The Responsibility to Protect as a Prism through which to Assess the Consequences of Non-cooperation with the ICC through the lens of General International Law

Abstract

Since 2002, International Criminal Court has been tasked with the prosecution of individuals who have committed the most serious of international crimes; namely War Crimes, Crimes Against Humanity, Genocide and Aggression. Unlike domestic legal systems, the Court does not have an established body that is responsible for arresting suspects and securing their presence at trial and is therefore reliant on the cooperation of States in performing these functions. This cooperation regime is largely successful, with only a few instances of States being unwilling to respond to and cooperate with the requests of the Court. Seeing that non-cooperation from States negatively affects the ICC’s ability to function properly, it is crucial that there are appropriate legal consequences in place to address and punish non-cooperation.

This thesis will highlight that the consequences that States face for failing to cooperate with the Court have not been effective; and require urgent development in order to encourage cooperation, as well as discourage States from ignoring their cooperation obligations towards the Court. This study will highlight that case law on non-cooperation has been inconsistent, and has led to dangerous precedent for future non-cooperation cases. In addition, this study will highlight that the bodies mandated to address non-cooperation following a decision by the Court, namely the ICC Assembly of States Parties and the UN Security Council, have not handled non-cooperation in an effective manner, nor developed frameworks that can effectively sanction such non-cooperation.

In order to strengthen the Court’s handling of instances of non-cooperation, this study looks to go beyond the black letter of the Rome Statute and determine whether other international law frameworks can assist in developing more effective frameworks for responding to non-cooperation. This study will be conducted through the lens of the responsibility to protect, a doctrine which places a responsibility upon States and the larger international community to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing. Alongside this doctrine, this study looks to analyse how frameworks under general international law can assist in building up institutionalised capacities to respond to instances of non-cooperation. Such frameworks under analysis include the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts, as well as the Commission’s ongoing work on peremptory norms of general international law.