Atrocity and Punishment
© Mark A. Drumbl 2005
Atrocity, Punishment, and International Law
Mark A. Drumbl*
Forthcoming, Cambridge University Press, 2007
[© Mark A. Drumbl 2006; draft – not for citation or reproduction without author’s
permission]
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Table of Contents
CHAPTER 1:
EXTRAORDINARY CRIME AND ORDINARY PUNISHMENT: AN OVERVIEW
(i) Extraordinary Crime
(ii) The Paradox: Ordinary Process and Punishment
(iii) Irrational Exuberance?
(iv) Percolation from the International to the National
(v) Deconstruction: The Disconnect between Aspirations of Punishment and Realities of
Sentence
(vi) … and Reconstitution
a. Pluralist Process for Universal Evil?
b. Cosmopolitan Theory
(vii) Certain Implications
a. Jurisprudential Considerations
b. Institutional Considerations
c. Behavioral Considerations
CHAPTER 2:
DEVIANCE AND THE ORGANIC WHOLE
(i) Perpetrators and Beneficiaries
(ii) Conformity, Transgression, and the Group
(iii) Post-Traumatic Liberalism Disorder
(iv) The Victims
(v) Conclusion: Law on Borrowed Stilts
CHAPTER 3:
PUNISHMENT OF INTERNATIONAL CRIMES IN INTERNATIONAL CRIMINAL
JUSTICE INSTITUTIONS
(i) Positive Law Frameworks and Rules of Contemporary Institutions
(ii) Sentencing Practice
(iii) Penological Justification and Implementation: The Jurisprudence
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(iv) Conclusion
CHAPTER 4:
PUNISHMENT OF INTERNATIONAL CRIMES IN NATIONAL AND LOCAL
CRIMINAL JUSTICE INSTITUTIONS
(i) Rwanda
a. Specialized Chambers of National Courts in Rwanda
b. Foreign National or Military Courts
c. Gacaca
(ii) Former Yugoslavia
a. Positive Law Frameworks
b. Courts in Bosnia and Herzegovina
c. Courts in Serbia and Montenegro
d. Courts in Croatia
e. Foreign Courts
(iii) World War II
a. Immediate Aftermath of the War
b. From the 1960’s Onward
(iv) Conclusion
CHAPTER 5:
LEGAL MIMICRY
(i) Powerbroking between Civil Law and Common Law Systems
(ii) Externalization of Justice
(iii) Democratic Deficits
(iv) Complementarity
(v) Referrals
(vi) Restoring Restorative Justice
CHAPTER 6:
QUEST FOR PURPOSE
(i) Retribution
(ii) Deterrence
(iii) Expressivism
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CHAPTER 7: COSMOPOLITANISM, PLURALISM, AND EVIL
A. UNIVERSAL EVIL
PLURALIST PROCESS
B. COSMOPOLITAN THEORY
CHAPTER 7:
PLURALIST PROCESS FOR UNIVERSAL EVIL?
(i) Universalism and Universality
(ii) Pluralism: Process and Sanction
(iii) Contestations and Replies
CHAPTER 8:
COSMOPOLITAN THEORY [COSMOPOLITAN PLURALISM APPLIED]
(i) Vertical Allocations of Authority: A Case for Qualified Deference
Case-studies: Afghanistan, Sudan, Iraq
(ii) Horizontal Dimensions of Law: Obligation in Multiple Orders
Case-study: The International Court of Justice and Great Evil
(iii) Relational Theory and Interpretive Tools
(iv) From International Criminal Law to Atrocity Law
(vi) Collective Responsibility
CHAPTER 9:
CONCLUSION: SOME PRACTICAL IMPLICATIONS
(i) Jurisprudential Considerations
(ii) Institutional Considerations
(iii) Behavioral Considerations
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CHAPTER 1:
EXTRAORDINARY CRIME AND ORDINARY PUNISHMENT: AN OVERVIEW
Sometime during the month of April 1994, over two-thousand frightened Tutsis huddled in a
church in Nyange, a rural parish in western Rwanda. There they sought shelter from widespread
attacks incited by Hutu extremists. The attackers were determined to eliminate the Tutsi as an
ethnic group and extirpated individual Tutsi as a means to this end. Although the refugees thought
the church to be a safe place, and were encouraged to hide there by parish priests, it quickly
proved to become a corral – or holding pen – that simply accelerated their erasure.
The church’s priests decided to destroy the church. As a result, another individual,
commandeering a bulldozer, spent three days leveling the church with the Tutsi refugees inside.
The bulldozer also was referred to as a Caterpillar (possibly in light of its manufacturer) or a
digger. This gives a sense of the size of the equipment. Those Tutsi who survived the razing of
the church were stabbed, clubbed, or shot.
Four years later, six individuals were prosecuted in a Rwandan court on charges of genocide
and crimes against humanity for the Nyange church massacre.1 One of these was Anastase
Nkinamubanzi, also referred to as Defendant #1. He had commandeered the bulldozer. The case
report reveals something about him. He was born in 1962, was a bachelor, and (ironically,
perhaps) worked as a driver (“chauffeur”).2 He had no assets, nor any prior criminal record. The
case report also sets out, through the sterility of legal prose, the proof underpinning accusations
that he spent three days mechanically bulldozing a church with 2,000 Tutsi trapped inside. At the
end of the third day, with the church then razed, Nkinamubanzi calmly asked the priests for
compensation for the public service he had provided.3
The court found Nkinamubanzi guilty of most of the charges brought against him, including
genocide. Upon conviction, he was sentenced to life imprisonment and stripped of certain
privileges and rights. Although the court did not formally accept his guilty plea, which was
inexact and untruthful, it was influenced by his having asked forgiveness and considered this to
be a mitigating factor.
According to the case report, though, Nkinamubanzi subsequently was acquitted on appeal.4
Two other defendants, who were church leaders, received the death penalty at trial; these
sentences were left intact upon appeal but have not been carried out.5 As for the Nyange church, a
newspaper report written over a decade after the fact tells the reader that “all that is left of the
massacre site are heaps of earth and concrete.”6
There were many Rwandans like Nkinamubanzi; and many others like him in many other
places, countries, and continents; and many more with the potential to become like him in the
future. Not in that they drove bulldozers, but in that they were involved in killing large numbers
of innocent people, whether by their own hands, by helping the hands of others, or by
encouraging the handiwork. Some reveled in the killings.7 Others may simply have played along
nervously, probably grimacing while they administered the death blows or fidgeting while they
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distributed a list of potential victims. Many simply thought they were doing their patriotic duty
and fulfilling their civic obligation, which they satisfied with pride, Pflicht, composure, and the
quiet support of the general population. They are the exemplars – the very icons – of Hannah
Arendt’s “banality of evil.”8 That said, those leaders who gave the orders to kill or in whose name
the killings were undertaken also are banal even though they are much fewer in number. After all,
it is they who normalized violence, made it a way of life, and ensconced it as civic duty often for
the crudest motivations of conflict entrepreneurship.
So, what exactly do we do with the individual, acting on behalf of a group (or even leading a
group), who murders tens, hundreds, thousands – or more – other individuals simply because of
their membership in a different group? Do we subject that individual to the process of law? If so,
what kind of law? A quick vetting, followed by execution; or a careful trial, respectful of modern
laws of evidence and the perpetrator’s rights, that can lead – as in the case of Nkinamubanzi – to
proof of facts initially interpreted to convict but then, later, to acquit? Does this suggest the
indeterminacy of the criminal trial or the possibility that it is simply ill-suited to capture
collective violence?
On a related note, how are perpetrators to be viewed? The choice is between accepting the
perpetrator as one of us, namely as a person, or, on the other hand, as a non-person, namely the
kind of creature that falls outside of personhood: barbarians who stand hors-la-loi. Associating
perpetrators of great misery with the status of non-persons is not uncommon. In the “war on
terrorism,” there has been an attempt to resurrect the categories of barbarians and outlaws and to
fill these categories with individuals who, by virtue of their conduct, lose any benefit of
international humanitarian law or even international human rights law. In a different case: faced
with the prospect of “trying” the former Romanian dictator Nicolae Ceausescu and his wife
Elena, the prosecutor bitterly noted that his entire professional code of ethics became upended.
He famously remarked: “[A]s a lawyer, [I] would have liked to oppose the death sentence,
because it is inhuman. But we are not talking about people. I would not call for the death
sentence, but it would be incomprehensible for the Romanian people to have to go on suffering
this great misery and not to have it ended by sentencing the two Ceausescus to death.” 9 The evil
was simply so gross that there was no way to punish it other than resorting to a sanction that fell
outside what the prosecutor would have hoped the law to aspire to be. Although the Ceausescus,
leaders of violence that was not patterned on discriminatory grounds, differ from Nkinamubanzi,
a foot-soldier implementing discriminatory norms, the tension between personhood and
punishment remains vexing for all three.
The specific focus of this book involves the reasons that criminal justice institutions punish
perpetrators of mass violence and whether the sentences levied by these institutions actually
support these penological rationales. This focus is warranted given that little scholarship has
been undertaken in this area. In fact, whereas international criminal law scholarship brims with
sophisticated work that explores the substantive crimes (e.g. genocide, crimes against
humanity),10 the formation of institutions and their independence or effectiveness,11 and the
impact of prosecuting these crimes on collective reconciliation and political transition,12 there is
only isolated – and often conclusory – analysis on how offenders should be punished, what
institutions say they are accomplishing by punishing and, most importantly, whether the
punishments that are issued actually attain the goals they are ascribed. Leading treatises on
international criminal law barely devote any space to punishment and sentencing.13 The project
that follows begins to address this surprising lacuna in the scholarly literature.
(i) Extraordinary Crime
The liberation of the concentration camps at the end of the Second World War evoked many
emotions. For the survivors, these emotions scaled a wide gamut, as brilliantly recorded in the
writings of Primo Levy and Viktor Frankl: touching upon relief, fear, loneliness – all amid the
painful search for meaning and the relevance of survival.14 For the liberating soldiers, there was
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repulsion and shock; for the returning Axis combatants, shame, denial, and disappointment. The
Allied rulers divided about what to do with the Nazi leaders. Churchill sought their quick
dispatch, including by extrajudicial execution, owing to the fact that guilt was so evident that
there was no need for judicial process to establish it.15 Stalin sought similar ends but following
short show trials. Truman, with Secretary of War Stimson whispering in his ear, plotted longer
trials aimed not at the defendants, but at history, so as to narrate to all the value of law.
This latter view prevailed, leading not only to the Nuremberg Trials, but also to the genesis
of an influential paradigm. This paradigm, which has become emboldened over time, is, to
borrow from Telford Taylor, the true “ethos” of Nuremberg.16 This paradigm posited that Nazi
crimes were extraordinary in their nature and, thereby, should be constructed not only as crimes
against the victims in the camps or the helpless citizens in the invaded countries, but also as
crimes in which everyone everywhere was a victim. 17 Two distinct groups thereby are given a
forum to express outrage: the international community and the actual individual survivors. The
fact that these groups are not necessarily allied foreshadows the complicated, yet largely
undeveloped, victimology of mass atrocity.
Hannah Arendt explored Nazi crimes and their relationship with totalitarianism. She initially
described these crimes as they occurred within the context of the Holocaust as “radical evil,”
parsing a phrase that had been coined much earlier by Immanuel Kant.18 In subsequent work
Arendt recast the evil as “extreme” or “thought-defying,” preferring such descriptions to “radical”
owing to her evolution of thought regarding the thoughtlessness and banality of the violence.19
Regardless of nomenclature (or developments in her own thinking), Arendt maintained that these
crimes “explode the limits of the law.”20
International law-makers cast this extreme evil as something extraordinarily transgressive of
universal norms and as violative of natural law. With Nuremberg as a watershed, a liberal legalist
paradigm emerged in which responsibility for extreme evil was individualized and assessed
through investigation, prosecution, and punishment through the application of law, in this case a
relatively new branch of law – international criminal law. While I recognize the diverse,
evolving, and richly complex literature on liberalism generally, I am comfortable here availing
myself of the term “liberal legalism” as a useful, albeit ultimately simplistic, hybrid of two
powerful and interpenetrated tendencies. First, “legalism,” which, to follow Judith Shklar, is the
view that “moral relationships […] consist of duties and rights determined by rules.”21 Second,
“liberalism,” for which I find apt legal scholar Laurel Fletcher’s observation that, in liberal states,
these rules “locate the individual as the central unit of analysis for purposes of sanctioning
violations.”22 Although I share Fletcher’s definition of liberal legalism as “refer[ing] to the legal
principles and vales that privilege individual autonomy, individuate responsibility, and are
reflected in the criminal law of common law legal systems,”23 I would push the latter point in the
direction that these vales also are shared by civil law legal systems suggesting, at a deeper level,
the difficulty in deracinating them from Western social and legal thought.
Those acts of atrocity characterized as crimes against us all include crimes against humanity
(an appellation that neatly embodies this philosophical construction), genocide, war crimes, and,
emergently, terrorist attacks undertaken through a policy of targeting civilians.24 Since these
offenses are constructed as being of concern to humanity as a whole, and in Larry May’s
estimation in some cases implicate an “international interest,”25 international institutions
putatively representative of the global community become legitimated as appropriate conduits to
dispense justice and inflict punishment.26 They also become suitable trendsetters for national and
local institutions. History has bestowed this legitimacy upon international institutions despite
Arendt’s relative equivocation as to whether these extraordinary crimes were more suitably dealt
with at the national or international levels.27
The definitions of these crimes have evolved over time to something quite complex. Stripped
to the essential, though, crimes against humanity include a number of acts (including murder,
enslavement, extermination, deportation, persecution, rape, torture, sexual slavery, enforced
prostitution, and forced pregnancy) “when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack.”28 Genocide is defined to
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include a number of acts (including killing and causing serious bodily or mental harm) committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.29
The special intent of genocide distinguishes it from crimes against humanity. War crimes
represent the behavior that falls outside of the ordinary scope of activities undertaken by soldiers
during armed conflict.30 Whereas killing the enemy is part of the ordinary activity of a soldier,
willful murder of civilians, torture, or inhumane treatment is not. Launching attacks that are
disproportionate, that fail to discriminate between military or civilian targets, or that are not
necessary to secure a military advantage also may constitute war crimes.
Most odious among these extraordinary international crimes is conduct – planned,
systematized, and organized – that targets large numbers of individuals based on their actual or
perceived membership in a particular group that has become selected as a target on discriminatory
grounds. In these situations, group members become indistinguishable from, and substitutable for,
each other. Crimes conducted against groups are viewed, for example by the Jerusalem District
Court in the Adolf Eichmann case, as more heinous than aggregating together the acts of
criminality against all individual victims. The sum moves well beyond the parts. Although
formal proof of discriminatory intent is required only for the crime of genocide and certain crimes
against humanity (persecution, for example),31 but not all crimes against humanity nor war
crimes, the core of the extraordinariness of these crimes remains the condemnation of the
brutalization of an individual simply based on group characteristics, in particular characteristics
such as nationality, race, ethnicity, or religion.32 This particularly is the case for those crimes that
truly become massive in scope and effect. Accordingly, the interplay between individual action
and group membership is central to these crimes insofar as this interplay engenders thorny
questions of responsibility and punishment. Crimes motivated by this discriminatory animus are
deeply influenced by (and in turn propel) collective action and groupthink, as well as their
concomitants: group superiority and inferiority.
(ii) The Paradox: Ordinary Process and Punishment
Despite the extraordinary nature of this criminality, its modality of punishment, theory of
sentencing, and process of determining guilt or innocence each remain disappointingly, although
perhaps reassuringly, ordinary. Tracking back to Nuremberg,33 the dominant discourse determines
accountability through third-party trial adjudication premised on a construction of the individual
as the central unit of action.34 This means that a number of selected guilty individuals squarely
are to be blamed for systemic levels of group violence. Punishment, too, is uninspiring. It
overwhelmingly takes the form of incarceration in accordance with the classic penitentiary
model. The creature that David Luban paints as the “enemy of all of humankind”35 is punished no
differently than a car thief, armed robber, or felony murderer.
A paradox emerges. Legal scholars have demarcated normative differences between
extraordinary crimes against the world community and ordinary crimes against the local
community. These scholars, however, largely are content to subject both to the same process.
