Amrita Kapur Responds to Anderson and Roth

This, over at EJILTalk!  Amrita responds to earlier posts by Brad Roth and me, in a discussion that started out around an EJIL article of mine, The Rise of International Criminal Law.  We all have since moved the discussion to a variety of things, and Amrita’s response is very interesting and worth reading in continuing those debates.

One of the questions I raised in my original article was the question of time – in effect, I wondered if the answer to most criticisms of the ICC and international tribunals generally was not to simply plead for “more time.”  I called it the “universal solvent” that served as the way of bridging the many problems and gaps.  Lying behind my suggestion, of course, was a further suggestion that the plea for more time simply turned into a form of forever postponing any accounting of success or failure.  I didn’t put this front and center in my article, but have increasingly found myself wondering what might count, even for those enthused about these processes, as criteria of success or failure.  I put that question in my last EJILTalk response, and to her great credit, Amrita has stepped up and given an answer:

Turning to Anderson’s post, I will briefly consider one central question he raises: when are we entitled to say the ICL justice project hasn’t worked? Given the systemic nature of international crimes, perhaps when it becomes clear deterrence has failed and large proportions of societies demonstrate they are as likely as ever to participate in such crimes? Perhaps when societies whose leaders have been prosecuted ‘relapse’ into a situation which sees the repetition of international crimes? Perhaps in a few years time, when other compelling humanitarian cases gain the attention only of the media and not of intervention forces, and R2P is no closer to being a norm? These are dire indications of failure, and perhaps this one question is worthy of a sustained discussion to generate more sensitive criteria.

I say great credit and mean it.  It is hard to find anywhere in the literature – if anyone has other sources, I welcome hearing about them – straightforward criteria for success or failure of the international tribunal justice enterprise.  We can, and should, debate whether Amrita has offered the right set.  But full marks from me for being willing to offer something straight-up.  She is right in saying that this question is worthy of a sustained discussion, so let me urge one here, at EJILTalk, and … everywhere.

In that spirit, let me open the invitation to our readers generally.  What are the criteria of success – but, much more importantly, in considering alternatives and when to entertain them, the criteria of failure for the ICC, for the international tribunal system, for ICL generally?  As Amrita correctly puts the question, when are we entitled to say that the ICL justice project hasn’t worked?  Again, we can argue as to the correct criteria of failure, and we can argue about when, even if we share common criteria, we should agree that criteria of failure have been met.  But it does seem to me a useful step forward to consider what those might be.  Conditions of normative falsifiability, etc.

(Note, however, that I have not addressed the response to Brad Roth in this discussion; it and Brad’s subtly argued position are worth reading, as it takes on both Amrita and me.  If Brad would like to weigh in on this, delighted to put something up.)

(Update:  Of course, I add that I’m open to the argument that framing the question as a matter of asking for criteria of success or failure misframes the enterprise.  I don’t think it does, but I’m open to the possibility.  And the process of arguing why there aren’t criteria of success or failure in a straightup way also sheds light on how one conceives of the whole project of ICL, so it is a useful discussion, I think, all on its own.)