Brian Richardson[1]
Introduction
“To what is international law attached?” was the question Michael Reisman posed to a cavernous lecture hall in The Hague when I first saw him speak. As a student first encountering Professor Reisman’s ideas at his Hague Academy lectures, I was unaware of the many important institutions to which he has been attached over the course of his career. The Hague Academy, the Institute of International Law, the Inter-American Commission on Human Rights, the State Department, countless arbitral fora, and, of course, Yale Law School and its influential Journal of International Law have all benefited from Professor Reisman’s profound intellect, gentle humanity, and his commitment to creating a college of international lawyers for the future.
The answer that is so often given to Professor Reisman’s question in The Hague—that international law is composed of a formal matrix of agreements made by, and for, states—could not be further from the social-scientific, anti-parochial methods that Reisman brings to bear on the field. Nor could the formalistic, state-centric answer to the question of “to whom is international law attached” be further from Professor Reisman’s unyielding focus on the development of international law to embrace individual human dignity.[2] International law, Reisman tells us, is a process of authoritative decision-making that controls its participants. Taking the full measure of the field requires one to see the subject matter both as a collection of lawyerly predispositions toward rule application, and as the product of a myriad of conditioning factors that come from the international political environment.[3]
In what follows, this Essay considers Reisman’s account of the international legal system and speculates about its application to the puzzle of whether states should use criminal law enforcement as a tool of international affairs. Whereas the long-settled formal rules of public and private international law strongly disfavor the use of criminal sanctions by states to curb the behavior of other states as a matter of comity and jurisdictional prescriptions, states nevertheless increasingly use criminal law as an instrument in international politics. The Essay borrows from Reisman’s account of the complex decision-making function of international lawyers to suggest that much of the question of what makes criminal law enforcement activity legitimate blends, in opaque ways, prosecutors’ conception of their folk legitimacy—the actions they are taking on behalf of a community they seek to represent—and a model of legitimacy that focuses on formal authorization. The first account of legitimacy (call it “folk” legitimacy) and the second (call it “chain-of-authorization” legitimacy) are often commingled in the question of whether the use of criminal law to regulate behavior is lawful and legitimate. Yet, as Reisman explains, most important questions in international law will require answers that attend both to the policy-based and to the rule-bound roles of the international lawyer. Domestic and international prosecutors alike perform functions that require them to consider interests beyond merely sorting information and applying rules; they must also express, through investigation, declination, and prosecution decisions, a soundness of judgment on which the progress of international law will, in part, depend.
I. From the Use of Force to the Enforcement of Criminal Prescriptions
In his seminal work on the international law governing the use of force, Reisman focused our attention on what he called the “operational code” that has come to characterize the modern jus ad bellum. In the pages of this Journal, he contended that international lawyers must address the lamentable reality that the unilateral use of force has become an inescapable part of the social process of modern foreign affairs.[4] He also explained, however, that law still works to “organize, monopolize, and economize” states’ use of this instrument of coercion, notwithstanding enduring paralysis at the Security Council.[5] For Reisman, appraising the lawfulness of a particular use of force requires not simply the invocation of “sterile” formalisms, but also the more complex assessment of whether a given use of force accords with states’ prevailing (though by no means unanimous) views of the world public order. In a theme that would characterize much of his work in this area, Reisman illustrated his descriptive account of the operational code of jus ad bellum with several vignettes of international incidents that have come to frame and constrain states’ common interests in the regulation of the use of force.[6] No formal account of jus ad bellum, on this view, could account for state practice about the unilateral use of force that has grown up in the shadow of the U.N. Charter, as well as the promises and pathologies of its peace-keeping system.[7]
In time, Reisman extended his account of the lawfulness of the use of force to the emerging possibility that the International Criminal Court would “judicialize” the crime of aggressive use of force—after all, the idea of a judicially administered crime of aggression presents a cognate problem to judicial regulation of unilateral uses of force. Reisman argued that in adopting its role as a law-applying tribunal, an international criminal court and its prosecutor must inevitably opine on whether an actor had committed the crime of aggression, and so would be “expected to use [a] textual-rule-based mode” of legal decision-making to come to a dispositive judgment.[8]
