An Open Access Article

Type: Research Article
Volume: 2020
DOI:
Keywords: Atrocitie crimes, impunity, accountability, justice, International Military Tribunal Nuremberg, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, International Criminal Court, United Nations, Security Council, Responsibility to Protect, Universal Jurisdiction.
Relevant IGOs:

Article History at IRPJ

Date Received: 2020-11-30
Date Revised:
Date Accepted: 2020-12-01
Date Published:
Assigned ID: 20201130

Addressing the Most Serious International Crimes and Closing the Impunity Gap: International Criminal Justice between Politics and Law.

Durbuzovic SEJLA

 Author affiliation(s): (1) EUCLID (Pôle Universitaire Euclide |Euclid University)

s_durbuzovic@yahoo.com

Corresponding Author:

Pr Devender BHALL, HDR (Editor)

Email: bhalla@mail.euclid.int

 

A B S T R A C T
From Nuremberg to The Hague, Rome and New York, from the response and redress for the most heinous of international crimes to the avenues for their prevention and comprehensive address, long was the journey to create an elaborate normative and institutional framework dedicated to preventing, protecting against, punishing, and ultimately eradicating this plague of humanity. We have created a system to protect us from and address every violation of the international humanitarian and human rights law, to stand as a stern warning for all future perpetrators that there will be no safe place for them on this world.

Yet, millions of people still fall victims to the unspeakable horrors, unprotected and forgotten, and still await justice.

It is then a question how any outrage towards crimes committed in the past century alone can be taken seriously and considered nothing but hypocritical when attempts to deliver justice throughout were sporadic and far in between, subjected to political and diplomatic bargaining and calculations, when only but a symbolic number of perpetrators faced justice, given the staggering number of people killed.

Serious commitment to the principled application of international criminal, humanitarian and human rights law is urgently needed, alongside a high degree of institutional reform and adjustment, establishment of clear criteria and procedures for greater consistency and, finally, a higher prospect of enforceability in order to enable effective functioning and regain credibility. We need to create enabling environment to allow the international community to live up to its responsibility to protect,  create clear rules and procedures for the exercise of universal jurisdiction, minimize the effects of the veto-wielding authority of the Council’s permanent five, which seriously compromises the Council’s ability to maintain international peace and security when it matters the most,  and make of the International Criminal Court a truly international institution that will, in support of national and regional institutions, effectively and significantly shrink the impunity gap.

 

 

 

1. Introduction

For all the tragedies ongoing and unfolding around the world at this very moment, I keep returning to the tragedy of my country. The tragedy of Bosnia and Herzegovina, for sure, is neither a lone instance of mass atrocities nor the worst that has ever befallen humanity, not by far. It is, however, one that could and should have been a valuable lesson in so many ways. And every July, these past 24 years, we have been reminded of lessons we failed and refused to learn. It is a very difficult month for Bosnia and Herzegovina – it is a month of mourning, remembrance, and reflection, a month that awakens a feeling of betrayal and hypocrisy. For the rest of the world,  it is a month where grave silence over Potocari speaks louder of justice, accountability, atonement, and respect (or lack thereof) than any of the countless proclamations we hear time and over.

Srebrenica will forever remain a dark stain on the conscience of the United Nations and the international community, a benchmark at the intersection of law and politics, humanity and bestiality, justice and betrayal, failure of the past, a lesson for the future and agony of today. But Srebrenica is just one out of many manifestations of the evil that has abided with us for centuries, and which after Auschwitz, the world had vowed to banish forever from the face of the planet.[1]

For all the promises we have made, for all those countless solemn proclamations and condemnations we have heard, and the entire framework we have created, this evil has yet to leave us. Crimes still happen, in alarming numbers, intensity and brutality. Not a year has passed without a Srebrenica being committed somewhere, and without anonymous or quite known monsters getting away with the crimes they are responsible for, their goals realized.[2]

Honoring any anniversary, being in celebration or mourning, means remembering, and while doing so it means that we are to learn from our mistakes and build upon our achievements. Summarizing through where we stand today, one can rightfully say that we have accomplished so much, but we truly learned nothing. And we care less and less.

The impunity gap is an ever-present dark hole in our humanity. However, it is no longer just a gap that accommodates every absence of responsibility and accountability for the newly committed crimes, thus canceling any possible deterrence effect justice mechanisms might have. It is an opening where even some of the adjudicated crimes are revisited afresh, recovered, rehabilitated, and glorified.

Could it be that this is because we have decided that Auschwitz is a museum, a place we go to study the past – and not one in which we are confronted with our present and future?[3] Could it be that we have decided that Potocari is but a stone memorial and not a very tangible and grim outcome of the UN Security Council’s conscious disregard for its mandate and responsibilities?

2.     Impunity or accountability – politics or law?

From Nuremberg to The Hague, Rome, and New York, from the response and redress for the most heinous of international crimes to the avenues for their prevention and comprehensive address, long was the journey to create an elaborate normative and institutional framework dedicated to preventing, protecting against, punishing, and ultimately eradicating this plague of humanity. We have created a system to protect us from and address every violation of the international humanitarian and human rights law, to stand as a stern warning for all future perpetrators that there will be no safe place for them in this world. Yet, millions of people still fall victims to the unspeakable horrors, unprotected and forgotten, and still await justice.

Up until 2010, some 281 international conventions applicable to 28 categories of international crimes have been adopted, but in the absence of a strong political will for them to be respected and enforced, it is no wonder why 20th century was being labeled as ‘a century of genocide.’[4]

One critic quite rightly pointed out, “…the road to hell is paved with good conventions.”[5] Meaning – not much has been done in those years to effectively enforce their provisions. Several international conventions clearly provide for a duty to prosecute the humanitarian or human rights crimes defined therein, yet, in terms of such prosecutions, not much has happened since their adoption.[6]

For almost 50 years, obligations for states to prosecute and punish persons accused of serious violations of international humanitarian law through their respective national jurisdictions, arising from the 1949 Geneva Conventions, were all but a dead letter. States were reluctant to prosecute those suspected of committing crimes in whatever cases of armed conflicts, internal or external, both out of political and diplomatic concerns, with a disregardable number of trials ever held in national criminal jurisdictions for violations of international humanitarian law.[7]

Speaking of the Genocide Convention, its enforcement provisions were not invoked until 1994, when Bosnia and Herzegovina sued Serbia and Montenegro before the International Court of Justice for violations under the Convention. This, if anything, quite clearly demonstrated how states, in general, perceive pursuit of this particular line of criminal adjudication as a political tactic, instead of principled demand for justice.[8] In Bosnia vs. Serbia and Montenegro, the ICJ broke new ground by giving practical effect to the prohibitions of the Genocide Convention and unambiguously holding that states can be held accountable for committing genocide.[9] On the other hand, individual findings of the ICJ, in this case, were faced with substantive criticisms, some even calling it a judicial massacre. For Cassesse it was an unholy marriage of the law and realpolitik, one of those judicial pronouncements that attempts to give something to everybody and leave everything as it was.[10] At some point, genocide went from a legal category to a politically determined or renounced fact.

It seems logical then to question any outrage towards crimes committed in the past century alone, its seriousness and genuine nature, and not considered it hypocritical, when attempts to deliver justice throughout, for the staggering number of people killed, were sporadic and far in between, when only but a symbolic number of perpetrators faced justice, and all this subjected to political and diplomatic bargaining and calculations.[11]

As stated in so many solemn proclamations and by so many world leaders, the avengement and prevention of international crimes is our core priority and responsibility.[12] Impunity for international crimes as well as for systematic and widespread violations of fundamental human rights can be considered, in equal measure, a betrayal of our human solidarity with the victims to whom we owe a duty of justice, remembrance, and compensation. Bringing perpetrators to justice is not only a duty towards our efforts in the prevention of future victimization but also an obligation towards our own humanity.[13] Yet, we are at risk to lose all our credibility in proclaiming this commitment as long as double standards are applied.[14]

Nuremberg and Tokyo, The Hague and Arusha were rare noteworthy instances and attempts at justice, but, as Judge Kirk McDonald noted, “there has been no reckoning for the great majority of mass violations of human rights throughout this century; perpetrators have either not been identified, or have not been required to account for their crimes.”[15] As noted by some authors, what the international community is willing to profess is not necessarily what it is willing to act upon, let alone enforce,[16] and it is to a great extent the current state of affairs.

Even with the establishment of the International Criminal Court the perspective remains largely unchanged.

As Bassiouni portrays it, we now have “a little bit of criminal justice, a little bit of realism on occasion, and a few effective trials, while focusing on how to reconcile the tension between the attempt to develop international criminal justice in its own right, and the realpolitik view of international criminal justice as a useful tool in the achievement of desired political results.”[17] 

3.     International crimes – from indifference to selectivity

3.1.  IMT and ad hoc tribunals

Nuremberg, the one truly pioneering venture of international criminal justice, was a great teaching moment on many accounts, a decisive moment in history. It showed the value and strength of justice in confronting and diminishing evil ideologies, in establishing the truth and recording history, and, ultimately, in creating necessary preconditions for reconciliation, closure, and peace.  It showed the price of politics devoid of humanity and of politics defined by the rule of law, duty, responsibility, and accountability.

Labeled by some as ‘extraordinary,’[18] Nuremberg IMT was the first example of an international criminal tribunal applying international law directly, and imposing directly individual liability and the existence of obligations beyond domestic law.[19] These processes all but eliminated, as a means of defense, claims of immunity for heads of state, together with “obedience to superior orders,” while laying the foundation for what has now become a permanent feature of modern international justice.[20]

At Nuremberg, it did not matter if the accused person was a state official, a Head of State or Head of Government, or that the person was only following orders. What mattered is that the acts were illegal under international law. And that the person violated international criminal law. Nuremberg was about doing justice, about the application of individual accountability, hoping it would contribute to the prevention of future crimes of such magnitude. The Nuremberg Promise was the promise of courage in holding to account the greatest of the world’s criminals. Nuremberg stood for individual accountability and the tearing down of the shield of State protection for criminal leaders.[21]

Unfortunately, succeeding generations failed to carry that promise to it complete, uncompromised, and uncorrupted fulfillment.

Political wisdom and foresight turned into political, self-serving, opportunism. In succeeding years, realpolitik became the only driving force, and justice was only an afterthought or a substitute for more comprehensive response and action. Selectivity, double standards and unprincipled approach became a trademark of international criminal justice.

The establishment of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda history will remember as unprecedented, and forever characterize to be a milestone that irreversibly changed the landscape of international justice, some even calling their establishment the birth of international criminal justice. It is widely considered today that the UN Security Council used the Nuremberg and Tokyo military tribunals as institutional precedents when establishing ad hoc tribunals.[22]

The difference, however, was that the Allied powers were indeed interested in following through with military tribunals and in that simple fact laid the greatest strength of the Nuremberg and Tokyo. Unlike the ICTY and the ICTR, there was no lack of interest, no lack of resources or refusals to arrest suspects, there was no undermining of its findings and judgments. The problem of The Hague and Arusha is that the international community and the UN Security Council, from the very outset, were not that much interested or invested in seeing justice through all the way. The establishment of the ICTY was considered an act of tokenism by the world community, largely unwilling to intervene in ex-Yugoslavia but in creating an institution such as this would at least project the appearance of moral concern. Similarly, the ICTR came as a post facto ineffective remedy to the accomplished genocide, intended to prosecute the crimes the international community would not prevent.[23] Seen as such, their establishment appeared to have little to do with dispensing justice for horrendous crimes but, in a great measure, was a way to avoid implications and complications that may arise from any intervention on the ground.[24]

Consequently, it is a reason why some believe that these second generation of international criminal tribunals became ad hoc, temporary,remedies to political problems instead of a part of a more substantive response.[25]

If the international community was even remotely invested in the success of both Tribunals, as it was with Nuremberg at least, ICTY and ICTR would not be on the agenda of the UN Security Council 20 years after their establishment, debating on and doubting their accomplishments, failures, and legacy; and, eventually, it would not turn into a political debate.[26] For sure we would not have instances or entire policies based on genocide denial and glorification of war criminals, murderers, and rapists.

Ultimately, and despite politically motivated attempts at undermining their work and significance, the value and power of these tribunals proved not to be in numbers but in the story they told, recorded, and preserved, accounts of horrible crimes that will haunt us forever, judgments delivered and precedents they created. It is impossible to expect for any such institution to deliver complete justice, justice as commonly perceived, for crimes on such a massive scale. Justice of these tribunals, or any other similar venture of the international criminal justice system, ad hoc or permanent, is never about the complete rendering of justice. It is not about quantity but quality, impartiality, and uniformity, credibility and endurance, about the inevitability of its delivery.

However, their strength is not in the mere existence of such an institution, but in the strength of resolve and support behind it. As Orentlicher notes, people don’t expect perfect justice, but they do ‘want some kind of justice.’[27] They want the truth that is respected, guilt that is recognized, and accountability that is upheld.

3.2.  ICC and R2P

In establishing ad hoc tribunals international community addressed but a fraction of horrific crimes and grave human rights violations and abuses that marked the 20th century, and we entered the 21st century on an even graver predicament concerning prevention and protection of innocent civilians, and justice and accountability for progressively abhorrent crimes.

The establishment of a permanent international criminal court and the formulation of the responsibility to protect were probably the two most significant developments in human rights protection in decades,[28] direly needed to stand between us and the abominations of mankind.

Responsibility to Protect (R2P) came about as a response and a way to address repeated failures of the international community to prevent and put an effective stop to these crimes; it is an international security and human rights norm, moral compass for 21st century, reformulated in a new way to reflect and pull together longstanding obligations of states under existing conventions. It was also a global declaration that reinforces the primacy of the rule of law and a global recognition that in the 21st century sovereignty translates into the responsibility to protect people from fear and want.[29]

Political concepts born in the 19th century cost hundreds of millions of lives and indescribable suffering in the 20th century. As such, for the 21st century, they are totally inadequate and frankly hardly acceptable.[30] While sovereignty still can be observed as a shield against everyday interference in a country’s internal affairs, it can no longer be considered an excuse for the commission of atrocities against one’s people or a way of avoiding accountability for those crimes.[31]

R2P conceptualizing sovereignty as responsibility, consolidating existing obligations under international law – obligation and responsibility ofstates to protect their own population from atrocity crimes, and of the international community in cases when states concerned are unable or unwilling to do so. R2P “makes explicit what international law, arguably, already requires,”[32] emerging not as a new legal principle but rather as a political commitment to implement the already existing law (because each of the R2P crimes is already prohibited).[33]

Reference to the R2P is contained in paragraphs 138–139[34] of the 2005 World Summit Outcome.[35] This document made clear that R2P only applied to four international crimes – genocide, crimes against humanity, war crimes, and ethnic cleansing. It can be seen as a product of the international rule of law, while international criminal justice can be seen as a result of R2P. One can certainly argue that prevention, as one of the targets of R2P, is achievable through the advancement of the pursuit of international criminal justice, thereby, among others, reducing the prospects of impunity.[36]With the potential for deterrence and prevention, and within the parameters of the residual responsibility to prosecute, international criminal justice has been institutionalized as one avenue for the reaction.

The creation of the International Criminal Court (ICC) in 1998 reflected 53 years of our collective struggle with our own faulty humanity, as well as the necessity to curb a culture of impunity that permeated. The significance of the ICC is not only in its promise as the permanent mechanism for providing justice, or a more credible deterrent to a repetition of the massive atrocities seen in the 20th century.[37] Its significance is also in the nature of its jurisdiction: unlike the International Court of Justice (ICJ), which has jurisdiction only over states, the ICC has jurisdiction over individuals.[38] And, unlike the ICTY and the ICTR, its jurisdiction is of far wider, almost universal, reach.[39]

In adopting the Rome Statute there was another important objective: to have the investigation and prosecution of international crimes conducted on a permanent basis, by an independent, transnational, judicial entity that operates according to the principle of the separation of power, but primarily out of the context of power politics.[40] The reality, however, was that the ICC would not come into existence without a certain connection to the contemporary center of power politics. After a long and tiresome debate during the negotiations, states reached a compromise that was reflected in two provisions in the Rome Statute, Article 13b and 16. Based on both provisions, this basically means “that the Council, the supreme executive organ of the UN, can effectively create jurisdiction where it otherwise would not exist on the basis of the Rome Statute” or “block any prosecution for a renewable period of one year if it determined that pursuing it would pose a threat to international peace and security.” [41]

Admittedly, it is a situation wrapped in paradox – a closer relationship between the power-politics of the UN Security Council and the ICC affects and undermines the quality and legitimacy of justice, while without cooperation between the UN Security Council and the ICC, without pursuing justice through power-politics, some of the worst international crimes would go unpunished. [42]

But, for all the proclamations on dedication and commitment to justice and protection of civilians, for all the expectations of the ICC and the R2P within the sphere of prevention, protection, and justice, situations in Darfur and Libya remain solitary ICC referrals, and Libya one contentious example of R2P in practice.[43]

Both are also representative of the previously mentioned paradox – If it wasn’t for the UN SC invoking the R2P, crimes in Libya would probably reach more staggering numbers. If it wasn’t for the referrals, crimes in Darfur and Libya never would have had a chance at accountability. On the other hand, they fell victims of the unprincipled and inconsistent approach of the UN SC to the matters of prevention, justice, and accountability.

