Author Archive for
Mark Drumbl

LJIL Symposium: International Criminal Law and Moral Agency

by Mark Drumbl

[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 Vol 25-3: Good Deeds of International Defendants: Grace, Goodness, Greed: Saving While Killing

by Mark Drumbl

[Mark A. Drumbl is Class of 1975 Alumni Professor of Law & Director of the Transnational Law Institute, Washington and Lee University School of Law]

This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.

International criminal law reclines upon simple binaries: good/evil – for instance – as well as authority/helplessness and perpetrator/victim. Victims, however, can victimize. And, correlatively, perpetrators can both kill and save at the same time. Perpetrators may do so selflessly at great risk to themselves or selfishly at great benefit to themselves. Or they may do so impulsively – perhaps with no discernible motive at all. In Roman Polanski’s The Pianist, Itzhak Heller, a Jewish ghetto police guard, suddenly pulls the protagonist Władysław Szpilman out of a line of detainees forced to board a train to Treblinka. Heller, derided for having badly beat up Jews, risks death to save Szpilman – but only Szpilman, who himself is far from heroic – from death.  The scene ends. The audience is left hanging in the characters’ “grey zone”. Why did Heller do that? And why Szpilman?

The erraticism of human nature unsettles the reductive parsimony of the courtroom. It is tough enough to convict human rights abusers for their inhumanity. Now, the law has to recognize their glimmers of humanity, as well, and make sense of these dissident facts. Assuredly, tout comprendre, c’est tout pardonner; but perhaps, also, tout considérer, ça pardonne également.

Professor Galbraith’s important article explores how international criminal law (ICL) grapples with the abuser who also saves the lives of others.  She does so through an examination of the place of “good deeds” in the sentencing practice of the ad hoc tribunals. Galbraith understands “good deeds” to signify acts of humanitarian behavior undertaken by the convict, presumably in the time-frame covered by the indictment, towards individuals on the “other side,” notably, individuals who are not the specific victims of the convict’s crimes.

Galbraith’s research demonstrates that the ICTY and ICTR consider good deeds (a.k.a “selective assistance”) in mitigation of sentence, albeit in a manner that is inconsistent within the tribunals themselves and also inconsistent as between the two tribunals. Galbraith is concerned with this incoherence. In response, she builds a normative argument in favor of considering good deeds in mitigation. She roots her argument in a retributive understanding that – regardless of motive –good deeds undertaken toward members of the other side ought to count. Hers is therefore an objective, effects-based analysis. For Galbraith, obligation does not matter either: in other words, respecting customary international law requirements also constitutes a good deed. Regardless of pre-existing duty, or subjective motive, “a defendant who has done good deeds towards those on the other side of the conflict merits less retribution, from a collective perspective, than a comparable defendant without such good deeds.”  The less selective the assistance, to be sure, the more it should count.

Galbraith’s article is a valuable contribution to sentencing, which chronically presents as one of ICL’s most under-theorized aspects. It does not surprise me that judicial treatment of good deeds as mitigating circumstances remains unpredictable and desultory.  Galbraith’s development of a workable test is to be applauded. In my book Atrocity, Punishment, and International Law, I chided ICL for its excessive dependence on the principles of ordinary municipal criminal law – which I had described as “borrowed stilts.” Galbraith’s push to ground a theory of good deeds in the specifics of collective atrocity crimes is a refreshing bid to develop a sui generis penology for ICL.

Five aspects of Galbraith’s project, nevertheless, uncork broader questions.


Guest Post: The Charles Taylor Sentence and Traditional International Law

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).]

Assuredly, discussion of the Charles Taylor sentence might revolve around its length – 50 years, for a 64 year-old man – and the proportionality between such a heavy sentence and the fact that most (but certainly not all) of his criminal culpability arises from aiding and abetting.

