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The Impact of the Security Council on the Efficacy of the International Criminal Court and the Responsibility to Protect

Abstract

This article argues that the manner in which the Security Council inhibits the consistent application of the Responsibility to Protect (R2P) and International Criminal Court (ICC) referrals reinforces their power in the international order without creating long term peace and stability. The Security Council’s discretionary powers allow it to subjectively determine which situations to address and which lawbreakers to prosecute; this consolidates, and indeed expands, the power of the Security Council in relation to other agents of international law. As a result, international cooperation to protect and promote human rights and punish human rights violators is currently impeded. This article argues that those concerned with the consistent enforcement of international human rights law, and the punishment of human rights violators, must accept the need for reforms to the current international order that would allow a better integration of R2P and the ICC into international law and practice. Our reforms – advanced in the form of general principles taken from legal theory – propose altering the Security Council’s powers and developing new judicial structures to enable the more consistent application of international law.

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Correspondence to Aidan Hehir.

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Dr Aidan Hehir is a Reader in International Relations at the University of Westminster; E-Mail: a.hehir@westminster.ac.uk. Professor Anthony Lang holds a Chair in International Political Theory at the University of St Andrews. We would like to thank Jason Ralph for his invitation to be part of this special section, and the reviewers for their helpful insights into the paper. Feedback from presentations at the University of Leeds workshop on R2P and the ICC, and the School of International Relations Research Workshop at the University of St Andrews were also helpful in shaping the argument. A revised version of this paper also appears in V. Heins, K. Koddenbrock and C. Unrau (eds.), Humanitarianism and the Challenges of Cooperation (London: Routledge, forthcoming 2015).

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Hehir, A., Lang, A. The Impact of the Security Council on the Efficacy of the International Criminal Court and the Responsibility to Protect. Crim Law Forum 26, 153–179 (2015). https://doi.org/10.1007/s10609-015-9245-4

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Keywords

  • Security Council
  • International Criminal Court
  • Legal Order
  • Gulf Cooperation Council
  • Arrest Warrant