Both referrals created a perception of selectivity and double standards in the UN Security Council’s dealings and after being initiated for whichever interests were prevalent at the time both were effectively sidestepped and deemed irrelevant absent continued active support from the referral body.

And while the UN Security Council did not completely shy away from referring in some form or the other to the R2P before and after,[44] no significant action was invoked to prevent or halt crimes that continue to be committed elsewhere; Council’s disregard for its responsibilities, while inconsistently utilizing a referral tool in a number of other qualifying situations, like Syria, Sri Lanka or Gaza, has left countless victims of unimaginable atrocities without protection and justice. [45]

Despite both actual and procedural preconditions, on the scale of those that existed in Darfur and Libya, if not larger, for the 8th year now carnage in Syria remains substantively unaddressed from either the protection or accountability perspective.[46] In stark contrast to Council’s engagement in Libya, including consensual referral to the ICC and action under R2P, the UN Security Council remains deadlocked in the case of Syria: despite numerous call for the referral of the situation in Syria to the ICC, in April 2017 the Russian Federation have blocked for the eight time a resolution in the UN Security Council aimed at addressing appalling atrocities in Syria.[47] All in all, the Russian Federation used its veto 12 times in reference to the Syrian conflict.

In contrast to its decision to refer the case of Darfur or Libya to the ICC,[48] the atrocious crimes committed in Syria apparently do not warrant an equal, if not more forceful response. The situation in Syria now, as the representative of the Netherlands noted during the debate in the UN Security Council in 2018, is a “stark reminder of a deep crisis, a protection crisis and a crisis of respect for the hard-won gains in international law that we have fought for since the end of the First World War. The Geneva Conventions, the Charter, and the Chemical Weapons Convention — in Syria, all of those norms were trampled.”[49]

And despite a historic step UN General Assembly have taken in December 2016, by establishing a new accountability mechanism aimed at supporting the collection, preservation, and analysis of the evidence of crimes committed by all parties to the Syria conflict to be used potentially in future criminal proceedings,[50] without decisive action by the UN Security Council the ICC may never have an opportunity to bring to accountability those most responsible for close to a half a million people who have died, or those who are suffering through unimaginable crimes being committed in Syria since 2011, but in other places as well.

3.3.  Universal jurisdiction

As an alternative, when the ICC cannot apply its jurisdiction, national courts have the option in applying universal jurisdiction.

It is interesting to note that the International Law Commission’s Draft Statute for an International Criminal Court proposed that the court would have universal jurisdiction in certain conditions with regard to a range of ‘treaty crimes’, but this suggestion was not found acceptable in later discussions and does not appear in the 1998 Rome Statute.[51]  No one at the Rome Diplomatic Conference disputed that the core crimes within the ICC’s jurisdiction—genocide, crimes against humanity, and war crimes—were crimes of universal jurisdiction under customary international law. Consequently, the drafters did not view the consent of the state of territoriality or nationality as necessary as a matter of international law to confer jurisdiction on the court. However, during the dramatic endgame of the negotiations at Rome, universal jurisdiction was – not least due to quite considerable pressure from the permanent members of the UN Security Council – considered too great a power to entrust to the Court. The consent regime, adopted to limit the exercise of the court’s inherent jurisdiction, was in fact a politically expedient concession to the sovereignty of states in order to garner broad support for the statute.[52] ‘Referrals’ by the Security Council for the crimes within the jurisdiction of the Court constitute universal jurisdiction because they can transcend the territoriality of a state party.[53]  So, absent a UN Security Council referral, many of the most egregious cases might not be prosecuted by anyone.[54]

A slowly emerging system of international justice has begun to break the pattern of impunity in national courts, with the domestic application of the principle of universal jurisdiction.[55] The issue of universal jurisdiction is relevant because it is another avenue for pursuing international justice and ensuring accountability, beyond the ICC, with the added fact that whereas the ICC is limited in jurisdiction unless the Security Council expands that jurisdiction, universal jurisdiction could potentially be applicable to crimes committed anywhere, and tried anywhere. Seeing it like that, it could be argued that the role for universal jurisdiction may well be to ensure, alongside the ICC, that the most interested States prosecute international crimes fairly while leaving a back-up role for others if those States do not prosecute.[56]

Under existing international treaty[57] and customary law,[58] states have for some time had universal jurisdiction over a number of crimes, including piracy, crimes against humanity, genocide, torture, and serious war crimes (under conventional and customary regulation of armed conflict).[59] Historically, universal jurisdiction is a tool of last resort in the wake of large scale atrocities.

Several international conventions clearly provide for a duty to prosecute the humanitarian or human rights crimes defined therein. Of particular note are the Geneva Conventions of 1949, the Genocide Convention, and the Torture Convention. Overall, war crimes, genocide, and crimes against humanity are the three kinds of crimes which are among the few areas of international law where there is general acceptance that States can, in principle, exercise jurisdiction over offences committed by any person anywhere in the world (‘universal jurisdiction’).

The underlying idea behind universal jurisdiction is that these crimes are so heinous that they offend the interest of humanity as a whole, imperil civilization itself, and amount to an attack on the international legal order itself, not least because abusive regimes or genocidal events rarely only affect people within the confines of a single territory. Besides, these crimes are often committed by states or those in control of a state and are therefore likely to go unpunished by the territorial state. Consequently, it becomes the common responsibility of the global community to prevent those crimes from occurring. By it states are entitled, some argue even obliged, to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or the victim.[60] A domestic prosecution, even by a state with limited contacts with the crime was better than letting the defendant go unprosecuted. Impunity itself is the enemy.[61]

Universal jurisdiction is the result of many years of legal evolution, a result of a history of countless atrocities and crimes against humanity. A state exercising universal jurisdiction, with the purpose of contributing to the international legal order instead of shielding national interests, is not exercising its superiority but in fact is demonstrating its compliance and respect for international rule of law, placing the national legal order at the service of the international community.[62]

Despite being well established in the theory of international law and the legislation and judicial practice of states, and certainly not a novelty concept under international law, universal jurisdiction remains a widely debated doctrine,[63] facing formidable obstacles, both practical and political. There is the reluctance of some governments to fulfill this duty against those in high places.[64] Prosecutors have only opened investigations or commenced prosecutions in a dozen of these states since the Second World War based on universal jurisdiction over conduct amounting to crimes against humanity, or have arrested persons at the request of states seeking to exercise such jurisdiction. Having a law on the books is often quite different from the political will to apply it in terms of a practical assertion of universal jurisdiction.[65]

Additionally, there is still quite a strong divergence of views relating to several aspects of universal jurisdiction: its purpose, definition, usefulness, and indeed its exercise in practice, further reflected in the inability to agree on written standards for its application or possible general treaty on the doctrine of universal jurisdiction, which makes the exercise that much difficult.

Arguments against the exercise of universal jurisdiction include the fear that prosecutions based on universal jurisdiction would be politically motivated or infringe on State sovereignty, that the principle of double jeopardy may be jeopardized (and that “[u]niversal jurisdiction favors the rights of the victim over the rights of the accused”), and that the place of local concern should have primacy.[66] Another major difficulty arises from political, economic, and diplomatic links binding states, which are difficult to set aside for the exercise of universal jurisdiction.[67]

Arguments in favor note that often the crimes in question are committed in places “where they cannot be prevented or punished easily”, or are “committed within the territory of a particular state caught up in internal conflict.” States, where crimes are committed, may also lack the resources to investigate and prosecute the crimes or be unwilling or unable to do so. The exercise of universal jurisdiction may also act as a catalyst for investigations or prosecutions internationally or nationally, it can “help to fill a small part of the global impunity gap”, and it can create a change in how these crimes are seen both by the public and governments.[68]

Views also diverge on the mandatory or optional nature of universal jurisdiction. A number of scholars, commentators, and human rights advocates argue that international law “mandates” the exercise of universal jurisdiction and the punishment of perpetrators of international crimes.Beigbeder points out that customary or conventional international law permits, but in some instances also require, states to exercise universal jurisdiction over war crimes, crimes against humanity, genocides, and torture.[69] For Cryer, however, the nature of universal jurisdiction is that States have a right, not a duty, to assert it.[70]

Seen as perhaps the final hope for achieving universal liability, Cassese once described universal jurisdiction as “the only vital alternative to impunity,”[71] while for Bassiouni, universal jurisdiction is the most effective method to deter and prevent these international crimes by increasing the likelihood of prosecution and punishment of its perpetrators.[72]

Some authors, therefore, believe that universal jurisdiction should not be neglected but rather defined and limited in a way that would render it a second-best option. It’s been suggested that the international community should develop, over time, a set of rules to govern the exercise of universal jurisdiction by states, taking into account both substantive norms and procedural regimes of application, sharpen and fine-tune available legal tools if they are to continue to meet our needs.[73]

At this point, it is probably reasonable to now assume that the future of international criminal justice lies with the ICC—and the spread of universal jurisdiction in national courts—rather than with new ad hoc tribunals, but there is still a great deal to be done to make both effectively operational and less objectionable.

4.     Conclusion and recommendations – Harnessing politics for international justice

That the international community has duties, rather than mere interests in the protection of individuals, and addressing international crimes, is supported by a number of legal and political undertakings, but more importantly, it is rooted in human rights and international humanitarian law.[74]With the establishment of a new, permanent, international criminal court, one with the potential for universal reach,  recognition of universal jurisdiction for national courts to pursue accountability for the most serious international crimes,  and outlining responsibility to protect, with strong backing and root in international law, as a standard of behavior, legal principle and a political commitment to implement the already existing law, we have made a decisive step in framing prevention, protection, and accountability as a commitment, obligation, and duty. To that end, the effective prosecution and punishment of war criminals remain essential to the prevention of such crimes, the protection of human rights and fundamental freedoms, and the promotion of international peace and security.[75]

This means unwavering political support to prevention and protection agendas as an obligation and responsibility, a standard in international relations, support to the unconditional pursuit of accountability and exercise of justice as a matter of policy and not a band-aid remedy. The challenge, however, is in transforming the given politics into one such point where states’ political interests will converge with the interests of justice.[76] It is necessary, thus, to be reminded, as Hoffman and Nollkaemper so aptly do, that “stopping atrocity crimes is a moral imperative, not a policy preference.”[77]

Selectivity, double standards, unprincipled approach, plaguing international relations of today, will continue to undermine the potential, strength, and credibility of the international criminal justice framework until we bring the political interests of states in line with effectively and appropriately responding to atrocities and genuinely combating impunity. As Meron notes “The rule of law depends on consistency and equality of enforcement and abhors selectivity. If one situation involving alleged atrocity crimes is treated with all due attention and another is disregarded or left to linger in a decision-making limbo, does that not fundamentally undermine the values at the core of the principle of the rule of law?”[78]

Consequently, it poses the question of how best this unavoidable political factor can be harnessed for the benefit, in support of, and in enabling entire normative and institutional capacity when it comes to addressing and punishing these abominations of human nature. While it has been recognized that certain gaps and weaknesses can be detected in the created framework, it cannot be considered that the existing institutional and normative setting is insufficient to apply to the most serious international crimes. Substantive mechanisms are indeed in place to address these crimes. What is lacking in most instances, and what proved to be vital for the final outcome, is the political will in its consistent utilization and enforcement.[79]

Identifying challenges, shortcomings, and gaps thus open up the space for solutions and recommendations on how to improve, strengthen, and move forward.

In order to be an adequate moral reaction to the worst criminal acts, international criminal justice must be more than just a symbolic proclamation that war crimes, crimes against humanity, and genocide are not acceptable. It must make a credible threat, in such manner contributing substantially to prevention and a long-term deterrence of such acts in the first place. [80] If potential war criminals face a series of successful war crimes tribunals that became so much an expected part of international affairs and see a true international commitment to the prosecution of mass atrocities and the requisite political support to bring this to reality, it would be impossible to claim, with any confidence, that they would avoid punishment. The credibility and the deterrent effect of international criminal institutions would be significantly strengthened. [81] The strength of the international criminal justice system of today should not only be in punishment after the act, but deterrence before the act, and warning for the future.

Genuinely committing to the reversal of the culture of impunity will allow for the international community to finally put some credibility behind the plethora of countless resolutions and solemn declarations. If not backed by political muscle power, intimidation, and force, the power of legal deterrence in preventing atrocities will remain limited in its scope.[82]

Offered recommendations for possible courses of action, avenues for improving and strengthening the existing framework, based on present analysis, could help in bridging the gap between self-centered and competing political interests and humanitarian, human rights, and accountability concerns of international society by creating certain rules of engagement that just might reconcile the two to the point of a functioning relationship for the greater good. They outline the need for a uniformed approach and implementation, defined rules of engagement for all involved stakeholders, widely accepted, and clearly defined principles, standards, and procedures, guidelines that would be followed consistently, that would create one efficient system to first focus on prevention, but in extreme circumstances ensure that still there is redress for regress. Defined rights, as well as obligations, are further needed for the framework to be more effective, resilient, and consistent.

General recommendation:

Universal acceptance, full respect, and effective implementation of international human rights, humanitarian, and criminal law. – The overall challenge for states is to adopt norms that denounce violations of international humanitarian law and for their prosecution. That is the best solution, one that makes international standards applicable across the board within sovereign states based on agreements reached in the context of an international society in which members recognize common values even as they pursue their legitimate self-interest in other matters.[83] As naïve as it sounds if this were the case, none of the following suggestions and recommendations would be needed. States would act responsibly in fulfilling their obligations within and outside their respective borders, instances of violations would be promptly punished, and we would be living in a utopian society of equals. As this most certainly is not the case following recommendations are a more viable option.

Recommendations relating to the R2P:

Unanimous acceptance of the R2P, by both States nationally, and the UN Security Council institutionally, with clear normative and operational elements that would guide its conduct in cases of mass atrocities. Advancing greater acceptance of the R2P, through clearly established benchmarks of what constitutes an R2P case, what requirements should be met for Council’s action, and what that action should entail would greatly raise the credibility of the Council and its actions. –There is general agreement that R2P exists. That holds true for States, international organizations, particularly the UN, NGO’s, and the general public. There is an undeniable norm-creating effect of R2P, and it is evolving towards a moral obligation for international actors if it hasn’t already done so.[84] But it still lacks clarity in definition, scope, and parameter of action, to name a few. This confirms the need to elucidate further and elaborate the scope and content of R2P and determine the policies and procedures that serve the underlying purpose of R2P, namely the protection of civilians from egregious violations of their fundamental rights.[85] With agreed and adopted elements that constitute R2P situations, creating benchmarks, as well as parameters for action, that would correspond to a set of specific responses, States, but primarily the UN Security Council, could be in a position to consider available options to address the situation at hand in a much more consistent and efficient manner.

However, one cannot substantively engage in the discussion over R2P with states with opposing views when even states supporting it, or being members of the Group of Friends of R2P cannot agree on it being a concept, a principle, doctrine or a norm. To state the case for R2P much more convincingly and strongly, a lot more should be done on the part of the like-minded states, in aligning their perceptions, strategies, policies, and initiatives. Cohesive and clearly outlined position on R2P could be then used for a more proactive and assertive manner towards its advancement. Options for an intergovernmental conference, or similar forum, on defining practical and applicable standards of engagement could also be considered. Engaging prominent scholars could bring further benefits in terms of bringing together points of divergence and defining overall conceptual, strategic, and practical steps for application.

Given the high threshold for mass atrocity crimes, situations like this most certainly always meet the requirements for the action of the UN Security Council under Chapter VII as threats to international peace and security, and Council should, therefore, be prepared to act for the international community[86] in accordance with the provisions of the 2005 Outcome Document. – What is R2P if not renamed and streamlined, yet already existing, the obligation of the UN Security Council to maintain international peace and security through a variety of means and tools at disposal, now put under the R2P response spectrum. The R2P is grounded in existing international law. It stresses that sovereignty is not a right but a responsibility to protect one’s civilians. It gives the international community the authority to intervene to stop mass atrocities where the state in question is unable or unwilling to do so.[87] Apart from giving it a name, it gave the UN Security Council a multidimensional, multilayered, conceptualized, and consolidated framework and a response instrument for crisis management, taking unilateral from the equation. Here, the reaction component of the responsibility to protect norm fits squarely within the range of diplomatic, dissuasive, and coercive measures that the UN Security Council is well-appointed to deploy, assuming that the situation has reached the point of constituting a threat to international peace and security. In all cases the primary emphasis is on the nonmilitary action;[88] however, when everything else fails, coercive military action is reserved only for the most extreme and exceptional cases, and should always remain an option. Additionally, it has been suggested that, even if “responsibility to protect” has not formed into a full hard-law obligation as of yet, the UN Security Council did recognize it in its numerous resolutions. In line with the “responsibility to protect” doctrine, it is safe to say that the UN Security Council may actually have an increasingly accepted obligation to act where there are large-scale instances of genocide, war crimes, and crimes against humanity.[89] In any case, it is easily perceived why some qualify it as the best chance we have[90] when dealing with these particular situations. The focus should only be on how better to use it and implement it, not if. [91]

A permanent international court as the ICJ, being one of the principal organs of the UN and its principal judicial organ, can be instrumental in interpreting and further developing the legal components of R2P expressed in the obligations of States and other relevant actors.[92] – The role of the ICJ should, therefore, be more genuinely considered and explored, and it’s expertize better utilized.

