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International Criminal Justice as a Juridical Field

Frédéric Mégret

Résumés

Cet article vise à expliquer la force du champ de la justice pénale internationale, soit le pouvoir, propre au droit, qui consiste à qualifier certains comportements internationaux de criminels et à créer une sphère d’autonomie à la justice pénale internationale. Il soutient que cette force n’est pas nécessairement observable là où l’on pourrait s’y attendre – soit dans un pouvoir souverain et centralisé mettant en œuvre des normes juridiques – mais l’est davantage au sein d’une variété de « pratiques » de démarcation, de socialisation et de discours par lesquelles le champ construit sa propre autorité.

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Introduction

1How does a field such as international criminal justice construct itself? How does international criminal law, a marginal discipline for most of international law’s history gather significant resources to the point of challenging some of international law’s basic tenets? How does international criminal justice sustain itself as a form of practice despite ongoing opposition from various powerful constituencies in the international arena? What specific practices sustain the emergence and construction of fields that cannot rely on strong state backing?

2Clearly international criminal justice is not ‘naturally’ mandated by international law. The project of international law has experimented with alternative utopias, and criminalization is only one of them, and a relatively recent one at that. Indeed, the problematic nature of international criminal law for classical international law casts doubt on the idea that the former could simply have flowed naturally from the latter. International criminal law as the project to replace or at least compete with the ordinary functioning of a state based legal order based on coexistence by a cosmopolitan system based on individual responsibility is paradigmatically in tension with international law. Most histories of international criminal law by some of its practitioners tend to reconstruct the discipline’s evolution as a history of progress (Geoffrey Robertson, 1999) in ways that seem self-serving. If anything it is the manifestation of this historiographical turn in the development of international criminal justice that is interesting in itself, for what it reveals of the role of history in legitimizing a particular form of practice. At any rate, even if some push towards criminalization were part of the natural development for international law, this would still not tell us why criminalization took the very specific form it did. Yet there is no doubt that this form is highly idiosyncratic combining as it does both elements of centralized and decentralized prosecutions, ad hoc and permanent mechanisms, international, domestic and hybrid courts.

3What is missing from these analyses is the sense of a discipline not simply “being” but “being built” and, moreover, of these two dimensions being inseparable rather than sequential. International criminal justice, especially in its formative years, is not unproblematically proceeding from the legitimacy of a settled practice; rather, it is constantly seeking to uphold itself as a distinct form of practice, constructing its force in the process of becoming itself. In this respect, a juridical perspective on law tends to sharply distinguish the creation of international criminal tribunals (a legislative logic) and their operation (an adjudicative logic), when the distinction between “being created” and “functioning” is sociologically much less clear. International criminal justice constantly negotiates its authority, arguably down to its very jurisprudence and is therefore engaged in a never ending process of self-generation. Significantly, international criminal justice is not simply an idea in history but sustained by a quite distinct social community of professionals; these professionals do not simply “serve justice,” but are involved in a constant process of competing for its establishment and the particular symbolic advantages it confers.

4Building on the sociology of Pierre Bourdieu (Bourdieu, 1986b), a number of scholars have investigated its potential for understanding the legal field (Roussel, 2004; Dezalay, Madsen, 2012; Willemez, 2015). In particular, a significant amount of work has gone into the study of the sociology of the transnational legal field (Dezalay, Garth, 2013, 1998). Within the latter, there has now for almost a decade been a small but distinct and dynamic amount of scholarship interested in international courts generally (Madsen, 2012) including human rights courts (Madsen, 2007) and, amongst them, international criminal tribunals. The pioneering work of John Hagan and Ron Levi has put at the center of our understanding of international criminal justice its ability to develop forms of practice that specifically compete with those of the field of international diplomacy (Hagan, Levi 2008, 2005, 2004; Schoenfeld et al., 2007; Hagan et al., 2006). More recently, Peter J. Dixon and Chris Tenove (2013) have elucidated the place of international criminal justice in relation to transitional justice as relying, specifically, on the ability to mobilize the figure of the “victim” to operate as a central site at the intersection of interstate diplomacy, criminal justice and human rights advocacy. The strength of this work is that it portrays the field as very much the product of struggles for capital accumulation by various actors who construct their position within the field in relation to each other and simultaneously in relation to other competing fields.

5However, these studies, innovative as they have been, have arguably tended to simultaneously neglect and take too seriously the major methodological injunction of reflexive sociology, namely that the definition of its object of study ought not to be left to its agents’ more or less self-serving accounts. They have neglected it, first, by focusing excessively on particular international criminal tribunals (the ICTY, the ICC), and even particular offices (e.g. the prosecutor). Of course, this fits well with actors’ own purported understanding of the field as primarily defined by its flagship institutions. This, however, does not give enough weight to the broader constitution of the field of international criminal justice, which encompasses a range of practices occurring beyond international tribunals stricto sensu (in diplomatic circles, in scholarship, in activism, in the media). To focus on the courts as such without understanding them as part of a broader symbolic ecosystem risks blinding us to the very real porosity between tribunals and a range of other practices of international criminal justice. This article will thus seek to problematize the relationship between the field (a sociological concept) and the courts (a legal one) as a dialectical one, without too readily assuming that the courts set the parameters of any sociological study of international criminal justice.

6Second, there has been a tendency to, by contrast, heed the call of reflexive sociology too closely when portraying international criminal justice as a set of discreet practices without much attention to their specifically legal dimension. It is no doubt interesting and useful to define even international tribunals as not primarily, or at least not exclusively, defined by legal practices, despite the field’s actors’ protests that what they do is “only about law”. The risk however if this is taken too far is to undermine an understanding of the specifically legal nature of the practices at stake and to equate them with any form of technocratic expertise. The starting point in this article is instead that many of the practices of international criminal tribunals are informed if not by the law itself, at least by the search for the particular authority that is associated with the law, and the specific symbolic power that it allows the field of international criminal justice to wield. In this respect, the world of ideas about the law exercises a degree of constraint on what the field can achieve based on preexisting and embedded understandings of what “international,” “criminal” and “justice” mean, even of course as these terms are themselves the object of ongoing struggles. The challenge for the field is partly to incarnate a certain idea of international criminal justice understood as a specifically legal form of authority.

7One of the key questions is how the field maintains its legal character whilst establishing its power, and how in the process it engages in practices designed to compensate for its weak degree of international institutionalization. In replacing the study of international criminal justice within the study of the emergence, renewal and redistribution of global legal elites (Condé, 2012) one thus better reconnects with the original Bourdieusian project of understanding law beyond both formalism and instrumentalism. The article thus proposes to trace the emergence and consolidation of the field of international criminal justice. It begins by addressing the conditions of possibility of its emergence, then focuses on the need for the field to demarcate between others fields in order to better mediate between them, the intense internal competition that results from the field producing a degree of power. It notes that this competition is not destructive but in fact over time conducive to the institutionalization of the field, especially if viewed in relation to the deployment of a range of self-sustaining field practices.

