Justice in Extreme Cases Symposium: An Invitation to Think about the Way We Think in International Criminal Justice

[Liana Georgieva Minkova recently defended her PhD at the Department of Politics and International Studies, University of Cambridge, UK, and holds a full award from the Arts and Humanities Research Council (AHRC) Doctoral Training Partnership.]

Starting with the proposition that law is ‘an enterprise of reasoning’ (p. 54), Darryl Robinson’s Justice in Extreme Cases makes an important contribution to the literature examining the complicated question of delineating individual criminal responsibility for mass atrocities, including the writings of Elies Van Sliedregt, Mark Osiel, and Mark Drumbl. In this post I will focus on the insights which Robinson’s ‘coherentist’ approach provides for understanding the assessment of individual criminal responsibility at the International Criminal Court (ICC) and I will examine the implications of the book’s observations for the way we think about the application of those principles in practice.

A new perspective on ICL principles

Justice in Extreme Cases rejects the foundationalist approach to defining international criminal law (ICL) principles, which seeks to deduce the requirements of those principles from a pre-existingmoral theory. As the author notes, the plurality of plausible theories, alongside the ‘malleability and imprecision’ of their ideas, explains why the attempts to determine a single ‘correct’ moral theory from which the ICL principles can be deduced have been unsuccessful, and are likely to remain so (p. 95). But according to Robinson, the lack of an uncontroversial theoretical framework does not preclude us from engaging in a ‘thoughtful, rigorous discussion’ of the scope and meaning of the fundamental ICL principles of legality (the requirement of pre-existing criminalization of the act) and personal culpability (the stipulation that guilt is personal and cannot be attributed by mere association with the wrongdoing) (p. 85).

For that purpose, Robinson proposes a non-foundationalist, ‘coherentist’ approach, which allows us to make arguments about the requirements posed by the fundamental ICL principles, not by deducing the latter from an overarching moral theory, but by examining the available ‘clues’ which the legal field offers in relation to meaning of those principles. More specifically, those ‘clues’ include patterns of practice and normative arguments made within the ICL field (p. 85). Thus, the meaning of the fundamental ICL principles is continuously (re)produced through the conversations taking place within the ICL field concerning those principles. While this may not give us a universal and infallible definition of the fundamental ICL principles, it can nevertheless provide a workable one, that would allow us to carry on with the project of international criminal justice.

Notably, Robinson’s coherentist approach recognises that the lack of a particular moral theory to back the fundamental ICL principles means that those principles ultimately constitute ‘human constructs’, which as all other human constructs are ‘revisable and fallible’ (p. 14). Nevertheless, Justice in Extreme Cases makes a convincing case that we are not faced with an ‘either-or’ choice, where either ICL principles have to be grounded within a higher moral theory akin to natural law, or we end up in a situation where ‘everything goes’ under the guise of those principles. Instead, Robinson’s argument suggests that we are never left without any ‘clues’ as to what a just application of the principles of legality and personal culpability means. Rather, when a new experience, one that is inconsistent with our pre-existing understandings of those principles, rises, we simply have to ‘modify’ our beliefs to reconcile them with the newly available clues provided by the ICL field (pp. 102-103).

ICL principles in practice at the ICC

By treating the fundamental ICL principles as dynamic ‘human constructs’ rather than objective facts deduced from a superior moral theory, Robinson is able to provide new insights into trial outcomes at the ICC. The trial records of international criminal tribunals significantly differ. To use Robinson’s metaphor, while the United Nations tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) have been perceived as ‘conviction machines’, the permanent ICC so far resembles more of an ‘acquittal machine’ (p. 6). The ‘coherentist’ theoretical framework of Justice in Extreme Cases helps explain the dramatic turn which the ICC has taken. Specifically, some of the factors (without claiming that those are the only ones) that influence the high acquittal rate at the Court appear to be the judges’ tendency to construe the fundamental ICL principle of personal culpability in a very narrow fashion and their unusually high expectations regarding the quality of the incriminating evidence (p. 53).

Indeed, there are indications of this trend in ICC jurisprudence, which support Robinson’s proposition. One example is the narrow construction of the mental element of criminal liability, or mens rea, in ICC judgments. Article 30(2)(b) of the Rome Statute defines as an intentional conduct one in which the perpetrator has been ‘aware’ that the crime ‘will occur in the ordinary course of events’. In practice, many ICC pre-trial, trial and appeals chambers have interpreted these words in a very restrictive sense – to require evidence that the accused had been ‘virtually certain’ that the crime would occur (see Bemba Confirmation of Charges Decision, para. 362; Katanga Trial Judgment para. 776; Bemba et al. Trial Judgment, para. 29; Ntaganda Trial Judgment, para. 776; Lubanga Appeals Judgment para. 447). Providing evidence of the accused’s state of mind was already a challenging task, which then became even more burdensome on the prosecutor with the ICC’s narrow construction of Article 30(2)(b).

