LJIL Symposium: The Idea of Justice in International Criminal Law

[Darryl Robinson is Assistant Professor at Queen’s University Faculty 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.

I am deeply grateful to Jens David Ohlin and Mark Drumbl for participating in this symposium. Their comments are valuable and insightful, just as one has come to expect from their work. I am privileged to have the benefit of their thoughts.

Jens advances an important clarification that domestic legal systems should not be seen as idealized systems and that liberal inquiry must be based on ‘deeper principles’ of criminal law as it ought to be.  I emphatically agree, and this is an important point to highlight.  I argue in my article that the aim of the liberal critique is not the replication of articulations of principles from national systems, but rather upholding the underlying commitment not to treat individuals unjustly.  In Jens’ terms, it’s a search for deeper principles.  Indeed, I would say that our endeavor is not a uni-directional one of applying criminal law theory to ICL.  Rather, it is a bi-directional process in which the special problems of ICL can bring about new realizations about our first principles. The ultimate aim is that ICL doctrines are consistent with some defensible concept of just treatment of individuals.

I agree with Jens that domestic systems can depart just as egregiously from important principles. As I have suggested elsewhere, I think the greatest difference between national systems and ICL in terms of departures is the type of reasoning associated with departures (a more openly anti-liberal law-and-order agenda versus more subtle distortions of internationalist liberal heuristics).

Further supporting Jens’ point, I would gesture to a new trend in ICL jurisprudence.  While there was a tendency in earlier days toward exuberantly expansive doctrines, much of the most recent jurisprudence seems to have internalized the liberal critique.  Indeed, there is even a danger that ICL could overcorrect, adopting unnecessarily narrow and restrictive doctrines to avoid any risk of breaching principles.  Thus, a clarified concept of justice is doubly useful.  It not only delineates what ICL should not do, it also clarifies the zone of permission, where there is no deontological impediment to the pursuit of sound social policy.

Mark Drumbl’s thoughtful and beautifully written comment focuses on some important questions which I touched upon only briefly in my article.  He rightly highlights the limits of criminal law as a device to cope with mass atrocity, and calls for openness to other forms of justice and a re-imagination of what justice means.  He also notes that ICL may not only overstate but in some respects understate moral responsibility, in that the criminal law lens overlooks (inter alia) the bystanders, investors, and traders who enable mass atrocity.  In my article, I sought to acknowledge these points and accordingly expressed openness to other responses to mass atrocity. However, I sought to set such issues aside as outside the scope of this particular project.  The account I put forward is an account of the constraints of ICL and – more narrowly still – it is about only one set of those constraints; constraints rooted in respect for the individual. Accordingly, my idea was that this account is only engaged once a decision has been made to employ ICL.

Mark, however, insightfully asks whether a normative account of ICL might in fact actually entail an implicit (possibly even surreptitious) preference that ICL be applied in the wake of mass atrocity. It is a thought-provoking question. Mark makes an excellent point that the effort of formulating a theory about ICL’s normative constraints implicitly entails that one regards ICL as worth thinking about, and as something that should be applied.  After careful reflection, I would separate Mark’s question into two distinct parts: (a) whether a cosmopolitan liberal account entails a preference for ICL, and, (b) whether I, given all my other commitments and beliefs, have a preference for ICL.

On the first question, my answer would be ‘possibly but not necessarily’. It depends on the underpinnings of one’s commitment to deontic principles.  If, for example, one is a devoted Kantian, sharing Kant’s view of the need for retributive justice (I do not), then one would definitely have a preference for criminal punishment.  If however one more modestly and simply shares a compunction against treating persons unjustly, then one could embrace the account without a view on when ICL should be engaged.  Perhaps my most salient proof is this. A person could be deeply opposed to ICL for a variety of reasons, and yet still also think that when ICL does get applied, it should apply justly.  Hence the ICL sceptic could support the account. I think this shows that the account does not per se entail a preference for the predominance of ICL.

On the other hand, on the second question, Mark is quite right that I do have a (defeasible) preference that ICL should in general be part of the response to mass atrocity.  The view flows from beliefs about the rule of law and the possibility of positive general prevention, and a sense that if one murder warrants punishment, then a thousand murders does so too (absent overriding considerations). That being said, however, I am less dogmatic about the application of ICL than many in my field.  This reserve is due in significant part to Mark’s cogent and convincing scholarship.  I agree that other mechanisms are better than criminal law at dealing with root causes, structural issues, collective liability, and contributions falling short of criminal culpability. I also agree with Mark that we should be open to forms of justice other than the specific ritual of the criminal trial.  Further, while the present article was about deontological constraints of ICL, I would also embrace utilitarian constraints (where circumstances outweigh even the long-term benefits of consistency, resisting impunity, etc.) Mark makes the case for a broader re-examination of responses to mass atrocity with his customary brilliance, and I can only agree with him.

And, of course, whatever the appropriate scope of applicability of ICL, it seems we all agree that it should be applied justly.  In my article I have tried to sketch out a more careful framework for making that assessment.  I am grateful to Jens and Mark for highlighting very valuable questions and clarifications.