All posts by Sasha Greenawalt

Alexander K. A. Greenawalt is a Professor of Law at the Elisabeth Haub School of Law at Pace University. His research focuses on criminal law, international law, and the laws of war.

I am grateful to James Stewart for inviting me to participate in this symposium on the provocative, deeply researched, and illuminating article that he and Asad Kiyani have authored. I have enjoyed engaging Stewart’s work over the years—including in a recent article on complicity which greatly benefitted from his writings—and I look forward to reading more of Kiyani’s work.

Let me start by identifying some points of agreement. I share the authors’ conviction that it is worth looking for right answers in criminal law, and I agree that those answers can transcend sometimes superficial doctrinal differences among legal systems (indeed, my above-linked article on complicity advances precisely such a claim). I also agree that it is misguided to romanticize difference for the sake of difference and that one must avoid the casual assumption that national criminal laws always have claim to deep cultural authenticity within the societies they regulate.

As Stewart and Kiyani note, I have used the word “pluralism” to defend a particular approach to international criminal law (“ICL”). Stewart and Kiyani are skeptical about pluralist approaches to ICL, but I struggled when reading their article to understand how exactly their position might impact my own, or indeed the actual practice of ICL. In part, this is because I find their account of pluralism somewhat elusive. Sometimes the authors seem to suggest that pluralism means blind deference to every doctrine of domestic criminal law no matter how oppressive. Elsewhere (among other approaches), they associate pluralism with a method by which ICL might arrive at consensus international standards—namely, by embracing rules derived from national criminal law that reflect a “real degree of inclusive, plural, cosmopolitan values” and are “doctrinally plural within a diverse, conflicting, sometimes inter-penetrating system of criminal law.” I am not aware of any scholar who has advanced the first position and the second claim is not one that I would associate with pluralism in the sense that I have used the term, although it does resemble a standard methodology embraced by international criminal tribunals attempting (sometimes misleadingly as the authors observe) to marshal support for universalist claims about the content of ICL.

I am curious, as well, about how exactly Stewart and Kiyani’s broad rejection of pluralism informs the actual practice of international criminal justice institutions. Take, for instance, the International Criminal Court’s (“ICC”) complementarity requirement which sometimes requires the Court to defer its jurisdiction in favor of criminal justice at the national level. Suppose the ICC is pursuing a suspect in the Democratic Republic Congo (“DRC”) who is being investigated at the national level for the same conduct. Do the authors believe that complementarity can or should apply in a case like that, or should the systemic, historically rooted deficiencies they identify in the DRC’s criminal law categorically preclude deference in all cases? Or perhaps complementarity itself should be abandoned because it inherently introduces the problems of pluralism that the authors explore? How then should a global system of ICL proceed if it rejects domestic prosecutions of international crimes?

The most obvious solution I can glean from Stewart and Kiyani’s article is that the world must coalesce around a single, best, cross-cultural and universal approach to all questions of criminal law and procedure, one that is devoid of power politics or cultural bias. If the world can achieve that, then I agree that the normative defense of pluralism becomes quite unconvincing indeed. But if that is the claim, then the authors must establish far more—and overcome far greater hurdles—than they do in this article.

For example, even if the world were to coalesce around the unitary theory of perpetration that the authors advocate (rejecting formally differentiated modes of criminally participation) I don’t see how the general choice of a unitary versus differentiated model is especially important in comparison to the host of other choices affecting guilt, innocence, and degrees of culpability that must be decided upon under either model.

Perhaps, however, one should read Stewart and Kiyani to advance a more modest claim that universalism is something to work for, that some universal answers are accessible, and that the blind embrace of pluralism is both threatening to this project and harmful given the colonial origins and distortions evident in many criminal law systems. If that is the claim, then I agree with the central thrust of the argument, but my own defense of pluralism does not proceed from the assumption that national criminal law demands blind deference or that it necessarily has some claim to deep cultural authenticity. To me, the central question is not one of universalism versus pluralism, but of how to manage the pluralism that unavoidably has accompanied the establishment of ICL. I also believe that my own framework accommodates many of the concerns that the authors raise, and so I will attempt in the remainder of this post to sketch out some of my own thoughts on this issue and attempt to see how they may accommodate at least of some of the concerns raised by Stewart and Kiyani.

I begin with the fact that there is variety in the criminal law. I agree (even outside the colonial context) that variety need not have any deep cultural basis. While differences among states may sometimes reflect important cultural fault lines, they are just as likely to reflect arbitrary, and sometimes pernicious, historical vestiges or the influence of judicial interpretation.

International law, in its current state, is hardly agnostic about this diversity. The body of international law that most broadly regulates these choices is international human rights law (“IHRL”). Many of the examples that Stewart and Kiyani invoke—judicial bias after World War I, restrictions on freedom of association, anti-blasphemy laws—reflect straightforward human rights violations. As a matter of IHRL (as the authors themselves acknowledge), these examples already offend universal values.

