09 Apr LJIL Symposium Vol 26-1: Introduction
[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]
This symposium launches our second year of collaboration with Opinio Juris, which we hope to be as fruitful as the first in combining the in-depth discussions that arise in the Leiden Journal of International Law with the dynamic online community of the blogosphere. In order to start the new year with a bang, we bring you, from Volume 26-1 of LJIL, two discussions of fundamental issues of international law: the functions of international tribunals and the philosophy of international criminal law.
The first discussion has as a starting point the article by Armin von Bogdandy and Ingo Venzke entitled On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority. In this piece, the authors suggest to look beyond the traditional dispute settlement function of international courts in order to assess other functions, such as law making and control and legitimation of authority exercised by others. This is, for the authors, the only way to better understand the role and place of international courts in the international legal order as exercising public authority and requiring ‘democratic legitimation’. In their thoughtful reactions, Ruti Teitel, from New York Law School, and Andreas Follesdal, from the University of Oslo, both question the choices made by the authors of the article. They mostly question the choice of ‘functions’ (why these and not others?) and the basis for legitimacy of international tribunals (why ‘democratic’ legitimacy? In whose name?). I share the methodological concerns of the commentators in this respect, and would even go a little further on the question of functions and legitimacy.
On the issue of ‘functions’, I find, at least in the field of international criminal law, that the broadening of the notion has confused things rather than clarify them and I’m wondering if in fact refocusing on the core function of international courts as the ‘function’ of international courts is not the way to go. Moreover, one issue that is not necessarily addressed by the authors and the commentators is how the institutions should see themselves and how these other ‘functions’ should play a role in the daily judicial function of the judges. For example, should international criminal judges be continuously referring to ‘ending impunity’ in their decisions to justify creative interpretations of the law to the detriment of the rights of the defense?
On the issue of legitimacy, I have always felt confused by the methodological dead end that seems to be the inevitable destination of any discussion on this topic. Indeed, authors seem to either choose arbitrary objective criteria to define the term or decide, just as arbitrarily, to privilege subjective interests as the yardstick for evaluation. Either way, it often ends up in unhelpful clashes of subjective preferences that never seem to in fact bring really useful material to the academic discussion.
The second discussion revolves around Darryl Robinson’s article on A Cosmopolitan Liberal Account of International Criminal Law. In this article, the author continues his exploration of the conceptual underpinnings of international criminal law, as he had done in another LJIL article some years ago on the Identity Crisis of International Criminal Law. More particularly, the author aims at bridging the gap between the liberal critique of ICL and what he calls the ‘critique of the liberal critique’, through an acknowledgment of both the specificities of ICL and the ethical commitments behind it. We are happy to welcome what are probably the two main proponents of the two sides: Jens Ohlin, from Cornell University, and Mark Drumbl, from Washington & Lee University School of Law. Both of them, from their own perspective, invite Darryl Robinson to clarify his positions, whether on the source of the liberal principles of criminal law or the level of commitment to criminal law as a ‘solution’ to mass atrocities. I find Darryl’s attempt at reconciling what appear to be opposite positions commendable and to some extent persuasive, but remain unsure whether it is in fact possible, for two reasons.
First of all, despite Darryl’s qualifications, and to put it in an arguably oversimplified way, I still see a profound tension between the essentially principled approach of the liberal account (‘this is what a criminal trial should look like’) and the essentially pragmatic approach of its critique (‘this is the reality on the ground. Get real!’).
More fundamentally, I’m not sure the positions can actually be ‘reconciled’, because I’m not sure they are in fact talking to each other or about the same thing. Challenges to the ‘individual’ dimension of (international) criminal law only make sense because ICL itself makes unrealistic claims about its own ambitions and functions in dealing with past atrocities through criminal trials which focus on individual responsibility. However, national criminal courts are not expected to deal directly with the root causes of crime, nor its broader sociological and possibly collective dimension. Why are international criminal courts expected to do so? In this sense, the starting point is fundamentally different for both sides, as pointed out by Darryl in his response: while there are certainly a number of possible answers to mass atrocity (position 1), if one chooses the ICL option, it should abide by liberal principles (position 2). A logical next step would therefore be to in fact stop trying to reconcile the two positions because they are not really interacting on the same level.
In this sense, there is clearly a link between the two articles of this symposium, to the extent that one needs to discuss the ‘functions’ of international criminal tribunals carefully in order to make sense of the articulation between the liberal account of international criminal law proposed by Darryl Robinson. We hope that the debates brought to you here will contribute to further development and analysis on these important issues.