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The Complicated Realities of Justice

Darryl Robinson

In July 1995, Dražen Erdemović, a soldier in the Bosnian Serb Army, was dispatched with his military unit to a village in Bosnia-Herzegovina near the Serbian border. There the soldiers were ordered to execute approximately 1,200 Bosnian men and boys who had surrendered to the army near Srebrenica. Erdemović resisted the order, but his commander told him to participate in the massacre or be shot himself. Erdemović chose the former. He later estimated he’d killed about 70 men and boys who, like the other victims, were buried in mass graves.

In a few months the three-year Bosnian War was over and Erdemović was a free man, albeit one tortured by a guilty conscience. Eventually he described the massacre and his role in it to an American reporter. Soon after his videotaped confession he was arrested and charged with crimes against humanity by the International Criminal Tribunal for the former Yugoslavia, which sentenced him to ten years in prison. His term was subsequently reduced and Erdemović was granted early release in August 1999.

Erdemović’s tale illustrates some of the legal and moral issues inherent in crimes against humanity, genocide and war crimes. Must a soldier be held responsible for atrocities he committed under duress? If the answer is yes, how much leniency, if any, should be granted during sentencing to acknowledge the duress? How does a mass murder committed during war differ from one committed during peacetime? These and other diffcult questions also consume Darryl Robinson, a professor at Queen’s Faculty of Law. He specializes in international criminal law (ICL), which is applied by international criminal tribunals that deal with war crimes. Robinson came to the field by happenstance about 15 years ago, when he was a newly-minted lawyer doing volunteer work for human rights organizations. He was soon recruited as a legal officer in Canada’s Department of Foreign Affairs, helping to develop international criminal law and institutions. He helped draft the Statute of the International Criminal Court, which is now established in The Hague, the Netherlands. The court is investigating and prosecuting mass atrocities in eight different countries. For three years Robinson worked as a legal adviser in the prosecutor’s office.

Robinson came to Queen’s in 2008. Since then his research has focused on identifying and refining universal criminal law principles, or doctrines, that transcend national legal systems and facilitate the fair and just prosecution of war crimes. The ultimate goal of his scholarship is to help create a body of international criminal law that enables war-crimes tribunals to function in a way that is neither unduly harsh nor too lenient, while accounting for the extraordinary circumstances – the shockingly-high body counts, the breathtaking extent of state-sanctioned brutality – typically associated with war crimes. The tribunals lose credibility if they act as mere “conviction machines” – bodies that render a guilty verdict for most defendants almost by default – or are so obsessed with narrow interpretations of criminal law and procedure that they give war criminals lax sentences or let them walk free because of a legal technicality. Neither instance results in the appearance or reality of justice.

Robinson’s theoretical work draws on international criminal law as it is currently practiced, national criminal law systems, and moral philosophy. Each of these sources has strengths and weaknesses in terms of informing ICL, an area of law still in its infancy. Robinson suggests that principles derived from national systems can provide a source of inspiration about commonly shared intuitions of justice. However, the extreme and abnormal contexts of mass atrocity can raise new questions. Thus, not only can national criminal law theory illuminate ICL, but the special problems of ICL can illuminate criminal law, exposing parameters and limits in what appeared to be elementary principles.

“If we are exercising law on behalf of humanity,” says Robinson, “then we have to exercise that law with humanity.”

Alec Ross
(e)Affect Issue 5 Spring 2014