All posts by James G. Stewart

Human Rights, International Criminal Justice, Moral Philosophy

New Symposium: Leif Wenar’s Blood Oil: Tyrants, Violence and the Rules that Run the World

I’m very pleased to host this new symposium on Leif Wenar’s book Blood Oil: Tyrants, Violence, and the Rules That Run the World (OUP, 2015). This major new text takes up the problem of the resource curse and its discontents, offering a politically ambitious, substantively provocative, beautifully written, and highly accessible treatment of a major global problem. I was especially excited to see a leading political philosopher address the relationship between natural resources and global justice, and to pick up on our overlapping concern for the widespread theft of natural resources globally. Wenar not only explains the problem with great clarity, he also offers a bold prescriptive way out of the predicament. In this symposium, he submits to respectful scrutiny from a range of scholars from diverse disciplinary backgrounds who contest different aspects of his argument. Before I introduce the commentators, I add to a longer summary he himself has written by presenting some brief background about the central arguments in the book.

Wenar’s major claim is that most natural resources are stolen. He takes this view for a variety of reasons, but predominantly because the international legal order allows any armed group, no matter their how weak their democratic credentials, to enjoy legal title over a state’s natural resource endowments. In Wenar’s language, the international order’s deference to “effectiveness” is morally perverse in that it embraces “might makes right.”[1] According to Wenar, this perversity engulfs the entire global resource sector: “‘Might makes right’ is as much true for an autocrat in coercive control of an oil-rich country as it is for a band of militants who seize a mine by force. In both cases, the alchemy of effectiveness transmutes the iron of coercion into the gold of legal title.”[2] And yet, if peoples own natural resources, international law’s deference to effectiveness as part of this dark alchemy enables theft.

The implications of Wenar’s thesis are sweeping. As he argues, international law’s overly-permissive stance towards violent resource predation “violates rights on a massive scale, and it causes enormous suffering.”[3] Deontologically speaking, Wenar argues that “[r]ewarding violence with rights makes a nonsense of property.”[4] Consequentially, he draws on the resource curse literature to show how resource endowment is negatively correlated with rates of armed violence, severe poverty and all other measures of social dysfunction. Perhaps his farthest-reaching argument, however, is that international law’s perverse embrace of “might makes right” undermines democracy: “[t]he money that goes to these men wins them unaccountable power: power unchecked by law or custom or conscience.”[5] Thus, Wenar sees redressing this dynamic in global resource governance as crucial in promoting democracy.

Wenar finds the norms necessary to achieve the political transformation to global democracy via resource governance in pre-existing international law,[6] echoing the international law scholars who discovered an emerging right to democracy at the close of the Cold War.[7] In particular, he relies on self-determination in human rights instruments and the notion of permanent sovereignty over natural resources to conclude that peoples own natural resources. For the bulk of the remainder of the book, he seeks to establish the circumstances under which state officials cannot act as agents of the people in resource transactions, negatively delineating the circumstances wherein the purported alienation of people’s resources is incapable of passing good title.

On this score, Wenar argues that a people’s consent over the alienation of their natural resources implies four basic principles, namely: (a) information (citizens must be able to find out about the management of their resources); (b) independence (citizens’ approval must not be forced); (c) deliberation (citizens must be able to discuss the management of their resources with each other; and (d) dissent (citizens must be able to dissent from management of their natural resources without risking severe costs).[8] The political ramifications are substantial. As Wenar explains, “[i]n concrete political terms, these conditions require that citizens must have at least bare-bones civil liberties and basic political rights.”[9] Consequently, for Wenar, popular sovereignty over natural resources guarantees some semblance of democracy: “[t]he people cannot possibly control their resources under a highly authoritarian regime: a military junta or a personalistic dictatorship, an autocratic theocracy or a single-party state.”[10]

The book addresses itself to a public audience, presumably because its overall conclusion is that we Western consumers are inextricably bound up in this violence and can do something politically transformative in response to it. To illustrate, at the beginning of the book, Wenar promises to “probe how consumers come to be legally chained to distant warlords. For surely those warlords had no legal right to their plunder?”[11] He goes on to argue that these problems are so ubiquitous that we consumers are all implicated, concluding that “[o]ur moral taint is a certainty… we all own stolen goods.”[12] In calling on us to address this moral taint, Wenar places the issue alongside some of the most infamous historical manifestations of “might makes right” — such as the slave trade, colonialism, apartheid, and territorial conquest[13] — insisting that addressing the theft of natural resources is the boldest yet still realistic global political project our generation might undertake to further this emancipatory moral trajectory.[14]

As will be apparent from my recitation of the argument, a project of this breadth and ambition will attract a broad variety of opinion. To foster critical debate on this topic, I am pleased to have brought together a group of scholars and practitioners from diverse backgrounds to offer reflections, criticisms and new vantage points on these issues. As is my normal practice, I have placed the names and affiliations of commentators on an accompanying page that lists all of the current and past contributions to this blog (see here). Nevertheless, let me explicitly showcase the disciplinary diversity they offer. This symposium hosts a leading scholar in the philosophy of global justice, a prominent international lawyer from Africa, arguably the leading scholar on resource wars globally and the founders of the NGO Global Witness. I also contribute a series of reactions based on the difficulties that have arisen in the theory and practice of attempts to promote democracy in international law, before inviting Wenar to respond to criticisms. I hope that the resulting body of thought is stimulating to all those concerned by the egregious underlying problem.

[1] Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World xlv (1 edition ed. 2015).

[2] Id. at xiv.

[3] Id. at 334.

[4] Id. at 73.

[5] Id. at xlviii.

[6] Wenar, supra note 1 at See Chapter 11 Popular Resource Sovereignty and Chapter 12 The State of the Law.

[7] Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int. Law 46–91 (1992); Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 Harv. Int. Law J. 1–70 (1995); Anne-Marie Burley (Slaughter), Toward an Age of Liberal Nations Symposium: Nationalism and Internationalism: Shifting World Spheres, 33 Harv. Int. Law J. 393–406 (1992).

[8] Id. at 227–228.

[9] Id. at 228.

[10] Id. at 229.

[11] Id. at xlv.

[12] Id. at xx.

[13] Id. at 311.

[14] Id. at 358. Like “the abolition of the slave trade, the liberation of the colonies, the end of white rule, and the many campaigns for human rights,” “[t]he reform of ‘might makes right’ for natural resources will be the next of these movements.”

Corporate Accountability, International Criminal Justice, Theory of Criminal Law

Towards Synergies in Forms of Corporate Accountability for International Crimes

Leora Bilsky has written a very impressive book entitled The Holocaust, Corporations, and the Law: Unfinished Business. The book addresses corporate responsibility for human rights violations, focusing particularly on the Transitional Holocaust Litigation (THL) with Swiss and German companies over the past decades. Necessarily, any serious scholarly treatment of this issue requires considerable intellectual breadth, in large part because the topic sits at the intersection of a broad range of interconnected fields. Bilsky has written what is, in my opinion, of the most sophisticated scholarly treatments of these issues, weaving together an impressive array of insights from different disciplines into a compelling unified whole. She makes a very eloquent, original, and profound contribution to questions of corporate accountability for human rights violations by pointing to the upsides of civil settlements in terms of structural legitimacy, victim participation and historiography. Her beautifully written argument draws upon and makes significant contributions to Harold Koh’s views of transnational litigation, to Susan Strum’s pluralist reformulations of structural reform litigation, and Michael Marrus’s critique of these cases. The final product is by far the most developed and articulate argument for the importance of civil liability as a response to corporate implication in mass violence, and I recommend it very highly to friends and colleagues.

I find Bilsky’s overall thesis very convincing—there are many reasons why settlements based on civil processes are preferable responses to transnational corporate implication in atrocity. If I have any hesitations, they are minor and probably arise from her focus on post WWII accountability for corporations implicated in the Holocaust based on international criminal law (ICL) as espoused in the Nuremberg Charter, as distinct from modern ICL and its potential reach in the contemporary world. The dominant influence on my reactions is, I confess, an extended period of time thinking about the responsibility of businesspeople and their corporations for international crimes from a comparative criminal law perspective, which is an approach Bilsky reasonably finds less attractive. In defending the significance of civil settlement, she argues throughout the book that “criminal trials are poorly suited to addressing corporate accountability,” (p. 15) and that the focus on criminal law “blinded Arendt, Jaspers, and others from considering the possibilities that other areas of law can offer.” (p. 34). I would agree with both of these statements in many instances, but I wonder if they might be overly categorical if interpreted as universal commitments, with respect to Nazi criminality but especially for atrocities elsewhere.

