[Darryl Robinson is an Assistant Professor at Queen’s University, Faculty of Law]
This post is part of the MJIL 13(1) symposium. Other posts in this series can be found in the related posts below.
I am very grateful for James Stewart’s comments on “How Command Responsibility Got So Complicated”. Professor Stewart and I are engaged in similar projects (criminal law theory and international criminal law (‘ICL’)) and immersed in similar literature, so our discussions are always very helpful to me, even though we at times reach different conclusions. Professor Stewart raises several interesting points, and I cannot quite do justice to all of them. I offer the following thoughts on the main points.
As a preliminary point, Professor Stewart rightly notes that people at the Tribunal had done a frenzied review of the relevant literature and so were at least aware of these issues. I take that point very much. Academics are often quick to criticise courts and institutions for their alleged failures to consider this or that issue, when perhaps the relevant actors were in fact deeply aware of it but chose not to elaborate on it given the hundred other priorities they had to attend to. I also sympathise with judges, who are either criticised for failure to elaborate on theoretical underpinnings, or alternatively are criticised for their wordy, theoretical decisions. For precisely these reasons, I ‘emphatically acknowledged’ that the Tribunals were operating in a pioneering phase, dealing with countless questions and constructing doctrinal rules from diverse authorities, and hence could not give detailed consideration to every fine point.