Another indication is the way in which many (but not all) ICC judges treat the doctrine of command responsibility. Once considered the ‘silver bullet’ of the prosecution at the United Nation tribunals, command responsibility provides a tool for linking high-level accused to the crimes committed on the ground. Yet, up to this date the ICC prosecutor has failed to uphold a conviction pursuant to that doctrine. Robinson examines the Bemba Appeals Judgment where the Majority acquitted the accused, as an example of possible overestimation of the principle of personal culpability which resulted in ‘excessively rigid’ construction of the elements of command responsibility (p. 272). Another example of an unsuccessful attempt by the prosecutor to rely on command responsibility was the Gbagbo trial decision. Similar to the Bemba case, in Gbagbo the Majority interpreted very strictly the requirement to establish that the accused had had the material culpability to do something about the crimes of his subordinates. The Majority considered that the prosecutor had failed to meet that requirement (see here and here). While one of the trial judges, Judge Herrera-Carbuccia, considered that a conviction could have been entered on the basis of command responsibility, her colleagues were particularly critical of what they saw as the prosecutor’s attempt to use command responsibility as a ‘fall-back to secure a conviction at any cost’ (Reasons of Judge Henderson, para. 2032).

The ICC judges have essentially tried to change the image of command responsibility – a doctrine that has triggered concerns among many members of the ICL field for infringing upon the principle of personal culpability. By construing in a narrow fashion the elements of that doctrine, the Bemba and Gbagbo and Blé Goudé Majority decisions attempted to demonstrate that command responsibility was not a form of strict liability, where the accused would be convicted by virtue of their position without any inquiry into their personal fault, but a mode of liability that respected the culpability principle.

Robinson himself emphasises the importance of respecting the fundamental principles of ICL and welcomes the attempts to construe command responsibility in accordance with the deontic logic specific to criminal law. He is critical, however, of the ICC’s unnecessary ‘overstating’ of some of the constraints imposed by command responsibility, which could lead to equally undesirable results (see Part III of Justice in Extreme Cases). The author argues that despite the systemic and horrendous nature of mass atrocities, we still have to treat the individual accused justly, because those individuals are the ultimate subject of punishment for mass atrocities (p. 74). But the important insight that Robinson makes is that ICL can also go in the other extreme, namely, to enter ‘unnecessarily conservative’ interpretation of those principles which could undermine the broader social benefits of the ICL system without good reason (pp. 53-54).

Questions for future discussions

There are two important implications of Robinson’s argument. Firstly, it problematises the idea, often implicit in the liberal legalist scholarship, that the controversial practices of the United Nations tribunals resulted from the scarcity of pre-existing legal framework and that ICL will ‘mature’ over time into a more sophisticated and just legal system. The ‘maturation thesis’ has been furthered by the attempts of many supporters of international criminal justice to defend the discipline against criticism of its politicisation. Ever since the Nuremberg and Tokyo trials against former Axis officials took place after the end of the Second World War, international criminal justice has been associated with ‘victor’s justice’. Proponents of ICL have for long struggled to demonstrate that the discipline is more than power politics disguised under the depoliticised image of the liberal trial. It is often argued that ICL has come a long way since its early days and that the ‘progressive internalization’ of the norms of international criminal justice in the international arena is an incremental, rather than a rapid process. Consequently, one is left with the perception that over time ICL will improve, as international tribunals become more experienced in dealing with mass atrocities and as states gradually begin to cooperate with the investigations of those crimes.

While there is certainly merit to the argument that ICL can improve over time, Robinson’s observation that the ICL principles ultimately constitute human constructs, rather than objective rules deduced from a foundational moral theory, leads us to think that such improvement is not preordained. The progressive narrative of ICL’s development is based on an idealized vision of ICL principles that fails to take into consideration the fact that the precise requirements of those principle are not straightforward but are constantly subject to (re)interpretation within the ICL field. The conservative interpretation of the principles of legality and culpability in notable ICC judgments, thus, is revealed not as the natural progression towards a more sophisticated ICL system, but partly as the result of the development of ICL and partly as a reaction to the criticism that the ICC’s predecessors endured from criminal law scholars and practitioners. As Robinson observes, the fact that the ICC departed from the practices of the United Nations tribunals does not necessarily mean that the Court’s approach is unproblematic because ‘overcorrection’ concerning the fundamental ICL principles can have equally undesirable results for the project of international criminal justice.

Secondly, Robinson’s work bears implications for the way in which we generally perceive the dynamics of the ICL field. It is often assumed that the main obstacle to successful international trials are the governments who seek to protect their sovereignty and shield their nationals from prosecutions. Another reason that has been pointed out for the ICC’s modest record of successful prosecutions is the Assembly of State Parties’ reluctance to grant the prosecutor adequate funding. The prosecutor’s investigation strategies, including the heavily reliance on intermediaries, have also been observed as a factor damaging the quality of evidence and ultimately resulting in acquittals or dismissals of charges.

Justice in Extreme Cases suggests that there is another important factor that needs to be taken into consideration when examining the ICC’s trial outcomes, namely, the ways in which the ICL principles are construed by the judges. In other words, the ‘judicial standards are also part of the equation’ (p. 6). As opposed to extra-legal considerations, such as the availability of state cooperation and sufficient funding, the interpretation of the fundamental ICL principles is subject to the internal debates taking place in legal scholarship and practice. Whilst the complicated relationship between the ICC and states has triggered far more attention over the years, Justice in Extreme Cases illuminates the importance of the ongoing debates about the scope and requirements of the principles of legality and culpability in ICL. As Darryl Robinson notes, it is time that we start ‘to think about the way we think’ in everyday ICL practice (p. 24).