I - Conditions of Possibility

8The concept of field refers to the existence of distinct social spheres characterized by certain principles, a logic of organization and hierarchy, stakes, and a particular type of interest. Fields have been described by Bourdieu and Wacquant as relatively autonomous social microcosms, i.e., spaces of objective relations that are the site of a logic and a necessity that are specific and irreducible to those that regulate other fields (Bourdieu, Wacquant, 1992, 97). This article’s hypothesis is that there is such a thing as a field of international criminal justice. Although the field should not be confused with what is conventionally understood as the idea or project of international criminal justice, the process of naming and popularizing “international criminal justice” is arguably part of the field’s coming into being. The expression was virtually unheard until the late 1990s and its quite identifiable popularization is linked to the emergence of the field’s flagship journal. The initial editorial of the Journal of International Criminal Justice defending the naming of the journal in the spirit of optimism of a nascent discipline is enlightening in this respect and represents a veritable act of coining/staking (“Editorial”, 2003). International criminal justice sought to capture an emerging form of practice consisting in that part of international criminal law that had by then become deeply institutionalized through international criminal tribunals, operated to sanction fundamental human rights infringements and did so by reference to a cosmopolitan horizon. This exercise in capturing the label of “international criminal justice” can be seen as one of the founding moments of the field’s existence.

9What resorting to an understanding of international criminal justice as a field - rather than simply a set of laws or even an ideological project – does is it helps understand how supranational and transnational norms are constituted by their agents, rather than the opposite. One might say: it is international criminal lawyers who create international criminal justice, not the other way round. This allows us to move beyond a view of international criminal justice as the inevitable result of History (“an idea whose time has come”), a natural byproduct of globalization, or even a manifestation of great power interest. Indeed, in a very real sense, the suggestion is that there is no such thing as “international criminal justice” outside the constant efforts of various individuals to promote such a concept, shape it and give it vigor ( Dezalay, Garth, 1998, 16-17). Although this idea bears some relationship to the political science notion of “norm entrepreneurs,” it also emphasizes the simultaneously constraining and enabling nature of the field as a locus of competition.

10Indeed, the practice of the agents of international criminal justice is not “weightless” in the sense of being unconstrained by the forces within which it operates. The field occupies a certain social space and under these conditions contributes to the subtle displacement of competing social fields. International criminal justice, then, might be conceived as something that takes something else’s place and in the process assumes a certain social function. The crystallization of a field is by nature a slow and complex process, no less so in a transnational environment where authority is likely to be more networked. The field is also constrained by certain basic ideational premises from which it proceeds: for example the field of international criminal justice, if there is to be such a thing, cannot be anything although it can certainly be many things (contra narrow functionalist approaches). It exists in relation to certain never entirely determining expectations about what law is and how it must operate and that create certain expectations with which the field interacts. For the activists, statesmen and especially lawyers who stand to gain from international criminal justice over time, the project suggests at least partial investment in law as a tool. International criminal justice – if there is to be such a field – cannot be another word for “human rights” or “international diplomacy.”

11As such, the rise of international criminal justice as a legal field raises a set of initial dilemmas. Typically, it operates somewhat at the intersection of the domestic and the international: from the former it borrows its characteristic penal form, whilst the latter gives it its scope, ambition, and environment. Traditionally, the authority of the legal field is parasitic on the authority of the state (Bourdieu, 1986b). The specificity of the international legal field, conversely, has always been that it could not easily draw on some sovereign authority, in the way domestic lawyers have historically been able to. This is why many scholars of the emergence of transnational and even international legal fields have been rightly fascinated in their nature as “weak” fields (Vauchez, 2008, 2014). Yet international criminal justice, by its very definition (or, one should say, by the very definition that field agents must give of it), does not have the option of being a “weak” regulatory field. Unlike the lex mercatoria or the evolving regulation of the environment, it stakes its success at least nominally on some form of enforcement.

12This means that the issue of sovereign backing is curiously radicalized in the case of international criminal law, a law that is uniquely reliant on its effective institutionalization (international criminal courts). Yet the founding paradox of international criminal law is that it is a criminal law without a state. Whilst not paralyzingly problematic for traditional international law – which, after all, defines itself as the law of sovereign communities knowing of no common sovereign – the ambition of forging a system of worldwide criminal justice without the promise of some resort to sovereign force is a considerable challenge in itself. Rather than the strength of a weak field (Vauchez, 2008) therefore, international criminal justice offers us the curious prospect of the (relative) weakness of a strong field. The field, in other words, is not as strong as its existence or its theory would seem to suggest. The origins of international criminal justice may have to be searched less, contrary to what the conventional field historicizing suggests, in Nuremberg or similar institutional precedents, than the slow and gradual social constitution of the field before, during and after the existence of actual institutions of international criminal justice.

13As a result of this inherent weakness in its ability to centralize power and secure enforcement, international criminal justice as a field is, as it were and at least at this stage of its history, more “alone” in secreting its own authority. It does not grow “in the shadow” of some massively institutionalized form of power, as much as it is arguably largely created by some of its artisans, who will need to be normative entrepreneurs of the first order. The constitution of the field of international criminal justice, in particular, requires an investment into an entirely new type of legitimacy that can hardly be taken for granted, one that appropriates some figure of the collective and stands in for a certain concept of international justice or ordre public. This imposes a particular constraint for those who are active in the field, requiring them to deploy considerable efforts, and engage in a broader range of self-sustaining practices than would typically be required domestically or internationally for more established fields. This is all the more so that international criminal justice seeks to introduce a veritable paradigm shift in the way international relations are conducted.

II - Emergence

14The idea of international criminal justice has been floated around in international legal circles for almost a century (Lewis, 2014). It was periodically held up as a solution to international ills by various luminaries and organizations such as the Association internationale de droit pénal (AIDP). However, aside from the spectacular example of Nuremberg, it had remained largely lettre morte. Moreover, those associated with the project generally remained on the periphery of international law, largely excluded from its inner circle by mainstream public international lawyers, whose primary emphasis was on inter-state dispute settlement and adjudication. The AIDP was, after all, merely an organization of criminal lawyers with views of how their discipline might have something to contribute to the perennial problem of international order, and certainly did not belong to the inner sanctum of international law. Although organized transnationally, its capital was largely insufficient to attract sovereign backing in a context where international criminal justice promised to overturn many of the fundamental tenets of the Westphalian order.

15In retrospect, Nuremberg stood out but less as an example of the success of the field of international criminal justice in implementing its designs, than of states using international criminal justice for their own ends. The small group of international lawyers who sought to maintain the ideal of international criminal justice beyond Nuremberg and through the Cold War (Ben Ferencz, Cherif Bassiouni) were woefully unsuccessful, except insofar as they managed to redefine the project as being about something else than crimes committed by the state (e.g. terrorism) in ways that, again and briefly, aligned the field with international political priorities and garnered it some moderate traction. The lesson, however, was that international criminal justice can ultimately only prosper within a framework of state consent and encouragement.

16The end of the Cold War provided a window of opportunity for the project of international criminal justice, although it competed with a variety of other projects: the new “international order” and the brief resurrection of collective security following the Iraq war; the multiplication of peace operations; or a newfound ambition for human rights in the international sphere following the 1993 Vienna Conference. At the same time, the idea of international criminal justice profited from the inadequacies of all of the above: the new international order turned out to be short lived and too dependent on US power following Somalia; peacekeeping met its limits in Bosnia and Rwanda; and there was little that the conventional human rights machinery could do to avert massive human rights violations. It is within this environment that the rise of international criminal justice – manifested in the creation of two ad hoc international criminal tribunals and a permanent court in less than half a decade – must be understood, but it can hardly be understood only on the basis of that environment.