To begin, let me offer three relatively inconsequential areas where I felt Bilsky may have sold contemporary ICL slightly short in her otherwise compelling justification of civil settlements as a form of redress for wrongdoing during the Holocaust. First, her perfectly valid critique of the (in)efficacy of criminal law as a response to corporate implication in the Holocaust is not focused on modern ICL. As a consequence, her recitation of the failures of conspiracy (p. 18) and criminal organizations (p. 20) within the Nuremberg Statute as redress for corporate malfeasance during WWII do not tell us so much about the strengths or weaknesses of current law. Both conspiracy and criminal organizations are something of an historical embarrassment for modern ICL, which has replaced them with a plethora of “modes of liability” that might (and increasingly do) implicate corporations and their representatives. These modern “modes of liability” include everything from co-perpetration to superior responsibility, aiding and abetting, and just plain old perpetration. As a class, the concepts cast a legal net across modern corporate practices that likely transcends the law enshrined in the Nuremberg Charter. This reality seems to limit the extent to which lessons from Bilsky’s well-documented case studies can be transposed from the particular to the general.

In a similar vein, Bilsky appears to see ambiguity in the notion of complicity, which she argues militates against the use of criminal law norms in favour of THL-style processes. For example, after addressing some of the nuanced complexities of corporate collaboration with the Nazi State, she argues that “[w]e would be hard pressed to find consensual norms on the complex issue of the responsibility of economic ‘enablers,’ especially when the responsibility for the firms’ actions is intertwined with political actions of a corrupt state.” (p. 87). This position seems to overlook that other “modes of liability” have major implications for modern business as well as the advent of courts, international and otherwise, applying different iterations of complicity in trials for international crimes over the past twenty years.[1] Focusing just on the latter, it is true that the majority of more recent complicity cases have not involved economic actors, but several have, and I am not aware of any of these cases struggling with locating concrete norms, outside judicial debates about complicity in the ATS context. And yet, I have argued elsewhere that understandings of complicity in ATS litigation were never entirely true to the concept’s various legal meanings in criminal law.[2] Moreover, the most interesting of ICL complicity cases against economic enablers have occurred in domestic courts,[3] where local norms that presumably enjoy strong democratic credentials apply. And finally, complicity is one of the most discussed topics in the theory of criminal law,[4]  which speaks to an ever-growing understanding of its normative import, including in difficult cases.

Third, I am not entirely convinced by the argument that the lack of settled legal meaning about corporate responsibility militates against ICL in favour of a negotiated process focused on restitution, engaging victims directly, and enabling historiography by true historians. For Bilsky, attempts to ground the legitimacy of transnational public law litigation in the widespread acceptance of international norms are “unable to address the normative uncertainty characterizing many transnational struggles for justice, in particular the struggle for corporate accountability.” (pp. 84-85). I agree that the advantages of civil settlements that Bilsky presents are marked, and that they warrant real attention in concrete cases outside the THL case-studies she explores, but I am less sure that I see indeterminacy in current ICL as a problem to the same extent. Leaving aside broader jurisprudential disputes about the ability of any normative system to immunise itself from indeterminacy, I worry that Bilsky’s views on the ambiguities of corporate responsibility for international crimes tend to draw exclusively on disputes that were housed within the now (nearly) moribund ATS. Yet, once again, corporate civil responsibility within the ATS appears to have obscured the reality of corporate criminal liability for international crimes in national courts.[5] In some instances, this legal reality is explicit in national law, suggesting that ICL in various national legal systems may sometimes be a viable companion to civil cases, including those that result in settlements. And importantly, debates about the liability of corporations for international crimes cannot obfuscate the ability of criminal courts the world over to try businesspeople as individuals, further undermining recourse to ATS debates about corporate liability as a basis for dispensing with the criminal law tout court.

Thus, I read Bilsky’s very insightful work as adding a new layer to a broader set of transnational accountability options to be deployed pragmatically, not as an argument for the ascendance of civil redress and/or settlement over and above other regulatory possibilities as a blanket rule. In line with this thinking, I’ve used philosophical pragmatism as a frame in other work to plot the relationship between different forms of accountability in corporate contexts,[6] in ways that may be helpful in charting a contingent view of Bilsky’s important contribution.

In particular, because the literature inadequately attends to the transnational dynamics Bilsky takes so seriously, I have criticised all sides of the debates about the following three questions: first, whether there is a basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given co-existent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers.[7] In my view, debates about these issues reveal a recurrent tendency to presuppose what I call the perfect single jurisdiction in a way that overlooks globalization, the blind projection of local theories of corporate accountability onto global corporate practices, and a perspective that sometimes seems insensitive to the reality of corporate crimes in the Third World. By adopting a pragmatic frame, however, I doubt that any of these questions can be answered in categorical terms that are divorced from context.

As part of this approach, I hope that a consideration of the countervailing upsides of a criminal law framing will complement Bilsky’s valuable criticisms of it in the THL context. While my earlier work explored these questions in greater detail than I can replicate here, I pause to offer two sets of conceptual arguments that may favour the deployment of criminal law over and above civil remedies in certain circumstances.

First, criminal law is often likely to be a preferable vehicle for communicating moral blame for corporate participation in atrocity. In a section of earlier work entitled “Is Civil Liability Sufficient for Atrocities,” I inquired whether, for all its obvious benefits, civil liability is a sufficient response to what Raphael Lemkin once called “barbarous practices reminiscent of the darkest pages of history.”[8] Criminal law theorists argue that the criminal law serves a particular function that is not reducible to civil restitution. Doug Husak, for instance, asserts the autonomous value of criminal responsibility outside its intersection with tort liability by arguing that the criminal law “has an expressive function.”[9] In doing so, he asks how “could mere compensation possibly convey the stigma inherent in criminal punishment? If the state has a substantial interest in expressing condemnation, it is hard to see how a non-punitive response to core criminality could be adequate.”[10] Similarly minded, George Fletcher argues that “economic analysis misleads us by reducing punishment to the prices that actors pay for engaging in their preferred conduct.”[11] Thus, scholars like Dan Kahan argue that in the corporate context, “substituting civil liability for criminal might be expressively irrational.”[12] In certain especially egregious circumstances, these arguments might serve as a basis for prioritizing criminal not civil redress.

Second, a unique focus on civil liability risks allowing companies to absorb the cost of responsibility for international crimes as an incidental part of normal business by passing this expense on to consumers, who pay incrementally more for weaponry, games consoles, cellphones and engagement rings. In other words, civil liability might allow corporations to purchase massive human rights violations, or equally seriously, shield culpable businesspeople from serious criminal accountability. To address these concerns, many scholars argue, first, that the dividing line between corporate criminal and tortious accountability should be demarcated along essentially moral lines, based on whether the conduct in question was sufficiently grave to warrant outright prohibition or whether it should be priced,[13] and second, that corporate accountability must go hand in hand with individual responsibility.[14] Whether or not these ideas were practically germane in the THL context, I believe that they retain relevance alongside civil settlement as possible responses to transnational corporate implication in atrocity. Much depends on context.

Thus, I am left at the end of Bilsky’s important book wondering about ways of generating synergies between different forms of corporate accountability, including the settlements that she has so ably placed within the scholarly imagination as an important option. There is much interesting literature exploring possibilities of synergistic accountability, although to the best of my knowledge, these arguments are yet to be extrapolated into a transnational context. As an example, Samuel Buell supports the continued availability of corporate criminal liability as the “sharp point” of a pyramid, which includes the full range of civil remedies including those enforced by public administrative agencies.[15] Similarly, Harry Ball and Lawrence Friedman have argued that corporate criminal liability is useful as it allows prosecutors to threaten “the full treatment,” a term that denotes cumulative accountability, including responsibility of individual businesspeople.[16] Finally, Mariano-Florentino Cuéllar has argued that “some will recognize how the presence of overlapping criminal and civil jurisdiction can facilitate the imposition of more severe civil penalties.”[17] In particular, Cuéllar suggests that acquisition of evidence from one legal process might feed into the other, meaning that the two operating in tandem create results unachievable by one alone.