Yet the law concerning permissible uses of force in the international system must, on Reisman’s account, take account of more than the textual rules: it must account for authoritative actors’ views of the permissibility of aggression, and so it must inevitably attend to what Reisman called the “policy context” that surrounds each use of force.[9] Reisman worried that judicializing the question of aggression—subjecting it only to the textual-rule-based account of lawfulness—would put the international criminal court in an unenviable bind. That is because when it assesses whether a use of force amounts to the crime of aggression, the court “will be compelled to hold as criminal actions that are consistent with expectations of lawfulness. If it does not do so, it will undermine its image of legitimacy by appearing only to follow the legality principle when the results suit it.”[10]
Taking a cue from Reisman’s approach, we might appraise a closely related puzzle about state coercion: states’ use of their criminal legal systems to organize and constrain other states’ conduct in the absence of an international agreement permitting such domestic conduct. As with jus ad bellum, many sterile formalisms are brought to bear on the question: for example, the formal law of jurisdictional immunity and the general principles of comity are taken to foreclose many of the coercive mechanisms that states would use to apply their criminal law in ways that implicate the interests of foreign sovereigns. Yet states’ use of their criminal investigatory and enforcement powers in this context—including the capacity to threaten persons with the loss of their liberty and treasure—is increasingly frequent.
Setting to one side the group of cases that are easily answered by the formal law of jurisdictional immunity, states frequently criminalize the conduct of parastatal organizations and persons who, while not formally shielded by sovereign immunity, engage in conduct that touches upon the interests of the criminalizing state. To take but a few examples, the criminalization of “foreign influence,” espionage crimes, and the application of more ordinary offenses (e.g., fraud) or investigative techniques (e.g., extraterritorial subpoenas) to targets that are associated with foreign sovereigns are all parts of the domestic criminal systems of powerful international actors.
From one vantage point, the emergence of such “lawfare” is often a matter of indifference to international law. Unless such behavior by states trenches on the international law of sovereign immunity, jurisdiction, principles of comity, or some other body of treaty law, no rule of public international law is obviously implicated by such domestic legislation and enforcement activity. But something more might be said from the vantage point afforded by a wider aperture,[11] one which attributes importance to recognizable patterns in states’ bureaucratic choices to give prosecutors discretion in these areas, and to the protests and countermeasures that accompany such enforcement activity. We might appraise developments in states’ internal prosecutorial bureaucracy in order to get some purchase on how and why similar kinds of decisions are constrained on the international plane. Indeed, following Reisman, we might consider whether recent international incidents suggest a theory of when, if at all, the use of the criminal law enforcement instrument of coercion might accord with the public interest of the world community.
II. Two Concepts of Prosecutorial Legitimacy
As noted, Professor Reisman disentangles two modes of legal decision-making that are relevant to international law generally, and the use of force specifically. He contrasts the textual-rule-based mode from the policy-context-based mode.[12] The contrast is best appreciated by considering one of Professor Reisman’s hypotheticals: Consider a U.S. Colonel who has two assignments. The first is to convene a court martial to try an alleged offense under the law of war, and the second is to chair a working group on proposed changes to that same law.[13] In discharging these two duties, the Colonel performs different functions: in the former, the Colonel “is expected to limit his focus to the text of the code of law, as it exists, in the light of prior judgments in which it was applied by higher courts,” while in the latter the Colonel is expected to consider “a range of facts and political processes that go far beyond what he may properly address in his role as a member of a court-martial.”[14] Crucially, Reisman explains, the Colonel is acting in a “principled” fashion in discharging both duties, though the mode of decision-making changes quite dramatically with the context in which the Colonel is acting. In moving from rule-based to policy-context-based lawyering, the decision-maker shifts from asking “which rules apply” to appraising “the extent to which [the decision’s] consequences approximate the relevant values” of the community.[15]
Domestic prosecutors often face a similar bifurcated kind of decision-making. Which of the two forms of decision-making is appropriately exercised by prosecutors turns, in part, on one’s intuitions about what makes prosecutorial judgments legitimate. There are many theories of such legitimacy, but two are worth special mention in light of the peculiar phenomenon of criminal law enforcement at the international plane.
