1. Introduction
Since the end of the Cold War, societies from the former Soviet Union and others throughout Eastern Europe, Africa, Asia, and Latin America have overthrown dictators and other authoritative rulers in the hope of allowing democracy, the rule of law, and human rights.Footnote 1 In some cases, the change has been violent and drawn out, while in other cases the change has been quick and (more or less) non-violent. Regardless of whether the change has been violent or not, a crucial question during and after transition is: In what ways should post-authoritarian and/or post-conflict societies deal with their ‘evil’ past in order to ‘enable the state itself to [once again] function as a moral agent’?Footnote 2 This question constitutes the very core of what is known as ‘transitional justice’ (TJ).
By tradition, TJ has included various legal and moral components, which include international criminal law (ICL), memorialization, institutional reforms, truth commissions, and reparations, all of which can be used in various ways and combinations. ICL is thus only one component of the wider idea of TJ. In spite of this, ICL has gradually and with increasing intensity colonialized other mechanisms of TJ and today identifies itself as the primary discipline for such questions as the one above, and has consequently come to dominate the entire discipline of TJ. This development is described by Christine Schwöbel as a process of ‘inorganic growth’; that is, a particularly fast and ‘an aggressive merger and acquisition strategy [that focuses on] the exploitation of a series of new markets and/or the purchasing of access to new customers’.Footnote 3
The development of ICL does not take place in a vacuum and thus it becomes important to consider the context in which it really takes place. According to Martti Koskenniemi, the increasing usage of criminal prosecutions in TJ processes manifests a renewed urge to conceptualize international politics in terms of domestic categories. He writes:
The universalisation of the Rule of Law calls for the realisation of criminal responsibility in the international as in the domestic sphere. In the liberal image, there should be no outside-of-law: everyone, regardless of formal position, should be accountable for their deeds.Footnote 4
Hence, individual responsibility, ICL, and TJ are core ideas of the current ‘(neo)liberal project’ in general and universalization of the rule of law in particular.
In spite of the landmark event to establish the International Military Tribunal at Nuremberg (IMT) and the International Military Tribunal for the Far East (the Tokyo Tribunal) after the end of the Second World War, it was not until the early 1990s that we witnessed a paradigm shift regarding individual responsibility for various criminal acts. The underlying logic behind this legal doctrine, which challenges the idea of state sovereignty and state immunity, is, however, neatly expressed already by IMT, in one of its judgments:
[T]hat international law imposes duties on and liabilities on individuals as well as upon states has long been recognised . . . crimes against international law are committed by men, not by abstract entities, and only in punishing individuals who commit such crimes can provisions of international law be enforced.Footnote 5
Since the end of the Cold War, the ‘fight against impunity’ has been put in action by, inter alia, the establishment of the Yugoslavian and Rwandan war crimes tribunals in 1993 and 1994 respectively, the commencement of criminal procedures in several countries against former domestic or foreign political leaders, including the establishment of the Special Court for Sierra Leone (2002), the Extraordinary Chambers in the Courts of Cambodia (ECCC) (2003), the Special Tribunal for Lebanon (STL) (2007) and, not least, the formal establishment of the International Criminal Court (ICC) on 1 July 2002. These occurrences were of course no coincidence, but were made possible due to the end of the Cold War and, by consequence, the vanishing resistance against the ‘(neo-)liberal project’ in international society.
Given that the project is regarded as only fully ‘coming into its own’ at a time when the outcome of the clash between the two ideologies of the Cold War was finally decided upon, it is important to make clear that terms like global justice, TJ and ICL are not neutral terms, but terms aligned with the features of the ‘winning ideology’ – neo-liberalism.Footnote 6
Following the triumph and institutionalization described above, the field of ICL experienced a significant momentum in academic scholarship as well as in public debate.Footnote 7 Much of the contemporary discussion about ICL in academia is, however, rather limited and focuses more-or-less on the positive contribution of the regime to various projects of reconciliation and reconstruction, on peace, justice, legality, fighting impunity, and individual accountability. Criticism of international criminal law does indeed exist, but it is rather ‘problem-solving’ in character and focuses basically on ‘effectiveness’. If reconciliation and reconstruction is not achieved in, for example, Cambodia through tackling impunity, then there must be more accountability; if the ECCC is not functioning as well as it could, in what ways could it be made more effective?Footnote 8 Put simply, a problem-solving approach takes the world as it finds it and accepts the prevailing order as the given framework for action; the general aim is to make this order work smoothly by dealing effectively with particular sources of trouble.Footnote 9 This rather shallow criticism has contributed to the fostering of a field of ICL that is self-congratulatory, over-confident, and uncritical, which, by extension, has marginalized critique in a deeper sense. What is largely missing is any substantive engagement with various blind spots and complicities of TJ and ICL including issues such as ideology, imperialism, the struggle over memory, exclusion, injustice, and conflict. It is these, but also other blind spots of traditional ICL that critical ICL (CICL) and the book under review seeks to engage with.Footnote 10
2. A brief introduction to the volume
The interesting and much-needed volume contains no less than 14 contributions, including a somewhat odd epilogue, written by 13 authors who all participated in the inaugural Critical Approaches to ICL (CAICL) conference that was held in Liverpool in December 2013. Published in 2014, the book claims to be the first book dedicated to the topic of CAICL/CICL.
