International Criminal Law

Contra Peter, there was one indisputable reference to international law in last night's U.S. presidential debate. Mitt Romney repeated his argument that Iran's president should be indicted for inciting genocide.  This idea has spawned quite a bit of reaction, especially from the lefty blogosphere. One typical reaction, from Greg Sargent, suggests that Romney is turning his back on his famously...

I am delighted to announce that Oxford University Press has just published a paperback edition of my book, The Nuremberg Military Tribunals and the Origins of International Criminal Law.  The paperback is priced at a very reasonable £25 -- £45 cheaper than the hardback.  Here again is the description: This book provides the first comprehensive legal analysis of the twelve war...

I want to call readers' attention to an excellent new article by James Stewart (UBC; currently a Global Hauser Fellow at NYU) that is forthcoming in the Journal of International Criminal Justice.  Here is the abstract of the article, entitled "Overdetermined Atrocities": An event is overdetermined if there are multiple sufficient causes for its occurrence. A firing squad is a classic...

Jack Goldsmith offers five thoughts today at Lawfare about the D.C. Circuit's Hamdan II decision.  I agree with two of his thoughts -- that the government is free to rely in future prosecutions on alternatives to material support (MST) such as aiding and abetting terrorism, and that (sadly)  al-Bahlul could be detained indefinitely if he is ultimately acquitted by his...

From the government brief arguing that the media and witnesses in the 9/11 trial should not be permitted to hear the defendants describe being tortured by the US government: "Each of the accused is in the unique position of having had access to classified intelligence sources and methods," the prosecution says in court papers. "The government, like the defense, must protect...

At his new blog, Derek Gregory posts the following photo, which shows American soldiers applying the "water cure" during the war in the Phillippines, which lasted from 1899-1902: Of course, not everything old is new again.  Five Army officers were convicted by courts-martial for using the "water cure" during the Phillippine War, with one reviewing authority unequivocally describing the interrogation method...

[Jean Galbraith is Assistant Professor at Rutgers-Camden School of Law] This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.
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.

Julian beat me to Eric Posner's new Slate article on the legality of drone strikes.  I don't agree with everything in it, but I think it's notable that Posner -- echoing his sometime co-author Jack Goldsmith -- rejects the idea that international law permits self-defense against a non-state actor whenever a state is "unable or unwilling" to prevent the NSA...

I'm currently writing an article for the Journal of International Criminal Justice on the legality of signature drone strikes under international humanitarian law and international human rights law.  I will link to the article when it's done (two weeks or so), but I couldn't resist posting the following quotes -- the first from the New York Times, describing the Obama...

Since June 2012, there has been a new addition to the international legal blogosphere: Armed Groups and International Law. The blog is edited by Katharine Fortin of Utrecht University and Rogier Bartels at the Netherlands Defence Academy and the University of Amsterdam. The blog's two main purposes are information sharing and community building between individuals and organizations working on issues related to armed groups....

Benjamin Netanyahu is being suitably mocked for the Wily E. Coyote-like picture of a bomb he used at the UN to describe Israel's "red line" concerning Iran's purported efforts to build a nuclear weapon.  There's no need for me to pile on; even right-wingers are horrified, with Jeffrey Goldberg -- Jeffrey Goldberg! -- tweeting earlier today that "Netanyahu's bomb cartoon...