Professionalism and its limits (ICC, pt. 5)

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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. It matters to me for the specific form of intellectual analysis that the ICC has crystallized around itself: a more or less familiar form of doctrinalism.

Once again, the rise of professionalism is perfectly justifiable and predictable. It is justifiable because international criminal law, like any body of law, explicitly hews out a key role for legal professionalism: for lawyers, the ICC affords cases to try; for judges, opinions to write; for law students, clerkships and internships; for all of the above, the sort of meaningful life that comes from fulfilling moral tasks consistent with mainstream respectability. It is predictable because professionalism for the foreseeable future is the dominant option of our legal world. But it also has specific consequences for how the court is typically talked about.

For teachers in the legal academy, the ICC provides grist for the academic mill. From the Nuremberg and successor trials to the ad hoc tribunals, there are a lot of cases to collate and lines of authority to sift. And there are problems of first impression that current events provide. For example, we must treat the disposition of Saif al-Gaddhafi as a problem of treaty interpretation, just as you could approach the matter of Palestine’s desired access to international criminal justice as, at least in the first instance, a difficulty in the interpretation of the Rome Statute’s Article 12(3). And surely lawyers are needed to solve those problems as ones of rule and doctrine requiring expertise, rather than of politics and morality demanding open-ended debate.

The professionalizing approach is definitely more sober than the promotional approach, in part because buttoned-up sobriety is the condition of professionalism. But the professional tack is not without its own shortcomings. It tends to bracket how improvisational—including in its rules and doctrines—the ICC has been. Several casebooks have been constructed already around “International Criminal Law” to induct newcomers into the field but seem barely to register that it revolves around anything but a settled institution or domain, made up from scratch on short notice in a permanently political environment. Further, the professionalizing approach risks exacerbating the vice of autism that is a tolerable or even desirable part of professionalism in other sectors because the need to have a larger debate about the politics of the field just seems less pressing. One thing is, I think, clear: the fact that something gives lawyers and professors and students something new to do could only be a modest argument in its favor.

 

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