All posts by Mark A. Drumbl

Hey Look at Me: Deterreo, Ergo Sum

Mark A. Drumbl, Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law.

“Everything must have a purpose?” asked God.
“Certainly,” said man.
“Then I leave it to you to think of one for all this,” said God.
And He went away.

— Kurt Vonnegut, Cat’s Cradle (1963)

General deterrence is routinely invoked to justify ordinary national criminal law. Intuitively, it seems plausible that would-be perpetrators of common crimes refrain from offending if they fear getting caught and then being sent before a judge. In addition, the existence of an institution that prosecutes and punishes may also deflate crime by inflating the public’s respect for the rule of law.

As a court of law, the ICC investigates, prosecutes, and punishes core international crimes. Unsurprisingly, then, the ICC’s capacity to deter such crimes emerges as a barometer of its effectiveness and legitimacy, as well as a basis upon which to rationalize its existence.

Professors Hyeran Jo and Beth Simmons investigate whether the ICC deters core international crimes. Their methodology begins with a data-set of countries with civil wars between 1989 and 2011. Noting that the Rome Statute entered into force in July 2002 (near the mid-point of the data-set’s lifespan), they attempt to disaggregate the effect of the ICC’s existence upon the number of civilians killed intentionally by government forces or rebel groups in a direct military confrontation. Jo and Simmons control and test for many interceding factors. Their research is comprehensive, meticulous, transparent, elegantly delivered, and expertly presented.

I would like to do two admittedly incongruent things in my comments. The first is to talk more about the ICC’s ability to deter. The second is to suggest that we talk a lot less about the ICC and deterrence. Whether the ICC deters atrocity is difficult to answer, but has become too comfortable and too exigent a question to ask.

Jo and Simmons locate “strong evidence of a reduction in intentional civilian killing by government actors when states implement ICC-consistent statutes in domestic criminal law,” which they indirectly attribute to the ICC’s influence. They conclude that the ICC has stronger positive effects on governments than rebel groups, although they discern an effect on rebels concerned with legitimacy. In the final sentence of their article, they posit that the ICC “has potential to save at least a few lives in some of the most violent settings in recent decades”. After fourteen years of being in operation and four years of becoming fit to begin operating, after the euphoria of Rome, and after well over $1 billion spent – there’s the bottom line.

Might the deterrent effect be even thinner than what the research – however accurate – suggests? The data-set (if I understand it accurately) extends to 2011. The data-set thereby ends early in the game. It ends before the ICC actually convicted anyone. On the one hand, the fact that the ICC has since issued a few convictions could embolden the deterrent effect by revealing the ICC’s punitive muscle to potential human rights abusers. On the other hand, a close look at the ICC’s activities since 2011 reveals the atrophied nature of whatever muscle the ICC may actually have.

The ICC’s two convictions (Lubanga and Katanga) led to prison terms of fourteen and twelve years respectively. Katanga is already free insofar as judges granted his application for sentence reduction last November. By any metric, these are lenient sentences. The ICC has also issued an acquittal. Actually taking cases to trial has exposed the frailty of much of the evidence the OTP relies on to convict and the precariousness of the accessorial liability theories it often submits. High-profile charges have been withdrawn in the Kenyan situation, where the ICC failed to guarantee witness security or testimonial accuracy and was bedeviled by obstruction on the part of the Kenyan government. OTP hibernated the stagnant Sudanese investigations late in 2014: the Security Council lacked assertiveness, Bashir is still in power (perhaps now even more firmly so), and government forces commit ongoing abuses. Happily, two high profile rebel fugitives – Bosco Ntaganda and Dominic Ongwen – are now in ICC custody. But these fugitives turned themselves in willingly. They did so because their other option – staying at large – meant they would probably be killed. They self-arrived at the ICC because it was likely a decent bet – a refuge even – for them.

The ICC may be more influential when it engages in preliminary examinations or initial investigations (i.e. when it threatens to prosecute) than when it actually brings a case to trial and sentences an offender. Colombia might be a case-in-point. This uncorks the fascinating question of the kinds of political conversations and interactivities that the specter of ICC intervention triggers. What are the domestic effects of complementarity? Dancy and Montal link ICC investigations to general domestic human rights prosecutions in Africa in what they call unintended positive complementarity. Nirej Sekhon emphasizes how complementarity reflects Foucault’s governmentality, in which international elites technocratically commune with domestic elites in a process that occludes the marginal (who mostly happen to be the victims of atrocity). Perhaps positive complementarity negates modalities of justice other than criminal trials. Selectivity, too, is a concern: in some situations in which it exercises jurisdiction, for example Uganda, the ICC achieves some justice (for LRA violence) only because it sanitizes an injustice by closing an eye to the violence of the Ugandan government.

