Cross Posted at Opinio Juris here.
I agree with almost everything in Darryl Robinson’s plea for a cosmopolitan liberal approach to international criminal justice. Robinson’s article sketches out the development of ICL scholarship, noting the beginnings of the field, followed by the liberal critique of early ICL development, and then the counter-critique of the liberal critique that emphasized the need for sui generis theories to deal with the unique nature of international atrocities. The story is convincing and tightly explained. Although it might be difficult to identify particular scholars with just one of these schools of thought, it is certainly possible to identify particular arguments as fitting into one of these moments in the dialectic of ICL.
I do, however, want to point out an important trend in the development of the criminal law that cuts across the dialectical story emphasized by Robinson. This won’t suggest that Robinson has it wrong – far from it – though I think it does complicate the picture somewhat.
According to Robinson, the liberal critique of ICL harnesses general principles of criminal law found in domestic systems – say the principles of legality and culpability – and uses them to evaluate the early doctrines of ICL. The outcome of this analysis is that the ICL doctrines (such as JCE) are often found wanting.
I think it would be a mistake if this left the impression among some observers that these deeper principles of criminal law are so embedded in domestic criminal law that domestic systems get them right, while the international law system runs the risk of ignoring them. True, I might have said something along these lines in Reclaiming Fundamental Principles of Criminal Law in the Darfur Case, co-authored with George Fletcher back in 2005. However, one should not overstate the point. We are talking about deeper principles of criminal law – principles that ought to be deep and abstract enough to apply across all contexts, whether domestic or international.
It’s not as if domestic penal systems are immune from the liberal critique. Indeed, if one were to compare the domestic U.S. system against the current ICL system, I’m not sure which one would come up on top. Certainly, it would be important to note that many jurisdictions in the U.S. retain Pinkerton liability (similar to JCE III liability for co-conspirator acts that fall outside the scope of the criminal plan), the felony-murder rule, and various doctrines of transferred intent. All of these doctrines function to inflate the culpability of defendants who demonstrate culpable mental states that are best described as recklessness, though legal fictions in the doctrine are then applied to inflate their culpability to the level of intent (either knowledge or purpose). From the standpoint of the principle of culpability, most or all of these legal doctrines are subject to withering criticism. And despite this criticism, many of these doctrines hang on in the domestic case law.
True, the Model Penal Code (MPC) rejected many of these doctrines, though the MPC represented an idealized picture of the criminal law, produced by scholars with the hope of reformulating actual codes in the 50 states. In many cases the MPC reforms were successful; in many cases not. There is still a wide gulf between the MPC and the criminal law on the ground in many jurisdictions.
The same point can be made with regard to many other domestic legal systems. In recent writing (e.g. here) I have expressed increasing anxiety over the use of dolus eventualis as an appropriate mental state at the international tribunals. This mental state, often described as similar to recklessness, is used in the application of IHL rules on targeting, and also in the details of the Control Theory of Perpetration – a result that ironically brings the Control Theory right back to the expansive nature of JCE III and liability for a co-venturer’s acts that were never agreed to. Now here’s my point: this expansive use of dolus eventualis stems from its similarly expansive use in many civil law criminal legal systems, which in my view could be criticized, from a liberal perspective, for their overreliance on dolus eventualis.
My point here is that domestic criminal law, even in the liberal critique, should not be understood as some idealized, Platonic system that is perfectly attuned to the demands of culpability and legality. Indeed, in many cases it is not.
How then do liberals criticize ICL? They don’t do it from the perspective of domestic criminal law per se, but rather from the perspective of criminal law theory – a philosophical inquiry about what the criminal law ought to be. The point of many of those early articles on ICL that Robinson mentions (including some of my own), wasn’t to praise domestic criminal law and chide the international doctrine as some lesser deviant. Rather, the point was to urge the importation of criminal law theory into ICL, as it already exists in domestic criminal law scholarship, so that criminal law theory could have an equal seat at the table alongside public international law. Over the course of the last 10 years, I think great progress has been made in this regard – and some of Robinson’s recent articles (e.g. on command responsibility) are excellent examples of this salutary development.
Of course, Robinson hasn’t suggested otherwise – so this brief reflection is not a criticism of his paper. Rather, his excellent article has simply inspired me to take a step back and reflect on the nature and scope of the liberal critique, on where it came from and where it is going. And I want to emphasize that no system of criminal law is, or ought to be, immune from the critical gaze of the liberal critique.