In association with the International Commission of Jurists

Symposia

29 May

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] 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. Andrew Woods has done an admirable job tackling a truly foundational issue: the normative basis for punishment in international criminal law. This issue has engaged my thinking as well, and Woods is to be congratulated for moving the ball forward and asking the right questions. Woods starts from the assumption that international criminal punishment is essentially retributivist. He then proceeds to harness the lessons learned from the domestic punishment literature and then applies them to the international context. In particular, Woods invokes the well-known work by criminal law scholars Paul Robinson and John Darley. In a series of well-known articles and books, Robinson and Darley have argued that there is a utility to moral desert. In other words, (1) individuals have retributive sentiments regarding misbehavior; and (2) designing a system of punishment that tracks those sentiments will, as a whole, produce better consequences. This is one particular way of integrating retributivism and utility into a single coherent theory. For Robinson and Darley, the empirical fact of the matter is that people have retributive sentiments (step 1). At a normative level, however, what makes the system morally justifiable is that these sentiments have beneficial consequences (step 2) – hence the utility of desert. So the theory starts with a description of moral desert at the individual and wraps it in a normative argument at the institutional level that sounds in consequentialism. Woods then proceeds to apply these lessons to international criminal law. In short, he concludes that there is no similar utility of desert for international criminal law. While I think there is much to admire in Woods’ analysis, I take some issue with the first step of the argument: his assumption that international criminal law is fundamentally retributive. If he means this statement as a descriptive claim about the state of the field, I think he is wrong. I myself have argued that international tribunals ought to be far more retributive, so why am I complaining? Because I think that ICL ought to be more retributive, precisely because I think that ICL isn’t sufficiently retributive at the moment.
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29 May

[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.
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29 May

[Jonathan Baron is Professor of Psychology at the University of Pennsylvania.] 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. Thank you to the Virginia Journal of International Law for inviting me to participate and to Opinio Juris for hosting this discussion. I found this Article to be interesting and informative. It all makes sense to me, and I have no major criticisms. I would like to mention a different approach. An important distinction not mentioned (made in experimental economics and other fields) is that between second-party and third-party punishment, abbreviated as 2pp and 3pp. In 2pp, the victim punishes the injurer. In 3pp, a third party does. In experiments it is often simply another subject in the experiment. In real life, it is often the state, or someone given the power to punish in order to enforce the rules of a group, although it may be simply an uninvolved third person. Roughly, the rise of government over human history coincided with the replacement of 2pp by 3pp. Modern governments, when they can assert their authority, usually forbid 2pp, calling it "taking justice into your own hands" or "vigilante justice" (which can also include 3pp but may also be 2pp by an offended group). The norms of 2pp tend to be based on retribution, although of course this is correlated with (at least specific) deterrence, so that both rationales can be used at once, whichever is primary. ("I'll teach that SOB not to mess with me anymore. And, anyway, he deserves what he's going to get.") The norms of 3pp arise less from the idea of retaliation, since the punisher is not the victim, and are thus more open to other rationales, such as the standard utilitarian rationales of deterrence, incapacitation and rehabilitation, although explicit recognition of these norms came long after state power was well consolidated around the world. In general people tend to see the replacement of 2pp by government-controlled 3pp as a reform. Culture moves from feuds and warring gangs to a more orderly state of affairs.
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29 May

[Andrew K. Woods is currently a Climenko Fellow at Harvard Law School.] 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. Thank you very much to the Virginia Journal of International Law and Opinio Juris for hosting this online discussion on...

