Drumbl: Extracurricular International Criminal Law

Mark A. Drumbl (Washington and Lee Univ. - Law) has posted Extracurricular International Criminal Law. Here's the abstract:

Domestic criminal law informs the register of international criminal law, whether formally through the development of general principles of law or informally through experience and analogy. Reciprocally, international criminal law also informs the register of domestic criminal law, whether formally through incorporation of treaty and custom or, once again, informally through experience and analogy. Circulation thereby arises within the curricular sphere of penal responsibility.

Might international criminal law nonetheless, and perhaps unexpectedly, stray elsewhere in domestic law? When it comes to municipal legal practice, might international criminal law cast a somewhat longer shadow, travel a bit farther, or leave a somewhat haler legacy?

This paper considers such extracurricular effects, and related trans-judicial dialogue, by unpacking the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ATS). The ATS allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations (a phrase taken to mean customary international law). This project organizes itself around a survey of US federal court citations to the case-law and materials of the International Criminal Tribunal for Rwanda (ICTR). This survey quickly demonstrates that US judges who cite to ICTR work product to determine the rule of application in an ATS dispute also frequently cite to the case-law and materials of other institutions, notably the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Court (ICC), the International Military Tribunal at Nuremberg (IMT), and the American Military Tribunal at Nuremberg (AMT). Hence, this Article references these cases and materials as well. While diverse, citations to international cases and materials in ATS adjudication tend to cluster around three substantive areas: (1) aiding and abetting as a mode of liability; (2) the definition and substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability.

In light of the sharply limited capacity of international criminal courts and tribunals, domestic tort claims as avenues for redress of systematic human rights abuses will likely grow in number. The experiences of US courts of general jurisdiction as ‘receivers’ of international criminal law reveal broader patterns of transnational legal migration and a largely unanticipated legacy of international criminal courts and tribunals. Distortions may nonetheless arise when international norms migrate into legal practices at the national level, in particular, when they do so in cognate legal regimes. These migrations constitute national practices indicative of “comparative international law,” namely, that international legal norms may take shape differently among, and within, various national jurisdictions. While international criminal lawyers may welcome the broad diffusion of international norms, including extracurricularly from the criminal to civil context in a rich array of venues, concerns emerge should the content of the norms fragment and, thereby, weaken international law’s purported universality. The US experience is thereby instructive in terms of striking the appropriate relationship between national courts and international law. Should national courts serve as dispassionate law enforcers, as translators of law, or engaged law creators? Should international judges be mindful of the at times unforeseen afterlife of the jurisprudence they create? Obversely, the US experience also raises questions as to whether the specialized, and at times inconsistent, work-product of the international criminal courts and tribunals is even suitable for broader dissemination and incorporation at the national level.