Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law

Abstract

International criminal law is frequently portrayed as the strong arm of the international human rights regime, an instrument designed to safeguard the dignity of each human person. There is an important truth to this characterization: international crimes involve many of the most grotesque violations of individual rights human beings inflict and endure. Yet the areas of international criminal law that are the subject of this Article apply to the doings and sufferings of individuals only indirectly. The law governing crimes against humanity and genocide frames the acts and fates of individuals against broader and darker patterns of group perpetration and group victimization. It is only within the context of group violence that international law attributes individual responsibility for wrongdoing and vindicates the rights of the individuals wronged. The conceptual mismatch between the moral individualism of human rights discourse and the collectivist structure of international criminal law requires theoretical resolution. The theory developed in Part II locates the legitimacy of institutional coercion within a structure of rights and duties linking authors of wrongs, victims of crime, and agents of punishment. As Part III explains, the need for international criminal law arises from the defective embodiment of this relational structure in social groups and failing states, defects which devolve retributive justice into cycles of escalating violence. The displacement of group vengeance by legal process is not the (broadly consequentialist) ground of the relational structure, but rather a reason for one set of social institutions rather than others to occupy a position of authority within that (broadly deontological) structure. Although the relational theory is intended as an independent contribution to the philosophy of criminal law, its cash value lies in its power to illuminate the role of group perpetration and group victimization in justifying the displacement of domestic law by international law and the intervention of international tribunals into internal armed conflict (Part IV); the relative gravity of genocide and crimes against humanity as well as the grouping of persecution and apartheid with crimes whose constituent acts cause greater physical destruction (Part V); and the roots of state resistance to international tribunals and the role of complementary jurisdiction in rationing the latter’s political capital (Part VI).The Article concludes by revisiting the grounds of the duties asserted, arguing that the duty to punish rests ultimately on the duty to protect, that invocation of the former implicitly admits failure to discharge the latter. The Article is intended as a contribution both to the growing literature surrounding the philosophical foundations of international criminal law and to traditional criminal law theory.