[Andrew K. Woods is currently a Climenko Fellow at Harvard Law School.]
This post is part of the Virginia Journal of International Law/
Opinio Juris Symposium, Volume 52, Issue 3. Other posts in this series can be found in the related posts below.
Let me begin by expressing my gratitude to the
Virginia Journal of International Law (
VJIL) and
Opinio Juris for hosting this discussion, and to Professors Baron, Haque, and Ohlin for their thoughtful responses to my recent
VJIL Article. Rather than address every point raised by the comments, I thought I would make a few related points.
Can It Still be Called Criminal Law?
I want to resist the idea that finding a just deserts approach to be sub-optimal (on a consequentialist account – as I say, this project says nothing about the deontological merit of a purely retributive approach) calls for abandoning the international criminal model wholesale. That is, one can reject retributivism without rejecting a “rule-governed legal process that defines crimes, determines responsibility, and imposes punishment,” as Haque puts it. Judges, and the prosecutors who launch international criminal inquiries, need not speak in retributive terms, and they need not speak in retributive terms on behalf of all people everywhere. As I show in Part III of the article, there are a number of decisions within the regime -- such as who to indict, how long to sentence them, and with what sorts of sentences -- that could be made so as to enhance the regime’s effect on international crime without undermining its “criminal law” nature. There may be a first order question of whether criminal law inherently requires finger wagging, but even if we concede that it does we still need to figure out who should be the subject of the finger wagging, why, and on whose behalf. These are design choices within (not without) the criminal law model.
I appreciate the point both Professors Ohlin and Haque make about aggregation: in theory, individual judgments need not be overtly consequentialist in order to maximize the overall utility of a particular tribunal. This is a key piece of the “utility of desert” argument, and disproving that argument in the abstract (or as it applies to domestic criminal law) was never the point of the project. Rather, the point was to evaluate what I think is an implicit and largely unacknowledged justification for retributivism in the international criminal system: the idea that just deserts for international crimes are not just right and true but will also serve the policy goals of international justice. In Part II, I gave reasons (six of them!) to think that a retributive system would cause a number of unwanted consequences, and my conclusion is that these consequences on balance will likely outweigh the aggregate benefits of a retributive approach. Scholars like Jonathan Baron and Cass Sunstein have shown how moral outrage can derail deliberative justice in domestic settings, and it seems that there are particular reasons to worry about this problem in the international criminal context. This is partly due to the politics of international justice, which I discuss below.