17Rather, the emergence of international criminal justice and its characteristic institutions must be understood as a manifestation of specific forms of investment by various agents seeking to create opportunities through the energizing of a legal field attuned to the needs of the time. Specifically, the field consists in the competition for the emerging market, since the end of the Cold War, of the problem increasingly understood as that of societies in transition (Teitel, 2000), namely societies previously characterized by authoritarianism and central planning and henceforth destined to move towards liberal democracy and a market economy. The process, of course, is at times indistinguishable from broader processes of law’s globalization understood not so much as a “thing in itself” (that would, for example, through sheer density of exchanges create a cosmopolitan conscience) but as the investment into the emergence of forms of global law by particular interested elites. Early players in the field include the US Institute of Peace, for example, which helps fund some of the seminal studies in the area (Kritz, 1995). In these early stages, lawyers remain on the sidelines of the field which tends to be dominated by policy and economic experts.

18The turning point is provided by the Bosnia debacle and, following quickly on its heels, the Rwandan genocide, which further suggest the limits of a purely managerial model of transition when confronted with cataclysmic human rights violations. It is at this stage that specifically legal forms of expertise move at the forefront to suggest an arsenal of responses to a problem increasingly defined as one of “international crimes” rather than simply transitioning of societies from one state to another. An entire conceptual apparatus, long in the making but now brought forcefully to bear by international lawyers, emphasizes in particular that (i) certain norms in international law have a higher status in the hierarchy of norms as a result for example of being of jus cogens, such that (ii) the violation of these international norms henceforth constitutes “international crimes” whose repression must take precedence over the pursuit of other international goals, and (iii) for which individuals – as opposed to the classical locus of international responsibility, states – must ultimately take the blame. In this perspective, the field initially promises a number of improvements upon the classical structure of international law including (i) a more systematic accountability than the traditional system of dispute settlement could offer, (ii) an ability to differentiate between “bad apples” (individuals) and societal structures that is presented as more modern and discriminating, (iii) a form of enforcement that can transcend international law’s weak “civil” sanctions, and (iv) a reservoir of knowledge inherited from domestic criminology and penology which foregrounds goals such as deterrence and social peace.

19Initially, the field is hard to distinguish from other fields and, in fact, barely in existence. It is composed of a variety of individuals militating for international criminal justice but who can be said to belong to other fields (in that almost none would define themselves as “international criminal lawyers”): diplomacy, activism, academia, the military, etc. Indeed, in its early days, the field of international criminal justice is a strange mix of the activist and the scholarly, the legal and the diplomatic, the expert and the profane. It emerges at first at the intersection of a number of professional trajectories including (i) a small number of “torch bearers” from an earlier era whose role is to essentially allow the field to connect with an older, illustrious past (e.g. Ben Ferencz, former Nuremberg prosecutor, and defender of international criminal justice extraordinaire), (ii) a number of “scientific validators” whose role in sustaining the credibility of the discipline during the Cold War is crucial in providing it a certain scientific pedigree and who allow connections to a whole repertoire of criminal and criminological vocabulary (e.g. Cherif Bassiouni, President of the Association internationale de droit pénal), (iii) human rights activists and scholars often involved in South American and Eastern European “transitions” and who have coined and been associated with the “anti-impunity” struggle, (iv) a small group of international humanitarian law veterans implicated in the effort to prosecute war crimes under the Geneva Conventions.

20These various actors almost invariably proceed from the starting point of a certain symbolic social advantage, often inherited or acquired through early socialization in international circles; yet almost all also operate calculated breaks from the reproduction of the domestic legal establishment (notables) and indeed of the traditional international legal power structure (associated with the noblesse oblige of public international law and such institutions as the International Court of Justice). The same goes for those who began as “human rights lawyers” but will gradually reinvent themselves over the next two decades as international criminal lawyers (William Schabas for instance). For others, the issue is one of reconversion of a certain know-how that the end of the Cold War risks making outdated (for example the investment in such forms of international criminal law as aggression, terrorism and Apartheid), even as it creates potential débouchés for new generations more attuned to the changing international legal landscape.

21Although their motivations may vary, these various groups find themselves uniquely well positioned in the early 1990s to invent the field of international criminal justice as the piecing together of heretofore separate strands: the pedigree of international law, the activism of human rights, the technique of criminal justice, the ambition of peacemaking, etc. They reinforce their status and the field’s by making alliances between themselves, and by making sure they are in the right place at the right time to amplify, systematize and take advantage of states’ renewed willingness (which is, to begin with, only that) to experiment with the international criminal justice “form”. Rather than simply being implementors of states’ designs, therefore, they have a constant role in promoting the field’s institutionalization.

III - Demarcation

22The emerging international legal-criminal field offers a way of understanding international reality and a range of solutions that compete with those of others, leading to a series of increasingly sharpened turf battles (Dezalay, Garth, 2004). If the general stake of the competition is the market for certain “transitions” in the post-Cold War order, then its more immediate contest is the monopoly of the characterization of certain events in the social world as “international crimes” rather than, for example, humanitarian catastrophes, impediments to peace, or moral tragedies. International criminal justice, in this context, involves a highly specific way of “knowing” and of designating certain atrocities as “crimes” that is irreducible to other fields. Hence the origins of international criminal justice in the 1980s-90s were marked by a fundamental and radical effort to reframe certain issues as, henceforth, essentially issues of international criminal law. This is clear for example in early efforts to redefine post-dictatorship justice in Latin America as involving an impunity problem (Orentlicher, 1991), the legacy of the Second World War as involving problems of international criminal law consistency across jurisdictions (Wexler, 1994), or the South African Truth and Reconciliation Commission as potentially delinquent from the point of view of international law (Dugard, 1997). From thereon, if what happens in Sudan, for instance, is a “genocide” then this will call for a particular form of international criminal justice intervention – indeed one that almost excludes other types of interventions. This highly specialized language of formal juridical characterization of violence is the distinguishing mark of international criminal law and each time, as they are wont to do, neighboring fields speak in its terms (human rights, the laws of war, all manifest a “turn to the criminal”), they implicitly and perhaps unwittingly reinforce its symbolic dominance.

23At the heart of the field’s social construction, then, lie a number of practices of demarcation from other fields (e.g. efforts to conquer the field’s own irreducible space, which lead it to wage a series of “turf wars” on various fronts). Perhaps by now the best understood aspect of the rise of international criminal justice is its competition with the logic of diplomacy and peacemaking (Hagan, Levi, 2005, 1505). To this day international criminal justice is locked up in a complex life-or-death battle with these to deny them at least in part the ability to address “crimes” according to their own language (of peace treaties, amnesties, etc.). Where the traditional diplomatic approach might have emphasized the need to prioritize peace agreements over the pursuit of (penal) justice in certain cases, the field of international criminal justice is led to emphasize the absolute priority of the criminal approach. This tension is particularly evident in debates on universal jurisdiction where prosecutions are seen to threaten traditional diplomatic channels (Kissinger, 2001) and also extends to a contestation of modes of United Nations intervention in armed conflicts (Meisenberg, 2004). The firmness with which the anti-amnesty stance is held, especially in the early days of international criminal justice and even at the risk of significant setbacks, is reinforced by a degree of sloganeering (“No peace without justice”) but also borne from a realization that the force of (criminal) law is also dependent on its having “the last word” on such issues.