Let’s return to the deterrence question. Jo and Simmons focus on the ICC’s ability to deter intentional killing of civilians. This category is capacious. It covers everything from group-based genocide against a defined population (Rwanda, the Yazidis today) to the targeted killing of a few individuals by a small band of specialized armed forces. Meg De Guzman is right to point out that the ICC has a gravity deficit. Although the ICC was created to deliver justice following massive jus cogens ruptures, in practice it has tended – to the frustration of many victims – to prosecute lesser crimes involving less rampant violence, including child soldiering, pillage, and destruction of historic/religious buildings. The ICTY, ICTR, ECCC, and SCSL have to date done heavier lifting when it comes to gravity. I have argued elsewhere that, as violence metastasizes into a collective project, the nature of the criminality shifts. The involvement of the rank-and-file as killers drifts from a deterrable act of deviance towards conformist behavior that normalizes violence in order to eliminate the ‘other’ for the sake of a perceived communal good. It remains unclear to me that criminal law can deter these kinds of killers or that these kinds of atrocity crimes resemble ordinary common crimes upon which deterrence theorists rest their claims. In sum, a refinement to ICC deterrence research might cleave discrimination-based mass violence (genocide and certain crimes against humanity) from other kinds of war crimes. It may be that the ICC’s deterrence capacity grafts better onto the latter category which, in turn, reflects violence that is less widespread.

Why should we talk less about whether the ICC deters? For one, repeatedly asking that very question reinforces a woefully inadequate status quo. This is the status quo in which the ICC is accepted as the best thing we can come up with internationally to deliver justice and prevent violence. There are nevertheless other ways to deter atrocity. These include actuating responsibility to protect and humanitarian intervention, reformatting a more nimble Security Council, and revisiting state sovereignty. These ways are less comforting because they require more skin in the game. Ironically, an ICC with (potential) jurisdiction over a crime of aggression might discourage humanitarian armed intervention because leaders may fear criminal liability when they intervene to help people from tyrants. Non-penal justice mechanisms, moreover, also may excel at building up the social deterrence Jo and Simmons value.

Activists invest greatly in the ICC. Activists do so, however, in a world where it’s unclear that actual atrocity survivors are single-mindedly keen on criminal trials as post-conflict priorities. Victims may wish for things that trials cannot guarantee, such as reparations, apologies, truths, reconciliation, and memorialization.

It is no answer to say: “Just because we have an ICC doesn’t mean we can’t do more!” It is no answer to posit that we live in a world of endless conjunctive permutations of “and,” “ands”, and even more “ands”. As Sarah Nouwen and Wouter Werner have argued, global policy decisions to manage conflict are not made in contexts of endless resources. These decisions entail disjunctive choices and clashes. They sit upon a topography of “ors”. We settle on the ICC as the icon of preventative justice at the expense of other options. The more we foreground the ICC, the more we settle. Yet saddling the ICC with altitudinous expectations – deterreo, ergo sum – just makes it seem weaker and lonelier.

Adjectival Retributivism: A Tale of Theory as Empath

Mark A. Drumbl, Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law.

Sasha Greenawalt rehabilitates retribution as a justification for punishing people who violate international criminal law. I say “rehabilitate” because Sasha begins with the observation that an “anti-retributivist strain” has seeped into conversations about how to deal with perpetrators of genocide, crimes against humanity, and systematic war crimes. Sasha wants to stanch this strain by cleansing retribution of its undeserved stain.

Sasha hopes to make retributivism relevant in a context where conversations about the normative basis of punishment for extraordinary crimes are vividly diversifying. Penological rationales such as expressivism, positive general prevention, and restoration have entered the discursive frame. The international tribunals tout their deterrent potential, as well as other utilitarian goals (which border on the utopian) such as reconciliation, peace, and ending impunity.

