Adil Ahmad Haque, Professor of Law and Judge Jon O. Newman Scholar, Rutgers School of Law, Newark

Alexander Greenawalt (“Sasha” to those lucky enough to know him) begins his article, International Criminal Law for Retributivists, with Mirjan Damaska’s famous question: “What is the point of international criminal justice?”  This general question conceals a number of more specific questions:

• What is the point of international crimes?  Why not rely on domestic criminal law to prohibit serious violence?
• What is the point of international criminal tribunals?  Why not leave the prosecution of international crimes to national courts?
• What is the point of international criminal prosecution?  Why prosecute international crimes committed in some conflicts but not others, some international crimes committed in a given conflict but not others, and some of those responsible for a given international crime but not others?
• What is the point of international criminal punishment?  Why not deal with international criminals through lustration, compensation, or the exchange of apology and forgiveness?
• What is the point of international criminal sentencing?  Why punish some international criminals more severely than others?

In principle, these questions might have different answers.  The point of international crimes might be expressive, the point of international tribunals preventive, the point of international sentencing retributive, and so on.

As I read him, Sasha believes that all such questions rest on a false premise.  There is no aspect of international criminal justice that has a single point; all serve multiple purposes and are subject to multiple constraints.  In each domain, the relevant actors must simply weigh the various relevant considerations—retributive, expressive, or consequentialist—on both sides of a given policy issue.

On Sasha’s view, the fact that most international criminals deserve punishment is simply one good reason among others to create new international crimes; establish new tribunals; prosecute particular conflicts, crimes, or defendants; punish particular defendants; or set particular sentences.  In each domain, there may be opposing, non-retributive reasons not to proceed—to conserve resources, to permit conflict resolution, to facilitate post-conflict reconciliation, and so on.  The right course of action therefore depends on the overall balance of competing reasons.  Since the balance of reasons is a contingent matter, Sasha concludes that retributivists are not committed to any particular position on any of the pressing policy questions facing the ICL regime.  Retributivists might even support general amnesty for international crimes if that is what the balance of reasons supports.

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In one way, Sasha is clearly right.  The retributive duty to punish wrongdoers is not absolute.  To that extent, the right answer to any ICL policy question indeed depends on the relative strength of relevant non-retributive considerations.

Nevertheless, I reject the view that moral responsibility for past wrongdoing is merely one good reason to punish among others, a reason that competes on equal terms with good reasons not to punish.  On my view, only retributive reasons affirmatively justify punishment.  The expressive value and consequential benefits of punishment contribute to the justification of punishment only indirectly, by offsetting the expressive disvalue and consequential costs of punishment.  The expressive value and consequential benefits of punishment are not reasons to punish (“favorers”) but merely reasons to discount certain reasons not to punish (“defeaters of defeaters”).  Retributive reasons to punish then compete with the remaining, undefeated expressive and consequentialist reasons not to punish.  Put another way, retributive reasons compete, not with the “gross” costs of punishment, but only with the “net” costs of punishment.  On my view, retributive reasons can still be outweighed, but they serve a unique and indispensible function in the justification of punishment.

Why do only retributive reasons directly count in favor of punishment?  Ordinarily, it is morally wrong to intentionally harm other people.  However, people can make themselves morally liable to suffer certain harms for certain purposes.  Importantly, the reasons that make it permissible to harm someone also limit the amount of harm that may be inflicted as well as the purpose for which it may be inflicted.

For example, those who are morally responsible for an unjust threat to others (i) forfeit their right not to be (ii) defensively harmed as a causal means of averting that very unjust threat (iii) so long as the harm they suffer is not substantially greater than the harm they threaten.  Notice that forfeiture, purpose, and proportionality share a common foundation.   Similarly, on my view, those who are morally responsible for an unjust harm (i) forfeit their right not to be (ii) punitively harmed as a constitutive means of punishing that very unjust harm (iii) so long as the harm they suffer is not substantially greater than the harm they inflicted (discounted by their degree of fault).

In contrast, Sasha embraces “negative retributivism”, the view that those who are morally responsible for an unjust harm (i) forfeit their right not to be (ii) instrumentally harmed as a causal means of producing various intrinsic goods (iii) so long as the harm they suffer is not substantially greater than the harm they inflicted discounted by their degree of fault.  This account of moral liability to punishment has always struck me as incoherent.  We should instead accept that moral responsibility for past wrongdoing is the basis, purpose, and limit of moral liability to punishment.