The first is legitimacy understood as authorization, attribution, or separated powers. On this view, prosecutors might derive their authority from a chain of legitimacy that ties their decisions to a series of nested agency relationships that end at a sovereign principal—or, in the case of international criminal law, the consent of sovereign principals. The legitimacy of criminal law enforcement, like all administrative law, will turn on first-order principles about delegation, due process, and accountability to the superordinate democratic processes that structure the public agencies charged with performing the prosecution function. Thus, the relevant question is whether a given decision was authorized: does a chain of legitimacy ensure that every decision is approved (or can be countermanded) by a supervising official who, in turn, owes their authority to the sovereign principal—ideally, one accountable to a democratic process? This question becomes increasingly important as the line prosecutor is granted greater access to the state’s tools of coercion. One worries more about whether the prosecutor is speaking for the state as the prosecutor wields more intense coercive powers in investigating and charging criminal offenses.[16]
The second theory of legitimacy is folk legitimacy—that of a prosecutor who serves the public, and not any particular government agency. On this account, the legitimate prosecutor vindicates the relevant public’s values. These might include moral intuitions about the desert of prosecution, the rationales for declination, or the propriety of punishment.[17]Indeed, folk legitimacy understands the prosecutor as embedded in a community, and thus accountable to local elected officials, local communities, local police, local judicial officials, and local juries—not to superordinate bureaucracies. Indeed, prosecutors’ capacity to vindicate public understandings of right and wrong notwithstanding the views of other, possibly hierarchically superior, actors is core to this account of their legitimacy: legitimate prosecutors remain independent from the politics of other bureaucracies.[18] Like judges, prosecutors must manage the competing goals of independence and accountability.
III. Two Modes of Prosecutorial Decision-Making
At first blush, what Reisman describes as the Colonel’s two functions appear to map neatly onto these two concepts of legitimacy. As prosecutor, the Colonel acts legitimately insofar as he faithfully applies the applicable rules and legal precedent to come to a charging decision. The legitimate prosecutor is, in the end, rule-bound. As working group member, the Colonel acts legitimately insofar as he identifies and adheres to his community’s values, and pursues revisions to the law whose consequences will most tend toward the community’s interest. The working group member is legitimate and principled, on Reisman’s model, if he is aware of context and consequence.
Yet often prosecutors, no less in many domestic systems than in international fora, derive their legitimacy from the concordance between their investigative and charging decisions and the values of the communities in which they are embedded. Every federal prosecution, for example, must not only meet an evidentiary burden with respect to every element of an offense, but also accord with the prosecutor’s own “policy judgment that the fundamental interests of society require the application of a federal criminal law to a particular set of circumstances.” It is thus no wrong for a federal prosecutor to decline to indict on the basis of their judgment about the fundamental interests of society.[19]Declinations on this basis are common, especially pursuant to policy guidance from higher levels of the justice bureaucracy.
For certain offenses—like large corporate fraud or many national-security offenses—the norm of independence sometimes gives way to intuitions about authorization. Federal prosecutors, for example, must also seek approval from superordinate political appointees before proceeding.[20] One way to understand the withdrawal of discretion away from the field into a centralized bureaucracy is to conclude that it reflects the chain-of-legitimacy model of prosecution. But another way to understand this withdrawal of discretion away from prosecutors and into the executive bureaucracy is to conclude that for some kinds of offenses, one lacks confidence that prosecutors’ judgments about the national interest are sufficiently likely to be sound. Indeed, for some of the enumerated offenses in the American system, such as espionage crimes or foreign-influence offenses, one finds a dearth of federal cases. This could suggest that the imposition of bureaucratic oversight imposes too much red tape to make such investigations worthwhile in the field, or it might suggest that for some offenses, the criminal justice and national security interests of the executive have reached a stable equilibrium favoring non-prosecution in many cases.[21]
In any event, the relevant observation still holds: for many models of domestic prosecution, both modes of legitimacy—chain-of-authorization and folk legitimacy—and both of Reisman’s modes of legal decision-making—rule-bound and policy-based—are pervasive functions of the prosecutor’s job. This is especially true when they must make decisions with international consequences. The “operational code” of criminal law enforcement, to use Reisman’s turn of phrase, is perfunctorily about applying the relevant prescriptive rules, but criminal law enforcement is also about the reconciliation of many other state interests in coming to a final judgment: deterrence, national security, ideological imperatives, or prestige and honor, to name but a few such interests.[22] Both ways of thinking, it bears repeating, are principled. Neither mode should be omitted from the appraisal of the legitimacy of prosecutors’ actions.