ICL, by contrast, presents only a limited intervention by international law into matters of criminal law. ICL evolved, in my view, not to harmonize national approaches to criminal law, or even to define and regulate uniquely “international” offenses in some qualitative sense, but instead to enable institutional interventions that counteract unique obstacles to the prosecution of certain especially grave offenses. The point of prosecuting Holocaust crimes at the International Military Tribunal at Nuremberg, for example, was not to reject German criminal law’s general judgments about how to define and assign liability for murder in ordinary cases. The point was to counteract and ensure accountability for the specific ways in which Nazi Germany had made an exception to those judgments by converting the state into a system of domestically authorized mass extermination. I believe that ICL speaks the most strongly when it works to justify and define the scope of such interventions, and it speaks more tentatively (although not entirely without authority) when it addresses more general questions about what it means to be a criminal.

How does this way of looking at things interact with Stewart and Kiyani’s specific claims? In previous work I have explored the example of the Erdemović case at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) involving a soldier who was forced under threat of death to participate in a firing line that massacred Bosnian Muslim civilians. The ICTY Appeals Chamber rejected the defense on (I believe unpersuasive) policy grounds, notwithstanding the unresolved nature of the question under international law and the fact that many states, including all the republics of the former Yugoslavia, take a more permissive approach to duress.

I do not know whether Stewart and Kiyani have access to an optimal, universalist approach to duress. My position is that the ICTY should have looked to Bosnian law under the circumstances. In advancing this argument, I do not assume that the Bosnian criminal code reflects a deeply embedded and culturally specific approach to duress. Rather the Bosnian law reflects a fairly standard civil law approach that the state inherited from its prior membership in communist Yugoslavia. I think that the law of duress presents unavoidably hard questions, that all the dominant legal approaches to the issue are problematic in some respects, and that the Bosnian law falls within a range of reasonable disagreement that neither offends core human rights value nor the specific purposes of ICL. In a case like that, I don’t think that ICL has a strong interest in overriding the local law to deprive the accused of a defense which his society affords to other similarly situated persons. But even if one disagrees with that specific conclusion, the same problem arises in other guises. Suppose that the Bosnia’s own courts were prosecuting Erdemović for international crimes. Must those courts also prefer the ICTY’s approach to duress over their own? And what about ordinary domestic prosecutions for non-international crimes? Wherever one draws the line, the basic problem remains: absent universal, global agreement on how to handle duress, some defendants must be treated differently from others based on perhaps arbitrary, non-culpability driven reasons. Similar issues arise with respect to other standards of responsibility, principles of sentencing and so forth. Must ICL take an absolute position on every one of these questions, no matter how tangential the doctrinal issue is to ICL’s core mission?

At the same time, I agree (and have argued) that is desirable to have a single, comprehensive set of ICL rules that are available for use by a global court like the ICC and in other contexts where reliance on domestic legal principles proves problematic or undesirable. There are many reasons to favor this restult, including problems that Stewart and Kiyani explore as well as concerns having to do with clarity and administrability. But I do not think that those reasons exhaust all the procedural contexts in which ICL finds itself enforced. In the end, implementation of ICL involves a number of situation-specific considerations that cannot be resolved by broad appeals to either universalism or pluralism. Instead, there are a balance of factors to consider. Stewart and Kiyani convincingly elucidate some important factors that may sometimes arise. But they do not, in my view, eliminate the need for such balancing.

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

The Role and Weight of Desert

December 2, 2014 Sasha Greenawalt

Sasha Greenawalt, Professor of Law, Pace Law School. He is the author of the excellent new article International Criminal Law for Retributivists.

I am grateful to Adil for his insightful comments. Adil was quite generous to serve as a discussant when I presented an early draft of my article at the 2013 Law and Society Association Annual Meeting and so am I especially thankful that he has taken the time to participate in yet another exchange.

Adil agrees that retributivism is an incomplete theory of punishment and that non-retributive considerations can outweigh retributive reasons to punish. Adil’s takes issue, however, with the particular role and weight that I assign to retributive considerations. In so doing, Adil raises several important points, some of which involve nuances that my article does not expressly address. Nevertheless, I believe that his points are consistent with my argument, and that my analysis can, or already does, incorporate them.

At the outset, it’s important to emphasize an important difference in focus between Adil’s comments and my article. Unlike Adil, I am not interested in defending the best view of retributivism. Instead, I am primarily focused on exploring how different understandings of retributivism could approach international criminal law. In particular, what I describe as a “good reason retributivism,” is my attempt to identify how retributivism can operate in the real world as a plausible, affirmative rationale for punishment. As I explain in my response to Mark Drumbl, the label reflects my attempt to distill something that is already present in retributive theory rather than to propose a novel approach to punishment. In other words, retributivists might disagree about whether there is a moral obligation to punish the deserving, or about whether deserved punishment is a good, while nevertheless agreeing that, practically speaking, retributive reasons operate along the lines that I have described.

