"International Criminal Law and Philosophy," Larry May and Zachary Hoskins, eds. [Full Text]
Ethics & International Affairs, Volume 25.1 (March 2011)
April 6, 2011
International Criminal Law and Philosophy, Larry May and Zachary Hoskins, eds. (Cambridge: Cambridge University Press, 2010), 268 pp., $88 cloth.
Pablo Kalmanovitz (Reviewer)
Since the UN Security Council created international tribunals to investigate crimes committed in the former Yugoslavia and Rwanda (in 1993 and 1994, respectively), and especially with the creation of the International Criminal Court in 2002, international criminal law has grown into a well-established area of international law. This development, which is arguably unprecedented in international society, raises several kinds of important and difficult questions. In a positive vein, political scientists are investigating how international trials actually work and their prospects for becoming a stable international institution. Lawyers and political theorists are examining the substance of international criminal law and the procedures it should follow, in particular asking which reforms to current practice would be valuable or required by justice. Philosophers are asking, more abstractly, what values may justify the practice of international criminal justice overall, and have also begun to scrutinize concepts that belong properly to international criminal discourse, such as those of joint criminal enterprise and genocidal intent.
Larry May, one of the foremost philosophers currently working in the philosophy of international law, and Zachary Hoskins, a doctoral candidate at Washington University in St. Louis, have assembled a series of articles by lawyers and political philosophers that examine normative and philosophical questions of international criminal law. Most contributions to this volume point to specific areas of international practice that require reform, but some deal with more general questions of justification; most defend some sort of expansion of international criminal law, and hence a reduction of state sovereignty, but some take a more conservative state-favoring position. Much to its credit, the volume attempts no easy defense of international criminal legal practice, and features many contributions that explicitly acknowledge and address some serious reasons for skepticism about the practice's overall benefits.
Parts one and four of the book contain chapters discussing general issues of sovereignty,international jurisdiction, and criminal justice. The tension between expansive and conservative arguments, which is recognizable throughout the book, is already clear in the first two chapters, by Win-chiat Lee and Kristen Hessler, respectively. Lee contends that when the state causes or fails to prevent serious harm against its own citizens, it relinquishes its own authority to punish, and as a consequence international society gains punitive authority. This, Lee claims, should be seen as the paradigmatic case of international crime, from which all other cases are deviations of some sort (p. 18). Hessler, on the other hand, helpfully proposes a fragmentary account of state sovereignty, which allows for a more finely tuned approach to international interventions. While for Lee the state altogether loses its authority to punish when its own officials harm its citizens, Hessler leaves room for developing the state's self-improving capacities even in such cases. Instead of allowing for an insufficiently specified "international community" to take over the tasks of criminal justice, as Lee does, Hessler recommends international assistance in domestic institution building, particularly in promoting domestic criminal justice capacities (p. 49).
When it comes to strengthening the state's ability to purge its own harmful officials, and thus to prevent human rights violations in the longer run, domestic institution building would seem to be more effective than the imposition of direct international criminal jurisdiction. This conclusion is also supported by the partly overlapping contributions by Deirdre Golash and Leslie and John Francis, which raise serious doubts about the role of international criminal trials in preventing crime. Although more conjectural than empirical, their arguments offer a distinct contrast both to canonical theories of punishment, which tend to treat deterrence as one of its strongest justifications, and to the Security Council resolutions that created the international tribunals, which justified them largely on the basis of their alleged deterring effects.
Building on well-established research in social psychology, Golash argues that most perpetrators of collective forms of violence, such as genocide and war crimes, are highly unlikely to be deterred by the threat of criminal sanctions. Francis and Francis concur, but they draw a problematic normative conclusion. Starting with the lucid observation that international crimes typically take place in "partial compliance contexts," that is, in conditions of high social instability and insecurity where the full repertoire of justice cannot apply (p. 64), they move on to treat the safeguards of due process as potentially disposable elements of ideal justice, and suggest that they be relaxed in order to increase deterrence. As I see it, it would seem far more reasonable to claim that whenever criminal procedures are instituted these protections must be in place, and that due process is too high a price to pay for international deterrence. It follows that if deterrence were the only justification for punishment, there would be good reasons to abandon the project of international criminal justice as a whole.
Colleen Murphy's excellent chapter explores an alternative justification for international trials that is highly relevant for partial compliance contexts—namely, postconflict reconciliation. Relying on Lon Fuller's work on the rule of law, Murphy understands reconciliation in the precise sense of "fostering the social conditions required for law's efficacy" (p. 232), and argues that, in societies plagued by dysfunctional legal institutions, international justice may provide a "sharply contrasting model" and thus have a valuable "educative role" (p. 239). There is promise in this proposal, although David Cohen's detailed empirical studies of hybrid tribunals should be kept in mind. As Cohen has shown, unless the highly demanding tasks of public outreach and legal training are treated as explicit institutional goals, for which sufficient resources and staff are provided, no major transformations in local legal practices should be expected from international trials per se.
Parts two and three contain the book's more concrete proposals, among which three stand out. Helen Stacy considers whether to include "harmful traditional practices," such as female genital cutting, in the repertoire of international criminal law, and argues against it. Her discussion highlights important differences between the institutional mechanisms most adequate for promoting international humanitarian law and those for international human rights law. Larry May proposes a nominalist conceptual account of protected groups in genocide law, and argues for an expansion in the legal definition. While current genocide law only recognizes national, ethnic, racial, and religious groups, May proposes treating any "publicly recognized group that is relatively stable and significant for the identity of its members" as worthy of direct international legal protection (p. 107). Last, Douglas Lackey contributes to the emerging field of jus post bellum by considering the question of who should be liable for environmental damages caused during war. Lackey contends that environmental damage should be seen as "damage to an international body politic" (p. 147), and defends a strict liability rule according to which the belligerent party that causes the damage should be liable for environmental restoration, independently of any consideration of jus ad bellum.
All in all, International Criminal Law and Philosophy raises fundamental questions and examines novel issues in the emerging field of international criminal law. The volume would have been stronger had it included more empirically oriented contributions, dealing, for example, with incentive effects, administrative capacity, and strategic uses of international criminal law. Nonetheless, May and Hoskins have provided a valuable contribution to current multidisciplinary debates on international criminal law.
Pablo Kalmanovitz recently earned his Ph.D. in political science from Columbia University and is currently a Visiting Assistant Professor in the law school at the Universidad de los Andes in Bogota, Colombia.