Legal expert proposes reforms to international criminal law

30 January 2009

The Foundation's recent event examining the effectiveness of international courts at delivering justice was opened by Mark Drumbl, Professor of Law and Director of the Transnational Law Institute at Washington and Lee University, who delivered the opening address entitled: ‘Justice after Atrocity: A Cosmopolitan Pluralist Approach’. In the lecture, delivered at St Hugh's College, Oxford on 28 January, Professor Drumbl sought to question the reductionism of existing orthodoxies of international criminal law, outlining a proposal for reform of cases concerning genocide and mass atrocity, to expand the lexicon of international justice beyond the courtroom.

Drawing on the ICC trial of Thomas Lubanga, in which child soldiers were called as witnesses for the prosecution, Drumbl demonstrated the moral complexity of such cases, given that many perpetrators, including Lubanga, were children when they committed their crimes, and had been forced to join military training camps.

He argued that recognizing collective responsibility in cases of collective violence was of paramount importance: “… criminal law builds on a major fiction: namely that, as Nuremberg intoned, wide-scale atrocity is the crime of men. …. Atrocity is also the product of groups, of acquiescent bystanders, of collective action, of colonial histories and blood diamonds, and of the passivity of foreign states.”

Professor Drumbl went on to claim that the criminalization of certain individuals, embodied in the mandate of the ICC, prompts scepticism towards alternative mechanisms that may be used in the quest for justice, many of which afflicted populations prefer. His proposal for a cosmopolitan pluralism involved a nuanced vision in which universal norms regarding accountability for extreme evil are operationalized through diverse mechanisms that will vary according to the context. Whilst acknowledging the tension that this theory gives rise to, he asserted its validity since, though atrocity violates universal norms, it is also a profoundly local matter, and to achieve true reconciliation within the afflicted community, local extrajudicial mechanisms must be incorporated into the international justice narrative.

The lecture was followed on 29 January by a roundtable discussion amongst experts from academic, legal and practitioner communities, including a former senior lawyer at the ICC, Morten Bergsmo; the Director of Human Rights Watch, Tom Porteous; and Ben Shepherd of the Commonwealth & Foreign Office.

A transcript and audio podcast of the lecture, and further details of the workshop, are available from the links on the right.

A full critical report and analysis of the workshop will be available from our publications page later in the year.