Recommendations relating to accountability and pursuit of justice:

Combined force and certainty of adequate diplomatic responses on one side with credible and consistent criminal prosecutions on the other, with carefully created procedures and steps for such action and reinforcing one another, should become a standard in conflict prevention and resolution.

When taking measures to maintain international peace and security, the Council should draw more frequently on existing judicial institutions of international law. – Accountability must be recognized as an indispensable component of peace and eventual reconciliation.[93]Where local institutions are unwilling or unable to prosecute those responsible for international crimes, the Council should consider appropriate measures to encourage or compel prosecutions, including referral to the ICC as foreseen by the Rome Statute, as well as to ensure cooperation to bring perpetrators to justice.[94] The UN Security Council’s power to refer potential prosecutions to the International Criminal Court in situations outside the Court’s treaty-based territorial and nationality jurisdiction could significantly help deter the perpetration of genocide, war crimes, and crimes against humanity everywhere in the world.[95]

Consider the possibility for the ICC to provide an advisory opinion and guidance to the UN Security Council when determining whether to make a referral. Expert, independent, and impartial pronunciation on whether there have been any violations of the Rome Statute in a given situation could help the UN SC reach more informed decisions and boost its credibility.[96]

An option would also be to authorize a fast deploying expert group for early evaluation of the situation on the ground, and its report submitted to the UN Security Council and the UN Secretary-General, to be examined against the set of early warning signs. – This option should be considered when no peacekeeping troops are yet deployed but the situation is rapidly deteriorating. The authorization of the UN Security Council should be considered to include a member of the investigations division of the ICC in this expert group, for evaluation purposes and necessary expertise, which, if warranted, could at the later stage also help in the preparation of cases before the ICC.

Devise a coherent accountability strategy and policy, develop and apply a set of objective criteria and credible processes in determining when a referral should be made, thus enhancing consistency, and perhaps even predictability, of practice. – More coherent strategy on accountability would not only benefit the ICC but it could also clarify the conditions under which the UN Security Council refers situations to the ICC and, importantly, when it does not do so, why. There has been some discussion on what possible triggers for a referral could be, such as a resolution of the Human Rights Council or advice from the ICC Prosecutor, in addition to an international commission of inquiry report, and possibly a role for OHCHR. A recent UN workshop discussed suggestions that the Council should develop an “indicative checklist” to consider referrals and promote consistency in Council practice. The Council might also consider forming a body of international criminal law experts to advise it on possible referrals.[97]  

The importance of establishing a Working group on International Criminal Justice,[98] or expanding scope of already existing Informal Working Group on International Tribunals,[99] that could work on creating guidelines and streamline the way in which UN Security Council addresses particular situations from a judicial perspective, develop objective criteria and credible processes for considering potential referrals to the ICC.[100] – Since there is an overall need for coherence in the Security Council’s policies on questions of international accountability and the ICC,[101] the relationship between the Council and the International Criminal Court would thus be a primary beneficiary of this kind of approach. It would open space for a constructive line of communication, bring about improved cooperation between the two bodies, and aim at creating clear procedural and operational aspects of their relationship.[102]

Consequently, consider including the possibility of ICC referrals as a part of a package plan for a particular conflict and its resolution. – Referrals alone should not be considered as the only solution for the situation at hand. More importantly, it should not be considered as merely one of the tools at Council’s disposal, like sanctions, as a means to desired diplomatic or political ends. Used in such a way it risks being discarded once these objectives are met and fail to treat justice as a good in itself that once set in motion runs on its own independent track.[103] ICC investigations and prosecutions should be considered within the wider picture and wider solution that Council is applying to a particular situation. In that case, the expectations would be kept at a realistic level, no peace v. justice dilemma would ever be under consideration, and if applied consistently as a non-negotiable part of the package every time the UN Security Council addressed particular situations it contributes to the systematization of accountability policy into the overall response to threats to peace and security, create predictability and can develop serious deterrent effect for any future conflicts.

If the ICC is to be an effective measure of justice for victims of atrocities and to serve as any kind of deterrent for would-be perpetrators, it will require substantial political commitment from the international community, backed by adequate funds and resources.[104] – Deterrence is much less likely when committing Rome Statute crimes does not always lead to being charged by the Court, and when being charged does not lead swiftly to arrest and trial.[105] It is thus extremely important for the UN Security Council to make use of the wide range of already available diplomatic tools, as well as wield its political weight, to ensure respect for justice mechanisms and enforce arrest warrants.[106]

Importance for the UN Security Council to ensure the respect of and necessary cooperation pursuant its referral resolutions.[107] –Both respect of and necessary cooperation pursuant its referral resolutions are of crucial importance for the Council and the ICC: they would enable the ICC to effectively fulfill its mandate, but also strengthen credibility and standing of the Council. It would demonstrate the dedication of the Council to international criminal justice and its respect for the ICC, further setting an example for the Member States to follow. Furthermore, in terms of enforceability of arrest warrants, the Security Council can provide the most robust support for the ICC.[108] While the General Assembly, the Human Rights Council, OHCHR and consortia of concerned states have a significant role to play in fighting impunity, they cannot substitute for the Security Council.[109]

Sustained attention and follow‐through in cases of referrals, a specific mechanism for follow-ups, establishing non-compliance measures, regular professional and technical engagement, elimination of jurisdictional restrictions, and consistent action in response to Court findings of non‐cooperation.[110] – The failure of the Council to take any further measures or pursue in any way the Court’s progress, aside from receiving the periodic reports by the Prosecutor concerning each situation, does not convincingly demonstrate an exemplary commitment to the Court and its pursuit of international accountability.[111]

Adoption of the code of conduct[112] (refrain from the use of veto of P5)[113] in situations with high risk for mass atrocities would help avoid selectivity and double standards that are plaguing the work of the Council for some time. – For the UN Security Council to be able to maintain international peace and security it cannot do so by remaining silent or tolerating commission of mass atrocities, or acting inadequately by way of using a veto to block decisive steps. In such situations, veto power of P5 must be limited.[114] There have been several initiatives to limit the use of the veto in cases of humanitarian crises. The French proposal for a code of conduct previously discussed or the “Responsibility not to veto” project are good examples. Regulating the use of the veto when dealing with international crimes would prevent the Council from limiting the advancement of justice for purely political reasons.[115] Referral guidelines should also be designed considering the P5’s use of the veto. The example of Syria has shown that the veto has been used to safeguard the P5’s political interests. Many scholars, experts, and civil society organizations have argued for the adoption of a code of conduct prohibiting the use of the veto in cases of mass atrocities. Indeed, following Russia and China’s veto of the referral of Syria to the ICC, several NGOs also issued a statement urging the Council to restrain its use.[116]

It is key to understand international criminal justice and R2P not as particular institutional models, but as normative commitments. Without a priori protection, it is hard to see how a posteriori accountability can effectively limit the tragedies witnessed in World War II and thereafter.[117]

Recommendation for the wider UN membership:

In cases of UN Security Council’s paralysis in difficult and most alarming cases like Syria, alternative and a less explored path remain: invoking the “Uniting for Peace” resolution.[118]The General Assembly (GA) could partially take over the role of the SC and follow GA resolution 377 A (v), generally known as “Uniting for Peace.” Adopted in 1950, following a SC stalemate during the Korean war, the resolution resolves that “if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security […], the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including […] the use of armed force when necessary […].”If not in session, the General Assembly may meet using the mechanism of the emergency special session.[119]

Clearly outlined and more effective system for early warning signs detection and analysis, that can be applied to the individual situation and help detect the level of risk for the commission of atrocity crimes. – Prevention is less costly than reaction, on numerous accounts, and should become both a policy and a priority. Mass atrocities do not appear out of thin air never happen in a vacuum. In most cases, there are always clear and telling signs, for years, even decades, and with strong tendencies towards escalation, in both severity and magnitude; if we could only be bothered to detect them. When timely intercepted and appropriately evaluated, can prompt adequate response, within the wide spectrum of available tools. It would cost us less in lives and money if we reacted when first signs are noticed, rather than when the mass graves are being unearthed. And rather than paying for peacekeeping forces, refugee camps, and criminal proceedings after the fact, preemptive and timely action is certainly more cost effective.[120] It is thus important for the United Nations and the Security Council to be appropriately informed and alerted, and in a better position to react in a timely and effective manner. Rwanda and Srebrenica were costly mistakes, with enormous human casualties and suffering, but also with serious damage to UN reputation and credibility. Therefore, the role of Special Advisers on the Prevention of Genocide and on the Responsibility to Protect in early warning should be substantially strengthened. Due respect and consideration should be given to their reports, in particular by the UN Security Council, in preparing a timely and adequate response to the given situation. It might also be more helpful to develop a set of indicators for violations and reliable methods to ascertain then, in order to provide specific guidance for humanitarian or human rights action.[121] If, per the recommendation of either office, the UN Security Council does not react and gives due attention to a particular situation with a high risk of looming atrocities, convening a UN General Assembly should remain a viable option.

Recommendations relevant to the Rome Statute:

Until membership of the ICC becomes a sine qua non of respect in international society, it cannot appropriately fight impunity.[122]

Full compliance with the Rome Statute by all its States Parties. – The ICC will only realize its full potential with the concerted assistance of states, intergovernmental organizations, and NGOs. States parties need to strengthen and defend the integrity of the ICC statute, adopt strong legislation implementing the provisions of the Rome Statute into national law. Selectively deciding when to respect it and when not to severely damages the Court and endangers the entire international criminal justice endeavor. With the ultimate goal to have universal acceptance of the Rome Statute, it is counterproductive to have States Parties themselves undermining it.[123] If States Parties to the Rome Statute continue to entertain instead of arrest a man charged with genocide, crimes against humanity, and war crimes, the message sent is that being President makes you untouchable and that undertaking obligations as a state party do not necessarily mean their fulfillment.[124] The most important function of the Court, however, is not to punish but to prevent atrocity crimes. And it is only by knowing with some certainty that the commission of the statutory crimes will result in punishment that the crimes will be prevented. So as long as the jurisdiction of the Court is not universal or universally implemented, where States can opt-out of the war crimes and aggression provisions, there will still be a broad shield of immunity for international criminals to hide behind.[125]

In ICC’s second decade ICC nations need to up their game on the Court’s behalf. Political will is essential.[126]

Recommendation for the exercise of universal jurisdiction:

Use of aut dedere aut judicare principle and exercise of universal jurisdiction in a more credible and meaningful way. Universal jurisdiction may be essential in filling justice gaps where the ICC and national courts are unable to address serious crimes. – A strong opinio juris, the adoption by states of the Nuremberg principles, and the increasing need to exercise jurisdiction to combat egregious offences that states have universally condemned, as well as doctrine and case law, support today an extension of the principle of universal jurisdiction to the crime of genocide as well as to crimes against humanity.[127] Perhaps the final hope for achieving universal liability is universal jurisdiction. Cassese once described it as “the only vital alternative to impunity.”[128] Greater use of these tools could significantly reduce the impunity gap for the most serious international crimes, and shrink the opportunity for perpetrators to evade justice.[129] With checks and balances put in place, and with the involvement of the ICC, it could help limit any accusations of bias or politically motivated prosecutions in the exercise of universal jurisdiction.[130]

Aim at the uniformed approach when it comes to these particular crimes, on a national and international level, meaning uniformization of normative and procedural regimes which can also help in the less controversial application of universal jurisdiction. Consider possibilities of periodical reviews of international law to accommodate progress and contemporary advancements and developments, which would also bring consistency and lessen differences in interpretations of international law.  

Conflict of Interest

The author declares no conflict of interest.

 

 

 

 

 

 

 

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[1] Marieluise Beck in Džajić, Azra and Ćurak, Nerzuk, edts., “Srebrenica: Remembrance for the Future,” Heinrich Böll Foundation, May 2005, page 53

[2] Konstanty Gebert in Džajić, Azra and Ćurak, Nerzuk, edts., “Srebrenica: Remembrance for the Future,” Heinrich Böll Foundation, May 2005, page 70

[3] Marieluise Beck in Džajić, Azra and Ćurak, Nerzuk, edts., “Srebrenica: Remembrance for the Future,” Heinrich Böll Foundation, May 2005, page 53

[4] Numerous historic accounts of mass atrocities in the 20th century were at some point qualified as genocide: attempted destruction of the native Herero in 1904 in South-West Africa, where 70,000 of 80,000 members of the Bantu tribe were killed by Germans; killing of an estimated 1 million Turkish Armenians by Turkish forces in 1915 often referred to as the ‘forgotten genocide;’ Stalin’s Forced Famine in Ukraine resulted in estimated 7 million deaths from 1932 to 1933; the Rape of Nanking, where 300,000 out of 600,000 Chinese were killed and some 20,000 women were gang-raped by Japanese soldiers in 1937; the Nazi slaughter of over 6 million European Jews in the World War II, the Cambodian ‘killing fields’ when almost 2 million Cambodians were killed by Khmer Rouge from 1975-1979; genocide of the Tutsi in Rwanda in 1994 with 800,000 people slaughtered in 3 months, Srebrenica genocide in Bosnia and Herzegovina in 1995, where 8,000 people were systematically executed in only few days. As Judge Kirk McDonald notes, “The twentieth century is best described as one of split personality: aspiration and actuality. The reality is that this century has been the bloodiest period in history. As improvements in communications and weapons technology have increased, the frequency and barbarity of systematic abuses of fundamental rights have likewise escalated, yet little has been done to address such abuses.” She continues noting that except for few, however notable, exceptions, “there has been no reckoning for the great majority of mass violations of human rights throughout this century; perpetrators have either not been identified, or have not been required to account for their crimes.” See Ball, Howard, “Prosecuting war crimes and genocide: the 20th century experience,” University Press of Kansas, 1999, page 17 and Roach, Steven C., “Politicizing the ICC: The convergence of politics, ethics and law,” Rowman & Littlefield Publishers, Inc., 2006, page 25-26. Also, Kirk McDonald, Gabrielle, “The Changing Nature of the Laws of War,” Military Law Review, Volume 156, June 1998, available at https://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/277C79~1.pdf (accessed June 2013), page 32-33

[5] These conventions included protection of refugees (1951), the protection of political rights of women (1952), the protection of stateless persons (1954), abolition of slavery (1956), abolition of forced labor (1957), the suppression of apartheid (1973), prevention of torture and other cruel, inhuman or degrading treatment or punishment (1987), the protection of the rights of children (1989). See Ball, Howard, “Prosecuting war crimes and genocide: the 20th century experience,” University Press of Kansas, 1999, page 90-91. Also, IRIN humanitarian news and analysis, “Justice Unfettered? Internationalizing Justice in the human rights era,” June 2006, available at www.irinnews.org/in-depth/59464/7/justice-for-a-lawless-world-rights-and-reconciliation-in-a-new-era-of-international-law (accessed April 20, 2013), Beigbeder, Yves, “International justice against impunity: Progress and new challenges,” Martinus Nijhof Publishers, 2005, page 5

[6] Of particular note are the 1949 Geneva Conventions, the Genocide convention and the Torture Convention. Scharf, Michael in Bassiouni, Cherif M. and Morris, Madeline H., edt., “Accountability for international crimes and serious violations of fundamental human rights,” Law and Contemporary Problems, Volume 59, No.4, 1996, page 43, Scharf, Michael P. in Hughes, Edel; Schabas, William A. and Thakur, Ramesh, edt., “Atrocities and international accountability: Beyond transitional justice,” United Nations University Press, 2007, page 253-257

[7] As commonly known, and as Cassese notes, the jurisdiction provided by the 1949 Geneva Conventions is universal in that those suspected of being responsible for grave breaches come under the criminal jurisdiction of all states parties, regardless of their nationality or the locus commissi delicti. It is also required by the provision of Article 88 of the Protocol I that states parties provide mutual assistance in such criminal proceedings, including cooperation in the matter of extradition. See Cassese, Antonio, “On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law,” European Journal of International Law, Volume 9, No. 1, 1998, available at http://www.ejil.org/pdfs/9/1/1477.pdf (accessed February 23, 2016), page 5-6

[8] The Convention, created in response to the atrocities committed by the Nazis during World War II, has been breached far more than observed, and failed to prevent genocidal practices or provide the means of punishment for such actions. The United Nations, especially the Security Council, is extremely reluctant to use the word genocideduring a conflict because of the obligation to try and stop it. Neither Bosnia nor Rwanda nor Darfur has been officially declared the site of a genocide by the United Nations during the killing. Cassese, Antonio, “Reflections on International Criminal Justice,” The Modern Law Review, Volume 61, No.1, January 1998, available at http://fsi.stanford.edu/sites/default/files/Cassese-Reflections.pdf (accessed January 5, 2016), page 6. Also, LeBor, Adam, “Complicity with Evil: The United Nations in the Age of Modern Genocide,” Yale University Press, 2006, page 13, Bruun, Lori Lyman, “Beyond the 1948 Convention – Emerging Principles of Genocide in Customary International Law,” Maryland Journal of International Law, Vol.17, Issue 2, Article 4, 1993, available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1428&context=mjil (accessed May 5, 2014), page 194

