“Reconsidering International Criminal Law’s Future: Corporations, Climate Change, and AI”

Department : Law & Tax

Speaker : By Professor Mark DRUMBL from Washington and Lee University 

Room : S 121

Abstract

International law has identified collective identity-based crimes of hate (genocide, crimes against humanity, war crimes, aggression) as the greatest threats to global stability, security, human rights, and sovereignty. This has meant the development of criminal responsibility in which a few malevolent perpetrators are blamed for the collective violence of many; as well as the spread of retributive legalism (courts, prosecutions, jails). This thought-piece essay looks ahead and argues that this model shall not fit many future stability, security, human rights, and sovereignty threats. Obviously, the current political climate is not favorable to liberal institutional internationalism; nor has international criminal law succeeded in deterring ongoing violence. This article however gazes beyond the vicissitudes of the past and present to instead arch towards the additional challenges of the future. It classes future challenges into two categories: (1) conceptual and (2) procedural. As regards conceptual future challenges, climate change and pandemics both loom large. Both cause terrible harm, yet are not motored by hate, malevolence, or intent. Rather, they are driven by carelessness, poverty, ignorance, desires to economically develop, obtain a quality of life for one’s children, and hasty decisions. Addressing these harms cannot occur though criminal law frameworks without imprisoning everyone. Other conceptual challenges include hyper-capitalism, which immunizes even massive corporations from responsibility under international criminal law, as well as the reality that violence shall increasingly become committed through autonomous systems (including artificial intelligence (AI)) that elude typical legalist methods of attributing responsibility. Once again, international criminal courts are not an ideal situs to envision a future-oriented justice. As regards the second category, in terms of actual penal procedure AI presents a grave threat to the law of evidence, which is central to how and when courts determine and authenticate truth. AI creates deep-fakes, misinformation, and disinformation that challenge the sensory abilities of human beings to judge accuracy or fakery. What is more, social media and the drain on legal judgment as an independent variable that actually changes minds means that people care less and less about final legal judgment and attach themselves more and more to the definitiveness of accusation. All this to say that there is a pressing need for global justice pursuits to reconsider the place of international criminal law and international penal courtrooms in remedying harm and pain while promoting human rights, security, life, and well-being. How, then, should the architecture of international law and international relations change?