International Criminal Law as Justice

Recent scholarship and jurisprudence in international criminal law (ICL) shows a dramatic flourishing of interest in fundamental principles of justice. A system of justice requires more than utilitarian reasoning aimed at maximizing impact; the system is constrained by fundamental principles that protect the individual, in order to ensure that punishment is deserved. This project contributes to this reinvigorated discussion in three ways. Firstly, I advance a framework with which to evaluate ICL doctrines. I agree with the important critique that principles familiar from national systems should not be automatically be replicated in the distinctive contexts of ICL. While principles may be adapted, our guide is that we must conform to the underlying deontological constraints. Secondly, I highlight that the application of existing criminal law theory to ICL is not a one-way process. The extreme cases and novel problems of ICL can reveal that seemingly elementary principles contain unnoticed conditions and parameters. Criminal law theory illuminates the lacunae of ICL, and ICL illuminates the lacunae of criminal law theory. Thirdly, I apply the framework to particular problems and controversies in ICL, such as command responsibility, superior orders and non-retroactivity. These are exciting times in ICL. Today, journal pages and abstract services brim with rigorous, sophisticated, inter-disciplinary and theoretical works scrutinizing ICL from a multiplicity of perspectives. The major doctrines of ICL were laid down rapidly over 15 years, first with a broad brush and then finer strokes. We now have an opportune moment to inspect, understand, systematize and improve the system. One particularly prominent strand of this new scholarship is the liberal critique of ICL, which brings criminal law theory to bear on ICL problems, with particular emphasis on the fundamental constraints of a liberal justice system. Some scholars have pointed out that ICL often seems to contravene fundamental principles, even though it declares its adherence to such principles. Among the first pioneers in this respect were George Fletcher, Jens Ohlin, Allison Danner, Jenny Martinez, Kai Ambos and Mirjan Damaška.1 Many scholars are now doing thoughtful work within the liberal tradition. In response, ICL has already demonstrated once again its impressive adaptability. Much of ICL discourse — including scholarly literature and judicial reasoning — seems to have absorbed such critiques, evincing much more careful grappling with fundamental principles. Recent judicial decisions are particularly conversant with the constructs of criminal law theory and the need to avoid treating persons unjustly.2 Indeed, there is a very real danger that the system may even over-correct. If one wishes to avoid criticisms of treating persons unjustly, a tempting strategy is to favour the highest, most rigorous standards at each interpretive juncture. Recall that the Security Council Tribunals were at times accused of being ‘conviction machines’. The International Criminal Court at present is in little danger of such accusations, and is much more likely to be accused of being a very expensive ‘acquittal machine’.3 It is a commendable impetus to adopt the ‘highest standards of justice’, articulating standards that may be higher and more demanding than in any other legal system. But consider the disconnect of applying such standards to an investigative body that investigates live war zones without police, without police powers, and with limited cooperation on the ground from other actors. To combine dystopian operational contexts with gold-plated legal standards has foreseeable costs, such as failed prosecutions, delays and commitment of resources into fewer and longer investigations. Just as it is simplistic and problematic to adopt by default the broadest interpretation at each juncture, it is also simplistic and problematic to adopt by default the most restrictive interpretation. Criticisms of ‘Just Convict Everyone’ are to be avoided,4 but ‘Just Convict No-one’ would hardly be better. If barriers to conviction are increased unnecessarily, one sacrifices the system’s deterrent and expressive impact, and hence its purpose. National and international law scholars sometimes suggest that the way out of this quandary is to ‘balance’ utilitarian and deontological considerations.5 But a general aspiration of ‘balance’ is not the answer. It does not provide us with a conceptual framework of how and why these considerations would be balanced, nor does it provide a methodology to do so. A helpful first step on our path was famously suggested by H. L. A. Hart, who distinguished between justification of the system as a whole and justification of the punishment of a particular individual.6 The system may be justified by its social benefits, but punishment of a particular person still requires individual desert. Other thinkers have added to these insights, including by questioning whether the justifications are quite so separate;7 nonetheless, this basic model is sufficient for now to illuminate our problem. Where we breach a deontic commitment to the individual, we are treating him or her unjustly. Conversely, where