3.1. . . . from here (snapshot)

ICL finds itself in exciting times and so does its scholarship. The sense of excitement, however, is a euphemistic cover for an acute ontological anxiety. This condition is caused by the status quo, characterized by an oversaturation of the field, and the anticipation of the imminent changes this state is bound to bring about. As an area of legal practice, ICL reached the apex of institutional growth at the supranational level towards the end of the last decade and has been steadily imploding since. The wind-down of international and hybrid courts to which the discipline owes its florescence, most notably the UN ad hoc tribunals, has led to the exodus of legal staff and the exponential increase in the number of professionals available on the international legal job market. Supply is not nearly matched by demand in the shrinking field of ICL, given the limited capacity of the International Criminal Court (ICC), the residual Mechanism for International Criminal Tribunals, and the surviving hybrid courts, the Khmer Rouge Tribunal and the Special Tribunal for Lebanon (STL).Footnote ¹⁸

As matters stand, ICL is likely to become a career dead end for many. But the long-term prospects may be not so bleak after all.Footnote ¹⁹ Under a glass-half-full view, the two formative decades of its modern renaissance are to be followed by the stage of qualitative development and fine-tuning. Furthermore, ICL has made new habitats and is likely to preserve its practical relevance and normative pull even after its international enforcement system is significantly downsized. One could think of several manifestations of this ‘spillover effect’: first, the continued reliance on ICL for the purpose of international fact-finding not going directly to the application of criminal law (e.g. commissions of inquiry, fact-finding missions, panels of experts etc.); second, its domestication and increased enforcement within national legal orders, including through the newly-established special and hybrid tribunals; and, third, the use of ICL as a framework for addressing the world's contemporary problems and its possible extension to cover additional categories of crimes. Despite ICL's postmodern expansion and potential vitality in institutional settings, legal orders, and subject-matter areas other than those currently associated with international criminal justice, the field is undeniably on the brink of restructuration which will have profound effects on practice; venues, modalities, and actors will not all be the same.

As for the scholarly discipline, ICL shows no signs of recession. The proliferation of specialized journals, books, and articles published and conferences held on international criminal justice exceeds by far the dynamics in contiguous fields, even excluding the output addressing ICL only tangentially. The number of unsolicited ICL-related manuscripts the LJIL receives regularly would have sufficed to fill an entire Leiden Journal of International Criminal Law following the most rigorous selection. The profusion of scholarship in ICL attests to its current prominence within international law, giving credence to claims that it has crowded out other legal discourses due to its marketing culture.Footnote ²⁰ ICL continues to entice scholars from disciplines other than public international law and criminal law and procedure, its dual core. The bulk of research on international criminal justice is now done on the (ever-shifting) margins of the field and at the intersections with non-legal disciplines: international relations, political science, anthropology, sociology, criminology, psychology, statistics, and methodology of social sciences. As the ICL epistemic community welcomes new incomers, its disciplinary space becomes more pluralized, without getting ‘overcrowded’ as much as fragmented.

The frenzy of expert and public interest in ICL is kept alive by dozens of dedicated blogs and online media hubs and portals that have mushroomed in recent years. These expert mediators, some run by ICL scholars and practitioners and others by professional journalists, provide short analyses and up-to-date information about the current events and debates. These platforms popularize – explain and market – this field among wider audiences and, unlike traditional scholarship, often have mass readership. Their modus operandi is to reach out to legal and other experts and induce exchanges on newsworthy developments on the social media where anyone with interest can partake. As the linkage between expert opinion makers and the general public, they take on functions not all legal scholars consider as the integral part of the role of an academic. One positive effect of the online media presence is that it helps bridge general knowledge gaps and fosters awareness about the work of international criminal tribunals, so the inaccessibility of information is no longer an excuse for ignorance. Another is that these platforms galvanize debates, consolidate the interpretive community around certain themes, and activate experts in the public domain; staying ‘out of the fray’ is less of an option.