But other aspects of the sentencing judgment also deserve commentary. Two, in particular, show how the sentencing judgment sits within, and complements, the comfortable folds of traditional international law. I am thinking, first, of the emphasis on the extraterritoriality of Taylor’s acts as an aggravating factor and, second, the fetishization, again as an aggravating factor, of his status as Head of State.

In the past two decades, international law has taken a number of bold steps: to insist that intra-state atrocities and armed conflicts become judicialized rather than ignored; that a broad swath of perpetrators, including leaders of non-state actors, face accountability; and that Head of State status really isn’t that special and, therefore, privileges such as immunities should be thinned.  There is thus something countercultural in emphasizing Taylor’s status as a Head of State who meddled in armed conflict within his sovereign neighbor to accent the greater repugnance of his crimes.

Let’s take a closer look:

1. Extraterritoriality as an aggravating factor

Kony 2012: Clicktivism and Child Soldiering

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).]

How does Kony2012 inform our understanding of child soldiers? How does it sculpt international efforts to prevent child soldiering?

Kony2012 feeds into and reinforces pre-existing assumptions and narratives. I argue in my book Reimagining Child Soldiers that these assumptions and narratives, however well-intentioned, lead to policy initiatives that assuage collective sensibilities but ultimately fall short in terms of actual effectiveness.

People had thought hard about the effects of media on messages, and the massaging of messages, well before the Millennials were born. In 1964, Marshall McLuhan opined that the medium was (is) the message. Jay Milbrandt is right that, to get attention, international law would do well to embrace social media. As Charli Carpenter points out, Luis Moreno-Ocampo feels similarly. But the content of the message itself still really matters. If international law grounds itself upon stylized content intentionally airbrushed just to increase attention-worthiness then, ironically, it may leave us in a worse-off position. More international law, and more attention to international law, does not invariably lead to progress, problem-solving, or improvement.

The Kony 2012 campaign encourages LRA leader Joseph Kony’s capture and transfer to the ICC to face a slew of charges, including…

Lubanga Decision Roundtable: Lubanga Legacies?

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).]

A long time in coming, to be sure, and slightly anticlimactic, the Lubanga judgment nonetheless represents a watershed – a first, in any event, for the ICC.  What might the legacies of the Lubanga judgment be? I thank the organizers for inviting me to speculate on this question.  Three lenses come to mind: jurisprudence, pedagogy, and bureaucracy.

Jurisprudential.  Lubanga further clarifies the scope of the war crime of conscripting or enlisting children under the age of fifteen into armed forces or groups or using them to participate actively in hostilities. Specifically, although conscription and enlistment are separately mentioned as offenses, the consent of the child can never be a defense. Proof of compulsion is not required. As a matter of liability, therefore, it doesn’t matter whether the child was forcibly abducted or was enlisted after volunteering. The Trial Chamber did intimate that an abductor might be sentenced more harshly than the commander who enrolls child volunteers (para. 617, also referencing reparations). Lubanga also examines the question as to what, exactly, using a child to participate actively in hostilities actually means.  The majority approach focused on whether the “support provided by the child to the combatants exposed him or her to real danger by becoming a potential target” (para. 820).  This approach obscures the reality that some child soldiers may face the prospect of greater harm from members of their own forces (whether adult leaders, mid-level officials, and fellow children) than from “enemy” forces.  Sexual slavery and abusive punishment come to mind.  Judge Odio Benito took up this point in her separate and dissenting opinion.

Pedagogic. Overall, the Lubanga judgment invokes, and further embeds, the prevailing image of child soldiers as victims who lack capacity to determine their best interests in the context of armed conflict (paras. 610-618). I have argued elsewhere that this image, although indicative of the lives of many child soldiers, cannot so readily be generalized. What is more, this imagery may also become disabling, may discourage the input of former child soldiers in processes of post-conflict reconstruction, and may weaken the development of a robust culture of juvenile rights. The use of imagery is a powerful tool to mobilize resources and actualize denunciation. Alternately, the use of other images, for example that of child soldiers as feral youth programmed to kill, also serves instrumental political ends. The United States, for example, has stylized Omar Khadr and children associated with Al Qaeda as “very very dangerous” so as to justify their becoming subjects of harsh military commission proceedings and lengthy imprisonment. All extreme images are at best partial prints that occlude more than they clarify.  Child soldiers are heterogeneous in their experiences, expectations, and paths to (and from) militarization. The fact that release of the Lubanga judgment coincided with the viral success of the Kony 2012 video further reinforces a number of sensationalized myths in public consciousness. One myth is the Africanization of child soldiering.

