INTRODUCTION
With this fascinating, well researched, and excellently organized book, Kjersti Lohne (Reference Lohne2019) becomes an important voice in the chorus of contributors to scholarship on the development of international criminal justice (ICJ). Her voice is important because her fundamental arguments are serious, critical, and distinct from dominant strains of scholarship on ICJ. In the following, I summarize core arguments from Lohne’s book: her critical thesis on ICJ and the International Criminal Court (ICC). I juxtapose her thesis with an antithesis, not one that seeks to discard her critique but one that puts it in perspective. I argue that Lohne’s theoretical approach provides her with critical distance from the field. Yet, while her ethnographic methodology comes with a proximity that provides important insights, it needs to be supplemented by a widened lens. I therefore bring her book into a conversation with literature that privileges the long durée, that examines the ICJ field as part of an ecology of social fields, and that sees the expansion of the ICJ field as but one instance of a broader trend toward transnational legal ordering (TLO). I finally hint at a synthesis.
LOHNE’S CRITICAL THESIS
Lohne (Reference Lohne2019) focuses on international non-governmental organizations (INGOs), the (not quite) functional equivalent of civil society at the global level, and their role in ICJ. The Coalition for the International Criminal Court, a self-described “global civil society network of over 2,500 member organizations” fares prominently (1; see also 73). Lohne thus examines the social foundation of ICJ, a sociological approach in contradistinction to dominant international law and international relations perspectives (5). Further, applying a sociology of punishment approach, Lohne’s book provides a sharp critique of ICJ. This critique is important at a time when many continue to celebrate the emergence of ICJ as a major achievement of humanity, while others decry the new ICC—a core component of the new set of institutions—as an instrument of postcolonial oppression. Both critics and supporters of ICJ and the ICC should be interested in Lohne’s analysis.
The book is guided by three questions, which Lohne answers along the way: (1) what is the role of non-governmental organizations (NGOs) in ICJ—answer: they contribute moral authority to ICJ; (2) what characterizes punishment “gone global?”—answer: such punishment is driven by humanitarian reason; and (3) how is ICJ constituted by and of “the global?”—answer: ICJ is constituted in a way that serves to consolidate unequal power structures. We have to take seriously the latter answer, with the grave critique that it entails. Before spelling out that critique, however, a few words on Lohne’s theoretical approach, methods, and data are in order. Lohne approaches ICJ as a social field, composed of a material (or structural) part and of dominant discourses (or imaginaries) of penalty and victimhood. Hers is a critical sociology of punishment, applied to global criminal justice, distinct from the Westphalian order, where the state monopolizes the legitimate use of force. Importantly, for Lohne, the global (or universal) is anchored in concrete places (the “where” of the inquiry). Her method is, accordingly, a transnational multi-site ethnography, combining remarkable ethnographic observation and extensive interviewing. It involves multiple settings in The Hague (“center,” “global city,” “legal capital of the world”) from where justice is exported and in Uganda (“periphery”) that may not embrace the export (Lohne Reference Lohne2019, 40). In these sites, part of a global “geography of power,” Lohne focuses on an “analysis of transnational networks in their mobilization for global justice through the ICC, … [seeking] to explore how connections are made and how forces and imaginations of global (criminal) justice travel” (2). These are the components of Lohne’s critique: First, human rights NGOs claim to represent global civil society, but they are anchored in only few Western countries. In addition, while claiming moral authority as a source of ICJ support from the outside, human rights NGOs are actually closely intertwined with, and have a vested interest in, the ICC (the “how” of the inquiry) (84–95).
Second, at the level of individual actors (the “who” of the inquiry), Lohne finds global moral entrepreneurs who use humanistic discourses in support of ICJ. They articulate positive moral sensibilities, “compassion, sympathy, and solidarity” rather than penal populist calls for revenge (Lohne Reference Lohne2019, 99). Yet these actors, recruited from a class of transnational Western (largely legal) professionals, are also part of an “industry” entrenched in ICJ themselves (118). Supporting them are myriad interns whose privileged background allows them to live in one of Europe’s most expensive cities. In short, NGO workers are neither outsiders to the institutions of ICJ nor representatives of the global.
Third, Lohne (Reference Lohne2019) addresses the tension between human rights principles as a restraint of penality in state-level criminal justice versus the determined embrace by human right NGOs of punitive, retributivist, and deterrence strategies (“prosecutorial approach”), even if imagined—in the realm of ICJ—as a form of social justice (133). INGOs in the human rights field rely, in Lohne’s judgment, too strongly on punitive, “irrational,” and even “counterproductive” strategies (129). Lohne’s case study of Northern Uganda suggests that this reliance becomes an impediment to peace making. Yet her interviews also reveal a belief in the history-writing functions of ICJ proceedings and reservations toward excessive punishment—the latter in line with constraints that human rights principles impose on domestic criminal justice. If the driving force of punitivism at the domestic level is populism, at the international level—where professionals dominate the NGOs—it is humanitarianism. Clearly, Lohne’s work confirms not only the previously noted tensions but also the potential complementarities between human rights principles and penal strategies.
