LJIL Symposium: International Criminal Law and Moral Agency

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

This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below.

Darryl Robinson is among the most exciting thinkers currently engaged with international criminal law (ICL). In his latest piece, the subject of today’s discussion, he surveys the field. While much of academic work is given over to exploiting fissures and wedges, Darryl yearns for compatibilities. Ever the optimist, he searches for bridges and synergies.

Darryl – rightly, I think – notes that ICL’s roots lie in a teleological formalism. Motivated by the very human impulse to pursue accountability for the equally human impulse to inflict great harms, the formalists established the foundations and charted the territory. Celerity was the name of the game; time was of the essence. But making sense of the macabre isn’t easy, so the formalists soon had to contemplate instrumental short-cuts. One of these, as Darryl identifies, was to the principle of legality. Acting in the name of the law necessitated diluting the purity of the law. Retroactivity, duress, specific intent, and the causality of contribution became viewed as vaguely inconvenient instead of centrally constitutive.

These compromises, in turn, spawned a second wave of scholarship, which Darryl describes as the liberal critique. This critique recovered the value of legality for ICL. Its advisories, however, also risked rendering the system unworkable, too exigent, and somewhat unwieldy. This critique may have overemphasized general principles of law drawn from ordinary systems, rather than built lex specialis for violence in extremis.

A third critique then emerged, which Darryl portrays as the critique of the liberal critique. This critique – in which Darryl generously incudes my own efforts – intimates that the collective nature of atrocity is such that compromises to liberal legalism, while not necessarily justifiable, are eminently understandable. In this regard, the critique of the liberal critique could be seen as coming full circle and supporting the work, and the compromises, of the formalists. Alternately, the critique of the liberal critique could be seen as nihilistic – nothing works, so let’s do nothing. But neither caricature gets to the heart of the critique of the liberal critique. The focus of this critique is on methodology and ordinality, that is, questioning why the criminal law should be such a primadonna in the pursuit of post-conflict justice. This critique does not suggest inaction but, rather, exceeding present efforts and, in addition, working differently. This critique begins with an epistemological inquiry: from where do we know what we know about mass atrocity? It ends with an assumptive challenge: why is it, exactly, that we believe that the criminal law has so much to offer and yields such a high return on an at times astronomical investment?

Darryl’s response to these sediments of critique is to offer a “more careful liberal account” that bases itself within cosmopolitan liberalism. Unabashedly, Darryl cares – greatly – about liberal principles. No one would – or should – quarrel with Darryl that legal rules must treat individuals justly.  Darryl professes some agnosticism on the question whether criminal law should run the post-conflict justice roost. He is open to thinking about other modalities of justice, “alongside” or “perhaps in alternative” to criminal law. For Darryl, legality concerns only arise “once we adopt a criminal law response.”  But if the efforts lie with building a better ICL, then one would assume that the architect of this better system would hope for it to be implemented. In this sense, the agnosticism seems awkward; something more tendentious must be motivating things here.  Surely, Darryl’s cosmopolitan liberalism (perhaps secretly?) aspires for ICL to intervene; it (deep down) prefers the criminal law to other modalities; it (discreetly) roots for a criminal law response to be adopted. Darryl’s cosmopolitan liberalism is more than a theory, it is a preference for what ICL should look like, which inescapably as a normative matter presupposes the application of ICL in the wake of atrocity.

Yet the critique of the liberal critique posits that the register of atrocity meshes poorly with the cadence of the criminal law, regardless of how it is sanded, lacquered, and finished. This critique posits that the acoustics of the criminal law cannot singularly capture the terrors of collective eliminationism. Hence, more radical action is required: a reimagination of what justice means and how to get there. This may mean leveling the playing field among modalities in which the criminal law is not primus inter pares; less (or no) criminal law and more in the way of alternate forms of justice; less endogenous self-referentialism among the ICL crowd and more exogenous outreach beyond the crowd.  We should not let perfecting ICL become the enemy of the good, that is, building a better system of global justice.

Darryl is concerned when ICL dilutes individual moral agency so as to procure convictions. ICL’s massaging of individual moral agency, however, does not run exclusively in this direction. ICL also has exonerating tendencies. ICL often overlooks.  Certain individuals tend to be defined by their group, and these groups may be categorically posited as lacking appreciable moral agency, culpability, or capacity. Specifically, ICL underplays the agency of women, child soldiers, and the elderly when implicated in the perpetration of atrocity. Although discourse within the field is maturing (and pluralizing) in this regard, it remains that, instead of engaging with the complexities of the agency of the oppressed – who can in turn oppress others – ICL tends to inflate their innocence, thereby leaving their victims all the more starved for a remedy. Similarly, the focus on legality obscures the involvement of bystanders, investors, and traders in the normalization of atrocity. International criminal law, moreover, may unduly prioritize violence perpetrated by combatants in times of armed conflict while under-appreciating the horrid prevalence of private, domestic, and intimate violence in times of armed conflict. The 2012 Human Security Report, for example, suggests this is the case for sexual violence.

A new wave of work in post-conflict justice might approach the nuance of the human experience amid structural violence with a less categorical eye – whether the eye tends punitively to les culpabiliser or forgivingly to les innocenter. Might such an endeavor also be compatible with Darryl’s “more careful liberal account”?