The Role of the International Criminal Court in Preventing Atrocity Crimes Through Timely Intervention: From the Humanitarian Intervention Doctrine and Ex Post Facto Judicial Institutions to the Notion of Responsibility to Protect and the Preventative Role of the International Criminal Court

Abstract

The brutal legacy of the twentieth century speaks bitterly of the collective inadequacies of international institutions and the profound failure of individual States to live up to their most basic and compelling responsibilities.’ Given the profound and long-lasting costs to a society of engaging in atrocity crimes, strengthening preventative action becomes of utmost relevance. This is emphasized by the emerging notion of “responsibility to protect”. The present work addresses the role of the International Criminal Court ("ICC") in implementing the notion of responsibility to protect through means other than ending impunity for past crimes. The ICC´s preventative mandate is an important means to fulfil the responsibility of the international community under the notion of responsibility to protect. So far, the focus has been on the ICC´s efforts on general prevention by ending impunity for past atrocities. Nevertheless, the ICC´s contribution to the prevention of future atrocity crimes through timely intervention is potentially even greater. Realizing this potential requires acknowledgment of the ICC’s preventative role through timely intervention by the different organs of the institution. It also requires States Parties to recognize this role so as to provide the necessary resources, and extend to all atrocity crimes criminal liability for “planning” and “preparation”. Based on this premise, increased coordination between the ICC, the United Nations and other stakeholders will increase the preventive effect of their timely intervention. In the end, what is at stake is whether the ICC remains as one among several mechanisms for accountability with a limited general prevention mandate; or whether, instead, it fully develops its potential to prevent atrocity crimes, strengthen the rule of law and improve good governance through timely intervention.

Keywords: Attrocity Crimes, genocide, crimes against humanity, war crimes, prevention, humanitarian intervention, responsibility to protect, ICC, preliminary examination, Colombia, Afghanistan, Iraq, Sudan, Guinea, Complementarity,