A Response to Sasha Greenawalt by Mark A. Drumbl

by Mark Drumbl

[Mark A. Drumbl is a Professor at Washington and Lee University School of Law]

In Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court, Professor Alexander Greenawalt strikes a cautionary note. He underscores that the ICC cannot on its own effectively serve transitional justice interests. It needs help. In the end, Sasha concludes that “the Ugandan peace process reveals the [ICC] to be a promising but unstable institution, one whose legitimacy may ironically depend on help from external stakeholders, including the very political actor – the UN Security Council – whose importance the Rome Statute was designed, in part, to diminish.”

I am broadly sympathetic to Sasha’s concerns; and in agreement with his analysis and of the important discursive space he creates within the field. However, at times I had difficulty discerning the thread of his argument. Other than generically suggesting that Security Council “guidance … may be desirable in a great number of cases,” I also hope that Sasha might provide more in the way of practical guidance regarding how the ICC should instantiate its complementarity principle, which animates several key portals of the Rome Statute, in particular admissibility (Article 17) and interests of justice (Article 53).

I think it important not to essentialize the Security Council as being all about politics. The Council can act in a quasi-judicial capacity, whether it comes to declaring an act as violative of Article 39 of the Charter, or deliberating on the kinds of forcible and non-forcible violations that might be apposite. Moreover, it is important not to overstate the ICC’s supposed independence from the Security Council. After all, the option of referral from the Security Council remains; as do Article 16 deferrals. Looking ahead, were a crime of aggression eventually to be defined in the Rome Statute, Security Council authorization foreseeably could be a prerequisite to the exercise of jurisdiction over this crime.

Nor is the ICC all about law. Whatever the intentions of the drafters of the Rome Statute, states like Uganda and the DRC have neatly managed the ICC, just like Rwanda has neatly managed the ICTR, to focus on the atrocities committed by rebel groups only (or in the case of Rwanda, of the Hutu génocidaires only). President Museveni does well at playing with the ICC, co-opting it, massaging it, shunning it, and integrating it into national life as a tool of domestic politics. And the ICC is willing to dance with him, even haltingly staccato. After all, without his political cooperation, there would be no prosecutions or, in the event any defendants are brought into custody in the Ugandan situation, limited ability to generate the requisite evidence to convict. Regardless of the etymology of the institutions (namely, whether created by international treaty or Security Council resolution), the role of their chief prosecutors is much more about politics than it is about law. Although Sasha is right that the ICC may involve legal actors implementing legal rules, I would add that in this process the ICC often acts as a political actor implementing policy. Furthermore, the ICC represents the zenith of liberal legalism as a response to terrible communal violence. In this regard, and to crudely paraphrase Cardozo, the ICC is a creative project, not a voyage of discovery.

Sasha is skeptical of the value of ex ante guidelines to clarify how complementarity might inform the admissibility of cases. He argues that guidelines are not useful. He needs to make a stronger case here. I have argued elsewhere, in a point that Sasha discusses, that a light touch to complementarity (as articulated through a qualified deference standard), would better serve overall justice interests. In any event, developing guidelines, even simply to frame a conversation, would promote transparency, dialogue, and some predictability. Each of these elements is relevant to the legitimacy of law or policy, though certainly excessive rigidity or adherence to faulty guidelines is undesirable. These guidelines could equally apply whether the Security Council or the ICC is the entity tasked with making the admissibility determination. A broader analytic heuristic that accords greater deference to the local might expand our vocabulary in assessing the merit of post-conflict accountability. Currently, our focus is narrow and hews closely to the singularity of trial justice. Instead, we should push for a much broader lexicon of transitional justice.

