Protect and punish: norm linkage and international responses to mass atrocities
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/13540661231158548 |
| Author | Caroline Fehl |
| Date | 01 September 2023 |
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JR
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https://doi.org/10.1177/13540661231158548
European Journal of
International Relations
2023, Vol. 29(3) 751 –779
© The Author(s) 2023
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DOI: 10.1177/13540661231158548
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Protect and punish: norm
linkage and international
responses to mass atrocities
Caroline Fehl
Peace Research Institute Frankfurt (PRIF), Germany
Abstract
Since being founded in 2002, the International Criminal Court has frequently intervened
in ongoing conflicts and alongside other forms of coercive intervention, specifically
sanctions and military measures. In this article, I argue that this pattern has been
enabled by governments engaging in strategic norm linkage. To justify their positions
on both judicial and non-judicial interventions, governments have discursively linked
international prosecutions to the protection of civilians – in specific ways that have
favoured joint judicial and non-judicial crisis responses. My argument, which I test
through qualitative and quantitative content analyses of UN Security Council debates,
contributes not only to debates on the politics of international criminal justice, but also
to general theory-building on international norm dynamics. Adding to recent research
on norm complexity and norm interactions, my study underlines and disaggregates the
potential for discursive agency at the intersection of multiple international norms.
Keywords
International criminal justice, protection of civilians, UN Security Council, justification,
norm complexity
Introduction
The International Criminal Court (ICC), created in 2002 to prosecute genocide, crimes
against humanity, war crimes and aggression, has since become active in different world
regions. Its activities have followed a pattern that is puzzling in several respects. First,
most ICC investigations took place amid ongoing conflicts or atrocities. This pattern
departs from the pre-ICC practice of initiating prosecutions after the cessation of vio-
lence.1 It has persisted although investigations in ongoing conflicts have been found to
Corresponding author:
Caroline Fehl, Peace Research Institute Frankfurt (PRIF), Baseler Straße 27-31, 60329 Frankfurt, Germany.
Email: fehl@hsfk.de
1158548EJT0010.1177/13540661231158548European Journal of International RelationsFehl
research-article2023
Article
752 European Journal of International Relations 29(3)
face practical impediments (Unger and Wierda, 2009) and, in some cases, complicate
peace processes (Ku and Nzelibe, 2006; Rodman, 2011; Snyder and Vinjamuri, 2003)
and peacekeeping (Buitelaar and Hirschmann, 2021). Second, ICC interventions have
often – but not always – occurred alongside other forms of intervention, specifically
sanctions and military operations. This raises the question of whether and how judicial
and non-judicial interventions are related.2
In this article, I seek to understand the observable pattern of ICC interventions by
mapping the discursive strategies of justification that have enabled it. I argue that the
court’s in-conflict interventions alongside other forms of intervention have been made
possible by strategic norm linkage, that is, by governments constructing discursive con-
nections between prosecution and the protection of civilians to justify their positions on
judicial and non-judicial interventions.
International Relations (IR) scholars have studied both the prosecution of atrocity
crimes and the protection of civilians as (contested) international norms stipulating how
states should collectively respond to mass violence (Bower, 2019; Gholiagha, 2022;
Mills and Bloomfield, 2018; Welsh, 2013).3 The prosecution norm holds that atrocity
crimes should be prosecuted internationally if the responsible state is ‘unwilling or una-
ble’ to do so (ICC Statute Art. 17.1);4 the protection norm demands that outside states
collectively protect civilians from severe violence – with coercive tools if necessary – if
the responsible state fails to do so.5
A simple explanation of the co-occurrence of judicial and non-judicial interventions
is that protection and prosecution norms are applied in parallel. Both emerged in response
to the same events, most notably the Rwandan genocide and the Balkan wars of the
1990s. Hence, cases of mass violence should trigger simultaneous, but independent
deliberations about judicial and non-judicial responses. The notion of two independent
norms appears to be confirmed by the ICC’s own claims that ‘the “interests of justice”
must not be confused with the interests of peace’ and that ‘[t]he prospect of peace nego-
tiations is therefore not a factor’ in the court’s decision-making (Bensouda, 2012:
440–441).
And yet, I argue in this article, the story of two parallel, independent norms does not
fully capture observable intervention patterns. Protection and prosecution norms have
become closely linked by strategic political actors – in specific ways that have favoured
the co-use of judicial and non-judicial measures in ongoing crises.
My argument builds on and contributes to existing scholarship on international crimi-
nal justice. Scholars have long discussed whether international criminal tribunals deter
both future and ongoing violence – and can thus serve as tools of protection – or endan-
ger peace and protection at least in the short run (Mendeloff, 2018; Snyder and Vinjamuri,
2003; Weerdesteijn and Holá, 2020; Wegner, 2015). My study does not add to this dis-
cussion by studying the effects of prosecutions on mass violence. Instead, it shows how
the debate itself has been politicized and used by political actors. In analysing their dis-
cursive strategies, I draw on anecdotal arguments in the international criminal justice
literature that highlight potential political interaction effects between prosecution and
protection.
First, some observers note critically that justice advocates tend to ‘sell’ international
tribunals (Vinjamuri, 2010: 199) by emphasizing their ability to contain violence against
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