Fourth, Lohne (Reference Lohne2019) attaches her next point of critique to the victimological imaginary of ICJ. While the ICC represents hybrid justice, incorporating elements of retribution as well as restoration and transformation, the latter functions—she argues—fade in the process of implementation. For example, only a few victims have actually appeared before the ICC to testify. Lohne warns that the restorative agenda is at risk of co-optation by the retributive parameters set by the Rome Statute.Footnote 1 In the end, the distant suffering of the “other” becomes a source of moral authority, put to use as “a type of ‘currency’” traded by individual advocates and the global NGO field more broadly, with punitive outcomes (27).
Fifth, and finally, Lohne (Reference Lohne2019) addresses the thorny question about the “we” who punish at the global level. Whose common values and beliefs enter into the “cosmopolitan penal imaginary” (213)? Lohne draws on a late Durkheimian approach (Smith Reference Smith2008), where solidarity is based on the notion of individuality, the “cult of man,” a “religion of humanity” as a social institution like all religions, where impunity “becomes a sign of weakness … a desacralization of something sacred” (Lohne Reference Lohne2019, 28; see also 189). Yet Lohne privileges David Garland’s (Reference Garland2001) corrective to this approach: the cosmopolitan moral order, as a dominant order, is not organically grown but actively constituted. Those who constitute this order are not representative of humankind. They replicate global power asymmetries. In Lohne’s (Reference Lohne2019, 191) words, “[a]s advocates of humanity and the universal values of human rights, human rights NGOs are dependent on the ‘production’ of moral outrage, a commodity chain moving in one direction: the raw material of human suffering is gathered in the global south for ‘consumption’ in the global north.”
ANTI-THESIS: CRITIQUE IN PERSPECTIVE
Lohne’s (Reference Lohne2019) theoretical approach secures critical distance from the field she studies. Her methodology, however, brings her into close proximity to her subject, with the advantages and disadvantages that this entails. Lohne is mindful of her positionality, the experience of being left out (or not), for example, by wearing (or not) an accreditation pass to attend Assembly of State Party (ASP) meetings in The Hague (29ff). Her position is further marked by an earlier research experience in Uganda, where the Lord’s Resistance Army (LRA) became a subject of ICC intervention, but not the government of Uganda, despite its grave violation of human rights in its fight against the LRA. Most importantly, however, locals in Northern Uganda did not register the ICC’s penal response, and, where they did, they resented it as a perceived impediment to peace. Examining Advocates of Humanity with a wider lens, removed from ethnographic closeness, I propose an anti-thesis. I sketch how ICJ appears in the long durée of history, in the ecology of social fields, and as part of a broader trend toward TLO.
The Long Durée
Positionality indeed colors our critical perspective. I add to Lohne’s identification of her position a generational and nationality factor that separate author and reviewer. While the author came of age in Norway when the build-up of ICJ was in full swing, this reviewer was born in Germany, barely six years after the end of the Holocaust. His elders continued to silence the genocide when he came of age, and many perpetrators were in positions of power and authority. From this position, he is attracted by the hopes entailed in the development of ICJ. He is alert to Martha Minow’s (Reference Minow1998) observation that many centuries can compete with the twentieth century in terms of atrocities committed but that only the twentieth century developed institutions to prevent and penalize the gravest of human rights violations. He appreciates Kathryn Sikkink’s (Reference Sikkink2011) optimistic view of a Justice Cascade, and the historic redefinition of mass killers from heroes to perpetrators, partially owed to the representational power of ICJ (Giesen Reference Giesen2004; Savelsberg Reference Savelsberg2015, Reference Savelsberg and Bergsmo2020). He pays close attention when Hyeran Jo and Beth Simmons (Reference Jo and Beth2016) find a decline in government violence in the aftermath of ICC prosecutions, even among rebels (Jo Reference Jo2015). Their research suggests caution not to generalize from the experience of Northern Uganda.
This reviewer is also mindful of the potential civilizing effect of domestic legal institutions, advanced in the context of nation-state building, and the accompanying massive decline of violence in civil society (Johnson and Monkkonen Reference Johnson and Monkkonen1996). An important difference between frustrations with domestic, and promises of global, systems of punishment may be the fact that the former at times add to the already high level of punishment or adjust penalty at the margins, while the latter advance a shift from complete impunity to at least a minimal level of criminal liability. This suggested shift of evaluative attention does not erase Lohne’s critique, but it cautions us to consider the problems that Lohne identifies in the context of the long durée.
