Washington and Lee law professor Mark Drumbl spoke at a conference last week in Denmark at the University of Copenhagen’s Center for Excellence for International Courts. The conference, “New Practices of Transnational Criminal Law”, was held on November 27th and 28th.
The conference focused on the creation and circulation of new practices of transnational criminal law in and between international, European and national criminal jurisdictions. Professor Drumbl presented his paper “Extracurricular International Criminal Law”.
The full conference program is available here.
About ‘Extracurricular International Criminal Law’:
Much ink has been spilled in assessing how international criminal law informs the curriculum of domestic criminal law. Might international criminal law nonetheless, and perhaps unexpectedly, stray elsewhere in domestic law? When it comes to domestic legal practice, might international criminal law cast a somewhat longer shadow or leave a somewhat haler legacy?
This project begins to address these questions by unpacking the jurisprudential footprints of the International Criminal Tribunal for Rwanda (ICTR) in domestic litigation in the United States under the Alien Tort Statute (ATS). The ATS allows victims of human rights abuses to file tort-based lawsuits against their abusers for violations of the laws of nations (taken to mean customary international law). This project surveys US federal court citation to ICTR case-law and materials; discusses recent moves by US courts to restrict application of the ATS (though several cases continue); and situates references by US judges to the ICTR’s work within the broader context of their citation to the jurisprudential outputs of other international penal institutions whether past or present.
This project then gestures towards a broader conversation regarding the relationship between penal law and tort law in redressing human rights abuses and the migration of international norms to the national level in different but cognate legal regimes. Also of note are the distortions that may arise when international criminal law norms become applied in extracurricular fashion. On the one hand, extracurricular circulation may ensure wider awareness and internalization of international criminal law. On the other hand, it is not assured that the content of the law thusly diffused is accurately appreciated by national judges, or is even capable of predictable appreciation, thereby threatening international law’s general aspirations of doctrinal consistency, universalism, and legitimacy. Alternatively, and pithily, divergent understandings among national judges as to the substantive content of international law (as well as who is an appropriate subject thereof) may suggest no more than the appositeness of elemental insights of legal realism. The availability of international law may simply, and unromantically, accord judges another tool or device for them to achieve what they wish.