The Durkheimian spell of international criminal law
20 September 2012
"The regime knows it. That is why it does not hesitate to torture, to kill, to bombard. The regime knows that nobody will do anything. We are alone." J., an imprisoned opponent to the Syrian government spoke in Bab al-Musala in May 2012, while the 10th anniversary celebrations of the ICC Statute were being prepared in The Hague. The penalisation of the "most serious crimes of concern to the international community as a whole" by the Rome Statute is at times seen as emanating from an absolute moral sentiment shared internationally, reminiscent of Émile Durkheim's (1858-1917) way to see a society's "conscience collective" directly expressed in law, the law thus enjoying acceptance from all albeit pathological elements of the society. Durkheim's thinking on law appears pregnant with absences: of choices, individual will and agency, inclusions and exclusions, of relevance of economical or structural phenomenon. The ideology of international criminal law, representing a moral ideal of international solidarity, presupposes an absence of the need to make political choices in exercising authority, demonstrating power, cementing an order. Durkheim saw a religious origin or quality in all social phenomena, including criminal law, and its consequentalist aims had little role in his thinking: the core function of criminal justice lay in collective sentiments, group coherence, the ritualistic, even the performative. Echoes of this are perceptible in current views on international criminal law as having - more than preventive effects - heterogeneous positive functions in a community, be it local or global: attending to desires of retribution, bringing closure, expressing values, establishing a historical record, contributing to peace. The paper observes the international criminal law under its Durkheimian spell and asks: What happened from moral to law: why does J. feel alone? Where are the absentees? And who is playing those drums?
About the speaker
Dr. Immi Tallgren is a Postdoctoral Research Fellow at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki (Finland) working in the fields of international criminal law, international human rights law, legal anthropology, law & literature. Dr. Tallgren's interdisciplinary research draws upon her background as a diplomat advising the Finnish government and her work with a range of international and regional organisations, including the European Space Agency and Europol.
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