Sociology of Closure:
Studying the Field of International Prosecution
International courts and tribunals have proliferated since the 1990s (Alter, 2014). In the same period,
international criminal tribunals have multiplied and have been among the most contentious and
controversial institutions in the new international landscape of courts. When the International Criminal
Tribunal for the Former Yugoslavia was founded in 1993, as the first of its kind since the Nuremberg trials,
few anticipated that it would form the vanguard of a much wider reconstruction of international
governance in which criminal law became a central factor. None the less, from the middle of the 1990s
international criminal tribunals were established to deal with the situation in Rwanda in 1994 (ICTR), the
United Nations (UN) became deeply involved in The Ad-hoc Court for East Timor from 1999, the Special
Court for Sierra Leone (SCSL) was established in 2002, the Cambodia Tribunal created in 2006 (ECCC), and
finally the Special Tribunal for Lebanon (SCL) opened in 2009. In 2003 the International Criminal Court,
pursuant of the Rome Statute signed in 1998, began its effort to prosecute the international crimes of
genocide, crimes against humanity and war crimes on a permanent basis. Ideally this court would also
signal an end to the previous practice of setting up ad-hoc tribunals to deal with specific situations.
These courts are the most striking institutional crystallizations of what has been called the
field of international criminal justice (Dixon and Tenove, 2013). However, the ICTY, in many ways
considered the foundational tribunal, has entered its “completion strategy” as have the tribunal in Rwanda,
the SCSL and the ECCC. This paper will focus on the importance of studying such institutional closures and
their effects on the broader field they are part of. This is not merely of importance to the field of
international criminal law. Closures will accelerate over the coming years particularly in the fields of
peacebuilding and rule of law missions, the large EULEX mission in Kosovo, for instance, is planned to start
winding down activities from the summer of 2014. While this paper will focus on central challenges to the
sociology of closure, the theoretical perspectives raised are in fact part of a larger research project on the
field on international prosecution, the prosecution being a distinguishing trait of criminal law and typically
the largest office in the international criminal tribunals. In the present paper, the focus on closure is meant
both to highlight important theoretical features of the project and to outline problems of a more general
character for the transformations of international fields. A central argument is that while the reflexive
sociology that forms the theoretical basis for the inquiry has mainly been used to study the genesis of social
fields, it can contribute significantly to sociological studies of the closure of institutions and the structural
impact of closure on the wider field.
The reflexive study of geneses
Studying theory for the sake of theory is rarely fruitful. This is particularly the case when discussing the
critical and reflexive sociology of Pierre Bourdieu (Bourdieu, 1980; Bourdieu, 1986) that is defined precisely
by an approach that is equally theory heavy and founded in empirical analysis (Madsen and Dezalay, 2013).
This paper will use the specific case of the impending closure of the ICTY as the point of departure for
discussing the use of a specific set of research tools inspired by Bourdieu, their strengths and weaknesses.
In ontological terms, Bourdieu’s research is characterized by an insistence on the relational character of the
social world. In other words, the social fields studied by this form of sociology are defined through a careful
empirical investigation of the agents active in it, and thus competing to define its direction, and the
objective relations between them. As such a field is always characterized by a large degree of plasticity and
is a moving target in the sense that it is under constant transformation due to the changing power balances
within it and its relation to other fields. Rather than a disembodied approach to international institutions
and missions, this approach offers a perspective that takes the actual agents, practices and strategies as its
primary empirical material.
In Bourdieu’s project reflexivity is a cornerstone in the analysis of social fields (Madsen,
2011). This reflexivity is heuristically tied to an epistemology that insists on a “double break” (Bourdieu,
1994: 91-97). The double break is based on a double objectification of both the research object as such and
the research approach itself. Implied in this approach is that it is not enough merely to break free from the
embedded and often quite pervasive symbolism and self-perceptions that guide and give meaning to the
practices of the field. Indeed, the researcher must break with the equally penetrating preconceptions of
academic scholarship. Empirically mapping, for instance, the field of international prosecution, the
researcher must be able to transgress the symbolism of this field, in our case related to the fight to end
impunity, to be able to map the field of agents active in the battle to define precisely what this fight should
entail (Bigo, 2007). At the same time, while empirically mapping out and analyzing the actual objective
relations that make up this field, the researcher must remain acutely aware of any preconceptions
embedded in his or her habitus as they might obstruct the ability to perform a balanced empirical inquiry
(Bigo, 2011).