Adil’s principal critique is that “I view moral responsibility for past wrongdoing [as] merely one good reason to punish among others, a reason that competes on equal terms with good reasons not to punish.” On Adil’s account, by contrast, desert is the only reason to punish. Utilitarian considerations favoring punishment play a more limited role: they can defeat utilitarian considerations disfavoring punishment (thereby defeating the defeaters), but they cannot provide an affirmative reason to punish.

This is an elegant and interesting way to put it, but am I having trouble identifying the difference between Adil’s “only reason retributivism” and what he describes as my “one good reason retributivism.” On my account, desert is both necessary to punishment and provides an affirmative, prima facie reason to punish. (Hence, I am not sure why Adil believes that I embrace a purely “negative retributivism” that lacks this affirmative function.) My good reason retributivism does not contemplate that utilitarian considerations could justify punishment all by themselves without support from retributive considerations. As with Adil’s approach, “retributive reasons . . . serve a unique and indispensible function in the justification of punishment.”

How then does Adil’s account differ from my own? Perhaps the difference lies in the fact that I, unlike Adil, do not specify that utilitarian considerations favoring punishment can only act as “defeaters of defeaters,” rather than as affirmative reasons to punish. I’m not sure how much this distinction matters, however. If desert provides a necessary, prima facie reason to punish, then what role could these other considerations play except to help defeat arguments opposing punishment? If there is a conceptual difference, I’m not sure it has any practical impact.

Another question concerns the relative weight of retributive reasons. Adil contrasts his “strong retributivism” with my “weak retributivism.” My own view is there is room for disagreement regarding how much weight retributive arguments should carry in the face of countervailing non-retributive reasons. I’m not sure how Adil’s framework provides any greater clarity on this point. Take, for example, Douglas Husak’s observation that the value of punishing the deserving is arguably, from the start, outweighed by the “inevitab[ility] that the practice of punishment will suffer from (at least) each of the following three deficiencies: It will be tremendously expensive, subject to grave error, and susceptible to enormous abuse.” This argument would seem to be entirely compatible with Adil’s approach: In Adil’s terms, it could well be that retributive reasons are never enough to overcome these three defeaters, and that the practice of punishment will always require additional non-retributive defeaters of defeaters to support the retributive reason to punish.

My idea that desert might merely play a tie-breaking role in justifying punishment was inspired by Husak’s example. My point is that even if one thinks that retributive arguments are, by themselves, readily defeated by the negative consequences of punishment, they can play still a powerful role in situations where the balance of non-retributive considerations both favoring and disfavoring punishment yields no clear answer. It strikes me that international criminal law often involves uncertainties of this nature. Of course, Adil is correct that if the retributive reasons to punish are too weak, then they cannot play even this tie-breaking role.

Otherwise, I very much appreciate Adil’s reflections on both consequential retributivism and the distributive component of retributive justice. These will require further reflection, but I do find them compelling.

BLOG, International Criminal Justice, Theory of Criminal Law

Vive La Rétributivisme Timide!

November 26, 2014 Sasha Greenawalt

Sasha Greenawalt, Professor of Law, Pace Law School. He is the author of the excellent new article International Criminal Law for Retributivists.

I am grateful to Mark Drumbl for taking the time to provide his generous and insightful comments on my article, and also to James Stewart, both for his kind words and for organizing this discussion. I’m quite honored that James has selected my article to inaugurate this important and exciting new blog.

In this post, I respond to Mark’s critiques, which have pushed me to think hard and harder, and even to consult Google Translate. As I understand it, Mark is disappointed by my fainthearted retributivism, which he deems anemic, indeterminate, overly intellectual, and woefully lacking in hot-blooded passions. He objects that “retributive theory cannot simply become all things to all persons.”

For the most part, I am happy to plead guilty as charged. After all, the idea that retributive commitments are compatible with a wide range of policy positions about international criminal law is one of the main points of my article. In defense of this view, I will say the following. First, I believe that I am speaking the truth about retributivism. Accordingly, it is not my fault if the theory turns out to be less muscular than one might hope. Second, I don’t think it’s quite as bad as all that. There are many things that retributivism cannot do, but some quite important things that it can do.

The central point (which I am hardly the first to make) is that retributivism, by its nature, is an incomplete theory of punishment. In contrast to utilitarian approaches that appeal to a single overarching vision of human well-being, the retributive claim that punishment is justified intrinsically by the desert of the offender simply cannot provide a comprehensive metric around which to establish, order, and administer a system of criminal justice. The point is just as true at the domestic level as it is at the international level. The most obvious example is resource allocation: a commitment to deserved punishment cannot, by itself, tell a legislature how to distribute funds between health care and the criminal justice system. Nor can it tell the international community whether, and to what extent, to fund the establishment of an international criminal tribunal.