The exuberance of scholarship and alternative sources of information is not usually seen as a sign of crisis. But to be sure, it also has downsides, the contours of which are only looming on the horizon. First, the implications of the informational deluge for the dynamics of the production of scholarship and the well-being of the field remain to be seen.Footnote ²¹ Can the quality standards be preserved with the daunting pace and dimensions of scholarly production, along with the constant proliferation of outlets and the inundation of information? To put it more dramatically, will too much ICL scholarship kill ICL scholarship?Footnote ²² Second, it appears as if the ICL academia has lost the sense of direction, which it is trying to recover by moving in too many directions at the same time. There is anecdotal evidence that it is afflicted by anxieties related to its current and future role within the professional community.

One of them, anxiety of validity and impact, is rooted in the uncertainty of what exactly the point is of scholarly enterprises in ICL. What difference does the ICL scholarship make and for whom? How should scholars position themselves vis-à-vis practice? In particular, what place should they strive for in between the extreme of, on the one hand, subordinating to the doctrinal and, more prosaically, referencing needs of practitioners and, on the other hand, the ‘over-theoretical withdrawal’? Another anxiety relates to the fear of stagnation. It is underlain by the perception that, for a while now, and despite the constant flow of judicial developments providing new insights and issues for research, the ICL scholarship has been lagging behind. It has been running in circles, ruminating on the same topics and rehashing old truths, with no stunning breakthroughs, meaningful impact on practice, and ‘eureka!’ moments. The ICL academics’ recent turn to interdisciplinarity,Footnote ²³ or their consensus that such a turn is necessary, is remarkable. It comes with an increased emphasis on empiricism as a way of ascertaining ICL's actual impact.Footnote ²⁴

This trend signals fatigue with conventional discourses and formats of legal scholarship and discomfort over the idea that the discipline would continue on its present course. Cross-fertilizing it with insights, perspectives, and (empirical) methods of social sciences is viewed as an escape route to salvation from an impending intellectual impasse. One waits to see whether interdisciplinarity will be genuinely pursued or prove but a fleeting flirtation. It cannot be excluded that a segment of the ICL academia will develop an allergy to the disciplinary over-inclusion and seek refuge in the protectionist agenda of counterdisciplinarity.Footnote ²⁵ The disciplinary autonomy would be guarded against the moves by the ‘intruders’ from other fields of knowledge making claims to expertise both in and beyond ICL in an attempt to take control of its normative and methodological apparatus. Now would be the right time to reflect on the pros and cons, if any, of such disciplinary politics.

The question can also arise whether the anxiety of stagnation has basis, considering that the field has recently spawned many promising lines of research. In line with developments in international legal scholarship, the ICL academia has increasingly concerned itself with the history,Footnote ²⁶ philosophy,Footnote ²⁷ and sociology of field,Footnote ²⁸ also turning to itself as an object of study.Footnote ²⁹ A growing number of inquiries operate on a meta-level and scrutinize discrepancies, vulnerabilities, and blind spots of mainstream narratives, discourses, and methods.Footnote ³⁰ This self-reflectivity is not mere soul-searching and navel-gazing in the absence of better subjects and ways of applying oneself. It is an indicator of the ICL academic community's self-aware effort to construct a critically informed philosophical, ideological, and political history of the project.

From that vantage point, the ICL academia would be better able to situate itself in the present and articulate a future research agenda that corresponds to its purported functions – which may also need to be renegotiated. The ICL academia is now repositioning itself in relation to the field of practice that, over and above its usual dynamism, is undergoing major transformations. Regardless of the anxieties of the transitional phase, it seems that ICL scholarship has sufficient room for further growth and prospects for renewal. If the impression that it is at a turning point is accurate, there needs to be a collective deliberation on the question of what (new) intellectual projects it should reinvest itself in the near future in order to preserve its validity, particularly (though not only) vis-à-vis practice.

3.2. . . . through functions and genres (trajectories)

Diagnosing the current state of ICL scholarship and pointing where it will be heading, is impossible without looking at its history. Although the past trajectories have much to reveal about how it has ended up where it is now, this is not the place to provide a retrospective.Footnote ³¹ Instead, the present purpose can be served well by recalling the main genres of ICL scholarship, both established and emergent. These denote the typical modes of scholarly engagement with ‘practice’, broadly understood as encompassing all activities having to do with the objectification (production, application, and enforcement) of law.Footnote ³² Genres are akin to converging lenses through which one can discern some of the functions academics have within the larger professional community – using Claus Kreß’s expression, the nascent ‘truly universal invisible college of international criminal lawyers' – namely qua scholars.

