4.3 AFTER METHOD

These special problems I have identified suggest that, in the end, individual methodological pre- and proscriptions can sometimes cut both ways. Grewe's attention to ‘context' might be viewed as under-whelming, selective, and reductive or it might act as a bold, sweeping antidote to Kelsenian legalism; Schmitt's anti-Weimar manoeuvrings will either seem deliciously prophetic or dismally authoritarian (or both); Alexandrowicz's pluriverse could be celebrated as a form of perspicacious anti-imperialism or dismissed as the product of a method borne out of serendipity rather than intellectual decision.

So, after method, we might experience simply a greater awareness of the choices open to us along with an awareness that these are choices, and a sense that these choices are both methodological and political: decisions we make rather than decisions that are made for us (by context, by choice of field, by disciplinary tradition). ‘Interest... precedes method', as Catherine MacKinnon put it almost forty years ago.^[198] So, the decision to write about the experience of the ordinary soldier in Tolstoy, or the working classes in E.P. Thompson or the pirate society in Marcus Rediker is a matter of method and politics.^[199] In international legal history, such choices are constantly having to be made, whether they involve thinking from below (Rajagopal), writing history from a particular place (the Russian history of international law or the Ottoman experiences of legality), conjuring forms of micro-history (Eslava's Bogota or Istanbul) or simply attending to a different archive (Alexandrowicz).

After method, too, we might approach the idea of crisis differently: as opportunity and danger. Just as concepts might be viewed as abstractions travelling freely across time and as situated sites of argument about the world, so, too, events are no longer just happenings that arrive on our desks to be periodised or interred (Grewe, Schmitt, Wheaton) but are to be treated with wariness (Charlesworth) or as moments of possibility, and political (Badiou) or theoretical (Johns, Joyce and Pahuja) renewal.^[200]

There might be, in turn, a more acute awareness that we write history. The master-theorist of history in this mode (though he denied that he wrote ‘philosophy of history') is, of course, Hayden White. For White, style and method merge, and the method of discerning or describing history becomes the style of writing it. Style, no longer quite after method, is always and perpetually with it. Or, better still, is the origin of it. Thinkers as diverse as Althusser and Alain have identified the metaphorical thought that provokes or initiates the philosophical endeavour. But it is White who makes of this a virtuoso performance in identifying what we might, clumsily, call the stylish­ness of history. According to White, the poetic act - less elegantly, part of a ‘prefigurative' cognitive structure - is anterior to the particular analysis of field and object, indeed establishes the object and ‘the modality of the conceptual strategies he will use to explain it'.^[201] When it comes to these modalities, White identifies a number of different emplotments (I will discuss these a little more when I return to the history of international criminal law). Suffice to say here, White regards this not as a choice of method (to be applied to an object of study in order to produce the greatest correspondence between the past and the history of that past) but as a deep moral and aesthetic decision that pre­dates archive and method.^[202] No wonder, then, that in White's work there is a commitment to bringing out the writerly, literary, sentimental (or personal) aspects and dimensions of history-writing (it may be the case also, according to one writer, that histories written under such conditions - and with their ‘sensitivity to narrative, literary form, and poetic technique' - mark a return to the better aspects of the idioms of seventeenth-century humanism).^[203]

After method, or after the inter-disciplinary methodological encounter, we might see, too, that it is very probable that what we have here are shared predispositions and virtues (maybe even tonalities) rather than shared methods.

Dutch East Indies)) or concerned to describe highly variegated forms of authority, or a Grotius in possession of a coherent historical consciousness as he amasses his eclectic material rather than the cartoon figure of the disciplinary imagination who manages to invent sovereignty de novo and reconcile naturalism and positivism while losing control of his hodgepodge of historical sources.^[204] In a way, then, to be for Grotius (or to retrieve the anomalies in Grotius) is to be against Grotianism. To approach Grotius is to be aware that one is approaching from a particular place - Whitean cognitive structure already in place - and to remember that this poetic, pre-analytic moment already screens out a number of Grotiuses (how many international lawyers think Grotius's extensive poetry is part of his international law or that Milton's work on marriage or circumcision might constitute a form of inter­national law?).^[205]

We might learn, too, from best work in other fields that international law has power as an organising idea of international political life. Recent historical work has thickened and complicated international law's own critical project about this power by demonstrating that international legal ideas mattered hugely in determining how certain worlds were constructed, how certain practices were named and renamed, how certain possibilities were closed, perhaps forever.^[206] The easy cliches of an international law somehow always on the outside of a politics or a social practice seem less present in such work.