Although there has been a proliferation of new international legal institutions to adjudge
mass violence, these institutions are rather homogenous in terms of how they deal with offenders
and strikingly dependent on the ordinary – and essentialized – operation of the criminal law as
constituted within those states that dominate the international order. These institutions are the
International Criminal Court (ICC, 2002),36 ad hoc tribunals for Rwanda (International Criminal
Tribunal for Rwanda, ICTR, 1994)37 and the former Yugoslavia (International Criminal Tribunal
for the former Yugoslavia, ICTY, 1993),38 the Special Court for Sierra Leone (2000),39 and a
variety of hybrid panels or chambers. Hybrid institutions divide judicial responsibilities between
the United Nations, or its entities, and the concerned state. Strictly speaking, they therefore are
internationalized legal institutions instead of purely international legal institutions. That said,
hybrid institutions do apply international criminal law and form part of the machinery of
international criminal justice and, accordingly, become appropriate subject matter for this study.40
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A hybrid model currently operates in Kosovo;41 has ceased operations in East Timor;42 another is
emerging in Cambodia.43
The stark reality is that all of these institutions, whether international or internationalized,
largely cannibalize methods of prosecution and punishment dominant within those states that
dominate the international political order. This appropriation is noted but does not raise many
eyebrows within the community of international criminal law scholars, including among its most
distinguished members.44
To be sure, over time these institutions have staked out some new processual ground which
can be held to constitute internationalized procedure. In particular, they have – to varying
degrees inter se, perhaps most thoroughly in the ICC, but also back to Nuremberg – harmonized
aspects of Anglo-American common law procedure with tenets of the Continental civil law
tradition. In some cases, for example in matters of evidence, this new processual harmonization
also reflects the difficulties involved in convicting individuals for group crimes. To suggest,
however, as Michael Scharf does, that this blended procedure is sui generis seems to set a very
low bar for a determination of jurisprudential originality.45 It also derives from a modest sample
of two legal traditions. Furthermore, both common law and civil law legal families essentially
share a focus on individualized,46 punitive, retributive justice, as well as a preference (though not
an exclusive one) for isolated incarceration as a remedy (although civil law may be more open to
collateral civil proceedings). Unsurprisingly, these two Western traditions are closely compatible
with, and probably constitutive of, the liberal legalist paradigm of extraordinary international
criminality. Although international criminal justice institutions such as the ICC may go some way
to reconcile adversarial and inquisitorial methodologies, a deeper structural inquiry reveals that
this reconciliation is far from a genuine amalgam that accommodates the disempowered victims
of mass violence – largely from non-Western audiences – lacking a voice in international
relations. Ralph Henham, stripping this reconciliation to its foundation, casts it as a pragmatic
political settlement among powerful international actors.47 In the end, then, this would imply that
the new “constitutional moment” in international law that thoughtful scholars such as Leila Sadat
posit emerges from these new institutions, in particular the ICC, may be more a matter of brickand-mortar design than of robust theoretical conceptualization.48
That said, these very modest innovations in international procedure are absent from the
punishment schemes of extant international institutions. International criminal law lacks its own
penology, thereby creating the need for it hungrily to borrow the penological rationales of
individualist Western domestic criminal law.
This appropriation is reassuring to some, insofar as the familiar always is comfortable. But
the appropriation also is vexing, in that the perpetrator of mass atrocity fundamentally differs
from the perpetrator of ordinary crime. The fulcrum of this difference, developed in Chapter 2, is
that, whereas ordinary crime tends to be deviant in the times and places it is committed, the
extraordinary acts of individual criminality that collectively lead to mass atrocity are not so
deviant. Extraordinary international crime often flows from organic groupthink in the times and
places where it is committed, making individual participation therein less deviant and, in fact,
more of a matter of conforming to a social norm. This latter reality, which I initially came to
appreciate experientially through my work with detainees in Rwanda,49 brings to light complex
and discomfiting issues of human agency. What is more, many extraordinary international
criminals who credible investigations suggest engaged in acts of unfathomable barbarity are able
to conform easily and live unobtrusively for the remainder of their lives as normal citizens of
liberal democracies. The example of Nazis who fled Germany following World War II to take up
residence elsewhere in Europe or North American stand out. This suggests something curious,
and terrifyingly disquieting, about the criminality of the enemies of humankind: there was no
subsequent delinquency; no recidivism; and an easy integration into a new set of social norms.
Acts of extraordinary individual criminality may support a social norm even though they
transgress a jus cogens norm.50 Although this deep complicity cascade does not diminish the
brutality or exculpate the aggressor, it does problematize certain tropes such as bystander
innocence, individual agency, the avoidance of collective guilt, and the moral legitimacy of
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pronouncements of wrongdoing by foreign and international judges when the communities or
institutions from which these judges hail themselves may have been malfeasant or nonfeasant
with regard to the violence. In the end, international criminal law turns to essentialized national
modalities in order to ground itself, without inquiring whether the harm it is seeking to redress,
namely extraordinary mass political violence, is comparable to the harm regulated by national
criminal law, namely ordinary deviant crime committed by traditional criminals.
Are there not any number of ordinary domestic crimes that share certain of these collective
characteristics? Indeed, that would appear so. Domestic crime such as gang activity, drug
offenses, hate crimes, certain white collar crimes, and organized crime may arise from adhesion
to a certain code or norm within a particular community. Might this suggest that in some
instances the distinction between ordinary crime punishable under domestic law and
extraordinary crime punishable under international law is not absolutely sharp? Once again, it
would appear that there is no impermeable bright-line distinction. Let me add that my purpose
here is not to revisit the suitability of deviance theory to ground all criminal sanction in domestic
contexts. However there is a bright-line of sorts. Violent acts such as murder, torture, infliction
of physical harm, and sexual assault deviate materially more from social norms operative in
ordinary times in ordinary places than they do from social norms in places afflicted by the
breakdown and mobilization that are conditions precedent to mass atrocity. In those very few
areas of ordinary domestic criminality where individual deviance may be obfuscated by group
ordering, this does not rise to the level of conforming to the dictates of a criminal state which,
even in the most decentralized polity, exerts some influence in inducing compliance among the
public. That said, in these areas I certainly would welcome criminological, preventative, and
penological research that recognizes the influence of the group as a social agent and the structural
nature of criminogenic conditions.
Assuredly, ordinary criminal law, even the ordinary criminal law of those polities most
apparently grounded in a theory of individual agency (e.g. the U.S.), is not wholly exclusive of
notions of vicarious liability and collective responsibility. As Mark Osiel notes, these departures
from principles of individual responsibility exist, although they remain controversial, 51 thereby
revealing – as I have argued elsewhere – the influence of individualism as the first principle of
ordinary dominant criminal law.52 It is, however, not an exclusive principle. Of great peculiarity,
then, is the reality that international criminal law, in the process of transplantation from the
domestic, also apparently caricaturizes ordinary domestic criminal law as an ideal-type of liberal
individualism. International criminal law may well insist more emphatically that, as the
International Military Tribunal at Nuremberg intoned, extraordinary international crimes are the
crimes of men than ordinary criminal law may insist on the centrality of individual responsibility
to its own sanction. It may inveigh even more ardently than ordinary Western criminal law about
the need to “pay particular respect to due process”53 in order to avoid, in Justice Jackson’s famous
admonition, “pass[ing] […] defendants a poisoned chalice.”54 For ICTY President Meron,
“[t]here can be no cutting corners” when it comes to due process else the tribunal ceases to be
credible to the public.55
This renders the transplantation somewhat fictional in its embrace of individual culpability,
and thereby all the more troubling since the transplant becomes applied to situations of connived
collective criminality. And, consequently, any departures that international criminal law
practically may have to make from principles of individual responsibility become greater in
controversy than the departures made by ordinary criminal law. These departures, for example the
doctrine of joint criminal enterprise (better known by its acronym JCE), are seemingly necessary
given the collective nature of the violence and the acute pressure collective harms inflict on legal
systems geared to ferreting out individual wrongdoing.56 It is taxing to shoehorn collective
agency into the framework of individual guilt. These occasional departures, however, are not
treated as natural. Moreover, the controversy they generate – for example, the propensity of some
international lawyers to ridicule JCE as meaning “just convict everyone” – may be exaggeratedly
heated insofar as punishing three people jointly for, say, the murder of thousands still seems
nearly as artificially reductionist as punishing only one person.
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All things considered, the legal fiction of essentialized individual responsibility, then, begs
the question – as is the case for all legal fictions – for which ulterior motivations may the fiction
deliberately have been designed? Possible motivations include the assuaging search for
simplicity, a good faith belief that reified individualized guilt simply is the most effective and
balanced response to mass crimes, or more self-serving motivations including the absolution of
the acquiescent through the condemnation, as Makau Mutua posits, of a few savages.
Furthermore, regulators at the national level do not rely exclusively on penal sanction to
promote compliance with the law. In many polities, civil suits play an important role. This even
is the case in those societies that evidence preferences for the criminalization of transgressive
behavior. Yet, once again, in the process of regulating extraordinary jus cogens violations,
international lawmakers somewhat have caricaturized legal regulation at the national level,
thereby fictionalizing the magnitude of the preference for criminal liability.
Obversely, recent sophisticated research into civil war, for example that conducted by Stathis
Kalyvas, suggests that not all perpetrators are motivated by ideology or groupthink.57 Many
participants are motivated by simple thievery. They are inspired by a Hobbesian private motive
instead of a Schmittian political motive. Others are inspired by a mélange of both motives. To be
sure, the distinction between the two sets of criminality is not watertight. After all, Kalyvas notes
that certain participants in ideological conflicts can be motivated by greed; and that certain
participants in non-ideological civil war can be motivated by political grievance.58 However,
certain tendencies are cognizable above any ambiguity; and certain inferences remain proper.
One such inference is that it may well be that ordinary criminal modalities are perfectly
appropriate to capture these materialistic motivations, especially when instantiated through
individual action independent from the group. This sort of research is to be prized, insofar as it
helps augment the baseline of information that can help legal frameworks regulate more
effectively. As I see it, this research also suggests that there is a conceptual divide within the
conduct aggregately proscribed as extraordinary international criminality. On the one hand, as I
alluded to earlier in this chapter, there is a subset of extraordinary international crimes
distinguished by discriminatory animus against individuals merely because of their group
characteristics. This subset includes genocide and certain crimes against humanity, which form
the crimes of all crimes within the constellation of extraordinary international criminality, and
operate independently from any condition of war, whether internal or international. I would
distinguish these, on the other hand, from war crimes and those crimes against humanity for
which a discriminatory element is neither de facto nor de jure an element of the offense. Conduct
within the framework of civil war that Kalyvas notes is motivated by Hobbesian materialism
seems to target individuals not as indistinguishable members of a group but, rather, because of
their individual wealth, standing, and asserts. This sort of conduct, which could be captured as
war crimes, has more in common with ordinary domestic crime than the anonymous mass
slaughter of group members in times of war or peace simply because of their group membership.
Accordingly, as I take up in Chapter 2, it may well be that this Hobbesian subset of extraordinary
international criminality relates somewhat more effectively to the frameworks of ordinary
criminal law (although the relationship is far from cozy). However, the relationship remains
deeply problematic in matters of genocide and persecution, which forms the core of the analysis
that follows and the intellectual center of activity of international criminal justice institutions.
Chapter 3 reviews the positive law of international criminal justice institutions, their
jurisprudence on sentencing, and the quantum of sentences that have been awarded. This review
modestly responds to the paucity of evaluative research regarding the sentencing practices of
international tribunals. The data reveals that in contemporary international practice sanction is
limited to imprisonment. The majority of extraordinary international criminals receive fixed terms
of imprisonment. The ICTY has issued one life sentence; and the mean fixed term issued is 14
years (median of 12). The length of fixed terms of imprisonment is just slightly higher at the East
Timor Special Panels. The ICTR sentences more severely, with approximately half of all
convicts receiving life sentences; the remainder much longer fixed terms of imprisonment than at
the ICTY, in some cases so long as to become de facto life sentences. In the case of the ICTY,
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several convicts already have been granted early release after serving two-thirds of their sentence.
This development is not factored into the mean and median calculations but certainly affects ex
post the severity of sanction initially awarded. Early release has not occurred at the ICTR.
A more exacting review of the data suggests that international criminal law institutions are
beginning to consider more sophisticated approaches to fixing sentence. Over time the
jurisprudence is becoming more rigorous. The ICTY, in particular, recently has issued some
thoughtful judgments. However, despite these steps towards greater standardization, the
sentencing practice of these institutions remains confusing, inconsistent, and erratic. The
sanction imposed on extraordinary international criminals largely remains little more than an
afterthought to the closure purportedly obtained by the conviction. Does this reflect a perception
that conviction alone suffices to pronounce the moral condemnation of the community? If
punishment is perceived as capable of conveying only limited meaning, then it would follow that
there is little to be gained by thinking hard about punishment. Unfortunately, this denies
punishment’s potential to attain tremendously important goals.
In the area of punishment and sentencing, international criminal justice institutions very
closely borrow the rationalities of ordinary domestic criminal law – in particular, retribution and
general deterrence – without admitting the fundamental differences between perpetrators of
extraordinary international crimes such as mass atrocity and perpetrators of ordinary domestic
crimes (e.g. armed robbery) in ordinary times. Expressivism, which posits the messaging value
of punishment to affirm respect for law and settle historical narratives, is a tertiary goal that
emerges occasionally in the international jurisprudence. There is cause to believe that it may be a
more plausible justification for the punishment of extraordinary international criminals.
Expressivism, in fact, bears considerable promise insofar as the prosecution and punishment of
perpetrators of atrocity at both the national and international levels provides an impetus for
forward-looking construction of values and norms that may guide societies in post-conflict
phases. The expressive value of the punishment of extraordinary international criminals will be
strengthened to the extent that this value can be distinguished from that of punishing ordinary
common criminals. Other goals are sporadically mentioned, ranging from reconciliation to
reintegration to rehabilitation, but these are neither patterned nor consistent.59
To be sure, perhaps the transplanted nature of the punishment inflicted by international
criminal justice institutions may be effective precisely because it is transplanted. I examine this
counterargument and consider whether, but for its transplanted nature, punishment may be
illegitimate. Ultimately, the narrowness of the implicated traditions and their Eurocentrism give
reason for pause, especially because the operation of international criminal justice institutions
largely takes place outside of the West. There is no sign this tendency shall abate; quite the
contrary, it is accelerating.
(iii) Irrational Exuberance?
There is, of course, vivid debate regarding the suitability of dominant methods of
punishment in the ordinary domestic context. James Gilligan and H.L.A. Hart are but two of
many who have questioned the penological purposes of domestic criminal law and its ability to
attain the rationales it claims for itself.60 Many proponents of international criminal justice
institutions – and, as Chapter 4 documents, national criminal justice institutions that punish
extraordinary international crimes – gloss over these contestations when transplanting these
methodologies to the context of mass atrocity.
There is considerable discussion among legal scholars about the relationship between
criminal trials, on the one hand, and peace and justice, on the other. Assuredly few, if any, legal
scholars believe in principle that criminal trials should be the only response to mass atrocity. That
said, hardly any legal scholars can conceive of liberal legalist criminal trials as something that
would not be part of postconflict settlements. Payam Akhavan and Jan Klabbers (among others)
are right to observe that many legal scholars ascribe lofty transformative potential to trials.61
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These lofty ambitions lead to a preference for criminal justice methodologies – a strong
preference that dominates others.62 What is more, preferences in a context of finite resources may
soon lead to exclusivity.
This ambitious potential echoes in other scholarly communities ranging from historians to
moral philosophers.63 International human rights activists support the expansion of the
international criminal justice paradigm and, according to William Schabas, thereby – ironically –
have “adjusted [their] historic predisposition for the rights of the defense and the protection of
prisoners to a more prosecution-based orientation.”64 Scholars, advocates, and activists
specializing in extraordinary criminality certainly are influenced by the general attitudes of the
wider epistemic community of international lawyers. There is “an article of faith among most
international lawyers that the growing availability and use of international tribunals advances the
rule of law in international relations.”65 Ruti Teitel concludes that the meaning of rule of law is
becoming “more and more coincident with international criminal justice.”66
Political actors, such as states and international organizations (for example, the United
Nations) – along with nongovernmental organizations and development financiers – stand behind
international criminal justice institutions. Even the U.S. government, while opposing the ICC, is
seduced by the allure of prosecution, punishment, and incarceration for individual perpetrators of
mass atrocity. U.S. opposition to the ICC does not focus on the appropriateness of its paradigm,
but, rather, on the independence of the institution and the prospect that U.S. soldiers, officials, or
top leaders may become its targets.67 In fact, the United States has supported temporary
international criminal tribunals from Nuremberg in 1945 to the ICTR and ICTY today; and war
crimes prosecutions generally, as exemplified by the Saddam Hussein trial.68 Many of the
substantive international crimes punishable by the Iraqi High Criminal Court (whose Statute was
drafted with considerable U.S. assistance) track those of the Rome Statute of the ICC.69
In short, faith on the part of so many activists, scholars, states, and policymakers in the
potential of international criminal justice has spawned one of the more extensive waves of
institution-building in modern international relations. This faith flows from a perplexing fusion of
exuberance and undertheorizing. Although there is much to celebrate in holding systematic
human rights abusers accountable for their actions, an iconoclastic preference for liberal legalist
criminal law may not always be the best way to promote accountability in all afflicted places and
spaces. In fact, my interviews of perpetrators and survivors in Rwanda and experiences with
victims of internecine violence in Afghanistan suggest that the structural simplicity avidly
pursued by the prevailing paradigm of prosecution and punishment may squeeze out the
complexity and dissensus central to meaningful processes of justice and reconciliation.70
To be sure, some constituencies express considerable reserve regarding the merits of
international criminal adjudication. International relations theorists of the realist school provide a
probative example. According to the realist conception, law should do no more than promote
cooperation when states find this to be in their best interests. Law certainly should not
redistribute power. Nor should it attempt to impose moral limits on politics: for realists such as
Carl Schmitt such an imposition only makes politics crueler.71
Other realists specifically criticize international criminal process (along with international
law generally) – in the words of George Kennan, the “legalistic approach to international affairs”
– because this approach “ignores in general the international significance of political problems
and the deeper sources of international instability.”72 Eric Posner, John Yoo, and Jack Goldsmith
currently import this view into the legal academy under the auspices of rational choice theory. 73
Other scholars, in turn, have demonstrated that this importation is neither convincingly researched
nor compellingly delivered.74 It does, however, remind of the limits to international law, to
borrow from the title of Goldsmith and Posner’s most recent book.75 Recognizing the limits of
extant legal frameworks may guard against assertions of dominion by certain subfields of law
over complex phenomena. It may preclude religious assertions of Western law as servicing a
mission civilisatrice. This recognition, in turn, is necessary in order to appreciate the potential of
law generally and its connectivity to other nodes of regulation and inquiry. This will permit law
most realistically to attain its vocation – in this case the regulation of atrocity – without
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succumbing to the facile temptations of idolatry or romanticism. Let us recall that in many places
the industrialization of mass violence arises at the behest of and is couched in terms of
conforming to the law. This is not to say that this modesty should lead to the decoupling of law
from the condemnation of evil or the conclusion that there is no relation between the two.