IV. What Prosecutors Owe Other States
Principles of attribution in the international system brook no distinction between line prosecutors and heads of state, or heads of state and domestic courts, in determining whether an act is properly attributed to that state. It is thus important for prosecutors whose domestic legal work might implicate international concerns to ask: to what is the criminal law attached? It increasingly happens that the criminal law is attached to matters that might pose foreign affairs consequences for a sovereign state.
Two somewhat surprising tendencies have emerged in states’ bargaining with one another about the investigation and enforcement of criminal law in the last half century. The first is that the norm of comity in the criminal law appears increasingly antiquated. Apart from formal immunity doctrines, little survives of the core intuition that “pass[ing] upon the provisions for the public order of another state is … beyond the powers of a court; it involves the relations between the states themselves, with which courts are incompetent to deal, and which are entrusted to other authorities.”[23]
As states have increasingly used domestic criminal law to address issues of international significance, a thicket of treaties have arisen to regulate requests for mutual legal assistance. These treaties have tended to embrace the independence of the prosecutorial function from the rest of the state. Rather than addressing such requests to departments of state in the first instance, many such treaty regimes use purpose-built authorities within the prosecutorial bureaucracies of each state to send and receive requests for mutual assistance. As a consequence, the criminal justice bureaucracy, rather than the foreign affairs bureaucracy, ordinarily decides the sovereigns’ interests in complying with the investigative requests of foreign sovereigns.[24]
V. What Prosecutors Owe the Global Public Order
In the American context, the principles of federal prosecution expressly require line prosecutors to come to a policy judgment about the propriety of federal prosecution because, among other reasons, it is so consequential to “make a federal case” out of but a fraction of the misconduct that is prosecutable under federal law. So, too, an international prosecutor’s “adjudicative” judgment, like other forms of adjudication in developed legal systems, must be appraised for its adherence to the higher order goals of the international system. Because that kind of judgment, which is often policy- and context-dependent, can sometimes counsel in favor of forbearance, prosecutors’ silence during an investigation, or their outright declination to bring charges, are as much a part of their legitimacy as their zealous advocacy to convict a person after an indictment is returned.
International criminal law, and the enforcement decisions of international bodies, have strands in common with federal prosecutors’ charging decisions in cases that implicate foreign-affairs concerns. Like domestic prosecutors, international prosecutors perform multiple functions that require them to attend to more interests than the mechanical application of rules, especially where their judgments radiate international political consequences.
Like federal prosecutors, international prosecutors’ successes and failures will turn not only upon their faithful application of rules to facts, but also on the soundness of their judgment with respect to the interests of the world public order. Indeed, in the past few months, several strands I have drawn from Reisman’s oeuvre regarding the use of force, legal decision-making, and the use of criminal law to regulate international violence have come together in striking fashion: two of the most important crises concerning states’ use of force—the Russia-Ukraine war and the Israel-Hamas war—have been taken up by prosecutors who are charged with applying international criminal law. To be sure, evaluating prosecutors’ decisions—including their actions and inactions; the timing and publicity of their statements; and the soundness of their applications of rule to fact—will require a dispassionate evaluation of whether they have applied the relevant rules correctly in light of the available evidence. But a comprehensive judgment about the legitimacy of their actions cannot be exhausted by these rule-bound considerations. The legitimacy of their actions must also be appraised with a view to the interest of the global community of which they are a part. They are, in the end, bound to account for both of Reisman’s textual-rule-based and policy-context-based modes of legitimacy.
Reisman has offered us two modes for understanding legal decision-making that enrich our account of public law when turned outward to international fora, but also when turned inward to domestic legal systems. Indeed, Reisman’s question—“to what is law attached”—invites a reflection on the role of the lawyer in imagining, and bringing about, a public order that tends toward human dignity and peace.