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29 May

The Virginia Journal of International Law (VJIL) is delighted to be partnering with Opinio Juris this week to host a series of discussions on recent scholarship published by VJIL. This week will feature articles from the third Issue of Volume 52 of the Journal. The complete Issue 52:3 can be downloaded here. On Tuesday, we begin our discussion an Article by Andrew K. Woods (Harvard Law School) – “Moral Judgments & International Crimes: The Disutility of Desert.” In this excellent Article, Professor Woods comprehensively examines the “utility of desert” theory and argues that there is reason to be skeptical about the theory’s application in the international context. Excellent commentary will be provided by Jens David Ohlin (Cornell Law School), Adil Ahmad Haque (Rutgers School of Law-Newark), and Jonathan Baron (University of Pennsylvania). On Wednesday, we continue with Alvaro Santos’s (Georgetown University Law Center) Article, “Carving Out Policy Autonomy for Developing Countries in the World Trade Organization: The Experience of Mexico & Brazil.” Santos contends that developing countries in the WTO can use strategies of lawyering and litigation to influence rule interpretation to advance their own interests. He uses the experience of Mexico and Brazil to illustrate the different strategies that have been employed and discusses the different results. Robert Howse (New York University School of Law) and Andrew Lang (London School of Economics and Political Science) will respond. Finally, on Thursday, Jason Webb Yackee (University of Wisconsin School of Law) will discuss his thought-provoking Essay, “Investment Treaties & Investor Corruption: An Emerging Defense for Host States?” Yackee brings attention to the recent trend by host nations of using investor corruption as a defense to liability in ICSID arbitration. In his Essay, Professor Yackee suggests a model framework for dealing with this new trend. Responding to his piece will be Jarrod Wong (Pacific-McGeorge School of Law). Andrea K. Bjorklund (UC-Davis School of Law) and Daniel Litwin (McGill University) will also offer a joint response.
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24 May

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the final day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. Thank you all for your insightful comments and...

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22 May

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the sixth day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. Steve Vladeck's post focuses on the interesting question...

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21 May

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at the George Washington University Law School in Washington DC.] This is the fifth day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. In my previous posts, I have identified three mechanisms of accountability and constraint.  In this final post, I focus on a fourth such mechanism, one that is often ignored by legal scholars but one that might actually be the most important of all:  the role that organizational structure and institutional culture play in creating a context where public values are likely to be internalized within groups. To illustrate what I mean, consider one of the uniformed military lawyers I interviewed shortly after he returned from being embedded with a combat brigade.  This lawyer told me how important it is that “lawyers sit in the room” when combat decisions are made.   He emphasized that, “when there’s a military decision-making process in place, the lawyer should be there.  If you are involved, everyone can see the value added.  The staff and the commander see you as part of the team rather than a weenie lawyer.”  Another lawyer recounts, “My brigade commander was brilliant, and he expected alternative views … If an IED [improvised explosive device] went off, and we were going to respond, he wanted to know, ‘Is it a good shoot or a bad shoot? … [And if] I had concerns, he listened to me.” These and other interviews I conducted with uniformed military lawyers illustrate the critical role that these lawyers play on the battlefield in supporting an organizational structure and institutional culture that fosters respect for core public values.  The existence of accountability agents, such as uniformed military lawyers, is important.   So too is the fact that these lawyers are integrated with operational employees (they comingle with troops and serve on the commander’s staff), they are committed to the core values at stake, they are at least somewhat independent within their own culture (a lawyer who doesn’t see eye to eye with a commander can seek “top cover” by talking to the lawyer assigned to that commander’s commander), and they can recommend that a commander invoke the military justice system in cases of abuse. As I note in the book:
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18 May