This brings me back to Bilsky’s focus on the Holocaust cases, and a question that has troubled me since it arose in a very interesting conversation with Franziska Oehm some years ago. Over the past decade, German prosecutors have tried a series of former Nazis for their complicity in the Holocaust, from a camp guard who assisted without directly participating in murder, to the accountant at Auschwitz.[18] These men are in their nineties now, raising intriguing theoretical problems about the justification for punishment of defendants that have so little of their lives left to live for events that took place so long ago.[19] Based on preliminary reflections, I am tempted to think that these cases are both defensible and important. Nonetheless, I wonder if there is not something slightly bizarre, perhaps backwards, in the spectacle of prosecuting individual former Nazis as accomplices in the Holocaust for making what are, relative to corporations and their representatives, causally minor contributions. In fact, when I first saw the subtitle to Bilsky’s great book—Unfinished Business—I anticipated that she was referencing exactly this curious anomaly. So despite the important shortcomings of criminal trials Bilsky very fairly points to, I wonder if jarring incongruities of this sort also militate against washing one’s hands of criminal accountability entirely, even within the harrowing set of cases she focuses on.

Overall, I was excited by Bilsky’s occasional use of pragmatism within the book, as well as her lengthy discussion of transitional justice, which I read as adopting philosophical pragmatism as its core ethos. Obviously, any discussion of ideal types in discussions about corporate accountability will need to be highly sensitive to the political realities that ensnare these cases everywhere, and recognize that disaffected communities in Africa, say, are often likely to view any avenue for meaningful redress as an unexpected luxury. Nevertheless, I’m adamant that the enormous insights Bilsky’s excellent book offers are of vital importance in designing accountability mechanisms that fit local contexts as part of transitional justice initiatives, and potentially, in augmenting whatever possibility exists for simultaneously seeking restitution together with moral condemnation. I wholeheartedly recommend this important book to all who are interested in the relationship between commerce, atrocity and accountability, and thank Leora Bilsky for participating in this scholarly exchange.

[1] For a database of international cases separated by incident, see here.

[2] See section entitled Doctrinal Infidelity, in The Turn to Corporate Responsibility for International Crimes: Transcending the Alien Tort Statute.

[3] See, for example, The Historical Significance of the Kouwenhoven Trial.

[4] I wrote a short, non-opinionated overview of this theory in Complicity. See also the series of criminal law theorists discussing the interpretation of complicity in the ICC Statute in Complicity in the ICC Statute.

[5] See section entitled From Custom to Legislation, in The Turn to Corporate Responsibility for International Crimes: Transcending the Alien Tort Statute.

[6] See, A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity.

[7] Ibid.

[8] James G. Stewart, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, 47 N. Y. Univ. J. Int. Law Polit. 121–206, 179 (2014).

[9] Douglas N. Husak, Over Criminalization 186 (2008).

[10] Ibid.

[11] George Fletcher, The Grammar of Criminal Law 61 (2007).

[12] Dan M Kahan, Social Meaning and the Economic Analysis of Crime, 27 J. Legal Stud. 609, 619 (1998) (criticizing economic analyses of corporate criminal liability as inappropriately leaving out the social meaning of punishment).

[13] Coffee, John C., Jr, Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B. U. L. REV. 193–246, 230 (1991); Gerard E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct, 60 Law and Contemp. Probs. 23.

[14] One of the concerns is that focusing on just corporations would allow individuals to use corporations as disposable shells that inhibit individual responsibility, whereas focusing on individuals alone could lead corporations to scapegoat dispensable representatives. See, A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity.

[15] Samuel W. Buell, Potentially Perverse Effects of Corporate Civil Liability, in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, supra note 88, at 87, 88.

[16] Harry V. Ball & Lawrence M. Friedman, The Use of Criminal Sanctions in the Enforcement of Economic Legislation: A Sociological View, 17 Stanford Law Review 197, 215 (1965).

[17] Mariano-Florentino Cuéllar, The Institutional Logic of Preventive Crime, in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, at 143.

[18] See, for example, Trial of Reinhold Hanning, Ex-Auschwitz Guard, Opens in Germany, online, February 11, 2016, http://www.nytimes.com/2016/02/12/world/europe/reinhold-hanning-trial-auschwitz.html?_r=0; Kate Connolly & Reuters, Former Auschwitz guard Oskar Gröning jailed over mass murder, The Guardian, July 15, 2015, https://www.theguardian.com/world/2015/jul/15/auschwitz-guard-oskar-groening-jailed-over-mass-murder (last visited Jan 28, 2019).

[19] The most striking of these cases involves prosecuting an alleged accomplice in Nazi crimes in youth court even though he is now 94 years old. See Reuters, Nazi war crimes suspect, 94, faces German youth court trial, The Guardian, September 21, 2018, https://www.theguardian.com/world/2018/sep/21/nazi-war-crimes-suspect-faces-trial-german-youth-court (last visited Jan 28, 2019).

Corporate Accountability, International Criminal Justice, Theory of Criminal Law

New Symposium: Leora Bilsky’s, The Holocaust, Corporations and the Law: Unfinished Business

I’m very excited to host a discussion of Leora Bilsky’s outstanding book entitled The Holocaust, Corporations, and the Law: Unfinished Business (Michigan, 2017). As per usual, I will avoid an extensive introduction to the book, especially because the text contains a very helpful synopsis that I paste below. I’m also thrilled to host an excellent array of scholars (see a list here), who all work on these issues from different vantage points, in the hope of stimulating helpful creative reflections on this important new text.  

Here then, is the publisher’s summation of Bilsky’s argument:  

The Holocaust, Corporations, and the Law explores the challenge posed by the Holocaust to legal and political thought by examining the multiple issues raised by the restitution class actions brought against Swiss banks and German corporations before American federal courts in the 1990s. Prior to these lawsuits, the legal treatment of the Holocaust had been dominated by criminal law and its individualistic assumptions and had consistently failed to relate to the structural aspects of Nazi crimes, which relied on a modern bureaucratic apparatus and the cooperation of the private sector. Although the class action suits of the 1990s were settled for unprecedented amounts of money, the defendants did not formally assume any legal responsibility. Thus the lawsuits were bitterly criticized by lawyers for betraying justice and by historians for distorting history. 

Leora Bilsky argues that class action litigation and settlement offer a mode of accountability that is well-suited to addressing the bureaucratic nature of business involvement in atrocities. Engaging critically with contemporary debates about corporate responsibility for human rights violations and assumptions about what constitutes “law,” she argues for the need to design processes that would make multinational corporations accountable in the era of globalization. She examines the implications of this new legal constellation for transitional justice and the relationship between law and history, as well as for community and representation in a postnational world. In this way, her novel interpretation of the restitution lawsuits not only adds an important dimension to the study of Holocaust trials, but also makes an innovative contribution to broader and pressing contemporary legal and political debates. In an era when corporations are ever more powerful (and international in their reach), Bilsky’s arguments will attract attention beyond those interested in the Holocaust and its long shadow. 

Leora Bilsky is professor of law and director of the Minerva Center for Human Rights at Tel Aviv University. 

Human Rights, Moral Philosophy

New Symposium – John Tasioulas’ Minimum Core Obligations in Economic, Cultural and Social Rights

I am four-fold excited to introduce this new mini-symposium featuring John Tasioulas’ groundbreaking work on “minimum core obligations” in Economic, Social and Cultural Rights.

First, I’m excited to debate Tasioulas’ two important new reports for the World Bank:

  • Minimum Core Obligations: Human Rights in the Here and Now (see here)

and

  • The Minimum Core of the Human Right to Health (see here).

Both are important contributions to the human rights field. In the former report, Tasioulas provides a sophisticated but accessible philosophical exploration of minimum core obligations, arguing that they represent a sub-set of Economic, Social and Cultural Rights that must be complied with immediately, thereby bypassing the doctrine of “progressive realization” that is a particular hallmark of the Convention on Economic, Social and Cultural Rights. In the latter report, he applies insights drawn from his initial conceptual work to the human right to health. In applying theory to this right, he synthesizes law and practice from international and regional systems, undertakes a comparative analysis of national law from seven states, then folds these principles into ideas about sustainable development goals and indicators constructed to measure their realization. For more detailed overviews, I direct readers to the Executive Summary and Introduction sections of each report.

Second, I am especially excited to host this symposium because it brings together some of the leading theorists and practitioners in the world. All of the eight commentators who have kindly agreed to respond to Tasioulas’ reports are eminent experts in different fields. All approach the problem from various disciplinary vantage points, providing us with a rich tapestry of perspectives on what is undoubtedly a central problem for modern conceptions of global justice. Although I will not provide more information about all the commentators for this symposium here, I do want to single out two, who I am especially honored to host. Martha Nussbaum’s work, first on the capabilities approach then on the relationship between emotions and justice, is a major influence on my thinking. I attempted to entice her to participate in an earlier symposium, to which she politely told me that she does not write for blogs, so I am especially privileged to host her in this instance. Similarly, Michael Kirby enjoys a reputation for being one of Australia’s leading judges ever and his work in human rights was a powerful inspiration to me when I first became interested in this area. I’m thrilled to host these and all the other outstanding commentators.