Together the chapters give a very good overview of the emerging project of CICL. They include not only the most pressing current debates in the field such as theoretical, empirical, and practical challenges, including the issues of injustice, conflict, exclusions, and selective responsibility, but also reflections on the ambivalence that follows from taking part in a project that is the subject of critique, the doubts of speaking on behalf of the subjugated or subaltern, and the anxiety of complicity and possible hypocrisy, which follows as a result of taking part in a project that seeks to understand ICL differently, and thereby involves doctrine and normativity.
The chapters in the book are organized in four parts that deal with (i) critique as an agenda; (ii) the politics of ICL; (iii) the history of criminal legal histories; and (iv) the visible and invisible in ICL.
A more general and somewhat elaborated discussion on what is to be found behind the label CICL will now be presented. This will be followed by a more detailed presentation of each part and chapter.
3. Critical international criminal law
What does it really mean to be critical in a deeper sense in the context of ICL? Critical judgment is, according to Panu Mikkinen, a kind of generic research skill that all scholars are supposed to be able to apply in their own research. Critical analysis is, however, something more than this; it is about being able to apply a more radical and focused perspective to the matter at hand.Footnote 11 It goes beyond criticism of the effectiveness of ICL that is typically expressed as lessons learned and with the ultimate goal of seeking to fix or improve; instead it seeks to question biases and inequalities of ICL. The former position can, following Immi Tallgren, be labelled ‘criticism’ and the latter ‘critique’.
For criticism, the main problems are to be found in insufficient means or deficient legal rules to provide trials and punishment, or simply poor institutional performance.Footnote 12 For critique, the issues at stake are instead the very foundation, the context – including economic, political, and social conditions – and the limitations of ICL. It stands apart from the prevailing order and asks how that order came about; it does not take institutions or social and power relations for granted but calls them into question regarding their origins and, by extension, whose interests are being served by maintaining them.Footnote 13 CICL is thus a ‘meta-critique’ of the field itself that focuses particularly on what is taken for granted, including underlying assumptions, ontology, epistemology, and axiology.Footnote 14 Tallgren's distinction between criticism and critique is useful and will be employed in this essay. It should be noted, however, that the adjective ‘critical’, the adverb ‘critically’, and the noun ‘critic’ are used generally.Footnote 15
According to Christian Reus-Smit, a ‘body of critical international legal theory emerged to challenge the inherent liberalism of modern international legal thought’ in the 1980s. Advocates of the approach argued that ‘liberalism is stultifying inter- national legal theory, pushing it between the equally barren extremes of “apology” – the rationalization of established sovereign order – and “utopia” – the naive imagining that international law can civilize the world of states’.Footnote 16
Scholars who are critical of liberal legal theory emphasize at least four proposals, namely that (i) liberal international law is internally incoherent, among other things, regarding the existence of universal values; (ii) the approach operates within a too narrow intellectual discourse, limited by the liberal ideology as such and accepted public international legal argument.Footnote 17 (‘[T]raditional international legal argument must be understood as a recurring self-referential search for origins, authority, and coherence’);Footnote 18 (iii) the purported determinacy of liberal international law is false and that it is, by extension, not possible to ‘find the law’, as any international legal doctrine can justify not only multiple but also competing legal outcomes; and (iv) international law can only ever be self-validating.Footnote 19 To summarize, critical legal scholars understand mainstream international law as ideology.
