Abstract
This paper argues that there is a default presumption that punishment has some deterrent effect, and that the burden of proof is upon those who allege that the costs of any particular penal system are insufficient to offset its deterrent benefits. This burden of proof transmits to the discussion of international law, with the conclusion that it is those who oppose international jurisdiction, rather than their opponents, who must prove their position. This they have so far failed to do.
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Notes
Under the Lomé peace agreement in Sierra Leone, Foday Sankoh was to become the chairman of a commission overseeing the country’s mineral resources, with the rank of Vice President. Several of his men would have occupied other high-ranking Government positions in a power-sharing arrangement. Whether through inability or unwillingness, Sankoh and his men did not honor the agreement.
Both now hold important positions in the Northern Ireland Assembly.
For more detail, see Ellis (2003, 2005). For similar views, see Quinn (1985) and Montague (1995). Here I disagree with the common characterization of the deterrence theory that it is ‘the notion that if one person is punished, this will reduce the likelihood that another person…will offend in the future’ (Drumbl 2007, p. 169). But this is not germane to the present purpose.
I am aware, of course, that this claim has been denied, but I do not have space here to give further arguments.
The effect on the indirect deterrent effect is more complicated. See Nagin (2000, p. 351ff.).
Not understood in an egoistic way.
For an account of the methods used in deterrence research, see Nagin (2000, pp. 345–368).
The classic econometric work was done by Becker (1968, pp. 169–217). For a discussion of some of the complications in this approach, see Zimring and Hawkins (1973). For a sample of more recent work, see, for instance, Levitt (1998). The general conclusion of the econometrics literature is that ‘The probability of punishment seems to be an important deterrent, whereas the evidence regarding the severity of formal punishment is much less conclusive’ (Benson et al. 1999, p. 222). There is, of course, considerable controversy amongst economists about the methods used by these researchers. For a more general survey of the effectiveness of punishment, see Nagin (2000)—‘I am persuaded that the collective actions of the criminal justice system exert a substantial deterrent effect’ (p. 346) and Walker (1991)—‘[No] sensible penologists doubt that penalties operate as deterrents’ (p. 15).
Note that a modest effect may be sufficient to justify punishment—a point often overlooked by many opponents of the deterrence theory (such as Drumbl 2007, p. 169ff).
Or excused if it misjudges the balance: the distinction is not important here.
But it is not obvious. On 14th July, 2008, the prosecutor at the ICC formally requested an arrest warrant for the President of Sudan, Omar Hassan al-Bashir, on charges of genocide and war crimes. Informed opinion was divided about whether or not this would aid the peace process.
This is not to overlook the relative fluidity of international law. But the fluidity is indeed only relative. And the chances that high level leaders, and soldiers who have been trained in military academies, will know the applicable law are, I should think, quite high.
Or local courts largely supported by an occupying power as with the Iraqi High Tribunal, largely overseen by the Regime Crimes Liaison Unit (a US Justice Department agency located in the US Embassy in Iraq).
It can be woeful in more than one way. After World War I, German prosecution of war crimes was derisory. In Rwanda, in the aftermath of the genocide, more than 100,000 people have been imprisoned in dire conditions.
But in somewhat remote circumstances, the ICC can take jurisdiction of a case from a local court (see the Statute of the ICC, 1998, Articles 13–19).
Actually, virtually no sensible person objects to international criminal jurisdiction as a whole; it’s a very old idea. The objection is really to the International Criminal Court and other UN tribunals.
May is speaking explicitly of international crimes generally, not just war crimes. He is largely followed in this view by Drumbl (2007, p. 6, 34, 182).
‘In domestic settings, criminal prosecutions should only go forward when group-based individual harm is alleged—that is, harm that affects not only the individual victim but also the community. In international criminal law, harms that are prosecuted should similarly affect…the world community, or humanity’ (May 2005, p. 82).
I suspect that perhaps May means ‘harmed by being put in jeopardy’. At any rate, for this discussion I shall accept that being put at risk counts as a harm.
Husak also holds that the criminal law has a legitimate interest only in behavior that wrongs ‘the community itself’. But he glosses that as whether ‘given wrongs are done not only to individual victims but also to the shared values and interests of communities’ (Husak 2008, p. 136ff). It is, surely, barely intelligible to speak of doing a wrong to a value or interest. It is, presumably, simply another way of saying that ‘the whole community has a stake in reducing violence’ (p. 136), and cannot explain that claim.
I take it that May intends ‘world community’ and ‘humanity’ to be co-referring here.
‘In this second way that harms are group-based, it is not that the victim is experiencing group-based harm but rather that there is State involvement…in the harmful acts, thereby making these acts systematic rather than random’ (May 2005, p. 8).
Or false: it is unique to each that he has not voluntarily joined the group.
Cf. ‘when attacks on individuals are based on group characteristics rather than the individual characteristics of the victims, there is a much greater likelihood that the harms will be spread throughout a population rather than focused exclusively on a particular victim’ (May 2005, p. 86).
Of course, the independence of Kosovo in 2008 was greeted with alarm by a number of states—including India—that had no significant interest in the Balkans save for the possible precedent effect of recognizing Kosovo.
May recognizes the shift in his Aggression and Crimes against Peace (May 2008, p. 4).
I am not sure what ‘nearly’ is supposed to rule out (or ‘very little if anything’ (May 2007, p. 59). May here speaks only of self-defense in war; whether he intends it more generally I am not sure. It’s also a little unclear to what extent May subscribes to this view himself or is simply attributing it to Grotius, or the seventeenth thinkers generally. Note also that on p. 57 May says, ‘On this Grotian account, we owe people more than natural justice would dictate’ (my emphasis); so we do presumably owe them more than nothing.
But the statute of the International Criminal Court allows direct ‘interference’ in only very remote circumstances.
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Ellis, A. War Crimes, Punishment and the Burden of Proof. Res Publica 16, 181–196 (2010). https://doi.org/10.1007/s11158-010-9110-6
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DOI: https://doi.org/10.1007/s11158-010-9110-6