JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law, by Darryl Robinson, Cambridge University Press, 2020, 304 pages, £85.00
Law is an enterprise of reasoning, and thus I believe that we must pay careful attention not only to the legal conclusions reached, but also to the structure of arguments employed. A judgement might employ problematic reasoning and still reach a defensible result. Nonetheless, the reasoning matters, because replication of faulty structure of arguments will eventually produce faulty outcomes. Our reasoning is our “math,” and systemic distortions in our math will eventually throw off our calculations in significant ways. (p. 54)
Some twenty years ago when I found myself at the International Criminal Tribunal for the former Yugoslavia (ICTY), I was rather puzzled. I expected (not sure why) to have judges on the bench who, like myself, had cut their teeth in criminal courts, and who, of course, would also have a deep appreciation of international criminal law (ICL) as well as human rights and humanitarian law. I say this because in some of the legal reasonings I noticed how certain fundamental principles were being loosely interpreted to achieve or explain a pre-ordained decision. Eventually it dawned on me. A judge’s understanding of and experience with criminal law (or lack thereof) prior to donning the crimson robe informed their approach to applying fundamental principles intrinsic to criminal law and ICL.
As I struggled to pinpoint the cause for the disparate reasoning approaches among judges (naïvely I expected uniformity, consistency, and predictability since these were “international” judges after all), I came to realize that those coming from a liberal bent informed by and adherent to human rights and humanitarian law (which I loosely refer to as “liberal”) tend to be guided by a malleable juristic inner compass. Here is what I mean.
When we hear of an arrest of an acknowledged human rights defender, liberal-thinking human rights and humanitarian law advocates demand that the highest standards of internationally recognized rights, the strictest adherence to the principle of legality, and the fullest enjoyment of all procedural avenues be accorded. They unreservedly cloak this personality with the presumption of innocence, they doggedly advocate for the rejection of unreliable and unverifiable evidence, they insist that the principle of in dubio pro reo, which dates back to Ancient Greece (if not before), be honored. Yet, when it comes to an accused facing charges of mass atrocities before any of the international(ized) criminal tribunals and courts, these same liberal human rights and humanitarian law champions have no compunction in applying a different standard.
When such liberals become jurists, they tend to bend and shape the law and modes of liability to achieve what they consider an appropriate result, to admit and rely on evidence that would not even pass the laughing test in a national court (let alone be relied on in making critical findings that go to guilt), and to turn on its head the principle of in dubio pro reo by opting, for all intents and purposes, for an in dubio contra reum (in doubt, against the accused) approach. As Professor Darryl Robinson notes, “[s]cholars have pointed out that ICL, despite proclaiming its adherence to fundamental principles, often seems to contravene these principles.”
On the other end of the spectrum, liberal thinkers and jurists point to non-liberal, “conservative” judges, who, in their view, apply the law and procedure in ways that undermine the purpose of holding mass atrocity trials and of shortchanging the victims (here you might want to revisit my post concerning Judge Luz del Carmen Ibáñez Carranza’s dissenting opinion in the Gbagbo appeal). Their argument goes something like this. Conservative jurists approach and apply ICL much as they apply criminal law in their domestic settings. In doing so, they tend to be exceptionally strict-constructionist, unnecessarily rigid sticklers when it comes to applying fundamental principles which they interpret and apply broadly.
Unsurprisingly, the ICC’s Bemba appeal judgment, and Gbagbo Decision on No Case to Answer and appeal judgment are cited by liberal thinkers and jurists as the prime examples of justice gone wrong. Yet, in my opinion, in both cases, the majority of all three benches got it right. In Bemba, for instance, the majority of the Appeals Chamber questioned the manner in which the Trial Chamber had assessed the evidence, correctly applying the standard of review – as opposed to turning a blind-eye to what appeared to be a failure to consider large swaths of evidence, which, if considered, would have lead to a different outcome. As for Gbagbo, the prosecution evidence was so lacking that no amount of slight-of-hand fact-finding would have made a silk purse out of that sow’s ear of a case. I invite critics to pour over Judge Geoffrey Henderson’s findings of facts, which, unreservedly, were adopted by Judge Cuno Tarfusser, before meanderingly rendering his somewhat stream-of-consciousness exposé of the prosecution’s lack of proof and failure to adduce evidence in its case-in-chief, meriting the case to proceed. So, it is simply a canard to suggest that Bemba and Gbagbo were wrongly reasoned by “conservative” judges to the detriment of the victims.