24Simultaneously, participants in the field of international criminal justice are keen to distinguish it from the earlier but continuing field of transitional justice, which, like diplomacy, stakes a partly overlapping claim to some of the same markets. Where the latter potentially extends to the totality of issues raised by transitions, the former seeks to foreground the specifically criminal dimension involved in any transition, to the point of suggesting that transitional justice should be reduced to questions of criminal accountability. The spaces, networks, NGOs and sources of governmental support may overlap in part but remain quite distinct. This of course prompts resistance from transitional justice as a field including claims about its broader, more comprehensive nature, and its usefulness in managing the complexity of transitions. The “turf battles” between the two are evident for example in relation to various truth and reconciliation processes and the question of whether international prosecutors should defer to them, with an emphasis on the need to resolve these issues on the basis of international legal principles (Robinson, 2003). Although these are of course intellectual disputes in their own right, understanding them as skirmishes between fields vying for domination makes tremendous sense of the dynamics at work.

25An equally and perhaps more enduring form of demarcation, however, arises out of international criminal justice seeking to demarcate itself simultaneously from both domestic criminal law and international law, and their respective practitioners, institutions and ways of being. Such “turf battles” are perhaps all the more intense that they are fought partly within legal fields as part of increasingly strident contests over their eventual direction and a certain monopoly over their intellectual definition. International criminal justice certainly benefits from its very ability to stand (or claim to stand) at the confluence of international and criminal law: from the former it draws its claim to universality and a sense of being the latest chapter in a long progressive saga; from the latter it derives a focus on the individual that seems more in line with the globalizing zeitgeist, and on enforcement that helps quell the traditional anxiety about whether international law is “really law”. The field is also generous to new transfers. For some domestic criminal practitioners, international criminal tribunals provided a possibility of significantly extending their reach and notoriety, in ways that could then be reinvested domestically or in other transnational practice (for example the English barrister Geoffrey Robertson). In seemingly breaking down barriers between the international and the domestic, international criminal justice managed to simultaneously propose new markets for domestic ideas and a new influence for international ones. For international lawyers, international criminal justice promises a new centrality in the management of world affairs. Indeed, international criminal lawyers have managed to make themselves indispensable to the domain of internal conflict resolution and transition, an area from which they would have been traditionally excluded (as opposed to the domestic lawyers of the country in question, or possibly constitutional and human rights lawyers). Those international lawyers who successfully recast themselves as international criminal lawyers could suddenly count on prestigious positions (judgeships, keynotes) that would previously have been unavailable.

26To begin with, international criminal law obviously shares some practices and concepts with domestic criminal law but its environment and ambitions differ. Although international criminal lawyers may emerge from and draw on the authority of fields of domestic criminal practice as validators of their expertise, they also seek to emancipate themselves from them in an effort to deprovincialize their credentials. Moreover, they seek to forge transnational alliances (through, for example, such organizations as the Association internationale de droit pénal) in a context of globalization of criminal regulation and global competition for criminal law markets by states (Hägel, 2005). Interesting instances of this include the various draft statutes of the Yugoslavia tribunal provided to the Security Council by American, French and Swedish bar associations in 1993, or the trajectory of domestic criminal law scholars who successfully reconverted some of their capital into international criminal law (e.g. George Fletcher, Mireille Delmas-Marty or Otto Triffterer). Simultaneously, the investment in internationalization may be met with intellectual resistance and a sense of being threatened from those who cannot avail themselves of transnational connections.

27As to international law, although international criminal law shares an object with it, its methods are distinct, more concrete and geared towards enforcement. Indeed, within the international ambit, the rise of international criminal justice inaugurates a radical transformation of the legal function away from the traditional mediation role of classical international justice and towards a much denser ability to condemn (Mégret, 2013b). International criminal justice thus cannot draw unproblematically from the authority of international law and is either an attempt to carve its own niche within it or, at times, to redefine that broader encompassing field altogether. For example, international criminal tribunals will develop their own theory of sources that mixes elements characteristic of international law (treaty, custom) and criminal law (general principles of criminal law widely recognized), and tend to solidify the claim that international criminal law is the repository of specific forms of disciplinary knowledge. They will objectively compete with more traditional and “venerable” fora, including the International Court of Justice, for the spelling out of international law (Condé, 2012). Ultimately, it is hard to avoid the reality that the rise of international criminal law also represents a powerful sidelining of the methods, ideas and modes of intervention of classic international lawyers.

28Finally, two other significant “turf battles” are worth noting. The first is between international criminal justice and human rights: international criminal justice brings the promise of enforcement for a relatively narrow sub-set of massive human rights violations, but it does so with a know-how that is largely irreducible to the human rights field’s traditional ways and in ways that suggest an implicit “aristocracy” of the fight against rights violations, capable of wielding criminal repression. Human rights lawyers are there from the beginning of the birth of international criminal justice (for example by emphasizing the “right to an effective remedy” including criminal justice) but they do over time become sidelined as key players in the field of international criminal justice unless they transform themselves into bona fide international criminal lawyers. The second is between international criminal justice and the field of the laws of war. Here international criminal justice represents more of a frontal challenge to the traditional neutral and conciliatory tone struck by an organization like the International Committee of the Red Cross whose symbolic capital lies historically in its ability to act very closely to the inter-state world. The painful negotiation of when and how the ICRC might be compelled to testify before international criminal tribunals is a manifestation of this tension between the specific logic of competing fields, one focused on intermediation and the other retribution (La Rosa, 2006).

29Even as international criminal justice differentiates itself from other fields within them as it were, it manages to put itself at the heart of the mediation between such fields. Indeed, the strength of international criminal justice as a legal field may lie precisely in its unique ability to arbitrate between different fields. Dixon and Tenove (2013) for example have shown the centrality of international criminal justice to the definition of what types of transitional justice pass muster. From a more specifically legal standpoint one could point out that the field of international criminal justice increasingly has the upper hand in determining who gets prosecuted (as against the field of politics), what peace agreements and amnesties stand (as against the domination of the diplomatic field), or whether and when other actors can be compelled to testify before tribunals (in relation to the humanitarian, media fields). The ability to increasingly assess these dilemmas on its own terms, then, is what affirms the domination of international criminal justice over competing fields.

IV - Competition

30This process of demarcation, moreover, is replicated within the field of international criminal justice and forms the basis of a constant competition for its definition. In fact, every process of demarcation is replicated internally by a process of rivalry. Different groups within the broad but evolving field of international criminal justice compete for symbolic capital and launch various takeover bids for dominance. This emphasis on internal “turf battles” is important because it speaks against a certain tendency to see “international criminal justice,” even by those political scientists who acknowledge its sociological component, as a movement speaking with one voice, as opposed to a movement moving in different, even irreconcilable directions. The literature on “epistemic communities” for example, always seems to imagine a sort of collegial avant-garde that is consensually pushing the field forward, in ways that minimize the element of internal struggle and, in fact, the difficulty of even defining the avant-garde except as a form of retrospective validation (Madsen, 2013).

