Critical Approaches to International Criminal Law

An Introduction

Christine Schwöbel, Christine Schwöbel

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317929208
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Drawing on the critical legal tradition, the collection of international scholars gathered in this volume analyse the complicities and limitations of International Criminal Law. This area of law has recently experienced a significant surge in scholarship and public debate; individual criminal accountability is now firmly entrenched in both international law and the international consciousness as a necessary mechanism of responsibility. Critical Approaches to International Criminal Law: An Introduction shifts the debate towards that which has so far been missing from the mainstream discussion: the possible injustices, exclusions, and biases of International Criminal Law.

This collection of essays is the first dedicated to the topic of critical approaches to international criminal law. It will be a valuable resource for scholars and students of international criminal law, international law, international legal theory, criminal law, and criminology.

Part I Critique as an agenda

Chapter 1 International criminal justice

A critical research agenda

Frédéric Mégret

DOI: 10.4324/9781315855943-2

Introduction: situating critical approaches to international criminal justice

This chapter seeks to outline the broad contours of what might be described as a critical project in international criminal justice. This is a delicate exercise because it is hardly clear that there is a unified critical project when it comes to international criminal justice. Moreover, there is always a risk of being either over-inclusive or under-inclusive. In the former case, the specificity of the critique risks being minimized; in the latter case, more or less arbitrary distinctions are made that will exclude worthwhile intellectual ventures.

Perhaps a good starting point is that there is such a thing as an international criminal justice project. That project is both political and legal and has occupied a very distinctive place in the history of international law, international relations and of particular societies in the last 25 years. Although diverse and not without its contradictions, it includes a series of recognizable features, including the centrality of individual guilt, the need to respect the rights of the defence both procedurally and substantively, a commitment to international institutions of criminal justice, and a rhetoric that foregrounds the needs of ‘humanity’ over sovereignty. Thinking about a parallel ‘critical’ project, then, may be a way of better understanding the sort of reactions and contextualiza-tions that international criminal justice has engendered.

There has been much support for institutions of international criminal justice, so that a great deal of the commentary on the issue can be said not to be particularly critical in any way, sometimes even celebratory. A typical conceit in the field is the idea that the ‘problems’ that international criminal justice faces come above all from outside it, notably state sovereignty. The movement itself is pure, free of the compromises of power, sure of its mission. As time has passed, however, and as the need to uphold the requirement for international criminal justice at all costs in order to adopt the Rome Statute has receded, it is only normal that actual, institutionalized international criminal justice has come in for more criticism. An early point worth making is that at a certain level, almost everyone is ‘critical’ of international criminal justice in some way or other. That is, there are few pure apologists, nor could one be a consistent apologist without running into contradictions, for there have been all kinds of forms of international criminal justice, some of which must surely be less worthy of praise than others. Certainly, scholarship on international criminal justice is almost always critical of something about its operation, or it would not be of much interest.

But there is a risk that if ‘critical’ just becomes another word for ‘analytical’ or ‘opinionated’, then the word will lose much of its relevance. Not all critical points evidence a significantly critical stance. Much of the criticism directed at international criminal justice is, in fact, rather pragmatic, instrumental and policy-oriented. It is part of a rolling exercise that is constantly updated based on the concern of the moment. Much of this type of criticism is in a very traditional legal vein, to the effect that international criminal tribunals have got the law wrong, or at least not as right as they could have. There are some, for example, who will criticize the International Criminal Tribunal for the former Yugoslavia (ICTY) for engaging in judge-made law, when reviewing the legality of its own creation or extending international crimes to noninternational armed conflicts based on a shaky concept of custom (Milanovic 2012). Another body of criticism targets international tribunals’ perceived lack of ‘efficiency’ (Meernik and King 2001). Tribunals come in for regular reproach for not doing enough of something, for example not having prosecuted enough individuals quickly enough. Finally, there is much policy criticism of various decisions by international criminal prosecutors, for example of going for prioritizing relatively ‘small fish’ in a way that does not seem to make sense of scarce resources or for relying on secondary sources for investigations (Stuart 2008).

This is, in other words, criticism aimed at making institutions of international criminal justice ‘the best that they can be’. This is the most internal, even intimate, type of criticism in that it pictures itself as a sort of adjunct of international criminal justice, much in the same way that doctrinal commentators have often thought of themselves in relation to the main body of legal developments. It typically takes the ‘big questions’ as answered and works from within the limitations that are more or less taken for granted and not even necessarily seen as problematic. It is a useful form of ‘accompaniment criticism’, a pragmatic engagement with the difficult exercise of making practice conform to ambitions, of wrestling with the world’s complexity and the challenge of any institution building. But to describe it as a critique in the deeper sense might be misleading, because of the way in which the criticism is so invested in being part of what it criticizes. It is often tempted by a managerial discourse in which certain typical policy prescriptions (‘the tribunals should ensure consistency’, ‘more efforts should be undertaken to outreach’, ‘the nullum crimen principle should be strictly adhered to’, ‘tribunals should be independent/impartial’) are suggested time and time again as the way to solve existing problems. Noticeably, such criticism engages in forms of discourse that are not fundamentally different from those of tribunals themselves.