The double break so central to Bourdieu’s reflexive analyses of different social fields is
particularly prevalent in his focus on the socio-geneses of these fields (Bourdieu, 1994: 107-116). This is
perhaps most visible in Bourdieu’s work on the emergence of the state where he refers to the reflexive
approach as a form of “structural genetics” and “genetic structuralism” aimed at debunking the social
relations behind the emergence of a field (Bourdieu, 2012: 143-159). In one sense this is merely another
iteration of the reflexive approach already identified, but it is an important one as it insists on the need for
studying the deep structures of the social relations that govern the genesis of a social field. Investigating
the genetics of a certain field is a way of laying bare the social building blocks of its formative period. This is
important because the field remains influenced by the social and structural heritage of this beginning. In
other words, investigation of the genetic structures of a social genesis also lays bare social dynamics that
later becomes naturalized as part of the doxa of the field and thus becomes central structural and
structuring effects in the field – doxa being Bourdieu’s term for the tacit but yet pervasive norms and ideals
that guide the practices of a given field; the common sense that is so deeply entrenched that it is often
unacknowledged as such.
The historical perspectives of Bourdieu’s approach have been hugely influential among
reflexively oriented scholars of the international (Dezalay and Garth, 1996; Dezalay and Garth, 2002;
Madsen and Vauchez, 2004; Madsen, 2010; Vauchez, 2010; Cohen, 2013). While the work of these scholars
also has a diachronic dimension that follows the evolution and socio-morphology of their respective fields,
they have primarily been engaged with their genesis. The main research tool of reflexive sociology of the
international builds on some aspects of Bourdieu´s more multifaceted studies – famously investigating for
instance the social and symbolic distinctions operative in French society (Bourdieu, 1979). For studies of the
international, different forms of prosopography (Broady, 2002) have been the predominant research
method. This analysis, occasionally also referred to as “collective biography”, is structured around a
comprehensive collection of data on these agents – including social and educational background and
different elements of their career trajectory.
While the framework of reflexive sociology has general applicability, the study of a field such
as international criminal justice characterized by the impermanence of its institutions calls for a number of
theoretical reflections. As described earlier, the reflexive study of beginnings re-actualizes the conflicts and
confrontations that were quintessential in the emergence of a given phenomenon, but that are often
symbolically glossed over and pushed to the background once the practices of an institution or a wider field
solidify. Similarly, the study of the material and symbolic struggles over impending closure can highlight the
tacit social structures that have been constructed throughout the existence of the institution and become
apparent in the waning years of an institution that previously had a central position in the same field.
From a sociology of beginnings to one of ends
As is the case with other forms of reflexive sociology, the sociology of international criminal law has been
characterized by a focus on the genesis on this field. However, the completion strategy and impending
closure of the ICTY has attracted attention from sociologists. Supplementing John Hagan’s seminal study of
the genesis of the legal and investigative practices of the ICTY (Hagan, 2003), Hagan, Ron Levi and Gabrielle
Ferrales have analyzed the relation between internal dynamics and external pressure surrounding the
tribunal (Hagan et al., 2006). Using a theoretical framework of Pierre Bourdieu, supplementing it with the
reflexive ethnography of Michael Burawoy (Burawoy, 2003), the authors analyze the dynamics of this
relation showing how the changes, for instance, brought about by Carla del Ponte, acting prosecutor from
1999-2008, translated political pressures into an internal policy that effectively alienated high ranking
personnel as well as the many investigators of the tribunal, many of whom successively sought
employment elsewhere.
With this article and related analysis (Hagan and Levi, 2004; Hagan and Levi, 2005), the
authors have provided empirically founded analysis of the relations between the new internal practices and
strategies of the ICTY and external relations such as political influence mediated through the Security
Council and the largest economic benefactors, most significantly the US who contributed half of the funds
and seconded a large number of professionals to the tribunal. However, while their work has contributed
important insights into the workings of the tribunal vis-à-vis its political and economic context as a highly
controversial institution, it has not investigated the more systemic impact of the completion strategy of the
ICTY. In other words, the effects of the protracted closure of the tribunal on the larger field of international
criminal justice have still to be studied empirically.
In the context of defining the theoretical approach to such a study, a return to Bourdieu is
relevant. His work on the state elite outlines the creation and reproduction of French elites with a specific
focus on the relationship between material and symbolic power (Bourdieu, 1989). The analysis of the
reproductive strategies tied to elite education and the symbolic system it is embedded in shows how
certain forms of capital are concentrated and monopolized by a select social group that simultaneously
uphold a privileged status within the state hierarchy. However, the creation of creation of elites is very
different outside the state context (Kauppi and Madsen, 2013). The related analysis of Luc Boltanski can
help analyze how a heterogeneous social group naturalizes and objectify their internal and external social
coherence and thus create the foundation for establishing and solidifying their legitimacy (Boltanski, 1982).