CICL is undoubtedly associated with critical studies in general and critical international law in particular, but it is also associated with ‘new approaches to inter- national law’, ‘third world approaches to international law’, and ‘feminist international law’, as well as other similar critical legal theory traditions and movements.Footnote 20 Yet, Schwöbel highlights:
[CICL] is also distinct from these traditions, not only in regard to its subject matter. The named critical traditions all employ the . . . technique of assumptions in regard to legal claims . . . They share the idea that within legal claims are embedded moral, epistemological and empirical assumptions; and they share the aim of examining these assumptions in terms of how they operate in the specific setting in which these legal claim is made, particularly to expose the interest of a stakeholder – While the literature and tradition drawn on is inspired by the critical traditions in international law and law in general, these traditions should neither be viewed as having authoritative power on determining what is critical, nor be viewed as setting the agenda for a critique of [ICL, since] . . . “[c]ritical genealogies are likely to have their own empty spaces and silences”. Undoubtedly, the unearthing of the assumptions on which the practices that we accept rest, brings the question of the role of law itself to the fore. Yet if we (as those associating with [CICL]) allow the object of critique to be determined through a general critique of law and society, we may miss important sites of critique which are particular to [ICL], and we may also miss the possibilities which lie within [ICL] . . . I would like to suggest that what makes it worthwhile is that there are possibilities within [ICL]: opportunities for justice – Such commitment is [however] tremendously difficult, particularly since it takes one down the slippery terrain of doctrine and normativity, and ultimately (maybe) hypocrisy and complicity. Yet a “critical approach” is and should also be a political project; political here refers to decisions concerning the allocation of available goods and opportunities. This suggests that the testing of assumptions . . . therefore [is] the first step rather than the destination.Footnote 21
What unifies the contributions of this volume is thus, among other things: the understanding of law as ideology, a suspicion of official and popular historical narratives, and self-consciousness about the employment of a critical approach. The critical project is multi-disciplinary, and besides drawing from (mainstream) international law and ICL, it also draws from philosophy, political theory, criminology, anthropology, and other social sciences. By consequence, the project also applies different methods besides just doctrinal law, methods such as hermeneutics, ethnography, and discourse analysis. In spite of this diversity, it could be argued that there is already a small canon of CICL literature, which includes various works by Hannah Arendt, Michel Foucault, David Kennedy, Martti Koskenniemi, and Judith Shklar, just to mention a few.Footnote 22
Mainstream ICL has in general a positivist focus on decisions and judgments while sidestepping critical engagement in a deeper sense, which is often left to other disciplines, such as anthropology, peace and conflict studies, political science, and (more recently) resistance studies (RS).Footnote 23 CICL widens the field of ICL and makes it richer by bringing in earlier external critique of the field, thereby, allowing a substantive engagement with earlier blind spots and complicities of ICL. The critique is immanent and the ultimate motivation or ‘knowledge interest’ of all critical research is, according to Jürgen Habermas, ‘emancipatory’.Footnote 24 To further illustrate this point:
Critical work [does not seek to evaluate] international criminal law in terms of success and failure, but instead asks about underlying presumptions and conditions of possibility. For some critics this translates into a project of developing a more just legal field . . . to improve from within, “through a sustained process of critique and reflection”.Footnote 25
CICL draws on already existing work inside and outside the field of ICL and, as indicated above, the CICL scholars are both identifying with and distinguishing from the movement being critiqued. This intellectual position is somewhat awkward and given the tremendous success of ICL over recent decades, critique is also still largely unpopular and is ‘prompting the suspicion that those practising critique were somehow endorsing mass atrocities’.Footnote 26 All in all, the task of CICL is a somewhat unrewarding and misunderstood intellectual undertaking.
4. Critique as an agenda
Part I of the volume contains four different papers that examine, on the one hand, the need for critique and, on the other hand, the agenda of critique in ICL. Frédéric Mégret begins the section by outlining ‘the broad contours of what might be described as a critical project in international criminal justice’.Footnote 27 In Chapter 1, he analyses ten critical motifs and outlines, the critical charge, the liberal response, the question of a critical project as well as further directions by rethinking international criminal justice. The overall aim is to understand ICL, more specifically to understand understanding or understanding ‘the relation of knowledge to power such that our epistemological certainties turn out to support a way of structuring the world that forecloses alternative possibilities of ordering’.Footnote 28
Another argument put forward in the chapter is the problem of fragmentation and that a lot could be gained by weaving different strands of critique together, in order to construct a more comprehensive and compelling critique. In this rich chapter, Mégret also presents some thoughts on the tensions of, on the one hand, irrelevance of the critique and, on the other hand, the absorption of it by focusing on how one could uphold a critical distance without losing the desire for change. The aim of critique is ultimately to simultaneously safeguard radicality and real-world relevance. On an overall level:
the critiques should harass the discipline whenever it is engaging in hubris: infiltrate its lines to destabilize defensive certainties; instil fear where it becomes hegemonic; use the arms of the powerful against it when it can, and unconventional tactics when it must; and retreat and regroup when it has little to contribute to the debate save its own uncertainties.Footnote 29
Hence, CICL is about challenging the balance of international criminal justice, exposing contradictions, increasing anxiety, and situating it within a larger spectrum of possibilities. Important to remember, however, is that being too radical is to locate oneself to the margins of academia and thereby running the risk of being irrelevant.
