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From the government brief arguing that the media and witnesses in the 9/11 trial should not be permitted to hear the defendants describe being tortured by the US government: "Each of the accused is in the unique position of having had access to classified intelligence sources and methods," the prosecution says in court papers. "The government, like the defense, must protect...

A Human Rights Watch report outlines Syria’s recent use of cluster munitions in civilian areas, a potential war crime. Turkey has banned Syrian aircraft from its airspace as a show of its increasingly firm stance against President Al-Assad’s regime. The EU plans new major sanctions against the banking sector, industry and shipping in Iran. Iran said that the launch of a drone intro...

Upcoming Events On December 7, 2012, the T.M.C. Asser Instituut, in cooperation with the International Humanitarian and Criminal Law Platform, will organize a conference entitled Prosecutor, Watchdog, Diplomat, Manager: The Multiple Roles of the International Prosecutor. Registration can be done here. Calls for Papers The Human Rights Centre in Practice and the Institute of Advanced Study at the University of Warwick have issued a call for papers for a workshop on Strategies...

This week on Opinio Juris, Eric Posner's Slate article about the legality of US drone strikes in Pakistan attracted the attention of Julian Ku and Kevin Jon Heller. Julian wondered whether Koh's "conversion" on the issue will serve as a shield against international arguments about the illegality of the strikes. Kevin in turn expressed hope that Posner's rejection of the "unwilling or...

The European Union has won the 2012 Nobel Peace Prize for uniting the continent in the face of the ongoing economic crisis. The 10th anniversary of the Bali bombings is being remembered in Bali, Indonesia, and in Australia. The NY Times reports how Indonesian counter-terrorism forces still battle local militant groups. Human rights activists in Iran are reportedly beaten, raped and sleep deprived, according to a...

At his new blog, Derek Gregory posts the following photo, which shows American soldiers applying the "water cure" during the war in the Phillippines, which lasted from 1899-1902: Of course, not everything old is new again.  Five Army officers were convicted by courts-martial for using the "water cure" during the Phillippine War, with one reviewing authority unequivocally describing the interrogation method...

Royal Dutch Shell Plc., faces a lawsuit today in a district court in The Hague that seeks to make Shell and other corporations responsible for pollution resulting from three oil spills in 2004, 2005 and 2007 in the Niger Delta. Russia has said it will not renew the expiring 1991 arms agreement with the US requiring the dismantaling of nuclear and chemical weapons, as it...

I'm sorry I didn't discover it until he linked to me, but Derek Gregory -- the Peter Wall Distinguished Professor and Professor of Geography at the University of British Columbia -- has recently started a blog entitled Geographical Imaginations: War, Space, and Security. Gregory is one of the great political geographers of his or any generation; I can't recommend the...

[Jean Galbraith is Assistant Professor at Rutgers-Camden 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.
I want to thank Opinio Juris and the Leiden Journal of International Law for putting together this symposium.  I am especially grateful to Professor Dov Jacobs for organizing this session and to Professors Mark Drumbl and Meg deGuzman for their thoughtful comments about my article. Some years back, I noticed how frequently international criminal defendants argued that they deserved credit for help they had given members of the other side during the conflict.  Almost every ICTR defendant claimed that he had helped protect one or more Tutsis, and ICTY defendants asserted all manner of humanitarian acts.  Most of these claims seemed dubious in their veracity or trivial relative to the defendants’ crimes, but a few left me wondering whether those defendants really belonged among the worst of the worst.  These observations led to this article, which has both a structural and a substantive component. Structurally, I look at how the ICTY and ICTR have dealt with evidence of frequent use of defendants’ “good deeds” in sentencing.  The tribunals have dealt with this evidence in ad hoc fashion, with trial chambers taking a variety of cursory approaches and with little guidance from the Appeals Chamber.  This in and of itself is suggestive of how international criminal tribunals allocate their efforts.  Where inconsistencies in substantive international criminal law tend to get thoroughly examined and resolved, other kinds of issues – especially in sentencing – often slip through the cracks.  This may be especially true of issues that are, as Professor Drumbl puts it, sui generis to international criminal law:  it is harder for courts to recognize these as systematic issues in the first place. Substantively, I consider how defendants’ good deeds should affect the sentences they receive.  This is a hard question.  There’s no consensus among domestic jurisdictions about how much or how little to weigh good acts at sentencing.  When confronted with conflicting domestic approaches, the ICTY and ICTR have often focused on picking among them.  I argue, however, that the tribunals can avoid doing so here and instead derive their approach from the unique features of international criminal law.  Specifically, I argue that, as a doctrinal or functional matter, international crimes typically arise out of conflicts between groups -- and are considered to be international crimes worthy of the attention of the international community in part because of this quality.  Because of this, I suggest that good deeds by defendants aimed at those on the other side of the conflict should mitigate in part (though only in part) the appropriate level of retribution at sentencing, with the degree of mitigation to depend on the relative magnitude of the defendant’s crimes and good deeds.  I also argue that, depending on motive, a defendant’s good deeds might also serve as evidence of rehabilitable character. Professors Drumbl and deGuzman direct most of their comments to my substantive argument.  Professor deGuzman questions my overall emphasis on retributivist reasoning and also notes concerns about some particular points.  Professor Drumbl is sympathetic to my overall argument but urges me to revisit or expand my argument on five specific issues.  I can’t do full justice to their points, which reflect careful scholarly engagement with my article, but here are some brief responses.

[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.

[Meg deGuzman is Associate Professor of Law, Temple University] 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. Thanks to the Leiden Journal of International Law and to Opinio Juris for inviting me to contribute to this discussion of Jean Galbraith’s excellent article.  Jean...

Abu Hamza al-Masri has pleaded not guilty in a US federal court, after recently being extradited by Britain. A US drone attack has killed five in Northwest Pakistan, close to the border with Afghanistan. Xinhua reports that Japan has shown signs of a willingness to compromise and is planning to acknowledge China's claims on the Senkaku/Diaoyu islands without however giving up on its own position. Nevertheless, the...