‘The Rise of International Criminal Law’

If you are interested in deep academic discussions of international law, international criminal law, their development and practice, the European Journal of International Law blog is having an online discussion of an article of mine, The Rise of International Criminal Law, featuring Amrita Kapur and Brad Roth.  (Highly theoretical and academic; not everyone’s cup of tea.)  Here’s a bit of my response, below the fold.

I have no idea what History will bring, and it is possible that the institutions of ICL will consolidate themselves into something resembling what Kapur offers. Or Isaiah, or Tennyson, for that matter, or even the worldwide ummah; others in the world also have eschatological visions. I do not think the historical evidence that it will consolidate itself in these ways is very persuasive at this point, but one can differ about its persuasiveness, of course. But given how long the history of failed attempts here, surely those arguing for today’s version of it ought to be willing to accept a bit more of the burden of proof that this one will succeed? Is that so much to ask?

Then there is ICL’s constant plea is for more time. Kapur says this again in her blog response; with respect to R2P, for example: “how much can we realistically expect this early in the reconceptualization process?” Give us more time, on this, on that – in a perhaps overly-accommodating desire not to prejudge historical outcomes, The Rise of International Criminal Law grants lots and lots of time for these institutions to prove themselves. Quite possibly more than it ought. As I tried to suggest (rather gently) in the original article, time turns into something like a universal solvent that, just so long as it is granted, permits the tensions inherent in all these international law and politics agendas to not have to confront each other and, possibly, spark each other to death, because it turns out that some of these projects are not reconcilable one with another, and the result is, what, Alien v Predator? (Or, to use a metaphor from my alternate finance professor life, ICL is in the business of rolling over the expectations – the expectations keep getting described as short term, and so it issues short term commercial paper, as it were, that on its face promises that ICL will do these many wonderful things, but as they don’t occur on schedule, it has to keep rolling them over and over and over.)

Time is what Kapur’s responses most seek. Well, okay, says my article – take your time. But in this reply, perhaps it bears asking, could we have some indication of how much time is too much? How much time must go by, without reaching the happy system of justice promised by ICL, when we are entitled to say, well, it didn’t work?

Surely there is some concern that that “time” is simply a way of forestalling accountability, a way of putting one’s institutions beyond falsifiability. What, even in principle, would demonstrate that the ICL approach to international justice is a mistake? What would represent a fair test? It seems odd that no one seems to raise this in scholarship in which, I would have thought, setting forth tests of success and failure would be an indication of confidence in the long term prospects of the project. Time is something that my article grants – but I hope it is not out of bounds to ask, when does the sense of ‘in time’ become ‘only in the fullness of time’ – which is to say, eschatological?

Maybe time will do its work and institutions will eventually draw close enough to satisfy my quite undemanding and pragmatic standards. The point is, however, maybe they will and maybe they won’t. I don’t think the evidence that they will is persuasive, and moreover I do think – speculatively, sure – that the rise of Asia, China above all, is likely to undermine these institutions. I think it is likely to show them to be a discourse of universalist superstructure built atop the structure of a loose American hegemony that, if it goes into decline, takes much of this stuff with it.

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