The latter qualification conveys that the functions of academics in respect of practice are not exhausted by scholarly contributions par excellence. On the contrary, the sociological picture is far more complex. Like generally in international law, it has not been out of ordinary for the members of the ‘college’ to combine and interchange roles of professors, activists, advisers, international civil servants, counsel, and judges. In fact, this has been the characteristic and consistent feature of the career dynamics across different sub-disciplines of international law, which is why the idea of the ‘changing’ role of international legal scholars may be no more than a suggestive hypothesis.Footnote ³³ There are several ways in which the ICL expert community has invested in the construction of the field that has also come to structure that very community; the relationship of simultaneous mutual shaping that has aptly been termed ‘co-constitution’.Footnote ³⁴

First, ICL as a (semi-autonomous) field began from the imaginings of idealistic scholars. It would not have become what it is at present – a developed system of norms and judicial institutions – without the contributions that legal academics have made all along, often under professional hats of government officials, international advisers, negotiators, judges, and court staff.Footnote ³⁵ Second, we have seen many academic-to-judge-and-back career swaps in ICL, from the Nuremberg and Tokyo tribunals to the STL. In some instances this enabled the self-referential enforcement (and reinforcement) of the scholarly and the judicial authority consecutively exercised by the same professionals. For example, there have been cases of distinguished academics donning international judges’ robes and giving judicial imprimatur to legal positions they had earlier endorsed in a scholarly capacity, only to refer to those judicial rulings in their further (academic) writings, thereby cementing semantic authority on both fronts.Footnote ³⁶ The intertwining of career tracks in ICL presents an intriguing case of ‘revolving doors’. Among others, it shows the co-constitutive relationship of the academia and the practice whereby the timely shifts in self-positioning enabled scholars to maximize their impact on the field. However, when we speak of scholarly genres, as we do here, this only relates to functions academics perform qua scholars (agents producing scholarship), as opposed to academics engaging with law qua practitioners.Footnote ³⁷

It may seem an attractive approach to break down the evolution of ICL scholarship over the past two decades into several ‘generations’, that roughly correspond to the key periods in the development of international criminal justice.Footnote ³⁸ The scholars’ emotional attitudes to the project and, accordingly, their contributions have varied significantly at different times. Put simply, the scholarly treatment has progressed from idealistic (as one may be about the project both utopian and necessary) in the era preceding the creation of the ad hoc tribunals and the ICC; to triumphant and defensive thereafter (on account of the euphoria of success attending the establishment of the courts and their perceived fragility in the early days); and, ultimately, to – reservedly at first and then increasingly – critical about their jurisprudence, practice, and effects.Footnote ³⁹ Moreover, the disciplinary character of the scholarly investments has changed over time, given the prominence of different camps of legal specialists. In the formative period, public international lawyers and human rights lawyers exerted a decisive influence, whereas theorists and comparatists of (domestic) criminal law and procedure became especially visible when it came to the core business of the courts.

The generational narrative is, of course, too sweeping, not least because the importance of lone voices speaking not in cadence or in tune with the zeitgeist should not be discarded. Pigeonholing the existing lines of ICL scholarship into ‘generations’ neatly is impossible without doing violence to individual works. This is why the transversal approach of distinguishing cross-generational types or genres based on the nature of the author's engagement with the object of inquiry may be preferable.Footnote ⁴⁰ This helps avoid some of the over-generalizations of the essentialist approach that links scholarship to different epochs in ICL. Due to their interpenetration and shared features, the typology of genres below is not waterproof. Besides, an average piece of scholarship would normally be a combination of elements characteristic for different genres, and scholars generally tend to work in several of them. Therefore, I will refrain from naming authors, works, and debates here (although any resemblance is probably not coincidental).