However, while the tools employed in the analysis of the creation of “les cadres” as a collective within a
national French context can be helpful, creating a coherent social group in the international is a different
matter as international fields, particularly those characterized by closures, are based on more unstable
social dynamics defined by uncertain job opportunities and a high turnover of agents.
Analyzing the closure of a tribunal opens at least two important dimensions, that both have
more generic implications relevant for other international fields: 1) the changing social dynamics of the
fields characterized by closure and 2) the structural effects of closure on the field as such. Firstly, while
most national fields are based on expanding markets and thus on social dynamics related to forms of
reproduction that rely on a relative constancy or re-creation of professional positions, fields such as
international criminal law are characterized by far more contentious modes of recruitment, retention and
circulation. This leads also to another set of parameters for defining and objectifying the contours of
delimited social groups in this international field. Reflexive sociology is finely attuned to analyzing precisely
the intricacies of the division of labor in such fields identifying the profiles and positions that generate
transferable capital in contrast to those that do not. While social capital is never distributed democratically,
fields marked by closure are characterized by highly unstable modes of reproduction, as invested social
capital risks rapid depreciation as the field shrinks. More concretely, as the types of international expertise
cultivated in the international are rarely directly transferable to national positions career trajectories
employment in an international tribunal can be a risky business. However, as is evident in the career
trajectories of the professionals of the ICTY, opportunities for capitalizing on previous expertise vary
immensely. In a larger perspective the unequal distribution of capital must be analyzed as part of a more
comprehensive study of the division of labor in the tribunal and the creation of a new elite in the field of
international prosecution. This also opens up, theoretically and empirically, the perspective of the
interrelatedness of different fields and the elites that operate in these fields, as transversal mobility seems
be central for the transferability of capital. In other words, analyzing the field as a closed entity risks
completely missing the point as the dominant profiles are the ones that retain close connections to other
international or national fields. The transversal characteristics of elite career trajectories has been analyzed
as part of wider studies of the social division of labor in the transnational (Kauppi and Madsen, 2013), but
are accentuated in a shrinking field as closure can be used as an analytical entry point for laying bare the
divisions of labor and distribution of power that have been operative in the field and are typically partly
inherited from its formative period and partly developed through the social routinization processes of the
field.
This brings us to the second point, the effects of closure on the remaining part of the field
and bordering fields. Here reflexive sociology provides research tools that enable the researcher to analyze
the structural effects of institutional closure. This opens up to important studies of the practices that follow
from the withdrawal of the international, for instance as the ICTY terminates operations in the Balkans and
previous tasks disappear or are taken over by local institutions or agents. In this transformative period the
study of career trajectories in the retreating field as well as the one that takes over activities can provide
central clues to the structural impact of closure. Far from necessarily a threat to the field as such, the
reshuffling of positions within it can impact the direction of the field as well as influence others. This
becomes transparent when using the collective biography to detail the concrete movements of agents, in
other words the material struggle for remaining positions, but must be analyzed also as part of a larger
symbolic competition linked to the dynamics of mobilization within the field. This brings us back to the
question of elites and the distribution of the symbolic capital of the field. As international institutions close,
symbolic capital can be reinvested in national jurisdictions, many of which now have war crimes units, or
internationally to lobby for new missions and cases, as has been seen for instance with the group of
lawyers collecting evidence on atrocities committed in Syria. Only a narrow elite group within the field
seems to be able to profit from this symbolic capital, while typically also retaining positions in national
contexts. Structurally their activities are potentially important because the mobilization they create behind
certain cases can created dynamics that change the contours of the field by expanding its reach and thus
opening new positions.
Conclusion
As this short paper has tried to outline, although very briefly, reflexive sociology offers central tools for
analytically debunking the battles that take place in this rapidly shrinking and restructured field. These
battles can take the form of material battles of positions as well as a contest over symbolic power in terms
of the “legacy” of the tribunal and the role of international criminal justice more generally. As the tribunal
heads into its final years, having at its peak employed 1.100 individuals, the closure of the tribunal will
significantly alter professional opportunities and be part of a wider reconstruction that will alter the social
make-up of the field of criminal justice. But just as the inquiry into the genetics a field or institution helps
identify battles and presumptions that are later glossed over, the acceptance of the official terminology of
the completion strategy risks hiding more tacit movements of agents. In other words, as the career
strategies of the agents are not necessarily parallel to the life span of the institution itself, the recruitment,
retention and exits of agents provide an important perspective into the social dynamics of a given
institution. This is made explicit as it is winding down its activities and agents are forced to find positions
elsewhere. Simultaneously, closures affect the national as professionals try to return to positions at home
or as national agents take over the responsibilities abandoned by the international. In other words,
studying the closure of pivotal institutions in an international field is a way to lay bare the transformations
of the social dynamics of this field as they are played out in the material and symbolic struggle for a
declining number of positions and the definition of the legacy of these institutions and their practices. This
is important because these closures signal transformations not only of the field as such but also the
neighboring fields affected when the international changes shape.