31Moreover, in its tendency to focus on competition between different types of actors defined in categorically generic terms (e.g. in the IR tradition of thinking about “civil society” vs “states”), it fails to see the field’s porosity and how it in fact straddles, through “revolving doors” and alliances, the conventionally understood “interior” and “exterior” (yesterday’s “diplomat” or “statesman” can be tomorrow’s “NGO activist” or “scholar”). The risk is that the particular hegemony of IR scholarship will mask subtler and more fluid sociological processes linked to individual trajectories that are never reducible to the broader fields within which they operate. In this context, for example, the field’s internal competition is also structured by the significance of various “defectors” – individuals who convert the capital acquired in another field into that of international criminal justice – and who then emerge in a position of power as a result of their ability to act as mediators between different fields. For example many of the leading judges of international criminal tribunals had previously acquired significant capital in international law and human rights scholarship (Antonio Cassese, Theodor Meron, Georges Abi Saab) or diplomacy (Philippe Kirsch, Kuniko Ozaki, Silvia Fernandez de Gurmendi), leading to the emergence of this new professional type, the activist-scholar-diplomat-judge, one who may for example be called upon to negotiate the creation of the Court on whose bench he will then sit on and eventually write about. Every process of demarcation from neighboring fields often involves simultaneous and paradoxical phenomena of cooptation of members of such fields who then become active participants in its “palace wars”.

32Perhaps the earliest and in some ways most influential competition contributing to the consolidation of the international criminal justice field has been between “international” and “criminal” lawyers. The former (Antonio Cassese, Georges Abi-Saab) tended to dominate tribunals at their beginnings and sought to emphasize that international criminal law was really above all the latest episode in the broader history of public international law. They emphasized issues of international legal consistency, the need to encourage the progress of international humanitarian law and their ability to provide a certain architectonic vision for the discipline (Abi-Saab, 1998). Contra such a move, a group of criminal lawyers with backgrounds in domestic criminal practice and theory increasingly and successfully argued that the discipline of international criminal law is not that different from domestic criminal law and that they bring the most appropriate tools and technical know-how to bear, for example, familiarity with the practicalities and complexities of managing criminal trials (Boas, 2007). It is generally understood that criminal lawyers bring with them hard won domestic capital that translates well internationally because it comes with the aura of established state criminal practices. In the case of the leading figures in the prosecution (e.g. Goldstone as Apartheid transition lawyer, Louise Arbour as former Canadian Supreme Court judge, Carla del Ponte as seasoned Swiss prosecutor), the profiles straddle both the domestic and the international, and the legal and political fields.

33A second line of fracture that characterizes the competition for the monopoly of the definition of law is that which opposes “academics” and “practitioners.” In some ways international criminal law as a largely speculative practice was historically a quintessentially scholarly field, leading to a certain idealization of various “founding fathers” (Raphael Lemkin, Telford Taylor, etc.). Scholarly pursuits in international criminal justice still loom relatively large within the field and have a sort of “larger than life” quality. Scholarly attention is welcome attention because it implicitly frames the project as an interesting one, even as the multiplication of specialized conferences and publications provides significant opportunities for symbolic capital validation (keynotes, prefaces, prestigious invitations). The weaker the field is effectively, the more it may be tempted to develop significant anchoring within the legal-academic world. The ICC for example has, in a sense, surrounded itself with academics, generously opening its doors to some in ways that enhance their access to the “actual” inner workings of the Court and thus their ability to be “in the know”. Yet on the other hand, precisely because the field needs to be taken seriously, it must also seek to distance itself from its more theoretical proponents in ways that affirm the primacy of the practical and the concrete over the speculative (at times bordering on a form of anti-intellectualism). Hence the relative marginalization of scholarly and intellectual ambition from actual tribunal practices, except in a very instrumental way (e.g. anthropologists or historians providing expert testimony on a particular situation, occasional lecture series).

34A range of other rivalries based on paradigmatic and disciplinary differences worth mentioning to understand the field’s intellectual and professional constitution (its disciplinary content) are between inter alia: (i) criminal lawyers who pride themselves in their focus on the rights of the accused vs “international human rights lawyers” who are suspected of privileging the injunction to repress grave crimes or to excessively side with victims (Danner, Martinez, 2005), (ii) “liberals” who argue that international criminal justice is no different from any form of domestic criminal justice and should above all concentrate on the fairness of the proceedings in any given case vs “show-trialists” who emphasize the expressive role of international criminal law, the implications of international criminal trials for transitional justice, and the need to appropriately politicize trials (Osiel, 1999; Koskenniemi, 2002), (iii) “supranationalists” for whom international criminal justice is above all about the “core” crimes and a vertical concept of repression vs “transnationalists” for whom the discipline is much broader and includes all variants of transnational crimes with global implications (Boister, 2003), (iv) statists, who argue that international criminal justice is and should be primarily about punishing crimes of states vs non-statists who argue that violence should be prosecuted whatever its origin and extend to, for example, corporations (Clapham, 2004), (v) centralizers who consider that international criminal law should be marked by its universalism and impose a high degree of homogeneity vs pluralists for whom the idea of global common offences is compatible with a large “margin of appreciation” (van Sliedregt, Vasiliev, 2014), (vi) accused focused defense attorneys who consider that the defendant should have a particular pride of place in the criminal trial vs defenders of victims’ rights who insist that the fate of victims should increasingly be borne in mind by the international trial (Zappalà, 2010), (vii) common lawyers vs civil lawyers (Ambos, 2003).

35The field of international criminal justice is the field wherein these intellectual struggles occur, and which allows participants over time to assert dominance against a background of professional, theoretical and cultural allegiance. The battles between these different schools are fought in the courtroom but also to a large extent in scholarship and, increasingly, through the blogosphere. The positions that can be taken within the field, moreover, are deeply influenced by one’s position within it: the further at the periphery of the field, the more agents may be tempted by unorthodox positions that attempt to unsettle it; the closer to its core, the more one is likely to engage in merely doctrinal scholarship or no scholarship at all. Such polarities often overlap with significant generational competition between the international criminal lawyers of “yesterday” and those of “tomorrow”. However, they also form the basis of an implicit division of labor within the field, for example between its practitioners and its theorists (as a result of which the latter can all the more engage in occasionally heterodox excursions that their real influence is discounted), or its technicians and its statesmen (with major change within the field outsourced to the latter), etc.

36As can be seen, these intellectual debates closely overlap with disciplinary and professional contests. For each of these rivalries one can detect over time the consolidation of relatively precarious hierarchies. Competition leads to the emergence of relative “winners” and “losers” with attendant phenomena of empowerment and exclusion. The competition between different groups is also part of a broader process of generational renewal where young(er) professionals who are very heavily invested in the field vie to displace an earlier generation that is seen (and presented) as alternatively too theoretical, too wedded to international legal models and ways of reasoning, or to the legacy of ancient tribunals. At the same time, the younger generation needs the validation of the “elder statesmen” of the field to make significant headway, so that advantage is achieved through a subtle process of aligning with the orthodoxy whilst discreetly challenging it, mentoring and betrayal. The emergence of an elite, both stable and renewed over time, is validated by the most coveted prizes of the field (judgeships, chairs, awards, etc.) but also by the controlling role of group pressure, career expectations, “standard trajectories”, etc.

  • 1 Although it is of course notable that a small coterie of repeat participants as defense attorneys i (...)

37The outcome of the competition also underscores over time the different positions occupied by agents based on access to different types of symbolic capital. At more intermediary and junior levels (which may be a sign of things to come higher up the ladder) tribunals are populated by a cadre of typically relatively young professionals whose real and sometimes strikingly only expertise and even disciplinary allegiance is to international criminal law proper. These individuals are in a sense the most committed to the field, and those who can be expected to invest most in it because their personal fate is most tied to it. They are particularly entrusted with the day-to-day management of the life of international criminal justice. This emerging technocratic as well as legal avant-garde can be usefully contrasted with individuals whose association with international criminal justice is more transient. These include some senior judges and prosecutors drawn out of the ranks of, typically, national judiciaries and who are destined, having graced the international criminal justice field with their prestige, to return to various national careers. It also includes, characteristically, defense lawyers who, despite being central to the project’s liberal credentials, often remain on its institutional periphery and are suspected – rightly, one would expect – of being more committed to their clients than to international criminal justice’s reign1. Non-repeat players are coopted into international criminal justice for a time and their subsequent reentry into various other fields may serve to reinforce the field’s centrality.