[1] Associate Professor of Law and the Jia Jonathan Zhu & Ruyin Ruby Ye Sesquicentennial Faculty Fellow at Cornell Law School. I am grateful to the organizers and participants in the Yale Journal of International Law’s 50th Anniversary Conference Celebrating the Work of W. Michael Reisman for their insightful feedback. I also thank the YJIL editors, and especially Catherine Vera, for terrific editorial assistance. I also thank Daniel Richman and Brad Wendel for their excellent input.
[2] See W. Michael Reisman, The Quest for World Order and Human Dignity in the Twenty-First Century 39-77 (2013). In attributing so much of his outlook to his own mentors, Myres McDougal and Harold Laswell, Professor Reisman signals his membership in the “New Haven School.” See, e.g., W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New Haven School: A Brief Introduction, 32 Yale J. Int’l L. 575, 575-76 (2007) (describing McDougal and Lasswell’s prominence and noting that they “created” a new school of thought that “adapts the analytical methods of the social sciences to the prescriptive purposes of the law”). But in this attribution, Reisman perhaps elides just how substantial of a contribution he has made to creating a generation of lawyers who see the field as a worthy intellectual enterprise, and who see international politics as a legitimate battlefield of ideas rather than of mere coercion.
[3] See generally Reisman, supra note 2, at 40 (“[A]ll legal arrangements . . . are artefacts, which have been consciously fashioned by people operating in political processes. Those artefacts are designed to secure or facilitate ways of producing and distributing . . . the things that people want: security for themselves and their families and communities, possibilities for influencing the decisions that will affect them, opportunities for producing and acquiring wealth, knowledge, skills, health, the opportunity to enquire about and practise religious belief, the cultivation of meaningful relations with others—in sum all the things that people, in the aggregate, pursue.”).
[4] W. Michael Reisman, Criteria for the Lawful Use of Force in International Law, 10 Yale J. Int’l L. 279, 279-85 (1985).
[5] Id. at 279.
[6] See id. at 280-81.
[7] See Reisman, supra note 2, at 168-94.
[8] W. Michael Reisman, Reflections on the Judicialization of the Crime of Aggression, 39 Yale J. Int’l L. Online 66, 70 (2014).
[9] See id. at 67 (noting that many uses of force after the Charter’s ratification were “in terms of the black letter of the Charter, illegal, [but] not all of them were considered by political and legal observers as unlawful in their context”).
[10] Id. at 73. To emphasize Reisman’s framing of the quesiton is not to suggest he is alone in this debate. CompareHarold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 Am. J. Int’l L. 257 (2015) (describing U.S. concerns with the definition of the crime of aggression and the emerging jurisdictional regime of the international criminal court); Jack Goldsmith, The Self-Defeating International Criminal Court, 70 U. Chi. L. Rev. 89 (2003) (contending that many of the larger ambitions of the ICC are “futile” and “unrealistic,” and identifying a critical “enforcement gap” in light of powerful states’ opposition); and Nicholas Rostow, The International Criminal Court, Aggression, and Other Matters: A Response to Koh and Buchwald, 109 AJIL Unbound 230 (2016) with Alain Pellet, Response to Koh and Buchwald’s Article: Don Quixote and Sancho Panza Tilt at Windmills, 109 Am. J. Int’l L. 557 (2015) (critiquing Koh and Buchwald’s position). Nor is it to suggest that the debate has not advanced since the Kampala amendments. See, e.g., Claus Kreß, On the Activation of ICC Jurisdiction Over the Crime of Aggression, 16 J. Int’l Crim. Just. 1 (2018) (describing a jurisdictional compromise permitting prosecution of some crimes of aggression, but not for nationals of non-parties to the Rome Statute); Oona A. Hathaway, The Case for Creating an International Tribunal to Prosecute the Crime of Aggression Against Ukraine, Just Sec. (Sept. 20, 2022), https://www.justsecurity.org/83117/the-case-for-creating-an-internation… [https://perma.cc/E7Q3-Q3HP].