An encouraging but tempered search for law’s potential is what I hope to accomplish in this
project. A goal is to strike new ground and offer a critical perspective rooted in criminology,
victimology and, especially, penology that supports the universal goal of accountability for
extraordinary international criminals and the denunciation of their universal crimes of group
discrimination, but which expresses concern that dominant procedural and institutional
methodologies limit legitimacy and effectiveness.76 This step is central to developing a
sophisticated and appropriate understanding of social control at the global level for those who
breach the global trust.
(iv) Percolation from the International to the National
This wave of institution-building in the international legal order has influenced national and
local legal orders as well. Many of these have elected to proscribe extraordinary international
crimes, claiming jurisdiction for their courts based on territoriality, nationality, passive
personality, or universality. This means that the judicialization of mass violence and the
emergence of international criminal law occur through four sets of institutions: international,
hybrid (mixed national/international), national, and local. Nor are the connections between these
levels watertight. For example, although I consider the Iraqi High Tribunal [need to have a
uniform correct title] (formerly known as the Iraqi Special Tribunal) to be a national legal
institution, it embodies certain international elements. For example, it receives expertise from the
United States (among other states), was created pursuant to the invasion of Iraq by foreign
powers, and directly incorporates certain of the crimes from the constitutive documents of the
ICC, ICTY, and ICTR.77 In this sense, the Iraqi High Criminal Court may be an example of the
crudest manner in which the liberal legalist response to extraordinary international criminality
becomes operative at the national level.
A particularly fertile area of comparative analysis is the study of those areas in which
atrocity has become judicialized transsystemically at multiple levels through multiple (and often
independent) institutions. I consider these multivalent sites of judicialization with regard to three
atrocities: the 1994 Rwandan genocide, ethnic cleansing in the Balkans throughout the 1990’s,
and the Nazi Holocaust. In Chapter 4, I review the activity of national and local legal institutions
sharing contacts with these three atrocities. Given the depth of the national jurisprudence and
positive law, the simultaneous recourse to neo-traditional dispute resolution (gacaca), and the
paucity of sustained analysis, I devote a disproportionate share of my attention to the case of
Rwanda. This is so owing to my own work in Rwanda, but also to respond to the reality that
international criminal law scholarship accords Rwanda little attention. By way of example, Mark
Osiel -- one of the more influential authors in the field -- discards the Rwandan experience,
perfunctorily in a footnote, even though (or perhaps because) it does not mesh with his theoretical
modeling of postconflict prosecutorial strategies.78
The data on punishment and sentencing reveal that although there is somewhat more
diversity at the national and local levels than at the international, for the most part the goal of
retribution (and, secondarily, general deterrence) is parroted, even in societies where this goal
may not be indigenous, innate, nor influential. Aggravating and mitigating factors track those of
the ordinary criminal law of dominant states quite closely. The assumption central to procedural
international criminal law, namely that individuals are to be punished through penitence borne of
individual isolation from society, prevails – although in some jurisdictions the death penalty
remains on the books. This places considerable pressures on local approaches – for example
restorative methodologies – that become skeptically perceived as the ‘other.’ The situation of
traditional dispute resolution – gacaca – in Rwanda is a poignant example.
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On a broader note, my review of national jurisdictions suggests the ebb and flow of powerful
currents of legal transplant. Legal processes operative in dominant national legal systems
modestly can meld (for example, civil law and common law methodologies), then migrate into
the international order and there crystallize into the normalized methods of international law. In
this process, these transplants may exaggerate qualities of these dominant justice systems, such as
the place of individualism, thereby creating a slight distortion. These slightly distorted transplants
then may come full circle through their subsequent return and superimposition upon multiple
legal systems at the national and local levels, including diverse disempowered systems, through
vertical applications of authority in international law. These applications emanate from the
primacy of certain international legal institutions, such as the ICTY and ICTR. Although both of
these institutions hope to wind down their trial operations by the end of this decade, this goal only
becomes attainable should these institutions flex their power to refer cases to national courts. This
referral power has activated legal reform in both Rwanda and, especially, the states emergent
from the former Yugoslavia. Looking ahead, although the ICC promises to be complementary to
national initiatives, my assessment of the functionality of the complementarity mechanism79
suggests that it, too, will stimulate a vertical application of authority radiating downward from the
international by inducing a perceived need among national legal orders to ‘look like’ the
purportedly decultured international order. Alternately, as is evident in the decisions of certain
states – such as Uganda – to refer matters to the ICC that involve atrocity within their own
borders, states that wish to minimize or avoid the messy business of postconflict reconstruction
and their own duties to their citizens are enabled in that avoidance by the ICC. The ICC thus
creates an option of exit for national governments. This availability of exit means that nothing
may be done to place domestic socio-legal structures in the service of postconflict transition,
leading to the same result: the bland superimposition of selective exogenous criminal law on
terribly complex phenomena.
Complementarity and referrals from international institutions are only two of many pressures
exerted on national jurisdictions to mimic the liberal legalist procedural approaches of
international criminal justice institutions to prosecute and punish perpetrators of mass atrocity.
These other sources of this conformist pressure are diffuse, overlapping, and different in each
case: instrumental concerns to obtain financing and legitimacy; defensive concerns to shield
from criticism; selfish concerns regarding the eliding of actual systemic responsibility that
protects state power and interests and curtails deeper examinations of state responsibility for
violence; and jurisdictional concerns to ‘receive’ cases from foreign national courts (for example,
through extradition). Collaterally, this transplant from the international to the national may in fact
be welcomed by many state actors, who prefer the consolidation of power occasioned by punitive
criminal law frameworks to the more free-ranging and authority-diffusing modalities of justice
that may arise at local levels. In this vein, the international modalities inform center-periphery
relationships in transitional societies in a way that consolidates centralized state authority.
When aggregated, these various pressure points squeeze out local approaches that are legal
or extra-legal in nature, in particular those that eschew the methods and modalities dominant
internationally. These pressure points are proving to be of great relevance to the structure of
punishment modalities for extraordinary international criminals although they have little, if
anything, to do theoretical or applied determinations regarding the actual nature of extraordinary
international crime. In Chapter 4, I explore the activation of these pressure points in Rwanda and
some of the states of the former Yugoslavia, where they have engendered changes to the national
legal landscape and to traditional approaches to dispute resolution. Some of these changes are
salutary, for example my case-study of national courts in Serbia and Croatia, while others remain
troubling, as in Rwanda. Although national courts still may punish with a broader qualitative
variety of sanction and, in cases of punitive sanction, a broader quantitative range of length of
imprisonment (sometimes even death), it is foreseeable that as the modalities of international
tribunals continue to spill-over to national legal frameworks they also will reduce both the variety
and range of sentence available within those national frameworks. In terms of imprisonment, for
example, I foresee that at diverse national levels this will prompt raising minimum sentences –
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along with embedding duties to prosecute that might disfavor alternate modalities of
accountability – while lowering maximum sentences. The effect of these legal migrations is a
homogenization of process that may be alienating to many of the subjects – whether perpetrators,
victims, or bystanders – of international criminal law. In particular, victimological research
indicates that individualized criminal trials do not correspond to victim preferences, especially
when pursued as the dominant response and certainly when exclusive.
Chapter 5 considers whether this mimicry by many national legal systems exogenous to
dominant legal systems can be understood as a benign phenomenon of legal transplant and an
informed choice as to a preferred way of ordering legal process, on the one hand, or, on the other
hand, as inseparable from power politics generally and the colonial encounter specifically. 80
Ultimately, I incline toward the second hypothesis. The implementation of international criminal
law therefore risks a democratic deficit insofar as it may exclude the local, which is somewhat
ironic since the excluded local often represents the precise population that was most traumatized
by the criminality. This blocks victims from asserting control over their own victimization.
Moreover, since the excluded local primarily is non-Western, the processual implementation of
international criminal law simply may reinforce patterns of political dominance that characterize
the international socio-legal order generally. The cultural basis of the modalities of international
criminal law means that their application to diverse spaces and places may externalize justice
from the communities implicated in the conflict. Although international criminal justice
institutions concern themselves with a small number of defendants who may share the greatest
responsibility for an atrocity, these institutions deeply influence the fabric of national and local
legal orders that may aspire to hold accountable a vastly larger group of lower-level offenders.
To be sure, there is little advantage in venerating the local or that which otherwise differs
from dominant discourse simply to promote pluralistic difference as an end in itself. What is
more, many national legal orders are corrupt, unreliable, and illegitimate. International input can
ameliorate the output of institutions within those orders and, to the extent this is possible it should
be welcomed. After all, legal history boasts of many examples of international or foreign
injection of values and ordering documents that, in turn, may lay the foundations for peaceful and
free societies to emerge from the ruins of war and authoritarianism (for example, constitutional
arrangements in both Germany and Japan). Legal history also boasts of many examples to the
contrary, namely failed impositions and imperial projects. The operation of the Iraqi High
Tribunal is a contemporary case-study of this divide. Despite multiple prognostications, it is too
early to determine to which end of the spectrum it shall adhere. For now, the point of this exercise
is to recognize that just because a process becomes globalized does not mean that it is more
legitimate or representative; nor free of hubris, culture, or exclusionary tendencies.
(v) Deconstruction: The Disconnect between Aspirations of Punishment and Realities of
Sentence
Chapter 6 explores whether the dependent nature of international criminal law, regardless of
the site of implementation, may account for some of the challenges it faces. The specific focus is
on punishment. This chapter reviews the three central theoretical justifications – retribution,
deterrence, and expressivism – that have been proffered for international penality. It proposes a
disconnect between the effects of sentencing and each of these three aspirations, most acutely the
retributive and deterrent aspects.
Although there are many shades to retributive theory, these share in common the precept that
the criminal deserves punishment and that this desert should be proportional to the gravity of the
offense.81 Those institutions that punish extraordinary international crimes place retribution very
high on the list of the goals of punishment. The question, then, follows: do the sentences issued to
perpetrators of extraordinary international crimes attain the self-avowed retributive goals?
The data presented in Chapters 3 and 4 reveals that, at both the national and international
levels, punishment for multiple international crimes is generally not more severe than what
national jurisdictions award for a single serious ordinary crime. Some positive law instruments at
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the national level provide that punishment for extraordinary international crimes could be more
severe than for ordinary serious common crimes, but this is not the case in positive law
instruments in other national legal orders. What is more, the practice of courts that actually
punish offenders for extraordinary international crimes reveals that, for the most part, punishment
for multiple international crimes ranges from as severe to less severe than for a single serious
common crime. This is in part due to the reality that the massive nature of crime cannot be
reflected in retributive punishment owing to human rights standards, which cabin the parameters
of sanction.82 In particular, these standards limit the amount of pain that institutions can inflict
upon convicts.
At the international level, there are significant inconsistencies in terms of the quantum of
punishment meted out to similarly situated offenders within institutions and also among
institutions. These arise from the broad judicial discretion that is accorded to international judges
and a lack of a sentencing framework or heuristic.83At the national level, there is a broader range
of sanction and, in cases of incarceration, a broader range of quantum of sentence. The breadth of
these ranges gives rise to considerable variability and unpredictability in sentencing. This breadth
arises in part from to political concerns that may weaken the ability of domestic prosecutors to
bring charges in transitional situations which, as Osiel documents historically,84 often result in
amnesties. At the other end of the spectrum, there is evidence that certain national institutions
may sentence more harshly than international institutions (and may contemplate the death
penalty), may offer conditions of imprisonment that are more onerous, or permit more limited
access to conditional release. The fact that national institutions may punish offenders more
harshly than international institutions is problematic for the retributivist insofar as international
institutions tend to assert jurisdiction over the leaders and planners of atrocity who, according to
conventional wisdom, are more responsible and, hence, more deserving of harsher punishment.
Although there are places where the stigmatizing value of punishment by international criminal
justice institutions may be greater than that of national institutions, and might outweigh the
reduced pain from a shorter and more comfortable prison term, research surveys reveal that there
are other places where there is no perception of enhanced stigma.85 A further challenge to the
retributive value of punishment at both the national and international levels is the avid procedural
incorporation of plea/charge bargains. Here punishment becomes disconnected from desert or
gravity and contingent on what the convict knows and who else the convict is willing to
implicate.
Deterrence is perhaps even more problematic than retribution as a goal for the sentencing of
extraordinary international criminals. Although there is some scattered reference to the merits of
specific deterrence in the transsystemic jurisprudence,86 the focus largely is on general deterrence,
namely the notion that if one person is punished, this will reduce the likelihood that another
person in that same place or somewhere else will offend in the future. Deterrence therefore
punishes because of its utilitarian social engineering function, whereas retribution punishes
because, as Kant put it, punishment is a categorical imperative. To this end, it makes sense to
consider empirical evidence whether potential extraordinary international criminals would be
deterred by the punishment of others following criminal trials. There are scattered anecdotal
reports of deterrence culled by qualitative research.87 However, no systematized or conclusive
evidence has yet been proffered. In any event, any anecdotal research must take into account the
reality that atrocity continues to occur, unabated, in many places following the creation of
criminal tribunals to punish perpetrators. It is true that we simply cannot know how much worse
atrocity would have been, or how much more atrocity would have occurred, in the absence of
justice institutions. We can have faith and hope. Chapter 6, however, explores two challenges to
this faith. The first is the reality that there is a very low – albeit, happily, growing -- probability
that perpetrators actually will be taken into the custody of criminal tribunals. The second is the
assumption of perpetrator rationality, or at least a certain degree of rationality, amid the cataclysm
of mass atrocity and the furious propaganda that precedes it. Rationality is central to deterrence
theory insofar as this theory assumes that perpetrators make some kind of cost-benefit analysis
and thereby control their behavior. The work of anthropologists and the research of journalists in
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conflict zones, both of which I examine, suggests a much more nuanced picture of human agency.
In the end, even if there were cause to think that some deterrence has been achieved, this does not
mean that the extant paradigm effectively deters nor that other approaches to sanctioning
universally repugnant crimes could be more adept in attaining deterrent aspirations.
Expressivism is the third rationale for punishment that emerges jurisprudentially in cases of
extraordinary international crime. Unlike retribution and deterrence, it is not found with
regularity. It occupies a subaltern place.88 Diane Marie Amann notes that expressivist theories
look at the messaging effect of verdict and punishment.89 They consider the extent to which
enforcement affirms the value of and respect for law, and expresses historical truths and accepted
(or acceptable) narratives regarding the violence. Emile Durkheim observed that by expressing
condemnation, punishment in fact could strengthen social solidarity. Furthermore, punishment
may feed the legitimacy and purpose of law itself: as the Nuremberg judges insisted, “only by
punishing individuals who commit [crimes against international law] can the provisions of
international law be enforced.”90
Liberal legalist criminal trials do seem well-equipped to express the importance of law and
to stigmatize the offender who transgresses the law. As Lawrence Douglas notes, trials tell
stories and narrate events – publicly – and then impose punishment on the guilty in a manner that
can shame and stigmatize.91 There is, after all, an authority to judicial pronouncement; and rules
of evidence intone an aura of trustworthy impartiality. There also is a dramaturgical element – a
performance – that tells a story and carries that story into homes and hearths. This is particularly
the case for leaders and propagandists of atrocity: those public figures known to many and before
whom many may have trembled. Seeing them behind bars may serve tremendous value in
reinforcing respect for the value of law that constitutes a pivot necessary to any meaningful social
contract. That said, the expressive goals of punishment, too, may be jeopardized by the selectivity
and indeterminacy of legal process; the historical narrative, too, may become crimped by the
giddy recourse, animated by managerial concerns, toward plea bargaining, yet another transplant
from dominant legal systems that seems an odd fit in the prosecution of the enemies of all
humankind. I also consider how the abrupt end of the Slobodan Milošević prosecution attests to
the risks of casting high-profile leaders as the only antagonists, and the prosecutors the
protagonists, insofar as the premature death of an antagonist can freeze the official narrative
owing to a lack of diversification in the methods to weave the narrative. Finally, procedural
differences between the liberal legalist procedural model and expectations among local
populations, in particular non-Western populations, may result in an externalization of justice,
thereby diminishing the prophylactic value of verdict and punishment.
