Between 'Constructive Engagement', 'Collusion' and 'Critical Distance': The ICRC and the Development of International Criminal Law

Abstract

This article examines the approach and relationship of the ICRC to International Criminal Law. It argues that the ICRC’s position navigates between normative support, collusion and institutional restraint. The ICRC has shaped some of the foundations of contemporary criminal justice, through its early focus on the implementation of International Humanitarian Law (e.g., through implementation and prosecution of ‘grave breaches) and its role as ‘gentle modernizer’ of the law. But it has at the same time kept a critical distance towards International Criminal Law. Its approach is marked by three cardinal principles: ‘structural independence’, ‘strategic engagement’ and ‘systemic support’. It is grounded in the distinct roles of the ICRC (‘guardianship’, ‘protection’, advocacy and dissemination’) and deeper structural challenges in the relationship between International Humanitarian Law and International Criminal Law. This contribution argues for a re-conceptualization of some of the existing approaches. It claims that it is unhelpful to theorize the relationship between the ICRC and International Criminal Courts and Tribunals (ICCTs) on the basis of the premise that International Humanitarian Law provides a set of ‘primary rules’ that are enforced through criminal institutions, or complemented by ‘secondary rules’ under International Criminal Law (e.g., war crimes law). It may be more appropriate to view the ICRC and ICCTs as part of a polycentric legal system that is built on a plurality of interactive normative structures and governed by certain checks and balances.