[9] Groome, Dermot, “Adjudicating Genocide: Is the International Court of Justice capable of judging state criminal responsibility?” Fordham International Law Journal, Volume 31, Issue 4, Article 7, 2007, available at http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2106&context=ilj (accessed November 14th, 2012), page 914

[10] See Cassese, Antonio, “A judicial massacre,” The Guardian, February 27, 2007, available at www.guardian.co.uk/commentisfree/2007/feb/27/thejudicialmassacreofsrebr/print (accessed November 15, 2012), Abbas, Ademola, “Proving State Responsibility for Genocide: The ICJ in Bosnia v. Serbia and the International Commission for Inquiry for Darfur,” Fordham International Law Journal, Volume 31, Issue 4, Article 6, 2007, available at http://ir.lawnet.fordham.edu/ilj/vol31/iss4/6/ (accessed November 14th, 2012), page 910

[11] Although violations of international humanitarian law are punishable under international law and in some cases in domestic courts under national laws, there have been very few instances of enforcement of these prohibitions despite the historically loud abhorrence of such crimes by political and military leaders. Judge Kirk McDonald also noted: “A cursory study of any history book reveals that impunity is not a new phenomenon. However, the crystallization of the cycle of impunity is very much a twentieth century concept: perpetrators of massive human rights violations have often been supported, rather than held accountable, by the international community. The result has been to encourage repetition by the perpetrators and by those who are inspired by their impunity. Perhaps the most infamous example is Hitler’s observation to his senior officers in 1939: “Who after all speaks today of the annihilation of the Armenians?” Moghalu, Kingsley Chiedu, “Global justice: The politics of war crimes trials,” Praeger Security International, 2006, page 4, Kirk McDonald, Gabrielle, “The Changing Nature of the Laws of War,” Military Law Review, Volume 156, June 1998, available at https://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/277C79~1.pdf (accessed June 2013), page 32

[12] Köchler, Hans, “International Justice Emerges From The Shadow Of Realpolitik,” Radio Free Europe, 12 February 2009, available at www.rferl.org/content/International_Justice_Emerges_From_The_Shadow_Of_Realpolitik/1492064.html  (accessed June 25, 2013)

[13] As Bassiouni emphasizes, impunity is the antithesis of accountability; to foster it or condone it is both illegal and immoral. Cherif M. Bassiouni in Bassiouni, Cherif M. and Morris, Madeline H., edt., “Accountability for international crimes and serious violations of fundamental human rights,” Law and Contemporary Problems, Volume 59, No.4, 1996, page 26-27

[14] Köchler, Hans, “International Justice Emerges From The Shadow Of Realpolitik,” Radio Free Europe, 12 February 2009, available at www.rferl.org/content/International_Justice_Emerges_From_The_Shadow_Of_Realpolitik/1492064.html  (accessed June 25, 2013)

[15] Kirk McDonald, Gabrielle, “The Changing Nature of the Laws of War,” Military Law Review, Volume 156, June 1998, available at https://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/277C79~1.pdf (accessed June 2013), page 33

[16] Bassiouni, Cherif M., “The Perennial Conflict Between International Criminal Justice and Realpolitik,” Georgia State University Law Review, Vol. 22, Issue 3, Art. 2, Spring 2006, available at http://digitalarchive.gsu.edu/gsulr/vol22/iss3/2 (accessed June 26, 2013), page 543

[17] Bassiouni, Cherif M., “Searching for Justice in the World of Realpolitik,” Pace International Law Review, Vol. 12, Issue 2, Art. 1, Fall 2000, available at http://digitalcommons.pace.edu/pilr/vol12/iss2/1 (accessed June 26, 2013), page 226 and 227

[18] Cryer, Robert, “Prosecuting international crimes: Selectivity and the international law regime,” Cambridge University Press, 2005, page 39

[19] Cassese, Antonio, “International Law,” 2nd Ed., Oxford University Press, 2005, page 454, Steiner, Henry J. and Alston, Philip, “International Human Rights in Context: Law Politics, Morals,” Second Edition, Oxford University Press, 2000, page 112

[20] The statement of the Nuremberg IMT that individuals have duties beyond domestic law and the fact that crimes against humanity were criminal, according to Article 6(c) the IMT’s Charter ‘whether or not in violation of domestic law of the country where perpetrated’ are entirely unambiguous affirmations of the international responsibility of individuals. See Cryer, Robert, “Prosecuting international crimes: Selectivity and the international law regime,” Cambridge University Press, 2005, page 39. Also OveryRichard, “The Nuremberg trials: international law in the making,” in Sands, Phillipe, edt., “From Nuremberg to the Hague: Future of International Criminal Justice,” Cambridge University Press, 2003, page 2. Also, Bassiouni, Cherif M., “Justice and Peace: Importance of Choosing Accountability Over Realpolitik,” Case Western Reserve Journal of International Law, Volume 35, Issue 2, 2003, available at http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2232&context=jil (accessed April 17, 2016), page 196, Ball, Howard, “Prosecuting war crimes and genocide: the 20th century experience,” University Press of Kansas, 1999, page 52-53, 92, Beigbeder, Yves, “International justice against impunity: Progress and new challenges,” Martinus Nijhof Publishers, 2005, page 4, 228, Kerr, Rachel, “The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics and Diplomacy,” Oxford, 2004, page 24

[21] Krieger, David, “The Nuremberg Promise and the International Criminal Court,” Nuclear Age Peace Foundation, December 1998, available at https://www.wagingpeace.org/the-nuremberg-promise-and-the-international-criminal-court/ (accessed December 21, 2011), Tatum, Dale C., “Genocide at the Dawn of the Twenty-First Century,” Palgrave Macmillan, 2010, page 132

[22] Beigbeder, Yves, “International justice against impunity: Progress and new challenges,” Martinus Nijhof Publishers, 2005, page 228

[23] They were created as substitutes for effective action against the Serbs and the Hutus, where major powers shamefully evaded action to prevent and then to end genocides in Bosnia and Rwanda. For some, they were the right deeds done for the wrong reason. Jones offers his rather cynical observation suggesting that a true goal of international criminal justice may as well be “an absolved conscience achieved through justice in defined parameters, which does not threaten the world’s leading political powers.” Bass, Gary Jonathan, “Staying the Hand of Vengeance: The Politics of War Crimes Tribunals,” Princeton University Press, 2002, page 204, 207. Also, Morris, Madeline H. in Bassiouni, Cherif M. and Morris, Madeline H., edt., “Accountability for international crimes and serious violations of fundamental human rights,” Law and Contemporary Problems, Volume 59, No.4, 1996, page 31, Cassese, Antonio, “International Law,” 2nd Ed., Oxford University Press, 2005, page 455-456, Beigbeder, Yves, “International justice against impunity: Progress and new challenges,” Martinus Nijhof Publishers, 2005, page 228-229, Steiner, Henry J. and Alston, Philip, “International Human Rights in Context: Law Politics, Morals,” Second Edition, Oxford University Press, 2000, page 1155, Power, Samantha, “A problem from hell: America in the Age of Genocide,” Harper Perennial, 2003, page 491, Ball, Howard, “Prosecuting war crimes and genocide: the twentieth-century experience,” University Press of Kansas, 1999, page 223, Antonio Cassese in Cassese, Antonio, edt.-in-chief, “The Oxford companion to international criminal justice,” Oxford University Press, 2009, page 128. Jones, Tom, “The goals of International Criminal Justice are both unachievable and potentially harmful.” Academia.edu, 27 August 2014,  available at https://www.academia.edu/7775779/_The_goals_of_International_Criminal_Justice_are_both_unachievable_and_potentially_harmful._Discuss_with_reference_to_the_practice_of_International_Courts_and_Tribunals_(accessed August 29, 2014)

[24] For US, Yugoslavia has lost its strategic importance after the collapse of the Soviet Union, and was satisfied to leave a Yugoslav problem for Europe to solve. When the fighting began in 1991, Secretary of State James Baker bluntly stated that US had “no dog in that fight.” Bush administration avoided using “genocide” label as to not trigger obligations under the Genocide Convention, and same was continued way into the Clinton administration. For France and Britain, any military action could endanger their troops in UNPROFOR for risk of Serbs taking retaliation against them. Also, they were committed to the success of the Vance-Owen peace plan and negotiations, despite major criticism directed at it. Russia was strongly opposed to any aggressive action against Bosnian Serbs out of longstanding alliance based on religion and history, but also out of fear that such action might create an international precedent later to be used against Moscow for their dealings with their own minorities. With its human rights record under constant attack, China had a similar reason for opposing any action by the Security Council as Russia.  See Scharf, Michael P., “Balkan Justice: the story behind the first international war crimes trial since Nuremberg,” 1997, page 31-33. Also, Bass, Gary Jonathan, “Staying the Hand of Vengeance: The Politics of War Crimes Tribunals,” Princeton University Press, 2002, page 207, Ball, Howard, “Prosecuting war crimes and genocide: the 20th century experience,” University Press of Kansas, 1999, page 141

[25] In many ways, the re-emergence of international justice mechanisms arose from the failure of the international community to take effective military action to stop the atrocities, first in Yugoslavia, then Rwanda. Beigbeder, Yves, “International justice against impunity: Progress and new challenges,” Martinus Nijhof Publishers, 2005, page 69. Triponel, Anna F. and Williams, Paul R., “The Clash of Titans: Justice and Realpolitik in Libya,” American University International Law Review, Vol. 28, Issue 3, 2013, available at http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1761&context=auilr (accessed March 5, 2018), page 784

[26] Some Member States of the Council were challenging the ICTY’s findings throughout the years of its existence, most vocal critic of the work of this institution being the Russian Federation; for the most part not out of concern for the victims. In 2012, representative of the Russian Federation judged the work of the ICTY as being neither fair nor effective. He stated that they “perceive only an excessive self-regard. We were surprised at how blithely, even carelessly, a three-to-two voting result quashed a unanimous trial verdict, justified by many years of investigation, in the case of two Croatian generals who were indicted on charges of crimes against humanity, including war crimes, mass killings and the repression and deportation of the Serbian population. As a result, the question of the identity of the party guilty of hundreds of killings and the exile of a quarter of a million Serbs from their homes remains open.” On another occasion, while discussing the ICTY report in 2013, representative of the Russian Federation noted on the acquittal decision in the Stanišić and Simatović case that they “…see in that decision and overall in the acquittal by appeal in the Perišić case a certain positive trend helping to remedy the anti-Serb leanings of the International Criminal Tribunal for the Former Yugoslavia (ICTY). We believe that a similar potential with regard to such verdicts lies in a number of similar cases on the Tribunal’s docket.” While vetoing the resolution to commemorate 20th anniversary of the genocide in Srebrenica in 2015, the representative of the Russian Federation stated: “Do we need to ask ourselves the question of who suffered the most? If one looks at overall result of a decade of conflict the territory the former Yugoslavia — when hundreds of thousands of Serbs were driven from their traditional places of residence — it is impossible to avoid the conclusion that they suffered as much as others, if not more.” In his observations on the draft resolution proposed he was of the view that “It contains distortions as a result of which the blame for the past is basically placed on one people. The approach whereby one responsible party is singled out for a war crime is not legitimate and could result in even greater division within Bosnian society. From the very beginning, we tried to ensure that the document was balanced.” And balance meaning offering the Council a resolution where, despite all the findings of the ICTY on the events in Srebrenica, the responsibility is to be equally distributed for crimes that are anything but equal in nature. It reflects political bias and preference that the Russian Federation maintained throughout, in blatant disregard for the realities on the ground. See United Nations Security Council, 6977th Meeting, 12 June 2013, S/PV.6977, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.6977 (accessed 2013), page 22. Also, United Nations Security Council, 6880th Meeting, 5 December 2012, S/PV.6880, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.6880 (accessed December 2012), page 16, and United Nations Security Council, 7481st Meeting, 8 July 2015, S/PV.7481, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.7481(accessed July 10, 2015), page 5-6

[27] Orentlicher, Diane F., “That Someone Guilty Be Punished,” Open Society Institute, 2010

[28] They share a common foundation that runs deeper than their existence on a humanitarian or protection continuum. They share similar goals and similar normative structure and can be considered as a part of the set of potential responses the international community can call upon to address mass atrocities. They can be invoked individually or used together, sequenced or implemented simultaneously and can be mutualy supportive. Still, on occasion, they may not be mutually reinforcing and can undermine each other; paired through the focus on atrocity crimes they still require deeper reflection on the merger of these distinct traditions and how best to form and guide that relationship. Ainley, Kirsten, “The Responsibility to Protect and the International Criminal Court: countering the crisis,” International Affairs, Volume 91, No. 1, January 2015, available at https://www.chathamhouse.org/sites/files/chathamhouse/field/field_publication_docs/INTA91_1_03_Ainley.pdf (accessed March 30, 2016), page 37. Also, Mills, Kurt, “R2P and ICC: At odds or in sync?,” Criminal Law Forum, Volume 26, Issue 1, March 2015, available at http://link.springer.com/article/10.1007%2Fs10609-015-9246-3 (accessed March 30, 2016), page 74-75, 77 and Kersten, Mark, “A Fatal Attraction? The UN Security Council and the Relationship between R2P and the International Criminal Court,” Justice in Conflict, 27 February 2013, available at http://www.academia.edu/2017669/A_Fatal_Attraction_The_UN_Security_Council_and_the_Relationship_between_R2P_and_the_International_Criminal_Court (accessed January 2014), page 3, Stahn, Carsten, “Marital stress or grounds for divorce? Re-thinking the relationship between R2P and international criminal justice,” Criminal Law Forum, 2015, available at https://link.springer.com/content/pdf/10.1007/s10609-015-9255-2.pdf (accessed April 30, 2018), page 16, Ralph, Jason, “Symposium: International Criminal Justice and the Responsibility to Protect,” Criminal Law Forum, Volume 26, Issue 1, March 2015, available at http://eprints.whiterose.ac.uk/87284/3/CLF1%20Ralph%20Final%20%281%29.pdf (accessed June 1, 2018), page 2

[29] Ainley, Kirsten, “The Responsibility to Protect and the International Criminal Court: countering the crisis,” International Affairs, Volume 91, No. 1, January 2015, available at https://www.chathamhouse.org/sites/files/chathamhouse/field/field_publication_docs/INTA91_1_03_Ainley.pdf (accessed March 30, 2016), page 37-38

[30] Ferencz, Benjamin B., “A Prosecutor’s Personal Account – Nuremberg to Rome,” April 1999, available at http://www.benferencz.org/tablet/1990-1999.html (accessed February 2, 2012)

[31] Cooper, Belinda, “The ICC: The Politics of Criticism,” World Policy Blog, 4 December 2013, available at http://www.worldpolicy.org/blog/2013/12/04/icc-politics-criticism (accessed December 6, 2013)

[32] Badescu, Cristina Gabriela, “Humanitarian intervention and the Responsibility to Protect: Security and human rights,” Routlege, 2011, page 133

[33] Alex J. Bellamy in Stark, Alex, edt., “The Responsibility to protect: challenges & opportunities in light of the Libyan intervention,” e-International Relations, November 2011, available at http://www.e-ir.info/wp-content/uploads/R2P.pdf (accessed January 2018), page 22

[34] Julia Hoffmann and André Nollkaemper in Hoffman, Julia and Nollkaemper, Andre (edt.), “Responsibility to Protect: From Principle to Practice,” Pallas Publications, 2012, page 14, United Nations General Assembly, Sixtieth session, A/RES/60/1, 2005 World Summit Outcome, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/60/1 (accessed March 2011), Badescu, Cristina Gabriela, “Humanitarian intervention and the Responsibility to Protect: Security and human rights,” Routlege, 2011, page 6-7

[35] The two paragraphs explicitly state that there is not only a state responsibility to protect its population but also a subsidiary responsibility for the international community. Paragraph 138 states that: ‘Each individual State has the responsibility to protect its populations from international crimes’. It also says that ‘the international community should, as appropriate, encourage and help States to exercise this responsibility’. Paragraph 139 then states that: “The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take 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 organisations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”

[36] Bassiouni, Cherif M., “Advancing the Responsibility to Protect Through International Criminal Justice” in Cooper, Richard H. and Kohler Voinov, Juliette (edt.), “Responsibility to Protect: The moral compact for the 21st century,” Palgrave Macmillan, 2009, page 33 and 37

[37] The aspirations for the ICC were high, as witnessed by the very words built into its constituting document – “to put an end to impunity for the perpetrators of [atrocity] crimes and thus to contribute to the prevention of such crimes.” And, similar to the expectations for the ICTR and the ICTY, States Parties, as well as states not party the Rome Statute, have further expressed their conviction that, in exercising its mandate, the ICC will contribute to peace and reconciliation. International Criminal Court, Rome Statute, July 1998, available at https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf (accessed 2010). Also,  Intelmann, Tiina, “From the ICTR to the ICC: Sobering Up on Justice,” 9 April 2014, available at http://www.huffingtonpost.com/tiina-intelmann/from-the-ictr-to-the-icc-_b_5107292.html?view=print&comm_ref=false(accessed April 14, 2014)

