, Volume 91, Number 1

Kirsten Ainley

The establishment of the Responsibility to Protect (R2P) process and the International Criminal Court (ICC) were seen by many to constitute significant progress in the protection of human rights. However, these institutions are now in crisis, due in large part to their failure to prevent or prosecute recent acute human rights abuses in Syria. There have been two responses to this crisis: the first assumes that the crisis is caused by the current structures of international governance, in particular the power of the United Nations Security Council (UNSC), and calls for radical reform. The second sees possibilities within the current structure and advocates making R2P and the ICC more closely aligned under UNSC control. The article argues that both responses are mistaken and sets out an argument in favour of refocusing on the complementary nature of each institution. The Court’s most successful actions have been in exercising the powers afforded by its complementary jurisdiction in situations such as Colombia. Similarly, R2P works more successfully at preventing conflict and changing expectations of acceptable state behaviour than it does at confronting situations in which large-scale violence has begun. The article argues that the ICC and R2P should focus on ‘positive complementarity’ agendas, with the ICC devoting more resources to assisting states to build legal capacity in order to deter future conflict through stronger domestic criminal systems, and advocates of R2P focusing less on intervention in live conflict situations and more on building within states the capacity and resources to protect their own populations.