ICJ in the Context of Competing Fields
Lohne (Reference Lohne2019) is well aware that ICJ does not operate in isolation. After all, she highlights massive asymmetries in international relations and—centrally—in the world of human rights NGOs. Yet, again, I plead for a widening of the lens. I suggest that we examine ICJ in the context of neighboring and potentially competing fields. My own study of reactions to the mass violence in Darfur documents—in line with Lohne—the support that human rights NGOs mobilized on behalf of the ICC and its prosecutions (Savelsberg Reference Savelsberg2015; Savelsberg and Nyseth Brehm Reference Savelsberg and Brehm2015). Yet I also show that other fields push agendas that Lohne finds missing by focusing on ICJ alone. Actors in the field of diplomacy, for example, even if formally supportive of the ICC, have challenged its prosecutorial efforts. Many were concerned that the Comprehensive Peace Agreement between the north and the south of Sudan, promising an end to a gruesome civil war, was at risk of failing should the ICC charge leading actors of the Sudanese government, especially then President Omar al-Bashir, with the crime of genocide. Similarly, actors in the field of humanitarian aid frequently and intensely challenged human rights NGOs when the latter embraced prosecutions. They feared that the Sudanese government would block access to suffering populations (a fate Médecins sans Frontières had to face in Sudan). Humanitarian NGOs thus advanced a narrative that distracted from the violence committed by government forces and Janjawiid militias against the civilian population.
A look at the ensemble of social fields involved in situations of mass violence thus shows that the ICJ field on which Lohne focuses is supplemented by neighboring fields that promote peace negotiations or humanitarian efforts. In addition, some national governments, even members of the ASP, or departments within those governments, align more with humanitarian or diplomatic projects than with the punitive program of the ICC. The outcome of intervention is determined not by one single field such as ICJ but, rather, by the interplay of these various social forces. Placing Lohne’s work in the context of a multi-field ecology thus opens up new perspectives for scholarship and practice.
ICJ and TLOs
Recognizing the emergence of ICJ as only one aspect of the establishment of TLOs further broadens the perspective. ICJ constitutes one, but only one, TLO (Shaffer and Aaronson Reference Shaffer and Ely2020). Other such collections of “formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions” concern thematic areas such as trade, securities, labor, the environment, communication, use of the oceans, or nuclear energy (Halliday and Shaffer Reference Halliday and Gregory2015, 3). Their co-emergence does not take away from the role of INGOs in the field of ICJ on which Lohne focuses. Yet it points at broader social forces, including intensifying international trade, externalizations—for example, of pollutants—across state boundaries or technologies that rapidly transmit information across the globe. It also highlights actors beyond NGOs as driving forces, including the Great Powers, other national governments, and international and regional bodies such as the European Union (see also Hagan Reference Hagan2003). The TLO approach further highlights potential interactions between diverse TLOs. The question of such interactions parallels that of interactions between social fields, which is highlighted above.
The TLO approach finally alerts us to the recursivity of law across levels of analysis: local, state, regional, and global. Lohne shows convincingly the bottom-up forces contributing to ICJ. The TLO approach shares that perspective, but it may ask, in the reverse direction, to what degree the existence of the ICC motivates state-level prosecution of international crimes, in line with the complementarity principle of the Rome Statute. Does national law function in the shadow of international law, the way “traditional” law once operated in the shadow of colonial rule? What are the consequences for the protection of human rights and the prosecution of international crimes? Are asymmetries, built into the ICJ field and highlighted by Lohne, accelerated or mediated by this mechanism?
TOWARD SYNTHESIS
Again, we must take Lohne’s critique of ICJ and the ICC most seriously, as it points not only at the risk of unintended and counterproductive consequences of ICJ but also at the part of the critique that corresponds with the misgivings that countries at the periphery of the global order articulate against the ICC, especially African countries. Lohne is able to develop her critique by building on a sociology of punishment approach that takes the social foundations of ICJ, especially INGOs, seriously. In my critique of Lohne’s critique, I suggest that her ethnographic approach—despite the rich insights that it provides—would benefit from supplementation by a widened lens. I suggest extending the time frame, analyzing ICJ in the context of the ecology of social fields and incorporating insights from the TLO approach. I do not deny that an agenda that incorporates these perspectives poses massive methodological (and theoretical) challenges.
Space does not allow for a development of policy conclusions, which Lohne herself does not articulate. The position I take in this review essay suggests that I see promise in ICJ and the ICC. Yes, power asymmetries are constitutive to the establishment of all legal regimes. Yet, once established, also the powerful are (at least partially) bound by their rules as E. P. Thompson (Reference Thompson1975) highlighted. Lohne herself does not seek abolition of ICJ. That much is indicated by introductory essays to a volume on power in ICJ, of which she is a co-editor (Bergsmo et al. Reference Bergsmo, Mark, Kjersti and Christopher2020). Her critique suggests instead that reforms of ICJ and the supporting social mechanisms are the order of the day. Such need should not be surprising as humankind has only begun to experiment with instruments designed to prevent and punish massive violations of human rights on a global scale. A close reading of Lohne’s book should serve as one crucial guide in this project.
