VJIL Symposium: Adil Ahmad Haque Comments on “Moral Judgments & International Crimes”

[Adil Ahmad Haque is an Associate Professor of Law at the Rutgers School of Law-Newark.]

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.

I want thank Andrew Woods, the Virginia Journal of International Law, and Opinio Juris for the opportunity to respond to such a rich and provocative Article. I could probably write 600 words on any single section of Andrew’s paper, but for present purposes I’ll confine myself to some big-picture issues.

Reordered somewhat, Andrew’s core argument works like this:

1. The apparently retributive features of international criminal law often interfere with the maximization of various good consequences including conflict prevention, conflict resolution, and reconciliation. In particular, moral condemnation and retributive attitudes interfere with consequentialist reasoning. (Part II.B)

2. In the domestic context, similar contra-consequentialist features might be justified by ‘the utility of desert’: departures from lay intuitions of justice (‘empirical desert’) seldom deter much crime and may even increase crime by undermining the moral credibility of the law and with it voluntary compliance. (Part I).

3. However, international criminal law cannot effectively harness the power of empirical desert, leaving the contra-consequentialist features undefeated. (Part II.A).

4. Therefore, international criminal courts should deemphasize moral condemnation and depart from empirical desert when this will produce better consequences. For example, courts should consider imposing higher or lower punishments to avoid local backlash; alternative sanctions such as public hearings, naming and shaming, revoking professional licenses, and lustration; paying rebels to disarm; granting amnesties; ordering restitution; economic development; and forward-looking conflict prevention. (Part III).

My sense is that accepting many of Andrew’s proposals would make “the international criminal regime” (Andrew’s phrase) either no longer a criminal regime or no longer a legal regime. For this reason, his arguments are best understood as arguments against deploying the international criminal regime in the first place and using other means to prevent, resolve, and respond to conflict.

Indeed, states should carefully consider whether to place any particular situation before the international criminal regime. But once they do, they should get what they ask for: a rule-governed legal process that defines crimes, determines responsibility, and imposes punishment. We should not expect judges and prosecutors to depart from legal principles, or operate without legal constraints, to maximize conflict resolution or reconciliation in individual cases.

Why not? Why shouldn’t judges and prosecutors maximize good outcomes with every decision they make?

For one thing, judges and prosecutors may lack the competence to do so. Judges and prosecutors generally are trained in law, not in diplomacy or public policy.

More fundamentally, to justify a legal institution on consequentialist grounds is precisely to forsake case-by-case maximization in favor of a system of rules that, as a whole and over time, produces better consequences than ad hoc individual judgments.

Let me conclude with two overlapping points.

First, it’s important to distinguish between the general justifying aims of the international criminal regime and the distributive principles governing individual liability and sentencing. Even if the international criminal regime would not be justified if it did not prevent future crimes, this does not mean that judges should seek to maximize crime prevention through their verdicts and sentencing decisions if this requires departures from legal principles of individual responsibility and ordinal proportionality. Prosecutors and judges best serve the regime’s justifying aims indirectly, by following rules justified by those aims.

Finally, it’s important to distinguish between the constitutive aims of the international criminal regime and the broader goals of the international system. Conflict prevention, conflict resolution, and reconciliation are very important goals of the international system. International criminal law can contribute to some of these goals some of the time, but always does so indirectly, as a side-effect rather than as a constitutive aim. The constitutive aim of criminal law is to condemn and punish serious wrongdoing. Criminal law has many consequential benefits, which may or may not justify it, but if it gives up its constitutive aim it stops being criminal law at all.