EJILTalk Discussion of ‘The Rise of International Criminal Law’

In the category of advertisements for myself … Julian was kind enough to mention that EJILTalk is hosting a discussion of an article of mine called The Rise of International Criminal Law, which appeared in EJIL last year as part of its 20th anniversary issues.  It was a relatively short, but wide-ranging essay trying to assess, twenty years on, where ICL has gone and is likely to go, on a whole series of otherwise unrelated issues.  EJIL ran a response in the print edition by Amrita Kapur, and in addition responses at the online blog by her and by Brad Roth.  I have finally managed to get a response together, which is quite long and will run in three posts.  The other responses are linked at the beginning of that post, as well.  I have to thank publicly EJILTalk for running such a long response, which in many ways is practically a new essay – but especially Amrita Kapur and Brad Roth for reading so closely and with such nuance my original article.  I’m very grateful to them for so much close reading and thought.  Below the fold is a bit from my response.

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 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?  …

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.