Third, I am particularly enthusiastic about the symbiosis between theory and practice this symposium promotes. In the blog’s manifesto, I set out how “although the blog will seek to engage with theoretical questions, it will also continuously attempt to create symbiosis with practice in an attempt to ensure that practice is defensible and theory is informed.” The aspiration is evident at multiple levels in this symposium. It is reflected, for instance, in the contributions of leading philosophers and a highly-regarded judge, by the transition from philosophy to application in the two reports, and in the practical orientation of the conceptual work for the World Bank. The symbiosis is also enabled by the multi-disciplinary perspective of the various commentators. The outstanding cast of scholars who offer criticisms of the work come from philosophy, law, medicine and international relations. I remain excited by the underlying method as well as the constructive disagreement it has generated, so hope that this type of exchange stimulates others substantively as well as methodologically.

Fourth, I am pleased that this debate contributes, perhaps implicitly, to wider discussions about the adequacy of human rights as responses to massive contemporary problems. For the longest time, human rights projected an image of political agnosticism, promising to act as a thin set of standards that preserved human dignity while allowing diverse forms of culture, religion, and political organisation to flourish around them. Increasingly, that image is disputed, in large part because human rights are perceived as inadequate responses to global inequality. If human rights did unintentionally become part of the problem in global injustice, however, this reality was likely at least partially the product of an over-emphasis on Civil and Political Rights. So, a stronger engagement with the often-times overshadowed Economic, Social and Cultural variants of international human rights promises to inform wider scholarly debates about the salience of the paradigm.

In all these respects, I am particularly excited to host what I believe is an important contribution to the field.

Comparative Criminal Law, International Criminal Justice

Legal Pluralism and Justice: A Reply to Critics

This symposium has embodied everything I sought to promote in establishing this blog. First and foremost, it has housed frank but respectful criticism. In our piece The Ahistoricism of Legal Pluralism in International Criminal Law, we saw an implicit deference to extant law in prescriptive accounts of Global Legal Pluralism that we did not think could be justified normatively. In pointing this out, we spent much time discussing how to frame the argument so as to communicate respect for a set of excellent scholars who had done so much to inform our thinking about these problems, then sought out their criticism once our piece was finally complete as a mark of this respect. In turn, they have offered equally courteous and frank responses to our arguments. In all, I am so pleased that the exercise has conveyed a commitment to the primacy of ideas, a recognition of the great intellectual value of critique, and an inclination on all our parts to metabolize whatever impersonal emotions arise from scrutiny. I hope this reply registers in that spirit and promotes that scholarly culture.

I begin by offering a set of clarifications, which I suspect the piece itself should have made clearer. Ours was never a total assault on Legal Pluralism. I continue to believe that it plays a crucial role in a number of areas, in particular through its ability to undermine what James Sákéj Youngblood Henderson calls “the colonial contrived superiority of European law.”[1] Anyone with even the most rudimentary understanding of law’s role in colonialism will know that withholding recognition of other pre-existing normative systems was a key element in this contrived superiority. In this light, Legal Pluralism is particularly important because it reasserts the authority of jurisgenerative communities other than the colonizing state while undermining rigid, hegemonic conceptions of what it means to have law. In many respects, this point explains our focus on state-made criminal law, even though this is deliberately a caricature of Legal Pluralism, as Paul Berman correctly points out. Nonetheless, as I will explain, our caricature eschews even more difficult problems for Global Legal Pluralism in an attempt to focus on a core of state law that Global Legal Pluralism’s deference to the legal requires it to embrace.

Reduced to its essence, our article was largely an attack on law as a necessary repository of moral, political, epistemic or cultural variation a cosmopolitan vision of global justice might seek to promote. Thus, we argued that Legal Pluralism’s method did not count against universal norms in the ways it claimed, in large part because it overvalued law. This point warrants emphasis. We do not argue that universal norms always solve the problems we point to across the board, which would be patently absurd. Instead, we mean to reverse the argumentative onus and place the burden onto the prescriptive account of Global Legal Pluralism, insisting that just managing whatever we consider to be law globally seems overly deferential to law. Our brief histories were, in the grand scheme of things, relatively superficial attempts to “scratch the surface” to see what lies beneath law. Having peered below the surface very briefly, we sought to point out how Legal Pluralism was not necessarily counter-hegemonic, since for a large set of what would constitute law, the hegemon had beat Legal Pluralism to the punch by imposing the law in the first place. Consequently, our aim was to warn that in prescriptive guise, the concept risked entrenching unjust norms.

We were, of course, conscious that history would never be able to “distinguish this superficial transplantation of domestic criminal law into the international realm, from potentially legitimate and useful reliance on national doctrines,” as Neha Jain rightly points out. Instead, we argued that the history of much of the world’s criminal law doctrine, both national and international, should undermine confidence that Legal Pluralism was necessarily respectful of genuine cultural variation, such that it could ground some concept of justice. Our first example of Argentine criminal law procedure operated as a null hypothesis where, by “scratching the surface,” we quickly found evidence of autonomous domestic ownership of and influence over criminal law doctrine. But in all our other examples, we found nothing similar. Far from stating that there was no congruence between local values and criminal law doctrine in any of these states, our argument was merely that these histories suggest real reason for caution against an idea that Legal Pluralism is, without more, worthy of veneration. We also felt that generic attempts to circumscribe Legal Pluralism’s over-enthusiasm for law, perhaps by citing human rights as an exception, came too late in the day because too much was already smuggled in through the initial deference to whatever law might be at the descriptive stage.

To develop this point, let me begin by recounting the descriptive and prescriptive variants of Legal Pluralism, since Global Legal Pluralism depends on both. Initially, Legal Pluralism was purely descriptive, tracing its origins to anthropological inquiries into the interactions between displaced social orders and formal colonial law. To the extent that the field drew on normative ideas within this descriptive mode, the need for this engagement largely grew out of challenges to methodology; i.e. objections to what should figure as “law” within the wider sociological inquiry. I circle back to this difficulty with defining law momentarily, since I have come to believe that it must be most acute in international criminal justice. For now, I again point to a major prescriptive shift for Legal Pluralism, where many scholars have begun to argue that diversity of social phenomena we are prepared to call law is not only empirically observable, but that this state of affairs is normatively desirable for the world. Global Legal Pluralism necessarily adopts both elements, first accepting a wide array of norms as constituting law, then recommending various institutional and procedural mechanisms for managing their interface. The caricature of Legal Pluralism the article offers was an attempt to hive off some of the most difficult problems at the descriptive stage, to highlight conceptual concerns with the transition from a descriptive to a prescriptive mode.

To explain this, let me start by agreeing wholeheartedly with Mireille Delmas-Marty’s eloquent statement that “choosing an exclusively state-centric perspective while the world is moving, the authors risk confining themselves to a state-centric, modern representation of LP which identifies with the rights of the state and makes the concept necessarily oxymoronic.” A theory of Legal Pluralism focused on state law alone would be oxymoronic. As our essay highlighted, “an over-emphasis on domestic criminal doctrine is anathema to true pluralism, whose very program involves looking beyond positivistic state-centered law.” Nevertheless, focusing on a segment of a field to elucidate conceptual concerns strikes me as entirely defensible. In our piece, we focused our analysis on state-centered criminal law in an attempt to avoid the wider jurisprudential problem involved in deciding what constitutes law at all. As Brian Tamanaha and many others have pointed out, that problem is a perennial thorn in Legal Pluralism’s side,[2] so we sought to bypass the conceptual impasse by criticizing a segment of the legal we believed was unambiguously so. I have since come to think that the positivistic assumption that informed this method was unjustifiable on our part, but in ways that radically strengthen our argument not detract from it.

