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The Field of Exception/the Field of Exclusion — Reflections for Martti Koskenniemi

Published on May 25, 2009        Author: 

Editors Note: This post was originally posted on EJIL:Talk! as a comment by Pål Wrange LLM, PhD (Stockholm) in response to last week’s discussion on Prof. Koskenniemi’s article. Mr Wrange, Principal Legal Advisor on public international law at the Swedish Ministry for Foreign Affairs, is currently on leave of absence and working as a consultant in Kampala

I have engaged with Martti’s work since 1989, when I first read From Apology to Utopia (for example, see my Impartial or Uninvolved? The Anatomy of 20th Century Doctrine on the Law of Neutrality (Visby: Dokumaten.se, 2007) 62-73) . An academic gone practitioner (the opposite career move to Martti’s, I have always felt at home in his texts – the mix of seriousness of purpose and irony of tone, the fealty to old-fashioned Bildung, the shared heritage of continental theory and Anglo-Saxon dominated practice.  His theoretical theses, like indeterminacy, have been addressed by me at quite some length elsewhere ­­- admiringly and critically (in the original sense of that world, of course). Instead of the usual extensive quotes and reverences, let me this time pay tribute to Martti by reflecting, from the floor as it were, on two themes which Martti puts up front in his blog contribution – his criticism of managerialism and, in particular, the fragmentation of international law.

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 I presently live in Uganda, and have since 2007 been involved in various aspects of the peace process between the Government and the Lord’s Resistance Army (LRA). As many readers of this blog will know, in 2005 the ICC handed down five arrest warrants against Joseph Kony and other commanders of the LRA. These arrest warrants were extremely controversial in this country, partly because they were said to derail the peace process, partly because they did not correspond with many people’s perception of justice, and partly because they were felt to constitute a heavy-handed intervention by ‘global governance’. While I believe that neither of these points is completely wrong, let me also say for the record that I think that the decisions to request and issue the arrest warrants were right (which is not to say that the ICC could not have done things different, and much more sensitively). Be that as it may, the important point in this context is that the ICC has been quite central to the peace debate in Uganda ever since the ‘self-referral’ by the Government to the ICC became public in 2004.

So, there is a peace-process, fledgling for sure, but still holding real prospects for peace. And then there is a threat to this peace-process, in the form of a prosecution by an international body. No one will lay down his arms if that means going to jail. Now, how do you think about this problem? A human rights issue? An international humanitarian law issue? An issue of the recently formed – and now fully established — field of international criminal law? An issue of conflict resolution? An issue of domestic law (criminal law or constitutional law)? Or perhaps an issue of transitional justice?

 It is obvious that the mere choice of field from which to analyse situation does not answer any questions. Read the rest of this entry…

 
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