Sasha delicately hints at this near the end of his Article, but I think there is more to the expansion of international criminal law than simply the inexorable épanoiussement of substantive law. International criminal lawyers have a vested bureaucratic interest in the growth of the field. Expansion marketizes our skills and expertise, which are now rendered a necessary element of every post-conflict transition everywhere. We lawyers have become indispensible. Not an indispensible nation in a Clintonian sense, but certainly an indispensible epistemic community. Unless this indispensability is challenged, it remains doubtful to me that the ICC ever will pursue a light touch to complementarity and, in turn, alternative justice.

Defining Incitement to Genocide: A Response to Susan Benesch

by Mark Drumbl

[Mark Drumbl is the Class of 1975 Alumni Professor of Law, Washington and Lee University School of Law.]

Susan Benesch’s VJIL article is timely, thoughtful, and important. She insightfully sets out the catalytic relationship between hate propaganda and genocide. Her comparison of the methodological similarities between the Rwandan and Nazi German contexts is instructive. The mainstreaming of hate-mongering is a condition precedent for genocide to become truly massive. Consequently, if the criminal law could shut down hate-mongering before actual genocide – for example, by incapacitating the conflict entrepreneur before violence is normalized – then it might fulfill a preventative function. Susan’s proposed reforms to the definition of incitement (the “reasonably possible consequences” test) take us some of the way there. In all likelihood, however, prevention through criminal punishment would require an even lower threshold for incitement than Susan’s proposed test. If a speaker can only commit incitement to genocide if the audience “must already be primed, or conditioned” (p. 494) to respond, then might it already be too late? Deterrence no longer may be possible – assuming the criminal law ever can serve a deterrent function in this situation. As a matter of pragmatics, I wonder whether any criminal tribunal or court would prosecute incitement to genocide in the absence of a genocide actually having occurred. Consequently, truly effective preventative efforts may best be had in areas such as humanitarian communications intervention, radio jamming, broadcasting of diverse views, as well as forcible measures. That said, the criminal law also aspires to serve retributive, expressive, and didactic goals ex post, and Susan’s reformulation of the law helps provide clarity, consistency, and proportionality in each of these regards.

I couldn’t agree more with Susan’s conclusion. She identifies among the reasons that current law on incitement has “go[ne] astray” that courts “try[] to understand international crimes simply as large-scale versions of domestic offenses” (p. 528). In my opinion, this is the case not only when it comes to substantive crimes such as incitement, or the role of freedom of expression as a “defense,” but also in a variety of other substantive, procedural, and correctional assumptions that underpin international criminal law generally. Collectivized eliminatonist genocide, as Susan rightly points out, is not the same thing as an isolated deviant hate crime. Extending “freedom of expression” from the rarified confines of a marketplace of ideas in a settled democratic polity to condone incitement in a context of state monopolies over eliminationist rhetoric is ill-fitting.

Symposium: Discussion of Gordon’s “Toward an International Criminal Procedure”

by Mark Drumbl

[Mark Drumbl is the Class of 1975 Alumni Professor of Law at Washington & Lee Law School and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at AIDP Blog.]

In Toward an International Criminal Procedure: Due Process Aspirations and Limitations, Professor Gregory Gordon inquires why international criminal procedure “has failed to achieve the level of due process offered by the most rights-protective countries, such as the United States.” He posits that a number of factors explain this perceived due process shortfall. Factors include the need to harmonize civil law and common law methodologies, the sheer gravity of the crimes being prosecuted, and fragmentation of enforcement. Prof. Gordon concludes that, despite the importance of due process, there are many obstacles to its full actualization in international criminal procedure.