The first conventional genre is represented by theoretical scholarship. It aims to generate an understanding of the fundamentals of ICL through the systematic and analytical development of its foundational (legal) concepts and definitions.Footnote ⁴¹ The basic ideas about the history, nature, and purposes of ICL and its institutions are the discipline's lifeblood and groundwork on which other professionals, including scholars, can build their legal thinking and engagement with the field. To the extent that recourse is had to insights from history, politics, philosophy, sociology, etc., this genre is amenable to interdisciplinary approaches. This type of scholarship is predominantly proactive, in that it anticipates (and awakens) the cognitive needs of the epistemic community. It is also marked by an a priori acceptance of main rationales and principles of the project.

This feature can also be found in the contiguous genre of doctrinal scholarship. It engages with its objects of inquiry (law, jurisprudence, institutions, and practices) with a view to describing, analysing, classifying, and systematizing, and it does so in a relative autonomy from the large theoretical questions, to the extent it is possible to abstract from them.Footnote ⁴² Such scholarship is mostly reactive and produced in response to the articulated demand or perceived need for (systematic) knowledge as a framework of doctrines assisting in the comprehension and normative assessment of specific issues or developments. In case the doctrinal analysis reveals incongruences in the application of law or inconsistencies between practice and the principles, definitions, and categorizations the doctrine upholds, ‘constructive’ criticisms are advanced along with suggestions towards the rectification of errors. Much of the current ICL scholarship analyses the jurisprudence in light of the principles (nominally) defining of the project of international criminal justice – legality, culpability, fairness, sentencing proportionality, etc. – with an objective of addressing the perceived deviations.

Another genre that has always been and remains prominent in ICL, while not being unique to it, is activist scholarship.Footnote ⁴³ It distinguishes itself by an overt pursuit of a legal policy agenda and advocates the necessity (or otherwise) of legal and institutional reforms on specific issues. Scholar-activists pursue the ambition of spurring and shaping the development of the law, political attitudes, and institutional practices in order to effect (what they consider) positive social change. Such scholarship may be reactive, triggered by the developments that are deemed undesirable, or proactive, seeking to contribute to the (re)construction of the field anew as a way to champion certain interests through the mobilization of intellectual, political, and administrative capital.

Fourth, while the elements of critique are ubiquitous and its potential angles numerous, a broad class of ICL works in which it is not merely incidental, but the very point of inquiry and the principal heuristic device, could be termed critical scholarship. The gist is in subjecting the ICL normative, conceptual, and methodological edifice to an out-of-box scrutiny whereby the evaluative criteria are sourced from outside of the field and may be extraneous to it; the latter's own internal criteria are either ignored or come under attack directly or indirectly. This genre seeks to expose the fundamental flaws and limitations of the project: the incommensurability of the ‘mainstream’ discourses and those whose ‘other-ness’ it ignores and suppresses; its tendency to originate from, mirror, and reproduce the existing power structures and systemic injustices; and its effects, both unproduced and unaccounted for, which cast a shadow on its legitimacy and are a thorn in the side of the project's ‘defenders’.Footnote ⁴⁴

Fifth, the rise of empirical scholarship in ICL has already been pointed out.Footnote ⁴⁵ This genre is characterized, first, by a distinct focus on the social reality of ICL norms, institutions, and practices and on the impacts they generate; and second, by empiricism (and hence interdisciplinarity), insofar as ICL's various parameters and effects are measured with research methods of social sciences. The objective of empirical studies in and about ICL is to test its normative ‘articles of faith’ against the ‘hard data’. The claims and counterclaims regarding the impact and effectiveness sustained within the field or elsewhere (for example, with respect to the tribunals’ deterrent and reconciliatory effects, acceptance and legitimacy within specific communities, and victim satisfaction) are appraised in light of facts established empirically. Unlike with the critical genre, empiricists employ the assessment criteria articulated within the field itself as their point of departure; empirical scholarship is therefore mostly reactive in relation to claims it seeks to verify. Even where verification results in an invalidation of putative ‘truths’, the empiricists’ critical agenda remains ‘constructive’: substituting the correct data for the false premises and discredited axioms; calling for adjustments to discourses to ensure their conformity with an empirical reality; and enabling fact-driven reforms towards enhancing the effectiveness of norms and practices.