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Sasha at times suggests, not only that past wrongdoing is merely one good reason to punish among others, but also that past wrongdoing is not a particularly strong reason to punish.  At one point, Sasha considers the possibility that retributive reasons may play only a “tie-breaking” role.  In this passage, Sasha refers not to (imaginary) situations in which we know that the future costs and benefits of punishment will be on a par, but rather to (common) situations in which we cannot reliably predict the future costs and benefits of punishment.  However, if we cannot reliably predict that the benefits of punishment will outweigh the costs, then we probably also cannot predict that the benefits of punishment plus the (apparently minor) retributive value of punishment will outweigh the costs.  So even this tie-breaking role seems illusory.

ICL detractors like to point out that the Special Court for Sierra Leone (SCSL) cost over $200,000,000 and punished only 9 defendants of international crimes.  Surely, the argument goes, we should not spend over $20,000,000 simply to give one wrongdoer the punishment he or she deserves—not when we could use that money to give many children the education they deserve, many patients the treatment they deserve, and so on.

Such arguments are particularly effective when they take on board the “consequentialist retributivism” with which Sasha sometimes flirts.  On this view, deserved punishment is an intrinsic good that we should try to maximize.  The retributive value of the SCSL is just the amount of deserved punishment it produced.  Since the SCSL only produced around 350 years of deserved incarceration (at a cost of over $500,000 per year), it can seem like a waste of money.

Fortunately, consequentialist retributivism is false. I have argued elsewhere that deserved punishment is not an intrinsic good.  Certainly, it should not be maximized.  Consider the widely accepted principle that international tribunals should prosecute those “most responsible” for international crimes.  Evidently, following this principle will not maximize deserved punishment.  Since the “most responsible” are mortal, there is a physical limit to how many units of deserved punishment we can inflict upon them.  Indeed, generally we can produce more units of deserved punishment by punishing a handful of minor participants than by punishing the mastermind they served.  Yet such a distribution of deserved punishment would be unjust.

The distributive component of retributive justice remains largely unexplored.  I suspect that retributivists generally should first seek to vindicate the rights of as many victims as possible and only then seek to vindicate these rights as fully as possible.  Forced to choose, generally we ought to punish fewer of those responsible for more wrongs rather than punish more of those responsible for fewer wrongs.  In general, it is more just to (partially) vindicate the rights of more victims rather than (more fully) vindicate the rights of fewer victims.  There may be extreme cases in which full vindication of fewer victims can take precedence over partial vindication of more victims.  But it is the vindication of rights, not deserved punishment, that retributivists should seek, not to maximize, but to justly distribute.

It follows that ICL ought to prioritize those “most responsible” for international crimes because generally this will vindicate the most victims of the most serious wrongdoing.  Since the SCSL vindicated the rights of tens of thousands of victims of extreme wrongdoing, it was more than worth the cost.  At a few thousand dollars per victim vindicated, this was justice at a bargain.

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Sasha calls his view “good reason retributivism”.  We could instead call it “one good reason retributivism” or “weak reason retributivism”.  We could call my view “only reason retributivism” or “strong reason retributivism.”  On my view, the point of international criminal justice is to ensure just retribution for serious wrongdoing.  Non-retributive considerations will inevitably intrude but they will always remain, in an important sense, beside the point.

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!

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.

I’m thrilled to host Sasha Greenawalt’s excellent new article International Criminal Law for Retributivists as the inaugural point of discussion for this blog.

In the early years of international criminal justice, Mark Drumbl and Rob Sloane argued, very eloquently, that retribution was not a viable basis for punishment in international criminal law.

Sasha takes issue with their approach, drawing heavily on a rich literature in the theory of criminal law. His article is brilliantly written, profound in scope, and has important real world implications.

At the same time, it will certainly not convince everyone. For that reason, I have cajoled Mark Drumbl, Adil Haque, Rob Sloane and Meg deGuzman to write blogs criticizing Greenawalt’s great piece. Of course, I’ll also invite Greenawalt to reply.

In terms of timing, I’ll post Drumbl and Haque’s responses in the coming days, then ask Greenawalt to respond to them later this week.

Rob Sloane and Meg deGuzman have agreed to reopen the debate in late December this year, so the discussion will take place in two split tranches. We’ll then give Greenawalt the final word.

So, welcome to all my friends and colleagues! It’s a real privilege to have you launching what I hope will become a central platform for these sorts of scholarly debates.