CUHK LAW hosted the Legal Thinkers’ Seminar – ‘Foucault, Governmentality, and International Criminal Law: From Pandemics to Atrocities’ on 11 March 2021. It was delivered by Professor Gregory S. Gordon, Professor of Law at CUHK LAW.  For the seminar, Professor Gordon began by noting that conventional accounts of the genesis of international criminal law (ICL) emphasize the desire to hold individuals accountable for atrocities and grave breaches rather than let them hide behind the veil of the State. But he pointed out that a vein of important scholarship relying on the work of French philosopher Michel Foucault, has called this conclusion into question. Far from viewing ICL as a crusade to end impunity for mass atrocity via individual responsibility, he observed, it perceives it instead as a product of more sinister and less visible forces – globalization arising from nation-states and multinational private interests seeking maintenance of institutional order on a supranational scale.

Professor Gordon explained that this scholarship typically offers philosophical support for its critique of ICL by citing Foucault’s seminal work “Discipline and Punish: The Birth of the Prison,” for the proposition that ICL actors create a “political economy” of punishment, bureaucratizing and routinizing it, and thereby normatively ingraining it into an emerging globalized social body. This strain of thinking seizes on one of the central tenets in Foucault’s philosophy, the notion of “power,” and reductively translates it into a naked exercise of institutional “control” over individuals. Seen from this narrow perspective, ICL merely represents an extension of statist coercion on a collective scale.

In his talk, Professor Gordon took issue with this Foucauldian interpretation of ICL. Rather than treating “power” negatively as a function of coercion, he explained how that ICL should examine the later development of Foucault’s thought emphasizing power as “governmentality.” He noted that governmentality may be roughly translated as a non-disciplinary form of power arising from an amalgamation of institutions, procedures, analyses, reflections, calculations, and tactics that permit governance over a population, often in respect of large-scale demographic crises, such as pandemics. He added that, although governmentality may have certain resonances and interactions with Foucault’s earlier notions of sovereignty and discipline, this later-developed power concept is more about mundane, meticulous and minute techniques that form an overall macrophysics of power. Professor Gordon demonstrated that, pursuant to this interpretation of Foucault, modern ICL has developed not as an assiduous strategy for maintaining supranational control, but as an organic outgrowth of lower-level transnational networks that have reached critical mass through the process of governmentality. At the outset, those networks consist of low-level, and often informal, investigative, prosecutorial, and judicial trans-border personnel linkages enabled through the intercession of nongovernmental and international organizations. These networks ultimately facilitate the series of procedures, analyses and tactics that have reached critical mass in the formation of ICL.

When seen from this alternative Foucauldian perspective, Professor Gordon emphasized, ICL is no longer a simple binary power-oppression mechanism operating via punishment on a supranational scale. Instead, it represents a matrix of local-global/global-local capacity building, multi-layered enforcement techniques, and convergences of rules and strategy. “Power” in this context, he observed, can thus be interpreted as a supranational normative and institutional glue that helps situate the erosion of atomistic Westphalian sovereignty and the elevation of individual criminal responsibility as a policy lodestar. At the same time, he concluded that proposing a governmentality-focused approach entails turning away from ICL’s traditional, and stale, individual criminal responsibility-centered model and re-conceiving it as a victim-focused institutional/procedural strategy utilized to protect at-risk masses from the scourges of genocide, crimes against humanity and war crimes.

Over two hundred persons registered for the seminar, which was held online. During the last part of the event, Professor Gordon engaged in a robust question and answer session, which included a discussion of the work of French philosopher Jean-Paul Sartre. This was the fourth talk in the series, which has also featured discussions of the works of Sir Neil MacCormick, Roscoe Pound, and Ronald Dworkin by, respectively, Prof. Scott Veitch (Faculty of Law, The University of Hong Kong), Dr. Jedidiah Kroncke (Faculty of Law, The University of Hong Kong) and Prof. Eva Pils (Kings College London Law).