Perhaps the most potent critique of international criminal justice, Mégret argues, is the one that does not dogmatically focus on shortcomings, but rather seeks to draw attention away from international criminal justice altogether by opening new fronts, which distance it from what it criticizes. This would be a critique based on doing rather than simply thinking, on practices rather than theory, of opening new frontiers in ways that resist the disciplinary power, for example as an international criminal lawyer.Footnote 30
The second chapter in this section, written by Sara Kendall, focuses on critique as an ethical orientation for addressing ICL by directing the critical lens to the ICC, one of the field's key institutional sites. She focus on the principal issue of who and what is included and excluded in the field of international criminal justice; particularly on those who have suffered but still fall outside the institutional frameworks of compensations. By referring to Michel Foucault, Kendall argues that juridical forms often reject or obliterate the role of power in speaking the language of rights and, by extension, that humanity is not liberated through the juridical, but is rather subjected to new forms of power. Put differently, ‘[i]nternational criminal courts work as ‘transnational apparatuses of governmentality’ and by this ‘[l]aw becomes another contested forum of power and resistance’.Footnote 31 The study of power, not to mention the study of resistance is, however, more or less excluded from scholarly writing within the field and, as we now know, very much left to other disciplines.
During his course of writing, Foucault's analysis of power addressed its juridical forms, and the traditional model of centralized power based upon a sovereign; but also more diffuse expressions of power, which he labelled governmentality (the conduct of conduct), biopower (directed at the level of population), and discipline (directed at the body). Without ignoring more juridical or sovereign forms of power, Foucault, in his later works, sought to map the dynamics of power ‘at the extreme points of its exercise, where it is always less legal in character’.Footnote 32 It is this more ‘complex’ and ‘multi-faceted’ understanding of power that Kendall applies in her analysis of the dynamics at work in ICC situation-countries, in which it is not always (or only) the court in the Hague that decides what should be given priority in ‘the field’.Footnote 33 It is important to note, as indicated by Kendall, that the potential of a Foucauldian approach to the study of ICL goes far beyond what is illustrated in her chapter.
Chapter 3, written by Tallgren, is devoted to seeking to understand those who dare to critically approach the field of ICL, which, according to the official narrative, stands for the survival of mankind, justice, and peace, from a critical perspective. After discussing the rhetoric and doctrinal ‘we-talk’ in ICL briefly, she turns her focus to the questions: ‘are there critical voices separate from the “ICL we” up to a point forming a “critical we”? If so, where do the voices of the “critical we” emanate from and what do they say’.Footnote 34 In responding to these questions, Tallgren positions them in time, space, and discourses of the field and tentatively identifies the ‘critic's zone of comfort’ and the ‘shady backyard of unease’.Footnote 35 In contrast to the ‘mainstream we’ in ICL, which is most often in relation to a higher entity, such as ‘humanity’, the ‘critical we’ could be said to be about understanding themselves and what they are doing in the following way:
Our work aims at destabilizing traditional conceptions of law and challenging existing institutions, often by way of a search for hidden interests, class domination and repetition of historical patterns of power behind them. We are sensitive to identities and identification in law and by law and the inclusions and exclusions, oppression and suppression they may entail. We are open to experimental methods and our approach is often interdisciplinary. We are tolerant of differences in tone and styles of research and commentary.Footnote 36
Hence, the ‘critical we’, in contrast to the ‘mainstream we’, seems to have the capacity of being power neutral, sincere, and egalitarian, not to say, simply correct. Tallgren, who is a member of the ‘critical we’, throughout her text articulates a healthy and absolutely necessary discomfort with this description as well as the assumptions that underlie it and raises a number of interesting and important questions such as:
Should critics be constructive and, if yes, what should they construct and why? Do critics have agendas, and can they take political responsibility? . . . [h]ow to stretch out from the ‘ornamental structure’ . . . of law and its institutions, their reforms, their exciting labyrinths of ownership and expertise? [In essence:] [h]ow to open the windows of mausoleums, be more tolerant about one's own church and those of other?Footnote 37
In Chapter 4, Michelle Farell digs deeper into the issue of where the ‘critic’ stands in relation to the ‘critique’. To what extent are the two concepts participating in the reproduction of the structures that they seek to move beyond? Is it at all possible to practice critique without participation? Another important issue elaborated in the chapter is the one of exclusion. Put differently, how are the critics and, by extension, on behalf of whom are they speaking? In addition, Farrell also provokes a critical question of great relevance for everyone participating in the critical project in ICL, namely: ‘Does practising critique itself create suffering?’Footnote 38
Chapters 3 and 4 offer more questions than answers. In spite of this, together with the other contributions in this part, they successfully constitute some sort of loose theoretical framework or, perhaps more correctly, an abat-voix for the remainder of the volume.
