The Rise of International Criminal Law: A Response to Brad Roth and Amrita Kapur

Editor’s Note: This is the first in a series of posts by Prof. Anderson responding to earlier posts by Brad Roth and Amrita Kapur which offered comments on Prof Anderson’s 2009 EJIL article, “The Rise of International Criminal Law: Intended and Unintended Consequences,” . Professor Kenneth Anderson is Professor of Law at the Washington College of Law, American University and Research Fellow at the Hoover Institution on War, Revolution and Peace at Stanford University

I am grateful, first, to Brad Roth and Amrita Kapur for their eloquent and carefully considered responses to my EJIL essay, The Rise of International Criminal Law.  It is rare to receive such close reading, on the one hand, and at the same time two such strikingly different comments.  Each succeeds in framing the grand issue in legal, policy, and political terms quite as large as the original article.  Second, my thanks to the EJILTalk! editors for their patient willingness to continue this discussion beyond the article.  My response below is as free-ranging as the original, and goes to places where neither the original article nor the responses run, but which I think provide some context for the article’s observations.  I have broken my response into three separate posts for convenience.

I) A (Thin) Politics, Not a Society

Roth observes that The Rise of International Criminal Law does not adopt a frontal assault on the institutions of ICL.  In this, and in his further observation that the article is one of “unease,” he is entirely correct.   The unease has to do, as Kapur likewise observes, with misgivings about the centrality that ICL has assumed within the whole conception of international justice and, I would emphasize, the whole of what we loosely call the international system.  This unease rests on a still deeper ground of skepticism.  It is one that I have raised in many different settings, but left aside in my article.  It perhaps bears stating now, although I realize it carries the discussion different directions from the original article.

It is that international law, at least in its liberal internationalist incarnation, and particularly ICL as an especially intense version of it, takes as its ground the legitimacy that attaches to domestic systems of justice in settled domestic societies.  ICL lacks this legitimacy, because the international system is not a society in the sense of the legitimacy that attaches to a social system and which gives a society’s mechanisms of law and courts and criminal justice their ability to become internalized in Weber’s classic sense.  At most this international system is a politics, not a society, and only a thin politics at that.  The sense that ICL is the system of criminal law, whether conceived as for that global  “society” or for the rest of the world beyond that “society” of transnational elites that staff it is even more tenuous.

The customary retort is that the crimes at issue are so horrific and so universally reviled that no “thicker” international society is needed for their prosecution and punishment.  We can all agree on genocide, at least.  We do not need a “society” in which to embed and legitimate a legal system if we are talking about those kinds of crimes; universality can be vested in the purely international and transnational, at least for those limited, universally despised crimes.  I have always found this reply singularly unpersuasive.  It is one thing to share a revulsion against genocide, for one – but sharing a sufficient agreement on all the many things that a criminal law system requires – agreement on concepts of evidence, and standards of proof, and views of punishment – all that is quite a different matter, and it is what makes a legal system a “legal system” and not just a revulsion against certain substantive acts.  But little if any of that is automatically “internalized” and shares in that universal agreement just because one internalizes a norm against mass atrocities; signing treaties does not mean “internalization.”  Once one goes beyond agreement as to the horror of the act – it is another thing to assume on that basis that one has agreement to a system of individual liability, to criminal liability, to international tribunals, and these mechanisms of criminal justice.

I am not here denying that such agreement might be obtained at not merely the formal treaty or other “documentary” level, but at a level of “internalization” of norms; stranger things have happened.  For a time – this matter of “time,” once again! – I am happy to give the benefit of the doubt.  But if I am willing to suspend judgment as to whether that happy outcome emerges, for a time, I should be met halfway, and not have it simply assumed that these things all have the necessary social agreement on which legal systems depend if they are to retain that vital element of the ghost in the machine: legitimacy.

Moreover, troubling as I find to note it, we should not automatically assume that the revulsion that has obtained against mass atrocities of the kind found in Sudan will remain – or is remaining – as universally reviled as all that.  That is particularly a worry when there are material tradeoffs to be made.  China’s mercantalist calculations with respect to Sudan, for example; its willingness to sell its Security Council veto for commercial gain for energy supplies has to raise ugly questions that go to the heart of whether gains in the supposed internalization of internal norms even against plain mass atrocities is permanent or universally shared by players who cannot be ignored.  I do not have a settled factual view of this, but surely there are grounds to worry.

