Criminalized State: The International Criminal Court, The Responsibility to Protect, and Darfur, Republic of Sudan

The international community continues to struggle with the question of what to do when a nation fails to protect its own people from systemic neglect, mistreatment, or even genocide. For many years, this debate pitted proponents of humanitarian intervention by a third-party against those who believe that all others must defer to the sovereign right of the state to control its own affairs and the affairs of its people. In the midst of this debate, the international community has adopted a middle road: insisting that states must acknowledge their responsibility to protect their populations and if the state manifestly fails to protect its population, empowering the United Nations Security Council to act for the United Nations and intervene. This Responsibility to Protect, recognized and adopted in the U.N. 2005 World Summit Outcome and reaffIrmed by the Security Council in 2006, faces its most serious test when the Security Council has recognized that a state has failed to protect its population from crimes against humanity but has also resisted Security Council steps of intervention. Where the authorities have thus failed, individual government agents have opened themselves to criminal liability for a failure to protect over and above any direct liability for involvement in crimes against humanity. This Article argues that this additional liability creates a necessary incentive for cooperation with the international community to prevent further harms and has the potential to positively change the discourse on intervention, sovereignty, and protection of persons