At a more systemic level, one might highlight the existence of two strands of critique that evidence a clearer conceptual ambition: the realist and the liberal. There is, and has long been, to begin with, a realist critique of international criminal justice, both in law and international relations.¹ Even though that critique has in practice become much more muted when it comes to institutions like the International Criminal Court (ICC), it still often seems to act as an implicit reference point in many discussions about the court. The realist critique is part of a broader tradition of scepticism, particularly about international judicial institutions. It is typically sceptical that international criminal tribunals can be created at all; if they are created that they stand for the lofty ideals that they claim to stand for; and whether they are desirable at all. The deeper point that an international criminal law ‘cannot be said to exist’ in a world of states was made energetically for a long time (Schwarzenberger 1950). Although it is less convincing with the emergence of several international criminal tribunals, it does raise interesting questions about the nature of these tribunals that will be further discussed in this chapter. For example, some have argued that the ICC is essentially futile given how improbable it is that states likely to commit international crimes would become parties to the Rome Statute (Goldsmith 2003).² The normative argument on the undesirability of international criminal justice has been made by various realists. For Kissinger, writing on universal jurisdiction, international criminal justice introduces a dangerous moralizing element in international law, and risks interfering with the practice of diplomacy (Kissinger 2001). Although that argument is quite wedded to a conservative view of the world, it is interesting for the purposes of this chapter because of the way it more generally challenges international criminal justice’s implicit claim to a monopoly of international ethics.

Much more dominant than the realist critique and in part a response to it is a fairly popular liberal critique of international criminal justice. From early critiques of ‘victors’ justice’, to detailed concerns with almost every conceivable aspect of international criminal tribunals’ operation, the liberal critique of international criminal justice is very much alive. It is a critique that has targeted every facet of international criminal law: international, criminal procedural and criminal substantive. Internationally, the reproach has long been that international criminal justice is too wedded to political power and must be emancipated from it. International tribunals must be independent and impartial, as must those working for them; the preference is for permanent rather than ad hoc institutions. Procedurally, every conceivable critique has been levelled at international criminal tribunals from the days when the ICTY started hearing anonymous witnesses, to the failure of the tribunals to honour the highest evidentiary standards, through problems of representation, preventive detention, presumption of innocence, right to a trial within a reasonable delay, and so on. Substantively, there is by now a well-developed but nonetheless lively debate on the substantive justice of international criminal law, particularly focused on modes of imputation of responsibility.

This is an evidently necessary type of criticism and the temptation of thinking that international criminal tribunals will engage in liberal practices simply because they emerged from broadly liberal premises should be strongly resisted. In fact, there is every reason to believe that international criminal tribunals have been singularly illiberal in some instances, even though there is occasionally an element of holier-than-thou in some of the complaints against them that seems to idealize the functioning of domestic criminal justice. Yet precisely because it seems to adopt many of the same starting assumptions that the international criminal justice project at least explicitly endorses (Fichtelberg 2008), the strength of its critical thrust remains relatively limited. The liberal critique of international criminal justice is essentially a critique of international criminal tribunals not striving enough to be their liberal selves, of not ‘being more like themselves’ as they should be. It is typically, moreover, what one might call an optimistic or at least existentially serene critique (‘insightful (but) not structural’ as Mark Drumbl once put it) (Drumbl 2005: 1304) in that it does not point to anything fundamentally wrong with the project that cannot be fixed through continuous attention to rules and policies. Its attempt to pose as an external critique quickly collapses and makes it appear as little more than a principle-oriented version of the more pragmatic variant of criticism outlined earlier.

Together, the realist and liberal critiques have been very central historically to the development of the international criminal justice project. One might even argue that, in tandem, they have framed a range of acceptable critiques that may have made it harder for other critical traditions to manifest themselves. The sort of critical project this chapter is interested in is neither liberal nor realist. It is at a distance from the liberal critique because although it is not necessarily illiberal (in the sense, for example, that it would exhibit a Churchillian preference for war criminals being shot), and may certainly concede that international criminal trials may as well occur in ways that respect the rights of the accused, it considers that part of the problem of international criminal justice lies precisely in its excessive embeddedness within the liberal paradigm. It is at a distance from the realist critique because while it is quite willing to acknowledge that there is more to international criminal justice than the liberal tales that are spun about it and has some sympathy with the notion of the state as a bulwark against internationalist imperialism, it does not think that international judicial institutions’ constraining of sovereignty or nationhood is the most relevant or incisive critique to be made about the project. In contrast to realism, this chapter will consider that the power of institutions of international criminal justice is very real; in contrast to liberalism, it will consider that this power is not merely restrained but in fact also enabled by liberal rules.

So what is it that characterizes the particular project that this chapter seeks to examine? It may be that the common point is a particular tone, one that is best described as ambivalent, sceptical, or uneasy about some aspects of international criminal justice. It is therefore not as dismissive as the realist but certainly not as optimistic as the liberal. Where the latter sees novelty, progress, transcendence and better tomorrows, the critical project is likely to see repetition, stagnation, reproduction and ideology. The project is also less concerned than liberals with issues of legal consistency and predictability, and wary of what typically passes for positivism. It typically sees the problems with international criminal justice as not of the type that can be fixed by further attention to details, but that may go to the heart of some of the project’s premises. In other words, it tends to view the trouble with international criminal justice as inherent to the project itself, or at least running quite deep in the particular historical configuration within which international criminal justice has existed and continues to exist.

Critique is a project that exhibits a certain aesthetics of suspension. Although it does not shun normative judgment, it is critical of even its own normative judgment; although it does not shun action, it is wary of the normalized appetite for action; although it is not without beliefs, it spends a lot of time dealing with its sense of disbelief. The critical project is not, essentially, an alternative project understood as a fully developed anti-hegemony, and thus in a sense has nothing to ‘offer’ in the rather brutally limited se...

Table of contents

• Cover Page
• Halftitle Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on the editor and contributors
• Acknowledgements
• List of abbreviations
• Introduction
• PART I Critique as an agenda
• PART II The politics of international criminal law
• PART III International criminal legal histories revisited
• PART IV The visible and the invisible in international criminal law
• Epilogue : Bella. A love song for war
• Index