[Scott Horton is a Contributing Editor of Harper's Magazine and a Lecturer-in-Law at Columbia Law School.] This is the fourth day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. It’s useful generally to turn the accountability issue on its head and to view the question from the sovereign’s perspective.  Laura’s book takes a view of this question largely from the perspective of a single sovereign, the United States.  She’s done a remarkable job of developing that, recording the efforts to exercise accountability controls, the failures and the possible paths going forward.  But there are other sovereign players in the game, and their attitudes have significant ramifications. Both Iraq and Afghanistan furnish good examples.  In Iraq, few decisions of the Coalition Provisional Authority proved more controversial or cast a longer shadow that CPA Order No. 17, which granted immunity from prosecution under Iraqi criminal law to contractors deployed alongside coalition troops.  That rule, issued on the last day of Paul Bremer’s service as America’s proconsul in Baghdad before power was officially surrendered to an interim civilian government, stayed in place for many years largely as a result of the dysfunctionality of the civilian government that took its place—Iraqi political figures pretty much across the board decried it as an act of colonialist hubris. In both Iraq and Afghanistan, the United States encountered extraordinary difficulty in concluding a status of forces agreement (SOFA).  Iraq may furnish an interesting case-study. Public reporting about this process has been limited and focused largely on high-level political issues.  However, persons close to the negotiations on both sides have confirmed that the most contentious single issue related to the treatment of civilians and civilian contractors.  The Pentagon viewed both DOD civilians and contractors as an essential part of the force deployed; accordingly the United States insisted that both be covered by immunity provisions under the SOFA.  The Iraqis replied that they were essentially prepared to enter into a SOFA along the lines of those that the United States had concluded in the years following World War II—they would have concurrent jurisdiction with the United States over U.S. personnel stationed in country, and would expect to defer to the United States with respect to uniformed service personnel.  They also expressed willingness to compromise with respect to DOD civilians. As for contractors, however, Iraq held firm to the notion that their law should control and that contractors should be covered by it and subject to prosecution in Iraqi courts. 
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17 May

This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. Following-up on my earlier post on the difficulty of changing contracting practices by executive agencies, I thought I’d highlight a few quotes from a January 2011...

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17 May

[Jeffrey K. Walker is Assistant Dean for Transnational Programs at St. John's University School of Law] This is the third day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. With Outsourcing War and Peace, Laura Dickinson did a remarkable job canvassing an area of the law that has received a significant amount of attention and scholarship since the publication of Peter Singer’s landmark 2003 book, Corporate Warriors. Laura has done the heavy lifting for those of us who haven’t been able to keep up with this burgeoning research, laying out a tightly crafted survey of the scholarship while adding a lot of value to the debate with her “now where do we go from here?” recommendations for change. So I loudly applaud her fine efforts. Because Laura has bitten off a very big scholarship challenge with Outsourcing War and Peace, the work does suffer a bit at the margins from being overly broad in some areas that call for deeper and more nuanced analysis and discussion. For example, in discussing the possibility of broadening the tort liability of contractor personnel engaged in direct support of military activities, she comes down on the side of allowing Federal Tort Claims Act (FTCA) immunity for contractors, albeit with the narrower test for immunity proposed by the dissent in the D.C. Circuit’s Saleh case. While I agree that an overly broad definition of FTCA immunity is a mistake and the majority in Saleh got this dangerously wrong, I would have liked to have seen deeper discussion of the more fundamental issues at play here. Although contractors may appear to be “integrated into combat activities” as Judge Silberman claims in his majority opinion, how truly integrated can contractor personnel be when they are not subject to military command authority with the penal sanctions faced by military members for disobeying, can quit whenever they really don’t like something they’ve been told to do or not do, and ultimately do not enjoy combatant immunity for their otherwise criminal acts? Laura’s discussion would have benefited from drilling deeper here. I was very pleased by her recommendations concerning enhancing the enforcement of the Military Extraterritorial Jurisdiction Act (MEJA) by establishing a DoJ entity specifically tasked with investigating and prosecuting MEJA cases. Let’s face it, these cases have no natural constituency among the notoriously parochial U.S. Attorneys unless they are generating a lot of press. In most cases, no U.S. Attorney wants the responsibility, trouble, or expense of a MEJA prosecution with its remote witnesses and evidence, expensive travel headaches, and translation difficulties. As a guy who, with the strong support of my then-boss, unsuccessfully proposed a plan to deploy collateral damage/war crimes/friendly fire investigation teams with the coalition maneuver forces in the 2003 Iraq invasion, I find her concern about the importance of investigative capacity on the ground to be absolutely spot on.
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