LJIL Symposium: Where to Find the Liberal Principles of Criminal Law

by Jens David Ohlin

[Jens David Ohlin is Associate Professor of Law at Cornell University Law School.]

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 agree with almost everything in Darryl Robinson’s plea for a cosmopolitan liberal approach to international criminal justice.  Robinson’s article sketches out the development of ICL scholarship, noting the beginnings of the field, followed by the liberal critique of early ICL development, and then the counter-critique of the liberal critique that emphasized the need for sui generis theories to deal with the unique nature of international atrocities.  The story is convincing and tightly explained.  Although it might be difficult to identify particular scholars with just one of these schools of thought, it is certainly possible to identify particular arguments as fitting into one of these moments in the dialectic of ICL.

I do, however, want to point out an important trend in the development of the criminal law that cuts across the dialectical story emphasized by Robinson.  This won’t suggest that Robinson has it wrong – far from it – though I think it does complicate the picture somewhat.

According to Robinson, the liberal critique of ICL harnesses general principles of criminal law found in domestic systems – say the principles of legality and culpability – and uses them to evaluate the early doctrines of ICL.  The outcome of this analysis is that the ICL doctrines (such as JCE) are often found wanting.

I think it would be a mistake if this left the impression among some observers that these deeper principles of criminal law are so embedded in domestic criminal law that domestic systems get them right, while the international law system runs the risk of ignoring them.  True, I might have said something along these lines in Reclaiming Fundamental Principles of Criminal Law in the Darfur Case, co-authored with George Fletcher back in 2005.  However, one should not overstate the point.  We are talking about deeper principles of criminal law – principles that ought to be deep and abstract enough to apply across all contexts, whether domestic or international.

It’s not as if domestic penal systems are immune from the liberal critique.  Indeed, if one were to compare the domestic U.S. system against the current ICL system, I’m not sure which one would come up on top.  Certainly, it would be important to note that many jurisdictions in the U.S. retain Pinkertonliability (similar to JCE III liability for co-conspirator acts that fall outside the scope of the criminal plan), the felony-murder rule, and various doctrines of transferred intent.  All of these doctrines function to inflate the culpability of defendants who demonstrate culpable mental states that are best described as recklessness, though legal fictions in the doctrine are then applied to inflate their culpability to the level of intent (either knowledge or purpose).  From the standpoint of the principle of culpability, most or all of these legal doctrines are subject to withering criticism.  And despite this criticism, many of these doctrines hang on in the domestic case law.

True, the Model Penal Code (MPC) rejected many of these doctrines, though the MPC represented an idealized picture of the criminal law, produced by scholars with the hope of reformulating actual codes in the 50 states.  In many cases the MPC reforms were successful; in many cases not.  There is still a wide gulf between the MPC and the criminal law on the ground in many jurisdictions.

The same point can be made with regard to many other domestic legal systems.  In recent writing (e.g. here) I have expressed increasing anxiety over the use of dolus eventualis as an appropriate mental state at the international tribunals.  This mental state, often described as similar to recklessness, is used in the application of IHL rules on targeting, and also in the details of the Control Theory of Perpetration – a result that ironically brings the Control Theory right back to the expansive nature of JCE III and liability for a co-venturer’s acts that were never agreed to.  Now here’s my point: this expansive use of dolus eventualis stems from its similarly expansive use in many civil law criminal legal systems, which in my view could be criticized, from a liberal perspective, for their overreliance on dolus eventualis.

My point here is that domestic criminal law, even in the liberal critique, should not be understood as some idealized, Platonic system that is perfectly attuned to the demands of culpability and legality.  Indeed, in many cases it is not.