Understandably, the rules crafted to bring about the atrocities international criminal justice seeks to address are the very subject matter legal theorists use to debate the nature of law. Since completing the paper, it has dawned on me that whether Nazi law was law at all is the paradigmatic debate for a large segment of jurisprudence; indeed the question goes to the heart of the relationship between law and morality and therefore operates as something of an acid test for so many aspects of legal theory. To cite what is probably the most celebrated example (in the Anglophone tradition), the Hart/Fuller debate is a long and in places heated dispute between the positivist tradition that would see law as identified through social facts quite apart from its moral value, and a natural law tradition that was shocked by the positivists’ willingness to confer normativity on a set of legislative enactments in Nazi Germany that were clearly morally perverse.[3] In many respects, the histories we discuss in the paper replicate these dilemmas. It stands to reason, therefore, that much of what we treat as law in the article might not be at all. This thought strikes me as very significant: it suggests that international criminal justice is not just a pleasant illustration of the normative interactions Global Legal Pluralism seeks to understand and manage. The field is at the heart of what Global Legal Pluralism means.

So, let me circle back to our caricature, showing how the natural law critique of our positivistic assumption only magnifies the concerns we raise. In our example of the inchoate crime of association de malfaiteurs in the Democratic Republic of Congo (see here, pp 33-41), we sought out a modern illustration of abhorrent criminal law doctrine in national systems comparable to the law “that allowed Joseph Stalin to sign 3,167 judicially-imposed death sentences in a single day, and Adolf Hitler to make being Jewish a criminal offence.” Our assumption, which I now think is highly disputable, was that this forcibly imposed inchoate crime of French then Belgian origins was unequivocally law; it survived the sieving off of law from religious, moral and social norms on the one hand, while distinguishing itself from the full range of non-obligatory propositions on the other. Once parsed out in this way, association de malfaiteurs was a law that both descriptive and descriptive theories of Legal Pluralism had to take seriously. Our project was to question whether Legal Pluralism should take it seriously at all, based only on its ability to pass this formalistic test. We used the apparent misalignment between local values and legal doctrine as our foil.

But Fuller, I suspect, would have doubted that association de malfaiteurs was law at all, then rebuked our positivistic attempt to avoid thorny jurisprudential problems as failed. But if our caricature fails for these reasons, it does so in ways that only galvanize our deeper point, namely, that “doctrinal pluralism is unsafe as a measure of diverse values and interests in the international community”. Perhaps Legal Pluralism is only about managing just law, such that the concept is instantly insulated from our criticism, but I see no evidence of this position in the literature with which I am familiar, and it would mark a sea-change for thinking about these problems. Then, to follow this jurisprudential line one step further in abstraction, the question becomes what the relationship is between Legal Pluralism and Justice. And here too, I now see this theme as a central but tacit pre-occupation in our paper as well as the literature more broadly. It is this unstated concern for justice, for instance, that leads scholars like Martti Koskenniemi to warn that Legal Pluralism “ceases to pose demands on the world;”[4] and Boaventura de Sousa Santos to assert that “there is nothing inherently good, progressive, or emancipatory about Legal Pluralism.”[5]

Justice is also useful in responding to criticisms based on the Rule of Law. In employing a Rule of Law frame, Kevin Davis’ excellent and thought-provoking critique of our article argues that “[d]octrines that confirm to people’s expectations are desirable, all else being equal, because they contribute to legal certainty and avoid situations that are tantamount to ex post facto lawmaking.” While there is certainly weight to this criticism, I am not sure how it squares with other principles espoused in the Rule of Law. As Waldron points out, avoiding contradictions in the law is also one of Fuller’s eight elements in the internal morality of law, and others like Dicey viewed legal equality as indispensable too.[6] Universality appears better able to achieve these competing values. But more fundamentally, as critical traditions from Feminisim to Marxism teach us, Rule of Law arguments are all vulnerable to deeper normative commitments that take some notion(s) of justice as the paramount goal. To offer an illustration from our paper, even if we do assign legal certainty primacy as an Rule of Law value, I am doubtful that it could ever ground a norm like association de malfaiteurs in the Congo. I hold this view since a norm imposed by force as part of a brutal campaign of subjugation and plunder, which operates to inhibit political participation and freedom of expression now, seems plainly unjust.

Markus Dubber’s response takes us down a slightly different track on this justice path, where he argues that “[p]luralistic international criminal law thus becomes international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy”, and then later that, “[i]ncapable of facing its legitimacy challenge head-on, international criminal law instead makes do with professions of concern about ‘pluralism’.” These types of normative concerns are slightly different to those that animated our paper, but they also play off the relationship between law and a conception of justice. So, while I view Legal Pluralism as a helpful concept to ward off “the colonial contrived superiority of European law” and agree with Sasha Greenawalt that, descriptively speaking, Legal Pluralism is inherent, I remain convinced that history is a useful mechanism to illustrate the concept’s shortcomings as a guarantor of justice. I have also become convinced that, far from raising questions that are peripheral to Global Legal Pluralism, international criminal justice poses problems at the concept’s very heart.

I am so thankful for all of the excellent criticism we have received, which has enriched my thinking considerably. I hope that some of the foregoing is useful to others as they grapple with problems of law in the global order.

 

[1] James (Sákéj) Youngblood Henderson, Postcolonial Indigenous Legal Consciousness, 1 Indig. Law J., 2 (2002), http://jps.library.utoronto.ca/index.php/ilj/article/download/27710 (last visited Apr 19, 2018).

[2] Brian Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney L. Rev. 375, 375 (2008).

[3] H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. Law Rev. 593–629 (1958); Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. Law Rev. 630–672 (1958).

[4] Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Mod. L. Rev. 1, 23 (2007).

[5] Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation 89 (2002).

[6] Jeremy Waldron, Legal Pluralism and the Contrast Between Hart’s Jurisprudence and Fuller’s, in The Hart-Fuller Debate in the Twenty-First Century (Peter Cane ed., 2010).

Comparative Criminal Law, International Criminal Justice, Theory of Criminal Law

New Symposium: The Ahistoricism of Legal Pluralism in International Criminal Justice

I am very pleased to host a new mini-symposium on a long article I co-authored with Asad Kiyani, entitled the Ahistoricism of Legal Pluralism in International Criminal Justice. Because of length constraints, the American Journal of Comparative Law could only publish a shorter version of the piece, so with their blessing, Asad and I have decided to publish the longer version online and invite a series of excellent scholars to debate this longer version as part of this blog’s commitment to curating respectful critique of new scholarship. The longer version we discuss here contains a fourth part focused on criminal law procedure in Argentina and post WWI trials in Europe. In this additional part, we use these two illustrations, first as a counterexample that acts as a null hypothesis for the remainder of our piece, then as a qualification of this initial counterexample. We are thrilled to have an eclectic group of scholars who work on these issues from different disciplinary backgrounds criticize the piece, and hope that the dialogue spawns further debate within legal pluralism as well as international criminal justice. The article’s abstract follows: 

International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal laws that inform ICL leads to (a) the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural and political values; and (b) in the limited instances where criminal law doctrine does reflect underlying societal values, an overly general assumption that respecting the various embodiments of this law is best for ICL. These oversights result in important normative distortions, with major implications for the field’s self-image, function and legitimacy. In particular, scholars and courts overlook that much criminal law doctrine globally is the result of either a colonial imposition or an “unsuccessful” legal transplant, as well as historical examples where respecting pre-existing doctrinal arrangements undermined the value of postwar trials on any semi-defensible measure. In this Article, we revisit a cross-section of this missing history to contribute to both Legal Pluralism and ICL. For the former, we demonstrate that there is nothing inherently good about Legal Pluralism, and that in some instances, a shift from its descriptive origins into a more prescriptive form risks condoning illegitimate or dysfunctional law. For ICL, our historiography shows how partiality is embedded in the very substance of ICL doctrine, beyond just the politics of its enforcement. At one level, this realization opens up the possibility of renegotiating a universal ICL that, at least in certain circumstances, is actually more plural in terms of values and interests than doctrinal pluralism (although the dangers of power masquerading as universalism are also profound). At another, it suggests that institutions capable of trying international crimes need to do far more to step away from the ugly legal histories they have inherited. 

Before we begin the mini-symposium, a word from behind the scenes. First, this piece resulted from an excellent collaboration between Asad and I. As the article attests, Asad and I were very equally involved in all facets of its production, including design, research, (re)writing, editing and workshopping. The collaboration was a great pleasure, from which I learned a lot. In terms of process, this project consumed a tremendous amount of energy. On more than one occasion, we concluded that we had to rewrite large sections. The history of the criminal law in entire regions of the world was excised with the stroke of a pen, entire subject-areas were calved off after more than one person said we had two papers here not one, and several times, we concluded that despite already having spent years on it, we had to begin new research on different periods and legal systems. I think I speak for Asad as well when I say that we learned a great deal through this project and are very pleased to see it completed and debated by so many outstanding scholars whose work we admire. 