In conclusion, these concerns, which operate at the level of international institutions as well
as at the level of conformist domestic institutions, suggest that the internationalized preference for
individualized criminal process following what liberal legalists deem to be an acceptable trial
falls short of its penological objectives. This may be because those objectives are too ambitious.
It may also be because the criminal law, standing alone, simply is not enough nor can ever be
enough.
(vi) … and Reconstitution
But what then? And where now? The remaining chapters begin this conversation, and move
the focus of the work from diagnosis to remedy.
I hope to attenuate the dependency of the prosecution and punishment of extraordinary
international criminals on a selective, and ill-fitting, criminal justice model by encouraging two
intertwined processes:
(1) vertical: recalibrating the application of authority among criminal justice institutions
at multiple regulatory sites (the international, regional, national, and local) that currently
radiate downward from the international, so as to foster pluralism in terms of procedure and
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sanction; and
(2) horizontal: a diversification, in which the hold of the cribbed criminal law paradigm
on the accountability process yields so as to integrate approaches to accountability offered by
the law of obligation generally, thereby encouraging modalities of punishment that more
closely track the peculiarities of collective violence, as well as those offered extra-legally.
Although I accept that a case can be made for the universality of the wrongdoing (and the
universality of holding wrongdoers accountable), I do not accept that a case can be made for the
universality, and certainly not for the exclusivity, of liberal legalist criminal process and
punishment as the method to secure these universal accountability goals. Chapter 7 defends the
proposition that certain substantive universals, such as accountability for jus cogens violations,
can be attainable through diverse procedural mechanisms. To foreshadow: my position is one that
develops an independent criminology and penology of the universal criminality of mass atrocity,
which I seek to unmoor from ordinary domestic criminal law, but envisions an implementation
that is responsive to localized constituencies, in particular disempowered constituencies. Within
the context of this implementation, I argue that essentialized models of liberal legalist criminal
process and sanction have proven to be insufficient to operationalize the goals of punishing
perpetrators of extreme evil and deter the conditions precedent to mass atrocity. [here think
about Reader A’s comment].
It may appear that this construction pulls in diametrically opposed directions and is internally
incoherent. This, of course, depends on how we construct the role of law in a diverse world. I am
influenced in my multivalent approach by cosmopolitan pluralist theory. Essentially,
cosmopolitanism is a tradition in sociopolitical and legal philosophy according to which all
human beings belong to a single moral community. This community derives from and in turn
fosters certain values that all human beings share in common. As with all theoretical perspectives,
cosmopolitanism is diverse. Cosmopolitans differ regarding the breadth and depth of these values,
their immutability, and the extent to which they are exclusive or inclusive. One fracture-line
within cosmopolitan theory exists between cosmopolitans who shutter out local or national
identities (thereby tending toward universalism) and those cosmopolitans who welcome these
identities as part of the complex nature of human agency and interaction (tending toward
pluralism). In this vein, although I would adopt David Hollinger’s view that cosmopolitanism
differs from pluralism and universalism,92 I would add that it is not unattached from either and, in
fact, can mediate between the two.
Those cosmopolitans accepting of plural identity identify as moderate cosmopolitans. The
calling of moderate cosmopolitans is not to homogenize the world according to any universal
standard. Rather, it is to recognize certain transnational commonalities intrinsic to human
existence while acknowledging that other aspects of the human condition remain best expressed
and understood at the local level by the individual among her fellow citizens and neighbors.93
a. Pluralist Process for Universal Evil?
Martti Koskenniemi engages with the notion that international law fundamentally is a
European tradition derived from a desire to rationalize society through law.94 From this general
perch, it is not too far to jump to the specific conclusion that stigmatizing the repugnance of
extraordinary international criminality reflects a rationalization that may not be universally
shared. That said, Koskenniemi goes on to conclude, in no uncertain terms, that “[t]he fact that
international law is a European language does not even slightly stand in the way of its being
capable of expressing something universal.”95
And substantive international criminal law does express something universal: the
condemnation of acts of great evil or wickedness, recognized by deep traditions in moral
philosophy. Stuart Hampshire sagely advises that “[t]here is nothing … culture-bound in the great
evils of human experience […] [these] form the basis of moral argument in every culture and
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every epoch.”96 David Luban, whose work bridges law, ethics, and morals, pointedly adds:
“There is no society […] in which gratuitous infliction of the great evils is tolerable.”97 Larry
May, carrying the analysis one step further, finds deep justification for the universal
categorization of such great evils as crimes.98
No human being wishes to be victimized by the wicked or the evil. With this as a premise,
international criminal law also adopts as a substantive rationalization another universally shared
moral value, namely that the victims of great wickedness can demand that those who inflicted
these acts upon them be held accountable. It is defensible that this broad aspiration remains best
reflected in the designation of specifically heinous categories of criminality, in particular those
categories of criminality such as genocide and discriminatory crimes against humanity, that are
condemnable by all of humanity and, in this regard, are affronts against all of us as victims. Not
only is this approach theoretically grounded, it also is something that is politically accepted and,
hence, part and parcel of the international order. I am not suggesting that the normative
desirability of this proposition is one that derives from political agreement thereupon but, rather,
that the prevention of great evil, and the holding accountable of those who perpetrate this evil, are
norms of universality.
That said, I would separate the substantive goals at hand, namely the stigmatization of great
evil (and the substantive body of law that has emerged in this regard, namely international
criminal law’s definition and prohibition of extraordinary international crimes), from the process
regarding how this body of law is to be operationalized and the institutions where this process is
to occur. All legal systems know the distinction, albeit often blurred,99 between process and
substance. Reams of jurisprudence, such as the Erie doctrine – the nettle of U.S. civil procedure –
attest to the existence of these differences despite the effect procedure can have on substance and,
of course, the effect that substance can have in driving procedure. Moreover, supranational legal
orders also know this distinction between process and substance. For example, the European
Court of Human Rights has embraced a jurisprudence that recognizes that universal rights can be
enforced with a margin of appreciation accorded to the national or local. Although the margin of
appreciation doctrine is a rule of judicial interpretation, it holds broader philosophical value as a
justification for the separateness of procedure and substance and, clearly, deference to domestic
process.
It is at the level of the procedural, broadly defined, and the institutional, broadly understood,
that my concerns with international criminal punishment and condemnation arise. It is at this
level that international criminal law as technique is most susceptible – and properly so – to the
claim of pyrrhic universalism, as defined by Marks and Clapham, deeply rooted in Western
visions of what the process of law should look like.100
To be sure, this differentiation between pluralist procedure and universal law itself invites
much in the way of contestation. Some observers may posit that, given the frequency of terrible
political violence, there really is no viable extraordinary norm proscribing this violence and that it
may be best to conceptualize such violence as ordinary. There is force to this argument. That said,
it invites any number of responses. One response is that the category of that which could be
considered extraordinary international criminality itself is diffuse, with important distinctions
emerging among the core crimes. Whereas war crimes may be commonplace amid the fog of
war, the deliberate and discriminatory attacks on civilian populations that constitute the hallmark
of genocide and crimes against humanity are tragically frequent, but far from commonplace or
ordinary.
Another contestation is that classifying the great evils as crimes reflects nothing more than
the superimposition of Western juridical categories. In particular, this superimposition may reveal
the Western notion that categorizing conduct as a crime represents the harshest form of
stigmatization possible. One response to this contestation, of course, is to construct the
wrongdoing, namely the great evils, as more than just crime and as something to which the full
panoply of accountability modalities and methods available under law generally is apposite. This
theme underpins much of the discussion on horizontal pluralism, and the outreach to private law –
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such as obligation, tort, contract, and restitution – that I propose to expand the lexicon by which
the law classifies these great evils.
More than anything else, liberal legalism is a process of holding individuals accountable, of
how to inflict pain on those convicted, of reducing truths to proven facts in an adversarial trial,
and of narrating history. What is particularly hegemonic about international criminal law is not
the condemnation of great evil but, rather, the ascension and now expatriation of a particular
mode of reporting that evil and of accounting for its perpetrators. It is at the procedural level that
the contingency of universalism seems starkest, as well as the most powerful, particularly through
universalism’s homogenizing effects on the content of diverse national and subnational legal
systems that seek to promote accountability for the great evils.101 Assuredly, there may well be
certain aspects of liberalist process that tap into something genuinely universal in the human
experience. The point here is not to prejudge that possibility. Nearly all legal systems envision the
need for some demonstrable relationship between wrongdoing and sanction, for example,
although the relationship as defined in liberal systems is particularly exacting and individualized.
The contours of the discussion here are neither stark not impermeable. The point, however, is that
there appear to be many more elements of liberalist criminal process whose cultural contingency
does not resonate universally, in particular with regard to sanction, and most palpably in relation
to local extra-statal customs and practices which, in many places torn asunder by mass atrocity,
may be more germane to victimized populations than formal national legal systems which often
may have served as conduits to legitimize the infliction of evil.
The modalities of international criminal law, in particular as regarding punishment and
sentence, tend to universalize through preference instead of an independent assessment of the
actual perpetrators, comparative refection about how diverse justice traditions might punish, and
then the development of a rich conversation. There is no harm in choosing a less-than-perfect
solution; there is, however, a problem with not honestly assessing the regulatory challenge at
hand, no matter how daunting, nor the provenance of the conventional wisdom in that regard.
Nor is it fair to reduce the discussion to a zero-sum game between the received wisdom of
internationalized criminal process, on the one hand, and impunity, or nothingness, on the other.
It is disappointing that so much of the brilliant work of international criminal law, namely
the definition of the substantive crimes and the march past impunity, has been weakened by a
seemingly casual path-dependency in delineating institutions and methodologies capable of
putting that work into action.102 That said, not all share this sense of disappointment. As with
the broader debates that pertain to multiculturalism, there are those who posit that intrinsically
there is nothing improper about hegemonic law, even processual law, since some processes
simply are better suited than others to denounce the evil at hand, to condemn it, and to prevent its
re-emergence. And, indeed, it may very well be that Westernized theories of adjudication,
punishment, and sentence simply are the best, or at least the best we now have, and therefore
there is nothing inherently offensive about their dominion over international discourse and their
transplantation back to national legal orders, even those where they may not be indigenous.
Despite the boring monochrome that may result, the question at hand is not one of aesthetics.
After all, there is a greater good in replacing the many things that may not work, or that work
poorly, with the one that does work, or at least works better. So might the argument unfold.
Fundamentally, then, the inquiry becomes one of effectiveness: effectiveness of
denunciation, retribution, and deterrence. That said, the argument fails if it can be shown, through
theory and practice, that the hegemonic way of doing things fails to meet these goals that it
arrogates to itself. This book interrogates the disconnect between aspirations and realities within
the context of sentencing and suggests that there is cause for concern regarding the effectiveness
of the hegemonic approach. Diversifying these methodologies, therefore, could be a step in the
right direction, both in terms of the representativeness of international criminal law and its utility
and effectiveness.
Larry May notes “a strong Western bias” in the ICC, and he provides starkly procedural
examples of this, namely the adversarial method and cross-examination.103 He then implies that
some sort of procedural uniformity may be inevitable, “since courts must follow some model,
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whether Western or non-Western.”104 Assuredly, institutions must abide by some procedure, and
May is wise to insist on this. But that procedure need not be totalizing. Some model does not
ineluctably lead to the same model. Just as the enforcement of positive human rights need not be
static and monochrome, as certain multiculturalist theorists such as Charles Taylor and Radhika
Coomaraswamy105 tell us, so, too, might the enforcement of humanity’s right to hold its enemies
accountable proceed through diverse methodologies and integrated sanctions. In the end,
international law can coherently strive to implement universal values through pluralistic
procedures and institutions. It is not internally contradictory to have plural process, including
plural punishment, to operationalize these values. In fact, pursuing accountability for
extraordinary international crimes in multiple legal orders, both vertically and horizontally,
recognizes the differences between these crimes and ordinary domestic crime and, thereby, goes
some way to developing the sui generis criminology, penology, and victimology they require.
b. Cosmopolitan Theory
The supple model of accountability that I envision is compatible with cosmopolitan visions
of law and authority in the international context. On the one hand, this model involves those
aspects of cosmopolitanism that reflect the universal: in this case, the notion that victims of mass
discrimination-based violence are entitled to hold their abusers accountable. This notion flows
from the Kantian construction of entitlement based on an individual’s status as a “citizen of the
earth” rather than as a citizen of a particular state.106 On the other hand, this model welcomes
cosmopolitanism’s acceptance of the richness of local identifications, as well articulated by
Martha Nussbaum,107 David Hollinger,108 Kok-Chor Tan,109 and Paul Schiff Berman.110 The
construction of cosmopolitanism edified by these scholars welcomes multiple affiliations and
overlapping associations. It views attachments as fluid, multilayered, and malleable and, thereby,
becomes compatible with pluralism. Berman, largely writing within the context of choice of law
and jurisdiction, moderates cosmopolitan theory with an interpenetrative and multivalent
flexibility that is fully apposite to the context of extraordinary international crimes. He notes: “A
cosmopolitan conception of law […] aims to capture a middle ground between strict territorialism
on the one hand and expansive universalism on the other. […] [it] celebrates diverse normative
orders in multiple communities and need not insist on homogenizing that diversity into one global
culture or one international legal framework.”111 Tan, while recognizing certain universal moral
concerns, takes seriously local and even patriotic attachments. In his model, the cosmopolitan
ethos does not replace these local particularistic attachments, although its operation as a norm
serves to limit their seepage and spillage.
In the end, my theory of pluralist procedure for universal crimes fits within a cosmopolitan
theory of law, tending towards the pluralist end of the continuum, perhaps finding an analog in
what Anthony Giddens has called cosmopolitan pluralism.112 Cosmopolitanism gives
international law the legitimacy to proscribe atrocity and also welcomes the diffuse, pluralized
operationalization of that proscription through a variety of institutions, modalities, and
procedures.
I identify cosmopolitanism at two intertwined levels.
First, cosmopolitanism in terms of pluralistic processes and sanctions that invert vertical
allocations of authority that currently radiate downward from the international. This leads to a
cosmopolitan case for qualified deference in the allocation of institutional authority over
extraordinary international criminals. Although inspired by European Union experiments with
subsidiarity as an ordering principle, qualified deference is not as generous to the local as
subsidiarity would be. [Subsidiarity is “a central principle of European constitutionalism”
and interpretation.; “at its core the principle of subsidiarity requires any infringements of
the autonomy of the local level by means of pre-emptive norms enacted on the higher level
to be justified by good reasons.” Mattias Kumm, The Legitimacy of International Law: A
Constitutionalist Framework of Analysis, 15 Eur. J. Int’l L. 907, 921 (2004). The problem w.
subsidiarity as an ordering principle is that it is designed for the harmonization of local law
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with the supranational in stable periods and often on issues that do not involve the kinds of
collective action problems that are intrinsic to extraordinary international criminality.
National and local entities ought to be entitled to deference in times of post-conflict justice,
but subsidiarity is too generous and unsuitable a standard, while complementarity is too
controlling a standard] The cosmopolitan case for qualified deference does not involve a blind
retreat to national or local institutions.113 That would be problematic, insofar as many national
and local institutions in postconflict societies are devastated, illegitimate, corrupt, or complicit in
the violence. That said, qualified deference as an ordering principle meets important utilitarian
purposes in promoting legitimacy, in warding off what I have elsewhere called globalitarianism,
in correcting the troubling incentives created by complementarity, and in minimizing unrealistic
expectations of local legitimacy upon which subsidiarity is predicated.114 There is considerable
value to the most traditional bases of jurisdiction – namely territoriality and nationality – that
should not be overlooked. Although institutions of international criminal punishment profess their
convictions and punishment to be of enhanced moral legitimacy because of the international
nature of the punishing institution, the experiences of post-conflict societies reveal a more
complex picture. This is unsurprising, insofar as interpretations of justice are often multi-layered
and, for many people, take root in national and local institutional and processual contexts.
Second, cosmopolitanism fosters a horizontal outreach to other categories of law and
regulation. This encourages a bridging of various components of law known to all legal cultures
so as to integrate these into an overall accountability paradigm. The locus of this paradigm is the
notion of obligation: the obligation of the individual to the group and of the group to humanity as
a whole. Obligation certainly can be given expression through the criminal law, but also
collaterally through other categories that extant frameworks partly or wholly overlook: namely
tort, contract, and restitution. By overlooking these other sites of regulation, these frameworks
elide the systemic responsibility that protects state power and interests and curtails deeper
examinations of state responsibility. Tort permits declaratory or monetary relief for violations of
state responsibility115 and potentially for group liability outside the confines of the state. Tort also
may permit strict liability, which, in theory, could enable the monitoring of groups that know they
are about to do something dangerous. Unfortunately, even though state responsibility forms a
settled part of public international law, it has become disconnected from atrocity in terms of what
Michael Reisman calls “law-in-practice.” At this level, responsibility essentially remains
individualized, despite the attraction of state responsibility for some victims. 116 Contract law, for
its part, could subject individuals holding influence – in politics, media, and clergy who have the
power to become conflict entrepreneurs – to have their office conditioned on a refusal to
disseminate hatred and oblige contrary action when others preach hate. Contract law also could
mandate action on the part of international organizations, peacekeepers, and private transnational
actors.117 Restorative justice conceptions of accountability, largely shunned by international
criminal law, could serve important purposes of reintegrative shaming that resonate with the
transitional needs of many post-conflict societies. The law of restitution could integrate private
reparations well-suited for situations where much of the violence is committed locally by
perpetrators known to victims and neighbors upon neighbors. That said, a pluralized law of
restitution could permit group recovery and avoid the liberal preference on the allocation of
resources strictly to named individuals.