Finally, the increasingly important genre is methodological, or meta-scholarship. This type centres on the methodological sub-structure of practices constitutive of the field and argumentative strategies underlying its discourses. Such works are devoted to the critical and distanced reflection on the research methods and evaluative frameworks ICL scholars rely upon, often unquestioningly. The point is in showing how the (unpronounced) methodological preferences and cognitive limitations and biases impact on the subject's epistemological approach and self-positioning. The meta-scholarship naturally coalesces with the critical agendas and makes use of empirical insights, but its objective is not to champion a specific methodology or normative position. It is instead to deconstruct and ‘sanitize’ the existing discourses while promoting methodological sensibility and self-awareness.

This inventory probably captures the prevalent and most familiar genres of today's ICL scholarship, but I do not pretend it to be complete; additions may be necessary. New genres will likely emerge from the interstices and current hybrids might claim a separate place on the list. As some genres gradually fall into desuetude and others come into favour, the landscape of the ICL scholarship will be transforming.

3.3. . . . to where it needs to be (destinations)

What are the destinations of the ICL scholarship and what genres will be defining of the ICL academia in the near future? Any prognoses can only be given subject to a wide margin of error. Scholarly production depends on a host of variable factors not lending themselves easily to prediction, including the individual and collective agency of academics, institutions facilitating ICL research, and vehicles for dissemination. The dynamics between the academic and practice communities are important, too. Practitioners in international courts and elsewhere are responsible for shaping and articulating demand. A lion's share of scholarship about international criminal justice produced so far (the doctrinal and, increasingly, empirical works) purports to satisfy it. Presumably, practice will continue driving the scholarly production to a considerable extent. Therefore, academics and practitioners need to do more to make their symbiotic relationship work, including by creating more platforms and formats for an open dialogue.

It is, however, clear that far from all ICL scholarship is meant to satisfy the needs of practitioners directly. Nor does it have to be subordinated to the needs of practice to be relevant: the validity of scholarship is not measured exclusively by the possibility of immediate practical valorization. Although the practice community is an important consumer of scholarly output, servicing it is not the beginning and the end of the academic function. Its multi-dimensional character entails that ‘destinations’ of ICL scholarship cannot be reduced to one or two. On the contrary, it has to follow a variety of trajectories, as represented by various genres, to arrive at different places. Because each genre is associated with an aspect of the academic function, all of them will likely have a place in the future landscape of ICL scholarship. Where predictions do not work, intuitions perhaps can. I would like to share two of them in particular.

First, I sense, and this is by definition subjective, that at the doctrinal and conceptual levels, the ICL scholarship has for a long time been lagging substantially behind the tribunals’ in-house expertise and the pace of legal research and thought feeding into the judicial output. The dynamism of practice has made it difficult, if not impossible, for academics to keep up at all times, let alone be proactive in selecting issues for an in-depth treatment. As a result, scholarship has not always succeeded in providing practice with timely ex ante guidance when it may have been needed most. Much of it has been locked in a reactive, post hoc mode, being adjunct and collateral to practice. This does not mean, however, that doctrinal analyses and critiques of jurisprudence produced have not served the useful purpose of policing and reorientating practice ex post facto. The relevance of such scholarship has continued unabated – and will remain so as long as the courts keep supplying food for academic thought and in turn are prepared to benefit from the ‘applied science’ of ICL. On this latter point, the occasional insensitivity of ICL practitioners to scholarly insights and debates – as a result of limited resources available for research or unwillingness to take guidance from pre-existing scholarship – is also the reason why the practical impact of academia has been underwhelming or is so perceived.

Second, the current condition of the discipline signals that the production of ICL scholarship categorized above as ‘empirical’, ‘critical’, and ‘methodological’ will grow and reach an apogee in the next few years. The emphasis on the methodology and interdisciplinarity will be defining of the bulk of scholarly work to be done in ICL in the middle-term perspective. Whether this is a sign of ICL's ‘moment of crisis’ or its moment of maturity at which meta-questions are bound to arise can be debated, but the present ‘instability’ of the discipline and the related ‘push for change’ are evident.Footnote ⁴⁶ For the same reason, the critical agenda that seeks to reimagine the field through the deconstruction of its elementary structures and interrogation of its politics, will also gain prominence. The changes pushed for would be not exactly cosmetic: nothing short of a paradigm shift would suffice to rebuild the ICL project on a new – more politically, economically, and morally just – foundation.