02 Apr Justice in Extreme Cases: Reflections by the Author
[Darryl Robinson is an Associate Professor at Queen’s University Faculty of Law (Canada), specializing in international criminal justice.]
I am deeply grateful to each of the contributors for their excellent additions to the conversation. One of the themes of Justice in Extreme Cases is the important of deliberation in figuring out a framework for moral principles. I agree with and welcome the counterpoints and questions advanced by the contributors. Rather than a typical “response” piece, I will here summarize and celebrate the caveats or concerns that they have raised.
Elies van Sliedregt makes an excellent point that deontic reasoning – and the coherentist approach – is comparatively ‘free-wheeling’. I have to concede that this is true. Source-based reasoning is constrained by empirically accessible texts and precedents, even if people differ about weight and interpretation. Consequentialist reasoning is often speculative, but at least in principle is constrained by empirical questions. By contrast, for the deontic question of what we owe to others, we have fewer ascertainable anchors. And yet it remains an important part of moral reasoning and criminal justice. The coherentist method offers some external touchstones – such as principles worked out in practice, reflecting the intuitions of justice of others – especially intuitions which appear to be widely shared across cultures (see eg Paul Robinson). The alternative to coherentism is to find the uncontroversially “correct” moral theory that can precisely answer deontological questions, but that seems unavailable. Deontic analysis is inescapably more nebulous than other forms of analysis, which is all the more reason for caution and humility.
Carsten Stahn is right that I was quite perpetrator-centered in this book. That focus arose because I was primarily examining the culpability principle. I agree with Carsten’s counterpoint that duties are also owed victims and members of society as a whole. This likely plays a role in the general justification for the practice of criminal law as a whole. In this book, I did not investigate the ‘general justification’ question, as it would require intricate study, but it is an important question for criminal law theory and ICL. On that front, I agree with Carsten that part of the general justification is surely the expressive function of criminal law in affirming the personhood and rights of those affected by crime.
Carsten is also right that a truly inclusive, pluralist conversation is difficult in the current global configuration and structure of society. This was a weighty concern for me as well (p 83-84). It sounds like we both respond not with despair, but with the conviction that this is one of the daunting, systemic problems that must be surmounted to create a more just world. It is also all the more reason for humility and circumspection and seeking to expand the conversation.
Adejoké Babington-Ashaye is right that I was too quick in conceding to the Appeals Chamber majority in Bemba that we might in principle expect somewhat less from a remote commander. Her caveat or reformulation is clearly correct. Most importantly, we both agree that one cannot send an armed group into another territory and then disavow responsibility because of the distance. While it is welcome that ICL judges today are taking deontic constraints seriously and directly engaging in deontic deliberation, there is danger of “over-correction”: romanticizing the constraints, overstating what is owed to the accused, failing to consider counterpoints, and proclaiming rarified conceptions that are unsupported by practice or normative argument. Linking back to Carsten’s point about victims and members of society, I think that neglecting the deontic standing of victims and society is part of the “over-correction”. I suppose an upshot of my book is that I object to one-dimensional analysis, whether it be of the “victim-only” or “accused-only” variant.
Liana Minkova offers a convincing extrapolation: given that our ideas about justice are human constructs, the deliberations might go in good or faulty direction, so there is no guarantee of “progress”. We might for example lurch from one extreme (reductively victim-focused) to the other (reductively accused-focused). I think this is one reason for judges and jurists to use practice and normative argumentation as a “humility check” to anchor our musings (p. 109, 280). Lianna’s observation underscored for me how much a coherentist account needs to be alert to distortions in conversation. I realize that I have long been interested in tendencies that can distort discourse (see three different examples here, here, and here), which may be due to my implicit coherentist underpinnings.
I agree with Harmen van der Wilt’s thoughtful legislative solution: adding a separate offence to the Rome Statute would comply with the legality and culpability principles and catch non-contributory failures to punish.
Harmen also rightly raises the situation of the exhausted or overwhelmed commander, who has taken appropriate measures but is left in the dark by subordinates because of the “fog of war”. Harmen’s discussion is in the very best tradition of thoughtful deontic analysis, and I agree with his sensibilities and intuitions about the correct outcomes. He raises the understandable concern that criminal negligence might get stretched or misapplied to convict in such scenarios.
My suggestion, however, is that the SHK test actually better addresses these shared concerns than the current “had reason to know” (HRTK) jurisprudence. The HRTK jurisprudence is satisfied by the fact that alarming information made it to the commander’s “possession”, whether it was seen or not. The HRTK test makes no inquiry into exhaustion or other circumstances. Criminal negligence is more fair, in my view, precisely because it enquires into those questions. Criminal negligence requires a gross departure, in light of all of the circumstances – including competing demands and frenzied situations. Furthermore, I argue, the departure must show fault: namely, a culpable disregard for the lives and safety of others. Criminal negligence makes generous allowance human frailties and excludes errors in judgement and momentary lapses. So, for any situation one can imagine where the omission was reasonable and does not show culpable disregard, then that situation is, by definition, not criminal negligence.
I agree with Harmen that the malicious commander who deliberately omits to set up reporting should be captured by the doctrine. Harmen suggests that this may be covered under the HRTK standard, as a form of wilful blindness. The problem is that HRTK jurisprudence, as I read it, expressly excludes failures to set up reporting systems (see eg Čelebići at para 226, Blaškić at para 62). In my view, the HRTK standard draws an arbitrary line when it includes failures to read reports, but excludes failures to set up a reporting system in the first place. In deontic and consequentialist terms, the latter is equally as blameworthy as the former. It seems that Harmen and I share the same sense of what should and shouldn’t be covered; we simply differ on the best legal formula to arrive at the desired outcome. However, the important thing to me is that we agree in our general approach: a careful, nuanced approach that takes both deontic constraints and societal protection seriously.
Saira Mohamed is receptive to the criminal negligence standard, with the appropriate caveat that the negligence label should not be used in cases of higher, deliberate culpability. She also offers a brilliant addendum that I had not thought of. She argued that command responsibility should encompass not only harms to civilians and other protected persons, but also harms to the commander’s subordinates. I was focused only on the “outward-facing” risk, created by the armed group against others, but it is instructive to consider the impacts and harms for subordinates, as it further reinforces the case for the positive duty placed upon commanders.
I am honoured that each of these contributors engaged with the ideas in this work, and I look forward to continued refinement of those ideas.