Review of the book by Julie Fraser, Brianne McGonnigle Leyh (eds.), Intersections of Law and Culture at the International Criminal Court, Edward Elgar Publishing, Cheltenham: 2020 (original) (raw)
Related papers
Law, Anthropology, and the Global Village
Macalester International, 2012
Globalization is characterized by crosscutting flows and networks across the globe of people, goods, ideas, and capital. These processes are facilitated and constrained by yet emerging infrastructures and institutions. Within this shifting context, it has been observed that while we live in a global village, there is no rule of law. Here, I reflect upon this observation in relation to the unfolding development of the International Criminal Court (ICC), with particular consideration of African contexts. This reflective essay is situated at the crosscurrents of recent developments in theoretical and empirical approaches to the study of the anthropology of crime, the anthropology of international law, and the anthropology of Africa. The ideas and questions advanced here build on work by anthropologists Kamari Maxine Clarke and Mahmood Mamdani in contributing to a critical approach to the intertwined growth of the rule of law and the human rights movements, particularly as applied to Africa.1 With respect to the topic at hand, anthropologist Sally Engle Merry observes, “Law’s internationalization is a product of transnational movements such as colonialism, contemporary transnational activism, the creation of a new world order of negotiated contracts and agreements linking together diverse states, the expansion of human rights activism and institutions, and the transplanting of legal institutions themselves.”2 She goes on to point out, “Given the ambiguity and novelty of these developments, anthropological research plays a critical role in examining how international law works in practice, mapping the circulation of ideas and procedures as well as examining the array of small sites in which international law operates, whether in Geneva, a local office of a human rights NGO, or the International Criminal Court” (111).
Culture and International Criminal Law
Kevin Heller, Frédéric Mégret, Sarah Nouwen, Jens Ohlin and Darryl Robinson (eds), Oxford Handbook of International Criminal Law, Oxford University Press, 2020. , 2020
This chapter explores international criminal law (ICL)’s encounter of cultural difference. ICL claims to apply universally applicable laws and champion universal interests. These universality claims come under challenge when ICL is implemented in varied contexts. While broad agreement exists over the general type of atrocities condemned by ICL, there continues to be disagreement or unfamiliarity about ICL’s conceptions of justice, its normative standards, as well as its underlying assumptions about human agency and responsibility. While ground-breaking research on ICL and culture has been published in recent years, there needs to be more research in this area. The overlooking or dismissal of cultural challenges undermines ICL’s operations, such as the trial’s fact-finding capabilities, and, more importantly, its legitimacy.
In his book Anthropology and Law: A Critical Introduction, Mark Goodale gives a concise overview on the contemporary anthropology of law. In Goodale’s narrative, the recent history of legal anthropology emerged with the end of the Cold War, “at a historical moment—fleeting as it turned out to be—when the Kantian ‘sweet dream’ of perpetual peace was being grounded in a cosmopolitan legal imaginary to an extraordinary degree” (200). This liminal moment started developments such as “the juridification of politics, identity (such as indigenous rights), and social organization, at the same time in which global inequality was growing steadily” (211). From this time on, anthropologists began to be interested, much more than before, in international legal orders and transnational legal pluralism. Goodale aims at presenting many of the fruits of over 25 years of such investigations.
This dissertation addresses the question of how we should understand the cosmopolitan power to punish the criminal embodied in the new global criminal courts, and whether cosmopolitan law can serve as the basis for what an earlier generation of anthropologists would have called a culturally-neutral global order? The present project, based on ethnographic fieldwork at the Yugoslavia Tribunal in The Hague, uses the case of Duško Tadić, the first subject of a properly cosmopolitan law, as a lens to raise the questions of how we should understand the new cosmopolitan subjectivities being produced by the immanent institutionalization of a global criminal law and whether our historically-specific modern conceptualization of law is compatible
For over a decade we have heard regular assurances that the time is ripe for a sustained anthropology of international law – and that this debate forms a natural alliance between (critical) international lawyers and anthropologists. Yet we seem to be getting nowhere with the actual project, namely a sustained and vibrant inter-disciplinary debate marked by a rich co-creation of theorizations and recurring exchanges of concepts. The aim of this review essay, anchored on Luis Eslava's new book Local Space, Global Law: the Everyday Operation of International Law and Development, is to map out potential entry points for such a conversation, with the hope of inspiring a lasting shared debate. The review addresses, in particular , the changed notion of 'the law' via the continued proliferation of different normative international arrangements, proposing that our current scholarly descriptions on both sides of this disciplinary equation fall short in accounting for its full complexity. While at times the review may appear critical of Eslava's work, the tenor, rather than pointing explicitly to any shortcomings of his analysis, intends to highlight the difficulty of genuine cutting-edge, inter-disciplinary work – thus emphasizing our need for collaboration.
AJIL Unbound, 2021
How might the connections between anthropology and international law become more dynamic? I reflect upon this question in this essay using ethnographic insights from the documentary cycles of the UN Human Rights Committee, the treaty body monitoring state compliance with the International Covenant on Civil and Political Rights. Building on recent anthropological scholarship on international organizations, bureaucracy, and documents, this essay discusses the knowledge practices and legal technicalities that characterize the international community of human rights lawyers. In particular, I reflect on the legal fiction of difference governing UN treaty bodies’ operations and the empirical sameness of participants in different formal categories in the shared community of practice of human rights lawyers. I conclude by suggesting that anthropological insights could significantly enrich our shared understanding of the diverse and subtle effects of human rights monitoring. Simultaneously such insights may offer rejuvenated inspiration for those international lawyers tackling a sense of losing faith in their discipline, both as an influential tool of world improvement and an invigorating intellectual tradition.
The Ad Hoc International Criminal Tribunals and a Jurisprudence of the Deviant
This short article is a synopsis of a doctoral thesis entitled Law as Communication: A Concept of International Law. Embedded in the legal theory of philosopher Joseph Raz - who argued that "whatever else the law is, it either claims legitimate authority, is held to possess it, or both" - this analysis of international law's claim of legitimate authority is based on an ethnographic study of the International Criminal Tribunals for the former- Yugoslavia and Rwanda. The analysis of international law's claim of legitimate authority, which uses semiotics and performance-studies perspective, is then used as a basis for an examination of issues in analytic legal philosophy: the relationship between the phenomenology of law and its concept and the social-psychological dimensions of methodologies used and advocated for by legal philosophers.