Marital Stress or Grounds for Divorce? Re-Thinking the Relationship Between R2P and International Criminal Justice

Abstract

This article analyzes the relationship between R2P and international criminal justice. Both projects draw on similar foundations, such as ‘sovereignty as responsibility’, a humanity-based defence of international authority and complementarity-oriented response schemes to atrocity crimes. In past years, they have become subject to a number of common criticisms that are typical of other forms of international humanitarianism: application of double standards, assertion of power under the label of human rights and communitarian conceptions of international society or mediation of victims without agency. This contribution draws on an analogy to family law, namely idea of partnership and marriage, to analyze the status quo of the relationship. It argues that the coupling of these two traditions has not received enough attention in the emergence and treatment of R2P. It shows that it is a ‘marriage’ based on pragmatism and without contract. It investigates existing discourse and interaction problems. It claims that there is a need for greater distinction between R2P and international criminal justice, in order to respect their autonomy and mutual virtues. Integration and mainstreaming carries risks. Both strands of action share partly different goals and methodologies. None of the two should be viewed as a tool at the service of the other. Instead, it is more helpful to develop interaction in specific areas. Synergies exist in relation to specific functions, such as atrocity alert, norm expressivism and compliance. These communalities should be reinforced.