5. The politics of international criminal law
The second part of the book engages with the politics of international law and does so with the explicit objective of seeking to do more than simply stating that ICL is political. Opening this section is Tor Krever, who in Chapter 5 enquires if the statement ‘international criminal law is political’ is in fact used as a façade that seeks to silence various forms of critique and, by extension, prevents further discussions into the deeper political meaning of a criminal trial. He then discusses how we talk about politics in the context of ICL, what we mean when we say that trials are political, what ideas structure the debate, what is taken for granted and reproduced, what is lost from sight and, ultimately, what is at stake.Footnote 39 On an overall level, Krever displays that the critique of the political nature of ICL assumes that the entire enterprise not only can, but also should be non-political and, by this, contributes to the reproduction of the idea of an impartial trial, and, by extension, that ICL is neutral.Footnote 40
The second chapter in this section is more hands-on and contains an application of the critique of depoliticization to the STL, in particular the so-called Ayyash decisions. The appeals chambers of the STL held, in line with the trial chamber before it, that it did not had the competence of reviewing various UN SC resolutions and, by this refused to review the establishment of the Court itself. More concretely, Heidi Matthews, in this chapter aims to clarify the stakes of depoliticization by mapping the concrete impact of the Ayyash decisions on the sites of, as well as the participants and modes of participation in, the politics of global governance.Footnote 41 In order to do so, she uses the legal theory of Carl Schmitt as a lens through which it becomes possible to articulate how the space ‘between impunity and show trials’ could appear.Footnote 42
In the chapter Matthews does not only display that the refusal of the court is used as a technique by which it seeks to formally maintain the ‘illusion’ that it is possible to distinguish between law and politics, but also the more general need for understanding international criminal courts as part of a system that provides many different spaces in which ‘the politics of the exception’ can be argued. By way of conclusion, the aim of ICL is not just to judge, but also to govern according to a neo-liberal view of global governance.Footnote 43
6. International criminal legal histories revisited
The papers in Part III of the volume revisit the mainstream history of ICL with a ‘critical eye’. Chapter 7 examines the kinds of narratives that are being created in international criminal courts. Gerry Simpson argues that these histories are constructed in moments of institutional decision and are, important in establishing how we might think of, for example, geopolitical trends, national struggle, or the very meaning of the ‘international’ – partly because the courts occupy a space of authorized history, and partly because the courts have been successful in convincing people that they have (unique) access to objective or expert history. It is about fixing contemporary history; and history is not only political but has also become increasingly judicialized.Footnote 44
Historical narratives that are individualized – so-called ‘Great Man’ theories of history – are, Simpson writes, privileged over structural histories; linear over fragmentary or chaotic histories as well as hegemonic histories that celebrates agency over counter-hegemonic, social, accounts.Footnote 45 What is largely missing from the history produced by international criminal justice is, inter alia, imperialism, colonialism, intervention, economic ruthlessness, the manipulation of local elites, and the engagements in proxy war. This is of course interesting, since every discipline is ‘constituted by what it forbids its practitioners to do’.Footnote 46
In the following chapter, Emily Haslam, picks up some of the biases identified by Simpson, characterizing them as ‘silences’ in the way by which narratives of the discipline are constructed. She argues that popular historical accounts gloss over questions such as the role African agency in the development of ICL and the relationship between ICL and European colonialism. Using the example of a nineteenth-century slave-trader to demonstrate the multifaceted and complex histories of abolition, Haslam argues that writing abolition litigation into ICL can actually transform dominant progressive and linear interpretations of the rights of victims in ICL into a much more complex interpretation of potential continuities and ruptures.Footnote 47
In Chapter 9, Grietje Baars examines the ways in which lawyers solidify capitalism through the production of knowledge – in particular ICL knowledge. Departing from a typology of four mainstream approaches of ICL's foundational narrative – the humanitarian, the institutional, the positivist, and the pragmatist perspective – she evokes possible sites of critique that are trapped within these approaches.Footnote 48 These ‘pre-fab’ critiques, Baars argues, foreclose more fundamental critique – critique that reaches beyond the mainstream narratives and exposes the function of ICL in the neo-liberal governance and capitalist mode of production that dominates current international society. The ‘pre-fab’ critiques do not put into question whether ICL is a good thing or not, but rather focus on the ways in which it can be improved, implemented, and promoted. In opposition to these constructive critics, the critical scholar should, Baars argues, generate radical and transformative critique. Critical knowledge should be used to aid in ‘dissolving’ ICL knowledge and form part of a broader effort to resist the current neo-liberal hegemony. The starting point to fulfil this mission is to challenge the hegemonic knowledge of ICL by asking what it is and what it is for; by departing from this, the story of the field can be re-written.Footnote 49
7. The visible and the invisible in international criminal law
