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Discussion of Anderson’s “The Rise of International Criminal Law: Intended and Unintended Consequences”

Published on May 4, 2010        Author: 

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Over the next few days we will be discussing the article published by Prof. Ken Anderson “The Rise of International Criminal Law: Intended and Unintended Consequences” in EJIL’s 20th Anniversary Symposium (last year) on the Use of Force. In the abstract to the article, Prof. Anderson states that:

The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ‘crowded’ other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.

Below is a response to by Prof. Brad Roth. In his post Prof. Roth responds not only to Ken Anderson’s article but also engages with the response to that article by Amrita Kapur, published in issue 4 of the 2009 vol. of EJIL.

 
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Les extrêmes se touchent: Anxieties about International Criminal Law from Poles Apart

Published on May 3, 2010        Author: 

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Brad Roth is Associate Professor of Poitical Science at Wayne State University. He specializes in political and legal theory, American and comparative public law, and international law. In this post, he reflects on an EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” by Professor Kenneth Anderson published in one of EJIL’s Twentieth Anniversary Special Issues.

 In “The Rise of International Criminal Law: Intended and Unintended Consequences,” 20 Euro. J. Int’l L. 331 (2009), Kenneth Anderson surveys potential indirect effects of ICL “as social practice” on other areas of international law and international organization.  By no means does Anderson launch a frontal assault on ICL, nor does he disparage any of its concrete accomplishments; indeed, he characterizes ICL “as perhaps the signal achievement in public international law since 1990 and the end of the Cold War.”  Nonetheless, the article manifests a sense of unease about various aspects of ICL’s rise to prominence, and that alone is likely to raise eyebrows, given the reverential tone that more ordinarily marks legal scholars’ accounts of the project.

Anderson’s many observations encompass a broad range of subjects, and do not admit of a ready summary.  Running through the discussion, however, is a concern that the cart has been placed before the horse, that the institutions of international criminal justice have an uncertain practical B and moral B significance in the absence of an international community that is ready, willing, and able to respond forcibly to ongoing atrocities.  Nuremberg, Anderson reminds us (at 335), “was a lovely hood ornament on the ungainly vehicle that liberated Western Europe, but it was not a substitute for D-day.”

Indeed, what is most distinctive in Anderson’s discussion is his characterization of the relationship between jus in bello and jus ad bellum.  In particular, he insists that the right to administer universal justice is earned, not through neutrality, but through partisanship.  Whereas many other commentators have viewed “victor’s justice” with unease, suspicion, or lamentation, Anderson contends that it is uniquely the victorious struggle over the atrocity-committing enemy that confers moral standing to administer penal justice.  By contrast, in the former Yugoslavia a decade and a half ago and in Darfur now, international actors have sought – discreditably, if understandably – to establish mechanisms for prosecuting crimes post hoc while shirking the moral duty to undertake a war to stop the perpetrators in real time. Read the rest of this entry…

 
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