The Rise of International Criminal Law: Roth’s Radicalism

Editor’s Note: This is the second 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,” . The first posts in the series can be found here.

From where I sit, The Rise of International Criminal Law is firmly within the traditional line of American centrist views of international law.  Your results may differ, of course.  But if this article is not liberal internationalism, of the kind that still so animates the academy; neither is it skepticism as to the very category.  It is pragmatic, cautious, state-centric, and sees the category as both important but deeply fragile.  Fragile, that is, precisely because it proposes to be “law” – yet without being embedded in a social structure which would offer a society, and from there an embedded politics, and from there an embedded judiciary.  It is the universal – but the universal alone, and so weak, fragile, naked, and exposed to the world – simultaneously, however, pontificating on its own universal glory and goodness and future-world-ordering authority.  Universal international law gains independent authority and normative force, paradoxically, only when it is firmly embedded within other structures of politics, society, and authority – that which is found today only in sovereign states.

 It – international law – stands in deep need of shelter by powerful states through their politics.  But protection from what, exactly?  From threatening political winds from outside it?  Yes, certainly.  But not just that – it also needs protection from itself.  Left to its own devices, the “society” of international law, such as it is, believes its own press releases, communiqués, court opinions, and views of publicists, and so threatens to drive itself off a cliff.  International law unchecked tends toward uncontrollable positive feedback cycles, driven these days by its “values” mechanisms, whipped forward by the human rights community, itself driven forward by an uncontrollable positive feedback mechanism of self-reinforcing religious belief, on the one hand, and utter instrumentalizing of international law to those religious ends, on the other.  ICL is the strongest institutional expression of the tendency in international law to enter a positive feedback loop, because its very existence is so much a function of moralism.  The function of powerful liberal states such as the United States has traditionally been both to support the category, but simultaneously to check the tendency to inner self-immolation through the imposition of a realist politics from without.  This article, so far as I am concerned, stands firmly within that tradition.  It is an expression of traditional American embrace and yet also cautionary political protection of international law.

 Roth offers the most exquisitely careful and sympathetic reading any work of mine has received in years.  Yet in relation to this article, I am the voice of center-right-pragmatism, and he is a deep radical of a particular strand of the Left.  I say this with open-mouthed admiration, though not precisely agreement.  I would not mind on this particular matter being of the strong American right – I am an admirer of John Bolton as well as admirer of Brad Roth, after all – but I don’t think this particular article is that.  Our views do touch, as Roth says, but I don’t think that mine in this instance are of the radical right.  Or, perhaps more exactly, Roth is willing to carry through to conclusions as to where this critique might ultimately goes that I am not willing here, in this article at least, to embrace.  He is remarkably unflinching as to where the project of international justice, partiality and impartiality, would have to go – particularly judging by his latest, genuinely startling article.

Roth’s radicalism – radical, certainly, within our world of international law – is openly to express a fear from the Left of the consequences of ICL for justifying armed intervention:

If ICL comes to be perceived as displacing the U.N. Charter’s peace and security scheme as the centerpiece of international order, the genie of empowered moralism will be let out of the bottle of legal constraint.  The danger arises less from developments of actual legal doctrine – and all the less still from the actual, quite modest exertions of international tribunals – than from what Anderson appropriately calls ICL “as social practice,” including the ever more conspicuous brandishing of universal jurisdiction.  As slogans such as “an end to impunity” and “no safe havens” become prevalent in the rhetoric of international law advocates, accommodation and restraint inevitably become cast as vices rather than virtues, to the detriment of the international legal order’s most practicable mission.

Roth and I both fear the moralism.  That’s so even though I, and I believe Roth as well, would accept much, though not all, of Kapur’s conceptual disentangling of humanitarian intervention and ICL.  And, I would add, this a very particular kind of international law moralism, attaching to communities of human rights faith whose mission in the world is reinforced by listening to the inner voice, the small still voice of God and the Holy Ghost – a world view that creates success out of the unpromising materials of moralism precisely by never going off message.  This is both the success and failure of the human rights NGOs.  It is also a world-view that is essentially religious in character, one that has to immediately reinterpret events to fit the driving internal narrative; I commend to you Stephen Hopgood’s anthropological study of Amnesty International on the force of internal religious discipline.