we overstate a fundamental principle — where we are too conservative in our criminal doctrines out of deference to an incorrectly broadly construed principle — we are sacrificing utility for no reason. It is ‘bad policy’. We are failing to fulfil the aim of the system. Thus, a concept of justice assists ICL in two ways. Most obviously, it delineates what we must not do because it would be unjust. Conversely, it also delineates the zone of permission, where there is no deontological constraint limiting the pursuit of sound policy (effectiveness in promoting general welfare). Alas, as much as we need a concept of justice to help tackle hard cases in ICL, the concept is a profoundly elusive one. Scholars in the liberal tradition in ICL sometimes tend to speak of the requirements of justice in rather confident and certain terms. Most frequently, such arguments draw on principles from national systems. However, that approach is vulnerable to the critique that national legal principles may not be applicable in the extraordinary contexts of ICL.8 To avoid that vulnerability, one might turn to deontological theory in order to ground the principles. However, the foundations of deontological theory are also open to dispute and disagreement. Accordingly, talk about our principles of justice should simply be seen as an agreed framework for a particular kind of conversation. It is an important conversation. The first contribution of this book is to advance a new framework for evaluating ICL doctrines. The best way to explain the framework is to situate it within the two major existing schools of thought. The first school of thought, as already discussed above, is the liberal critique of ICL. The second school of thought is the critique of the liberal critique. Scholars such as Mark Drumbl and Mark Osiel have advanced an extremely valuable argument that the liberal critique is often overstated or misguided, and that the familiar principles of ordinary criminal law may not be appropriate in the context of international crimes.9 They argue that the paradigm of individual culpability may be suitable for isolated deviant crimes but not for mass crimes, which involve organic group dimensions.10 Liberal principles and liberal theory are rooted in individualistic concepts of agency and moral choice, which are overwhelmed in the contexts of collective criminality, social pressures and ‘inverted morality’ faced by ICL.11 Furthermore, such principles may be culturally specific Western artefacts that are not applicable in other contexts.12 Accordingly, to grapple with mass crimes, it may be necessary to depart from, abandon, or modify the principle of culpability.13 I suggest a new framework that aims to absorb and improve upon the two prior schools of thought. Although the two schools of thought appear to be in opposition, I think it is possible to agree with the central insights of each, provided some crucial clarifications and caveats are made. A new framework can combine the strengths but avoid the major objections to the previous approaches.14 The result is a more careful liberal account, which is better suited for discussing ICL problems. I agree that we should not unreflectingly transplant the principles as articulated in national systems into ICL contexts.15 The special contexts encountered by ICL, such as collective action, state criminality and non-legislative forms of law-creation may require us to re-inspect and re-articulate those principles. However, our creativity in adapting principles is bounded. The special contexts may differ from ordinary crime and require new thinking, but we still must respect our underlying deontic commitment to human beings affected by the system. Accordingly, any new articulations need a plausible deontological justification. Thus, the proposed account remains a liberal account, in that it respects principled constraints rooted in respect for the moral agency of individuals. The account would entertain the possibility of modifying familiar articulations of the culpability or legality principle, based on insights gleaned from ICL contexts, but would not contemplate their abandonment. My hope and aspiration is that scholars in the two schools above would agree with the framework I suggest. I would hope that scholars in the ‘liberal’ camp would agree, as their priority would not be the replication of national principles but rather respect for the deontic commitment that underlies those principles. Similarly, it is my hope that scholars in the ‘critical’ camp, who have rightly emphasized the distinctive features of ICL, would agree that the refashioned rules must still comport with a credible account of just treatment of individuals. For example, a common objection to liberal accounts is that they focus on the individual as the central ‘unit of action’, and thus are unable to properly contend with the collective action typical of international crimes.16 I would suggest that a criminal law theory must focus on individual agency, not because of an entrenched ideological commitment to the individual as the only unit of action, but rather because in criminal law the individual is the unit of punishment. Once one chooses to employ criminal law to blame and punish individuals,17 