Crimes beyond justice? Retributivism and war crimes

Abstract

For these crimes, no punishment is severe enough. It may well be essential to hang Goring, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems. That is the reason why the Nazis in Nuremberg are so smug. --Hannah Arendt (1) What you end up in post-genocide society is not justice. Perhaps we should use another word for it. --Gerald Gahima, Deputy Minister of Justice, Rwanda (2) In recent history, mass atrocities have occurred only at the margins of western experience. Since the end of World War II at least, the worst international crimes have taken place in remote spots like Cambodia, Rwanda, and Yugoslavia, appearing only as ghostly images on CNN and in the pages of Life magazine. This fact has had many consequences for our thinking about the relations between law, justice, and international society. In particular, it has left faith in international law and international criminal proceedings largely unchallenged in much of western consciousness. Increasingly, international criminal tribunals are promoted by diplomats and legal scholars as a means by which victims of horrendous crimes may achieve justice, and states may develop an international order based on a respect for rights. This movement reached a dramatic new phase with the codification of the Rome Statute of the International Criminal Court (ICC) and its entry into force in July 2002 (with 139 signers). However, the development of this novel institution may bring the power as well as the limitations of international criminal justice into public debate again, raising questions that were asked--and largely dropped--at the end of World War II. One such observation was that of Hannah Arendt, quoted above. I take Arendt's comments and her somewhat oblique criticism to be important for understanding the moral foundations of modern war-crimes trials. In my view, she points to a problem that creeps only around the edges of contemporary legal thought, but one which nonetheless requires serious reflection. In particular, her assertion about Nuremberg points to a serious problem for retributivists (like myself), for whom punishment is considered to be a moral response to the crimes that were committed. In essence, if there is no possible equivalence between crime and punishment then, as Arendt asserts, then there is no moral rationale for such trials. Or at least, if this is the case, the retributivist view of punishment is in some deep sense a flawed one. However, this is not just a critique of a particular theory of criminal punishment, a theory that could be easily discarded in favor of another more appropriate one. Rather, Arendt's critique cuts deeper than mere theory. Her insight (shared by Churchill among others) points to a flaw in the central rationale for the nascent international criminal law regime. This legal order (comprising treaties, customs, and moral principles developed over the last sixty years since the international Military Tribunal [IMT] at Nuremberg) has been constructed around a particular philosophical ideal that depends on notions of justice, order, and dignity. It is these values that are the object of Arendt's critique. Thus, if her criticism is a valid one, it would prove devastating for the entire program of international criminal justice. In this essay, I seek to make sense of a retributivist approach to punishment for war crimes in light of Arendt's observation. My argument has several steps. First, I claim that a retributivist theory of punishment is the only approach that can effectively make sense out of the human rights revolution, on one hand, and war-crimes trials, on the other. This is especially true in light of current international criminal law and the newly constructed ICC. Second, I will turn to Arendt's objection, one that I take to be particularly threatening for the retributivist because it attacks this view on its own terms (that is, it offers an internal critique of retributivism). …