In association with the International Commission of Jurists

October 2012

11 Oct

Royal Dutch Shell Plc., faces a lawsuit today in a district court in The Hague that seeks to make Shell and other corporations responsible for pollution resulting from three oil spills in 2004, 2005 and 2007 in the Niger Delta. Russia has said it will not renew the expiring 1991 arms agreement with the US requiring the dismantaling of nuclear and chemical weapons, as it...

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11 Oct

I'm sorry I didn't discover it until he linked to me, but Derek Gregory -- the Peter Wall Distinguished Professor and Professor of Geography at the University of British Columbia -- has recently started a blog entitled Geographical Imaginations: War, Space, and Security. Gregory is one of the great political geographers of his or any generation; I can't recommend the...

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10 Oct

[Jean Galbraith is Assistant Professor at Rutgers-Camden 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.
I want to thank Opinio Juris and the Leiden Journal of International Law for putting together this symposium.  I am especially grateful to Professor Dov Jacobs for organizing this session and to Professors Mark Drumbl and Meg deGuzman for their thoughtful comments about my article. Some years back, I noticed how frequently international criminal defendants argued that they deserved credit for help they had given members of the other side during the conflict.  Almost every ICTR defendant claimed that he had helped protect one or more Tutsis, and ICTY defendants asserted all manner of humanitarian acts.  Most of these claims seemed dubious in their veracity or trivial relative to the defendants’ crimes, but a few left me wondering whether those defendants really belonged among the worst of the worst.  These observations led to this article, which has both a structural and a substantive component. Structurally, I look at how the ICTY and ICTR have dealt with evidence of frequent use of defendants’ “good deeds” in sentencing.  The tribunals have dealt with this evidence in ad hoc fashion, with trial chambers taking a variety of cursory approaches and with little guidance from the Appeals Chamber.  This in and of itself is suggestive of how international criminal tribunals allocate their efforts.  Where inconsistencies in substantive international criminal law tend to get thoroughly examined and resolved, other kinds of issues – especially in sentencing – often slip through the cracks.  This may be especially true of issues that are, as Professor Drumbl puts it, sui generis to international criminal law:  it is harder for courts to recognize these as systematic issues in the first place. Substantively, I consider how defendants’ good deeds should affect the sentences they receive.  This is a hard question.  There’s no consensus among domestic jurisdictions about how much or how little to weigh good acts at sentencing.  When confronted with conflicting domestic approaches, the ICTY and ICTR have often focused on picking among them.  I argue, however, that the tribunals can avoid doing so here and instead derive their approach from the unique features of international criminal law.  Specifically, I argue that, as a doctrinal or functional matter, international crimes typically arise out of conflicts between groups -- and are considered to be international crimes worthy of the attention of the international community in part because of this quality.  Because of this, I suggest that good deeds by defendants aimed at those on the other side of the conflict should mitigate in part (though only in part) the appropriate level of retribution at sentencing, with the degree of mitigation to depend on the relative magnitude of the defendant’s crimes and good deeds.  I also argue that, depending on motive, a defendant’s good deeds might also serve as evidence of rehabilitable character. Professors Drumbl and deGuzman direct most of their comments to my substantive argument.  Professor deGuzman questions my overall emphasis on retributivist reasoning and also notes concerns about some particular points.  Professor Drumbl is sympathetic to my overall argument but urges me to revisit or expand my argument on five specific issues.  I can’t do full justice to their points, which reflect careful scholarly engagement with my article, but here are some brief responses.
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10 Oct

[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.

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10 Oct

[Meg deGuzman is Associate Professor of Law, Temple University] 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. Thanks to the Leiden Journal of International Law and to Opinio Juris for inviting me to contribute to this discussion of Jean Galbraith’s excellent article.  Jean...

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10 Oct

Abu Hamza al-Masri has pleaded not guilty in a US federal court, after recently being extradited by Britain. A US drone attack has killed five in Northwest Pakistan, close to the border with Afghanistan. Xinhua reports that Japan has shown signs of a willingness to compromise and is planning to acknowledge China's claims on the Senkaku/Diaoyu islands without however giving up on its own position. Nevertheless, the...

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09 Oct

I want to briefly interrupt the LJIL symposium to flag the fact that the Bond case is back on the U.S. Supreme Court's radar screen and with it the prospect that the Court may revisit one of the most canonical cases of U.S. foreign relations law: Missouri v. Holland. The facts are a bit lurid -- Carol Anne Bond discovered that her husband had...

