VJIL Symposium: Andrew K. Woods Responds to Professors Baron, Haque, and Ohlin

[Andrew K. Woods is currently a Climenko Fellow at Harvard Law School.]

This post is part of the Virginia Journal of International Law/Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.

Let me begin by expressing my gratitude to the Virginia Journal of International Law (VJIL) and Opinio Juris for hosting this discussion, and to Professors Baron, Haque, and Ohlin for their thoughtful responses to my recent VJIL Article. Rather than address every point raised by the comments, I thought I would make a few related points.

Can It Still be Called Criminal Law?

I want to resist the idea that finding a just deserts approach to be sub-optimal (on a consequentialist account – as I say, this project says nothing about the deontological merit of a purely retributive approach) calls for abandoning the international criminal model wholesale. That is, one can reject retributivism without rejecting a “rule-governed legal process that defines crimes, determines responsibility, and imposes punishment,” as Haque puts it. Judges, and the prosecutors who launch international criminal inquiries, need not speak in retributive terms, and they need not speak in retributive terms on behalf of all people everywhere. As I show in Part III of the article, there are a number of decisions within the regime — such as who to indict, how long to sentence them, and with what sorts of sentences — that could be made so as to enhance the regime’s effect on international crime without undermining its “criminal law” nature. There may be a first order question of whether criminal law inherently requires finger wagging, but even if we concede that it does we still need to figure out who should be the subject of the finger wagging, why, and on whose behalf. These are design choices within (not without) the criminal law model.

I appreciate the point both Professors Ohlin and Haque make about aggregation: in theory, individual judgments need not be overtly consequentialist in order to maximize the overall utility of a particular tribunal. This is a key piece of the “utility of desert” argument, and disproving that argument in the abstract (or as it applies to domestic criminal law) was never the point of the project. Rather, the point was to evaluate what I think is an implicit and largely unacknowledged justification for retributivism in the international criminal system: the idea that just deserts for international crimes are not just right and true but will also serve the policy goals of international justice. In Part II, I gave reasons (six of them!) to think that a retributive system would cause a number of unwanted consequences, and my conclusion is that these consequences on balance will likely outweigh the aggregate benefits of a retributive approach. Scholars like Jonathan Baron and Cass Sunstein have shown how moral outrage can derail deliberative justice in domestic settings, and it seems that there are particular reasons to worry about this problem in the international criminal context. This is partly due to the politics of international justice, which I discuss below.

A More Modest International Criminal Regime

Moral outrage and indignation play a particularly prominent role in the politics of international criminal law – that is, NGOs and other actors use moral outrage to mobilize constituents to overcome collective action and sovereignty problems to launch international criminal tribunals in the first instance. But once a tribunal or inquiry is up and running, it may be wise to pull back on the use of indignation and outrage if, as the article shows, those features undermine the regime’s goals of conflict reconciliation and social healing.

If you agree that there are reasons to worry about a retributive regime’s ability to achieve the various special goals of the international criminal system, this either calls for mitigating the regime’s retributive features, or expecting less of the regime. I focus mostly on the former in my Article, but I take the comments from both Professors Ohlin and Haque to mean that we could go the latter route as well. There are signs that both scholars and practitioners of international criminal law are embracing a more modest view of what international criminal law can accomplish, and I welcome this development.

Tit-for-Tat in International Law

Both Professor Baron and Ohlin mentioned the problem of endless cycles of retribution, so let me say a word about that. First, I’m not sure that 3pp v. 2pp perfectly captures the “retributive v. consequentialist” divide. Often, participants in a 3pp system have incentives to act outraged on behalf of the victim (meaning that the retributive norms of 2pp creep back in). Given that we have a budding 3pp system in international criminal law, the important questions are: whether the 3rd-party response appears as a retaliation of sorts, how much retaliation is warranted, and on whose behalf this retaliation is launched (i.e., is it in the service of international norms, or a community of victims?). I am not convinced that, as Prof. Ohlin suggests, groups will engage in reprisal attacks if courts resist the urge to punish on behalf of victims (3pp pursuing 2pp norms). It seems we often ask for restraint from victims, or even forgiveness, without sparking endless cycles of retribution.

Moreover, my limited understanding of game theory suggests that this kind of restraint may be the best way to avoid retributive cycles in the long run. (I’m taking a cue from Prof. Baron here, opening yet another line of inquiry.) International law often aims to constrain actors to behave in a tit-for-tat manner. For example, states may engage in countermeasures, or retaliate with armed force, only if the other state defects first – and not if that state cooperates. Not only is this fair, but as Robert Axelrod’s famous computer tournament revealed, tit-for-tat is a surprisingly successful strategy in prisoners’ dilemmas. Axelrod’s work showed, however, through evolutionary recursions of the game, that despite their overall fitness, tit-for-tat strategies can lead to horrible cycles of defection – cycles that can be seen in real life examples of endless retaliations (a cycle that Baron notes “has been going on for over 1,000 years”).

Axelrod found that these recursions can be broken with a slight modification of the tit-for-tat strategy which he calls “generous tit-for-tat” – that is, a tit-for-tat strategy with occasional cooperation despite the fact that the other player defected. Perhaps this finding suggests that international law should be modeled on “generous tit-for-tat,” even in a 3pp system. (For a different view, one relevant to the application of the “utility of desert” framework to the international use of force regime, I recommend Paul H. Robinson & Adil Ahmad Haque, Advantaging Aggressors: Justice & Deterrence in International Law, 3 HARV. NAT’L SEC. J. 143 (2011).) This is obviously sketchy, and far afield from the original paper topic, but it does seem relevant to analyzing the specter of long-term, vicious cycles of retaliation; I’m happy to be corrected in the comments if readers with more knowledge of game theory care to weigh in.

Thanks again to VJIL, Opinio Juris and Professors Baron, Haque, and Ohlin for the thoughtful commentary.