Instead, I believe that retributivism does two things. First, by specifying that justified punishment must be deserved, it imposes an important negative constraint: a prohibition against knowingly punishing the innocent. This negative constraint is not especially controversial, but even here retributive theory raises an important and problematic question: how do we know that the guilty actually deserve punishment? Mark suggests that the retributive appeal to just deserts is at root an emotional response, and I think he may be right. Does this reliance on bare, moral intuitions—ones that may well be “ignorant, biblical, and simple,”—expose a deep vulnerability in retributive theory? Quite possibly, but if I may attempt to paraphrase Douglas Husak, the alternative is even more problematic: How can we ever justify the cruelty of criminal punishment if we do not at some root level believe it is deserved? Perhaps, the very existence of criminal justice is inevitably grounded on these innate retributive emotions, whether we acknowledge them or not.

The second thing that retributivism does is to supply an affirmative reason to punish the guilty, one that appeals to the culpability of the wrongdoer alone rather than to the expected social benefits of punishment. But because retributivism is an incomplete theory of punishment, the retributive impulse must coexist with other rationales either favoring or disfavoring punishment. As a consequence, the retributive impulse to punish a particular offender will sometimes be trumped or compromised. Possible reasons include, among others, a legislative desire to fund priorities other than criminal justice; a prosecutorial judgment that limited resources are better focused on other, more culpable offenders; the ability to obtain the accused’s cooperation in the prosecution of other, more culpable offenders; an unacceptable risk of wrongful conviction in light of evidentiary shortcomings; a disinclination to reward prosecutorial misconduct that has comprised the accused’s due process rights; or, as sometimes happens in the wake of mass atrocities, a desire to support an amnesty agreement or alternative justice mechanism that may itself be justified by a variety of imperatives including the need to conserve limited resources, to end bloodshed, and to promote social reconciliation.

This second function of retributivism—as a good, but incomplete reason to punish—is what I describe as “good reason retributivism.” Although the label is my own, it reflects my attempt to distill something that is already present in retributive theory rather than to propose a novel approach to punishment. And I will venture to suggest that something of this approach appears in Mark’s own post when he maintains that he “remain[s] unconvinced that retribution can overcome the curse of selectivity in international criminal law.” In other words (and acknowledging apologetically that I may be doing horrible violence to Mark’s actual views), even if there are powerful retributive reasons to prosecute someone before an international criminal tribunal, Mark maintains that those reasons are inadequate to overcome the more powerful, overriding interest in avoiding a system of highly selective, unequal justice. (And as Mark sets forth in a terrific book, alternative mechanisms may provide a better way to reconcile these two interests).

As far as I am aware, Mark does not propose a metric for determining how much selectivity is too much selectivity. By contrast, I might argue on retributive grounds that Sudanese President Omar al-Bashir’s alleged role in Darfur atrocities involves culpability of such great severity that it is worth demanding his prosecution before the International Criminal Court (“ICC”) notwithstanding the highly selective focus of that institution. Both Mark and I may be confident in our judgments, but I doubt we can prove each other wrong. Yet these are precisely the kinds of moral judgments that people can and do routinely make based on an indeterminate but non-arbitrary balancing of competing considerations. And I don’t think that the existence of such indeterminacy is tantamount to an “endless buffet line” (however appetizing that analogy may be!).

As I explain in the article, I believe that the retributive rationale plays a powerful role in driving international criminal prosecutions, one that has repercussions throughout the system. And I believe that the retributive impulse works pretty much as Mark describes: as an intuitive and outraged call for justice. But I do not believe that embracing this impulse requires one to turn a blind eye to non-retributive values, or to what Mark aptly terms “the explosive paradoxes and dizzying quandaries of international crimes.”

There is much that I am glossing over, including the differences between various understandings of retributivism, the nuances of the international criminal justice system, and important differences among different types of institutional questions (legislative, prosecutorial, judicial etc.). I must, however, register my disagreement with Mark’s claim that “[e]ye for an eye is central to [retributivism’s] DNA.” As far as I am aware, lex talionis has no modern defenders among retributivist scholars, although Jeremy Waldron has brilliantly argued that the idea “is (fortunately) not as silly as it sounds.” The concept of proportionate sentencing is more widely embraced, but, for reasons I explore in the article, I fear it may fail to provide the degree of practical guidance that Mark desires.

Otherwise, I, for one, am not convinced that Mark and I are divided by any deep disagreement. Perhaps he will prove me wrong, but until then . . . Vive La Rétributivisme Timide!