V - Community

  • 2 Those who are associated with the most virulent critique of international criminal justice are eith (...)

38The crucial insight, however, is that the field is hardly destroyed or weakened by these struggles but reinforced by them. The tensions are less destructive than they are constitutive of the field. Debates arise in possibly robust but nonetheless polite fashion amongst a broad array of professionals who may be competing for dominance but agree implicitly on the boundaries of the field and have committed to having a professional stake in it2. Hence their slightly “well-rehearsed” and rather incident character, since the field will ultimately never allow a good “theoretical” or “doctrinal” dispute to get in the way of its focus on aggrandizement and consolidation. This is the paradox of even vigorous internal debate, namely that it often reflects some prior commitment to the field which already creates opportunities for dynamically differentiated positioning without ever endangering the enterprise as a whole. At a deeper level, then, the constant tension between difference and identity serves to temporarily cement alliances and a certain like-mindedness that gives the project an air of normalcy, even in the midst of a fundamentally challenging international political circumstances.

39Within the field, the element of congruence is reinforced by the tremendous intermingling of careers and the transferability of capital acquired in one international criminal tribunal to another. Former diplomats or NGO activists involved in the Rome negotiations have made their way to some of the highest positions in the international tribunals, illustrating the power of revolving doors. A select few individuals have even worked successively for the chambers, the prosecution or as defense counsel of particular or different tribunals, and have then transferred that capital successfully to other areas of the practice of international human rights (e.g. fact-finding missions, leading NGOs, etc.). A transnational class of elite, polyglot, well-travelled professionals emerges – something like Elena Baylis’s “post-conflict junkies” (2008) – who are all the more likely to identify with the broad and universal vision of humanity which international criminal justice presupposes that their personal and professional destinies have become enmeshed with it. As such, an element of community building is arguably central to the field, in that it is also based on the constitution of a set of relatively like-minded professionals coalescing around common values that over time may form the backbone of international criminal justice’s authority. International criminal justice professionals socialize in the prime loci of international criminal justice (the Hague, above all), reinforced by the secrecy and compound nature of some of the tribunals, for Lebanon or Sierra Leone for instance (Eltringham, 2008). A number of elite academic institutions and more opportunistic academic actors that emerge as a result of the field’s reconfiguration play a central role in devising curricula and “standard” trajectories. Over time, the field’s dominant participants increasingly define the canon of success in terms of education and employment.

40Indeed, one of the paradoxical consequences of the competition is, given the professional investment required to participate in it at a relatively high level, a gradual autonomization, even a sort of insularization, of the field that makes its participants even more dependent on it. The impermeability of international criminal justice to other fields grows stronger with time as the “entry costs” of specialization increase ( Dezalay, Garth, 2010): with a few exceptions, for example, international careers are made within a few hundred meters of each other in the Hague with little opportunity for example of transitioning from an international criminal tribunal to the ICJ (or vice-versa, for that matter). Similarly, the rise of international criminal justice creates its own “criminal” canon that may not be entirely cut off from national sources but is at least in tension with them. National defense lawyers may find it hard, unless they are willing to invest significantly, to become international criminal attorneys in the Hague; conversely, it seems that amongst the new generation of “true” international criminal lawyers created by the great recruitment drives of the 1990s many have struggled to find domestic débouchés, notably as the activities of ad hoc tribunals have dwindled, suggesting that symbolic capital acquired in the international field is not easily transferrable domestically. Amongst those who proceeded to successfully convert the symbolic capital accumulated in international criminal tribunals in other fields (human rights, academia), many already had significant symbolic capital before they entered tribunals (Payam Akhavan, Cécile Aptel, Alex Whiting).

41Over time, the competition is also conducive to the emergence of a new professional ideal type that best incarnates the ambitions of the field and its specific symbolic capital. The early choice of either international or domestic criminal lawyers may have reflected the difficulty of recruiting people with the right amount of seniority that could be said to be truly both. With the passage of time, the specificity of the skills that make the “international criminal lawyer” is, on the contrary, emphasized. As a result, one of great phenomena of the last 20 years is the rise of a particular type of international criminal legal practitioner, hopping from tribunal to tribunal and one type of position to another, writing in the field’s leading journals, and gaining increasing ascendancy. This also coincides with the emergence of a certain “style” of the international criminal lawyer: strong on the technique but politically aware; rooted in history but with an eye on the telos; empathetic to victims but protective of defendants; savvy about states but accountable to “Humanity”, etc. Getting any of those subtle mixes wrong can be interpreted as a faux pas, exposing one to (discreet) marginalization: the archetypal international criminal lawyer succeeds because his habitus is finely attuned to the expectations of the field.

42Moreover, international criminal justice relies on a series of shared “common places” about its origins and finality that have a role in reducing some of its chronic and possibly paralysis-inducing anxieties (Mégret, 2015). For all the surface disagreement, part of the discipline’s resilience can be explained by the existence of a deeply shared doxa that emphasizes the centrality of individual responsibility to the international order, a real sense of mission to enforce certain norms, and a belief that the international legal order will break apart if that responsibility is not enforced. Some of the conceptual predispositions of the discipline are therefore its methodological individualism and reductionist focus, expressed in a willingness to characterize macro-political events as issues of individual agency and wrongdoing (Mégret, 2013a). One should add to the set of doxic beliefs at the heart of the discipline (i) an emphasis on “atrocity crimes” (public, state-based) over transnational/private crimes, and (ii) an acceptance of the idea that specifically international legal structures are a necessary element of any satisfying system of universal repression. To be sure, there are unorthodox contestations of all of these tenets at the margin but, together, they may be held to constitute the core of what constitutes the unchallenged implicit assumption of international criminal justice as a field today.

43Other tropes on which the field’s constitution relies include a deep indebtedness to a narrative of itself as a historical enterprise moving from the ad hoc to the permanent, the political to the legal, the incompletely international to the universal. Nuremberg and Tokyo, or so the story goes, were imperfect but necessary experiments in establishing the idea of international criminal justice; the ICTY and ICTR were “laboratories” for a more permanent engagement with international criminal trials; the ICC then heralds a new age leading to a horizon of universality of international criminal justice. The historicization of international criminal justice, the sense of a “discipline in motion”, and the inscription within a redeeming telos allow a minimization of the faults and limits of the past and the present, for over time “losses” are more likely to be offset by eventual “gains.” Telos displaces the anxiety of the present by substituting a vision of the future to doubts about the here and now. It goes hand in hand with frequent reminders that international criminal law is young discipline, one whose mistakes of youth should be forgiven.

  • 3 This is also evident concretely as a result of the Bosnia v. Republic of Yugoslavia case before the (...)

