VJIL Symposium: Introducing Moral Judgments & International Crimes

by Andrew K. Woods

[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.

Thank you very much to the Virginia Journal of International Law and Opinio Juris for hosting this online discussion on my recent VJIL Article, “Moral Judgments & International Crimes: The Disutility of Desert.”

The international criminal regime exhibits many retributive features, but scholars and practitioners rarely defend the regime in purely retributive terms – that is, by reference to the inherent value of punishing the guilty. Instead, they defend it on the consequentialist grounds that it produces the best policy outcomes, such as deterrence, conflict resolution, and reconciliation. These scholars and practitioners implicitly adopt a behavioral theory known as the “utility of desert,” a theory about the usefulness of appealing to people’s retributive intuitions. That theory has been critically examined in domestic criminal scholarship but practically ignored in international criminal law.

This Article fills this gap and argues that whatever its merits in the domestic realm, there are special reasons to be skeptical about the “utility of desert” claim in the international context. Moral intuitions as heuristics for moral judgments are error-prone, and the international criminal regime has a number of extraordinary features that may increase the likelihood and cost of these errors. These features include the complexity of the crimes; the diversity of stakeholders who possess heterogeneous intuitions; and the regime’s multiple goals, some of which may be inhibited by moral condemnation. After examining these differences, the Article outlines the implications of the analysis for regime design. Some of these design implications accommodate the international criminal regime’s current retributive approach, and some are fundamentally incompatible with retributivism.

Thank you again to all those involved in putting this discussion together. I look forward to the upcoming exchange.

Introduction to the Virginia Journal of International Law/Opinio Juris Online Symposium for Issue 52:3

by The Editors of the Virginia Journal of International Law

The Virginia Journal of International Law (VJIL) is delighted to be partnering with Opinio Juris this week to host a series of discussions on recent scholarship published by VJIL. This week will feature articles from the third Issue of Volume 52 of the Journal. The complete Issue 52:3 can be downloaded here.

On Tuesday, we begin our discussion an Article by Andrew K. Woods (Harvard Law School) – “Moral Judgments & International Crimes: The Disutility of Desert.” In this excellent Article, Professor Woods comprehensively examines the “utility of desert” theory and argues that there is reason to be skeptical about the theory’s application in the international context. Excellent commentary will be provided by Jens David Ohlin (Cornell Law School), Adil Ahmad Haque (Rutgers School of Law-Newark), and Jonathan Baron (University of Pennsylvania).

On Wednesday, we continue with Alvaro Santos’s (Georgetown University Law Center) Article, “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Mexico & Brazil.” Santos contends that developing countries in the WTO can use strategies of lawyering and litigation to influence rule interpretation to advance their own interests. He uses the experience of Mexico and Brazil to illustrate the different strategies that have been employed and discusses the different results. Robert Howse (New York University School of Law) and Andrew Lang (London School of Economics and Political Science) will respond.

Finally, on Thursday, Jason Webb Yackee (University of Wisconsin School of Law) will discuss his thought-provoking Essay, “Investment Treaties & Investor Corruption: An Emerging Defense for Host States?” Yackee brings attention to the recent trend by host nations of using investor corruption as a defense to liability in ICSID arbitration. In his Essay, Professor Yackee suggests a model framework for dealing with this new trend. Responding to his piece will be Jarrod Wong (Pacific-McGeorge School of Law). Andrea K. Bjorklund (UC-Davis School of Law) and Daniel Litwin (McGill University) will also offer a joint response.