LJIL Symposium Vol 25-3: Good Deeds of International Defendants: A Response

I want to thank Opinio Juris and the Leiden Journal of International Law for putting together this symposium.  I am especially grateful to Professor Dov Jacobs for organizing this session and to Professors Mark Drumbl and Meg deGuzman for their thoughtful comments about my article.

Some years back, I noticed how frequently international criminal defendants argued that they deserved credit for help they had given members of the other side during the conflict.  Almost every ICTR defendant claimed that he had helped protect one or more Tutsis, and ICTY defendants asserted all manner of humanitarian acts.  Most of these claims seemed dubious in their veracity or trivial relative to the defendants’ crimes, but a few left me wondering whether those defendants really belonged among the worst of the worst.  These observations led to this article, which has both a structural and a substantive component.

Structurally, I look at how the ICTY and ICTR have dealt with evidence of frequent use of defendants’ “good deeds” in sentencing.  The tribunals have dealt with this evidence in ad hoc fashion, with trial chambers taking a variety of cursory approaches and with little guidance from the Appeals Chamber.  This in and of itself is suggestive of how international criminal tribunals allocate their efforts.  Where inconsistencies in substantive international criminal law tend to get thoroughly examined and resolved, other kinds of issues – especially in sentencing – often slip through the cracks.  This may be especially true of issues that are, as Professor Drumbl puts it, sui generis to international criminal law:  it is harder for courts to recognize these as systematic issues in the first place.

Substantively, I consider how defendants’ good deeds should affect the sentences they receive.  This is a hard question.  There’s no consensus among domestic jurisdictions about how much or how little to weigh good acts at sentencing.  When confronted with conflicting domestic approaches, the ICTY and ICTR have often focused on picking among them.  I argue, however, that the tribunals can avoid doing so here and instead derive their approach from the unique features of international criminal law.  Specifically, I argue that, as a doctrinal or functional matter, international crimes typically arise out of conflicts between groups — and are considered to be international crimes worthy of the attention of the international community in part because of this quality.  Because of this, I suggest that good deeds by defendants aimed at those on the other side of the conflict should mitigate in part (though only in part) the appropriate level of retribution at sentencing, with the degree of mitigation to depend on the relative magnitude of the defendant’s crimes and good deeds.  I also argue that, depending on motive, a defendant’s good deeds might also serve as evidence of rehabilitable character.

Professors Drumbl and deGuzman direct most of their comments to my substantive argument.  Professor deGuzman questions my overall emphasis on retributivist reasoning and also notes concerns about some particular points.  Professor Drumbl is sympathetic to my overall argument but urges me to revisit or expand my argument on five specific issues.  I can’t do full justice to their points, which reflect careful scholarly engagement with my article, but here are some brief responses.

Professor deGuzman asks whether sentencing should focus on retribution or instead on other principles, such as “good consequences”.  My article assumes that the ICTY and ICTR are pursuing retribution in sentencing (which their judgments say they are doing) and does not engage in first-order consideration of whether or not this is a desirable goal.  I myself accept that it should be an important purpose, although not the sole one, of international criminal sentencing, but this is a broader debate for another occasion.

Professor deGuzman also raises some hard questions about my argument that part of the punishment due to international criminal defendants who are found guilty is “for” the group on the other side of the conflict, and therefore it is appropriate to take into mitigation any good deeds that the defendant has done towards members of this group.  First, she is concerned that my approach “suggests that if a defendant succeeded in exterminating the entire group no retribution would be appropriate.”  I do not agree with this.  For one thing, I don’t suggest that all retribution is for the other group; rather, I say that some is also for the specific victims and some is for society at large.  More importantly, in saying that retribution is partly for the group, I mean that it is due on behalf of the group, regardless of whether the group benefits from it (just as murdered victims do not benefit from retribution in response to crimes against them).  Second, Professor deGuzman asks whether my approach implies that international criminal judges should follow the sentencing norms of the affected groups.  This depends on whether retribution is treated objectively or subjectively, which is an issue that I don’t address in my article.  In practice, the divergence in ICTY and ICTR sentences may be due in part to a subjective approach that takes into account different community norms.  I think this is sustainable where different tribunals are used, but that the ICC will need to take a more standardized and objective approach in order to minimize regional disparities.

Turning to Professor Drumbl’s comments, I agree entirely with his fifth point – that good deeds might matter in areas beyond sentencing – and so will respond only to the other four.

Motive.  Professor Drumbl and also Professor deGuzman are troubled by my claim that good deeds should reduce the amount of retribution due regardless of the defendant’s motives.  Isn’t a defendant who has saved some lives from humanitarian motives more worthy than a defendant who did so to help his specific friends or to reduce his own future risk of harm?  (I set aside their extortionary examples because these may amount to separate crimes.)  I agree that these defendants are different, and I would treat them differently in terms of their rehabilitable character.  But I urge making the retribution part of the mitigation inquiry focus purely on outcomes in assessing whether the defendant has done any good deeds.  This keeps it free from questions about motive, which is often hard to decipher and thus traditionally less relevant to criminal law than intent.  Did Vinko Pandurević open a corridor out of Srebrenica for Bosnian Muslim men to save their lives or out of military necessity or out of some mix of motives?  We don’t know for sure – but we do know that he chose to open the corridor and, according to the Trial Chamber, “objectively he saved thousands of lives.”

Burden of Proof.  Professor Drumbl notes that the different burdens of proof for guilt (reasonable doubt) and for mitigation (preponderance) may lead to misbalances.  This is an issue regarding mitigating evidence generally, and I think it is defensible in the context of good deed evidence for the same reasons it is defensible more broadly.  In any event, the difference in burdens in proofs is likely not all that important in practice, as Nancy Combs’s research suggests that the ICTR does not apply the reasonable-doubt standard in a rigorous manner.

The Scope of Good Deeds across Time and Groups.  Professor Drumbl suggests that my argument might apply more broadly in two ways:  first, across time to include pre-conflict good deeds and second, across groups to include not just those on the “other side” but also humanitarian forces, moderates on the same side, etc.  I am sympathetic to these applications, which would lead to an even more holistic evaluation of defendants at sentencing than I am proposing.  My article leaves these questions open, however, because the link between these kinds of good acts and the conflict that effectively makes crimes into international crimes is more tenuous.  I see these acts as more analogous to the domestic law context, where defendants sometimes plead good behavior unrelated to their specific crime in mitigation.

Again, my thanks to Professors deGuzman and Drumbl for their excellent comments.