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09 Oct

[Jean d’Aspremont is Associate Professor of International Law, Amsterdam Centre for International Law (ACIL), University of Amsterdam and Editor-in-chief of the Leiden Journal of International 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.
Debate has always been a central medium of thought-making and, hence, knowledge-production in social sciences. This is why, albeit aware of the pitfalls of such platforms (see my EJIL:Talk! post), I initiated, with the help of Dov Jacobs, a partnership between the Leiden Journal of International Law and Opinio Juris. It is the very same rationale that propelled the observations on the wording techniques in international law that are under discussion today. Nourishing – predominantly self-reflective – debates was indeed the avowed goal of this piece to which Francesco Messineo and Michael Kearney reacted, thereby further contributing to the deliberative agenda behind it. I am thus extremely grateful to them for taking some of their very precious summer time (probably the moment of the year the most conducive to reading and thinking). I am similarly very appreciative of the fact that both authors took pains to venture into (and play with) some of the wording techniques described in this editorial, doing so with great mastery and uncontested brio. Although deeply thankful for their effort, I bemoan the extent to which Francesco and Michael, under the – conventionally necessary – veil of disagreement, fundamentally concur with the core ideas defended in the paper. Indeed, there neither of them seem to completely deny the competitive dynamics at play in the epistemic community of international law as well as the cosmetic, eye-catching, erudition-magnifying techniques which are deployed by the members of that community in their attempts to ensure that the information they produced is received and validated as proper knowledge by their peers. This being said, the readers of this blog ought not be anxious. Voicing disagreement is congenital to expert blogging and there is amble material to bicker about. Allow me to – completely arbitrarily and out of personal convenience – pick those points I deem the most fundamental and which I – very selfishly – would enjoy elaborating on (after all, legal blogging is a structurally and emotionally selfish exercise).
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09 Oct

[Michael Kearney is a lecturer in law at the University of Sussex] Many thanks to the organisers at LJIL and Opinio Juris for the opportunity to comment on Jean’s article on Wording in International Law. At the core of the paper is a plea that international legal scholars be alert to a tendency in contemporary scholarly production whereby the desire of authors...

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09 Oct

[Francesco Messineo is a Lecturer in Law, Kent Law School, Canterbury (UK).]  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.
Unless international lawyers get their act together and agree on the basic meaning of the key terms in their discipline, says Jean d’Aspremont, observers (and, crucially, funders) may suddenly realize that the profession is really no more than an ‘expensive debating club’ – often funded by the taxpayer – ‘in which everyone talks past each other’. Thanks also to blogs such as Opinio Juris, access to the debating chamber is no longer subject to hierarchical initiation rituals: anyone with a higher degree in (international) law is at least ostensibly welcome to join in. The ensuing competition for credibility is rife, says d’Aspremont. An ever‑increasing mass of ‘young’ and often ‘arrogant’ scholars employ words as their tools in a ‘hen house’ of ‘violent’ conflict aimed at finding new ‘names’ for things which often already have perfectly usable ones. Because of the death of Aristotelian logic and other ‘foundational’ philosophies,  the main aim of the profession has become the establishing of one’s persuasiveness and authority at the expense of the nearest colleague, often in pursuit of one’s ‘unquenchable thirst for recognition’. In order to perpetuate the illusion of a fruitful debate, the meaning of words must constantly change – there is no ‘epistemic peace’, as d’Aspremont puts it. Forget great systems of conceptual beauty collectively built by cohesive schools of thought: we want tenure, and possibly glory, too. In d’Aspremont’s view, international legal academia has become an endless game where the angst of oblivion often trumps logic and courtesy. Furthermore, this constant renaming of the institutions of international law is fashionable but pointless. As in the Leopard, everything must change constantly so that nothing actually changes. The preceding paragraph is meant to be an example of what d’Aspremont chastises. I have deliberately simplified and exaggerated his argument. I have taken his words out of context and reduced an eloquent set of arguments to what may be perceived as a rant (which his article is not). To make things worse, I have then added a perfectly unnecessary reference to a work of literary fiction which may be obscure to some of my readers, dropping it there as if everyone should know what the Leopard is (D’Aspremont would diagnose this somewhere in the spectrum between a pointless display of ‘erudition’ and a ‘strategy’ of mild ‘intimidation’). After having created this aesthetically and rhetorically pleasing straw-man, I should now proceed to mercilessly criticise his argument – a short critique is, after all, what the kind editors of LJIL and Opinio Juris asked me to write. 
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09 Oct

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University] 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. Over the next few days, we are happy to bring you...

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09 Oct

Libya will challenge the jurisdiction of the International Criminal Court over Saif al-Islam Gaddafi in order to try him on Libyan soil. Mark Kersten at Justice in Conflict has more analysis about the battle of where the trial will be held. Police in Sierra Leone have arrested an investigator employed by former Liberian President Charles Taylor's defense team on charges he attempted...

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