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atrocity, punishment, and international law

In Atrocity, Punishment, and International Law, Mark Drumbl rethinks how per-
petrators of atrocity crimes should be punished. After ¬rst reviewing the sentencing
practices of courts and tribunals that censure genocide, crimes against humanity,
and war crimes, he concludes that these practices fall short of the goals that interna-
tional criminal law ascribes to punishment, in particular retribution and deterrence.
This raises the question whether international prosecutorial and correctional prefer-
ences are as effective as we hope. Drumbl argues that the pursuit of accountability
for extraordinary atrocity crimes should not uncritically adopt the methods and
assumptions of ordinary liberal criminal law. He calls for fresh thinking to confront
the collective nature of mass atrocity and the disturbing reality that individual mem-
bership in group-based killings is often not maladaptive or deviant behavior but,
rather, adaptive or conformist behavior. This book deploys a bold, and adventur-
ously pluralist, interpretation of classical notions of cosmopolitanism to advance the
frame of international criminal law to a broader construction of atrocity law and a
more meaningful understanding of justice. Drumbl concludes by offering concrete
reforms. He urges contextual responses to atrocity that welcome bottom-up perspec-
tives, including restorative, reparative, and reintegrative traditions that may differ
from the adversarial Western criminal trial.

Mark A. Drumbl is the Class of 1975 Alumni Professor at the School of Law, Wash-
ington and Lee University, where he also serves as Director of the Transnational Law
Institute. He has held visiting appointments at Oxford University (University Col-
lege), Trinity College Dublin, Vanderbilt University, and the University of Ottawa. In
2005, his academic work received the Association of American Law Schools Scholarly
Papers Prize and, in 2003, the International Association of Penal Law (U.S. Section)
Best Article Prize. He studied at McGill University (B.A., M.A.), Institut d™´ tudes
e
politiques, University of Toronto (LL.B.), and Columbia University (LL.M., J.S.D.).
When he was a graduate student at Columbia Law School in 1998, his work on
Rwanda received the Gitelson/Meyerowitz Human Rights Prize. In 2001, another
of his publications on Rwanda was heralded as “exemplary” in its treatment of “the
possibilities of the coexistence of victims and survivors within the same society after
the event” in the Times Literary Supplement.
Dr. Drumbl has lectured and published extensively on international law, human
rights, and criminal justice. He has worked in the Rwandan prisons and as defense
counsel in Rwanda™s genocide trials. He has been an expert on international law
in litigation in the U.S. federal courts, has taught in a variety of places “ including
Pakistan and Brazil “ and, from 1994 to 1995, served as judicial clerk to a justice of
the Supreme Court of Canada. Drumbl™s legal practice experience also includes
representation of the Canadian Chief-of-Defense Staff with regard to the Royal Com-
mission investigating military wrongdoing in the United Nations Somalia Mission.
He is a frequent media commentator.




i
ii
Atrocity, Punishment, and
International Law

mark a. drumbl
Class of 1975 Alumni Professor
Director, Transnational Law Institute
School of Law, Washington and Lee University




iii
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521870894

© Mark A. Drumbl 2007


This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2007

eBook (EBL)
ISBN-13 978-0-511-28505-9
ISBN-10 0-511-28505-1 eBook (EBL)

hardback
ISBN-13 978-0-521-87089-4
hardback
ISBN-10 0-521-87089-5

paperback
ISBN-13 978-0-521-69138-3
paperback
ISBN-10 0-521-69138-9

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
Dedicated to Victims, and Survivors, of Humanity™s Inhumanity




v
vi
Contents




page xi
Preface and Acknowledgments
xv
List of Abbreviations

1 Extraordinary Crime and Ordinary Punishment:
An Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(i) Extraordinary Crime 3
(ii) Ordinary Process and Punishment 6
(iii) Punishment in International and National Institutions 11
(iv) Deconstruction: The Disconnect between Aspirations of
Punishment and Realities of Sentence 15
(v) . . . and Reconstitution 18
(vi) Conclusion 21

2 Conformity and Deviance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(i) Perpetrators and Bene¬ciaries 25
(ii) Conformity, Transgression, and the Group 29
(iii) Posttraumatic Liberalism Disorder 35
(iv) Victims 41
(v) Conclusion: Law on Borrowed Stilts 44

3 Punishment of International Crimes in International
Criminal Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(i) Positive Law Frameworks of Contemporary
Institutions 50
(ii) Sentencing Practice 55
(iii) Penological Justi¬cation and Implementation:
The Jurisprudence 59
a. Why Punish? 60
b. What Factors to Consider in Punishing? 63
(iv) Conclusion 66




vii
viii Contents

4 Punishment of International Crimes in National and Local
Criminal Justice Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(i) Rwanda 71
a. National Courts in Rwanda, Including Specialized
Chambers 73
b. Foreign National or Military Courts 83
c. Gacaca 85
(ii) Former Yugoslavia 99
a. Positive Law Frameworks 99
b. Courts in Bosnia and Herzegovina 105
c. Courts in Serbia 106
d. Courts in Croatia 107
e. Foreign Courts 109
(iii) World War II 110
a. Immediate Aftermath of the War 112
b. From the 1960s Onward 115
(iv) Conclusion 121

