Tuesday, July 5, 2005
Adil Ahmad Haque has posted Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law on SSRN. Here's the abstract:
The central aim of this Article is to outline a relational theory of retributive justice that illuminates (i) 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; (ii) 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; and (iii) the roots of state resistance to international tribunals and the role of complementary jurisdiction in rationing the latter's political capital. The theory locates the legitimacy of institutional coercion within a structure of rights and duties linking authors of wrongs, victims of crime, and agents of punishment. The legitimacy of international criminal law arises from defects in the 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 within that (broadly deontological) structure. 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.
To obtain the paper, click here. [Mark Godsey]