ABSTRACT
On 26 February 2011, the UN Security Council made history: recalling Libya’s responsibility to protect its people, the council adopted by a 15-0 vote the wide-ranging resolution 1970 to address the ongoing crisis. The resolution was doubly historic because it was the first unanimous council decision to invoke the responsibility to protect (R2P), and it also referred the Libyan situation to the International Criminal Court (ICC). While the Security Council had made use of its extraordinary power to refer non-member states to the ICC before, this resolution was the first time ever that all members of the Security Council-including the United States, Russia, and China as permanent members that have not ratified the Rome Statute-voted to refer a situation to the ICC. The mix of R2P and the ICC in the Security Council resolution represented another novelty: for the first time, there was an evident and explicit link between the court and the norm. The ICC and R2P have also bonded in other situations-for exam-
ple, in Darfur, Côte d’Ivoire, Kenya, and most recently Mali and Syria. Both the ICC and R2P build on existing, related obligations under international law and seek to address existing gaps. After the glaring failures of the 1990s, the question to be answered, according to the UN secretary-general, was whether “sovereignty [could] be misused as a shield behind which mass violence could be inflicted on populations with impunity.”1 The notion of the responsibility to protect became known in policy circles in 2001 with the publication of the report by the International Commission on Intervention and State Sovereignty
(ICISS), and a year later the ICC treaty entered into force. In fact, both the ICC and R2P came about because of the aftershocks of the Rwandan genocide and Srebrenica massacre. Never again were such atrocities to go unpunished. Thus, from the outset R2P had an affinity with the fight against impunity for gross human rights violations. Nonetheless, states have been reluctant to spell out the connection
between R2P and the ICC. During the Security Council’s session that adopted the resolution referring the Libya situation to the ICC, not a single member state linked the court and R2P. In fact, there is a hesitancy to connect the dots, as both proponents of the ICC and of R2P fear any closer contact: ICC supporters view R2P as politicized-and vice versa. Scholarly writings on international criminal justice in general do not mention R2P, and in works on R2P the fight against impunity is, if at all, only mentioned in passing.2 This lacuna is all the more surprising because Security Council resolution 1970 and other UN documents point to the relationship and provide concrete illustrations.3