While I am receptive to the possibility that there may be judges so conservative, so demanding of the prosecution to provide exceptionally reliable evidence, and so exacting when applying fundamental principles that they may error in favor of the accused at the expense of the victims, I have yet to see one. And frankly, as a defence lawyer, give me a conservative judge when it comes to strictly adhering to the letter of the law and holding the prosecution to its standard of proof, than a liberal judge, who, aside from being lax in admitting and assessing evidence (which is nothing short of putting a thumb on the scale), is also willing to be inventive and to distort the application of ICL by importing and transplanting reasoning and argumentation from human rights and humanitarian law without regard or appreciation of the criminal law context (as was the case with many of the first batch of judges at the ICTY) – something I have noted in the past, and now eloquently observed and analyzed by Prof. Robinson.
Irrespective where you may find yourself in this liberal v. conservative debate, Prof. Robinson thinks there is an alternative approach to reasoning in ICL that does not sacrifice underlying fundamental principles but rather guides jurists to better reasoned, and invariably more acceptable, results. That in a nutshell is what JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law is all about.
In JUSTICE IN EXTREME CASES, Prof. Robinson sets out to establish three objectives: a. the problem (Part I), b. the solution (Part II), and c. the applicable methodology (Part III). Practitioners may find some of the text a bit too theoretical or esoteric. Inspired, as it seems, from H. L. A. Hart, Prof. Robinson offers more of a philosophic treatment than a practical guide on his proposed alternative approach to ICL reasoning. To assist the reader, he provides four annexes, adding more food for thought and grist for the mill.
There is far too much to unpack from this book in a short, non-academic blog post so I will just try to capture the essence of Prof. Robinson’s thesis, which, if there is one passage that undergirds it, is this one:
In ICL, the distortions often result from habits of reasoning that are progressive and appropriate in human rights law and humanitarian law, but which become problematic when transplanted without adequate reflection to a criminal law system. I highlight three kinds of such reasoning: interpretative assumptions, substantive and structural assumptions, and ideological assumptions. These habits of reasoning were more prevalent in the early days of the renaissance of ICL, than they are today. It is still valuable to discern and dissect these habits of reasoning, because their legacy continues, because they still recur today, and because they help to show value of attending to reasoning. (p. 20)
Prof. Robinson hits the bull’s-eye. As he points out (something I have griped about over the years), when it comes to compliance with fundamental principles such as the principle of legality, liberal systems (international(ized) criminal tribunals and courts) are opportunistically willing to embrace illiberal doctrines – as seen at the ad hoc tribunals in their early days when the so-called doctrine of joint criminal enterprise (JCE) was concocted, modes of liability and definitions of crimes were expanded, and defences normally found in national jurisdictions were rejected. Thus, in creating ICL, judges “drew on criminal law, as well as international human rights and humanitarian law,” with little contextual understanding that criminal law “requires different thinking.”
Prof. Robinson is equally critical of jurists who take a conservative approach for “applying abnormally exacting procedural requirements, evidentiary expectations, standards of review, narrow definitions, and conceptions of culpability principles.” Like the liberal jurists, they too are shaped by their own background and experience. Perhaps because they are too reliant on the domestic reasoning of criminal law and not fully appreciative of the unavoidable vagaries of ICL since it will remain a work in progress (shaped and refined through its application), they fail to recognize the need for some flexibility. In Prof. Robinson’s words:
The inclination toward higher standards is commendable, but if barriers to conviction are increased out of misguided enthusiasm beyond what is required by deontic principles, then one sacrifices the system’s impact and purpose for no deontic consequentialists reasons. A convergence of inappropriately rigid standards will, at best, increase the time and resources required for each investigation and prosecution; at worst, it will lead to the continued collapsing of cases. Either outcome entails unnecessary expenditure of social resources and a diminishment of the intended expressive message and beneficial impact of ICL.
Because of these two approaches to reasoning and applying fundamental principles (personal culpability, legality, and fair labelling of crimes/offenses that accurately reflect the accused’s wrongdoing), Prof. Robinson sees the need for a sound delineation of them, a new approach. As in seeking enlightenment in Buddhism one must search for the Middle Way, Prof. Robinson proposes the need for a “mid-level principles and ‘coherentist’ approach to identifying and delineating deontic principles” – principles that pertain to duty owed to others, imbedded in deontological ethical theories or other ethical theories dealing with rightness and wrongness.
