“Tool in the R2P Toolbox”? Analysing the Role of the International Criminal Court in the Three Pillars of the Responsibility to Protect

In the last two decades, two important instruments emerged to combat mass atrocities. In 2002 the International Criminal Court (ICC) was established. Subsequently, in 2005, the international community politically committed itself to the responsibility to protect populations from mass atrocities (R2P) distinguishing three pillars: (i) the responsibility of the state to protect its own population, (ii) the responsibility to help states live up to this responsibility and (iii) the responsibility of the international community to intervene when states manifestly fail to protect their population. While the ICC is frequently referred to as a “tool in the R2P toolbox,” an analysis of the ways in which the ICC works within R2P’s pillar structure was missing. Using the R2P pillar-structure, this article systematically analyses how the ICC plays a role in the implementation of R2P. More specifically, this paper disentangles the diverse modalities of ICC engagement with states – such as ratification of its Statute, positive complementarity, opening of preliminary examinations or investigations – and demonstrates the complex dynamics of the interaction between the implementation of R2P and the actions of the ICC. The workings of the Court create fluid dynamics that shift back and forth between the different pillars at different points in time. In addition, the ICC can contribute to different pillars at the same time. In some instances, however, it fits uncomfortably in the R2P pillar structure, necessitating the conceptualisation of a pillar two and a half.