Contemporary International Criminal Law After Critique Symposium: Visuality and Visibility in the Quest for New Critical Registers – Probing the Ecocide Aesthetic

[Daniel Bertram is a PhD candidate at the Department of Law, European University Institute.

George Hill holds an LLM from the Department of Law, European University Institute and currently works as a researcher in London.]

“International criminal law is dead, long live international criminal law!” There is an almost schizophrenic air to much contemporary discourse about the role of international criminal law (ICL) in world politics.

In the scholarly world of scientific journals, academic conferences and classroom debates, ICL has come to be viewed with suspicion. From prosecutorial choices to judicial reasoning, from international criminal tribunals’ internal routines to the politics of “donors’ justice”, almost every aspect of ICL’s increasingly consolidated institutional apparatus has been subjected to close critical scrutiny.

At the same time, and seemingly in a parallel universe, ICL continues its course largely unaffected by the academic side winds. Indeed, the field has recently acquired new momentum in the context of ongoing hostilities in Gaza, Ukraine, and Sudan. As the international community experiences an upsurge in conflicts, the language of ICL has become ever-present in conversations about accountability and punishment.

This painfully tangible disconnect between academic discourse and policy traction has not been lost on observers. As Barrie Sander and Michelle Burgis-Kasthala argue, there is widespread disillusionment with existing critical registers and their ostensible impotence. In fact, it is high time to ask whether the growing institutionalisation, canonisation, and normalisation of critical ICL has not undermined its subversive and transformative potential.

Against this backdrop, there is growing uncertainty as to whether and how the ICL project can be salvaged for emancipatory purposes at all. The current predicament forces us to ask ourselves how we – as teachers, researchers, and legal advisers – are to engage with the field in this “post-critical” moment.

These big-picture questions require intense debate and reflection, which we are delighted to see addressed in the diverse contributions to the present symposium. In this post, we would like to suggest one potential route out of ICL’s critical impasse – one that does not rely so much on concocting new theoretical innovations, but instead advances a new kind of scholarly sensitivity. In essence, we argue that scholars would do well to abandon the armchair and engage more closely with everyday efforts to mobilize, reconstruct, and re-imagine international criminal justice “from below”.

“The Critic is not the One Who Debunks, but the One Who Assembles”

In an enormously influential (and controversial) essay, the late Bruno Latour took aim at a common critical tradition focused on debunking false hopes, facts, and assumptions. The tendency to turn away from concrete manifestations and look to their underlying structures and conditions, he polemicized, impoverishes critical discourse. As an alternative, Latour proposed moving closer towards, rather than away from, the hybrid and complex practices, associations, and objects that constitute the “modes of existence” that make up our shared horizon.

While we do not mean to propose a wholesale application of Latour’s substantial oeuvre to ICL, we do see value in his epistemological posture – an attitude of empirical curiosity rather than a “hermeneutics of suspicion”, to use a phrase coined by Paul Ricoeur. This posture implies redirecting the analytical gaze to the sites of struggle where ICL is becoming (dis-)assembled, or in Anne Orford’s re-reading of Foucault’s genealogical methodology, “making visible those things that are already visible”.

This concept of visibility in ICL – and the praxis of making its central struggles visible – is a guiding theme to our contribution to a recent symposium in the Journal of International Criminal Justice (JICJ). What is called for in this post-critical moment, we argue, are methodological and conceptual experiments that centre the discursive and material embodiments of ICL common sense, as well as its contestation in various contexts. Abandoning  the search for deep structures requires a new appreciation of surface phenomena.

This approach is particularly fruitful when applied as a lens through which to view the movements and actors who seek to reconfigure ICL for their own ends. In following the tactics and strategies of those at the margins of ICL’s epistemic and professional community, it allows to pin down more precisely where, how, and why such efforts succeed or fail in challenging the status quo, both in discourse and in practice.