I am thus not so sanguine as Kapur as to the meaning or significance of China not blocking the Security Council referral on Sudan.  Maybe it means the good things she suggests; maybe it was simply a local calculation of what mercantalism and the sale of Security Council vetoes require in order that they retain their maximum trading value in future transactions.  Rent-seeking and other such effects do not go away in the international system; if anything, public choice theory has at least as large a role in analyzing the international system as in domestic legal systems, and it is a failure of international law scholarship to take up that analytic challenge.

The larger point, of course, is that so long as one could ignore China on the world stage, one could ignore its views on these matters.  That era is seemingly drawing to a close, and a new age of interested commercial calculation in relation to mass atrocities perhaps to begin.  I have not been able to think, offhand at least (and I would be very interested to hear of other cases), of any other instance of a great power and P5 member quite so nakedly swapping the threat or implied threat of a veto for purely commercial gain.  I think that is something new in the politics of the Security Council – but one of the weaknesses of the current scholarly infatuation with ICL over IOs is that we seem to have fewer scholars actively analyzing the effects of these things from the standpoint of the Security Council or the UN as a whole system.

Yet I should note that this is not the skepticism more usually raised against ICL.  The customary skepticism is classic Hobbes or Austin – that ICL lacks true sanctions and the ability to enforce its commands, or more generally the features of command-threat-sanction that characterize the criminal law.  That customary skepticism, often associated with law-and-economics approaches to international law, is true, but for these purposes somewhat beside the point.  That skepticism is equally too thin a conception of law to account for the compliance that exists with criminal law in settled domestic societies.  Weberian legitimacy is real – contra the claim of “thin” systems of law-merely equals-enforced threats.  It is just that it is not particularly real with respect to ICL, because the “international system” is not a society in the relevant sense.

For reasons I will return to at the end, in noting the problems of fragmenting communities of interpretation – and authority – in international law, this is not an easy point for those deeply embedded within ICL as a set of social institutions to take on board.  They, after all, have internalized precisely what I suggest that the rest of the world has not.  I did not raise this concern directly in the article, having expressed it elsewhere in many ways, partly because the ICL community is tired of talking about it, or anyway being hectored incessantly about it.  Unfortunately, the problems of legitimacy that it imagines are today only to be found marginal irredentist writings, long since by-passed by the achievements of the ICC and the international criminal tribunals – well, I wonder, how at the margins are they, really, in our emerging multipolar world?

Which is to say, would it not behoove the community of international justice at least to have a backup Plan B grounded in some form of pragmatic international law realism, rather than its current approach of doubling down on the ICC?  Doubling down?  How else does one characterize an institution that, ten years and hundreds of millions of dollars later, has yet to obtain a single completed trial – and yet proposes that it should take on the criminal law enforcement of what, in historical breadth, is the Kellogg-Briand Pact and even more, with the addition of a judicial mechanism of enforcement?

II)  Whig History

Yet I have genuine respect for the achievements of ICL to date, particularly those tribunals that have managed to achieve some level of legitimacy outside their own circles of the faithful.  That is so despite a general sense that ICL remains the triumph of hope over experience.  My diffidence arises, first, from a sense that the movement’s partisans peculiarly understand this institution as somehow exempt from the tradeoffs that most other things seem to entail, particularly in international politics.

I was serious when I said that the rise of ICL is the most striking feature of international law and organizations since 1990 at least, save for the rise of the global trading order.  Yet the rise of the WTO and the regime of multilateral trade relations is an expression at this point of some considerable experience over hope alone.  In offering explanations of how the trading regime has overcome otherwise daunting collective action problems, the explanations today are about explaining something that exists, rather than something that remains nascent and about which our explanations remain mostly about how it will overcome otherwise daunting collective action problems, rather than how it actually has.  Moreover, presumably no one would suggest that the global trading order is not the product of many, many tradeoffs.

