LJIL Symposium Vol 25-3: Good Deeds of International Defendants: Grace, Goodness, Greed: Saving While Killing

LJIL Symposium Vol 25-3: Good Deeds of International Defendants: Grace, Goodness, Greed: Saving While Killing

[Mark A. Drumbl is Class of 1975 Alumni Professor of Law & Director of the Transnational Law Institute, Washington and Lee University School of Law]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

International criminal law reclines upon simple binaries: good/evil – for instance – as well as authority/helplessness and perpetrator/victim. Victims, however, can victimize. And, correlatively, perpetrators can both kill and save at the same time. Perpetrators may do so selflessly at great risk to themselves or selfishly at great benefit to themselves. Or they may do so impulsively – perhaps with no discernible motive at all. In Roman Polanski’s The Pianist, Itzhak Heller, a Jewish ghetto police guard, suddenly pulls the protagonist Władysław Szpilman out of a line of detainees forced to board a train to Treblinka. Heller, derided for having badly beat up Jews, risks death to save Szpilman – but only Szpilman, who himself is far from heroic – from death.  The scene ends. The audience is left hanging in the characters’ “grey zone”. Why did Heller do that? And why Szpilman?

The erraticism of human nature unsettles the reductive parsimony of the courtroom. It is tough enough to convict human rights abusers for their inhumanity. Now, the law has to recognize their glimmers of humanity, as well, and make sense of these dissident facts. Assuredly, tout comprendre, c’est tout pardonner; but perhaps, also, tout considérer, ça pardonne également.

Professor Galbraith’s important article explores how international criminal law (ICL) grapples with the abuser who also saves the lives of others.  She does so through an examination of the place of “good deeds” in the sentencing practice of the ad hoc tribunals. Galbraith understands “good deeds” to signify acts of humanitarian behavior undertaken by the convict, presumably in the time-frame covered by the indictment, towards individuals on the “other side,” notably, individuals who are not the specific victims of the convict’s crimes.

Galbraith’s research demonstrates that the ICTY and ICTR consider good deeds (a.k.a “selective assistance”) in mitigation of sentence, albeit in a manner that is inconsistent within the tribunals themselves and also inconsistent as between the two tribunals. Galbraith is concerned with this incoherence. In response, she builds a normative argument in favor of considering good deeds in mitigation. She roots her argument in a retributive understanding that – regardless of motive –good deeds undertaken toward members of the other side ought to count. Hers is therefore an objective, effects-based analysis. For Galbraith, obligation does not matter either: in other words, respecting customary international law requirements also constitutes a good deed. Regardless of pre-existing duty, or subjective motive, “a defendant who has done good deeds towards those on the other side of the conflict merits less retribution, from a collective perspective, than a comparable defendant without such good deeds.”  The less selective the assistance, to be sure, the more it should count.

Galbraith’s article is a valuable contribution to sentencing, which chronically presents as one of ICL’s most under-theorized aspects. It does not surprise me that judicial treatment of good deeds as mitigating circumstances remains unpredictable and desultory.  Galbraith’s development of a workable test is to be applauded. In my book Atrocity, Punishment, and International Law, I chided ICL for its excessive dependence on the principles of ordinary municipal criminal law – which I had described as “borrowed stilts.” Galbraith’s push to ground a theory of good deeds in the specifics of collective atrocity crimes is a refreshing bid to develop a sui generis penology for ICL.

Five aspects of Galbraith’s project, nevertheless, uncork broader questions.

The irrelevance of motive. According to Galbraith, “[w]hether a defendant saves a friend from the other group or a stranger from it, he has still done something beneficial to this other group […].” Galbraith would direct consideration of motives towards “character,” another circumstance that mitigates if the character is good and aggravates if the character is particularly bad. Fair enough, but shouldn’t motive still matter as to whether the deed itself can be classed as “good”?  In my work in Rwanda, for example, I came across defendants who riskily saved Tutsi by night, while killing Tutsi by day, for reasons that included receiving sexual, labor, or financial favors. In her dissent in the Ndahimana case – which involved one of the iconically baleful acts of the Rwandan genocide, to wit, the bulldozing of the parish church in Nyange that sheltered 2,000 displaced Tutsi – Judge Arrey referenced a witness’ statement that Father Seromba, the acting parish priest, decided to save some Tutsi children. Fearing that the RPF would kill him because of what happened in Nyange, Seromba spared these children’s lives only to prove as much to advancing RPF forces. Assuredly, a deed may be “good” for the oppressed group if, regardless of motive, it saves some group members. But, in the end, the trial is about the defendant. Objective, effects-based analysis (i.e. how many lives did the good deed spare?) may devolve into a double edged sword, in that it may presage a criminal law system in which culpability becomes established on quantification of how many lives the defendant took, thereby clouding the salience of  intent and motive.

Obversely, the relevance of time. Good deeds cover humanitarian acts during the atrocity (or, in the case of some ICTY jurisprudence, during the war). But what about a lifetime of good deeds up and until atrocity? International tribunals have faced such claims in sentencing, as well, and have on occasion been quite welcoming of them. In Elizaphan Ntakiturimana’s case, for example, an ICTR Trial Chamber accepted as evidence in mitigation his “exemplary life as a church leader, a highly religious and tolerant person, who did not show ethnic bias, even in times of unrest and ethnic tension, for over half a century.” This Trial Chamber found that Ntakiturimana “was essentially a person of good moral character until the events of April to July 1994 during which he was swept along with many Rwandans into criminal conduct.” Might Galbraith’s retributive justification for good deeds cover humanitarian actions taken towards the other side prior to the conflict, especially in light of the reality that genocide and persecution tend to emerge from antecedent frames of inter-group violence?

Burden of proof. For Galbraith, the scope of mitigation hinges upon a rough comparison between the convict’s good deeds and the magnitude of the convict’s crimes. Burden of proof, however, complicates things. Mitigating circumstances need only be established on a balance of probabilities. Convictions, obviously, need to be established beyond a reasonable doubt. These divergent evidentiary burdens destabilize the proportionality scale. This discussion presages another problem in sentencing, namely, that aggravating factors also need to be established beyond a reasonable doubt. Sentencing judges never seem to meaningfully address what, exactly, this means in practice.

Only the other side. Galbraith dichotomizes conflict: on the one hand, the oppressors, and, on the other, the oppressed. But what about the convict who saves people on his or her own side? In Rwanda, for example, moderate Hutus also were targeted for massacre. Would the retributive logic that underpins Galbraith’s justification for considering “good deeds” in mitigation apply to the convict who bestows such deeds upon resisters among the aggressor side? What about the perpetrator who saves people on no side or a third side (e.g. humanitarian forces, foreign aid workers)? Must a side have an immutable characteristic?

Beyond penology. Should good deeds matter only to sentencing? Evidence of saving some, or many, group members might refute claims that the accused had the requisite genocidal intent when he murdered other group members. Should good deeds count in admissibility determinations or other threshold jurisdictional assessments? Is the perpetrator who saves genuinely among those individuals most responsible for mass atrocity?

Good deeds did not really come up in the Lubanga sentencing judgment. Still, evidence of such conduct is eventually bound to surface in ICC proceedings. ICC judges would do well to seriously consider Galbraith’s research, and the lucid test she proposes, so as to propel the quality of the ICC’s sentencing jurisprudence beyond that of the ad hocs. 

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