There has been a tendency among lawyers to believe that at different points of history nothing happened. Isabel Hull's recent book was, after all, an argument against the long-standing canard that during the Great War international law simply hadn't happened.^[207] But we have also been given, or given ourselves, at various moments, the impression that nothing happened before 1603, or nothing in the first half of the nineteenth century or nothing during the Cold War.^[208]

And after method, we might find the struggle over context and anachronism means that international legal work is productively reread. When I teach Tony Anghie's book on international law and empire, students say: ‘Yes, we know this'. Well, the reason they know whatever it is they know, is because of the book and the intellectual activity it provoked. It is striking to consider how outre Anghie's book was when it was first published (indeed, considered for publication). Now part of a new orthodoxy on the relationship between colonialism and international law, it was treated at the time as a methodologic­ally suspect polemical intervention. Before the recent turn to method, though, it had acquired a kind of encrusted presence in the discipline. After method, we might find ourselves reading Anghie differently: first, paradigm shift, then monument (outside TWAILish circles Imperialism ossified and came to stand for a few desultory propositions about ‘empire' or ‘colonialism' or ‘positivism') and now site of interdisciplinary contention. Did the book underplay the variousness of colonial encounters, the immediate political circumstances of Vitoria or the sheer physicality of the extra-European world into which Europe ventured? Does it overstate the continuities between war on terror and nineteenth-century empire? Who knows? Methodological cross-hatching has reactivated the book - no longer a monument to be gingerly circumnavi­gated but part of a conversation about history and method.

Similarly, after method, we might see how whole sub-disciplines under­stand themselves through the forms of writing and methods that are required in order for a set of ideas to join a conversation or be deemed competent. I have already spoken about international criminal law's historical method but it is worth considering in a little more detail how limited in ideological and stylistic range the field's loci classici were. A selection of the founding texts of the field would have to include Cherif Bassiouni's monumental works on crimes against humanity, Theodor Meron's essays calling for the humanisa­tion of the laws of war, Antonio Cassese's bootstrapping articles on war crimes and Geoffrey Robertson's panoramic celebrations of the origins of inter­national criminal law. What sort of histories do these efforts depend upon?

The first thing to note is that this is a very distinctive, early, project with its own presiding methods, and it generated a mass of mimetic work as the field began to establish itself. Hayden White's dictum that every field is constituted by what it forbids its practitioners to do seems apposite here.^[209] And it is White, of course, who organises the writing of realist history into four genres: romance, comedy, tragedy and satire. The point in deploying White, here, is to think of these founding histories as acts of creation or ideological gestures, and to try to work out how such acts are produced and how they aim to persuade, and what a set of ‘criteria of plausibility' might do to the range of thought available to us.^[210]

In Whitean terms, then, to write as an international criminal lawyer is to write in the ‘romantic' style - redemptive, eschatological, transcendent.^[211] White's description of Jules Michelet's romantic style will be familiar to contemporary observers of international criminal law with its perpetual ‘striving to become':

the historian must write his histories in such a way as to promote the realization of the unity that everything is striving to become.

In the field of international criminal law histories were initially written in precisely this style. Three methodological tendencies seem very obviously present in the histories of this discipline: a commitment to a pre-history of absence (compare this to the search for origins engaged in by international tribunals); an appeal to an instinctive internationalism (whereas the past is a place where normative projects are dissolved in the politics of the domestic); and an incipient naturalism.

So, all precursors were simply a ‘striving to become' an institutional system dedicated to ending impunity, preferably—and certainly at least in the shadow of—international courts. Everything local (the German post-WWI trials in Leipzig), merciful (any decisions to free or rehabilitate), experimental (Napoleon's exile on Elba and, then, St Helena) or diplomatically subtle (the various decisions to accord immunity to high-ranking officials) was cast as ineffectual or insufficiently punitive, or simply formed part of a primitive pre­history of ‘failure'.