There is a need to tread very gingerly here, insofar as many private law remedies and process
are subject to the similar cultural and ideological contingency for which I fault the criminal law.
Preferences for liberal individualist approaches have animated preexisting civil remedial attempts
within the framework of international human rights law. The case of Aloeboetoe et al.
(reparations), decided by the Inter-American Court of Human Rights in 1993, illustrates the
conflict between legal liberalism and private law. Although the Court decided to award money to
victims of a massacre in a village, it was unable to identify individual recipients. The court
assumed that the award must be made individually, a position that is unintelligible to the villagers
since from their perspective goods are to be earned and distributed collectively. 118 Collectivizing
restitution would represent an important expansion of what would be identified in the West as
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private law remedies to a more broadly accepted tradition of public restoration.
Tort, contract, restoration, and restitution may implicate the masses more effectively by
permitting more carefully calibrated measurements of degrees of responsibility beyond the
Scarlet Letter of guilt. They may provide a more textured understanding of the key roles played
by many otherwise neglected actors. Furthermore, these alternate sites of regulation may
promote different penological goals, such as restoration, reconciliation, and reparation, whose
attainment may be more capable of actualization.
One thing private remedies must remain mindful of is the trap of the public/private divide
that has, for example, emerged in domestic relations law. The privatization of harm, for example
the abuse of spouses and children within the home, may result in that harm remaining hidden. In
the context of atrocity, these drawbacks could be attenuated were these private law approaches to
coexist within an accountability paradigm in which very public action, as envisioned by the
criminal law, still retained an important role. This would permit the redress afforded by the law to
reach more deeply while still stigmatizing publicly.
When articulated horizontally, cosmopolitanism permits responses to mass atrocity to attach
to law as a whole and not parochially or narrowly by allegiance just to one small subset of law,
namely international criminal law, that to date has cultivated and defended somewhat of a
monopoly on the accountability process. Just as the prosecution and punishment of extraordinary
international crimes can be enhanced by the richness and connectivity of local process, so, too,
can it be enhanced by the richness and connectivity of the ways in which alternate legal
disciplines promote accountability. The idea that there can be multiple layers of accountability,
and multiple remedies, for grievous harms seems reasonable as well as desirable.
International criminal law, and the institutions that enforce it through a liberal legalist
paradigm, may reconsider jealously guarding a monopoly over the prosecution and punishment of
great evil. The kind of pluralized cosmopolitanism I envision would permit international criminal
law to stake a claim, but cast this claim as procedurally subsidiary to the local and conceptually
porous to alternate paradigms, such as those proffered by tort, contract, and restitution. In both
cases, the result is that the universal norm of accountability for extraordinary international crime
enters into dialogic, relational intercourse with both local procedure and the richness of the legal
landscape beyond the narrowness of the essentialized ordinary domestic criminal law of dominant
states. It then becomes the role of those individuals enforcing the universal goal of accountability
to fine-tune and offer fine-grained assessments of the interplay and overlap that emerges from this
dialogue. In this regard, these individuals, preferably involving members of afflicted
communities, could rely heavily on interpretive tools such as good faith, the democratic
legitimacy of the procedural rules in question, the specific characteristics of the violence, the
avoidance of gratuitous or iterated punishment through multiple categories of law, and the
preclusion of the infliction of great evils on others. It is through this relational interplay between
universal accountability and pluralistic enforcement that a safe space is created for the emergence
of an independent criminology and penology for mass atrocity – a space that does not exist at
present.
Relational contract theory, as unpackaged in the writing of Ian Macneil,119 therefore becomes
a valuable model to encourage independent legal norm creation in areas where multiple levels of
law regulate behavior whose importance transcends the national. I have earlier argued this to be
the case in international environmental regulation and I now posit this to be the case for this new,
broader band of law that I would call atrocity law.120 Applying the interpretive tools mentioned
previously through a relational contract framework, Chapter 8 concludes that, whereas certain
local accountability measures such as the gacaca in Rwanda would pass muster, other
accountability measures such as the Pashtunwali in Afghanistan or those contemplated at the time
of writing by the Sudanese government for the Darfur violence would not. So long as one of the
sanctions contemplated by the Pashtunwali – namely, the transfer of young girls from the family
of the human rights abuser to the family of the abused in order to restore the harm – remained
operative, the Pashtunwali would not meet the test I propose. This is because the sanction would
impose a new great evil, namely sexual terror, on innocent third parties. In the case of the Sudan,
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in situ initiatives would be inadequate insofar as the processes are not undertaken in good faith to
stigmatize the universally repudiated conduct.
In the end, an independent theoretical understanding of the organic and myriad sources of
mass atrocity shall not come from a process of reduction animated by a strong preference for
ordinary criminal law. Rather, it may more readily emerge from a process of accretion, pivoting
on the full richness of accountability measures, and recognizing that mass atrocity arises when,
collectively, groups fail to respect fundamental obligations owed to humanity and individuals
within those groups either actively or passively facilitate that failure. Atrocity law need not be
synonymous with international criminal law. It can go beyond. Any value that selective
adversarial prosecutions of those leaders deemed most responsible for atrocity, which is the
mandate of the ICC, actually convey will only appreciate if these prosecutions are placed within
a much broader and diverse array of initiatives, legal as well as political, that promote
accountability.
Within this process of accretion, the possibility arises that atrocity law may engage with
collective responsibility, the bête noire of international criminal law. It should do so with great
care – and with rejection in cases of collective guilt – but, as I have written elsewhere,121 not with
utter disdain. Collective responsibility, and the variegated notion of collective sanction, does
recognize the collective nature of the violence at hand. There is some value in debating collective
responsibility, and its tumultuous interaction with liberal legalism, both for reasons rooted in
communitarian moral theory, as developed by George Fletcher,122 and also, more persuasively
perhaps, for utilitarian reasons. On this latter note: many enemies of humankind begin as conflict
entrepreneurs, inflaming and exacerbating collective tensions for their own personal gain. As with
many examples of troubling human behavior, structural factors can encourage or control certain
kinds of behavior. According to social norms theorists,123 group sanctions have some potential
insofar as group members are in an advantageous position to identify, monitor, and quash the
behavior of conflict entrepreneurs before it metastasizes. The criminal law paradigm, since it does
not reach acquiescent group members, provides them no incentive to cabin or control the
behavior of conflict entrepreneurs, meaning that members serve as facilitators and beneficiaries,
not gatekeepers. Collective sanction might do more to encourage members to control conflict
entrepreneurs early on, since they would be called to task afterwards. If so, this would help move
extant frameworks from being essentially reactive to tragedy to a somewhat more proactive
position. In this regard, a system of modest, targeted, and fine-grained collective sanction may
promote rather than undermine international peace and security, contrary to what critics of
collective sanction may justly fear.
On the other hand, the existence of a collective sanctions framework may induce group
members not to prevent the wrongdoing, but rather to permit it and then simply devote their
energies to covering it up. What is more: international lawyers when discussing collective
sanctions must remember the results of the Treaty of Versailles and the feudalism of the classical
Grotian concept of international law in which persons were chattels of the state. Furthermore,
collective responsibility, if operationalized in the form of state responsibility, presents the risk of
including innocent victims and even the oppressed group (if the violence occurs between two
groups within the same state) among the tortfeasors. Conventional sensibilities may suggest that it
is more problematic to over-capture the innocent than to undercapture the guilty or responsible
through the criminal law paradigm. In response to this conventional wisdom, Chapter 8 examines
state responsibility and also more fine-grained responsibility outside the confines of the state:
namely, group responsibility based on ethnicity, race, or religion.
States have duties to their citizens. Citizens, however, also may have certain duties to the
state. One of these may be the duty to prevent the state from actualizing extraordinary
international crimes. To be sure, the assumption central to the moral and practical legitimacy of
any group-based form of sanction is that ordinary group members actually could do something to
control the hatemongers within the state. This assumption may not always be evident. Thomas
Franck’s thoughtful circumscription of state responsibility to a “but for” standard therefore seems
apposite.124 As Franck observes: “Where the people whose leaders are committing international
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crimes have the option to vote them out, or to stage mass protests against those acts, and fail to do
so it is not only morally appropriate but good social policy that they be made to assume a degree
of responsibility for the things done in their name.”125 When the general population resists
atrocity (whether that resistance be voiced in democratic or non-democratic polities), it may
simply be inequitable to hold that population accountable. Another rather different limiting factor
is that sanction be proportionate to the involvement of the individual in the collective
wrongdoing. Sanctions such as community service, then, would track degree of involvement. In
situations where it is impossible to disentangle the involvement of individuals from the conduct
of the group, sanction could be limited to realizable monetary claims,126 restitution, and
declaratory relief; but exclude community service, which then may take on the appearance of
collective indentured servitude. To the extent to which such collective approaches are found in
certain aspects of domestic law they may seem more familiar. And there may be slightly more
that is familiar within these domestic legal orders insofar as the individualist procedural precept
that has been adumbrated by international criminal law also, as discussed earlier, is somewhat
reductionist and unrepresentative of non-Western legal systems.
Invoking the accountability measures of tort law and contract law can capture organizational
liability in a way that transcends the scope of criminal law. It may truly satisfy retributive
concerns and may constitute a more effective deterrent than selective individualized
incarceration. To be sure, the closer that collective sanction tracks individual responsibility, the
less controversial it would be. But in archetypical cases of mass violence where groups are
composed of the aggregation of many individual acts of violence – whether active, passive, or
acquiescent – collective sanctions properly could become a subject-matter of discussion despite
the disquiet that might result.
(vii) Certain Implications
This process of deconstruction and reconstitution suggests that the role of the legal
community in accounting for atrocity might well change. The present focus on a handful of
retrospective criminal trials motored top-down by internationalist modalities could splinter as
glimmers of alternate institutions within that focus may become encouraged. Ultimately, the
cosmopolitan pluralist vision might tend more toward an obligation-based preventative ex ante
model, operationalized from the bottom-up through diverse modalities that contemplate as
sanctions any or all of the following: imprisonment, reparations, community service, lustration,
declaratory relief, restitution, transparency, monetary damages, affirmative duties to promote
human rights, and institutional and constitutional reforms that would diminish the likelihood of
discrimination-fuelled hatemongers from assuming power again; while recognizing throughout
the responsibility of the international community for funding and expertise. One obvious
implication is that societies with a communitarian as opposed to individualist ethos may be freed
to pursue alternate remedies, perhaps even restorative approaches,127 instead of idealized criminal
law.
To be sure, this proposal can be faulted for overreaching, mostly in the sense that it may
demand much more financial and resource support than it is capable of attracting. Idealistic:
perhaps? But, clearly, it is better to be idealistic than satiated in the belief that the simple,
assuaging solution (which also is an expensive solution) singularly is the proper and effective
one. More realistic in the short-term is the expansion of atrocity law through modifications to
preexisting hard-won institutions and doctrine. Some of these modifications, which are elaborated
upon further in Chapter 9 (the final chapter) are:
a. Jurisprudential Considerations
(1) Retool the division of labor between national and international institutions by
recognizing, either expressly through textual amendment or implicitly through
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interpretative canon, qualified procedural deference of international institutions, margin
of appreciation, and deeper relational good faith inquiries in the following processes that
pertain to universal extraordinary international crimes:
-
Referrals from ad hoc tribunals to national courts;
Article 17 admissibility determinations by the ICC;
Referrals from the Security Council or States party to the ICC;
Decisions by the ICC prosecutor to investigate or prosecute proprio motu;
Decisions to create new hybrid institutions under the auspices of a permanent
ICC; and
Determinations of the “interests of justice” under article 53(1)(c) of the Rome
Statute;
(2) Integration of non-Western legal traditions into understandings of the adequacy of due
process; and insertion of comparative law methodologies more deeply into the
international jurisprudence.
(3) Recognition of the difficulties that sentencing experiences in attaining the extant
aspirations for punishment (retribution, deterrence, and expressivism).
(4) Clarify jurisprudential linkages between the International Court of Justice, on the one
hand, and criminal justice institutions at the national and international levels, on the other
hand, in cases of extraordinary international crimes, instead of the present obscurity.
(5) Eliminate charge bargaining, and permit plea bargaining only in cases of confessions
(as in the case of the domestic Rwandan courts) or in cases where the defendant admits
the full scale of his or her involvement even though pleading guilty only to one umbrella
charge.
b. Institutional Considerations
(1) Explore how international organizations can become contractually bound to intercede
when conditions of conflict entrepreneurship arise; in this process, linking with U.N.
reform as occasioned by the New Threats Panel report and both humanitarian armed
intervention and humanitarian communications intervention.
(2) Explore how national legal frameworks can mandate official duties on influential
public and private positions to diminish the chances that persons occupying these
positions can convert them into platforms for conflict entrepreneurship.
(3) Collective sanction, in particular monetary sanction, on groups (at the level of the
state, sub-statal, or supra-statal) based on membership when ordinary members of those
groups could have prevented extraordinary international crimes but chose not to do so.
(4) Welcome the participation of citizens from afflicted conflict zones at the local,
national, and international levels in the accountability process so that a technocratic
transnational judiciary does not become exclusive and permanent; also, tying into the
general principle of qualified deference, develop a preference to site justice institutions
locally with concomitant investment in outreach.
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(5) Properly fund the ICC’s Trust Fund (to reflect the result of victimology research); and
create such a fund for those places whose atrocity currently is judicialized by
international or internationalized institutions; couch these as fines, not as insurance
schemes.
(6) Preclude early release/conditional release based on the ordinary criminal law of the
state that agrees to detain the convict if that state has absolutely no connection to the
violence.
c. Behavioral Considerations
(1) For donor communities and human rights activists: resist exerting pressures toward
national institutions to conform to the procedural modalities of international institutions;
decouple funding from mimicry, but not from fine-grained relational good faith
assessments.
(2) Resist the tendency to look for simplicity and order in response to fundamentally
complex disordering crimes.
(3) Setting of scholarly agendas: track convicts over time and analyze the ability of local
mechanisms such as gacaca to attain regulatory objectives.
The point of this exercise has not been to knock down something without a proposal to fix it.
The point, instead, has been to show that the incredible energies of international lawyers and
human rights activists, which have been enthusiastically channeled in a fairly narrow direction in
a manner that successfully has led to institution-building, might become diffuse and welcoming
of the potential of law generally. Only by assessing disconnects between theory and praxis can
any discussion of the revisiting of penological rationalities proceed intelligently and the ethos of
responsibility generated by areas of law other than the criminal, namely tort, contract, and
restitution, be appreciated.
Instead of the tight social control and scripted narrative envisioned by individualist criminal
justice, more free ranging approaches that uproot the many sources of violence – a much more
accurate, albeit inconvenient, topography – could be encouraged in situ when local authorities
pursue these in good faith. This implies that punishment frameworks transcend those of preexisting criminal law hegemonies, harness broader sociological concerns, attend to the local
needs of the places directly afflicted by mass atrocity, and strive to integrate competing
methodologies within what is at present a largely retributive framework.
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ENDNOTES
*
Ethan Allen Faculty Fellow and Associate Professor of Law, Washington & Lee University School
of Law. B.A. (McGill), M.A. (McGill/Paris), LL.B. (Toronto), LL.M., J.S.D. (Columbia).
1
Prosecutor v. Nkinamubanzi et al, April 17, 1998 (1ière instance, Kibuye), RMP
50919/S4/GM/KBY/97, RP CH.SP.014/01/97, p. 2.
2
Id. p. 1.
3
Id. p. 14.
4
Cour d’appel de Ruhengeri (October 25, 2000). No reasons are given in the case-report provided by
Avocats sans frontières (available at www.asf.be).
5
The church parish’s priest, Father Seromba, is at the time of writing on trial at the International
Criminal Tribunal for Rwanda.
6
Rory Carrol, Rwandan priest goes on trial for genocide, THE GUARDIAN (Sept. 21, 2004).
7
Such as Mika Muhimana, convicted in 2005 by the International Criminal Tribunal for Rwanda and
sentenced to life imprisonment, who among other brutalities enthusiastically disemboweled a pregnant
Tutsi woman to kill the fetus with his hands
8
Hannah Arendt, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL (1965). For other
accounts of the banality theme, see Christopher Browning, ORDINARY MEN (1992); Mark Osiel, MASS
ATROCITY, ORDINARY EVIL, AND HANNAH ARENDT (2001).
