Amrita Kapur Responds to Anderson and Roth

by Kenneth Anderson

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.)

2 Responses

  1. Ken, didn’t you already answer this question in your original article?  I thought you did.  ICL to be more than a glass bead game must be administered.  By whom?  There are only two options: the ICC and like institutions, or the institutions of individual countries.  Whichever institutions administer it, the moral right to administer ICL must have been earned.  This is your central point, isn’t it?  It is one I happen to agree with.  You mention that referral to ICL is or might be a method by which the international community avoids military intervention.   But the “international community” has no military with which to intervene.  Only individual countries do.  For practical purposes, only the United States does. So the “international community” can never achieve the requisite moral right to administer.  And an individual nation’s (the US’s) military intervention will (it seems) universally be condemned by thte ROW (at least publicly) and therefore the US will never be acknowledged to have achieved that moral right.  Not only that, but no nation is going to contract out its military force so that such force is now the force of some “international community” organization.  So because of this, the ICC, an institution devoted to the administering of ICL, never will have the requisite moral right, and that will forever prevent its activities from being generally accepted by those states whose acceptance is critical–US, China, Russia etc.  Therefore not only has the ICL as currently attempted already failed, it never could not have failed.

  2. Ellis, You begin by emphasizing that the “moral right to administer ICL be earned.”  Then you switch to a discussion of the military capability to intervene, concluding that only the United States, and not the “international community,” has the power to intervene.  From this, you conclude that no international organization can gain the “requisite moral right.”  Putting aside my disagreement with the proposition that intervention or military pressure can’t by exerted by the “international community” (which I think is disproved by UN peacekeeping and international cooperation re the ICTY, ICTR, etc), I’m not sure why military might has anything to do with a moral right to administer ICL.

    Issues related to the distribution and exercise of power, including the ability of intl tribunals to enforce anything and the  apparent (but understandable) unwillingness of major states to subject themselves to the scrutiny of ICL, present major and perhaps insurmountable obstacles to the success of ICL, but they are obstacles in their own right, not because of their impact on any moral right to administer ICL.

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