This standard story begins with the disappointing non-hanging of Wilhelm II after Versailles, followed by the turning point (or ‘promise') of Nuremberg, then a regrettable fifty-year gap in which international criminal law goes into abeyance, prior to the re-emergence of international tribunality in the Balkans and in Rwanda and the consummation of the project at Rome with the establishment of the ICC.^[213] The normative commitments aimed at ending impunity. The institutional preferences were strongly in the direction of permanent international criminal jurisdiction. The politics was a thin neo­naturalist anti-sovereignist and anti-hegemonic humanitarianism. The ‘method' was a combination of an episodic, selective and anachronistic ‘magpie' history, with an exceedingly rigid periodisation, topped off with a kind of inevitabilism. The style was largely, as I have said, ‘romantic',^[214] and the tone unvaryingly solemn, sometimes turgid; a seriousness of moral purpose weighing heavily on the prose. This method meant that historical counter­examples or anomalies or comic juxtapositions had to be set aside as possible blasphemies. In the most influential of these accounts, Geoffrey Robertson's Crimes against Humanity, history is a storehouse of missed opportunities and mistakes. The Moscow Show Trials are read as a vulgar politicisation - to be contrasted with the rise of human rights or the establishment of an inter­national criminal law - rather than symptomatic precedent for the Nuremberg and Tokyo War Crimes Trials.^[215]

There were maverick accounts, of course: the journalism of Rebecca West, the New Yorker essays of Hannah Arendt, the political theory of Judith Shklar and the dissenting judgement of Justice Pal in post-war Tokyo. But it is striking that these writings adopted a much more sardonic mode in their style and tone. For a long time, this jarred with the existing conventions of solemnity. Pal's history, for example (one that, in recounting the story of international criminal law and empire, applied irony and tragedy rather than romance), was not published by the IMTFE following the trial. It was too early for such things. Arendt encountered a different set of problems with her New Yorker essays on Eichmann. The tone was occasionally flip and the method was loose and journalistic (this was, decidedly, not The Origins of Totalitarianism), leaving Arendt open to accusations that she had failed to understand the predicament of the Jewish leadership or had been cavalier with legal principle or had adopted an ironic sensibility when nothing but moral propriety was acceptable.

Wherever one stands on such matters, Arendt at least opens up the possibil­ity of speaking about crimes against humanity in a style that rejects the hubris and moral self-satisfaction of the dominant conventions of international crim­inal law (from Robert Jackson ‘staying the hand of vengeance' (a few weeks after Hiroshima and Nagasaki) to Richard Goldstone entitling his autobiog­raphy, ‘For Humanity'). Indeed, one of the reasons I keep coming back to Rebecca West and her description of the Nuremberg Trial as a ‘citadel of boredom' is because of the way in which she decentres the Nuremberg Trial in the vernacular of irony while applying the journalistic equivalent of a micro-historical method.

Often people said, ‘You must have seen some very interesting sights when you went to the Nuremberg Trial'. Yes, indeed. There had been a man with one leg and a child of twelve, growing enormous cyclamens in a greenhouse.^[216]

In the citadel, mankind was busy inventing itself or setting down some juridical markers (‘crimes against humanity', ‘the conscience of mankind' and so on). Outside, there is the everyday business - a kind of declension - of growing flowers and getting around on one leg amidst the rubble left after the recent and second Allied bombing raid on an already-bombed-out city. The tone is humorous but the method is deadly serious.^[217]

West, Arendt and a handful of others were the exception to prevailing accounts. Now, however, we find ourselves in an ‘after method' moment in the field (or at least a moment when its methods have become more varied and irresolute, and its histories more iconoclastic).^[218] Mostly, this involves the retrieval of alternative sites of criminalisation (forgotten local, hybrid, inter­nationalised trials), new origins (the Moscow Show Trials, the nineteenth century's anti-slavery agitations) or an ‘international criminal law' that is not retributive at all. It is possible, also, to hear a tonal difference in some of the new work in the field (it needs to be said that this new scholarship remains a minority enterprise). Histories of international criminal law now come in a variety of styles: pastoral, tragic, satirical, zen.^[219]