Retribution has its skeptics. I am one of them. Sasha’s excellent work has pushed me to think twice, think differently, and think better, about things. Fundamentally, however, I remain unconvinced that retribution can overcome the curse of selectivity in international criminal law; I am unsure how it squares with the extraordinary nature of jus cogens violations and the cauldron of collective violence; I am unsettled by analogizing too closely from the regulation of ordinary crime at national levels. But all this is beside the point. These debates will not be resolved here. They may not be resolvable. People have been quarrelling about the purposes of punishment and the role of mercy since time immemorial. These quibbles pop up in all places, whether intellectual, vulgar, aesthetic, popular, or political.

I am more interested here in the dialectics. How does retributive theory, which Sasha enlivens, approach and contribute to the conversation about the normative basis of international punishment? How does it seek to call the question, presumably in its favor? What arguments does it marshal?

Sasha responds to “anti-retributivism” by demonstrating that retributive theory is heterogeneous and supple. He rightly resists those who essentialize retribution as primitive or instinctual or crude. He chafes at the bad rap retribution gets in certain quarters. For Sasha, there’s a lot more to retribution than harshness. He shows how retributive theory is nimble, flexible, erudite, and sophisticated. It is so versatile, in fact, that it can accommodate many of the concerns central to utilitarian, and other, justifications for punishment. Here, Sasha takes the reader on a journey through an alphabet soup of adjectives. We learn of consequential retributivism, minimalist retributivism, political retributivism, threshold retributivism, maximal retributivism, and contractarian retributivism. Sasha delivers good reason retributivism. We learn that retributive theory is so capacious that it can justify general amnesties. It can even justify complete impunity!

It is invigorating to peel back the layers, and embrace the hybridized possibilities, of retributive theory. I’ve toyed with this myself in terms of agentic retributivism. By this I mean measuring the culpability of an accused not by the harm caused or malevolence exercised in absolute terms but, rather, by how much harm the perpetrator caused or how much malevolence the perpetrator exercised in light of the social spaces that he or she occupied at the time of the commission of the offense. Interest in this question stems from my concern about how international criminal law should approach compromised perpetrators: rank-and-file soldiers, low-level militia members, militarized youth, and persons who may not have killed directly but told the killers where the oppressed were hiding.

But retributive theory cannot simply become all things to all persons. At some point, all these clever variants of retribution become more about the prefix adjective than the noun. Consequentialist retribution in particular strikes me as a poignant example. The end-game of these concatenations is that retribution risks becoming gutted, or so abstracted, that its raw value as normative justification evaporates. What is gained by becoming an endless buffet line? An account for all seasons?

Also hobbled is the ability of retribution to serve as a practical principle to apply in establishing the quantum of sentence for an individual defendant. This latter point is very important. We should welcome conversations about the normative basis of a punishing institution. But once that institution exists, and it begins to punish individuals, a need arises for principled, clear, and consistent sentencing. Accessibility matters. When retributive theory has so many competing compounds, what is a judge to do and what is a convict to expect?

If retributive theory becomes an empath that absorbs and accommodates everyone’s wishes and needs – even those that contradict its central ethos – then retributivists allow themselves to be defined by others. General debates about the justification for punishment simply morph into feuds within retributive theory about the justification for punishment.

Over-intellectualizing retribution reminds me of the fate of modes of liability at the international tribunals. James Stewart and Leila Sadat have chided the staggering confusion. Modes of liability – rendered both fulsome and bare by relentlessly inordinate determinations – remain clumsy and incoherent, thereby baffling the laity and frustrating survivors in post-conflict transitions.

Call me ignorant, biblical, and simple. Or homely. But for me, retribution is about the emotions.  It is about just deserts and resetting the moral balance following an act that tears the communal fabric. Retributivism is about voicing outrage; determining the culpability of the perpetrator and responding in kind.  Eye for an eye is central to its DNA.  Retributivism means anger, pain, and rectification channeled through a dignified legal process. It’s about expiation. It’s visceral. Why run from this? Staying the hand of vengeance does not require becoming the Tin Man.

When rules become defined by their exceptions, when principles become overrun by a cacophony of qualifiers, then the core fades. Retributivists might be better off sticking with their core. If their cri de coeur doesn’t fit with the explosive paradoxes and dizzying quandaries of international crimes, then tant pis – so be it.