one is obliged to determine what one is punishing that individual for. We can nonetheless thoughtfully explore individual agency in collective contexts, and the manner in which collective action both expands individual agency, by allowing attainment of aims that could not be attained alone, and also diminishes individual agency in situations of social pressure or exercise of authority.18 Exciting scholarly work in this area is already underway.19 Another objection is that liberal theories neglect social and communitarian dimensions of criminal law.20 However, a liberal theory can acknowledge that we are social animals in a socially constructed environment.21 It simply requires that we justify our actions against the individual on behalf of society. We may indeed be social animals, but we are not drones in a hive society, to be used lightly for the collective good. A careful liberal account can absorb and be strengthened by these and other objections, acknowledging collective action, social roles and the cosmopolitan commitments of ICL. These features may require adaptation of ideas developed in the context of ordinary crime. As a second contribution, the project may also generate insights for mainstream criminal law theory. Examining criminal law in ‘abnormal’ situations can teach us about our theory of the ‘normal’ situations. ICL — criminal law in extremis — presents a new set of problems, which may expose unnoticed parameters and subtleties in concepts such as moral choice, fair warning, or authority. Such inquiry can demonstrate that seemingly fundamental principles are actually contextually contingent manifestations of more complex commitments. For example, consider that criminal law theory typically assumes the modern state as its centrepiece.22 It assumes the normal situation of a generally orderly society, with a single state hovering above the affected individuals, acting as the law-giver, law-adjudicator and law-enforcer. These assumptions are entirely understandable given our historical experience of criminal law. However, ICL provides examples that do not fit this familiar picture. It can help us see that the ‘normal case’ is only one example of the broader possibilities of criminal law. Although many regard the state as a strictly essential requirement for criminal law, we might find on inspection that what is really required is not the entire package of the modern Westphalian state, but rather certain features currently associated with the state, and that those features could be allocated differently or vested in other institutions. Let me clarify my point about the state not necessarily being the centrepiece in ICL. Obviously, states play many roles in ICL: they order crimes, they suffer from crimes, they exercise jurisdiction, they bestow jurisdiction, they carry out arrests, they create and shape ICL institutions and doctrines. What I am saying is that ICL confronts us with criminal law that does not necessarily have ‘The State’ at its centre, with all of the standard paraphernalia of the modern Westphalian state. Criminal law theory normally assumes a single, monolithic, omnipresent entity that sits in judgment of all the other actors.23 This central character in criminal law thinking plays many roles: it claims a monopoly of force in a given territory; it exercises supreme authority over other actors; it is the law-maker, law-interpreter, law-enforcer; it is the impartial dispute-adjudicator, keeper of the peace, custodian of public right, embodiment of the community, and beneficiary of duties of allegiance. My point is that in the normal case we can assume that (1) all of these roles can be combined in a single entity, (2) there is only one such entity relevant to the problem, and (3) this entity is also the entity creating and enforcing criminal law. Accordingly, in the normal case, one can readily call upon concepts such as ‘citizenship’ or ‘community’24 or ‘authority’25 to help explain aspects of criminal law, because these tools seem to be readily present. ICL complicates that picture. This package of the single overarching state, the unity embodying a multiplicity of roles, may not be present in ICL contexts. Instead, these functions may be disaggregated over different entities (including international tribunals), or they may be duplicated in more than one entity purporting to exercise them in conflicting ways. As a result, we lose some of the devices and that have used to criminal law. The of ‘citizenship’ has of are not present between the relevant The of is in an international The of is where the entity applying ICL is not the state that or that particular authority. ICL presents contexts, us to with more the of these these and criminal law forms of we can more about the general case of criminal law. are many other in which the special contexts of ICL may new for criminal law ICL crimes that are about and of about and Criminal the normal of state as These extreme cases can help us conditions and parameters in what we thought, based on our to be elementary principles. In a normal criminal law it is to how the principle of legality is the of prior to the However, ICL has no and constructs law a of ICL also confronts and crimes for which law is These