Bibliography
Alter KJ. (2014) The new terrain of international law : courts, politics, rights, Princeton, New Jersey:
Princeton University Press.
Bigo D. (2007) Mapping the Field of EU Internal Security Agencies, Paris: L'Harmattan.
Bigo D. (2011) Pierre Bourdieu and International Relations: Power of Practices, Practices of Power.
International Political Sociology 5: 225-258.
Boltanski L. (1982) Les cadres : la formation d'un groupe social, Paris: Editions de Minuit.
Bourdieu P. (1979) La distinction : critique sociale du jugement, Paris: Éditions de Minuit.
Bourdieu P. (1980) Le sens pratique, Paris: Paris : Editions de minuit.
Bourdieu P. (1986) La force du droit. Actes de la recherche en sciences sociales: 3-19.
Bourdieu P. (1989) La noblesse d'État, Paris: Éditions de Minuit.
Bourdieu P. (1994) Raisons pratiques : sur la théorie de l'action, Paris: Seuil.
Bourdieu P. (2012) Sur l'État: Cours au Collège de France 1989-1992, Paris: Seuil.
Broady D. (2002) French prosopography: Definition and suggested readings. Poetics 30: 381-385.
Burawoy M. (2003) Revisits: An Outline of a Theory of Reflexive Ethnography. American Sociological Review
68: 645-679.
Cohen A. (2013) The Genesis of Europe - Competing elites and the emergence of a European field of power.
In: Kauppi N and Madsen MR (eds) Transnational Power Elites - The new professionals of
governance, law and security. Oxford: Oxford University Press, 103-120.
Dezalay Y and Garth BG. (1996) Dealing in virtue, International commercial arbitration and the construction
of a transnational legal order, Chicago London: Chicago : London : University of Chicago Press.
Dezalay Y and Garth BG. (2002) The internationalization of palace wars, lawyers, economists, and the
contest to transform Latin American states, Chicago: Chicago : University of Chicago Press.
Dixon P and Tenove C. (2013) International Criminal Justice as a Transnational Field: Rules, Authority and
Victims. International Journal of Transitional Justice.
Hagan J. (2003) Justice in the Balkans, prosecuting war crimes in the Hague Tribunal, Chicago: Chicago :
University of Chicago Press.
Hagan J and Levi R. (2004) Social Skill, the Milosevic Indictment, and the Rebirth of International Criminal
Justice. European Journal of Criminology 1: 445-475.
Hagan J and Levi R. (2005) Crimes of War and the Force of Law. Social Forces 83: 1499-1534.
Hagan J, Levi R and Ferrales G. (2006) Swaying the Hand of Justice: The Internal and External Dynamics of
Regime Change at the International Criminal Tribunal for the Former Yugoslavia. Law & Social
Inquiry 31: 585-616.
Kauppi N and Madsen MR. (2013) Transnational power elites, the new professionals of governance, law and
security. London: London : Routledge.
Madsen MR. (2010) La genèse de l'Europe des droits de l'homme, enjeux juridiques et stratégies d'état,
France, Grande-Bretagne et pays scandinaves, 1945-1970, Strasbourg: Strasbourg : Presses
universitaires de Strasbourg.
Madsen MR. (2011) Reflexivity and the Construction of the International Object: The Case of Human Rights.
International Political Sociology 5: 259-275.
Madsen MR and Dezalay Y. (2013) Pierre Bourdieu's Sociology of Law : From the Genesis of the State to the
Globalisation of Law. In: Banakar R and Travers M (eds) Law and Social Theory. Oxford: Hart
Publishing, 111-127.
Madsen MR and Vauchez A. (2004) European constitutionalism at the cradle. Law and lawyers in the
construction of a European political order (1920–1960). Recht Werkelijkheid 25: 15.
Vauchez A. (2010) The transnational politics of judicialization. Van Gend en Loos and the making of EU
polity. European Law Journal 16: 1-28.