LJIL Symposium Vol 25-3: Good Deeds of International Defendants: A Comment by Margaret deGuzman

[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 has identified an important issue about which the current literature on international sentencing is largely silent.  In her characteristically clear and insightful prose, Jean demonstrates that the ICTY and ICTR have failed to develop a coherent approach to the role that a defendant’s good deeds play in sentencing decisions.  This is problematic for several reasons.  Jean’s focus is largely on the possibility of unequal treatment of defendants although she also mentions the inherent value of doctrinal clarity and the potential impact on victims.  But sentencing inconsistencies can also have deleterious effects on reconciliation in communities recovering from atrocities and can undermine global confidence in international justice.  Jean’s article is thus an important contribution to a growing literature that attempts to bring theoretical and doctrinal clarity to sentencing in international criminal law.

The most important debate in the literature is, of course, between scholars who advocate a largely retributive approach to sentencing and those would prefer that judges aim to achieve good consequences.  Although Jean includes a brief discussion of deterrence and rehabilitation, her article is largely focused on retribution as the primary goal of international sentencing.  While she doesn’t discuss it explicitly, her analysis assumes that international judges should aim to give those convicted of international crimes the sentences they deserve.  That is, the quantum of punishment should be determined largely according to the defendant’s desert rather than with a view to achieving beneficial consequences.  According to Jean, judges should consider a defendant’s good deeds in deciding how much punishment is deserved, at least when those deeds benefited the group that was harmed by the defendant’s crimes.  Indeed, judges should reduce a defendant’s sentence roughly according to the magnitude of the effects of the defendant’s good deeds on the group compared to the effects of his or her crimes.

While I agree with Jean’s conclusion that judges should take account of good deeds because they reduce desert, I have several questions about how she reaches that conclusion.  First, Jean’s version of retributive theory relies on the notion that retribution is “for” someone.  In the case of international crimes, Jean believes retribution is for the victims but also for the group to which the victims belong.  Because international crimes are usually perpetrated against groups, good deeds that benefit those groups mitigate international crimes.  This understanding of retribution strikes me as a rather utilitarian.  To Kant, punishing those who deserve it is inherently important.  Indeed, it is required.  Such punishment is not “for” anyone as illustrated by his famous proclamation that a society dispersing to the four corners of the earth should first execute its last criminal.

Jean’s assertion that retribution in international criminal law is “for” the targeted group and individual victims suggests that if a defendant succeeded in exterminating the entire group no retribution would be appropriate.  Moreover, not all individuals and groups want retribution.  In such cases should international courts refrain from punishment?  American retributivists expressed shock at the 21-year sentence recently awarded to Norwegian mass murderer Anders Behring Breivik.  Brevik’s crimes were large scale (77 victims) and were committed against a group – young political activists.  In fact, the prosecutor considered charging Breivik with crimes against humanity.  But Norway’s system is based on restorative rather than retributive principles and there has apparently been considerable satisfaction with the sentence in Norway, including among victims.  When international tribunals address crimes against groups that prioritize non-retributive sentencing goals should they still take good deeds into consideration in the way the Jean suggests?

Second, if international judges are supposed to gauge sentences according to the retribution that is due to a particular group shouldn’t they adhere to the group’s sentencing norms?  If the affected group executes murderers or sentences them to life in prison, won’t the much lower sentences that most international courts award, often for crimes involving multiple murders, fail to satisfy the group’s need for retribution?  This points to a key problem with retributive sentencing in international courts – that societies don’t agree about how much punishment is deserved for particular crimes.

Third, Jean’s discussion of the retribution that is due to affected group focuses exclusively on the harms the group suffered and the benefits the group received through the defendant’s good deeds.  Indeed, she urges judges not to reject good deeds performed for bad motives because the group’s benefit is not dependant on good motives.  Here again Jean departs from traditional retributive theory.  Desert is generally considered to be a function of both harm and culpability.  While a defendant’s good deeds may mitigate the harm to the group, when those good deeds are committed for bad motives the defendant’s desert may be unaffected.  For example, assume a defendant was engaged in killing members of a group but decided to keep one member of the group alive on the condition that the victim pay the defendant.  While the group was benefited by the decision to keep one of its members alive the defendant’s culpability is probably not reduced sufficiently to reduce his desert much.

As these comments suggest, I am skeptical of the notion international judges should aim to capture the full extent of a defendant’s culpability in allocating sentences.  My agreement with Jean’s conclusion stems instead from my belief that international judges should be careful to avoid sentencing defendants to more punishment than they deserve.  In my view, a defendant’s desert is a function of both the harm the defendant caused and his or her moral culpability, each of which can be reduced by good deeds.  Beyond their role in affecting the retributive limit on punishment, good deeds should be taken into account because of their potential consequences.  As Jean notes, good deeds can speak to a defendant’s capacity for rehabilitation and taking them into account may encourage future defendants to engage in good deeds.  Moreover, acknowledging the importance of good deeds sends a message about the value that the international community places on such conduct, which can help to shape norms around the world.

I am grateful to Jean for her important and thought-provoking contribution to the debate about the goals of international sentencing and look forward to continuing the discussion.