[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.