[38] It is the first permanent international court that recognizes individual as a subject of international criminal law and, as such, seems philosophically to presuppose the notion of a global community of which all human beings are subjects, if not citizens. It enshrined into international law individual criminal responsibility for atrocity crimes, and created responsibilities for states parties – including to arrest and surrender to the Court those with outstanding arrest warrants. See Abizadeh, Arash, “Introduction to the Rome Statute of the International Criminal Court,” World Order, 2002-03, Vol.34, No.2, https://www.scribd.com/document/158885036/Abizadeh-Introduction-Rome-Statute(accessed 3 March 2012), page 20. Also, Mills, Kurt, “R2P and ICC: At odds or in sync?,” Criminal Law Forum, Volume 26, Issue 1, March 2015, available at http://link.springer.com/article/10.1007%2Fs10609-015-9246-3 (accessed March 30, 2016), page 75

[39] Project on International Courts and Tribunals, “International Criminal Court”, www.pict-pcti.org/courts/ICC.html, (accessed December 5, 2010)

[40] Maintaining separate powers for the judiciary, the legislative and executive branches is fundamental for the rule of law in domestic contexts. However, reconceptualization of the rule of law in the international context is forced by the absence of a true international authority with authority over sovereign States. Köchler, Hans, “Global Justice or Global Revenge? The ICC and the Politicization of International Criminal Justice,” International Progress Organization Online Papers, 7 April 2009, www.i-p-o.org/koechler-ICC-politicization  (accessed 23 October 2010). Also, Couture, Amelie, “The Politics of International Justice: the Security Council’s Impact on the Independence, Effectiveness and Legitimacy of the International Criminal Court,” International Human Rights Internship Working Papers Series, McGill Centre for Human Rights and Legal Pluralism, Volume 3, No. 2, Spring 2015, available at https://www.mcgill.ca/humanrights/files/humanrights/ihri_wps_v3n2-amelia_couture.pdf(accessed July 17, 2016), page 14

[41] The great majority of states favored giving the UN Security Council power to refer situations to the ICC, although a significant minority did warn of the dangers of politicizing the Court and undermining its independence. More controversial was whether the Council would have power to block investigations or prosecutions. The permanent members of the UN Security Council (except the United Kingdom) generally sought a role for the Council in filtering cases that could go to the Court, especially by a bar to ICC action regarding any situation that was on the agenda of the Council unless the Council consented to ICC involvement. It became increasingly clear that if the ICC were to be a viable institution, it could in no way undermine the existing authority of the UN SC. So, that the UNSC should have referral power made sense, but that it should have the veto power requested by some states was completely nonsensical. In the final compromise, the Council was given the power to refer a situation in which one or more crimes under the jurisdiction of the Court are committed “to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations” by the virtue of Article 13 (b), as well as to defer investigations or prosecutions for renewable one-year period under Article 16. Based on both provisions, this basically means “that the Council, the supreme executive organ of the UN, can effectively create jurisdiction where it otherwise would not exist on the basis of the Rome Statute” or “block any prosecution for a renewable period of one year, if it determined that pursuing it would pose a threat to international peace and security.” However, some scholars made interesting point on power of deferral noting that, even as a powerful instrument for the highest political organ of the UN to control the activity of the ICC, Article 16 read in connection with other provisions of the Rome Statute (especially Article 53) allows for the ICC as well to take into account political considerations. As a result, ICC should not be considered as condemned to act as a narrow-minded judicial body. Finally, it is to be noted that both provisions, on referral and deferral, require the Council’s action under Chapter VII of the UN Charter which sets out that body’s coercive powers. See Moss, Lawrence, “The UN Security Council and the International Criminal Court: Towards More Principled Relationship,” Friedrich Ebert Stiftung, March 2012, http://library.fes.de/pdf-files/iez/08948.pdf (accessed 18 April 2012), page 3. Also, Köchler, Hans, “Global Justice or Global Revenge? The ICC and the Politicization of International Criminal Justice,” International Progress Organization Online Papers, 7 April 2009, www.i-p-o.org/koechler-ICC-politicization  (accessed 23 October 2010), Kastner, Phillip, “The ICC – Savior or Spoiler? Potential Impacts of International Criminal Justice on Ending the Darfur Conflict,” McGill University, August 2007, http://digitool.library.mcgill.ca/thesisfile18691.pdf (accessed 25 January 2012) and Dworkin, Anthony. “ICC-Crimes of war”, December 2003, www.crimesofwar.org/icc_magazine/icc-intro.html, (accessed October 16, 2010), Couture, Amelie, “The Politics of International Justice: the Security Council’s Impact on the Independence, Effectiveness and Legitimacy of the International Criminal Court,” International Human Rights Internship Working Papers Series, McGill Centre for Human Rights and Legal Pluralism, Volume 3, No. 2, Spring 2015, available at https://www.mcgill.ca/humanrights/files/humanrights/ihri_wps_v3n2-amelia_couture.pdf (accessed July 17, 2016), page 4, 9, David Wippman in Reus-Smith, Christian (edt.), “The politics of International Law,” Cambridge University Press, 2004, page 166-168, Jan Wouters, Sten Verhoeven, and Bruno Demeyere in Doria, Jose; Gasser, Hans-Peter and Bassiouni, Cherif M., (eds.), “The Legal Regime of the International Criminal Court,” Martinus Nijhoff Publishers, 2009, page 349-350, Gow, Melanie, “The International Criminal Court: Finding Justice for Victims, Ending Impunity for Perpetrators,” World Vision International, 2002, available at www.justice-and-peace.org/PolicyAdvocacy/pahome2.5.nsf/allreports/5CB57476E1D6F9CF88256EFA0082016E/$file/ICC.pdf (accessed May 20, 2013), page 15

[42] Some are seeing the connection with the UN SC either as a possible force behind or a stumbling block in the pursuit of international criminal justice one needs to accept that it is merely a reflection and reality of today’s international order. The opportunity, however, that this present connection between the ICC and the UN SC creates for us to act in united and strong front in wiping impunity straight into dictionary appears to be lost on many, the UN Security Council in particular. It is yet to be realized that the connection created between the two institutions, however undesirable for some, holds great potential for both strengthening the efforts in maintaining peace and security, as well as advancing the interest of justice, primarily having in mind unprotected, civilians and victim of atrocious crimes. Kastner, Phillip, “The ICC – Savior or Spoiler? Potential Impacts of International Criminal Justice on Ending the Darfur Conflict,” McGill University, August 2007, page 89, http://digitool.library.mcgill.ca/thesisfile18691.pdf (accessed 25 January 2012) and Kersten, Mark, “The UN Security Council and the ICC: Between the Rock and the Hard place,” Justice In Conflict, 6 May 2011, http://justiceinconflict.org/2011/05/06/the-un-security-council-and-the-icc-between-a-rock-and-a-hard-place/ (accessed 16 April 2012). Also, Wegner, Patrick, “Law versus Politics in International Criminal Justice,” Justice in Conflict, 28 July 2011, available at https://justiceinconflict.org/2011/07/28/law-versus-politics-in-international-criminal-justice/ (accessed June 25, 2013)

[43] In the absence of any other resolute or meaningful action in the case of Darfur, the ICC was activated as a substitute, appearance of doing something while in fact doing nothing; reference to R2P was introduced well after the fact and did little to prevent and stop the atrocities. The Darfur referral provided a political basis for avoiding military action. It allowed the UN Security Council to make it seem like it was doing something to address the situation, even though that something was not enough to protect civilians. The UN Security Council further has done little to provide support for the ICC in its attempt to bring Bashir and others to justice, prompting some to reverse their support for the referral. On 31 August 2006, the Security Council passed Resolution 1706 calling for the rapid deployment of UN peacekeepers in Sudan. The resolution makes explicit reference to the Responsibility to Protect by reaffirming the provisions of Resolution 1674 on the protection of civilians in armed conflict and the provisions of paragraph 138 and 139 of the 2005 United Nations World Summit outcome document, which affirm that states have the primary Responsibility to Protect their own populations and that the international community has a responsibility to act when these governments fail to protect the most vulnerable from genocide, war crimes, ethnic cleansing, and crimes against humanity. In Libya, action under R2P came uncharacteristically fast, praised and welcomed at first, only to be engulfed in a controversy that continues to this day. By deciding to “protect civilians” in Libya, while not acting in comparable situations elsewhere, the UN Security Council has obviously chosen a policy of double standards that seem to be determined by the strategic and economic interests of the particular countries. Furthermore, and albeit in a different manner from its politicization in the case of Darfur, employment of the ICC was seen as a calculated step on the part of some UN Security Council’s permanent members, tool to justify military action and regime change.

Mills, Kurt, “R2P and ICC: At odds or in sync?,” Criminal Law Forum, Volume 26, Issue 1, March 2015, available at http://link.springer.com/article/10.1007%2Fs10609-015-9246-3 (accessed March 30, 2016), page 80, International Coalition for the Responsibility to Protect, Security Council makes reference to R2P in new resolution on Darfur,” available at http://responsibilitytoprotect.org/index.php?option=com_content&view=article&id=645 (accessed 2010), Köchler, Hans, Memorandum by the President of the International Progress Organization on Security Council Resolution 1973 (2011) and its implementation by a “coalition of the willing” under the leadership of the United States and the North Atlantic Treaty Organization, 26 March 2011, available at http://www.i-p-o.org/IPO-Memorandum-UN-Libya-26Mar11.pdf (accessed 25 June 2013), page 4

 

[44] Although initially reluctant to include it in the UNSC resolutions, where P5 argued that they had only committed to the UNGA and not UNSC deliberating further over R2P, the Global Centre for the Responsibility to Protect noted that the Security Council has referenced R2P in 67 resolutions since 2006. The Human Rights Council has also invoked R2P in 30 resolutions. The responsibility of a state to prevent genocide was also upheld by the International Court of Justice in the Bosnia v. Serbia case. Beside UN SC resolutions 1970 (2011) and 1973 (2011) on Libya, resolution 1296 (2000) is particularly significant. This resolution recognises that the impact of conflicts on civilians could trigger the Council’s responsibilities under the UN Charter. Resolution 1674 (2006) contains the first official reference made by the Security Council to the Responsibility to Protect (RtoP) doctrine by reaffirming “the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” Resolution formalised the R2P doctrine in the context of the Open Debates on PoC. On 31 August 2006, the Security Council passed resolution 1706 that demanded a rapid deployment of UN peacekeepers in Sudan. This resolution made explicit reference to R2P, by reaffirming the provisions on R2P from resolution 1674 and from paragraphs 138 and 139 of the 2005 World Summit Outcome Document. Resolution 1894 (2009) similarly reaffirmed provisions on R2P from these two paragraphs. Two other resolutions with explicit reference to paragraphs 138 and 139 of the outcome document are 2117 (2013) and 2150 (2014). Other resolutions include 1975 (2011) on Côte d’Ivoire; 2014 (2011) on Yemen; 1996 (2011) on South Sudan; PRST of September 22, 2011. What makes these references to R2P so important for the principle’s normative development is the legal force of Security Council resolutions, unlike all previous incarnations of R2P. Still, references were of a rather symbolic nature that made little difference in the field. Evans, Gareth, and Thakur, Ramesh, “Correspondence: Humanitarian Intervention and the Responsibility to Protect,” International Security, Vol. 37, Issue 4, Spring 2013, available at http://responsibilitytoprotect.org/Evans%20Thakur%20Pape.pdf (accessed March 24, 2018), Brockmeier, Sarah, Stuenkel, Oliver and Tourinho, Marcos, “The Impact of the Libya Intervention Debates on Norms of Protection,” Global Society, Vol.30, No.1, 2016, available at https://www.tandfonline.com/doi/pdf/10.1080/13600826.2015.1094029?needAccess=true (accessed March 5, 2018), page 128, 130, Badescu, Cristina Gabriela, “Humanitarian intervention and the Responsibility to Protect: Security and human rights,” Routlege, 2011, page 7, 109, Trahan, Jennifer, “The Relationship Between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices,” Criminal Law Forum, Volume 24, Number 4, December 2013, available at http://www.springer.com/home?SGWID=0-0-1003-0-0&aqId=2556900&download=1&checkval=feafa6b59cb1101680a346056cd7f190 (accessed February 4, 2014), page 9, Global Centre for the Responsibility to Protect, UN Security Council Resolutions and Presidential Statements Referencing R2P, available at http://www.globalr2p.org/resources/335 (accessed May 2018), Webb, Jonathan, “Evolving Norms: How the Libyan & Syrian Conflicts Have Affected the Responsibility to Protect,” e-International Relations, 26 January 2016, available at https://www.e-ir.info/2016/01/26/evolving-norms-how-the-libyan-syrian-conflicts-have-affected-the-r2p/(accessed January 2018), Edward C. Luck in Hoffman, Julia and Nollkaemper, Andre (edt.), “Responsibility to Protect: From Principle to Practice,” Pallas Publications, 2012, page 44, Ludovica Poli in Hoffman, Julia and Nollkaemper, Andre (edt.), “Responsibility to Protect: From Principle to Practice,” Pallas Publications, 2012, page 72, 74, Bellamy, Alex J., “International Responses to Human Protection Crisis: Responsibility to Protect and the Emerging Protection Regime,” RCCS Annual Review, Issue No.7, 2015, available at https://journals.openedition.org/rccsar/609 (accessed December 2018), page 102-103

[45] While the Council’s February 2011 referral of Libya situation to the ICC was prompt and unanimous, once political circumstances changed in Libya, the Security Council no longer actively supported the Court’s investigation and failed to press Libya’s new government to cooperate with the ICC. Similarly, the Security Council has done little to ensure that governments help to enforce Darfur-related ICC arrest warrants. In years since the adoption of resolutions 1593 (2005) and 1970 (2011), the Council has not provided any significant, concrete, political, logistical, or legal support for either set of investigations. Instead, the Council has missed the opportunity to visibly strengthen individual accountability as a guiding principle within its work. Richard Dicker in Human Rights Watch, UN Security Council: Address Inconsistency in ICC Referrals” 16 October 2012, available at https://www.hrw.org/news/2012/10/16/un-security-council-address-inconsistency-icc-referrals (accessed October 19, 2012). Also, Kaye, David, “The Council and the Court: Improving Security Council Support of the International Criminal Court,” University of California, Irvine, School of Law, May 2013, available at http://councilandcourt.org/files/2013/05/The-Council-and-the-Court-FINAL.pdf (accessed May 17, 2013), page 7-8

[46] Unfortunately, all parties to the conflict in Syria have committed indiscriminate attacks, and the lives of countless civilians remain imperiled by the ongoing civil war. Ongoing attacks on medical facilities and civilian infrastructure, as well as the use of illegal weapons, demonstrate a complete disregard for international law and resolutions of the UN Security Council (UNSC). With bitter divisions evident amongst the permanent members, Council is unable to enforce compliance even with its own resolutions. The government of Syria has not only manifestly failed to uphold its Responsibility to Protect, it bears primary responsibility for the ongoing commission of mass atrocity crimes. For over six years the Human Rights Council (HRC)-mandated Commission of Inquiry (CoI) has reported that government forces have committed war crimes and crimes against humanity as a matter of state policy, but numerous armed opposition groups have also committed war crimes, which only confirmes need for Syria to be referred to the ICC. On 14 January 2013, fifty-eight countries urged the Council to refer Syria to the ICC. They followed their call May 19, 2014, issuing a statement and letter, to the United Nations Security Council to adopt a French-proposed resolution to refer the situation in Syria to the International Criminal Court (ICC). The countries also urged other UN members to officially endorse the resolution. A broad majority of the 15 Security Council members at the time have publicly backed a role for the ICC in Syria: France, the United Kingdom, the United States, Luxembourg, Argentina, Australia, South Korea, Chile, Lithuania, and Nigeria. Draft resolution was vetoed by the Russian federation and China. Global Centre for the Responsibility to Protect, Syria, available at http://www.globalr2p.org/regions/syria (accessed April, 2018), Global Centre for the Responsibility to Protect, UN Security Council Resolutions and Presidential Statements Referencing R2P, available at http://www.globalr2p.org/resources/335 (accessed May 2018), Human Rights Watch, Syria: 58 Countries Urge ICC Referral,” 20 May 2014, available at https://www.hrw.org/news/2014/05/20/syria-58-countries-urge-icc-referral (accessed May 21, 2014), Dicker, Richard, “Holding the Security Council to Account on Syria,” The Progressive, 29 January 2013, available at http://progressive.org/holding-security-council-to-account-on-syria (accessed July 1, 2013), Vick, Karl, “Evidence of War Crimes In Syria But No Prospect of Trials,” Time, 21 January 2014, available at http://world.time.com/2014/01/21/evidence-of-war-crimes-in-syria-but-no-prospect-of-trials/(accessed January 22, 2014)