features of ICL require and to explore more what the and of the legality principle really for example the principle no crime without law. In the context of the modern state, which features a of thus a and to it is very plausible to regard the requirement as a fundamental Accordingly, scholars such as George have that ICL must with the requirement to fundamental of justice. that the on international law as a of is an by international and a to the of legality in criminal I agree that some problems in ICL from and thought of international This may be an where the is one on to be In all of human experience with the criminal it seems quite plausible to regard as a for just punishment. However, it is the that may teach us the most about the may simply be a to a more elementary If it may as a requirement of justice only certain a thought we can readily examples in which just treatment would not require law as a on an Such examples can that law is not a requirement but rather a ICL, a legal system without a which on law for its basic and which has and rapidly from an to a provides a to to explore the parameters of the what does our concept of justice require law and it be to the of the and What might we from common law and law ICL also provides an to explore legality in As above, ICL confronts in situations where law is The in such cases are often higher than in ordinary criminal law, because the are more and new law example by is more ICL have developed of argument to justify punishment in such I that some such punishment can indeed be but each of the major to has For example, it is often that the on law was not applicable in ICL, at in its The argument may indeed be as a of law, but it help us with our of whether is whether it is Another argument is that the in the principle of legality must way to the of not persons punishment for The argument is but because it has a it does not any for its do we that the we to within this concept of must be some to the set of that could the requirement of we are into the for some or to the As may be the account I would not transplant the familiar requirement of its international a would it the arguments that simply legality and fair Instead, we these hard cases to to what of or is we can a The of superior orders is as a of law and as a of out a theory of the of superior we can clarify the and to criminal law theory The fit into existing It does not a typical on such as that the a does it a typical but individual culpability on such as that the We can draw on scholarship to to our of the justification of the and thus its parameters. For example, has state authority as an in the context of with a model that into the of the the for acting and the relevant of The concept of seems of the to explain the superior orders The special problems of ICL can also new from criminal theory. For example, the concept of may help us superior the is also superior orders may help us state authority. ICL contexts the between state authority and criminal law. In a ‘normal’ a single state is both the of criminal law and the of the that it seems that why the state would deference to its into its criminal law. in ICL contexts, there may not be a unity of between the of criminal law and the of the Indeed, there may be authority authority in conflicting ways. In these contexts, we are to should criminal law What is the for that The of command has of an and that literature is rapidly more In two I argue that command can be much than it I evaluate command with the culpability The principle has two the of and the of I argue that the as set out in the is and that suggested are and with the command a have which has by scholars in the liberal One is the of a conviction by of command in to a crime of specific such as scholarship in criminal law as as the theory advanced by we may find that a criminal standard is in a of The about in to special may also be as may not require that the have the required of the to the requirement for culpability to the I argue that jurisprudence an turn in the contribution requirement in command The so based on reasoning that was not necessarily even on its the reasoning not with principles and an with the fundamental principles of the system. to the and to avoid the have many complex and claims about command These the of command as as as as as or as However, we the first a and is in ICL is a of and requires The the fundamental principles and national case law, and does so in a I draw from criminal law scholarship to explore the parameters of the contribution I that the approach in jurisprudence is I that a interpretation of command need not create the that some as it does some those are the situations that a just system of criminal law should the principles of justice that ICL, and doing so with an that is not to the concepts developed in the context of ordinary can help clarify some in ICL, and point to new A concept of ICL as justice us in two it us to avoid treating persons unjustly, and to avoid doctrines that from deference to principles. The with the tradition in scholarly and is to an international criminal law that is both just and In other the aim is to the of ICL in also the of those to the system.

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