[11] The notion of “widening the aperture” of public international law to include all those decision-making functions that make law effective is, of course, Reisman’s. See, e.g., Reisman, supra note 2, at 192.
[12] See id. at 39-40 (describing these two decision making processes).
[13] Reisman, supra note 8, at 69.
[14] Id.
[15] Id. at 69-70.
[16] The White House Counsel’s guidelines, for example, contemplate the possibility that independence norms must give way when national security concerns are at stake. See, e.g., Dana Remus, Counsel to the President, Prohibited Contacts with Agencies and Departments, White House 10-12 (July 21, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/White-House-Polic… [https://perma.cc/GHY9-BNQR] (permitting contacts with the Department of Justice where national security concerns are implicated, and noting that for such matters, prosecutors will participate “in interagency policy deliberations within the established NSC policy process”).
[17] One way of describing this function, in the legal ethics literature, is to refer to the prosecutor’s “adjudicative” or quasi-judicial function. As distinct from the “adversarial” function, the prosecutor also performs an “adjudicative function” that requires them to “be schooled in the detached exercise of discretion. As facts are sifted and weighed, as the resulting accusation is assessed for gravity, neutrality is a critical component of diligence.” See H. Richard Uviller, The Neutral Prosecutor: The Obligation of Dispassion in a Passionate Pursuit, 68 Fordham L. Rev. 1695, 1696 (2000).
[18] See, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2357-58 (2001) (developing a now-canonical account of presidential administration but excepting the federal prosecutorial bureaucracy from the account because in this area “the crassest forms of politics . . . pose the greatest danger of displacing professionalism and thereby undermining confidence in legal decisionmaking”); see also Daphne Renan, Presidential Norms and Article II, 131 Harv. L. Rev. 2187, 2207-14 (2018) (contending that there is an “insulation norm” of “investigatory independence” that is the product of Hoover- and Watergate-era abuses); id. at 2278-81 (contending that these norms are enforced by “pluralist norm enforcers” that draw on “soft powers,” like leaks and hearings, to make them resilient over time); Rebecca Roiphe, Revisiting Abbe Smith’s Question, “Can a Good Person Be a Good Prosecutor?” in the Age of Krasner and Sessions, 87 Fordham L. Rev. 25, 25-26 (2018) (describing the importance of the independence norm, and its reflection in the “workmanlike” conduct of the Mueller investigation); Bruce A. Green & Rebecca Roiphe, Can the President Control the Department of Justice?, 70 Ala. L. Rev. 1, 3 (2018) (grounding prosecutorial independence in history, “professional norms,” and principles of democracy).
[19] The United States’s embrace of prosecutorial discretion is, of course, not shared by all countries. As a comparative law matter, principles of legality have led many jurisdictions to adopt a norm of mandatory prosecution. See, e.g., John H. Langbein, Controlling Prosecutorial Discretion in Germany, 41 U. Chi. L. Rev. 439 (1974) (providing a classic comparative law account of the “legality principle” and its relationship to domestic legal systems’ regulation of prosecutorial investigatory and charging discretion).
[20] I have discussed some of these requirements, and the connection between the bureaucracy of federal criminal law and foreign affairs concerns, in Brian Richardson, The Imperial Prosecutor?, 59 Am. Crim. L. Rev. 39 (2022). For an important treatment of the broad phenomenon of “foreign affairs prosecutions,” seen Steve Arrigg Koh, Foreign Affairs Prosecutions, 94 N.Y.U. L. Rev. 340 (2019).
[21] For the view that much peacetime espionage is lawful under public international law, and an exploration of when it might be unlawful as an “abuse of right” under international law, see Asaf Lubin, The Liberty to Spy, 61 Harv. Int’l L.J. 185 (2020). For an account of the equilibrium that disfavors leak- and espionage-prosecutions, see David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512 (2013).
[22] I am grateful to the talented editors who suggested these examples.
[23] Moore v. Mitchell, 30 F.2d 600, 604 (1929) (Hand, J., concurring).
[24] See Richardson, supra note 20 for a fuller discussion of these issues. This description does not capture all of the complexity of the federal and international law enforcement bureaucracies. Extradition requests, for example, are quite different.