s.VII Anxieties, Ch.27 The Crises and Critiques of International Criminal Justice

It is often heard that international criminal justice is in ‘crisis’. Although the language of ‘crisis’ suggests a temporary and exceptional moment, the project of international criminal justice has essentially been in a legitimacy crisis since its emergence. International criminal tribunals have never been able to cleanse their ‘original sin’: despite their aspiration to transcend state power, they remain not just heavily dependent on it but also constrained and directed by it in their pursuit of ‘justice’. The more finessed the doctrine becomes, the more professionalised the practice, and the more sophisticated the institutions, the more evident is the inability of international criminal law to challenge the persisting power inequalities and address structural injustices of the international order. Against this background, this chapter diagnoses the state of the field by appraising the dynamics and quality of communication between its ‘mainstream defenders’ and the ‘radical critics’. It outlines the critics’ objectives and modes of engagement with the project and shows why some of the defensive impulses of the ‘mainstream’ fall short of effective responses to the critiques. The opposing sides to the debate about the legitimacy of international criminal justice seem to seldom think together and converse in earnest, despite having overlapping normative expectations towards the project. The chapter expresses a hope for a genuine, constructive dialogue between them, free of counterproductive tropes and tactics. The critical sensibility trickling into the ‘mainstream’ could help transform the institutional politics of the International Criminal Court and enable the project to realize its emancipatory potential.