Contemporary International Criminal Law After Critique

Abstract

Abstract Contemporary international criminal law (ICL) is a well-established field of scholarship and practice that wields significant influence in framing how certain events come to be understood and acted upon. Yet, as the field has increasingly captured the public’s attention and imagination, a body of critical scholarship has risen in prominence that seeks to test and challenge ICL’s underlying assumptions. In such a climate, this article suggests that ICL not only has moved beyond its inception and consolidation phases, but is beginning to emerge from its critical period towards a ‘post-critical’ phase where critique is becoming increasingly normalized within the field, with both reformist and structurally oriented reappraisals more readily acknowledged within ICL’s imaginary. Situated in this ‘post-critical’ moment, this article examines the extent to which the vocabulary and institutions of ICL may be productively (re-)engaged in the pursuit of emancipatory ends. After providing an overview of the strands of critique that have become increasingly prominent, we reflect on three avenues for engaging with the field of ICL ‘after critique’: first, critical engagement, centred on a commitment to revealing and detailing silenced and marginalized experiences and methods within the field itself; second, tactical and strategic engagement, which points to the ways in which actors choose to engage with imperfect legal frameworks for particular struggles; and finally, decolonial and abolitionist (dis-)engagement which takes as its point of departure the rejection of both colonial and carceral logics per se, especially in light of their historical and persisting patterns of patriarchal and racialized domination. Ultimately, in linking ICL with historical and contemporary anti-colonial and anti-carceral struggles, we seek not only to disrupt ICL progress narratives, but also to show how earlier, often-sidelined ways of imagining forms of harm and their repair may provide potentially more productive ways of engaging with ICL ‘after critique’.