44Finally, the field’s coming into being is consolidated through a constant attention to its institutionalization as a means of entrenching some of its achievements. Indeed, whilst the field is certainly broader than its institutions, the “brick and mortarization” of international criminal justice undoubtedly increases its staying power, maximizes its ability to assert its presence and centrality to international dilemmas over time, dispels the doubts of those who would see it as only a particularized and localized experiment, all the more easily suspected of being “political”, and makes it more likely to attract the sort of sustained personal investment that is needed to guarantee its ascendancy. It is arguably only with the institutionalization of international criminal justice – specifically, the creation of international criminal tribunals – that the opportunity arises for the field to more durably emerge as a distinct locus of practice, one increasingly irreducible to other fields. In particular, institutionalization makes it possible for international criminal tribunals to become regular articulators of international law and thus central actors in the international legal field more generally, possibly even displacing the traditional symbolic hegemony of the “world court,” as the ICJ is often known3. In short, the gradual constitution of the field allows its practitioners to help create the institutional opportunities they need for the field to sustain itself. Where the creation of the ad hoc international criminal tribunals in 1993 was in large measure an ex nihilo creation of states, the creation of the ICC in 1998 can already be seen to owe much more to the concerted efforts of a range of individuals heavily invested in the institutional and professional dynamics of international criminal tribunals. In a sense, international criminal tribunals become a self-fulfilling prophecy about the need for international criminal tribunals to develop international criminal law.

VI - Practices

45Finally, the field consolidates itself through an investment in highly specific forms of know-how and practices that reinforce its capital as a specifically legal field. The shift to practices has started garnering significant attention as a mode of understanding international criminal justice from the ground up as it were (Meierhenrich, 2013; Mégret 2013b; Kendall, Nouwen, 2013; Hoover, 2013; Werner, 2013; Hagan et al., 2006). The practices that will be mentioned here have little to do as such with what dominant accounts of international criminal law suggest is the heart of the discipline as a fundamentally adjudicative enterprise (interpretation, implementation, enforcement, etc.). Rather, they are often concerned with a series of activities that most international criminal lawyers would consider to be peripheral at best to the law yet which, in helping sustain the field of international criminal justice as a legal field, are arguably absolutely central to it. All are linked to the constitution and the preservation of the particular symbolic power of international criminal law.

46First and perhaps most obviously, the field relies on the investment in and production of forms of legal know-how. The investment in the law might seem evident for legal institutions but its particular density can only be understood as part of sustaining the centrality and uniqueness of the expertise of the international criminal lawyer. Precisely because international criminal justice does not have the legitimacy of a state, it is all the more suspected of engaging in a form of politics. Hence the importance of what Bourdieu described as the law’s objectivation function (Bourdieu, 1986a) in distracting from the suspected fundamentally political character of international criminal justice in a world of states. Crucial to this vast ambition is the ability to reduce complex macro-political events to the language of guilt and innocence, perpetrators and victims, etc. (Akhavan, 2012). Moreover, the authority of the field is reinforced by an agenda of normalization of international criminal law (a process of “legalization of the law”) that aims to bracket and subdue its exceptional and hegemonic character. Contra the original “heroic” style of Nuremberg jurisprudence, international criminal law has become one of the loci of positivist and technical passion. As part of that process, the field sanctifies the nullum crimen sine lege principle, invests heavily in time consuming procedural issues, develops its own doctrine of sources, and rediscovers the fundamentals of criminal law. The tendency to cite precedents in detail, including increasingly of other international criminal tribunals, suggests the emergence of a normalized community of international criminal courts and to dispel doubts about the fundamentally creative process of law’s production.

47Second, the field relies on a range of quasi-diplomatic skills that may seem a long way from the law and involve a delicate pas de deux at the intersection with the field of general politics. Various sociologists and political scientists have explained the mechanics of such a practice already (Hagan, Levi, 2005; Peskin, 2008). Hagan and Levi (2005) have shown convincingly how the ICTY, for example used its meager capital deftly, by developing, at the intersection of law and politics, a specific form of judicial politics. When it comes to the surrender of the accused to the ICTY, international prosecutors over time maneuvered to encourage the EU to make the transfers of indictees a condition of accession negotiations. The ICC has relied heavily on states, but also sought to distance itself from them when their support was not forthcoming. In fact, senior figures in international criminal tribunals have often acted as sophisticated lawyer-diplomats (when they do not come directly from the ranks of foreign relations, as several judges have, including one ICC President). Making prosecutorial initiatives pass as states’ own through self-referrals was one of the judicial tours de force that may ultimately prove one of the ICC’s greatest sources of strength. The accommodation of incumbent heads of states in the context of the Kenyan situation, much decried by purists, can also be seen as a tactical move to not push one’s advantage too far in a way that might alienate key African constituencies. These practices, however, have typically been of more interest to political scientists or sociologists than to lawyers, even though they are arguably central to the field’s sustainability as a legal field. Nothing threatens the field’s existence more than the perception that it might be merely part of the general field of power, specifically of international politics. At the same time, the field needs a minimum connection to power to effect its promise for enforcement. Hence the navigation of international politics – political as it may be - is perhaps the most characteristic manifestation of a legal habitus, understood as a range of quasi-innate practices that operate on the margins but simultaneously as conditions of possibility of the field. It is this habitus that allows senior prosecutors for example to know when issuing indictments might backfire, when they exceed their invitation with states, or what sort of attention to timing or form will maximize the chances of minimizing sovereign backlash.

  • 4 An interesting yet frequently overlooked illustration of the complex set of administrative practice (...)

48Third, as the field moves away from the “heroic” figures of its beginnings it invests heavily in a range of bureaucratic practices that are more reminiscent of the logic of good governance than specifically jurisdictional, and increasingly orient it in a more managerial direction (Langer, 2005). Evident in that respect are powerful logics of institutional professionalization, standardization and “best practicization”. The ICC, in particular, has produced a startling wealth of documents outlining its policies (strategic papers, governance reports, etc.) in which, at least in the early years, it seemed intent to project a “total” normative view of itself long before it had even issued any final judgment. Undergirding these processes is an apparent commitment to practices of transparency and accountability as signifiers of a modern administration. The ICC is seemingly a glass tower, one through whose walls the processes of international criminal justice in the making can constantly be discerned. Prosecutors of international criminal tribunals have at least tried in the more controversial cases where the possibility of investigations was rejected (Kosovo, Afghanistan, Iraq, Palestine), to highlight why. It matters little in this context that the reasons for the most crucial decisions of all (i.e. decisions not to investigate or prosecute) remain largely beyond view. The technocratic rather than mere judicial aspect of international criminal justice is thus increasingly significant4. This “routinization of charisma”, then, even as it remains compatible with the occasional pathos, further insulates the Court from the suspicion of politics.

49Fourth, a range of practices can only be understood as rhetorical and discursive practices of promoting the field to its potential constituents: a process of constant legitimization that goes beyond any political theoretic formula for legitimacy. Because it is, again, not backed by the automatic legitimacy of the state, the field is implicated in the exercise of creating the conditions of its own sustainability, most notably through the acquiescence of those over who it presides and simultaneously seeks to activate as a constituency. The field is thus also sustained by a range of practices that are thus better described as broadly cultural or ideational, and whose principal goal is to sustain the faith in the field both internally and externally by constantly “re-enchanting it” (Tallgren, 2002). Indeed, the field over time exhibits a strong reliance on discourse and it is impossible to understand its consolidation independently of a whole rhetoric deployed to justify and defend it, as a fundamentally logorrheic practice of comment about itself. In many respects, “saying” is “doing” and the field is deeply invested in the performative politics of language. Specifically international criminal tribunals have been engaged in policies of “outreach” that seek to communicate the relevance of international criminal justice to various populations (Mégret, n.d.).

