[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.

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[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?

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[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.

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[Armin von Bogdandy is Director at the Max Planck Institute for Comparative Public Law and International Law and Ingo Venzke is a Senior Research Fellow and Lecturer at the Amsterdam Center for International Law, University of Amsterdam.]

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.

We are truly grateful to Andreas Føllesdal and Ruti Teitel for their perceptive comments on our article, On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority. Their insights will surely inform our continuous work on the multi-functionality, public authority, and democratic legitimacy of international courts and tribunals (ICTs). In this reply, we will focus on three main points to which both commentators draw attention: our understanding of functions; why ICTs require democratic legitimacy; and, finally, whose interests matter for a normative assessment.

Functional Analysis

Both commentators challenge us to clarify what we want to achieve with our functional analysis and, at the same time, suggest nuances to the four functions we do identify. Andreas Føllesdal specifically prompts us to choose – do we want to explain why ICTs exist, or do we see functions as legitimating the practice of ICTs? If either one or the other was our ambition we would indeed fall short of giving a convincing answer. But our functional analysis stands in a sociological tradition and aims at a better understanding of the phenomenon (cf., M. Madsen, ‘Sociological Approaches to International Courts’, in K. Alter, C. Romano, and Y. Shany (eds.), The Oxford Handbook of International Adjudication, 2013). We are not (neo-) functionalists, and neither develop an explanation of institutional developments nor a functional justification. Especially the latter point merits emphasis; a functional analysis does not — it cannot — justify the phenomenon it tries to understand (N. Luhmann, Legitimation durch Verfahren, 1983). But it might still be seen as potentially apologetic to frame a certain social consequence of an institution’s characteristic activity as a function. Because of this looming hazard, we keep the straightforward normative questions in sight. In fact, our functional analysis serves as a precursor for discussing the democratic legitimation of an ICT’s exercise of public authority. It aims at a better understanding of the phenomenon to sharpen normative questions.

Against the backdrop of an orthodox understanding of ICTs, which sees ICTs in the function of dispute settlement alone, we identify three more main functions: (1) the stabilization of normative expectations, (2) law-making, and, (3) the control as well as legitimation of public authority exercised by other actors. Ruti Teitel argues that ICTs pursue a further function — and find a more promising source of legitimacy than we are ready to acknowledge — in the development and protection of specific substantive values at the international level. Furthermore, she submits that ICTs step in and serve the values in domestic settings when national authorities have broken down. While it concerns the postulation of another function, it is true that this dimension of ICTs’ activity, especially of international criminal tribunals, is only weakly reflected in our summary analysis that draws together different ICTs on a high level of abstraction.

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[Ruti Teitel, Ernst C. Stiefel Professor of Comparative Law, New York Law School, Visiting Professor, London School of Economics, and Affiliated Visiting Professor, Hebrew University of Jerusalem.]

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.

Armin Bogdandy and Ingo Venzke argue that we should see the increasing activity of international courts and tribunals as the exercise of public authority, requiring justification according to the principles characteristic of democratic constitutionalism within national states.   They question, rightly, whether the functions and importance of international adjudicative bodies in today’s world can be seen as legitimate on the basis of traditional concepts such as state consent to jurisdiction.  The idea of pubic authority implies that international courts and tribunals ultimately address themselves not just to sovereigns, who bow if they choose, but to citizens and the human interests of citizens.

Based on my own experience in studying courts and tribunals in relation to human rights, transitional justice, and international criminal law, I would like to challenge – or invite -Armin and Ingo to look at the question of legitimating pubic authority in a broader way when they deal with international adjudication, taking into account considerations that go beyond those that relate to judicial authority within mature well-functioning constitutional democracies.

First of all, some tribunals have been created and have had as their mission to further particular substantive values in the context of conflicts where the normal exercise of pubic authority has broken down.  The ICTY, for example, had as one explicit goal ‘the restoration and maintenance of the peace’ in the former Yugoslavia.  In Prosecutor v. Tadic, a seminal case, the Tribunal explicitly sought to understand the authority it exercised in light of the values that it was created to serve and (implicitly) the agreed importance of these to the international community.  I believe that this kind of substantive, values-based legitimacy is important to understanding the exercise of public authority by international adjudicators in the human rights and international criminal law fields.