The fourth and final part uses some of the earlier identified themes of the politics of ICL and the discipline's accepted history in order to reflect upon ICL in general. Chapter 10 puts into question the individualism of the neo-liberal ICL project; in particular the concerns of some African states. Christopher Gevers then discuss the centrality of individualism in regard to the discipline's narratives, purpose(s), and ‘performance’, and then contextualizes each of these aspects through an ‘African’ perspective. In the chapter, he displays at least three ways in which the ‘politics of individualism’ blunts, misreads, distorts, and dismisses African states’ concerns about the entire international criminal justice project. First, individualization renders incomplete representations of conflicts and responsibility by leaving intact the political, moral, and organizational structures that are required conditions of various crimes; for example, incomplete representation can be constructed by excluding the role of economic reforms, geographical factors, political instability, and social marginalization, as well as colonial borders and institutions – not to mention corruption, money laundering, financing mercenarism, and the illegal exploitation of natural resources – which are all matters that are highly relevant from an African viewpoint. Second, due to the extent that ICL aims to construct a historical account of modern mass atrocities the excluded histories are not only sidelined, but hidden. The universal claims of ICL foster a totalizing history and, by consequence, crimes not prosecuted have not happened. Finally, and perhaps the most obvious, mainstream narratives are most often written in accordance with political requirements of the ‘Great Powers’, which end up being very biased, not to say wrong.Footnote 50
In Chapter 11, Michelle Burgis-Kasthala problematizes the field of ICL through the lens of the establishment of the STL. The chapter discusses how and why the killing of Rafiq Hariri, Lebanon's former Prime Minister, needed the establishment of an international court.Footnote 51 Responding to this question, she suggests that inter- nationalization, depoliticization, and naturalization, are used since the international law narrative makes it possible to transform political events and, by this, is able to make some things visible while and others remain invisible.Footnote 52
In the final chapter, the editor of the volume sets out to unveil the underlying neo-liberal logic of ICL, which, more or less implicitly, is referred to in the other chapters. Her point of departure is as follows:
Neoliberalism has, in short, become hegemonic as a mode of discourse. It has pervasive effects on ways of thought to the point where it has become incorporated to the common sense way many of us interpret, live in, and understand the world.Footnote 53
Schwöbel then argues that the field is committed not only to ‘growth’ (its ‘market culture’) but also ‘branding’ (its ‘marketing culture’). She draws parallels between the capitalist logic and ICL. According to this logic, a product is first branded and then marketed. The branding is about creating a unique name and image for a particular product. The attributes of the product, in this case ICL, are the promise to have ‘the ability to fight impunity in order to achieve global justice’. Marketing is about selling the product: if recognized as the tool for fighting impunity and pursuing global justice, ICL will bring certain benefits.Footnote 54
In terms of branding, she displays the way in which the field of ICL has placed uncalled-for emphasis on form and image over substance. Schwöbel argues that one serious consequence of the commitment to neo-liberalism is the paradox that the discipline contributes to by strengthening big power-players, while simultaneously claiming to fight them. Another serious and interlinked consequence that follows from this commitment is that the very group in whose interest the fight is evidently to be fought – that is, the victims of trauma and crimes – is seemingly losing out.
The book ends with a poem by Johannes C. S. Frank. The epilogue not only echoes several of the themes explored in this timely, comprehensive, much needed and truly inspiring volume, but also provides the reader with an alternative means for entering into critique.
8. ‘Critic’ rather than critique: accepting the invitation to dialogue
For those who have read this far, it can hardly come as a surprise that I am highly sympathetic to the book as a whole. On the downside, however, it should be mentioned that the content, despite its high level of ambition and richness, is somewhat overwhelming, occasionally difficult, theoretical, and puzzling, in particular for readers who are not familiar with critical theory in general and CICL in particular, its position in the field as well as its relation to the exclusions of mainstream ICL. Put differently, for those who are not already somehow involved with CICL, the volume may be somewhat hard to digest. This inaccessibility is further strengthened by the lack of more thorough introductions to the four parts, as well as the lack of a convincing argument on how the different sections and chapters relate to one another. In addition, some of the chapters overlap and reinforce the impression that the volume would have benefitted from a more stringent selection process and a clearer and more thorough edit. The quality of the chapters is somewhat uneven and the volume lacks a final chapter that brings together the many contributions. As interesting as Schwöbel's final chapter is, it does not do this. This criticism could, however, be applied to more or less any edited volume and does not in any way change my overall positive impression of the book.
Trying to criticize the volume more deeply by identifying various blind spots, biases, and other shortcomings, is complicated for different reasons. A first problem concerns the position whence such critique is written. Is it possible to criticize the critique without being conservative? I think it is. The simple solution would be to put forward a critique that basically argues that the critique presented by CICL is not radical enough, that it is revisionist, etc. – or, put differently, to launch ‘an attack from the left’.
Another problem is the fact that no matter what one thinks of the CICL project as such, it is beyond reasonable doubt that it has an important role to play in the field of ICL – at least as a catalyst that contributes to move the field beyond over-simplification and self-righteousness. By this, CICL in general and the book under review in particular become useful not only for those who are already convinced, but also for others.