50As part of its discursive practices, for example, the field is engaged in a constant effort to sell its goals and achievements, alternating between grandiose statements about some of its supposed benefits (“peace,” “transition,” “truth,” “reconciliation”), and sober reassessments of its goals (to prosecute and nothing else) that seek to distance the project from some of the more outlandish claims made in its name and “manage expectations.” In a context where some of its traditional justifications may appear weak (for example, the emphasis on deterrence and social protection), it rebrands its expertise along more sophisticated lines: less guarantor of social peace than independent and impartial, cosmopolitically constituted and humanitarian, professional and transparent, compassionate and fair manager of atrocity’s aftermath. At the same time, the field is constantly invoking and thus constituting a number of explicit or implicit constituencies as a result of its ability to “speak in their name” (Mégret, forthcoming). These may be states to whom the “investment” in international criminal justice is presented as worthwhile (Kendall, forthcoming), or “victims” which provide international criminal courts with a seemingly more grounded form of legitimacy (Kendall, Nouwen, 2013).

Conclusion

51International criminal justice has been steadily gathering strength over the past quarter of a century and is becoming an increasingly defining part of international law and relations generally. It has secured whatever foothold it has reached not so much because international criminal justice was an idea that was destined to naturally impose itself on the international legal order but because its rise is part of the complex and incarnated reorganization of legal knowledge and production across and above borders, as well as the investment in the newly minted symbolic capital of a relatively powerful transnational class of “specialists in horror” (Mégret, n.d.). Indeed, nor has international criminal justice actually garnered the kind of sovereign-like powers that its existence seems to presuppose: rather, through a strenuous process of socially pulling itself by its own bootstraps, it has confirmed the strength of the field of international criminal justice as the dynamic space within which the struggle for the definition of international crime occurs. This ability to create a meaningful space for social struggle, then, is what conditions the resilience of international criminal justice rather than its having achieved any of the things that international criminal lawyers are prone to present as necessary to its realization (e.g. systematic enforcement, deterrence, peacemaking, etc.).

52Focusing on the prized institutions of international criminal justice, in fact, risks mistaking the tree for the forest and blinding us to the extent to which even the force of institutions is derivative on the force of the field, and not simply the other way round. The idea that international criminal justice owes much to the particular microcosm that is behind it is not a straightforward refutation of either the idealism of those who see international criminal justice as incarnating a new universal or the skepticism of those who see international criminal justice as merely a form of imperial domination. International criminal justice might well be a manifestation of universalism despite itself as it were, to the extent that those behind it identify with and have an objective interest in universalism. Yet its power may ultimately lie less in its capacity to systematically constrain politics than its ability to present itself as the indispensable group entrusted with the management of the politics of international criminal justice and the market for political transitions. If “leave it to us” is the implicit demand addressed to the field of international political power, the field simultaneously stands as a refutation of overly deterministic accounts of international criminal justice because of the sheer agency exercised by its participants, and the always considerable margin of action that lies in the interstitial space between legalized politics and policitized adjudication. As such, the international criminal lawyer constitutes himself as a key, if supine, participant in contemporary global governance.

53This article has more specifically charted a multi-layer process through which the field of international criminal justice has come into being, created a space for itself, and contributes to the conditions of its permanence. The first section charted the basic dilemma of a project that claims considerable authority but cannot easily draw parasitically on sovereign authority. Second I suggested some of the factors to which the field owed its early crystallization, including the reconfiguration of both penal and international knowledge in a context of opportunities created by the end early post-Cold War phase. Third, I underlined the importance of demarcation – staking one’s ground – as one of the basic constitutive operations of the construction of the field. Fourth, I suggested how the external pattern of competition of the field is replicated within it as the field provides ample opportunity for struggles to define what constitutes international crimes, and produce a series of hierarchies as a result. Fifth, I pointed out that this constant struggle never occurs at the expense of the field because of the fundamental affinity of its participants and, in particular, the strong doxic elements shared among them. Sixth, I suggested that the field must constantly engage in a range of practices to sustain itself and consolidate its claim to be speaking a distinct language, the language of legal objectivation and universalism.

54The study of international criminal justice as a field – and therein lies the critical potential of Bourdieusian contributions to transnational law – is not only the study of a particular social field for its own sake. It also tells us something about which norms are likely to dominate over time and even the way in which international criminal justice manifests certain forms of symbolic domination that are all the more subtle that they express themselves through technical, academic and scientific jargon. International criminal justice is that field which has the ability to designate what, where, when and why something is a crime against humanity worthy of the most strident condemnation (Nouwen, Werner, 2010). It is also the power to speak “in the name of” when it comes to designating such crimes and thus engage in powerful rhetorical and discursive practices of subjectification and rule.

55The discreetness of that symbolic violence is reinforced by the field’s habitus and specifically the tendency for the cognitive lens with which the world is seen to subtly correspond to that world. The power to know certain things as international crimes also allows one to view a range of activities as manifestations of criminality: if for he who wields a hammer everything looks like a nail, international criminal justice constantly stumbles upon the very “crimes” upon which its existence relies. It thus allows a particular group to seize the high ground in terms of the global management of responses to atrocities in ways that sustain the field of international criminal justice over time.

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Notes

1 Although it is of course notable that a small coterie of repeat participants as defense attorneys in international criminal trials have managed to capture a more permanent role within the field, including through their own relatively peripheral attempts at institutionalization (Association internationale des avocats de la défense) or through particular advocacy efforts of existing organizations (International Bar Association).

2 Those who are associated with the most virulent critique of international criminal justice are either not lawyers at all (Henry Kissinger, Mahmood Mamdani), or self-identify, for example, as public international lawyers rather than as “international criminal lawyers” (e.g. Serge Sur, Michael Glennon).

3 This is also evident concretely as a result of the Bosnia v. Republic of Yugoslavia case before the ICJ running alongside the trials of the likes of Milosevic at the ICTY, and the attendant sophisticated judicial competition between the two, negotiated doctrinally through renewed attention to issues of litispendance and concretely by the respective attempts to assert dominance or functional competency.

4 An interesting yet frequently overlooked illustration of the complex set of administrative practices deployed to maximize international criminal tribunals’ symbolic capital are recruitment procedures. Recruitment is one of the key practices of capital building in that it validates particular profiles as relevant to the enterprise and rewards capital accumulation (of those who have shown their commitment through appropriate specialization, willingness to do unpaid work as interns, or passage through the right graduate programs). International judges and prosecutors are, if nothing else, experienced and eligible for the highest offices in their countries. Election processes for international positions are elaborate shows of CVs highlighting the rootedness (expertise in criminal trials, highest domestic judicial offices) and cosmopolitanism (international human rights law expertise, coveted consultancies and rapporteurships, acquaintance with international organizations), as well as impeccable moral credentials of candidates.

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Référence électronique

Frédéric Mégret, « International Criminal Justice as a Juridical Field », Champ pénal/Penal field [En ligne], Vol. XIII | 2016, mis en ligne le 12 février 2016, consulté le 30 mai 2016. URL : http://champpenal.revues.org/9284 ; DOI : 10.4000/champpenal.9284

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Auteur

Frédéric Mégret

Université McGill, Faculté de droit. Contact : frederic.megret@mcgill.ca

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