It leads to a different way of posing the question of democracy, one that brings in however broader considerations than democratic consent,  namely the relative competence or legitimacy of international courts and tribunals, and domestic institutions, to further the values in question.  As I suggested in my 2011 book, Humanity’s Law, the primacy that attaches to human security in the framework of norms currently animating international legal authority may reflect a recognition that human security including elements of legal security (rule of law) is a precondition, or a presupposition, for the fulfillment of a broader range of rights including democratic rights. In this light, it is worth looking at the rise of international adjudication in the post-Cold-War world along with the increasing attention to the problem of weak and failed states.  The decisions of international adjudicators in the international criminal law and human rights law areas often respond directly to political and legal institutional failures or gaps at the level of the state.  The authority of international adjudicators thus may be seen as relative to that of other institutions.  This is explicitly contemplated by the conception of “complementarity” that governs the exercise of jurisdiction by the International Criminal Court, legitimating the intervention of the Court on the basis of the unwillingness or incapacity of domestic institutions. The burgeoning caseloads of the Inter American Court and the European Court of Human Rights are concomitant with problems emerging from weak domestic legal systems and specific threats to the rule of law domestically (e.g., Russia and Turkey in the case of the ECHR). The diminished role of judicial review/ legitimacy is at the same time circumscribed by principles of admissibility and substantive jurisdiction, and relativised by domestic politics and the vision of threshold guarantees of the community delimited by the regional covenants.

A final point should be considered that is not unrelated to the observation that substantive values have a role in legitimating the authority of international adjudicators. How does judicial discourse shift power by empowering non-state actors, who in turn, by addressing themselves in various ways to international courts and tribunals and being addressed by them, become agents of legitimacy? International courts and tribunals are well situated to supply a rights-based discourse at least partly detached or autonomous from national political cultures and constitutionalisms – universalizable, secular, transnational – and with the authority of high human values.   In a world that is interdependent but not integrated there quite simply may be a need for a potentially universalizable discourse that can still function in a context of difference between persons and peoples, one that comprehends wrongdoing and atrocities, and can be diffused through multiple institutions that would otherwise be isolated or fragmented – a discourse that allows recognition of individual rights and attribution of individual responsibility and accountability with or without the state, hence arguably allowing for some change. International adjudicators are better situated that many other international institutions to supply this discourse and the discourse is arguably a source of self-legitimisation for international courts and tribunals.

In sum, given this analysis of the interpretive and discursive role played by international judiciaries, there are good reasons for less concern with the legitimacy question.  Perhaps, as Alexander Bickel understood in his well-known book on the topic, The Least Dangerous Branch, dealing with this question has always been to a greater or lesser degree a relative inquiry.

[Andreas Føllesdal is Professor at Norwegian Centre for Human Rights, University of Oslo]

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.

The expansive growth and influence of international courts, tribunals, and quasi-judicial bodies (ICTs) fuels well deserved interest across disciplines far beyond public international law, including political science and political philosophy. How are we to describe, explain, and assess this partial abdication of sovereignty by the main actors of a (formerly) state-centric world order?  Armin von Bogdandy and Ingo Venzke have again joined forces to illuminate these profound issues of the functions and legitimacy of ICTs, tying together and expanding on previous valuable insights (von Bogdandy and Venzke, 2011).

Von Bogdandy and Venzke diagnose some previous scholarship of ICTs as suffering from a two-fold myopia. Scholars have tended to focus on only one social function of international courts, and on a single source of legitimation: dispute settlement and state consent. Von Bogdandy and Venzke start with the plausible and well-argued observation that ICTs now cause impact in ways far beyond that of instruments for settling disputes among their creators. These further functions stabilize normative expectations by several means: law making; judicial interpretation; and, the control and (hence) legitimation of other authorities (cf, Alter 2013). Von Bogdandy and Venzke furthermore identify intriguing and far-reaching challenges of ICTs to the state-centred world order paradigm. Three further supplemental and partially competing traditions are those that see ICTs as  agents (‘organs’) of a world community, ‘institutions’ of legal regimes, and as actors who exercise public authority. Implications range from the reduced salience of state consent as the main mode of legitimation of international law and courts, entailing ‘restrictive interpretation’ to the appropriate role of amici curiae briefs and the need to differentiate modes of legitimation amongst the ICTs.

