I am honored to comment on Darryl Robinson's terrific new book which makes an extraordinary contribution to the literature on international criminal law (ICL). Already an admirer of Robinson's work, I learned a lot from reading his book and find his approach convincing. Broadly speaking, there is not much, if anything, on which I disagree with Robinson. I share his criticisms of international criminal tribunal reasoning. I welcome the call for greater attention to deontic considerations. I agree on the importance of the fundamental principles that Robinson identifies, and I also agree that justifying these principles does not require consensus on moral foundations. At the same time, his analysis raises complex questions about the interpretation, application, and practical significance of these fundamental principles for a project focused on the reform of ICL. It is these questions that are the focus of my comments.
One of the great contributions of Robinson's book is the attention he devotes to justifying and defending fundamental principles that are often taken for granted or treated casually. Robinson makes a compelling case that international tribunal case law must take greater account of deontic considerations, and the jurisprudence would benefit from a careful reading of Robinson's work. A more difficult question concerns the practical implications for doctrinal substance. Three complications, in particular, come to mind. One concerns the relationship between published judicial reasoning and the resulting doctrinal decisions. Another concerns the contested interpretation and understanding of the fundamental principles. The third concerns the limitations of formal doctrine as a vehicle to vindicate fundamental principles. I elaborate upon these concerns through consideration of three modes of individual responsibility that have proven controversial in ICL: joint criminal enterprise (JCE), aiding and abetting, and command responsibility.
Robinson himself devotes substantial attention only to the third of these doctrines, but all three raise problems that benefit from the framework that Robinson provides. Hence, my purpose in discussing JCE and aiding and abetting alongside command responsibility is not primarily to debate Robinson's own conclusions about those topics but instead to consider the implications of his broader approach for some of the most contested questions of substantive ICL.
Alexander K.A. Greenawalt, Advancing Fundamental Principles Through Doctrine and Practice: Comments on Darryl Robinson, Justice in Extreme Cases, 35 Temple Int’l & Comp. L.J. 79 (2021), https://digitalcommons.pace.edu/lawfaculty/1178/.