The CICL project represents a relatively marginal phenomenon in ICL today and to be able to exercise the function of a catalyst, not to mention being able to understand differently, there is lot to be gained, as argued by Mégret, by avoiding further fragmentation and instead focusing on ‘constructing’ a more comprehensive and compelling critique – a critique that is self-reflective, well-balanced and relevant, and possibly constructive. Foucault writes:
A critique is not a matter of saying that things are not right as they are. It is a matter of pointing out what kinds of assumptions, what kinds of familiar, unchallenged, unconsidered modes of thought the practices that we accept rest.Footnote 55
And, as put forward by Schwöbel, the (ultimate) reason for criticizing ICL is ultimately that it holds possibilities: ‘opportunities for justice’; to criticize is a first necessary step to being able to construct a more just ICL. Critique as an end in itself should be avoided.
The various contributors to the book clearly and transparently present their underlying assumptions and points of departures, and as a whole the volume gives a good view from where the CICL project departs and what interest of knowledge it advocates. Hence, to further try to uncover this would be to embark open doors.
In the last section of the introductory chapter, Schwöbel emphasizes that the volume she has edited is an ‘introduction’ to CICL and, by consequence, does not cover all possible themes of the project. She also writes that the contributors to the volume not only welcome and look forward to further engagements with the themes introduced in the volume, but also invite further forms of intervention. Thanks to this inclusive and dialogue-orientated approach, some potential critiques overshoot the mark.
I find the inclusive approach not only sympathetic but also challenging and will accordingly (instead of contributing to further fragmentation of the CICL project) accept it and use the remainder of this essay to use CICL as a forum, not only to speak in and from, but also to. In more detail, I will introduce CICL to two further themes, which I believe could contribute to constructing a more comprehensive critique of ICL.
First, I will introduce CICL to the rapidly growing field of RS, which can simply be said to have evolved in close relation to Foucault's studies of power and differs from critical theory in general and CICL in particular by focusing on strategy and practice rather than theory and understanding, Second, I will move in an even more practical and activist direction, away from simply thinking to doing critique, and introduce CICL to the ‘strategy of legal rupture’, which is a criminal defence strategy closely associated with the late French defence lawyer Jacques Vergès.
Over the last decades, the concept of ‘resistance’ has gained considerable momentum as a tool for critically exploring various practices of the subaltern in relation to power. Slavoj Žižek even goes so far as to argue that the hegemonic attitude in the social sciences of today is that of ‘resistance’; he writes:
all poetics of the dispersed marginal sexual, ethnic, lifestyle, ‘multitudes’ (gay, the mental ill, prisoners . . .) ‘resisting’ the mysterious central (capitalized) Power. Everyone resist – from gays and lesbians to Rightist survivalists – so why not draw the logic conclusion that this discourse of ‘resistance’ is the norm today . . .?Footnote 56
In spite of this rising popularity, not a lot of work that engages with the concept of ‘resistance’ per se in the social sciences or the scientific study of law exists, and the work that does exist is not very clear.Footnote 57 This general observation is particularly true regarding the field of TJ, not to mention the field of ICL. In here lies a deep paradox, since resistance has proved to play an important role in social change in general and processes of transition in particular and, by extension, the fact that ICL plays a central, not to say dominating, role within TJ.
As highlighted by Kendall in the volume under review, Michel Foucault has added substantially to the discussion of power. He sees power as a complex network where everyone can exercise power over all. Today, mainly due to processes of globalization, power lacks conspirators and permeates society on all levels. It is manifested in the tools, techniques, and procedures that are used to influence different beliefs, the agenda and various practices. The agenda-setting power and hereby the controlling of the discourse includes mechanisms of exclusion, ignorance, stultification, and silencing, as well as various ideological, organizational but also physical norms and rules that decide what is and is not possible.Footnote 58
Power can, however, not exist without resistance; power and resistance co-constitute one another. Foucault writes:
[In] order for power relations to come into play, there must be at least a certain degree of freedom on both sides . . .[If] there were no possibility of resistance (of violent resistance, flight, deception, strategies capable of reversing the situation), there would be no power relations at all.Footnote 59
While Foucault made a paradigmatic turn regarding the understanding of power, he is less helpful in understanding resistance. In Foucault's own writing as well as in most works by his followers, the subaltern is almost totally silent and invisible. From such an understanding of the subjugated follows a problematic and incorrect understanding of the subaltern as a passive victim – a mere product of the powerful play of domination.Footnote 60 A necessary first step in correcting this mistake is to conceptually distinguish between resistance and power; not at least in order to be able to analytically elaborate on the links between resistance and power as well as other related concepts. If not, systematic empirical research becomes difficult.
Even though resistance comes in many forms, in different contexts, and with different goals, RS is, as indicated previously, chiefly about studying various practices that are performed by agents in opposition to a distinct decision-maker, to a discourse or field. Regardless of type, resistance almost always exists in relation to power and the type of power affects what type of resistance, as well as the effectiveness of various resistance practices: violent/non-violent, open/hidden, organized/individual, conscious/unconscious.
