09 Oct LJIL Symposium Vol 25-3: Introduction
[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]
This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.
Over the next few days, we are happy to bring you a discussion of two articles published in Volume 25-3 of the Leiden Journal of International Law, the first one a timely self-reflection on the practices of the community of international law and the second one an analysis of the “good deeds” of international criminal defendants and how they are and should be taken into account at the sentencing phase.
The first discussion has as a starting point the editorial by Jean d’Aspremont entitled Wording in International Law. In his piece, the editor in chief of the Leiden Journal invites us to “self-reflect” on the practices of an epistemic community (international lawyers, more specifically academics) which, among other things, engages in a competition for naming through “wordfare” techniques meant to artificially create singularity in order to advance careers, and all this in the context where the rationalist foundations of international law have been weakened and even shattered. Francesco Messineo, from the University of Kent and Michael Kearney, from the University of Sussex, have kindly accepted to comment on the editorial and engage with some of the difficult questions that were raised by it, such as identity of the epistemic community, the gender inequality in the field of international law, how negative this academic competition is and, relatedly, whether the semantic techniques that are used cannot be useful and necessary in a number of situations.
If one is to engage fully with the editorial, two additional points would need to be discussed, and I invite readers of this blog to react to them as well. First of all, methodologically, one can wonder if the epistemic community of international scholars can really be studied independently of other communities of international law, such as judges, practitioners and activists. Indeed, there is such porosity between those different communities, that the “wordfare” techniques rightly identified by Jean d’Aspremont have an influence way beyond the traditional output of academic scholarship. Professors become Judges and activists, and vice versa, when they do not combine all those functions at once. As a result, this competition necessarily overflows into international courtrooms, judgments and diplomatic circles and can therefore have considerably more far-reaching results than those pointed out in the editorial.
Second, and maybe more fundamentally, what is at the heart of the piece, beyond the social identity of scholars, is the definition of legal science and, to put it a little dramatically, the existence of Law itself. In this sense, I would not necessarily adhere to the shared enthusiasm of all comments, at various degrees, with the effects of Critical Legal Studies on the discipline and Jean d’Aspremont’s provocative conclusion that “we are all Crits”. Of course, the self-reflection that was brought by the Crits is welcome, but one has to wonder if there is not a point beyond which, if we all become Crits, we will cease to be lawyers because we will have sawn the branch we sit on. While this might be a welcome result for some, it is one that should be the conscious choice of the epistemic community of international law, rather than an unintended consequence of blind faith in CLS, a little bit like the ironic quip by French poet Sully Prudhomme: “we are standing on the edge of the cliff, let us walk forward with determination”.
The second article under discussion is entitled The Good Deeds of International Criminal Defendants, by Jean Galbraith. In this piece, the author identifies the inconsistencies in the case law of international tribunals, notably the ICTY and the ICTR, in considering the “good deeds” of defendants as mitigating circumstances in the sentencing phase, and proposes a test to be followed in the future in order to make consideration of such acts more coherent in the future. Mark Drumbl, from Washington and Lee University, and Margaret deGuzman, from Temple University, have kindly accepted to bring their own expertise to the discussion and comment on the article. They rightly point out the importance of this article in an academic scholarship where issues of sentencing are often not given the attention they deserve. At the heart of the discussion is the particular nature of international criminal justice, which deals with mass atrocities on a large scale and most of the time in an institutional setting far removed from the situation under consideration. In this context, by what standards is “just desert” to be determined? How can any deed compensate for the heinous nature of the crimes committed, considered to be those that “shock the conscience of humanity”, as proclaimed by the Preamble to the ICC Statute? Who is to decide what a defendant deserves, his victims or his international accusers? As a result, what lurks in the background is not so much the specificity of ICL, but its inadequacy in dealing with the situations it claims to be able to address. Indeed, if we are going to ask what can mitigate such crimes, one is necessarily led to ask what can be deemed adequate punishment for them in the first place or whether individual responsibility is a satisfactory tool at all to apprehend the profoundly collective nature of the acts?
The articles therefore raise fundamental issues and we hope the articles, and the comments that have been kindly submitted, will spark the debate they deserve. As usual, as you eagerly wait for the next symposium, we invite you to discover the other articles of the current volume of the Leiden Journal, which includes a symposium on the uses of Foucault in international law and an hommage to the late Antonio Cassese in the form of a fictional posthumous interview compiled by Guido Acquaviva.