[47] A letter signed by 57 States in favor of a referral sent to the Council, coupled with support of France and the US was not sufficient to counter Russia and China’s opposition.  Between 2011 and 2017, the UN Security Council considered the situation in Syria on many occasions, including a resolution referring the situation in Syria to the ICC (draft resolution S/2014/348, 22 May 2014, sponsored by 65 countries, vetoed by China and the Russian Federation); resolution S/2017/315 from 12 April 2017 was the 8th draft resolution vetoed by the Russian Federation. For that time, according to the Syrian Center for Policy Research, an independent Syrian research organization, and as presented in the Human Rights Watch report on Syria, the death toll from the conflict as of February 2016 was 470,000. Furthermore, some 6.1 million people are internally displaced and 4.8 million are seeking refuge abroad, according to the UN Office for the Coordination of Humanitarian Affairs. By mid-2016, an estimated 1 million people were living in besieged areas and denied life-saving assistance and humanitarian aid. More than 117,000 have been detained or disappeared since 2011, the vast majority by government forces. See United Nations Security Council, Meeting Records, available at https://www.un.org/en/sc/meetings/ (accessed July 4, 2017). Also, Human Rights Watch, “World Report 2017: Events of 2016,” available at https://www.hrw.org/sites/default/files/world_report_download/wr2017-web.pdf (accessed July 8, 2017), page 571, Ochab, Ewelina U., “The Much Needed Code of Conduct at the UN Security Council,” Forbes, 2 July 2017, available at https://www.forbes.com/sites/ewelinaochab/2017/07/02/the-much-needed-code-of-conduct-at-the-un-security-council/#6548e43a6815 (accessed July 2, 2017), Couture, Amelie, “The Politics of International Justice: the Security Council’s Impact on the Independence, Effectiveness and Legitimacy of the International Criminal Court,” International Human Rights Internship Working Papers Series, McGill Centre for Human Rights and Legal Pluralism, Volume 3, No. 2, Spring 2015, available at https://www.mcgill.ca/humanrights/files/humanrights/ihri_wps_v3n2-amelia_couture.pdf (accessed July 17, 2016), page 15-16

[48] Badescu, Cristina Gabriela, “Humanitarian intervention and the Responsibility to Protect: Security and human rights,” Routlege, 2011, page 118,

[49] Block, Stef, Remarks to Security Council open debate: “Upholding International Law Within the Context of the Maintenance of International Peace and Security,” S/PV.8262, 17 May 2018, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.8262 (accessed May 17, 2018), page 15

[50] On 21 December 2016 UN General Assembly adopted resolution A/RES/71/248, “International, Impartial and Independent Mechanism to assist in the Investigation and Prosecution of those Responsible for the Most Serious Crimes under International Law committed in the Syrian Arab Republic since March 2011,” with 105 votes in favor, 15 against and 52 abstentions. See United Nations General Assembly, Resolutions, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/71/248(accessed July 4, 2017)

[51] Shaw, Malcolm N., “International Law,” 6th edition, Cambridge University Press, 2008, page 674-675

[52] Scharf, Michael P., “The International Criminal Court’s Jurisdiction Over Nationals of Non-Party States: A Critique of the US Position,” Law and Contemporary Problems, Vol.64, No.1, Winter 2001, available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1201&context=lcp (accessed May 2013), page 77, Claus Kreß in Cassese, Antonio, edt.-in-chief, “The Oxford companion to international criminal justice,” Oxford University Press, 2009, page 144

[53] Bassiouni, Cherif M., “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice,” Virginia Journal of International Law, Fall 2001, available at www.iranhrdc.org/english/human-rights-documents/legal-articles/3220-m-cherif-bassiouni-universal-jurisdiction-for-international-crimes-historical-perspectives-and-contemporary-practice.html (accessed June 26, 2013), page 12-13, Claus Kreß in Cassese, Antonio, edt.-in-chief, “The Oxford companion to international criminal justice,” Oxford University Press, 2009, page 144

[54] Sadat, Leila Nadya, “Redefining Universal Jurisdiction,” New England Law Review, Volume 35:2, 2001, available at  http://www.nesl.edu/userfiles/file/lawreview/vol35/2/sadat.pdf (accessed June 2, 2014), page 252

[55] While the primary duty to fight impunity rests with the state in which a crime is committed and the state of nationality of the accused, unfortunately, officials in many such countries are unwilling or unable to bring perpetrators to justice. Historically, universal jurisdiction is a tool of last resort in the wake of large scale atrocities. Roth, Kenneth, “The Case for Universal Jurisdiction,” Foreign Affairs, September/October 2001, available at http://m.foreignaffairs.com/articles/57245/kenneth-roth/the-case-for-universal-jurisdiction  (accessed April 18, 2013), Princeton Project on Universal Jurisdiction, Princeton Principles on Universal Jurisdiction, Princeton University, 2001, available at https://lapa.princeton.edu/hosteddocs/unive_jur.pdf (accessed 2005), page 15-16, 28, Hurwitz, Deena R., “Universal Jurisdiction and the Dilemmas of International Criminal Jurisdiction: The Sabra and Shatila Case in Belgium,” University of Virginia School of Law, December 2008, available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1314940 (accessed December 24, 2013), page 273

[56] Cryer, Robert, “Prosecuting international crimes: Selectivity and the international law regime,” Cambridge University Press, 2005, page 96

[57] ‘Universal jurisdiction based on international treaty’ is the criminal jurisdiction that a contracting state of a treaty can exercise over the international crime defined in that treaty, which is committed abroad by a foreigner not against this state or its citizens. Having analyzed 281 conventions of international criminal law up to then, Bassiouni induces 28 international crimes. They are (1) aggression; (2) genocide; (3) crimes against humanity; (4) war crimes; (5) unlawful possession, use or emplacement of weapons; (6) theft of nuclear materials; (7) mercenarism; (8) apartheid; (9) slavery and slave-related practices; (10) torture and other forms of cruel, inhuman or degrading treatment; (11) unlawful human experimentation; (12) piracy; (13) aircraft hijacking and unlawful acts against international air safety; (14) unlawful acts against the safety of maritime navigation and the safety of platforms on the high seas; (15) threat and use of force against internationally protected persons; (16) crimes against United Nations and associated personnel; (17) taking of civilian hostages; (18) unlawful use of the mail; (19) attacks with explosives; (20) financing of terrorism; (21) unlawful traffic of drugs and related drug offenses; (22) organised crime; (23) destruction and/or theft of national treasures; (24) unlawful acts against certain internationally protected elements of the environment; (25) international traffic in obscene materials; (26) falsification and counterfeiting; (27) unlawful interference with submarine cables; and (28) bribery of foreign public officials. Kourula also concludes that there are 28 international crimes, and some of these crimes stipulated in conventions are considered crimes under customary international law, and are an important evidence of the existence of international custom.  Erkki Kourula in Bergsmo, Morten and Yan Ling (edt.), “State Sovereignty and International Criminal Law,” Torkel Opsahl Academic ePublisher, 2012, page 165, 171-172

[58] Based on the two elements of international custom – if the general practice and opinio juris of states and international organisations indicate that an act constitutes an international crime, and there is no such practice or opinio juris to the contrary –it would be identified as a crime under universal jurisdiction based on customary international law. The ‘universal jurisdiction’ defined in the Princeton Principles on Universal Jurisdiction forged by the Princeton Project on Universal jurisdiction is the universal jurisdiction based on customary international law. According to Principle II of the Princeton Principles on Universal Jurisdiction, serious crimes under international law include: (1) piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity; (6) genocide; and (7) torture. The late Judge Cassese of the ICTY argued that ‘international crimes’ are the actions which violate customary international law rules. Those rules are aimed at protecting the interest of the international community as a whole and thus have binding force on all states and individuals. In his opinion, international crimes include piracy, war crimes, crimes against humanity (especially genocide), torture, aggression and crimes of terrorism. Comparing the two, Kourula concludes that piracy, slavery, aggression, war crimes, crimes against humanity, genocide and torture have acquired material and psychological elements as international custom and, undoubtedly, have become crimes in customary international law. For Cryer, there is considerable academic support for universal jurisdiction over the core crimes. State practice is more equivocal, but offers just about sufficient support to ground a right to do so in custom. Erkki Kourula in Bergsmo, Morten and Yan Ling (edt.), “State Sovereignty and International Criminal Law,” Torkel Opsahl Academic ePublisher, 2012, page 159-161, Cryer, Robert, “Prosecuting international crimes: Selectivity and the international law regime,” Cambridge University Press, 2005, page 87

[59] Universal jurisdiction over war crimes appears to date to at least the 14th century. States began to exercise universal jurisdiction over piracy on the high seas as early as the 16th century. In the aftermath of the atrocities of the Second World War, the international community extended universal jurisdiction to war crimes and crimes against humanity. Trials exercising this jurisdiction took place in international tribunals at Nuremberg and Tokyo, as well as domestic courts. Some individuals faced trial in the states in which they had committed their crimes, but others were tried by whatever state in which they were later captured, surrendered, or found—including such far-off countries as Canada and Australia. the Nuremberg Tribunal implicitly recognized in its judgment the existence of universal jurisdiction over crimes against peace, war crimes and crimes against humanity by stating that, in addition to the ground that the parties to the London Agreement of 8 August 1945 could legislate for defeated Germany as occupying powers, in setting up the Tribunal they had ‘done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law’. On December 11, 1946, the United Nations General Assembly unanimously affirmed the “principles of international law recognized by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal,” thereby “codifying the jurisdictional right of all [s]tates to prosecute the offenses addressed by the IMT [Nuremberg Tribunal],” namely war crimes, crimes against humanity, and the crime of aggression. Crimes under international law can be established by custom, by treaty, or both. Crimes subject to universal jurisdiction include piracy, genocide, war crimes, crimes against humanity, torture, and certain acts of terrorism. Genocide, which has been described as “the ultimate crime and the gravest violation of human rights it is possible to commit,” is now universally recognized as a crime under international law over which a state may exercise universal jurisdiction. It is now widely accepted that crimes against humanity are subject to universal jurisdiction. Since Nuremberg, it has been uniformly recognized that war crimes are crimes of universal jurisdiction under customary international law. Gow, Melanie, “The International Criminal Court: Finding Justice for Victims, Ending Impunity for Perpetrators,” World Vision International, 2002, available at www.justice-and-peace.org/PolicyAdvocacy/pahome2.5.nsf/allreports/5CB57476E1D6F9CF88256EFA0082016E/$file/ICC.pdf (accessed May 20, 2013), page 21, Scharf, Michael P., “The International Criminal Court’s Jurisdiction Over Nationals of Non-Party States: A Critique of the US Position,” Law and Contemporary Problems, Vol.64, No.1, Winter 2001, available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1201&context=lcp (accessed May 2013), page 82, 83, 86, 88, 91, Beigbeder, Yves, “International justice against impunity: Progress and new challenges,” Martinus Nijhof Publishers, 2005, page 46, Sadat, Leila Nadya, “Redefining Universal Jurisdiction,” New England Law Review, Volume 35:2, 2001, available at  http://www.nesl.edu/userfiles/file/lawreview/vol35/2/sadat.pdf (accessed June 2, 2014), page 244, Hoover, Dalila V., “Universal Jurisdiction not so Universal: A Time to Delegate to the International Criminal Court,” Cornell Law School Inter-University Graduate Student Conference Papers, Paper 52, 2011, available at https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1081&context=lps_clacp (accessed April 6, 2019), page 23, Christopher C Joyner in Bassiouni, Cherif M. and Morris, Madeline H., edt., “Accountability for international crimes and serious violations of fundamental human rights,” Law and Contemporary Problems, Volume 59, No.4, 1996, page 165-166, Lyal S. Sunga in Doria, Jose; Gasser, Hans-Peter and Bassiouni, Cherif M., (eds.), “The Legal Regime of the International Criminal Court,” Martinus Nijhoff Publishers, 2009, page 1095, Shaw, Malcolm N., “International Law,” 6th edition, Cambridge University Press, 2008, page 668

[60] Universal jurisdiction reflects this cosmopolitan impulse to create a single standard of justice combined with a global ability to try those suspected of violating this standard. With respect to the prohibition of criminal acts, universality means that individuals can be prosecuted for these acts even if they do not violate the domestic law of the state where they took place. An exception to the general principle of territoriality, this aspect of universality is justified by “the assumption that these crimes undermine the international community’s interest in peace and security and by their exceptional gravity, ‘shock’ the conscience of humanity”. As far back as 1946, the French representative to the United Nations Commission on Human Rights spoke for the majority opinion when he said, “the question of human rights was a matter no longer of domestic, but of international concern. The Princeton Principles on Universal Jurisdiction state that the universal jurisdiction is criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction. There are several international conventions that clearly provide for a duty to prosecute the humanitarian or human rights crimes defined therein. Of particular note are the Geneva Conventions of 1949, the Genocide Convention, and the Torture Convention. Overall, war crimes, genocide and crimes against humanity are the three kinds of crimes which are among the few areas of international law where there is general acceptance that States can, in principle, exercise jurisdiction over offences committed by any person anywhere in the world (‘universal jurisdiction’).  Princeton Project on Universal Jurisdiction, Princeton Principles on Universal Jurisdiction, Princeton University, 2001, available at https://lapa.princeton.edu/hosteddocs/unive_jur.pdf (accessed 2005), page 15-16, 28, Barella, Lorenzo, “Justice over impunity: the way towards accountability in Syria,” Harmoon Center for Contemporary Studies, 4 April 2018, available at https://harmoon.org/wp-content/uploads/2018/04/Justice-over-impunity-the-way-towards-accountability-in-Syria.pdf (accessed May 23, 2018), page 13, IRIN humanitarian news and analysis, “Justice Unfettered? Internationalizing Justice in the human rights era,” June 2006, available at www.irinnews.org/in-depth/59464/7/justice-for-a-lawless-world-rights-and-reconciliation-in-a-new-era-of-international-law (accessed April 20, 2013), Cryer, Robert, “Prosecuting international crimes: Selectivity and the international law regime,” Cambridge University Press, 2005, page 84, Scharf, Michael P., “The International Criminal Court’s Jurisdiction Over Nationals of Non-Party States: A Critique of the US Position,” Law and Contemporary Problems, Vol.64, No.1, Winter 2001, available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1201&context=lcp(accessed May 2013), page 76, Bushnell, Dylan, “Re-thinking International Criminal Law: Re-connecting Theory with Practice in the Search for Justice and Peace,” Australian Year Book of International Law, Vol. 28, 2009, available at http://worldlii.org/au/journals/AUYrBkIntLaw/2009/3.pdf (accessed June 25, 2013), page, 82 Sadat, Leila Nadya, “Redefining Universal Jurisdiction,” New England Law Review, Volume 35:2, 2001, available at  http://www.nesl.edu/userfiles/file/lawreview/vol35/2/sadat.pdf(accessed June 2, 2014), page 244, Phillippe, Xavier, “The principles of universal jurisdiction and complementarity: how do the two principles intermesh?” International Review of the Red Cross, Volume 88, Number 862, June 2006, available at https://www.icrc.org/en/download/file/20174/irrc_862_9.pdf (accessed April 6, 2019), page 377, Michael Scharf in Bassiouni, Cherif M. and Morris, Madeline H., edt., “Accountability for international crimes and serious violations of fundamental human rights,” Law and Contemporary Problems, Volume 59, No.4, 1996, page 43, 69, McGoldrick, Dominick; Rowe, Peter and Donnelly, Eric (edt.), “The Permanent International Criminal Court: Legal and Policy Issues,” Hart Publishing, 2004, page 11-12, William W. Burke-White and Scott Kaplan in Stahn, Carsten and Sluiter, Göran, (eds.) “The Emerging Practice of the International Criminal Court,” Martinus Nijhoff Publishers, 2009, page 94, Astrid Reisinger Coracini in Stahn, Carsten and Sluiter, Göran, (eds.) “The Emerging Practice of the International Criminal Court,” Martinus Nijhoff Publishers, 2009, page 729, Amy E. Eckert in Roach, Steven C., (edt.), “Governance, order and the ICC: Between Realpolitik and a Cosmopolitan Court,” 2009, page 217, Bruun, Lori Lyman, “Beyond the 1948 Convention – Emerging Principles of Genocide in Customary International Law,” Maryland Journal of International Law, Vol.17, Issue 2, Article 4, 1993, available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1428&context=mjil (accessed May 5, 2014), page 214

[61] Jens David Ohlin in Stahn, Carsten and Sluiter, Göran, (eds.) “The Emerging Practice of the International Criminal Court,” Martinus Nijhoff Publishers, 2009, page 203, Moodrick-Even Khen, Hilly, “Revisiting Universal Jurisdiction: The Application of the Complementary Principle by National Courts and Implications for Ex-Post Justice in the Syrian Civil War,” Emory International Law Review, Vol.30, 2015, available at http://law.emory.edu/eilr/_documents/volumes/30/2/articles/khen.pdf (accessed April 11, 2019), page 275

[62] Michael Verhaeghe in Kaleck, Wolfgang, Ratner, Michael, Singelnstein, Tobias, and Weiss, Peter, edt. “International Prosecution of Human Rights Crimes,” Springer Berlin Heidelberg, 2007, page 146

[63] In October 2009, the sixty-fourth session of the U.N. General Assembly Sixth Committee started its first debate on the principle of universal jurisdiction through a proposal raised by the representative of Rwanda on behalf of the African Group. Due to the diversity of opinion no consensus could be reached. This reflects the fact that nations have different views on the legal position and application of universal jurisdiction. ZHOU Lulu in Bergsmo, Morten and Yan, Ling (edt.), “State Sovereignty and International Criminal Law,” Torkel Opsahl Academic ePublisher, 2012, page 37

