May 2012

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.

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.

VJIL Symposium: Adil Ahmad Haque Comments on “Moral Judgments & International Crimes”

[Adil Ahmad Haque is an Associate Professor of Law at the Rutgers School of Law-Newark.] 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. I want thank Andrew Woods, the Virginia Journal of International Law, and Opinio Juris for the opportunity to respond to such a rich and provocative Article. I could probably write 600 words on any single section of Andrew’s paper, but for present purposes I’ll confine myself to some big-picture issues. Reordered somewhat, Andrew’s core argument works like this: 1. The apparently retributive features of international criminal law often interfere with the maximization of various good consequences including conflict prevention, conflict resolution, and reconciliation. In particular, moral condemnation and retributive attitudes interfere with consequentialist reasoning. (Part II.B) 2. In the domestic context, similar contra-consequentialist features might be justified by ‘the utility of desert’: departures from lay intuitions of justice (‘empirical desert’) seldom deter much crime and may even increase crime by undermining the moral credibility of the law and with it voluntary compliance. (Part I). 3. However, international criminal law cannot effectively harness the power of empirical desert, leaving the contra-consequentialist features undefeated. (Part II.A). 4. Therefore, international criminal courts should deemphasize moral condemnation and depart from empirical desert when this will produce better consequences. For example, courts should consider imposing higher or lower punishments to avoid local backlash; alternative sanctions such as public hearings, naming and shaming, revoking professional licenses, and lustration; paying rebels to disarm; granting amnesties; ordering restitution; economic development; and forward-looking conflict prevention. (Part III). My sense is that accepting many of Andrew’s proposals would make “the international criminal regime” (Andrew’s phrase) either no longer a criminal regime or no longer a legal regime. For this reason, his arguments are best understood as arguments against deploying the international criminal regime in the first place and using other means to prevent, resolve, and respond to conflict.

VJIL Symposium: Comment – Second Party and Third Party Punishment

[Jonathan Baron is Professor of Psychology at the University of Pennsylvania.] 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. Thank you to the Virginia Journal of International Law for inviting me to participate and to Opinio Juris for hosting this discussion. I found this Article to be interesting and informative. It all makes sense to me, and I have no major criticisms. I would like to mention a different approach. An important distinction not mentioned (made in experimental economics and other fields) is that between second-party and third-party punishment, abbreviated as 2pp and 3pp. In 2pp, the victim punishes the injurer. In 3pp, a third party does. In experiments it is often simply another subject in the experiment. In real life, it is often the state, or someone given the power to punish in order to enforce the rules of a group, although it may be simply an uninvolved third person. Roughly, the rise of government over human history coincided with the replacement of 2pp by 3pp. Modern governments, when they can assert their authority, usually forbid 2pp, calling it "taking justice into your own hands" or "vigilante justice" (which can also include 3pp but may also be 2pp by an offended group). The norms of 2pp tend to be based on retribution, although of course this is correlated with (at least specific) deterrence, so that both rationales can be used at once, whichever is primary. ("I'll teach that SOB not to mess with me anymore. And, anyway, he deserves what he's going to get.") The norms of 3pp arise less from the idea of retaliation, since the punisher is not the victim, and are thus more open to other rationales, such as the standard utilitarian rationales of deterrence, incapacitation and rehabilitation, although explicit recognition of these norms came long after state power was well consolidated around the world. In general people tend to see the replacement of 2pp by government-controlled 3pp as a reform. Culture moves from feuds and warring gangs to a more orderly state of affairs.

VJIL Symposium: Introducing Moral Judgments & International Crimes

[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. Thank you very much to the Virginia Journal of International Law and Opinio Juris for hosting this online discussion on...

Introduction to the Virginia Journal of International Law/Opinio Juris Online Symposium for Issue 52:3

The Virginia Journal of International Law (VJIL) is delighted to be partnering with Opinio Juris this week to host a series of discussions on recent scholarship published by VJIL. This week will feature articles from the third Issue of Volume 52 of the Journal. The complete Issue 52:3 can be downloaded here. On Tuesday, we begin our discussion an Article by Andrew K. Woods (Harvard Law School) – “Moral Judgments & International Crimes: The Disutility of Desert.” In this excellent Article, Professor Woods comprehensively examines the “utility of desert” theory and argues that there is reason to be skeptical about the theory’s application in the international context. Excellent commentary will be provided by Jens David Ohlin (Cornell Law School), Adil Ahmad Haque (Rutgers School of Law-Newark), and Jonathan Baron (University of Pennsylvania). On Wednesday, we continue with Alvaro Santos’s (Georgetown University Law Center) Article, “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Mexico & Brazil.” Santos contends that developing countries in the WTO can use strategies of lawyering and litigation to influence rule interpretation to advance their own interests. He uses the experience of Mexico and Brazil to illustrate the different strategies that have been employed and discusses the different results. Robert Howse (New York University School of Law) and Andrew Lang (London School of Economics and Political Science) will respond. Finally, on Thursday, Jason Webb Yackee (University of Wisconsin School of Law) will discuss his thought-provoking Essay, “Investment Treaties & Investor Corruption: An Emerging Defense for Host States?” Yackee brings attention to the recent trend by host nations of using investor corruption as a defense to liability in ICSID arbitration. In his Essay, Professor Yackee suggests a model framework for dealing with this new trend. Responding to his piece will be Jarrod Wong (Pacific-McGeorge School of Law). Andrea K. Bjorklund (UC-Davis School of Law) and Daniel Litwin (McGill University) will also offer a joint response.