Might Prof. Gordon overestimate the amplitude of due process in domestic criminal proceedings in the United States? Frankly, I’m not convinced of the proposition that “[i]n the United States [*] first-degree murderers get a fair shake at every stage of criminal proceedings * in capital cases the system bends over backwards to extend every due process consideration possible.” It is unclear whether, in ordinary criminal cases, the U.S. actually offers such a deeply “rights-protective” criminal prosecution and sentencing system. The assumption of rights-protection becomes even more frail when one compares the treatment the U.S. accords to defendants who more closely resemble the types of defendants in which international criminal tribunals claim an interest: those pariahs who stand accused of atrocity crimes (in which I would include suspects associated with the 9/11 attacks and subsequent wide-scale terrorist attacks against civilian populations). How much due process does the U.S. presently accord to such suspects, including persons currently detained at Guantanamo? Very little. Were it not for the Hamdan judgment, and its extension of the barebones of Common Article 3 to the non-international conflict against al-Qaeda, hardly any at all. The barebones of CA3, and the due process provisions of the Military Commissions Act (which just survived scrutiny by the D.C. Court of Appeals), look pretty skimpy when compared to the rights-protection provided by international criminal procedure. Furthermore, the U.S. Regime Crimes Liaison Office strongly backed the Iraqi High Tribunal, whose level of due process falls short of that of international institutions and which, just a few months ago, conducted grisly executions.

The content of a truly international criminal procedure should extend beyond the technical integration of “common law” and “civil law.” There is much more out there. Prof. Gordon speaks of the need to integrate rules into a cohesive system that will satisfy all concerned. He is absolutely correct. But what about the people who actually live in the societies whose atrocities have become judicialized? Are they satisfied by harmonization among “civil law” and “common law” criminal procedure methodologies? Do they care that the ICC’s pretrial procedure is largely born of the civil law and trial procedure of the common law? As I contend in my forthcoming book, Atrocity, Punishment, and International Law, a pressing challenge for international criminal procedure is for it to come to terms with modalities of accountability that transcend the criminal trial and correctional preference for sequestered incarceration. These alternate modalities often have greater meaning to people actually living in post-conflict societies. Such modalities include local bottom-up justice approaches * with their attendant benefits and inequities * such as mato oput in Uganda, biti bot in Timor-Leste, and gacaca in Rwanda. Another challenge for international criminal procedure is for it to engage with alternate sanctioning mechanisms such as restitution, community service, reintegrative shaming, and reparations. To the extent that international lawyers can move beyond Western liberal legalism, of which both civil law and common law criminal procedure are variants, they can better actualize a truly cosmopolitan vision of justice.

By taking common law adversarialism as the normative baseline, it seems inevitable that other methods of justice will fall short. Prof. Gordon’s position would be strengthened by a more fulsome justification why common law adversarialism, contoured by due process rights, actually should be the normative baseline in terms of its suitability for redressing atrocity. Prof. Gordon also might consider more robustly why certain entitlements that he rues are missing from international criminal process, such as juries, necessarily protect the due process rights of defendants accused of genocide, war crimes, and crimes against humanity.

In all likelihood, due process serves certain expressive purposes. It protects the dignity of those doing the prosecuting and lends authoritativeness to the judicial record. Expressivism is probably the most plausible justification for international criminal punishment. It is more plausible than deterrence or retribution. But too much due process, particularly in cultural contexts where such process may be perceived as alien, also may generate credibility concerns. Distant courtroom trials may lead to an externalization of justice from the communities whose tragedies are being adjudicated. What is neutral to international lawyers may seem partisan to victim communities.

Prof. Gordon is wise to underscore that “international criminal procedure will have to forge its own identity.” That is a valuable learning lesson from his impressive work. He offers a sophisticated analysis of the interface between common law and civil law methodologies. However, I do hope some space is created in this integrative process for international criminal procedure to engage in a truly comparative, and cross-cultural, interface with socio-legal systems outside of Western traditions.