[64] The obligation of states to prosecute and punish persons accused of serious violations of international humanitarian law through their respective national jurisdictions arises out of their treaty obligations, most notably those under the 1949 Geneva Conventions. As is commonly known, the jurisdiction provided by the 1949 Geneva Conventions is universal in that those suspected of being responsible for grave breaches come under the criminal jurisdiction of all states parties, regardless of their nationality or the locus commissi delicti. We see here the logical consequence of the moral idea that the international community as a whole cannot tolerate particularly heinous crimes going unpunished. On the other hand, the Conventions require only that the States “take necessary measures for the suppression of all acts contrary to the provisions” not included in the list of grave breaches. Furthermore, the principle of universal jurisdiction requires the States party to the Geneva Conventions to do one of the following: either extradite (subject to the granting of judicial guarantees) anyone who has committed a grave breach to a State requesting extradition and having a more direct interest in his prosecution, or prosecute that person themselves (principle aut dedere aut judicare). The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires States Parties to exercise universal jurisdiction over persons in their territory who are suspected of committing torture or to extradite them to a state able and willing to do so: aut dedere, aut judicare. Goldstone, Richard J., “The Future of International Criminal Justice,” Maine Law Review, Vol.57, No.2. Art.10, June 2005, available at https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1359&context=mlr (accessed December 4, 2010), page 558, Roth, Kenneth, “The Case for Universal Jurisdiction,” Foreign Affairs, September/October 2001, available at http://m.foreignaffairs.com/articles/57245/kenneth-roth/the-case-for-universal-jurisdiction  (accessed April 18, 2013), Beigbeder, Yves, “International justice against impunity: Progress and new challenges,” Martinus Nijhof Publishers, 2005, page 52 Also,  Cassese, Antonio, “On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law,” European Journal of International Law, Volume 9, No. 1, 1998, available at http://www.ejil.org/pdfs/9/1/1477.pdf (accessed February 23, 2016), page 5, Phillippe, Xavier, “The principles of universal jurisdiction and complementarity: how do the two principles intermesh?” International Review of the Red Cross, Volume 88, Number 862, June 2006, available at https://www.icrc.org/en/download/file/20174/irrc_862_9.pdf (accessed April 6, 2019), page 378, Hoover, Dalila V., “Universal Jurisdiction not so Universal: A Time to Delegate to the International Criminal Court,” Cornell Law School Inter-University Graduate Student Conference Papers, Paper 52, 2011, available at https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1081&context=lps_clacp (accessed April 6, 2019), page 8, Michael Scharf in Bassiouni, Cherif M. and Morris, Madeline H., edt., “Accountability for international crimes and serious violations of fundamental human rights,” Law and Contemporary Problems, Volume 59, No.4, 1996, page 43-44, 46, Lyal S. Sunga in Doria, Jose; Gasser, Hans-Peter and Bassiouni, Cherif M., (eds.), “The Legal Regime of the International Criminal Court,” Martinus Nijhoff Publishers, 2009, page 1095, Moghalu, Kingsley Chiedu, “Global justice: The politics of war crimes trials,” Praeger Security International, 2006, page 82, Erkki Kourula in Bergsmo, Morten and Yan Ling (edt.), “State Sovereignty and International Criminal Law,” Torkel Opsahl Academic ePublisher, 2012, page 130, Sands, Phillipe, edt., “From Nuremberg to the Hague: Future of International Criminal Justice,” Cambridge University Press, 2003, page 88, Shaw, Malcolm N., “International Law,” 6th edition, Cambridge University Press, 2008, page 669, José E. Alvarez in Cassese, Antonio, edt.-in-chief, “The Oxford companion to international criminal justice,” Oxford University Press, 2009, page 27, Yvez Sandoz in Doria, Jose; Gasser, Hans-Peter and Bassiouni, Cherif M., (eds.),“The Legal Regime of the International Criminal Court,” Martinus Nijhoff Publishers, 2009, page 1053-1054

[65] Moghalu, Kingsley Chiedu, “Global justice: The politics of war crimes trials,” Praeger Security International, 2006, page 82

[66] Fletcher observed that “The very idea that a totally disconnected country would bring the case is an offence to the jurisdictions that have the primary responsibility to resolve the conflicts inherent in the trial.” Erkki Kourula in Bergsmo, Morten and Yan Ling (edt.), “State Sovereignty and International Criminal Law,” Torkel Opsahl Academic ePublisher, 2012, page133

[67] Lack of national legislation to implement international instruments, the rejection of extradition through the assertion of the principle of territoriality of justice, the domination exercised by government authorities over justice in many countries. Beigbeder, Yves, “International justice against impunity: Progress and new challenges,” Martinus Nijhof Publishers, 2005, page 62-63

[68] Erkki Kourula in Bergsmo, Morten and Yan Ling (edt.), “State Sovereignty and International Criminal Law,” Torkel Opsahl Academic ePublisher, 2012, page 132-133

[69] Beigbeder, Yves, “International justice against impunity: Progress and new challenges,” Martinus Nijhof Publishers, 2005, page 48

[70] Cryer, Robert, “Prosecuting international crimes: Selectivity and the international law regime,” Cambridge University Press, 2005, page 89, 109-110

[71] Jones, Tom, “The goals of International Criminal Justice are both unachievable and potentially harmful.” Academia.edu, 27 August 2014,  available at https://www.academia.edu/7775779/_The_goals_of_International_Criminal_Justice_are_both_unachievable_and_potentially_harmful._Discuss_with_reference_to_the_practice_of_International_Courts_and_Tribunals_(accessed August 29, 2014)

[72] That argument simply put, according to Bassiouni, is that in the era of globalization, international compensation is necessary to combat crime, whether international crimes or domestic crime, and the only way by which this is achievable is through the obligation to prosecute or extradite and where appropriate to punish persons accused, charged or convicted of a criminal offense, whether it be international or domestic. To implement such a policy requires the closing of certain jurisdictional gaps consistent with the preservation of the international legal order and respect for and observance of international human rights law. The closing of such gaps is through universal jurisdiction. Bassiouni is of the view that the best and most effective deterrent against international and transnational criminality is not in any one approach alone, but the combined force of all available resources working in unison and complementarity. The ICC may be considered “an international jurisdictional safety net designed to pick up where national jurisdictions are unwilling or unable to exercise jurisdiction,” but, as he further observes, having some 190 domestic criminal justice systems, working in complementarity with the international criminal justice institution such as ICC, and all pursuing the same type of violators, respecting and applying same legal norms, with effective cooperation could prove far more effective than any international criminal court alone. Not to mention the deterrent effect of one such threat for any potential perpetrators. Bassiouni, Cherif M., “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice,” Virginia Journal of International Law, Fall 2001, available at www.iranhrdc.org/english/human-rights-documents/legal-articles/3220-m-cherif-bassiouni-universal-jurisdiction-for-international-crimes-historical-perspectives-and-contemporary-practice.html (accessed June 26, 2013), page 32-34

[73] Sadat, Leila Nadya, “Redefining Universal Jurisdiction,” New England Law Review, Volume 35:2, 2001, available at  http://www.nesl.edu/userfiles/file/lawreview/vol35/2/sadat.pdf (accessed June 2, 2014), page 263

[74] Former UN Secretary-General also made the observation that the responsibility to protect norm is ‘firmly’ anchored in existing and well-established principles of international law, which include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, the Geneva Conventions and Additional Protocols, and the Rome Statute of the International Criminal Court. Precisely for the four crimes to which R2P applies, both treaties and customary international law place affirmative obligations to protect on the territorial state. Furthermore, as the prohibitions on such acts are entrenched as peremptory norms of international law, or jus cogens, per well-established principle acts contrary to jus cogens are invalid: thus, Article 53 of the Vienna Convention invalidates treaties conflicting with jus cogens; complementing this provision is Article 41(2) of the Articles on State Responsibility, providing that no state shall recognise situations created by serious breaches of peremptory norms. In effect, the equation of the scope of R2P with these crimes has indisputably brought it within a legal regime. In any case, the Genocide Convention, and arguably human rights law and a purposive interpretation of Common Article 1 of the Geneva Conventions, would furthermore create obligations for third states to ensure that no other state commits genocide, war crimes or crimes against humanity. A purposive interpretation in accordance with the principle of effectiveness and the Vienna Convention on the Law of Treaties undoubtedly leads to the conclusion that today, common Article 1 of Geneva Conventions creates obligations for third States. It requires States to ensure that no other State commits genocide, war crimes, or crimes against humanity. Common Article 1 offers a valuable legal basis for the concept of R2P, and one that should be used and referred to where possible. The fact that R2P is largely embedded in existing international law does not render the newly emerged principle superfluous. In fact, one of the reasons for its emergence may be the fact that existing legal obligations in this area have been very unevenly and imperfectly implemented. Arbour, Louise, “The Responsibility to Protect as a Duty of Care in International Law and Practice,” Address at Trinity College, Dublin, 23 November 2007, available at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=3203&LangID=E (accessed May 16, 2014), Julia Hoffmann and André Nollkaemper in Hoffman, Julia and Nollkaemper, Andre (edt.), “Responsibility to Protect: From Principle to Practice,” Pallas Publications, 2012, page 359, Hanna Brollowski in Hoffman, Julia andNollkaemper, Andre (edt.), “Responsibility to Protect: From Principle to Practice,” Pallas Publications, 2012, page 103, Eliav Lieblich in in Hoffman, Julia andNollkaemper, Andre (edt.), “Responsibility to Protect: From Principle to Practice,” Pallas Publications, 2012, page, 148-149 Hanne Cuyckens and Philip De Man in Hoffman, Julia and Nollkaemper, Andre (edt.), “Responsibility to Protect: From Principle to Practice,” Pallas Publications, 2012, page 114, Warham, Olivia, “Genocide needs to be nipped in the bud, not blamed on ICC after the event,” The Guardian, 21 December 2012, available at http://www.theguardian.com/global-development/poverty-matters/2012/dec/21/genocide-nipped-bud-icc (accessed December 24, 2013), Couture, Amelie, “The Politics of International Justice: the Security Council’s Impact on the Independence, Effectiveness and Legitimacy of the International Criminal Court,” International Human Rights Internship Working Papers Series, McGill Centre for Human Rights and Legal Pluralism, Volume 3, No. 2, Spring 2015, available at https://www.mcgill.ca/humanrights/files/humanrights/ihri_wps_v3n2-amelia_couture.pdf (accessed July 17, 2016), page 29

[75] Christopher C. Joyner in Bassiouni, Cherif M. and Morris, Madeline H., edt., “Accountability for international crimes and serious violations of fundamental human rights,” Law and Contemporary Problems, Volume 59, No.4, 1996, page 153

[76] What some assert is that realpolitik is not all that “international politics” is or has to be; in a world where number of conflicts rises in an alarming rate and where mass atrocities are more of a rule than an exception, international criminal justice can be not only good politics, but a necessary one, and good politics can guide international criminal justice.  Kersten, Mark, “Politics, a Poison for Justice?,” Justice in Conflict,  5 June 2012, available at http://justiceinconflict.org/2012/06/05/politics-a-poison-for-justice/ (accessed June 26, 2013)

[77] Julia Hoffmann and André Nollkaemper in Hoffman, Julia and Nollkaemper, Andre (edt.), “Responsibility to Protect: From Principle to Practice,” Pallas Publications, 2012

[78] Meron, Theodor, Remarks to Security Council open debate: “Upholding International Law Within the Context of the Maintenance of International Peace and Security,” S/PV.8262, 17 May 2018, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.8262 (accessed May 17, 2018), page 10

[79] No one can take away from the ICTY’s or the ICTR’s historic importance and place they hold in newer international criminal justice history, or fault for the lack of groundbreaking advancements of international criminal, humanitarian and human rights law. They proved potential and applicability of international law in general, as well as the operative ability of international criminal justice system, paving the way for the permanent international criminal court. What took away from these commendable, albeit lonely, ventures of international criminal justice, was its primary driving force; international community and the UN Security Council from the very outset, were neither genuinely invested nor that much interested in seeing justice through all the way. They instead used both tribunals as a post facto ineffective remedy to the accomplished genocide, an act of tokenism by the world community unwilling to intervene but ready enough to create an institution that would give the appearance of moral concern.

[80] Witte, Eric A., “International Crimes, Local Justice: A Handbook for Rule-of-Law Policymakers, Donors, and Implementers,” Open Society Foundation, 2011, page 22

[81] Bass, Gary Jonathan, “Staying the Hand of Vengeance: The Politics of War Crimes Tribunals,” Princeton University Press, 2002, page 295, Hild, Kyra, “Political Constraints on International Criminal Law,” Perspectives on Global Issues, 2009, available at  http://www.perspectivesonglobalissues.com/0302/icl.pdf (accessed June 21, 2013), page 17

[82] Bubna, Mayank, “The ICC’s Role in Sudan: Peace versus Justice,” Institute for Defense Studies and Analyses, 28 April 2010, available at www.idsa.in/system/files/IB_ICCsRoleinSudan.pdf (accessed May 18, 2013), page 2

[83] Moghalu, Kingsley Chiedu, “Global justice: The politics of war crimes trials,” Praeger Security International, 2006, page 178

[84] Olivier Ribbelink in Sancin, Vasilka, edt. “Responsibility to Protect: Where Do We Stand Ten Years After?” University of Ljubljana, April 2015, page 50

[85] Lopez, Giselle, “Responsibility to Protect at a Crossroads: The Crisis in Libya,” Transatlantic Perspectives on Diplomacy and Diversity, edited by Anthony Chase, New York: Humanity in Action Press, 2015, available at https://www.humanityinaction.org/knowledgebase/580-responsibility-to-protect-at-a-crossroads-the-crisis-in-libya(accessed October 5, 2017)

[86] Chesterman, Simon, “The UN Security Council and the Rule of Law: The Role of the Security Council in Strengthening a Rules-based International System, Final Report and Recommendations from the Austrian Initiative, 2004-2008,” Federal Ministry for European and International Affairs of Austria, 2008, available at http://www.geneva-academy.ch/RULAC/pdf/FINAL-Report-The-UN-Security-Council-and-the-Rule-of-Law.pdf (accessed May 2008), page 8

[87] Warham, Olivia, “Genocide needs to be nipped in the bud, not blamed on ICC after the event,” The Guardian, 21 December 2012, available at http://www.theguardian.com/global-development/poverty-matters/2012/dec/21/genocide-nipped-bud-icc (accessed December 24, 2013)

[88] It translates into a responsibility to prevent before a crisis and to rebuild after it, as well as to react during it. R2P embraces a whole spectrum of preventive and reactive responses, from diplomatic persuasion and pressure, targeted sanctions, to the accountability mechanisms. Evans, Gareth, “The Responsibility to Protect: Ending mass atrocities once and for all,” Brooking Institution Press, 2008, page 4

[89] Trahan, Jennifer, “The Relationship Between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices,” Criminal Law Forum, Volume 24, Number 4, December 2013, available at http://www.springer.com/home?SGWID=0-0-1003-0-0&aqId=2556900&download=1&checkval=feafa6b59cb1101680a346056cd7f190 (accessed February 4, 2014), page 9, 11

[90] Mayer, Susan E., “In Our Interest: Responsibility to Protect” in Cooper, Richard H. and Kohler Voinov, Juliette (edt.), “Responsibility to Protect: The moral compact for the 21st century,” Palgrave Macmillan, 2009, page 59

[91] Badescu, Cristina Gabriela, “Humanitarian intervention and the Responsibility to Protect: Security and human rights,” Routlege, 2011, page 118, Evans, Gareth, and Thakur, Ramesh, “Correspondence: Humanitarian Intervention and the Responsibility to Protect,” International Security, Vol. 37, Issue 4, Spring 2013, available at http://responsibilitytoprotect.org/Evans%20Thakur%20Pape.pdf (accessed March 24, 2018), page 202

[92] Gentian Zyberi in Hoffman, Julia and Nollkaemper, Andre (edt.), “Responsibility to Protect: From Principle to Practice,” Pallas Publications, 2012, page 314

[93] Bassiouni, Cherif M. in Bassiouni, Cherif M. and Morris, Madeline H., edt., “Accountability for international crimes and serious violations of fundamental human rights,” Law and Contemporary Problems, Volume 59, No.4, 1996, page 18-19

[94] Chesterman, Simon, “The UN Security Council and the Rule of Law: The Role of the Security Council in Strengthening a Rules-based International System, Final Report and Recommendations from the Austrian Initiative, 2004-2008,” Federal Ministry for European and International Affairs of Austria, 2008, available at http://www.geneva-academy.ch/RULAC/pdf/FINAL-Report-The-UN-Security-Council-and-the-Rule-of-Law.pdf (accessed May 2008), page 7, 15

[95] The ICC is not achieving justice for all, nor is it likely to. It does, however, have potential to achieve justice for more. This justice should be better justice than has been possible in the past. Similarly, impunity is significantly reduced by the wording of the Rome Statute and the rejection of the idea that public office brings immunity is undoubtedly a welcoming step. Moss, Lawrence, “The UN Security Council and the International Criminal Court: Towards More Principled Relationship,” Friedrich Ebert Stiftung, March 2012, http://library.fes.de/pdf-files/iez/08948.pdf (accessed 18 April 2012), Ainley, Kirsten, “The International Criminal Court on Trial,” Cambridge Review of International Affairs, 201, 24 (3), available at www.academia.edu/362897/The_International_Criminal_Court_on_Trial (accessed June 25, 2013), page 21