The following observations from a fellow traveller point to some topics for further elaboration and development.  (more…)

[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]

This symposium launches our second year of collaboration with Opinio Juris, which we hope to be as fruitful as the first in combining the in-depth discussions that arise in the Leiden Journal of International Law with the dynamic online community of the blogosphere. In order to start the new year with a bang, we bring you, from Volume 26-1 of LJIL, two discussions of fundamental issues of international law: the functions of international tribunals and the philosophy of international criminal law.

The first discussion has as a starting point the article by Armin von Bogdandy and Ingo Venzke entitled On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority. In this piece, the authors suggest to look beyond the traditional dispute settlement function of international courts in order to assess other functions, such as law making and control and legitimation of authority exercised by others. This is, for the authors, the only way to better understand the role and place of international courts in the international legal order as exercising public authority and requiring ‘democratic legitimation’. In their thoughtful reactions, Ruti Teitel, from New York Law School, and Andreas Follesdal, from the University of Oslo, both question the choices made by the authors of the article. They mostly question the choice of ‘functions’ (why these and not others?) and the basis for legitimacy of international tribunals (why ‘democratic’ legitimacy? In whose name?). I share the methodological concerns of the commentators in this respect, and would even go a little further on the question of functions and legitimacy.

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This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

We would like to once again extend our deepest gratitude to Opinio Juris for providing us with such a wonderful forum to host this symposium. Thank you to all of the scholars who contributed insightful commentary, and especially to Jenia Turner for her thought provoking article. We hope this symposium helped to advance the dialogue about the complicated issues surrounding the conduct of international prosecutors.

[Jenia Iontcheva Turner is a Professor at SMU Dedman School of Law.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

Many thanks to Opinio Juris and the NYU Journal of International Law and Politics for hosting the symposium and to Margaret deGuzman, Alex Whiting, Sonja Starr, James Stewart, and Kevin Heller for agreeing to read and comment on my article. I would like to use this opportunity to address briefly several key points raised by the commentators.

1) The balancing approach and the ICC’s competing purposes

In the article, I argue that the ICC pursues multiple and sometimes competing goals—protecting defendants’ rights, promoting respect for the rule of law, holding perpetrators of international crimes responsible, and establishing a record of the atrocities. While the first two goals generally tend to favor stricter remedies for prosecutorial misconduct, the last two goals call for a more tempered approach. Meg deGuzman agrees that the balancing approach is necessary to accommodate the competing goals of the ICC, but she argues that the goal of promoting global norms takes precedence. To attain this goal, the court should err on the side of defendants’ rights when addressing prosecutorial misconduct. This would help spread respect for the highest standards of procedural fairness.

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[Kevin Jon Heller is currently Associate Professor & Reader at Melbourne Law School.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

I appreciate the opportunity to respond to Jenia’s excellent article. I always learn from her scholarship, and this article is no exception. That said, I find myself in an unusual quandary. When asked to critique an article, I normally take issue with its substance. There is very little substance in Jenia’s article, however, with which I disagree. Indeed, if she and I were both ICC judges, I imagine that we would almost always agree on the appropriate remedy or sanction for a violation of a defendant’s rights.

That said, I find the rhetoric of Jenia’s article very problematic. To begin with, I think her distinction between “absolutist” and “balancing” approaches to remedies misleads more than it enlightens. Like my friend Meg DeGuzman, I don’t believe that the ICC has ever engaged in the “absolutist” approach, selecting remedies for misconduct without reference to the consequences for victims, the penological rationales of international criminal law (ICL), etc. When the Court has selected a drastic remedy for a violation of the defendant’s rights, it has done so only when the violation seriously compromised the Court’s ability to accurately determine the defendant’s guilt or innocence. The Trial Chamber initially stayed the proceedings in Lubanga, for example, only when it lost faith in the OTP’s ability to identify (much less disclose) exculpatory evidence. In Jenia’s own words (p. 188), “[w]ithout examining the documents at issue, the Chamber would be unable to ensure that the verdict in the case was fair and accurate.” The Appeals Chamber, in turn, only lifted the stay once it became clear that the OTP would, in fact, disclose any and all exculpatory evidence to the defendant.

