VJIL Symposium: Jens David Ohlin Comments on “Moral Judgments & International Crimes”

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

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.

Andrew Woods has done an admirable job tackling a truly foundational issue: the normative basis for punishment in international criminal law. This issue has engaged my thinking as well, and Woods is to be congratulated for moving the ball forward and asking the right questions.

Woods starts from the assumption that international criminal punishment is essentially retributivist. He then proceeds to harness the lessons learned from the domestic punishment literature and then applies them to the international context. In particular, Woods invokes the well-known work by criminal law scholars Paul Robinson and John Darley. In a series of well-known articles and books, Robinson and Darley have argued that there is a utility to moral desert. In other words, (1) individuals have retributive sentiments regarding misbehavior; and (2) designing a system of punishment that tracks those sentiments will, as a whole, produce better consequences.

This is one particular way of integrating retributivism and utility into a single coherent theory. For Robinson and Darley, the empirical fact of the matter is that people have retributive sentiments (step 1). At a normative level, however, what makes the system morally justifiable is that these sentiments have beneficial consequences (step 2) – hence the utility of desert. So the theory starts with a description of moral desert at the individual and wraps it in a normative argument at the institutional level that sounds in consequentialism.

Woods then proceeds to apply these lessons to international criminal law. In short, he concludes that there is no similar utility of desert for international criminal law.

While I think there is much to admire in Woods’ analysis, I take some issue with the first step of the argument: his assumption that international criminal law is fundamentally retributive. If he means this statement as a descriptive claim about the state of the field, I think he is wrong. I myself have argued that international tribunals ought to be far more retributive, so why am I complaining? Because I think that ICL ought to be more retributive, precisely because I think that ICL isn’t sufficiently retributive at the moment.

Although some ICL scholars, such as myself, have retributivist tendencies, in my experience the vast majority of ICL practitioners and judges are skeptical of retributivism. If they were retributivist, I think sentences at international criminal tribunals would be longer. In fact, though, the opposite is the case. Most practitioners and judges subscribe to deterrence, rehabilitation, incapacitation, or some other theory of punishment. Retributivism is a minority view among this crowd. This might stem from the greater influence of Europeans in ICL, and the relatively weaker influence of Americans (who are more likely to favor retributivism), but I’m not entirely sure about this. Certainly, though, of the scholars that Woods cites for the proposition that ICL is retributive, the vast majority are North American, thus leaving a distorted picture of the state of the field. Whatever the cause, though, expressing retributivist sentiments in the ICL crowd will run the speaker the risk of being accused of American-style penological vengeance. Harsh justice, American style.

My second concern has to do with the insights that Woods draws from the social science literature, in particular the work of Baron and Ritov on tort damage awards. Woods examines the possibility that retributive thinking will “crowd out” consequentialist reasoning. Specifically, Woods concludes that

This suggests that even self-professed consequentialists become unlikely to produce consequentialist judgments when their emotions get the better of them. People are inherently bad consequentialists when their emotions are primed with moral outrage. Insofar as the retributive approach primes such outrage, then, it is likely to inhibit consequentialist decision-making. An alternative approach might suggest limiting moral outrage, precisely where the retributive approach encourages ramping it up.

At this point, I’m a little uncertain whom Woods is arguing against. It doesn’t seem to be Robinson and Darley, or anyone that is applying their rationale to ICL. The whole idea behind the utility of desert is that individual decisions about moral desert are consistent and widespread and, when taken collectively, have positive benefits for society, hence the greater social utility. Under this view, the individuals do not engage in consequentialist reasoning at all. In fact, the whole point is that they do not. So the overall structure of the Robinson and Darley argument is not undermined by the social science literature that moral sentiments might crowd out consequentialist calculations. The net social utility, if Robinson and Darley are correct, stems indirectly from individuals exercising non-consequential judgments about moral desert, not directly from individuals engaged in consequentialist reasoning.

However, Woods is right to ask whether intuitions about international crimes are universally shared across cultural contexts. In that sense, he may be correct that Robinson and Darley’s empirical claim about the universality of retributive sentiments regarding domestic crimes like murder may not be easily transferable to the international context.

But I am not sure who would apply Robinson and Darley in this way. My own view, for what it’s worth, is that the victims of international crimes have retributive sentiments, in the sense that they want to see the perpetrators punished simply because these individuals deserve to be punished. Failure to punish the perpetrators will have negative consequences for social utility, in the sense that victim groups may engage in reprisal attacks and even wars of vengeance to seek the redress that they could not receive in the courtroom. Therefore, fulfilling the retributive intuitions of the victims prevents regional instability from festering and even rehabilitates peace and security – precisely the collective consequences underlying the Security Council’s exercise of its Chapter VII authority.

This argument may share a structural similarity with the Robinson and Darley framework (retributive at the individual level, utilitarian at the collective level), though I wouldn’t describe it as Robinson and Darley writ large. The crucial difference is that the collective utilitarian payoff isn’t the deterrence of future international crimes through fear of punishment – which both Woods and I agree is entirely speculative – but rather the collective consequence of reducing war and regional instability in the sense in which public international lawyers and diplomats understand those consequences. Whether international criminal justice actually achieves this collective result is anyone’s guess, but clearly the Security Council hopes it may some day come to pass.

As recent debates regarding Libya and Syria make clear, this “instrumentalization” of the ICC may be worrisome for international criminal lawyers who think their work should be insulated from diplomatic pressure. On that we can all agree. But like it or not, if the Security Council wants to create an ad hoc tribunal or refer a case to the ICC, it needs to frame the issue within the inherently consequentialist standard embodied by Chapter VII of the UN Charter.