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The John Jay Master of Arts Online Program in International Crime and Justice provides students with an understanding of the transnational and global.
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- Q&A: Justice for International Crimes in Myanmar | Human Rights Watch
- International Crime and Justice, Master of Arts
- International Crime and Justice
Finally, while the journey towards achieving justice for gender crimes is not yet complete, this edited collection reminds readers of the major achievements of international criminal law in prosecuting sexual violence. Chapter 1. Chapter 2. Chapter 3. Chapter 4. Prosecuting Sexual Violence against Men and Boys p. Chapter 5. Chapter 6. Chapter 7. Chapter 8. Chapter 9. Chapter How to Move Forward? Countries emerging from long periods of authoritarian rule must often confront a legacy of gross human rights abuses perpetrated over many years. Given the frequency with which these problems arise, as well as the complexity of the issues involved, it is striking that no book series has taken the issue of transitional justice as its point of focus.
The Series on Transitional Justice offers a platform for high-quality research within the rapidly growing field of transitional justice. Fields have been described by Bourdieu and Wacquant as relatively autonomous social microcosms, i. 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.
One might say: it is international criminal lawyers who create international criminal justice, not the other way round. The field occupies a certain social space and under these conditions contributes to the subtle displacement of competing social fields. 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.
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, b. 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.
Unlike the lex mercatoria or the evolving regulation of the environment, it stakes its success at least nominally on some form of enforcement. 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, 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.
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.
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.
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. The lesson, however, was that international criminal justice can ultimately only prosper within a framework of state consent and encouragement. 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. 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, , namely societies previously characterized by authoritarianism and central planning and henceforth destined to move towards liberal democracy and a market economy.
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, In these early stages, lawyers remain on the sidelines of the field which tends to be dominated by policy and economic experts. 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.
Hence the origins of international criminal justice in the ss 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, , the legacy of the Second World War as involving problems of international criminal law consistency across jurisdictions Wexler, , or the South African Truth and Reconciliation Commission as potentially delinquent from the point of view of international law Dugard, 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, , 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, and also extends to a contestation of modes of United Nations intervention in armed conflicts Meisenberg, 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.
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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. 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. 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.
Q&A: Justice for International Crimes in Myanmar | Human Rights Watch
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. 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 , or the trajectory of domestic criminal law scholars who successfully reconverted some of their capital into international criminal law e.
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. 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.
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. 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, 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 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. 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. 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.
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.
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, 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, 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. 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. 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.
International Crime and Justice, Master of Arts
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. The battles between these different schools are fought in the courtroom but also to a large extent in scholarship and, increasingly, through the blogosphere.
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. For each of these rivalries one can detect over time the consolidation of relatively precarious hierarchies.
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.
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. 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. 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 it 2.
International Crime and Justice
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. 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. 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, 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.
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. 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. It goes hand in hand with frequent reminders that international criminal law is young discipline, one whose mistakes of youth should be forgiven.
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 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 was in large measure an ex nihilo creation of states, the creation of the ICC in 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. 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. 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. 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, 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. Various sociologists and political scientists have explained the mechanics of such a practice already Hagan, Levi, ; Peskin, Hagan and Levi 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.
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