9
Indeed in the war on terrorism, there has been a resurrection of the categories of barbarians and
outlaws who, by virtue of their conduct, lose any benefit of international humanitarian law or even
international human rights law.
10
E.g. M. Cherif Bassiouni, INTRODUCTION TO INTERNATIONAL CRIMINAL LAW (2003); Antonio
Cassese, INTERNATIONAL CRIMINAL LAW (2003); Bruce Broomhall, INTERNATIONAL JUSTICE AND THE
INTERNATIONAL CRIMINAL COURT: BETWEEN SOVEREIGNTY AND RULE OF LAW (2004); Leila Nadya
Sadat, THE INTERNATIONAL CRIMINAL COURT AND THE TRANSFORMATION OF INTERNATIONAL LAW:
JUSTICE FOR THE NEW MILLENNIUM (2002); William Schabas, GENOCIDE IN INTERNATIONAL LAW (2000).
11
Eric A. Posner and John C. Yoo, Judicial Independence in International Tribunals, 93 CALIF. L.
REV. 1 (2005); Laurence R. Helfer and Anne-Marie Slaughter, Why States Create International Tribunals –
A Response to Professors Posner and Yoo, 93 CALIF. L. REV. 899 (2005).
12
Ruti Teitel, TRANSITIONAL JUSTICE (2000); Osiel, supra note 8.
13
See, e.g., Bassiouni, supra note 10 (devoting eighteen pages out of a total of 740); Cassese, supra
note 10 (devoting three pages out of a total of 458).
14
Viktor Frankl, MAN’S SEARCH FOR MEANING: EXPERIENCES IN THE CONCENTRATION CAMP (trans.
1959); Primo Levi, SURVIVAL IN AUSCHWITZ (reprint 1995).
15
Robert Cryer, PROSECUTING INTERNATIONAL CRIMES: SELECTIVITY AND THE INTERNATIONAL
CRIMINAL LAW REGIME 36, 38 (2005); Peter Maguire, LAW AND WAR: AN AMERICAN STORY 90 (2001);
Carlos Santiago Nino, RADICAL EVIL ON TRIAL 5-6 (1996).
16
Telford Taylor, NUREMBERG AND VIETNAM: AN AMERICAN TRAGEDY 13-14 (1970) (noting also
that “’Nuremberg’ is both what actually happened there and what people think happened, and the second is
more important than the first.”).
17
This view persists today. See, e.g. Kenneth J. Campbell, GENOCIDE AND THE GLOBAL VILLAGE 28
(2001) (citing U.N. Secretary General Annan as stating that “the crime of genocide against one people truly
is an assault on us all”).
18
Hannah Arendt, THE HUMAN CONDITION 241 (1958). See also CARLOS SANTIAGO NINO, RADICAL
EVIL ON TRIAL vii, ix (1996).
19
C. Fred Alford, Augustine, Arendt, and Melanie Klein: The (De)Privation of Evil, 10
PSYCHOANALYSIS, CULTURE & SOCIETY 44, 50-51 (2005) (describing developments in Arendt’s thinking
from the ORIGIN OF TOTALITARIANISM (1951) to EICHMANN IN JERUSALEM (1963)). For Arendt, only good
“has depth and can be radical,” evil was like a “fungus” on the “surface” that could spread and “lay waste
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the whole world.” Id.
20
Hannah Arendt, Letter to Karl Jaspers of 17 August 1946, in Hannah Arendt and Karl Jaspers,
HANNAH ARENDT, KARL JASPERS: CORRESPONDENCE, 1926-1969 54 (1992).
21
Judith Shklar, LEGALISM 152 (1964).
22
Laurel E. Fletcher, From Indifference to Engagement: Bystanders and International Criminal
Justice, 26 MICH. J. INT’L L. 1013, 1031 (2005). Fletcher also refers to this concept as “international
legalism.” Id. at 1015. She also refers to “liberal law adjudication.” Id. at 1062.
23
Id. at 1031.
24
I contend that the proscription of terrorist bombings and the financing thereof, widely criminalized
within transnational criminal law when undertaken as attacks against civilian populations, have moved
from this level into that of international criminal law, becoming in the least obligations erga omnes. That
said, the Rome Statute of the International Criminal Court, which precedes the jurisgeneration triggered by
the international community’s response to the September 11, 2001, terrorist attacks, does not create
jurisdiction to prosecute terrorism. Rome Statute of the International Criminal Court, U.N. Doc.
A/CONF.183/9 [hereinafter Rome Statute]. In the wake of the September 11 attacks, the Security Council
unequivocally condemned “all acts . . . of terrorism as criminal.” S.C. Res. 1377, U.N. SCOR, 56th Sess.,
4413th mtg. at 2, U.N. Doc. S/Res/1377 (2001). I have elsewhere characterized the September 11 attacks
as crimes against humanity. Mark Drumbl, Judging the 11 September Terrorist Attacks, 24 HUMAN RIGHTS
QUARTERLY 323 (2002). Looking ahead, given the rapid movement in conventional and customary
international law to criminalize terrorism, and the concomitant crystallization of terrorism as an
extraordinary international crime, recourse shall be had to national courts to prosecute and punish
terrorism. Terroristic acts that involve widespread, systematic, and indiscriminate attacks on civilian
populations (as well as the financing thereof) would fall within the ambit of crimes against humanity and,
hence, would be prosecutable by international institutions such as the International Criminal Court.
25
Larry May, CRIMES AGAINST HUMANITY 99, 106 (2005); Larry May, WAR CRIMES AND JUST
WARS 15 (2005 monograph on file with the author). For May, crimes against humanity always implicate
this international interest given their group-based or systematic nature; whereas war crimes do not always
implicate these interests. War crimes, for May, are crimes against humaneness rather than crimes against
humanity. That said, the limitation of the jurisdiction of the International Criminal Court to war crimes “in
particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”
may align the prosecutable war crimes with offenses that command the international interest May believes
is obtained by crimes against humanity. Rome Statute, art. 8(1).
26
Arendt, EICHMANN IN JERUSALEM, supra note 8, at 254, 269. See also Alain Pellet,
Internationalized Courts: Better Than Nothing …, in Cesare P. R. Romano, André Nollkaemper, and Jann
K. Kleffner, INTERNATIONALIZED CRIMINAL COURTS 437, 438 (2004) (“[I]t must be kept in mind that only
crimes which ‘deeply shock the conscience of humanity’ can justify an internationalization of their
prosecution, which involves a far-reaching blow to the competence of domestic courts on an issue which
otherwise would come under matters which are essentially within the domestic jurisdiction of States …
when such serious crimes are at stake … it is then important that they not be ‘confiscated’ by any particular
state, including the one in which the crime has been committed or of which the victims or the authors are
nationals.”).
27
Arendt, EICHMANN IN JERUSALEM, supra note 8, at 298. At the national level, the theory of
universal jurisdiction, which empowers national courts to assert jurisdiction over extraordinary
international criminality in the absence of more traditional bases of jurisdiction, also is predicated largely
on the fact this criminality offends the interests of all of humanity. See Kenneth C. Randall, Universal
Jurisdiction Under International Law, 66 TEX. L. REV. 785, 803 (1998); see also The State of Israel v.
Adolf Eichmann (S. Ct. Israel, May 29, 1962), 36 INT’L L. REP. 277, 291 (1968) (universal international
crimes arise from the fact that they “constitute acts which damage vital international interests,” “impair the
foundations and security of the international community,” and violate “universal moral values and
humanitarian principles”).
28
Rome Statute, supra note 18, art. 7,
29
Id. art. 6.
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30
War crimes cover two sorts of activities: crimes committed in international armed conflict and
violations of the laws and customs of war, a residual category applicable to internal armed conflicts. Id.
art. 8.
31
Discriminatory intent is not required for all crimes against humanity, just for some. R. v. Mugesera,
Supreme Court of Canada (2005), para. 144 (overruling the Canadian Supreme Court’s prior holding to this
effect in the Finta case owing to the effect on international law, as integrated into the domestic context, by
ICTY and ICTR judgments). One example of a crime against humanity for which there is a central
discriminatory element is persecution. See Mugesera v. Canada (Minister of Citizenship and Immigration),
para. 145. The intent is to deny a fundamental right on discriminatory grounds. Hate speech can rise to this
level (see, e.g. Prosecutor v. Nahimana, Case No. ICTR-99-52-T, para. 1107 (I.C.T.R. Trial Chamber Dec.
3, 2003)) or it can not (see, e.g. Prosecutor v. Kordic and Cerkez, IT-95-14/2-A (ICTY Appeals Chamber,
Dec. 17, 2004)). That said, when taken as a whole, what distinguish crimes against humanity from ordinary
crime is that the acts in question become crimes against humanity if they are committed as part of a
widespread or systematic attack directed against any civilian population or any identifiable group.
Mugesera v. Canada (Minister of Citizenship and Immigration), para. 151. Systematic attacks will include
some sort of common policy or plan that operates on a patterned basis; they are not random. Mugesera v.
Canada (Minister of Citizenship and Immigration), para 155. Widespread looks at the large scale nature of
the act, in the language of the ICTR, the fact it be “carried out collectively with considerable seriousness
and directed against a multiplicity of victims.” See Prosecutor v. Akayesu, Case No. ICTR-96-4-S, para.
580 (I.C.T.R. Trial Chamber Oct. 2, 1998); Prosecutor v. Kayishema, Case No. ICTR-95-1-T, para. 123
(I.C.T.R. Trial Chamber May 21, 1999).
32
See generally May, supra note 17, ch. 7 (arguing philosophically in favor of requiring
discriminatory intent in cases of crimes against humanity).
33
The notion that alleged war criminals should be tried and punished if found guilty certainly existed
prior to Nuremberg. See generally Anthony Ellis, What Should We Do With War Criminals?, in WAR
CRIMES AND COLLECTIVE WRONGDOING 97, 97 (ed. Aleksandar Jokić, 2001). However, the
implementation of this notion was rare and there was barely any legal practice. Nuremberg linked the
notion with practice and legitimated its implementation by an internationalized legal institution.
34
See George P. Fletcher, Collective Guilt and Collective Punishment, 5 THEORETICAL INQUIRIES
LAW 163, 163 (2004).
35
David Luban, A Theory of Crimes Against Humanity, 29 YALE J. INT’L L. 85, 90 (2004).
36
The ICC, which entered into force on July 1, 2002, was created by the Rome Statute of the
International Criminal Court. See Rome Statute, supra note 18. It is a permanent institution mandated to
investigate and prosecute the most serious crimes of international concern, namely genocide, crimes against
humanity, and war crimes. Id. arts. 1, 4–8. At the time of writing, over ninety-four nations have become
parties to the Rome Statute.
See U.N. Treaty Collection, Ratification Status, at
http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp (last visited
June 28, 2004). One hundred thirty-nine nations have signed the Rome Statute. Id. The ICC is
investigating crimes in a number of places, including Sudan, the Democratic Republic of the Congo (DRC),
and Uganda. It has arrested its first individual, militia leader Thomas Lubanga of the DRC.
37
The ICTR was established as an ad hoc institution by the Security Council. See Statute of the
ICTR, U.N. SCOR, 49th Sess., 3453d mtg. at 15, U.N. Doc. S/Res/955 (1994) [hereinafter Statute of the
ICTR]. It investigates and prosecutes persons responsible for genocide and other serious violations of
international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for
genocide and other such violations committed in the territory of neighboring states, between January 1,
1994 and December 31, 1994. Id. para. 1. In 1994, an extremist government headed by members of the
Hutu ethnic group fostered a populist genocide that resulted in the murder of 500,000 to 800,000 members
of the Tutsi ethnic group.
38
The ICTY was established as an ad hoc institution by the Security Council to investigate and
prosecute persons responsible for serious violations of international humanitarian law committed in the
territory of the former Yugoslavia since 1991. See Statute of the ICTY, S.C. Res. 827, U.N. SCOR, 48th
Sess., 3217th mtg. at 29, U.N. Doc. S/Res/827 (1993) [hereinafter Statute of the ICTY]. These conflicts
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involved internecine fighting among Serbs, Croats, Bosnian Muslims, and Kosovo Albanians. In total,
approximately 250,000 individuals have been murdered in this fighting.
39
The Sierra Leone Special Court, which has begun operations, was established jointly by the
government of Sierra Leone and the United Nations to prosecute those who bear the greatest responsibility
for serious violations of international humanitarian law and Sierra Leonean law committed in the territory
of Sierra Leone since November 30, 1996. See Statute of the Special Court for Sierra Leone art. 1,
available at http://www.sc-sl.org/scsl-statute.html; S.C. Res. 1315 U.N. SCOR, 55th Sess., 4186th mtg. at
1, U.N. Doc. S/Res/1315 (2000) [hereinafter Sierra Leone Statute]. The violence in Sierra Leone arose
from internecine conflicts between government and rebel forces during the 1990s. Nine defendants are
being tried in three trials, with much of the prosecution cases having been made. The transfer of former
Liberian President Charles Taylor to the Sierra Leone Special Court to face trial will take up much of the
Court’s energies, as Taylor is the most prominent indictee.
40
To be sure, the various hybrid institutions contemplated here are internationalized to different
degrees insofar as the division of labor between the international and the national varies from institution to
institution.
41
See United Nations Interim Administration Mission in Kosovo, Reg. 2000/64 (Dec. 15, 2000).
These special panels (also called “Regulation 64 panels”) adjudicate violations of domestic criminal law
that include those occurring in 1998 and 1999 in the course of the armed conflict then ongoing in Kosovo
between Kosovo separatists and the forces of the Federal Republic of Yugoslavia. Organization for
Security and Cooperation in Europe Mission in Kosovo, in KOSOVO’S WAR CRIMES TRIALS: A REVIEW 9
(Sept. 2002) [hereinafter KOSOVO’S WAR CRIMES TRIALS]. Regulation 64 panels do not have exclusive
jurisdiction over such crimes. Many of the crimes within the jurisdiction of the panels are international
crimes that have been enacted in domestic law. Bert Swart, Internationalized Courts and Substantive
Criminal Law, in Cesare P. R. Romano, André Nollkaemper, and Jann K. Kleffner, INTERNATIONALIZED
CRIMINAL COURTS 291, 295 (2004). These include genocide, crimes against humanity, and war crimes.
International judges or prosecutors can be assigned to these panels upon request by prosecutors, the
accused, or defense counsel in order to ensure judicial impartiality or the proper administration of justice.
One of the motivations for the creation of these hybrid courts in Kosovo is the “problem of ethnic bias,
both actual and perceived […].” International Judicial Support, UNMIK – Police & Justice, available at
www.unmikonline.org/justice/ijsd.htm (visited on July 28, 2005). International judges also work with the
regular Kosovo court system. In total, as of February 2004, international judges were involved in 77 cases
(trials and appeals), some of which involve extraordinary international crimes. Id. In total, there are 13
international judges and 11 international prosecutors. Id.
42
East Timor was admitted on September 27, 2002, as the 191 st member of the United Nations as
Timor-Leste. However, the former name is used in this book. In 1999, following a plebiscite in which a
majority of East Timorese favored the region’s independence from Indonesia, militia forces supported by
the Indonesian army massacred over one thousand East Timorese civilians and engaged in a widespread
campaign of deportation, property destruction, and sexual violence. The Indonesian administration of East
Timor collapsed following the violence. The United Nations Transitional Administration in East Timor
(“UNTAET”) facilitated East Timor’s transition to independence. Suzanne Katzenstein, Hybrid Tribunals:
Searching for Justice in East Timor, 16 HARV. HUM. RTS. J. 245, 249 (2003). Courts were organized in
East Timor with the assistance of UNTAET. On the Organization of Courts in East Timor, U.N.
Transnational Administration in East Timor, U.N. Doc. UNTAET/REG/2000/11 (Mar. 6, 2000), available
at http://www.un.org/peace/etimor/untaetR/Reg11.pdf, amended by U.N. Doc. UNTAET Regulation
2001/25 (Sept. 14, 2001), available at http://www.un.org/peace/etimor/untaetR/ 2001-25.pdf. These
include District Courts and a Court of Appeals. Id. art. 4. One District Court, located in Dili, had two
Special Panels for Serious Crimes with exclusive jurisdiction over “serious criminal offenses,” namely
genocide, war crimes, crimes against humanity, murder, sexual offenses, and torture committed between
January 1 and October 25, 1999. Id. art. 10; On the Establishment of Panels with Exclusive Jurisdiction
over Serious Criminal Offences, U.N. Transnational Administration in East Timor § 1.3, U.N. Doc.
