Luban: Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law

David Luban (Georgetown Univ. - Law) has posted Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law. Here's the abstract:

This paper investigates the legitimacy of international criminal trials and defends them against objections grounded in the principle of legality. The argument begins with the observation that the center of gravity in international criminal tribunals lies in the trials themselves more than the punishments inflicted. Such often-discussed aims as giving victims a voice or creating a historical record of mass atrocities are goals of the trial process, not the punishment. Often, it is the spectacle of a former leader brought before a court for politically-motivated atrocities that captures the public imagination; the trial itself has a theatrical or didactic component. That is not an objection to the trials, if they are conducted fairly. But the use of the trial as political theater puts pressure on its fairness. This paper argues that the aim of the trials is norm projection: trials are expressive acts broadcasting the news that mass atrocities are, in fact, heinous crimes and not merely politics by other means. The trials are meant to project the message that atrocities are crimes, not political deeds that exist "beyond good and evil," a vision that underlies traditional amoralist concepts of raison d'tat or Kriegsraison.

The second principal thesis of the paper is that the legitimacy of the tribunals comes from the fairness of their procedures and punishments, not their political pedigree. The legal and political arguments for the jurisdictional authority of international bodies to establish tribunals are only partly satisfactory, and insufficient on their own to legitimize the tribunals. Tribunals bootstrap themselves into legitimacy by the quality of justice they deliver; their rightness depends on their fairness. The clearest example is the Nuremberg Tribunal. Established by victorious allies with jurisdiction only over the Axis powers, it had to prove that it was no show trial, and the clearest evidence was the acquittals it produced.

The final sections of the paper address the concern that international tribunals characteristically violate the principle of legality, in two ways: they are generally established only after the crimes they try are committed, and they sometimes read the law broadly, from a victim-centered point of view, rather than narrowly, as the legality-based rule of lenity in criminal law would require. The paper argues that the two motivating arguments behind the principle of legality - concern about fair notice, and concern about despotic abuse of the power to punish - are less compelling in international criminal law than they are in domestic law. As for the fair-notice rationale: the more horrendous the deeds, the less fairness requires formal notice of potential criminal liability. As for the government abuse rationale: there is simply much less danger of government abuse in international criminal law than in domestic legal systems, because ICL arises from weak, decentralized institutions rather than strong, concentrated ones. Skeptics point to the free-floating, cosmopolitan character of the tribunals in order to attack their legitimacy. But exactly the same facts demonstrate that the worry about abuses of the legal process by holders of state power is not a powerful one.