Human Rights, International Criminal Justice, Moral Philosophy

Compartmentalizing Transitional Justice

In August this year, three French investigating judges were appointed to assess allegations that the Bank BNP Paribas was complicit in the Rwandan Genocide. According to the Financial Times, “[t]he bank is accused of transferring more than $1.3m of funds used to finance the purchase of 80 tonnes of weapons by a Rwandan general that allegedly broke a UN embargo and helped to arm the perpetrators of the country’s genocide.” Because much of my scholarly engagement with international criminal justice has focused on these sorts of allegations, for better or worse, I tend to assess normative accounts of the field with cases like this in mind. In what follows, I use the BNP Paribas case as a theme in commenting on Colleen Murphy’s excellent book, entitled The Philosophical Foundations of Transitional Justice (CUP, 2017). In part, I use this frame to shed light on an element of atrocity’s etiology that, in popular imagination at least, still seems shrouded in denial. More importantly for present purposes, though, I wonder if cases involving business participation in atrocity might offer a slightly different vantage point from which to evaluate conceptual models of transitional justice.

Murphy’s insightful account of the field points to four different features of societies in transition that make justice claims in these contexts a breed apart from those that apply in stable democracies. Contrary to Posner and Vermeule, Murphy eloquently argues that transitional justice is not like normal justice; it is qualitatively different because of the fundamentally distinct circumstances that constitute periods of political transition. As she explores in great depth, these surrounding political circumstances include: (a) pervasive structural inequality; (b) normalized collective and political wrongdoing; (c) serious existential uncertainty; and (d) fundamental uncertainty about authority. The combination of these circumstances in transitional contexts means that ordinary ideas of retribution, corrective justice, and restitution do not cater to the needs of affected societies. The misfit with these usual concepts of justice is so acute that we must craft an entirely new, distinct brand of justice that follows its own logic and answers to its own self-consciously defined first principles.

There is much I am attracted to in this approach and its brilliant execution. Let me start by pointing to the project’s apparent grounding in philosophical pragmatism. Surely, concepts of justice are context-sensitive. Undoubtedly, a major part of the problem for the field lies in avoiding blunt universalisms that do further violence to societies struggling to shed the heavy yoke of mass violence. At the same time, Murphy is clearly aware of the dangers of venerating the local at all costs; she astutely highlights the difficulties with over-correcting in favor of the local where she observes that “[r]adical contextualism can be just as problematic as an un-nuanced universalism.” (p. 81). Thus, transitional justice is philosophically pragmatic (by the by, I use this tradition to think about corporate responsibility here). Yet, if the concept of justice in transitional justice will always be context-sensitive, this leaves me wondering about the borders between the local and universal in Murphy’s self-contained concept of transitional justice, how this compartmentalized approach to justice will interface with others in a global society, and whether modulations in type of actor will affect the theory.

To begin, I am not entirely clear whether the BNP Paribas case falls within the bounds of transitional justice, on Murphy’s thoughtful definition or any other. On the one hand, it makes sense to treat the case as an element of transitional justice, assessing it against the very insightful standards Murphy has articulated. Apart from the alleged causal link to the genocide, our ability to alleviate the four characteristics that are particular to transitional societies is probably heavily dependent on transforming business—absent global economic revolution, post-conflict societies desperately need direct foreign investment that makes its way to people in survival economies instead of fuelling kleptocratic governments, corrupt patronage networks and brutal armed groups. On the other hand though, foreign economic actors are not clearly part and parcel of the affected society, precisely because they are outsiders culturally and geographically. The primary community of interest in discussing the moral legitimacy of the BNP Paribas case is likely French, not Rwandan, so the conceptual standards we would employ to scrutinize the case’s conceptual propriety lie beyond the special realm of transitional justice.

If the borders of a siloed concept of transitional justice are slightly unclear, the foregoing leads me to wonder about whether there is a geographical element to this theory. Are the principles of justice that govern transitional justice necessarily linked to features of a discrete, local political order? In other words, Murphy’s argument skillfully implies a plurality of justice (not just law), but I wonder if the different compartments of justice we create by disaggregating the concept aren’t overly geographically bound. We rightly think of Gacaca, the Rwanda Tribunal, and a host of other institutions and programs undertaken in Rwanda as falling within the transitional justice paradigm, in large part because the four characteristics that constitute the transitional paradigm stem from a single society reeling after mass violence within a single country. But importantly, the causal factors that gave rise to these atrocities were not geographically constrained in the same way. Foreign businesses in non-transitional societies allegedly contributed to the Rwandan Genocide too. So, which concept of justice—which set of principles—will govern the BNP Paribas case?

A causal account of atrocity might also suggest different rationale for justice. In her helpful discussion, for instance, Murphy points out that retribution does not easily match the needs of transitional societies since it assumes that wrongdoing is “deviant, individual and personal.” (p. 59). To focus just on deviance, the argument is that accountability is usually predicated on infrequent transgressions within an otherwise compliant society, so the retributive model collapses under the weight of widespread, normalized mass violence. Personally, I have always harbored vague misgivings about this argument, since it seems to assume a very temporally static, geographically bound notion of deviance (crimes in Nazi Germany were normalized at the time but deviant by even local standards measured before and after the war, and similarly, crimes in Rwanda were normalized there in 1994, but judged deviant by a thin concept of global community even at the time). Both these intuitions are very disputable, but there is another that business cases help bring into sharper relief—perhaps the actions of a particular foreign company implicated in atrocity were highly deviant even when violence was normalized for local citizens?

So, if the validity of justifications for punishment turn on which justice paradigm we choose and the type of actor implicated, these realities invite a wider set of reflections of how a compartmentalized concept of transitional justice interfaces with others in a globalized society. Here too, I wonder if the self-contained account is water-tight. For example, if globalization was born in colonialism, and actions of many foreign companies represent modern iterations of longstanding commercial practices consummated there, is there not a risk that a state-centric, geographically grounded concept of transitional justice will overlook the long history of foreign actors fomenting bloodshed for profit that at least dates to Leopold in the Congo? As for the present, what can we say about spikes in global demand for coltan for cellphones, tin for circuit boards and now cobalt for car batteries playing an important causal role in bringing about the mass violence transitional justice exists to remedy? Is there a danger that the very structure of transitional justice will leave these out?

Perhaps even the element of “transition” lends itself to this concern. Murphy rightly cites to a literature that queries whether transition matters to transitional justice, but cases like BNP Paribas add a new angle to those perspectives. In a conversation I had recently with the leading Argentine prosecutor of dictatorship-era crimes, he explained that as far as he could tell, the transition only implicated a particular cadre of political elites: “as for the businesses that supported the dictatorship, they remained the same before and after the transition.” If corporations are merely auxiliary to brutal authoritarian rule, this commercial continuity across political transition is probably less problematic, but if businesses enjoy a major share of power in affected communities, political regime change may not constitute a transition sufficient to move us into an analytically separate justice paradigm. Thus, for the businesspeople, it can be unclear what moral work the transition does in militating for or against their accountability.

I hope some of the foregoing provides useful food for thought, albeit from a relatively non-traditional vantage point. Without doubt, Professor Murphy’s rich and important book will animate discussions such as these for decades to come.

Human Rights, International Criminal Justice, Moral Philosophy

New Symposium: The Conceptual Foundations of Transitional Justice

Colleen Murphy has written an excellent and important book, entitled The Conceptual Foundations of Transitional Justice (CUP, 2017), that a distinguished set of scholars from a range of disciplines begins to discuss. The rise of Transitional Justice as a distinct field over the past several decades has enjoyed much excellent literature, but Colleen Murphy’s new book is among the first to offer a dense philosophical account of the field. Necessarily, this account will hold much of interest to scholars from philosophy, but it will also have implications for international lawyers, criminal law theorists, international criminal lawyers and human rights scholars. This blog also seeks to showcase groundbreaking, normatively creative new works that reach a broad array of scholars and practitioners alike, and this book certainly meets that mark. The Conceptual Foundations of Transitional Justice will, no doubt, be a major contribution to the field and discussed for decades to come, so it is a great pleasure to begin those conversations with an expert cast of highly accomplished scholars and leading practitioners.  