Aryeh Neier was always amused at the little sign I had above my desk while I was general counsel to the Open Society Institute – a quote from a letter of the young Edmund Burke to an equally young Quaker friend, who had been taken with the spirit of what today we might call the social justice movement:  “I don’t like that part in your letter wherein you say you had the feelings of well-doing arising in your breast; the next time such passions arise endeavour to suppress ‘em.”  (Quoting from memory.)  If a good slogan for a corporation is, Don’t Be Evil – a good slogan for NGO and social movement advocates and ICL staff is Burke’s salutary injunction.  And if I emphasize the role of social practice and social theory, it is because I have had a long enough career in the NGO world of human rights to know the importance of cohesion and coherence within social movements, of which ICL is one, or at least an important part of one.

Or:  I’ve spent years as both a human rights worker, toiling in the fields of abuse – and also a couple of years as a Mormon missionary, toiling in the fields of unbelief.  As vocations, they resemble each other rather a lot.  But in saying that I take the “social practice” of these international law social movements seriously, it means in part applying the lessons of Weber and Burke, legitimacy and the agonizing fragility of liberal institutions.  But it also means the application of moral psychology – we are a very, very long ways from reductivist law and economics applied to international law, please to observe – and understanding that the moral psychology of ICL, understood as social practice, embraces certain virtues but lacks an awareness of others that are, in the traditional understanding, vital in international politics – forbearance, to start with.

“Discretion” in selecting prosecutions is not precisely the same thing as exercising “forbearance” about the nature of the social and political and legal mission.  And, yes, the internalization or non-internalization of attitudes such as forbearance in international justice matters, as with all justice.  Perhaps it is also worth noting that these kinds of  “ICL as social practice” worries are not confined to democratic-sovereigntist critics like me – highly sympathetic, ICL-engaged critics are emerging as they see the large gaps between, for example, the international tribunals, in their air-conditioned bubbles and first world salaries on short term contracts, and the local folks in the domestic justice system down the street.  Georgetown’s Jane Stromseth, for example, offered a gentle reproof of the social practices of tribunals at a SAIS forum last year.

There is room for a lot more observation-based scholarship on the social practice of global civil society movements – cooler, tougher, more thickly described, and less in love with singing the glories of “norm entrepreneurship” under a gossamer scholarly veil of objective description.  But if religious practice and passion is one manifestation – and, allowed to close the circle of ideology, a grave danger arising from, precisely, the drive to purity – then another is a collateral effect of what is otherwise a useful phenomenon, the professionalization of ICL practices.  This is, in large part, what Stromseth criticized at SAIS – the remoteness of the ICL in its professional bubble, remote from the societies in which it works, remote from the rest of the local criminal law process.  Kapur observes, quite correctly, that this is being gradually remedied through the inclusion of other types of justice activities that link local and international justice; we should all hope so.  But as a matter of social practice, the enterprise still looks an awful lot like global elites in the jet stream, carrying their universalist ideologies hither and yon, touching down to earth here, blessing the faithful there, dispensing justice today and prosecutorial indulgences tomorrow: the Global New Class sent out as missionaries to the world.  As with many global religious orders, there is both an element of passion and an element of professional remoteness.

In practical terms, ICL seems to be headed one direction, and the implications of a multipolar world – a more competitive world in both security and commercial relations, and their intertwining – headed quite another.  Roth and I agree on that point even if, as he says, we draw different normative conclusions.  He captures the point very nicely when he says that he shares Kapur’s normative aim, but fears that my suggestion is the more likely practical result.  Yes.

The Rise of International Law is gentler than Roth, even if these posts are not.  The article is an invitation to the ICL and IL worlds to see that ICL is being allowed to swallow public international law whole, and the consequences are not good, for ICL, for IL, for IOs, for global politics.  It is not finally an argument, much less a frontal assault on ICL, because it is intended to be an invitation to the ICL and IL communities to apperceive where the social practice of ICL is headed.  Which is to say, either zooming off the cliff altogether, or else marching into cul-de-sacs of irrelevance.  I frankly don’t know which column to put the ICC prosecutor’s decision to hire Baltasar Garzon.

Kapur, in effect, says to me, get down off your high horse, what you think is your prophet’s mount and do some real work in the fields.  You’ll see that over time, we were right about our teleology.  Give us time and time will tell.  I think Kapur would agree that she has turned the invitation proffered in my article down cold.  Fair enough.  Roth – well, I hear Roth shouting dire warnings and grave concerns – even graver than those I have shouted – and I look, and look, but I cannot see him.  Until I look up; he stands on the Mount of the Prophets in a place of ‘immanent critique’ far, far, far above any place to which I am able to climb, at least in this article.  His is a much more immanently dangerous critique than mine: dangerous to international law purity, that is.