Second, therefore, following on the last observation, the most striking discursive feature of ICL, and its theorizing, is the unabashed Whig history that underlies it.  By Whig history, I mean history as teleology, and a teleology of progress in human history (after all, it might alternatively be a belief in a teleology of anti-progress).  This teleology is the most striking rhetorical feature, indeed, of the whole lengthy history of global governance.  The Parliament of Man – anyway, Locksley Hall – is 150 years old, all those lovely visions of lapt in the bosom of international law, etc.  But the ‘swords into plowshares’ of Isaiah is a couple of thousand years older, and that famous vision is preceded in the scripture by a remarkable vision of universal law proceeding from the city of God to the nations of the world.  It is a very old dream, in other words, and ICL its most current version.  I am skeptical, yes, first on the ground that it is unfolding as offered by the partisans of ICL and, second, that even if it were, that this would be a good thing, at least to the extent apparently imagined (tradeoffs, again).

But as a strict observer, my goal is not Whig history – neither to interpret everything according to a calculus of progress, nor yet of anti-progress.  I have no idea what History will bring, and it is possible that the institutions of ICL will consolidate themselves into something resembling what Kapur offers.   Or Isaiah, or Tennyson, for that matter, or even the worldwide ummah; others in the world also have eschatological visions.  I do not think the historical evidence that it will consolidate itself in these ways is very persuasive at this point, but one can differ about its persuasiveness, of course.  But given how long the history of failed attempts here, surely those arguing for today’s version of it ought to be willing to accept a bit more of the burden of proof that this one will succeed?  Is that so much to ask?

III)  Time’s Arrow

Then there is ICL’s constant plea is for more time.  Kapur says this again in her blog response; with respect to R2P, for example: “how much can we realistically expect this early in the reconceptualization process?”  Give us more time, on this, on that – in a perhaps overly-accommodating desire not to prejudge historical outcomes, The Rise of International Criminal Law grants lots and lots of time for these institutions to prove themselves.  Quite possibly more than it ought.  As I tried to suggest (rather gently) in the original article, time turns into something like a universal solvent that, just so long as it is granted, permits the tensions inherent in all these international law and politics agendas to not have to confront each other and, possibly, spark each other to death, because it turns out that some of these projects are not reconcilable one with another, and the result is, what, Alien v Predator?  (Or, to use a metaphor from my alternate finance professor life, ICL is in the business of rolling over the expectations – the expectations keep getting described as short term, and so it issues short term commercial paper, as it were, that on its face promises that ICL will do these many wonderful things, but as they don’t occur on schedule, it has to keep rolling them over and over and over.)

Time is what Kapur’s responses most seek.  Well, okay, says my article – take your time.  But in this reply, perhaps it bears asking, could we have some indication of how much time is too much?  How much time must go by, without reaching the happy system of justice promised by ICL, when we are entitled to say, well, it didn’t work?

Surely there is some concern that that “time” is simply a way of forestalling accountability, a way of putting one’s institutions beyond falsifiability.  What, even in principle, would demonstrate that the ICL approach to international justice is a mistake?  What would represent a fair test?  It seems odd that no one seems to raise this in scholarship in which, I would have thought, setting forth tests of success and failure would be an indication of confidence in the long term prospects of the project.  Time is something that my article grants – but I hope it is not out of bounds to ask, when does the sense of ‘in time’ become ‘only in the fullness of time’ – which is to say, eschatological?

Maybe time will do its work and institutions will eventually draw close enough to satisfy my quite undemanding and pragmatic standards.  The point is, however, maybe they will and maybe they won’t.  I don’t think the evidence that they will is persuasive, and moreover I do think – speculatively, sure – that the rise of Asia, China above all, is likely to undermine these institutions.  I think it is likely to show them to be a discourse of universalist superstructure built atop the structure of a loose American hegemony that, if it goes into decline, takes much of this stuff with it.

That’s speculation, quite, and a result so dire that I would sorrow to be proven right.  But if that is speculation, and if Brad Roth’s in some ways much darker vision, is also speculation – well, unfortunately, likewise it is speculation that ICL will eventually perform as advertised.   In this, we are all speculators now.  I turn next to Roth’s comments.