Visual Engagements with ICL

One promising ground on which to trial this empirical sensibility is the visual – ICL is, and has long been, a thoroughly visual discipline. One is quickly reminded of television broadcasts of the International Military Tribunal at Nuremberg – and their subsequent canonisation on the silver screen – as one of many visual touchstones for the discipline. Images translate abstract norms and principles into material representations and deploy a set of narrative resources in the process that is distinct from verbal and written discourse.

Yet, with few exceptions, scholarly histories (and critiques) of the discipline fail to recognise the visual form as part of ICL’s rhetoric and repertoire. We argue that there is value to taking the image seriously, not purely as a matter of historical record, but because studying ICL’s visual emissaries can shed light on the fundamental and clashing visions of justice that animate ICL’s key tensions.

Visual struggles over the meaning and purpose of ICL tie into, but remain analytically distinct from, critical narratives that take aim at the field’s unique aesthetic profile. As Randle DeFalco posits in his recent monograph, ICL is characterised by an atrocity trope that privileges the spectacular over the mundane, horrific eruptions of violence over creeping harm. This aesthetic bias presents obstacles for those seeking to bring alternative visions of harm into ICL’s scope.

Against this backdrop, our contribution to the JICJ special issue explores the visual expression and contestation of ICL’s hegemonic imaginaries, and in particular the construction of the “victim” as a central category of ICL discourse. Our analysis delves into ongoing attempts to inject ecological sensibilities into the dominant humanitarian logic of international criminal justice by codifying the crime of “ecocide” within the Rome Statute.

Deciphering Ecocide Imageries

The ecocide movement, spearheaded by the UK-registered charity Stop Ecocide International, is seeking to transform ICL’s traditional understanding of victimhood by opening the field to non-human and more-than-human forms of harm and suffering. The promise and pitfalls of this reform proposal have been extensively discussed in the pages of academic journals (for example, here and here) and in the international legal blogosphere (for example,  here and here).

While the ecocide proposal has already attracted criticism for replicating and reinforcing many of the problematic narratives and false hopes characterising ICL writ large, fewer commentators have ventured beyond the academic bubble to study how ecocide is communicated and represented in practice – and in public.

To bridge this gulf between academic scepticism and the representations and practices relied upon by grassroots advocates, we undertook a visual content analysis of 68 pictures posted by Stop Ecocide International on Twitter/X and Instagram. Our article explores how these images visualise and frame ecocide’s victims so as to transcend ICL’s human-centred aesthetic and activate a new set of emotional registers.

Our study highlights the difficulties and trade-offs involved in transforming the discipline’s aesthetic biases. Vying for the acceptance of a visually conservative discipline, ecocide imageries ultimately struggle to visualise slow environmental violence and the gradual erosion of ecosystems.  In this sense, visual efforts to support the creation of new categories of legally actionable harm and victimhood are constrained by the nature of the system within which they are embedded.

Our intention in undertaking this analysis, however, is not to dismiss advocates’ efforts as naïve and misguided, but to take a closer look at how structural factors are embodied in or partially reassembled through concrete struggles and visual projections. Moving closer to the lived realities of those grappling with the very meaning of international criminality in order to build a better ICL could serve to overcome the fatalistic tone and removed perspective of much critical discourse and kickstart conversations beyond the ivory tower with practitioners and advocates on the ground (see here for a similar argument by Paul O’Connell in relation to human rights).

Obviously, our limited and exploratory study is only a start, though it sits within a growing stream of studies that pay closer empirical attention to ICL’s lifeworlds. Indeed, ecocide imageries have recently experienced renewed traction in the context of Ukraine and Gaza, with forensic teams and visual analysts playing a key role in documenting and (re-)presenting the environmental harm wrecked by the two conflicts. These visual manifestations of environmental atrocity continue to challenge the near-exclusive humanitarian focus of the current system of international criminal justice. Attuning to the unfolding of such everyday struggles with the work and content of ICL could expand the scholarly imagination and perhaps even reinvigorate the discipline with a long-lost sense of hope and curiosity.