International Criminal Law for Retributivists
77 Pages Posted: 18 Mar 2014 Last revised: 7 Nov 2014
Date Written: March 18, 2014
Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment — which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits — has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice — for example, the extreme selectivity of punishment or the lack of certain social or political preconditions — are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing mention.
This Article counters the anti-retributive strain by arguing that retributivism can indeed provide a meaningful framework for understanding ICL. First, I argue that in most respects retributive theory is no less plausible in the international setting than it is in the domestic setting. Understanding what claims retributive thinking might have upon ICL requires one to distinguish claims regarding the general justification required to defend punishment as a social practice — the core concern of retributive theory — from the more specific questions of institutional design — such as whether and when to create an international criminal tribunal, and how to set enforcement priorities — that are most pertinent to ICL scholars. I argue that, once these distinctions are sorted out, the anti-retributivist strain in ICL scholarship does little to engage retributivism’s core claim that desert is necessary to morally justified punishment and provides an inherently good (if not exclusive) reason to punish irrespective of potential social benefits.
I also argue that retributivism is more compatible than commonly supposed with current thinking about international criminal justice. The theory permits various models for engaging the compromises of real world institutions. It provides a powerful lens for understanding the design of ICL institutions such as the International Criminal Court (“ICC”), and it is also compatible with dominant approaches to institutional decisions such as case selection and sentencing. Perhaps counter-intuitively, retributivism can also supply a framework for sometimes favoring alternatives to the traditional criminal prosecutions pursued by international courts, or even for opposing ICL altogether.
Finally, I argue that choice of punishment philosophy has less practical significance for ICL than theorists often assume. In particular, I argue that the choice between retributivism and other competing theories does little to resolve important policy dilemmas dividing theorists of ICL, including whether prosecution should sometimes be abandoned for amnesty or other alternatives. This point supports a broader argument that ICL is simultaneously overdetermined and underdetermined by traditional punishment theory: While the core of ICL is consistent with multiple theories of punishment, these theories provide only limited practical guidance on the most divisive questions.
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