April 2013

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.

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?

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

[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.