How then do liberals criticize ICL?  They don’t do it from the perspective of domestic criminal law per se, but rather from the perspective of criminal law theory – a philosophical inquiry about what the criminal law ought to be.  The point of many of those early articles on ICL that Robinson mentions (including some of my own), wasn’t to praise domestic criminal law and chide the international doctrine as some lesser deviant.  Rather, the point was to urge the importation of criminal law theory into ICL, as it already exists in domestic criminal law scholarship, so that criminal law theory could have an equal seat at the table alongside public international law.  Over the course of the last 10 years, I think great progress has been made in this regard – and some of Robinson’s recent articles (e.g. on command responsibility) are excellent examples of this salutary development.

Of course, Robinson hasn’t suggested otherwise – so this brief reflection is not a criticism of his paper.  Rather, his excellent article has simply inspired me to take a step back and reflect on the nature and scope of the liberal critique, on where it came from and where it is going.  And I want to emphasize that no system of criminal law is, or ought to be, immune from the critical gaze of the liberal critique.


2 Responses

  1. I find this debate extremely fascinating and at the heart of what makes ICL such a rich and challenging subject.

    I agree with the points raised by Prof. Ohlin in his post and would like to add one further observation, namely that one of the roots of the problem noted by Prof. Ohlin appears to be in the (mis-)usage of terminology.

    In many of these papers, including Prof. Robinson’s excellent Identity Crisis paper, an interesting dichotomy is drawn between “domestic criminal law” and “human rights law”, or to put it another way, between “the criminal lawyer” (in favour of restrictive interpretation, concerned with the rights of the accused) and “the human rights activist” (in favour of expansive interpretation, concerned with the rights of the victims).

    I find this ironic in light of the fact that criminal law, traditionally, was anything but liberal – in fact, it was the evolution of human rights law which, one might argue, liberalised domestic criminal law. Most general principles of domestic criminal law referred to in this literature are, therefore, in fact principles of human rights law applied in the domestic criminal law context. 

    With this in mind, perhaps a more useful dichotomy would be between two different types of human rights principles, those that encourage expansive interpretations to restrain State action (teleological victim-focused interpretation), and those that encourage restrictive interpretations to restrain State action (culpability principle, and principle of legality). Our focus then becomes on how human rights principles are applicable in the abnormal context of mass atrocity.

    I concede that this does not move the debate forward as such, it merely re-characterises it; however, I think it is important to avoid the danger of encouraging the dichotomy of: “human rights” = bad / “domestic criminal law” = good.

    I’d be interested to hear your thoughts on this.

  2. Hi Barrie,

    Thanks for contributing to this discussion, it is great to see you here.  Your comments are insightful as always. 
    You are absolutely right that human rights was a liberalizing force in criminal law.  However, I don’t think that Ohlin, Fletcher, Martinez, Danner or I were suggesting ‘domestic criminal law’ = good, ‘human rights law’ = bad, although you are quite astute to note that people might be starting to read it that simplified way.  
    The point I was making (and I think the others as well) was not that there is something bad about human rights heuristics.  Rather, it is problematic when people operating ICL institutions use the same familiar heuristics they would use in operating an international human rights institution, giving insufficient attention to the context shift that we are now acting in the role of ‘state’ vis-a-vis the accused, and it is therefore we who must be restrained by human rights considerations.  So you are right that there is an irony: it is ironic that human rights habits wind up eroding human rights, and that is exactly the irony we were gesturing toward.
    I think the dichotomy you suggest is interesting and potentially useful, as long as we recall that in the second instance it is we who are acting in the role of the ‘State’ in that we are applying coercive power that must be restrained by human rights principles.  Thanks again for the astute points!
    PS. I enjoyed Dov Jacob’s thoughtful introduction, and I am sure he is partly right that the two camps are operating on different levels.  However I’d urge people to read the article to see clearly the aims of the article (which I don’t think we explained in this symposium).  The questions it addresses are whether ICL should comply with principles like culpability and legality, and how to ascertain those principles.  On those questions there are indeed concretely different views, and reconciling the two major views to date is both possible and valuable in getting us out of a current impasse. 

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