The international criminal court and the responsibility to protect

Marinelli, Stefano (2021) The international criminal court and the responsibility to protect. PhD thesis, Middlesex University. [Thesis]

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Abstract

This thesis explores the relationship between the International Criminal Court and the responsibility to protect. Since their emergence at the turn of the 21th century, the Court and the doctrine have developed in parallel. They have the same function to prevent mass violence and the same complementary approach to state sovereignty. As such, they are activated when a state fails to deal with international crimes perpetrated under its jurisdiction. The activity of the Court and the implementation of the doctrine experience similar problems of implementation and double standards, being closely connected to the political structure of the international community, starting with the UN Security Council.

The connection between the International Criminal Court and the responsibility to protect has been the subject of journal articles, book chapters and conferences , and it has been researched in connection to specific case studies. Yet their relationship in international law has never been explored in a single monograph. Existing literature focuses mostly on matters of implementation of the doctrine and of the activity of the Court, presenting the controversial results of their interaction. This thesis is wider in scope and aims to provide a general view of how this interaction affects various branches of international law.

The research begins with a review of the literature on the topic and an examination of common ground such as the shared philosophical origin of liberal cosmopolitanism and the similar subject matter jurisdiction, sometimes referred to as ‘atrocity crimes’. The study continues by investigating the institutional link between the UN Security Council, the doctrine and the Court through an analysis of the case studies of Darfur, Libya and Syria. The thesis then considers the Court’s capability to protect populations from international crimes through the criminal justice theory of deterrence. Finally, it considers the influence of the doctrine and the Court on fundamental international law norms: the prohibition of the use of force and the principle of state sovereignty.

The research shows that the doctrine and the Court experienced significant implementation problems in their first decades of life. However, they have the potential to contribute to the historical evolution of international law in combining their values of promoting international peace and protecting human rights.

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