Power is, however, not only about the ability to influence a decision in a particular direction but also, for example, to determine what can be discussed and what cannot, which questions should prioritized, marginalized, and silenced. This latter power is what could be labelled ‘agenda-setting’ or ‘discursive’ power. Footnote 61
Taking this into consideration, ‘resistance’ can analytically be understood as a response to power from below, a subaltern practice that could challenge, negotiate, and undermine power, or such a practice performed on behalf of and/or in solidarity with a subaltern (proxy resistance).
The exercise of power varies, takes different forms, and is developed in specific contexts. The dynamic qualities of power, the new expressions of power, resistance, and social change are interconnected, and power can thus not be studied in isolation. The overall conclusion to be drawn from this rather short discussion on the concept of resistance and RS, is that the approach promises to be a useful companion to other critical approaches, including CICL, in particular if we as scholars want to ‘understand understanding’ and, by extension, the dynamics of social change.
One important dimension of power that affects resistance is the habit of seeing discourses or fields as given by nature and, by extension, understanding existing power relations as natural. In order to reveal the false fixation of discourses or fields and to demonstrate the potential for social change ‘deconstruction’ is a useful tool. An individual who has contributed to the criticism and deconstruction of ICL in a more practical and transformative way than discussed so far (moving beyond theoretical critique, the understanding of the interconnectedness between power and resistance, and the significance of the agency of the subaltern – or someone acting on behalf of the subjugated – by actively preforming resistance in various international criminal trials) is Vergès – a (legal) activist who took Karl Marx's famous words, ‘|t]he philosophers have only interpreted the world in various ways: the point, however, is to change it’, seriously and has combined theory with practice, deconstruction with action. By this, Vergés critique opens new frontiers by resisting the disciplinary power of ICL.
Besides being well known for having defended various high-profile clients, including the FLN activist Djamila Bouhired, SS officer Klaus Barbie, and former head of state in Democratic Kampuchea, Khieu Samphan, Vergés is also famous for being the theorist behind the ‘strategy of rupture’ – a criminal defence strategy ‘conducted entirely as an attack on the system represented by the prosecution case’.Footnote 62 In contrast to the ‘strategy of connivance’, which primarily seeks to put various facts into question by putting forward extenuating circumstances and searching for as mild a judgment as possible, the strategy of rupture starts from the perspective of ‘differend’; a concept closely associated with French philosopher Jean-François Lyotard.Footnote 63
When large political events are at stake in a trial, it will, by necessity, involve interpretations of the context, which are exactly what is disputed in the individual actions that are the object of the trial. To accept this, the terms in which the trial is performed – who should be the defendant and for what deeds, etc. – ‘is already [this] to accept one interpretation of the context among those between which the political struggle has been waged’ and, by extension, acknowledging legitimacy.Footnote 64
A case of differend between two parties takes place when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.Footnote 65
The strategy of rupture thus departs from the assumption that there are at least two incompatible frameworks or contexts. However, Lyotard continues, ‘[o]ne side's legitimacy does not imply the other's lack of legitimacy’.Footnote 66 In everyday life, several interpretations can coexist, more or less without problems. This is, however, not possible in a trial; it is necessary to choose and to decide on one interpretation. The chosen interpretation constitutes the very framework or context of the trial.
One possibility to resist the chosen framework is to argue in favour of a consistent application of the existing framework. The underlying idea here is that a legitimate legal order needs to fulfil at least three requirements: (i) legal equality; (ii) legal unity, and (iii) legal certainty. If it fails in any, some, or all of these requirements, the legitimacy of the legal order will decline or diminish.Footnote 67 Of great importance then is identifing and displaying violations of existing principles that show they are applied selectively or inappropriately in any other way, but also, by extension, to show that the prosecutor(s) and judges are biased and that the legal order therefore can neither be just, nor legitimate – ‘if justice is selective, it is not justice at all’.Footnote 68
When the legal system is undermined by the identification and exploitation of contradictions, the defence can reverse the legal process and turn the defence into an attack against the legal system and the interests that it serves. Hence, the strategy of legal rupture is critical theory put into practice. The strategy of legal rupture uses the arms of the powerful against the powerful (in unconventional ways). It is to use law as a means of resistance, to resist ICL, TJ, and, by extension, the entire project of neo-liberal global governance
9. Conclusion
Schwöbel and the other authors have made a very valuable contribution to the further development of ICL in general and CICL in particular. The editor is very conscious that the book is an introduction to an emerging field; an introduction that does not claim to cover the field in its entirety but rather one that invites the reader to participate in a dialogue that has only just begun. In this latter regard, this excellent book is particularly successful. I hope that prospective readers are inspired in the same way as I was when I read the book, in one way or another, and will participate in the dialogue that is so meritoriously initiated by the editor and the other contributors.
