Challenges Facing the Future of International Criminal Law

The Southeastern Association of Law Schools (SEALS) hosted a panel at their most recent annual conference on “The Law and Politics of International Criminal Prosecutions,” moderated by yours truly, Speaking alongside fellow grrls Elizabeth Ludwin King and Milena Sterio, Professor Mark Drumbl drew from The Future of International Criminal Law and Transitional Justice, in Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2012) for his comments on several future challenges faced by international criminal law. We are happy to welcome Professor Drumbl back to International Law Grrls! 

1.     (Re-)nationalization: from technique to context. Although international criminal law is everywhere, in a sense, it is also nowhere. The emergence of international criminal law as impartial technique has come at the expense of context or area studies. The result is a tendency to sideline traditional approaches to dispute resolution and externalize justice from afflicted communities. Now that the institutions of international criminal law are deeply embedded in the fabric of international relations, however, they might develop the confidence to better welcome the local.  

2.     Diversity: from law to justice. Together with better incorporating the local, international criminal law would do well to open up to other accountability mechanisms. International criminal law’s predicate of individual culpability and incarceration may simply not be favored among all victim communities. Nor do all victim communities idealize the atrocity trial. Many such communities prefer other justice modalities, or an admixture thereof, including truth commissions, lustration, memorialization, public inquiries, community service, and traditional re-integrative practices. Moreover, the collective nature of mass atrocity is such that collective forms of responsibility that target states, organizations, non-state actors and corporations may more accurately reflect the etiology of the crime. A challenge for international criminal law is the need to foster other justice mechanisms.

3.     Scrutiny: from faith to science. The driving force behind international criminal law is faith. Criminal prosecution and incarceration for the guilty is claimed to promote a broad array of goals, including deterrence, retribution, collective reconciliation, re-integration, rehabilitation, expressivism, truth-telling and ending impunity. Are these goals being attained? Are they even attainable? We may believe so – but now that the institutions are up and running, the only way to actually find out is to move from faith to science and treat the institutions that enforce international criminal law as subjects of study in the same rigorous way domestic scholars treat domestic courts.  The challenge for international criminal law is to encourage such study and then absorb the lessons that quality research has to offer.

4.     Truths: from convenience to discomfort.  The atrocity trial pins blame on the vilest and most reprehensible individuals. In reality, however, atrocity is the product of many factors. Individual action, say of leaders, assuredly is one of these. But disappeared from the truth-telling process is the involvement (or nonfeasance) of state actors and international organizations. Also disappeared is the catalytic role of benefitting bystanders, transnational capital, institutional omissions and colonial histories. The truths told by international criminal law are convenient. They are manageable. By blaming the few for the annihilation of the many, these truths comfort. They do not embarrass too much or too many. But the origin of atrocity is much more discomfiting and discomforting. If we move into a mindset where the articulated truths of international criminal law become totalizing, and exclusionary of all others, then we achieve some justice, but we actually settle for a very crimped understanding of justice. One of the reasons why international criminal law may have limited transformative potential – despite its lofty rhetoric – is because it only scratches the surface of what justice actually entails following mass atrocity.

5.     Imagery: from essentialisms to nuance. International criminal law prefers simple images: innocent victim, evil oppressor and heroic humanitarian. In this regard, international criminal law mimics Makau Mutua and David Kennedy’s deconstruction of international human rights law. Yet the simplicity of these images belies the vacillating nature of human behaviour in the crucible of atrocity. Captors – after all – can capture, victims can victimize, and the abused can, in turn, abuse. Primo Levi painfully grappled – without resolution – with the ‘gray zone’, by which he refers to the fuzzy line between connivance and courage, and obsequiousness and morality, interstitially occupied by the kapos in the concentration camps.  International criminal law’s binary absolutes of guilt or innocence are ill-equipped to handle the frustrating subtlety of the human experience during episodes of collective violence. Moreover, in emphasizing the crushed status of victims – for example child soldiers – in order to justify onerous punishment for their oppressors, international criminal law may curry disabling stereotypes of those victims. 

In conclusion, although international criminal law remains the dominant accountability mechanism for episodes of mass atrocity, it awkwardly elucidates the provenance of collective violence and organisational massacre. Perhaps, then, international criminal law should recede and international post-conflict justice – a broader paradigm that includes diverse accountability modalities and a more sublime lexicon – should step up.









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