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[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

In September 2000, I began work for appellate judges at the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia. Soon after arriving, I quickly came upon a decision the Appeals Chamber had rendered in a case called Barayagwiza.^[1] In that case, the Appeals Chamber initially stayed proceedings against Jean-Bosco Barayagwiza, one of the chief architects of the notorious radio station, Radio télévision libre des millies collines (RTLM), because he had spent close to a year in custody without being charged. The stay was a radical response to the prosecutorial (and judicial) error: it effectively ended the trial of one of the Rwandan Genocide’s most outspoken protagonists. Predictably, Rwanda baulked at the decision, and threatened to cut all ties with the ICTR. With this response and other new information, the Appeals Chamber reviewed its earlier decision, lifting the stay and declaring that the violation of Barayagwiza’s basic rights could be addressed through either a sentence reduction or financial compensation in the event of an acquittal.

At the time, I felt that politics had trumped principle in Barayagwiza, but I hadn’t then had the benefit of Professor Jenia Iontcheva Turner’s excellent new article. Professor Turner’s piece Policing International Prosecutors eloquently argues against the type of absolutist positions that the Appeals Chamber first adopted in Barayagwiza. Rather, it favors a more nuanced array of sanctions that can be calibrated to specific prosecutorial errors. She argues that the absolutist position does violence to the interests of victims, the desires of the international community and potentially the quest for peace and reconciliation. These values should not be sacrificed to generate greater prosecutorial discipline. Instead of adopting such blunt sanctions, Professor Turner ably argues that international courts and tribunals should consider and deploy a wider variety of sanctions, which can be better married to the intricacies of each particular prosecutorial violation. These sanctions include sentencing reductions, dismissal of select counts of an indictment, declaratory relief, and the type of compensation envisaged for Barayagwiza. A wider panoply of institutions should also have some role in this process.

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[Sonja B. Starr is an Assistant Professor of Law at the University of Michigan Law School.]

This post is part of the NYU Journal of International Law and Politics Vol. 45, No. 1 symposium. Other posts in this series can be found in the related posts below.

In Policing International Prosecutors, Jenia Iontcheva Turner offers a rich account of the competing interests at stake in cases involving international prosecutors’ misconduct, and advances a strong case that remedial doctrines should squarely acknowledge those competing interests. Because international law has often struggled to close the gap between rights and remedies, many might understandably be skeptical of proposals to explicitly recognize the validity of such gaps. Still, I agree with Turner that in some instances, a candid remedial interest-balancing approach is the best solution to intractable conflicts of legitimate interests. I have previously proposed remedial interest-balancing and the use of intermediate remedies (e.g., sentence reduction) in international criminal procedure on the grounds that it might improve the protection of defendants’ rights. Overly rigid remedial rules may perversely often result in no remedy at all, because if the only available remedies involve releasing defendants who may be perpetrators of atrocities or ordering a costly and lengthy retrial, tribunals may find ways to avoid recognizing rights violations in the first place. Turner offers a distinct, complementary argument: even assuming interest-balancing is not ultimately better for defendants, defendants’ rights are not the only important interest at stake. Holding the perpetrators of international crimes accountable and establishing a record of atrocities are vital international interests that sometimes should outweigh the defendant’s right to a remedy for misconduct.

Turner argues persuasively for this conclusion, develops the case for a range of alternative remedies, and proposes a nuanced approach designed to ensure that defendants’ rights are not compromised unnecessarily. In this regard, her proposal could be strengthened if it clearly drew one bright-line distinction: interest-balancing can never justifiably extend to permit courts to allow a conviction that is not based on a fair trial (or a valid guilty plea). By “fair trial,” I mean one that, whatever its failings, remains a legitimate test of whether the defendant’s guilt is established beyond reasonable doubt. If prosecutorial misconduct throws the validity of a conviction into doubt (or, ex ante, has rendered it impossible to ensure a fair trial even if lesser remedies are invoked), the tribunal’s obligation is not just remedial in nature—it is an obligation to cease a continuing violation of the defendant’s rights or to prevent a future one, namely the imposition of wrongful punishment.

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