I will not provide a detailed overview of the book except to highlight important themes.  In Chapter 1, Murphy starts be plotting the circumstances of transitional justice, which she argues demonstrate four elements. Justice in transitional societies is different in type because these societies experience all of the following: (a) pervasive structural inequality; (b) normalized collective and political wrongdoing; (c) serious existential uncertainty; and (d) fundamental uncertainty about authority. In Chapter 2, Murphy argues that ordinary ideas about retribution, corrective justice, and restitution do not cater to the needs of societies undergoing transition according to her definition. These segments of the book are richly informative about both the political context of transitional society, and their intersection with philosophical bases for different theories of justice. The resulting account rejects Posner and Vermeule’s notion that Transitional Justice is just like ordinary justice, positing the existence of a conceptually self-contained set of principles governing the field. In Chapter 3, Murphy provides a substantive account of societal transformation, drawing on relational transformation, rule of law and relational capacities. In Chapter 4, she highlights constraints on this transformation, based on whether Transitional Justice initiatives are “intrinsically fitting or appropriate as a response to victims or perpetrations of wrongdoing.”  

I am excited to host a range of leading experts from a variety of fields.  Roger Duthie and David Tolbert are the Director of Research and President of the International Center for Transitional Justice respectively, an organization which works with victims, civil society, and national and international organizations within countries that have endured massive human rights abuses. Duthie and Tolbert provide fascinating commentary on the book through the lens of the ICTJ’s active work.  Laurel Fletcher directs the International Human Rights Law Clinic at UC Berkeley, School of Law, adopting an interdisciplinary, practical approach to human rights issues.  Fletcher’s contribution speaks to the lack of theoretical grounding in the field of transitional justice up until now, and what impact the adoption of a moral philosophy might have.  The work of Nir Eisikovits of University of Massachusetts Boston focuses on philosophy and applied ethics, in particular the ethics of war and political philosophy.  He describes Murphy’s book as “the best, most ambitious philosophical account of transitional justice” he has ever read and points to important implications arising from it. And last but not least, Steven Ratner at University of Michigan Law School focuses on Murphy’s call for “an original methodological hook for analyzing the justice of a state’s transitional justice choices,” exploring the legal ramifications of Murphy’s theories.  My own comments offer thoughts about compartmentalizing transitional justice, using cases against foreign businesses as a vantage point.  

As an ensemble, I hope the resulting body of perspectives showcases this important work and offers fresh ideas for future thinking.  

Comparative Criminal Law, International Criminal Justice, Theory of Criminal Law

An Open Invitation to Further Debate (Instead of an Amicus Brief)

In organizing this mini-symposium, I sought to engage expert reactions to my paper from a range of legal systems that have not featured in debates about forms of attribution in ICL. When international courts and tribunals construct(ed) these forms of attribution, they initially drew heavily on Anglo-American jurisdictions, adopting concepts like superior responsibility and joint criminal enterprise from them. Then, judges at the ICC announced a major swing towards notions of criminal responsibility derived from German criminal law, including co-perpetration, theories of control to distinguish perpetration from complicity, indirect co-perpetration and even perpetration through an organization to treat those doing the bloodletting and their masterminds as perpetrators. Throughout this process, nobody appears to have asked experts in systems that adopt a unitary theory of perpetration, which dispenses with all these doctrines, to reflect on the law within their own countries and its potential as a solution to recurrent problems with blame attribution in ICL. This silence has been quite strange, especially when the Nuremberg Tribunal applied a unitary theory of perpetration and several modern ICL judges have argued that the current complexity is unnecessary.

This mini-symposium has broken new ground in this regard, in ways that I hope sets the scene for further scholarly research and debate. I was especially grateful that a range of criminal law theorists from each of the countries I write about in the paper agreed to criticize the paper, and that some very prominent practitioners joined the fray to offer their reflections too. As is evident from this blog’s manifesto, I deliberately seek to create dialogue between theorists and practitioners, so I am thrilled that this discussion has involved members of both groups. Some of the feedback I received was striking—during the course of this online symposium, a senior prosecutor at one international court and a defense counsel for a well-known defendant at another emailed me saying they wholeheartedly agree with the need for a unitary theory. The latter even suggested that I file an amicus brief calling on one particular tribunal to revert to the unitary theory of perpetration adopted at Nuremberg. I politely declined, but decided to open up this final post to whomever wanted to share an opinion one way or the other, provided that it respected the strictures of the blog’s manifesto.

Instead of defending the unitary theory of perpetration or either of the article’s I’ve written about it (see here and here) in this post, I use this opportunity to set the scene for an open online discussion at the base of this post by reiterating what a unitary theory is and by summarizing the excellent posts that appeared in this symposium.

To begin, let me again highlight the three main variations of the unitary theory of perpetration to avoid commentators speaking past one another. The unitary theory of perpetration comes in three principal varieties, although some might contest whether the third species really fits within the genus. The first, known as a pure unitary theory, treats a causal contribution to a crime coupled with the requisite blameworthy moral choice announced in the criminal offence charges as necessary and sufficient elements of responsibility (excuses and justifications aside). On this view, the various forms of participation that exist in current ICL (aiding and abetting, JCE, co-perpetration etc.) are stripped of their autonomous existence and folded into a more capacious single notion of attribution. So, instead of attempting to manufacture fine-tuned rules that define JCE, aiding or any other form of participation in such and such a manner, a unitary theory of perpetration places them all in a big pot, then boils them all down to their shared normative essence. Through this distillation, blame attribution involves deciding whether accused X is responsible for crime Y based on settled core principles that pay no regard to the form participation takes, leaving their moral significance to be assessed post hoc by judges at the sentencing phase of a trial.

The second variant provides more detail without compromising the unitary theory’s core commitments. Known as a functional unitary theory, this iteration provides more guidance while insisting that causation and the mental elements announced within the criminal offense charged are necessary and sufficient bases for establishing wrongdoing across all forms of participation. To ensure that would-be criminals are sufficiently forewarned of their exposure to criminal law penalties, a number of states adopt this variant of a unitary concept—the general part of a criminal code or legislation articulates the different forms of causal connections that might apply within a unitary framework. In this sense, responsibility might involve carrying out the offence personally, instructing others to do so, providing necessary assistance, or furnishing assistance that is readily available elsewhere. Each of these forms of causation is announced within the law so as to inform the public of how they might attract criminal responsibility, but the underlying objective and subjective elements beneath these descriptions remain the same.

Third, some argue that subjecting accomplices to the same range of punishment as perpetrators also constitutes a weak type of unitary theory. In Germany (and the many jurisdictions that follow its example), aiders and abettors are sentenced to a maximum of three quarters of the penalty for the offense they facilitate, whereas the sentence for instigators is taken from the same sentencing range as principals. To a large extent, this discrepancy in maximum sentence drives the need for differentiating between perpetrators and accomplices, even if, as Markus Dubber has observed, “[r]emarkably little effort is spent on justifying this differentiation”.[1] Nonetheless, this differentiated approach, whose purpose is partly to determine the applicable range of sentencing, generates a tendency to look upon systems that formally equate sentencing ranges for perpetrators and accomplices as soft iterations of the unitary theory. France and England, for instance, do just this. For my purposes, though, I do not consider this an example of the unitary theory because it places no restriction on the substantive elements of forms of attribution, whereas truly unitary theories do.

With the stage set, I next situate the various expert responses to this mini-symposium, grouping them into those who also advocated for a unitary theory in ICL, those who were more ambivalent about whether their national experience served as much of a template for ICL, and one who was positively unconvinced.

In the first of these categories, Judge Baragwanath’s excellent post reminded us that there are actually many jurisdictions that fit within variants two and three, even if they might not describe themselves as unitary theories of perpetration. My own country of origin, New Zealand, begins the provision governing parties to offences by stipulating that “[e]very one is a party to and guilty of an offence who,” before articulating different forms of participating in a consummated offence. Judge Baragwanath’s post is so useful because it not only highlights that New Zealand’s criminal law is, in important aspects, unitary, but it also shows how a series of cases in England, Australia and Hong Kong have been struggling with whether to tie mental elements in forms of participation to those in the offense announced in ways that mimic the unitary theory. Despite backsliding in some courts, there is a discernable modern trend in this direction. His post reminds me that the States of New York and California have an even more intense unitary theory of perpetration. In any event, in describing “modes of liability” as “unnecessary,” Judge Baragwanath argues that “international criminal procedure, already complex and expensive, adds to those problems by forcing itself to leap over self-created non-existent hurdles.”