Aside from source-based reasoning (what legal authorities permit or require), and teleological reasoning (examining the purpose and consequences), Prof. Robinson advocates that criminal law requires a third kind of reasoning – deontic reasoning: reasoning that “focuses not on what the texts and precedents allow or how to maximize beneficial impact, but on the principled constraints arising from respect of the personhood or agency or accused persons as moral agents.” And here is where the coherentist approach comes in.
Accepting that there will never be certainty about principles of justice, the coherentist approach examines all available clues, patterns of practice, and normative arguments to identify a coherent and convincing narrative. Coherentism accepts that “foundations” are not available, and that “beliefs cannot be, and do not have to be rooted in secure comprehensive foundations.” As a holistic approach it “aims to refine a system of beliefs, rooted in observations and experiences.” Prof. Robinson admits that it is an “anti-Cartesian and fallibilist” approach that does not promote certainty, but as “a form of practical reasoning” its aim is not to “unearth the ultimate truth” but to “address concrete human problems and questions as best we can.” This entails looking at all available clues such as:
patterns of practice for clues about underlying insights of justice, which can include comparative analysis (looking at other jurisdictions, other areas of law, or possibly even other social practices) … normative arguments and practical reasons, as well as intuition and considered judgements in casuistic testing … seek[ing] coherence in the deepest sense with what appear to be the best understandings of the underlying values.
As a defence lawyer, I find Prof. Robinson’s mid-level principles and coherentist approach an interesting theoretical concept but flawed and unwelcoming for judicial application. First, I fail to see how cases at the international(ized) criminal tribunals and courts are “extreme” in the sense that a new legal reasoning approach is needed as opposed to applying conventional legal reasoning expected of a dispassionate judge in an ordinary criminal case. Why, for instance, should the principle of legality be interpreted or applied differently in these “extreme” cases, and if so, where do the contours of legality extend to and based on what criteria? Second, should not accused expect certainty, uniformity, predictability when tried by international judges, just as they would if tried by national judges? Third, are not all the variables being asked to be considered by coherentism malleable, inexact, and even capricious – depending, whimsically, if you will, on a judge’s legal tradition, experiences, and predilections? Fourth, what is so wrong in simply applying ordinary judicial reasoning when assessing the facts and in applying the law without indulging in a coherentist hunt for clues? Finally, if the facts are wanting for a conviction or if the law does not permit desired wiggle-room to achieve a conviction (sorry, but I do not see coherentism to inure to the benefit of the accused), is not justice better served through an acquittal, as opposed to searching for ways to compensate for the prosecution’s failures lest the victims suffer?
Criticism of Prof. Robinson’s mid-level principles and coherentist approach aside, I found Part III of JUSTICE IN EXTREME CASES of particular interest. Prof. Robinson dissects the jurisprudence on command responsibility to demonstrate his methodology to the mid-level principles and coherentist approach. Though I am unconvinced that he fully succeeds in validating his theses, I found his analysis of the cases solid and his remarks on much of what has been written on command responsibility and the case law from the international(ized) criminal tribunals and courts constructive. Candidly, Part III is one of the better analyses I have come across on command responsibility. Whether defending, prosecuting, or judging a case where command responsibility is an issue, I highly recommend consulting the chapters to this section of the book.
In providing a new approach to ICL legal reasoning, Prof. Robinson facilitates an appreciation as to why in ICL there is a tendency to undermine compliance with proclaimed principles, and that even when the outcome may be sufficiently appropriate (a hit or miss proposition), the result is likely to enjoy less acceptance because of how it was reached. Though I am reluctant as a defence lawyer to buy into his mid-level principles and coherentist approach (I prefer certainty and strict constructionism), I find merit in being challenged to reconsider my own views based on his innovative thinking.
This well-reasoned, bountifully sourced, and exceptionally insightful book is neither a quick nor an effortless read. You may find yourself poring over passages and flipping back and forth to the glossary as you get into the groove, but the effort is worth it. So, if you’re looking for a fast-paced, entraining book for the beach, this is not it. If, however, you are interested in some challenging thinking that questions orthodoxies, if you are willing to bear with a philosophical lexicon that can be off-putting, and if you are in search of a new way of thinking about the interpretation and application of ICL, then JUSTICE IN EXTREME CASES – Criminal Law Theory Meets International Criminal Law delivers.