and politically-driven military and diplomatic interventions to an enduring and legitimate judicial deterrence and enforcement, policy makers and others considering R2P-appropriate actions for atrocity crimes should look to solutions within the international criminal justice system. More specifically, R2P supporters should seek, when appropriate, to imbed the R2P doctrine in the global judicial path being forged by the International Criminal Court (ICC), a fresh hallmark in international relations for responding to and preventing future deadly conflicts. R2P and the ICC are both guided by the same moral commitment to address and ultimately end atrocity crimes, and that moral commitment is the nexus that should underpin advocating necessary changes in the national discourse of U.S. foreign policy.

The next American presidential administration which begins work in 2009 provides an opportunity to reaffirm key priorities for America: justice, the rule of law, human rights, and the end of the most heinous crimes known to humankind. The groundwork has been laid already. In September 2005, the United States joined consensus on the U.N. General Assembly’s adoption of the World Summit Outcome Document, which articulated R2P. Shortly thereafter, in Security Council Resolution 1674 of April 26, 2006, which focused on the protection of civilian populations, U.S. officials endorsed reference to the R2P provisions of the World Summit Outcome Document as critical to that objective. Until 2001, the United States had a relatively positive history of involvement with the ICC. Throughout the U.N. negotiations on the Court that formally began in 1995 and culminated with the Rome Statute on the ICC in July 1998, the United States strongly supported the establishment of a permanent international criminal tribunal that would bring to justice those responsible for the commission of atrocity crimes. Though the United States opposed the final draft of the Rome Statute due to certain issues not being properly addressed in that draft, during 1999 and 2000 the United States actively participated in further
negotiations and joined consensus on the Rules of Procedure and Evidence and on the Elements of  Crimes adopted in June 2000. On December 31, 2000, the United States signed the Rome Statute of the ICC. But the Bush Administration determined that it would not support the Court and on May 6, 2002, President George W. Bush took the unprecedented step of denying the enforceability of the U.S. signature on the Rome Statute.

Nonetheless, there are alternative views that American engagement with the Court remains important for the long-term success of the Court and for the achievement of U.S. foreign policy objectives. On December 5-7, 2007, the Center for International Human Rights at Northwestern University School of Law and the Responsibility to Protect Coalition convened a conference, entitled The Responsibility to Protect and the International Criminal Court: America’s New Priorities, with those aims in mind.

Fifty-five leading experts from the ICC, the International Criminal Tribunal for the Former Yugoslavia, academia, nongovernmental organizations, the military, religious communities, and the federal court system attended the conference. Keynote addresses were delivered by Samantha Power, Harvard University’s Anna Lindh Professor of Practice of Global Leadership and Public Policy, Luis Moreno-Ocampo, chief prosecutor for the International Criminal Court, John Prendergast, director of the
ENOUGH Project, Prince Zeid Ra’ad Zeid Al-Hussein, Jordan’s Ambassador to the United States and the former President of the Assembly of States Parties of the ICC, and U.S. Army General Wesley Clark (ret.), former NATO Supreme Allied Commander.

The goal of the conference was to formulate recommendations on how the United States should take steps domestically and with other governments and international institutions to advance the R2P principle through the work of the ICC. Within this framework, the conference focused on three issues:

1. The Political Strategy for American Cooperation/Participation re ICC
2. The Military Strategy for American Cooperation/Participation re ICC
3. The Political and Military Strategy for Development of an International Marshals Service

This report is the outcome of the conference. It lays out specific recommendations on how to raise awareness on the international justice elements of R2P, develop constructive support for U.S. participation in the ICC, and lay the foundations for an institutional enforcement mechanism for the Court.

The full report can be viewed here:  Download r2picc_conference_reportmarch_20081.pdf