Filippo de Minicis’ post is similarly minded. Filippo is a presently Legal Officer in the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia, but he was originally trained in Italian criminal law, which as I show in the article, also discarded a differentiated system of blame attribution in favor of a unitary alternative almost a century ago. Filippo argues that when looking at standards of attribution before ad hoc international criminal tribunals (i.e. in customary international law), there is “little difference in the required actus reus,” and “a sufficient homogeneity on the mens rea side.” Filippo concludes after a decade working with these standards that a unitary theory is both viable and preferable, but he is also circumspect about whether any theory is perfect and, as was the case with New Zealand, shows how Italy’s commitment to the unitary theory is not absolute since Italy too appends a type of common purpose doctrine that approximates to JCE. Reality, it turns out, is complicated. Despite this, Filippo joins Judge Baragwanath as an advocate for the adoption of the unitary theory in ICL.

Other commentators are more ambivalent. Professor Carlos Eduardo A. Japiassú, for instance, highlights how Brazil’s unitary theory has slowly changed over time, shifting from a pure version to a functional one (which he calls “mixed”). While Professor Japiassú also speaks of a certain legal conservativism in Brazil, which I take to imply a lack of desire to shift back to a differentiated system that employs different substantive tests for different stand-alone forms of participation, he ends by concluding that “it remains unclear whether a pure rendition of this theory or a mixed variant like that now applicable in Brazilian Penal Law is a good alternative for International Criminal Law or International Criminal Courts.” Similarly, Professors Iryna Marchuk and Jørn Jacobsen discuss important scholarly criticism of the unitary theory in Denmark and Norway respectively as well as partial retreats from it in recent doctrine, before also questioning their system’s value as an exemplar for ICL.

Finally, in the third category, Judge Albin Eser’s masterful critique exemplifies disagreement with the unitary theory. In many respects, his is a brilliantly concise defense of the structure of blame attribution currently in place in ICL and a deft rebuttal of the arguments in the paper. The series of questions he poses are skillfully listed as issues he would need to be convinced of to accept that a unitary theory is optimal. These start with the argument that different forms of participation actually better track real life, move to the idea that a unitary theory cannot justify why they are addressed at sentencing along, then shows how unitary theorist essentially overlook that these questions will arise at sentencing anyhow. Then, he argues that “the only practical advantage the unitary theory so far seems to offer is a procedural one,” but he sees no procedural advantage here either. Ultimately, he concludes by correctly pointing out that even if we do have a differentiated system of blame attribution in ICL because powerful western states forced it on others, this says nothing about the theory’s conceptual integrity. A unitary theorist would, of course, contest each of these steps, but Eser’s brilliant critique is a wonderful counterpoint.

So, instead of labouring my own perspective any further here, I make space for other scholars, experts and practitioners to weigh in on these debates, which strikes me as a better idea than filing an amicus brief. I have therefore opened this post to comments, and anyone can post their views directly. In order to help ICL practitioners share their views (I recall many hours debating these questions with colleagues in war crimes tribunals), I’d like to offer a procedure through which you can legitimately (I hope) bypass the need for institutional approval to publish. If your institution is agreeable, I will post thoughts and reflections from practitioners anonymously. I would not normally do this through the post, so if want to remain anonymous, please send me your comments by email at stewart@law.ubc.ca. Your email message to me should include your title and the institution you work for, but I undertake to keep this information entirely confidential, posting only your thoughts and reactions on this topic. For the rest of you, the post is open.

[1] Markus D. Dubber, ‘Criminalizing Complicity: A Comparative Analysis’, (2007) 5 Journal Int Criminal Justice 984 ff.

Comparative Criminal Law, International Criminal Justice, Moral Philosophy, Theory of Criminal Law

New Symposium: The Strangely Familiar History of the Unitary Theory of Perpetration

To date, I have largely used this blog to host debates about other people’s scholarly work. In this instance, I wanted to host a discussion about an article I authored for a Festschrift in honor of Yale Professor Mirjan Damaška, which is entitled The Strangely Familiar History of the Unitary Theory of Perpetration. I thought to invite a range of judges, expert practitioners from international criminal law (“ICL”) institutions as well as scholars from countries that adopt the theory of blame attribution I advocate for to comment on the idea of abandoning “modes of liability” in ICL entirely. Somewhat strangely, the long debates about these questions in the field have mainly involved academics from dominant Western countries, but none of the world’s leading experts from jurisdictions that adopt the unitary theory of perpetration have had an opportunity to engage with the debate about whether we should have forms of participation in ICL or do without them as per their own national systems. Both the article and this symposium are an attempt to bring these perspectives to the fore without, of course, prejudging how these particular commentators will see the issues in question or respond to my treatment of them in the article.

I begin by introducing the discussion’s relevance for international law. To do so, I reiterate an argument I recently made about the significance of these issues for global governance. Modes of liability, or forms of attribution as they are probably better labelled, can be fairly arid, technical, technocratic concepts in the theory of criminal law that are not normally of great interest to international lawyers. But I want to depict them in a way that highlights their great regulatory potential on an international plane. If one thinks of all of the harms in the world on the one hand, then all of the actors operating globally on the other, modes are attribution are those devices that exist between these two sets, reaching into the ocean of actors to tie them to particular atrocities. One can therefore understand how these concepts can have huge implications for global regulation, even though they are cast in fairly technocratic language that can be quite alienating to international lawyers. Of late, there is seemingly a rising recognition of this fact for a variety of global issues, including counterterrorism, foreign assistance, and business.

Against this backdrop, let me introduce the unitary theory. A unitary theory of perpetration is one that does not espouse different legal standards for different forms of participating in crime. So, whereas modern international courts and tribunals employ different legal tests to differentiate aiding and abetting from joint criminal enterprise, superior responsibility and indirect co-perpetration, a unitary theory of perpetration condenses all of these standards into a singular unified standard that only requires a substantial causal contribution to the consummated offense together with the blameworthy moral choice announced in the crime with which the accused is charged. It is worth noting, however, that there are pure, functional and sentence-based variants of this unitary theory (for discussion, see here, pp. 8-10), which come with different contours. For present purposes, however, the key aspect of the unitary theory I want to emphasize is that the formal legal elements of blame attribution remain constant across the different relationships actors bear to atrocity.

Initially, international courts employed a unitary theory of perpetration in practice. Although the Nuremberg and Tokyo Charters explicitly enumerated different forms of attribution, the Nuremberg Tribunal itself often just considered whether an accused was “concerned in,” “connected with”, “inculpated in” or “implicated in” international crimes. As many leading commentators now accept, this approach entailed a functional unitary theory of perpetration, namely, a system of blame attribution that declined to disaggregate modes of participation into formal legal concepts like aiding and abetting, superior responsibility or JCE, instead holding the substantive elements of blame attribution constant across the various roles different actors might play. In the modern era, however, ICL absorbed dominant Western doctrine to supplant this history, first from the Anglo-American system then from Germany. Whatever one might say about these shifts as matters of customary international law, it is striking that neither set of practices was informed by the experience of states throughout the world that had abandoned modes of liability. This article and mini-symposium introduce that missing comparative experience.

Conceptually, this article is the sequel to a more conceptual piece I authored some years ago entitled The End of Modes of Liability for International Crimes. In that earlier article, I had argued that a conceptually coherent concept of complicity involves its disappearance into a more capacious single notion of perpetration, and that by the same analytical method, all modes of liability in international criminal law should suffer a similar fate. Having worked on these issues for many years as a practitioner before coming to the theory, my sense was that practically speaking too, the unitary theory of perpetration offered a way out of a difficult legal morass for practitioners. In my experience, standards for blame attribution are sometimes harsh, often unprincipled, in a constant state of flux and inconsistent with the expressive aspirations of the field across diverse cultures. At the very least, then, my hope was to invite robust scholarly defenses of the system in place. Moreover, I was particularly motivated to undermine the justification, which I heard a lot in practice, that the existing approach in ICL is defensible because several large Western states adopt it. To my mind, that argument is not sound.

Several prominent scholars, whose work I respect, have since offered helpful defenses of the differentiated system in response to my earlier argument (see Werle and Burghardt, Jackson, Steer). Although these excellent initial works certainly advance the debate, I am also convinced that the comparative experience I attempt to offer in The Strangely Familiar History of the Unitary Theory of Perpetration represents another important piece of the puzzle that has not figured in these debates before now. In the hope that others will pick up on aspects of these discussions to defend the differentiated approach or deepen thinking about the unitary theory, I am excited to host a range of prominent judges, one practitioner, and a host of leading scholars from each of the jurisdictions I discuss to participate in this mini-symposium (see list of commentators here). I am honored to have leading experts speaking for their own hitherto neglected legal traditions.