UNTAET/REG/2000/15 (June 6, 2000), at http://www.un.org/peace/etimor/ untaetR/Reg0015E.pdf
[hereinafter UNTAET Regulation 15]. The applicable law was both international criminal law, including
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customary international law, and national criminal law. UNTAET Regulation 15, §§ 4–9. The substantive
international crimes were nearly fully taken from the Rome Statute. Sylvia de Bertodano, East Timor:
Trials and Tribulations, in Cesare P. R. Romano, André Nollkaemper, and Jann K. Kleffner,
INTERNATIONALIZED CRIMINAL COURTS 79, 90 (2004). Judges were of mixed national and international
provenance. UNTAET Regulation 15, § 22. The mandate of the Special Panels ended on May 20, 2005
(the mandate had been set by United Nations Security Council Resolution 1543 (2004)). At that point, 55
trials had been completed; 84 individuals had been convicted and 3 acquitted. Certain matters remain under
appeal. Before ceasing operations, the Special Panels only were able to try about one-quarter of all
individuals indicted for serious crimes pertaining to the East Timorese violence. Those who bear primary
responsibility for the violence have yet to be held to account. See generally Press Release, available at
http://www.jsmp.minihub.org/Press%20Release/2005/May/050524%20End%20SPSC.pdf. The closing of
the Special Panels also terminated a number of investigations into human rights violations. Id. Indonesia
has established its own court on human rights abuses; of the six convictions secured out of the 18
indictments, five have been overturned on appeal (the one outstanding judgment also remains subject to
appeal). Id. In March 2005 the governments of Indonesia and Timor-Leste agreed upon the establishment
of a bilateral Truth and Friendship Commission. Id. In January 2006, a different entity, the East Timor
Commission for Reception, Truth, and Reconciliation, issued its report. It concluded that Indonesian
security forces and the militias they supported had killed at least 100,000 East Timorese since 1975. Colum
Lynch and Ellen Makashima, E. Timor Atrocities Detailed, WASHINGTON POST (Jan. 21, 2006) A12.
43
Khmer Rouge Trials, Annex Draft Agreement Between the United Nations and the Royal
Government of Cambodia, G.A. Res. 57/223, U.N. Doc. A/RES/57/223 (May 22, 2003) [hereinafter U.N.Cambodia Draft Agreement]; Law on the Establishment of Extraordinary Chambers in the Courts of
Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea,
available at http://www.derechos.org/human-rights/seasia/doc/krlaw.html [hereinafter U.N.-Cambodia
Law]. From 1975 to 1979, the Khmer Rouge executed, tortured, and starved to death approximately 1.7
million Cambodians. The U.N.-Cambodia Draft Agreement creates extraordinary chambers in the courts
of Cambodia responsible for the prosecution of Khmer Rouge leaders and others most responsible for
serious violations of Cambodian penal law, international humanitarian law and custom (including
genocide), and international conventions recognized by Cambodia committed during the period April 17,
1975 to January 6, 1979. U.N.-Cambodia Draft Agreement, supra, art. 1; see also U.N.-Cambodia Law,
supra, art. 1. A number of countries have pledged sufficient funds to sustain these chambers. It appears as
if prosecutions will begin in 2007.
44
See generally Bassiouni, supra note 10, at 11, 588 (arguing that the goals of international criminal
law are an extension of the goals of national criminal law and that international criminal law lacks its own
juridical method); Cassese, supra note 10, at 18 (stating that “international criminal law results from the
gradual transposition on to the international level of rules and legal constructs proper to national criminal
law or national trial proceedings”); Tom J. Farer, Restraining the Barbarians: Can International Criminal
Law Help?, 22 HUM. RTS. Q. 90, 91 (2001) (casting the purpose of penal sanctions in cases of international
crimes as “largely coextensive” with the purpose of penal sanctions in national legal orders); Gary J. Bass,
STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS 16-28 (2000) (observing that
international criminal law emerges from legal liberalism that analogizes to the domestic); Leila Sadat
Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier
to Barbie and Back Again, 32 COLUM. J. TRANS. L. 289, 364 (1994) (noting that the normative aspect of
international criminal law is “international in character,” but that “punishment and procedure is necessarily
municipal in character”).
45
See Michael P. Scharf, Trading Justice for Efficiency: Plea-Bargaining and International
Tribunals, 2 J. INT’L CRIM. J. 1070, 1081 (2004); see also Håkan Friman, Procedural Law of
Internationalized Criminal Courts, in Cesare P. R. Romano, André Nollkaemper, and Jann K. Kleffner,
INTERNATIONALIZED CRIMINAL COURTS 317, 325, 356 (2004) (“the international courts provide examples
of sui generis procedural regimes with elements of the different legal traditions … with components from
both the common law and civil law tradition”).
46
See Martti Koskenniemi, Hersch Lauterpacht and the Development of International Criminal Law,
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2 JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 810, 824 (2004) (noting that “individualism” is a “recent
aspect of Western thinking that may undermine forms of experience or ways of life that cannot be
articulated in the individualist terms familiar to the (developed) West.”).
47
See also generally Ralph Henham, Some Issues for Sentencing in the International Criminal Court,
52 INT’L & COMP. L.Q. 81 (2003).
48
Sadat, supra note 10, at 1. The term “constitutional moment” was developed by Bruce Ackerman to
demote a small number of episodes – three in the history of the United States to be precise – where the
framework in which ordinary constitutional politics unfolded changed abruptly, such that the moment
broke from the past and was thereby discontinuous, but also was transformative, in that it provided a new
framework. See Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L. J. 453 (1999).
Professor Sadat applies this insight to the context of public international law.
49
Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, 75 N.Y.U.
L. REV. 1221, 1290–92 (2000).
50
International law defines a jus cogens norm as a customary rule applicable to all states from which
no derogation is possible.
51
As Mark Osiel notes, “[…] American criminal law does not always condition criminal liability on a
clear showing of personal culpability, as demonstrated by the rules on felony murder, Pinkerton
conspiracies, and liability under the Racketeer Influenced and Corrupt Organizations Act (RICO).” Mark
Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105 COLUM. L. REV. 1751, 1754 n
9 (2005). But Osiel then notes the “near exclusive reliance of domestic criminal law on individualistic
premises.” Id. at 1841. Osiel goes on to note that “[t]hese doctrines remain controversial, however,
precisely because of their arguable departure from that principle.” Id; see also id. at 1786 n 155 (noting that
Pinkerton liability is rejected by the U.S. Model Penal Code).
52
Mark A. Drumbl, Pluralizing International Criminal Justice, 103 MICH. L. REV. 1295 (2005)
(review essay); see also Meir Dan-Cohen, Responsibility and the Boundaries of the Self, 105 HARV. L.
REV. 959 (1990) (noting that the criminal law’s ethic of individualism seems to trump the implementation
of collective responsibility).
53
Molly Moore, Trial of Milosevic Holds Lessons for Iraqi Prosecutors, WASHINGTON POST (October
18, 2005).
54
1 TRIAL OF MAJOR WAR CRIMINALS: NUREMBERG 51(______).
55
Id.
56
For discussion of joint criminal enterprise generally, see Allison Marston Danner and Jenny
Martinez, Guilty Associations, Joint Criminal Enterprise, Command Responsibility, and the Development
of International Criminal Law, 93 CALIF. L. REV. 75 (2005). See also Rome Statute, supra note 18, art. 25
(common purpose liability). Similarly, the criminalization of organizations that occurred at the Nuremberg
Trials and was adhered to in the subsequent proceedings engendered significant controversy, thereby
further revealing the tensions inherent in international criminal law’s impetus to criminalize collective
wrongdoing through the vehicle of individual guilt. The International Military Tribunal (IMT) remained
insistent that “[…] criminal guilt is personal, and that mass punishment should be avoided.” Trial of Ulrich
Greifelt and Others (United States Military Tribunal, Nuremberg, 1947-1948), reprinted at 8 LAW REPORTS
OF TRIALS OF WAR CRIMINALS 1, 50 (1949) (notes on the case, citing judgment of IMT). At Nuremberg,
concerns over collective guilt were in part channeled to sentence, with the emergence of an IMT
recommendation that the sentence for membership in a criminal organization not exceed that of the DeNazification Law (which set a maximum of 10 years), in marked contradiction to the discretion given
judges. Id. at 52. That said, no such amendment to Control Council Law No. 10 was actually made since it
was believed that judges would exercise their sentencing discretion in light of the IMT recommendation. Id.
at 53. Concerns over collective guilt also were in part channeled to the elucidation of standards that limited
criminalization only to certain members of the declared criminal organization so that the “guilt of all or any
[…] members remains on the traditional ground of ‘personal’ guilt.” Id. at 50. Thus, the criminalization of
organizational membership at Nuremberg never was operationalized in a way that strayed far from
individualized guilt, thereby assuaging concerns over the derogation this would post to liberal legalism.
What is more, in some of the subsequent proceedings, the United States Military Tribunal placed the
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burden of proof concerning tests of personal guilt on the prosecution, instead of on the defense as was
presupposed, once again citing liberal legalist concerns. Id. at 58, 62.
57
Stathis N. Kalyvas, The Ontology of “Political Violence”: Action and Identity in Civil Wars, 1:3
PERSPECTIVES ON POLITICS 475 (2003).
58
Id. at 482 (noting that “[i]ndividualized selection may take place even under the extreme
circumstances of ethnic cleansing and genocide.”). Kalyvas offers isolated anecdotal evidence from Bosnia,
Rwanda, and Kosovo in support of this conclusion. Id.; see also id. note 93. I do not find this evidence, nor
the use Kalyvas makes of it, particularly compelling.
59
Just like in many influential ordinary justice systems, rehabilitation is given little effectivity. See
e.g. Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-A (ICTY Appeals Chamber, July 20, 2005);
Prosecutor v. Kordić and Cerkez, IT-95-14/2-A (ICTY Appeals Chamber, Dec. 17, 2004) para. 1079. On
reconciliation, see Prosecutor v. Babić, (ICTY Appeals Chamber, July 18, 2005), Case No. IT-03-72-A
(Appeals Chamber refusing to reduce a sentence even though finding that the Trial Chamber erred in
failing to consider the activities of the accused toward encouraging peace and reconciliation in the region).
60
See, e.g., James Gilligan, VIOLENCE 94–96 (1996) (arguing that rational self-interest models that
underlie deterrence theory are based on ignorance of what violent people really are like); H.L.A. Hart,
Prolegomenon to the Principles of Punishment, in H.L.A. Hart, PUNISHMENT AND RESPONSIBILITY:
ESSAYS IN THE PHILOSOPHY OF LAW 1–27 (1968) (doubting the validity of deterrence in domestic contexts
to ordinary common criminals).
61
Jackson Nyamuya Maogoto, WAR CRIMES AND REALPOLITIK 8 (2004) (“[I]nternational
tribunals . . . have become the international community’s primary response to humanitarian crises . . . .”);
Payam Akhavan, The International Criminal Court in Context: Mediating the Global and Local in the Age
of Accountability, 97 AM. J. INT’L L. 712, 712 (2003) (noting that the “euphoria” surrounding the ICC’s
establishment creates a “sympathetic posture” that “obscures a more critical discourse on the efficacy of
managing massive atrocities in distant lands within the rarified confines of international legal process”);
Jan Klabbers, Just Revenge? The Deterrence Argument in International Criminal Law, 12 FINNISH Y.B.
INT’L L. 249, 250 (Martti Koskenniemi ed., 2001) (noting that “we have all fallen under the spell of
international criminal law and the beauty of bringing an end to the culture of impunity”). See also generally
Antonio Cassese, Reflections on International Criminal Justice, 61 MOD. L. REV. 1, 6 (1998).
62
Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding
Transitional Justice, 15 HARV. H.R. J. 39, 40 (2002) (concluding that participants in the debate over the use
of prosecutions in transitional justice “share a basic assumption: prosecuting perpetrators of injustice is the
optimal method for dealing with past atrocities.”); Stephen Landsman, Alternative Responses to Serious
Human Rights Abuses: Of Prosecution and Truth Commissions, 59 LAW & CONTEMP. PROBS. 81, 83
(1996) (concluding that the best response is vigorous prosecution).
63
Lawrence Douglas, THE MEMORY OF JUDGMENT: MAKING LAW AND HISTORY IN THE TRIALS OF
THE HOLOCAUST (2001) (insisting that the legal response to crimes as extraordinary as the Holocaust must
take the form of a show trial which can serve both the interest of justice as conventionally conceived and
also a broader didactic purpose serving the interests of history and memory); John M. Czarnetzky & Ronald
J. Rychlak, An Empire of Law? Legalism and the International Criminal Court, 79 NOTRE DAME L. REV.
55, 62 (2003) (noting that “faith in the ICC” is “held quite strongly in Western intellectual circles”).
64
William Schabas, Sentencing by International Tribunals: A Human Rights Approach, 7 DUKE J.
COMP. & INT’L L. 461, 515 (1997); see also Stuart Beresford, Unshackling the Paper Tiger—the
Sentencing Practices of the Ad Hoc International Criminal Tribunals for the Former Yugoslavia and
Rwanda, 1 INT’L CRIM. L. REV. 33, 89 (2001) (“It is paradoxical, therefore, that while they were once the
champion of prisoners’ rights, the human rights community is now at the forefront and in many cases the
instigator of the international community’s desire to punish.”).
65
Benedict Kingsbury, Foreword, Is the Proliferation of International Courts and Tribunals a
Systemic Problem?, 31 N.Y.U. J. INT’L L. & POL. 679, 688 (1999) (citing John Bolton). But see contra
Posner and Yoo, supra note 11 (positing a preference for weak, dependent international dispute resolution
institutions).
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Ruti Teitel, Humanity’s Law: Rule of Law for the New Global Politics, 35 CORNELL INT’L L. J.
355, 368 (2002).
67
Rupert Cornwell, US Will Deny Aid to Countries that Refuse Court Immunity Deals, INDEPENDENT
UK, Nov. 4, 2003 (reporting official statements made by U.S. Undersecretary of State John Bolton).
68
Hearing Before the House Comm. on Int’l Relations, 107th Cong. (Feb. 28, 2002) (“The United
States remains proud of its leadership in supporting the two ad hoc tribunals and will continue to do so in
the future.”) (statement of Pierre Prosper, U.S. Ambassador at Large for War Crime Issues); Bass, supra
note 36, at 24 (discussing U.S. involvement in promoting due process for Nazi war criminals); Juan E.
Mendez, Human Rights Policy in the Age of Terrorism, 46 ST. LOUIS U. L.J. 377, 388 (2002) (reporting that
the ICTY and ICTR “enjoyed decisive support—of a bipartisan nature—from the United States”); Beth K.
Dougherty, Combatting Impunity: The Charles Taylor Case at the Special Court for Sierra Leone 1
(unpublished manuscript on file with the author) (“The U.S. is the largest single donor to the Sierra Leone
[Special Tribunal].”). This does not deny that, at present, the U.S., in particular U.N. Ambassador John
Bolton, is pressuring the ad hoc tribunals to complete their work by 2008. S.C. Res. 1503, U.N. SCOR,
58th Sess., 4817th mtg., U.N. Doc. S/Res/1503 (2003); Nancy Amoury Combs, International Decisions, 97
AM. J. INT’L L. 923, 935 (2003). ICTY officials do not believe it will be possible to complete trials before
2009 at the very earliest, upon which the subsequent completion of appeals remains contingent.
69
What is more, theories of liability developed by the ICTY and ICTR have been incorporated by US
regulators to govern the prosecution of Guantanamo detainees. See, e.g. 32 C.F.R. § 11.6(c)(3)-(4) (2004).
70
Drumbl, Punishment Post-Genocide, supra note 40; Mark A. Drumbl, Victimhood in Our
Neighborhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal Order, 81
N.C. L. REV. 1, 75–92, n.30 (2002); Mark A. Drumbl, Rights, Culture, and Crime: The Role of Rule of
Law for the Women of Afghanistan, 42 COLUM. J. TRANSNAT’L L. 349 (2004).
71
Carl Schmitt, THE CONCEPT OF THE POLITICAL (George Schwab trans., 1996).
72
George F. Kennan, AMERICAN DIPLOMACY 99 (1951); see also id. at 95 (arguing the “most serious
fault” of U.S. foreign policy to be “a legalistic-moralistic approach to international problems”). Henry
Kissinger frets that an “unprecedented movement has emerged to submit international politics to judicial
procedures . . . [which] risk[s] substituting the tyranny of judges for that of governments.” Henry A.
Kissinger, The Pitfalls of Universal Jurisdiction, FOREIGN AFF., July/Aug. 2001, at 86.
73
Posner and Yoo, Judicial Independence, supra note 11; Jack Goldsmith and Eric Posner, THE
LIMITS OF INTERNATIONAL LAW (2005).
74
Helfer and Slaughter, supra note 11 (commenting on Posner and Yoo article); Paul Schiff Berman,
Seeing Beyond the Limits of International Law, 84 TEX. L. REV. ___ (forthcoming, 2006) (draft manuscript
on file with the author) (review essay commenting on Posner and Goldsmith).
75
Goldsmith and Posner, supra note 62, at 225 (“International law is a real phenomenon, but
international law scholars exaggerate its power and significance.”). I would extend this caution to liberal
legalist criminal law and its ability to rationalize complex social phenomena.
76
I define legitimacy as the condition that arises when authority is exercised in a manner seen as
justified. Criminology is the study of crime, criminals, and criminal behavior. Victimology is the study of
crime victims. Penology is the study of punishment and prisoners.