[96] Mistry, Hemi and Verduzco Ruiz, Deborah, Rapporteurs, “International Law Meeting Summary:The UN Security Council and the International Criminal Court,” Chatham House, March 16, 2012, available at www.pgaction.org/pdf/activity/Chatham-ICC-SC.pdf (accessed May 15, 2013), page 5

[97] In terms of weather the Security Council has any obligation to make a referral in the face of grave crimes, the relevan t legal analysis sloul, in addition to the UN Charter, also be guided by the responsibility to protect doctrine, which suggests that the UN Security Council does indeed have an increasingly solidifying legal obligation (and certainly a moral one) to act in the face of large-scale atrocity crimes, with referral constituting one possible step.  Mistry, Hemi and Verduzco Ruiz, Deborah, Rapporteurs, “International Law Meeting Summary:The UN Security Council and the International Criminal Court,” Chatham House, March 16, 2012, available at www.pgaction.org/pdf/activity/Chatham-ICC-SC.pdf (accessed May 15, 2013), page 4, Trahan, Jennifer, “The Relationship Between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices,” Criminal Law Forum, Volume 24, Number 4, December 2013, available at http://www.springer.com/home?SGWID=0-0-1003-0-0&aqId=2556900&download=1&checkval=feafa6b59cb1101680a346056cd7f190 (accessed February 4, 2014), page 12, International Peace Institute, “The Relationship Between the ICC and the Security Council: Challenges and Opportunities,” March 2013, available at http://www1.regierung.li/uploads/media/IPI_E-Pub-Relationship_Bet__ICC_and_SC__2__02.pdf (accessed March 30, 2016), page 1, 6, 7, Moss, Lawrence, “The UN Security Council and the International Criminal Court: Towards More Principled Relationship,” Friedrich Ebert Stiftung, March 2012, http://library.fes.de/pdf-files/iez/08948.pdf (accessed 18 April 2012), page 12

[98] Kaye, David, “The Council and the Court: Improving Security Council Support of the International Criminal Court,” University of California, Irvine, School of Law, May 2013, available at http://councilandcourt.org/files/2013/05/The-Council-and-the-Court-FINAL.pdf (accessed May 17, 2013), page 17-22. Also,  Trahan, Jennifer, “The Relationship Between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices,” Criminal Law Forum, Volume 24, Number 4, December 2013, available at http://www.springer.com/home?SGWID=0-0-1003-0-0&aqId=2556900&download=1&checkval=feafa6b59cb1101680a346056cd7f190(accessed February 4, 2014), page 472-473, International Peace Institute, “The Relationship Between the ICC and the Security Council: Challenges and Opportunities,” March 2013, available at http://www1.regierung.li/uploads/media/IPI_E-Pub-Relationship_Bet__ICC_and_SC__2__02.pdf (accessed March 30, 2016), Couture, Amelie, “The Politics of International Justice: the Security Council’s Impact on the Independence, Effectiveness and Legitimacy of the International Criminal Court,” International Human Rights Internship Working Papers Series, McGill Centre for Human Rights and Legal Pluralism, Volume 3, No. 2, Spring 2015, available at https://www.mcgill.ca/humanrights/files/humanrights/ihri_wps_v3n2-amelia_couture.pdf (accessed July 17, 2016), page 29-30

[99] International Peace Institute, “The Relationship Between the ICC and the Security Council: Challenges and Opportunities,” March 2013, available at http://www1.regierung.li/uploads/media/IPI_E-Pub-Relationship_Bet__ICC_and_SC__2__02.pdf (accessed March 30, 2016), page 1

[100] Moss, Lawrence, “The UN Security Council and the International Criminal Court: Towards More Principled Relationship,” Friedrich Ebert Stiftung, March 2012, http://library.fes.de/pdf-files/iez/08948.pdf (accessed 18 April 2012), page 13

[101] International Peace Institute, “The Relationship Between the ICC and the Security Council: Challenges and Opportunities,” March 2013, available at http://www1.regierung.li/uploads/media/IPI_E-Pub-Relationship_Bet__ICC_and_SC__2__02.pdf (accessed March 30, 2016), page 6

[102] Kaye, David, “The Council and the Court: Improving Security Council Support of the International Criminal Court,” University of California, Irvine, School of Law, May 2013, available at http://councilandcourt.org/files/2013/05/The-Council-and-the-Court-FINAL.pdf (accessed May 17, 2013), page 19

[103] Dicker, Richard, “Holding the Security Council to Account on Syria,” The Progressive, 29 January 2013, available at http://progressive.org/holding-security-council-to-account-on-syria (accessed July 1, 2013)

[104] Gow, Melanie, “The International Criminal Court: Finding Justice for Victims, Ending Impunity for Perpetrators,” World Vision International, 2002, available at www.justice-and-peace.org/PolicyAdvocacy/pahome2.5.nsf/allreports/5CB57476E1D6F9CF88256EFA0082016E/$file/ICC.pdf (accessed May 20, 2013), page 39

[105] Ainley, Kirsten, “The International Criminal Court on Trial,” Cambridge Review of International Affairs, 201, 24 (3), available at www.academia.edu/362897/The_International_Criminal_Court_on_Trial (accessed June 25, 2013), page 22, Trahan, Jennifer, “The Relationship Between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices,” Criminal Law Forum, Volume 24, Number 4, December 2013, available at http://www.springer.com/home?SGWID=0-0-1003-0-0&aqId=2556900&download=1&checkval=feafa6b59cb1101680a346056cd7f190 (accessed February 4, 2014), page 34

[106] International Peace Institute, “The Relationship Between the ICC and the Security Council: Challenges and Opportunities,” March 2013, available at http://www1.regierung.li/uploads/media/IPI_E-Pub-Relationship_Bet__ICC_and_SC__2__02.pdf (accessed March 30, 2016), page 1, 6

[107] Moss, Lawrence, “The UN Security Council and the International Criminal Court: Towards More Principled Relationship,” Friedrich Ebert Stiftung, March 2012, http://library.fes.de/pdf-files/iez/08948.pdf (accessed 18 April 2012), page 13, Kaye, David, “The Council and the Court: Improving Security Council Support of the International Criminal Court,” University of California, Irvine, School of Law, May 2013, available at http://councilandcourt.org/files/2013/05/The-Council-and-the-Court-FINAL.pdf (accessed May 17, 2013), page 20

[108] When the Security Council is not using the powers at its disposal to advance the cause of justice, the amount of progress the ICC can make when left to its own devices is very limited. International Peace Institute, “The Relationship Between the ICC and the Security Council: Challenges and Opportunities,” March 2013, available at http://www1.regierung.li/uploads/media/IPI_E-Pub-Relationship_Bet__ICC_and_SC__2__02.pdf (accessed March 30, 2016), page 5

[109] The Council alone has the power to create binding obligations on the relevant states and on the wider UN membership to cooperate with international criminal mechanisms, and the authority to enforce its decisions. Security Council Report, In Hindsight: The Security Council’s Quest for Accountability, 27 December 2018, available at https://www.securitycouncilreport.org/monthly-forecast/2019-01/in-hindsight-the-security-councils-quest-for-accountability.php (accessed March 10, 2019)

[110] Kaye, David, “The Council and the Court: Improving Security Council Support of the International Criminal Court,” University of California, Irvine, School of Law, May 2013, available at http://councilandcourt.org/files/2013/05/The-Council-and-the-Court-FINAL.pdf (accessed May 17, 2013), page 17-22, Trahan, Jennifer, “The Relationship Between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices,” Criminal Law Forum, Volume 24, Number 4, December 2013, available at http://www.springer.com/home?SGWID=0-0-1003-0-0&aqId=2556900&download=1&checkval=feafa6b59cb1101680a346056cd7f190(accessed February 4, 2014), page 33, Couture, Amelie, “The Politics of International Justice: the Security Council’s Impact on the Independence, Effectiveness and Legitimacy of the International Criminal Court,” International Human Rights Internship Working Papers Series, McGill Centre for Human Rights and Legal Pluralism, Volume 3, No. 2, Spring 2015, available at https://www.mcgill.ca/humanrights/files/humanrights/ihri_wps_v3n2-amelia_couture.pdf (accessed July 17, 2016), page 29-30

[111] Mistry, Hemi and Verduzco Ruiz, Deborah, Rapporteurs, “International Law Meeting Summary:The UN Security Council and the International Criminal Court,” Chatham House, March 16, 2012, available at www.pgaction.org/pdf/activity/Chatham-ICC-SC.pdf (accessed May 15, 2013), page 9

[112] Apart from the R2P, other positive trends are also taking shape, closely connected to the UNSC-ICC relationship, signaling that international community is becoming increasingly aware that the veto right of the five permanent members of the UN Security Council seriously compromises this body’s ability to maintain international peace and security when it matters most. Using the 70th anniversary of the UN as a platform, on October 23 the member states of ACT launched a “Code of Conduct” regarding Security Council action against genocide, crimes against humanity or war crimes. The initiative exists side by side with an effort by France and Mexico calling for a suspension of the veto at the Council in cases of mass atrocities. See Dicker, Richard, “As ICC Caseload Expands, UN Security Council’s Support Lags Far Behind,” International Criminal Justice Today, 10 December 2015, available at http://www.international-criminal-justice-today.org/arguendo/article/as-icc-caseload-expands-un-security-councils-support-lags-far-behind/ (accessed March 2, 2016)

[113] International Peace Institute, “The Relationship Between the ICC and the Security Council: Challenges and Opportunities,” March 2013, available at http://www1.regierung.li/uploads/media/IPI_E-Pub-Relationship_Bet__ICC_and_SC__2__02.pdf (accessed March 30, 2016), page 1, Mistry, Hemi and Verduzco Ruiz, Deborah, Rapporteurs, “International Law Meeting Summary:The UN Security Council and the International Criminal Court,” Chatham House, March 16, 2012, available at www.pgaction.org/pdf/activity/Chatham-ICC-SC.pdf (accessed May 15, 2013), page 5, Trahan, Jennifer, “The Relationship Between the International Criminal Court and the U.N. Security Council: Parameters and Best Practices,” Criminal Law Forum, Volume 24, Number 4, December 2013, available at http://www.springer.com/home?SGWID=0-0-1003-0-0&aqId=2556900&download=1&checkval=feafa6b59cb1101680a346056cd7f190 (accessed February 4, 2014), page 36

[114] Ochab, Ewelina U., “The Much Needed Code of Conduct at the UN Security Council,” Forbes, 2 July 2017, available at https://www.forbes.com/sites/ewelinaochab/2017/07/02/the-much-needed-code-of-conduct-at-the-un-security-council/#6548e43a6815 (accessed July 2, 2017),

[115] Couture, Amelie, “The Politics of International Justice: the Security Council’s Impact on the Independence, Effectiveness and Legitimacy of the International Criminal Court,” International Human Rights Internship Working Papers Series, McGill Centre for Human Rights and Legal Pluralism, Volume 3, No. 2, Spring 2015, available at https://www.mcgill.ca/humanrights/files/humanrights/ihri_wps_v3n2-amelia_couture.pdf (accessed July 17, 2016), page 28

[116] Couture, Amelie, “The Politics of International Justice: the Security Council’s Impact on the Independence, Effectiveness and Legitimacy of the International Criminal Court,” International Human Rights Internship Working Papers Series, McGill Centre for Human Rights and Legal Pluralism, Volume 3, No. 2, Spring 2015, available at https://www.mcgill.ca/humanrights/files/humanrights/ihri_wps_v3n2-amelia_couture.pdf (accessed July 17, 2016), page 24, 29-30

[117] Cherif M. Bassiouni in Cassese, Antonio, edt.-in-chief, “The Oxford companion to international criminal justice,” Oxford University Press, 2009, page 141

[118] El-Sadany, Mai, “Deadlock at the Security Council on Syria: A Legal Perspective,” Lawfare, 14 October 2016, available at https://www.lawfareblog.com/deadlock-security-council-syria-legal-perspective (accessed November 2018)

[119] Dag Hammarskjöld Library, “What is the Uniting for peace resolution?” available at http://ask.un.org/faq/177134 (accessed May 5, 2019), Barella, Lorenzo, “Justice over impunity: the way towards accountability in Syria,” Harmoon Center for Contemporary Studies, 4 April 2018, available at https://harmoon.org/wp-content/uploads/2018/04/Justice-over-impunity-the-way-towards-accountability-in-Syria.pdf (accessed May 23, 2018), page 9

[120] Warham, Olivia, “Genocide needs to be nipped in the bud, not blamed on ICC after the event,” The Guardian, 21 December 2012, available at http://www.theguardian.com/global-development/poverty-matters/2012/dec/21/genocide-nipped-bud-icc (accessed December 24, 2013)

[121] For a first initiative, see United Nations Office on Genocide Prevention and the Responsibility to Protect, Framework of Analysis for Atrocity Crimes: A Tool for Prevention’, July 2014, at http://www.un.org/en/preventgenocide/adviser/pdf/framework%20of%20analysis%20for%20atrocity%20crimes_en.pdf. Stahn, Carsten, “Marital stress or grounds for divorce? Re-thinking the relationship between R2P and international criminal justice,” Criminal Law Forum, 2015, available at https://link.springer.com/content/pdf/10.1007/s10609-015-9255-2.pdf (accessed April 30, 2018), page 47

[122] Jones, Tom, “The goals of International Criminal Justice are both unachievable and potentially harmful.” Academia.edu, 27 August 2014,  available at https://www.academia.edu/7775779/_The_goals_of_International_Criminal_Justice_are_both_unachievable_and_potentially_harmful._Discuss_with_reference_to_the_practice_of_International_Courts_and_Tribunals_(accessed August 29, 2014)

[123] 16th session of the Assembly of States Parties to the Rome Satute, held in NY in December 2017, was important for several reasons, but mainly for the pending activation of the Court’s jurisdiction over a crime of aggression. On the surface of it there was seemingly an unconditional support for its activation, while behind the scenes two prominent parties to the Rome Statute led an aggressive campaign to condition the jurisdiction. France and the UK, joined by Canada, Japan, Norway and Colombia argued that, regardless of what was unanimously agreed to in Kampala, leaders of states which fail to ratify the aggression amendments should be completely exempt from the Court’s ability to prosecute for the crime. Because of the complete unanimity which is required for the adoption of a consensus resolution, any non-consenting state has the power to kill the activation decision simply by not consenting to it. Hence, dissident non-ratifiers each have a game-ending card to play in opposition of activation. And it was exactly what happened. It was frustrating to watch and listen their proclamations of dedication to the principles and ideas of the Rome Statute while hypocriticaly attempting to justify the double standard approach.

[124] Ainley, Kirsten, “The International Criminal Court on Trial,” Cambridge Review of International Affairs, 201, 24 (3), available at www.academia.edu/362897/The_International_Criminal_Court_on_Trial (accessed June 25, 2013), page 21

[125] Krieger, David, “The Nuremberg Promise and the International Criminal Court,” Nuclear Age Peace Foundation, December 1998, available at https://www.wagingpeace.org/the-nuremberg-promise-and-the-international-criminal-court/ (accessed December 21, 2011)

[126] Dicker, Richard and Evenson, Elizabeth, ”ICC Suspects Can Hide – and That Is the Problem,” Jurist, January 24, 2013, available at http://jurist.org/hotline/2013/01/dicker-evenson-icc-suspects.php (accessed May 16, 2013)

[127] Toufayan, Mark, “The World Court’s Distress When Facing Genocide: A Critical Commentary on the Application of the Genocide Convention Case (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)),” Texas International Law Journal, Vol. 40, No. 2, January 2005, available at www.tilj.org/content/journal/40/num2/Toufayan233.pdf (accessed May 13, 2013), page 246

[128] Jones, Tom, “The goals of International Criminal Justice are both unachievable and potentially harmful.” Academia.edu, 27 August 2014,  available at https://www.academia.edu/7775779/_The_goals_of_International_Criminal_Justice_are_both_unachievable_and_potentially_harmful._Discuss_with_reference_to_the_practice_of_International_Courts_and_Tribunals_(accessed August 29, 2014)

[129] As Bassiouni notes, having some 185 domestic systems all pursuing the same type of violators, respecting and applying same legal norms, with effective cooperation could prove far more effective than any international criminal court, not to mention the deterrent effect of one such threat for any potential perpetrators. See Bassiouni, Cherif M., “The Future of International Criminal Justice,” Pace International Law Review, Paper 138, 1999, available at http://digitalcommons.pace.edu/intlaw/138 (accessed January 1, 2012), page 315

[130] In the somewhat broadened scope of the complementarity principle, national jurisdictions could further rely on the guidance and support of the ICC when exercising universal jurisdiction. Universal jurisdiction must, therefore, be utilized in a cautious manner that minimizes possible negative consequences, while at the same time enabling it to achieve its useful purposes. Bassiouni, Cherif M., “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice,” Virginia Journal of International Law, Fall 2001, available at www.iranhrdc.org/english/human-rights-documents/legal-articles/3220-m-cherif-bassiouni-universal-jurisdiction-for-international-crimes-historical-perspectives-and-contemporary-practice.html (accessed June 26, 2013), page 3

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