A new piece in this week's issue of The Nation considers Elaine Scarry and, through her criticism, the how and why torture has become so appalling.
Let me conclude. In case I haven’t been clear, the political approach isn’t at all meant to undermine the enterprise or institution. True, it is analytically neutral (more so, certainly, than its three rivals). But if Judith Shklar was right, it could also provide the sole plausible and necessarily instrumental justification for the ICC, for it inquires into whether and how the institution makes the world more decent, especially insofar as it intersects other political agendas in interstate order and disorder.
A final approach is available that tends to postpone the difficult calculus of political judgment, and I’ll call it preservation. People who recognize the severe limitations of promoting and professionalizing nevertheless strategically defer, during an initial period of institution-building, what political analysis is supposed to be about: critical distance for the sake of judgment of outcomes in context. On the preservative view, the ICC is a fledgling cause that needs to be sheltered from the ordinary conditions of inquiry.
In the face of all this complexity, interim political judgment about what the goals are and whether they are being served is obviously as difficult as it is necessary. But along with promotion, there are two other ways of talking about the ICC I promised to cover. Trailing promotion, the other main form of discourse about our new institution is the professional or professionalizing approach, which follows from the work the ICC gives lawyers as vocational experience, from summer internships to careers in the system.
So let’s bracket, at the outset, whether the ICC successfully provided retributive justice in the one guilty verdict so far, or even presume its success in any future ones, and then proceed to apply the political framework. In the main part of my talk, I want to consider the political environment for assessing the ICC’s meaning so far, considering possible ends and outcomes in connection with the larger political landscape.
As time passes, this framework will have to supersede the extraordinary predominance of what I will call promotionalism in the world at large and at meetings like this one. The promotional idea presents the creation of the ICC as a moral achievement in spite of and against politics—or at least political interests narrower than those of humanity as a whole.
When asked whether the French Revolution had succeeded, a recent Chinese premier is said to have responded that, after two centuries, it’s still far too soon to tell. That makes it rather unwise to draw any sort of balance sheet on the International Criminal Court at this early stage. Anyway, for the ICC—for the French Revolution for that matter—time isn’t the main difficulty. There is also the thorny matter of what criteria to apply to the assessment in the first place.
This week I’m posting as a series of blog posts a talk I’ve hastily drafted for an interesting event at Yale Law School assessing the first ten years of the International Criminal Court. This still informal version has some things in it that the talk itself did not. For what it’s worth, my thoughts follow—with thanks to Kevin Heller and Paul Kahn for saving me from some even more grievous missteps.
Humanity editorial board members Conor Gearty and Costas Douzinas have just published their new coedited Cambridge Companion to Human Rights Law -- of which a review is forthcoming in the journal. Meantime, according to his Twitter feed, Conor announces a book launch at Birkbeck on January 30, 2013 at 6 p.m.
A new piece of mine reviewing Yang Jisheng's Tombstone and other relevant books appears in The Nation this week. Yang's summa is getting much coverage, on NPR, the New York Review of Books, and elsewhere.