77
See Iraqi High Criminal Court Law, Official Gazette of the Republic of Iraq, No 4006 (October 18,
2005), arts. 11-13 (providing jurisdiction for genocide and defining crimes against humanity and war
crimes). Court officials and judges will be Iraqis, although assistance will be provided by foreign legal
experts. The Law is an amended version of the Statute of the Iraqi Special Tribunal which was drafted by
the United States. The Court shall have primacy over all other Iraqi courts with respect to crimes against
humanity, war crimes, and genocide. Iraqi High Criminal Court Law, supra art. 29(second). Sentences
shall be carried out by the legal system of Iraq in accordance with its laws and the quantum of sentence
essentially is determined in accordance with the penalties imposed by Iraqi law. Sentences for international
crimes that do not have a counterpart under Iraqi law shall be determined by taking into account the gravity
of the crime, the individual circumstances of the convicted person and guided by judicial precedents and
relevant sentences of the international criminal courts. Id. art. 24(fifth). There are no pardons. The Rules
of Procedure and Evidence permit guilty pleas; and with regard to sentencing mandate the Trial Chamber to
66
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take into consideration aggravating and mitigating circumstances, of which only one specific example is
given, this being sunstantial cooperation before or after conviction, which is to be taken in mitigation.
Rules of Procedure and Evidence of the Iraqi Special Tribunal, The Official Gazette of the Republic of
Iraq, No. 4006, Rules 37,65 (October 18, 2005).
78
Osiel, supra note ___, at 1809-10 n 270 (arguing that domestic prosecutors have an incentive to
prosecute few persons in the interests of social reconciliation but then noting, in a throwaway line, that
“Rwanda does not come within the terms of the model presented in this Article, in that prosecution is not
limited to top echelons and does not aim to overcome intergroup conflict on mutually agreeable terms.”).
79
Rome Statute, supra note 18, art. 17.
80
Transplants, mimicry, and conformist pressures operate in many regulatory areas, including
economic policy, investment regulation, taxation, and property law. Accordingly, the analysis developed
here may be of relevance to integrative concerns elsewhere. In addition to the explanatory hypotheses I
identify in this text, account also could be had of bureaucratic theory, which might suggest that institutions
accept that which has been previously done so as to avoid the risk or invest the time required to reinvent.
81
Immanuel Kant, THE METAPHYSICAL ELEMENTS OF JUSTICE (John Lord trans., 1965). For
discussion of retribution, see also Michael Moore, The Moral Worth of Retribution, in PRINCIPLED
SENTENCING: READINGS ON THEORY & POLICY 150, 150 (von Hirsch & Ashworth eds., 2000); Joshua
Dressler, Hating Criminals: How Can Something that Feels So Good Be Wrong?, 88 MICH. L. REV. 1448
(1990); Jean Hampton, Correcting Harms versus Righting Wrongs: The Goal of Retribution, 39 UCLA L.
REV. 1659, 1686 (1992).
82
On the influence of international human rights standards on international criminal justice
institutions, see Danner and Martinez, supra note 48.
83
This broad discretion recently was reaffirmed in Prosecutor v. Semanza, Case No. ICTR-97-20-A
(ICTR Appeals Chamber, May 20, 2005) para. 312 (“Trial Chambers are vested with broad discretion to
tailor the penalties to fit the individual circumstances of the accused and the gravity of the crime.”);
Prosecutor v. Kvocka et al., Case No. IT-98-30/1-A (ICTY Appeals Chamber, February 28, 2005) para.
668 (recognizing that there is “no definitive list of sentencing guidelines”), para 669 (“Sentencing is
essentially a discretionary process on the part of a Trial Chamber”), para 715 (“[T]he Trial Chamber has
discretion as regards the factors it considers in mitigation, the weight it attaches to a particular mitigating
factor, and the discounting of a particular mitigating factor.”)
84
Osiel, The Banality of Good, supra note ___ (positing differing incentives faced by international
and national prosecutors in bringing to book perpetrators of extraordinary international crime).
85
Peter Uvin & Charles Mironko, Western and Local Approaches to Justice in Rwanda, 9 GLOBAL
GOVERNANCE 219, 223 (2003); Timothy Longman, The Domestic Impact of the International Criminal
Tribunal for Rwanda, in INTERNATIONAL WAR CRIMES TRIALS: MAKING A DIFFERENCE? 33 (Steven R.
Ratner & James L. Bischoff eds., 2004).
86
Prosecutor v. Kordić and Cerkez, IT-95-14/2-A (ICTY Appeals Chamber, Dec. 17, 2004), para.
1076 (“both individual [n.b. specific] and general deterrence serve as important goals of sentencing” and
also discussing reintegrative deterrence).
87
See e.g. William W. Burke-White, Complementarity in Practice: The International Criminal Court
as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo, 18 LEIDEN J.
INT’L L. 557, 587 (2005) (noting also the methodological limitations to his careful research and noting the
impossibility of turning to this data to provide statistically meaningful evidence that the ICC has had direct
deterrent effect).
88
For a recent discussion of expressivism that transcends the prior jurisprudence, see Prosecutor v.
Kordić and Cerkez, IT-95-14/2-A (ICTY Appeals Chamber, Dec. 17, 2004), paras. 1080- 1082 (referring to
the “educational function of a sentence” that “aims at conveying the message that rules of humanitarian
international law have to be obeyed under all circumstances [and] seeks to internalize these rules and the
moral demands they are based on in the minds of the public”; also noting that “The unfortunate legacy of
wars shows that until today many perpetrators believe that violations of binding international norms can be
lawfully committed, because they are fighting for a ‘just cause’. Those people have to understand that
international law is applicable to everybody, in particular during times of war.”)
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Diane Marie Amann, Message as Medium in Sierra Leone, 7 ILSA J. INT’L & COMP. L. 237, 238
(2001).
90
International Military Tribunal (Nuremberg), Judgment and Sentences (Oct. 1, 1946), reprinted in
41 AM. J. INT’L L. 172, 221 (1947). See also David Garland, PUNISHMENT AND MODERN SOCIETY: A
STUDY IN SOCIAL THEORY 252 (1990) (posits that punishment “communicates meaning . . . about power,
authority, legitimacy, normality, morality, personhood, social relations, and a host of other tangential
matters.”).
91
Douglas, supra note 53.
92
David Hollinger, POSTETHNIC AMERICA 84-85 (1995).
93
See generally. Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 MICH. J.
LAW REFORM 751 (1992).
94
Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16 EUR. J.
INT’L L. 113, 114 (2005); Martti Koskenniemi, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF
INTERNATIONAL LAW 1870-1960 (2001).
95
Koskenniemi, International Law in Europe, supra note 86, at 115. It is important to differentiate
universality from universalism. “[U]niversalism is the attempt to eliminate particularity and achieve
uniformity at global level; ‘universality’ is the attempt to bring out and develop the global resonance of
particular ideas.” Susan Marks and Andrew Clapham, INTERNATIONAL HUMAN RIGHTS LEXICON 298
(2005).
96
Stuart Hampshire, INNOCENCE AND EXPERIENCE 90 (1989). Hampshire describes these “great
evils” as follows: “murder and the destruction of life, imprisonment, enslavement, starvation, poverty,
physical pain and torture, homelessness, friendlessness.” Id. He thus writes well beyond the proscriptions
of international criminal law.
97
David Luban, Intervention and Civilization: Some Unhappy Lessons of the Kosovo War, in
GLOBAL JUSTICE AND TRANSNATIONAL POLITICS 106 (eds. Pablo De Greiff and Ciaran Cronin, 2002).
98
May, supra note 17, at 24 (finding such a justification by reference “to the security principle, the
international harm principle, jus cogens norms, and the international rule of law”).
99
I do not say that the line between procedure and substance is watertight. In most cases, procedure
will affect substance. There is overlap. One example is the ex post facto doctrine, which at times has
emerged (largely unsuccessfully) as a substantive defense to charges of violating international criminal law.
Another example occurs within the law of war, where procedural determinations of exactly who qualifies
for the protection of that law, and to whom that law applies, directly bear upon substance, such as liability
for breaches, which have become extraordinarily criminalized as war crimes. These methodological
determinations are themselves affected by colonial encounters that differentiated civilized methods of
warfare from savage methods (and legitimate industrial fighters from those “incapable of showing
restraint”). Frédéric Mégret, International Humanitarian Law and its “Other”: From “Savages” to
“Unlawful Combatants” 17 (manuscript on file with the author). While the former are included in the
framework, the latter are excluded. As Mégret posits, this tension between inclusion and exclusion, and its
provenance in the colonial encounter and Western ideological expansion, now has become revitalized
through debates emerging whether terrorists are lawful or unlawful combatants. Id.
100
See supra note 87. See also generally Martti Koskenniemi, International Law and Hegemony: A
Reconfiguration, 17 CAMBRIDGE REVIEW OF INTERNATIONAL AFFAIRS 197, 198 (2004) (“I shall describe
international law as process of articulating political preferences into legal claims that cannot be detached
from the conditions of political contestation in which they are made.”).
101
Such that Koskenniemi’s terminology of “universalism of Empire” seems apt. Martti Koskenniemi,
International Law in Europe: Between Tradition and Renewal, 16 EUR. J. INT’L L. 113, 116 (2005). See
also May, supra note 17, at 252 (“Those of us raised in the Western legal tradition often have a visceral
reaction to attempts to sidestep legal trials.”).
102
I quite consciously use the term path-dependency somewhat loosely here, without invoking the
detailed literature on the subject. See, eg. Oona Hathaway, Path Dependence in the Law: The Course and
Pattern of Change in a Common Law Legal System, 86 IOWA L. REV. 601 (2001). This is not to deny the
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fruitfulness of path-dependency as an analytic tool in general, nor to short-shrift it as a tool. For example,
one direction for future research might be to contrast how other areas of international law, for example
economic relations or environmental well-being, derive from dominant municipal practices. This then
could be contrasted to what is noted in this text with regard to international criminal law.
103
May, supra note 17, at 175.
104
Id.
105
Radhika Coomaraswamy, Identity Within: Cultural Relativism, Minority Rights and the
Empowerment of Women, 34 GEO. WASH. INT’L L. REV. 483, 513 (2002). (“[P]eople should recognize that
internationally accepted standards and norms do exist, in defiance of post-modernist tendencies. Being
sensitive to cultural relativism cannot imply putting hard-won battles on human rights up for grabs. […]
What must be seen as negotiable are the strategies of enforcement and implementation […].”)
106
See generally Immanuel Kant, POLITICAL WRITINGS (ed. Hans Reiss, trans. H.B. Nisbet, 2d
edition, 1991).
107
Martha C. Nussbaum, Patriotism and Cosmopolitanism, in FOR LOVE OF COUNTRY: DEBATING
THE LIMITS OF PATRIOTISM 9 (1996); Martha C. Nussbaum, Kant and Cosmopolitanism, in PERPETUAL
PEACE: ESSAYS ON KANT'S COSMOPOLITAN IDEAL 25-57 (eds. James Bohman and Matthias LutzBachmann, 1997).
108
Hollinger, supra note 84, at 84-85 (positing that cosmopolitans are receptive to “recognition,
acceptance, and eager exploration of diversity” and, unlike universalists, do not view diversity as a
problem).
109
Kok-Chor Tan, JUSTICE WITHOUT BORDERS: COSMOPOLITANISM, NATIONALISM, AND PATRIOTISM
(2004).
110
Berman, supra note 63.
111
Id. at pp. 46-48. See also Paul Schiff Berman, Toward a Cosmopolitan Vision of Conflict of Laws:
Redefining Government Interests in a Global Era, 153 U. PA. L. REV. 1819 (2005) (considering
cosmopolitanism in choice of law and civil procedure).
112
Anthony Giddens, THE THIRD WAY: THE RENEWAL OF SOCIAL DEMOCRACY 66, 130 (1998).
113
Furthermore, on a utilitarian note, in many places, national dispute resolution entities, especially
courts, are viewed with tremendous skepticism as they often serve as tools of social control in repressive
regimes. This constricts their effectiveness, along with the relevance of the processes they follow and the
sanctions they impose.
114
Mark A. Drumbl, Collective Violence and Individual Punishment: A Criminality of Mass Atrocity,
99 NW. U. L. REV. 539, 610 (2005), my use of this term reprised and discussed in Eric Stover and Harvey
Weinstein, MY NEIGHBOR, MY ENEMY ___ (CUP 2005).
115
This is settled law; although the idea that states can be responsible for crimes is one with little
currency.
116
Assuredly, legal claims have been brought asserting state responsibility for breaches of the
Genocide Convention. The Convention clearly recognizes the possibility for such claims. However, the
adjudication of these is another matter. For example, the nervousness and delay of the International Court
of Justice (ICJ) in dealing with state responsibility claims for genocide in the Balkans is quite striking. In
one case, involving complaints brought by Serbia and Montenegro against certain NATO states, the ICJ
seemed to resort to avoidance doctrine to divest itself of the obligation to decide. In this case, a narrow
majority dismissed the claim on the finding that the applicant, Serbia and Montenegro, through its
predecessor the FRY, had not been a member of the UN at the time when its claim against NATO arose and
that provisions involving the hearing of cases by non-parties did not apply to this dispute. This very broad,
albeit formalistic, approach, if followed in the future through application of doctrines of precedent, would
curtail the ICJ’s ability to adjudicate claims brought by Bosnia and Herzegovina, and Croatia, against
Serbia and Montenegro under the Genocide Convention. For example, if the applicant was not a member of
the UN, and therefore unable to bring its claim before the ICJ, how could this be any different in its
capacity as defendant? On the other hand, the ICJ had found, as recently as 2003, jurisdiction to hear the
claim brought by Bosnia and Herzegovina. It seems that a majority of the ICJ dismissed Serbia’s claim on
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these broad grounds because they were motivated by a normative perception that the ICJ was not the proper
institution to hear these kinds of cases (seven judges, though, would have dismissed on much narrower
grounds). Rather, the ICTY was the proper forum. Unfortunately, it seems that these ICJ judges succumbed
to the reductionist view that international criminal law institutions are the exclusive forum in which to hear
these kinds of cases (even thought the ICTY cannot hear civil claims for reparations or declaratory relief).
In Chapter 8, this book references disconnects in the judicialization of atrocity in the Balkans between the
ICTY and ICJ as an example of how a cosmopolitan pluralist paradigm might better coordinate victim
preferences inter-institutionally.
117
For a discussion of accountability of private international actors generally through contract, see
Laura Dickinson, Privatizing the International: International Law and the Problem of Accountability in an
Era of Governmental Contracts (manuscript on file with the author).
118
Thanks to Diane Marie Amann for this point. See also email from Diane Marie Amann (October
21, 2005) (“Another example […] is the Beanal case out of a US District Court […] – there the plaintiff
alleges injuries suffered by his whole village b/c of the oil & gas co. defendant’s practices, but the court
says he only has standing re: injured he personally suffered.”)
119
Ian R. Macneil, THE NEW SOCIAL CONTRACT: AN INQUIRY INTO MODERN CONTRACTUAL
RELATIONS (1980); Ian R. Macneil, Relational Contract Theory as Sociology: A Reply to Professors
Limberg and de Vos, 143 JOURNAL OF INSTITUTIONAL AND THEORETICAL ECONOMICS 272 (1987); Ian R.
Macneil, Relational Contract Theory: Challenges and Queries, 94 NW. U. L. REV. 877 (2000).
120
Mark A. Drumbl, Poverty, Wealth, and Obligation in International Environmental Law, 76
TULANE LAW REVIEW 843 (2002).
121
Drumbl, Pluralizing International Criminal Justice, supra note 44.
122
George Fletcher, Liberals and Romantics at War: The Problem of Collective Guilt, 111 YALE L. J.
1499 (2002).
123
See, e.g. Daryl J. Levinson, Collective Sanctions, 56 STAN. L. REV. 345 (2003) (discussing
collective legal sanctions against groups in non-Western societies).
124
Thomas Franck, State Responsibility in the Era of Individual Criminal Culpability, Butterworth
Lecture, Queen Mary, University of London, Department of Law (October 10, 2005) p. 18 (draft
manuscript on file with the author) (considering that acts attributed to the state “are the acts of the society
as a whole unless it can be shown that the conditions of governance in that state, at the critical time when
genocide was being planned and executed, were such that the people, by asserting their power, could not
have resisted.”). Franck gives the example of a populace reelecting a government whose official genocidal
policies and intent is known to all, following which the government then initiates this policy through
widespread massacres of members of the group targeted for elimination. He also notes that such a standard
particularly befits a situation in which there are mass communications and expanding democratization. Id.
at p. 18.
125
Id. pp. 19-20.
126
See, e.g. Osiel, The Banality of Good, supra note __ (recommending monetary penalties on
subdivisions of the officer corps within the context of collective responsibility).
127
In this process, it is vital to guard against hegemony in implementing restorative or alternate
models of justice in a manner that imposes Western understandings of restoration and private law
generally. Julie Mertus warns of this in Bosnia: proponents of a truth commission option were so anchored
in understandings of restoration that diverged from local expectations that the proposed commission was
seen by locals as alien. See Julie Mertus, Comments on Reconstructing PostConflict Societies at the
International Studies Association Annual Meeting in Montréal (Mar. 17, 2004) (notes on file with author).
39