5 Legal Mimicry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
(i) Transplants and Legal Geologies 125
(ii) Externalization of Justice 127
(iii) Democratic De¬cits 133
(iv) Referrals 138
(v) Complementarity 141
(vi) Conclusion 147

6 Quest for Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
(i) Retribution 150
a. Selectivity 151
b. Severity of Sanction and Discretion of
Sentencing Judges 154
(1) Overwhelming Gravity of the Crimes 155
(2) Treatment of High-Level Offenders 157
(3) Variability in Sentencing 161
c. Plea Bargaining 163
(ii) Deterrence 169
(iii) Expressivism 173
a. Selective Truths 176
b. Interrupted Performances 177
c. Management Strategies 178
d. Pleading Out 179
(iv) Conclusion 180
Contents ix

7 From Law to Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
(i) Pluralist Process for Universal Evil? 182
(ii) Cosmopolitan Theory 185
(iii) Vertical Authority Allocations: A Case for Quali¬ed
Deference 187
(iv) Horizontal Dimensions: Obligation in Multiple Orders 194
(v) Conclusion 205

8 Conclusion: Some Immediate Implications . . . . . . . . . . . . . . . . . 206
(i) Legal Institutions and Jurisprudence 207
(ii) Political Institutions and Behavior 209
(iii) Closing Note: Critique and Renewal 209

211
Notes
285
Index
Preface and Acknowledgments




How do we, and how should we, punish someone who commits genocide, crimes
against humanity, or discrimination-based war crimes? These questions “ the
former descriptive, the latter normative “ are the focus of this book.
These questions have received much less attention than they deserve.
Although international criminal law has gone a long way to convict individ-
uals for perpetrating atrocity, it has traversed far less creative ground in terms
of conceptualizing how to sanction them. Scholars, too, have been remiss. Sur-
prisingly little work has been undertaken that explores how and why criminal
justice institutions punish atrocity crimes and whether the sentences levied by
these institutions actually attain the proffered rationales. Furthermore, there is
little empirical work that assesses whether what international tribunals doctri-
nally say they are doing actually has a consistent and predictable effect on the
quantum of sentence.
In this book, I hope to respond to these lacunae and, through this endeavor,
make three contributions.
First, to present data regarding how and why local, national, and interna-
tional institutions punish genocide, crimes against humanity, and war crimes.
Although I include information from many atrocities, the focus centers on three
in particular: Rwanda, the former Yugoslavia, and World War II/the Holocaust.
My methodology involves a review of positive law instruments, sentences, and
sentencing jurisprudence. This part of the book (Chapters 3 and 4) is supple-
mented with extensive citations. This research serves important compilation
and reference purposes for practitioners and scholars and, thereby, responds to
the gap in the literature regarding data on sentencing and evaluative review
thereof.
Second, to explore whether extant methods of sentencing actually attain
the af¬rmed objectives of punishment. In Chapter 6, the heart of the book, I
conclude that there is an overall shortfall, although certain rationales are better
served than others.
Third, to move the dialogue from diagnosis to remedy. I argue that the pun-
ishment of extraordinary international crimes should not uncritically adopt
the methods and assumptions of ordinary liberal criminal law that currently
xi
xii Preface and Acknowledgments

underpin international courts and tribunals and seep into national institutions
(even those outside of liberal traditions). Extraordinary international crimes
simply are not the same as ordinary common crimes. Consequently, criminal
law designed for common criminals is inherently limited as a response to mass
atrocity and as a device to promote justice in its aftermath. We need to think
hard about transcending existing procedural and institutional frameworks. A
sustained process of critique and renewal may provide international criminal
punishment with its own conceptual and philosophical foundations, instead of
its current grounding on borrowed stilts.
The architects of international criminal law have done much to establish and
mainstream institutions such as the International Criminal Court. This is a great
accomplishment. But we cannot become complacent now that these institutions
have been edi¬ed. A proliferation of adversarial and individualized criminal law
does not inevitably lead to enhanced effectiveness in sanctioning or deterring
atrocity. Criminal trials should never become a substitute for more preventative
action on the part of the international community to combat atrocity. Nor is it
productive for the turn to trials to inhibit grassroots solutions that reach beyond
the criminal law or, even, formal law generally.
Insofar as I am deeply concerned with improving the project of international
criminal law, this book displays a reconstructive ambition. My goal is to locate
a principled middle ground between, on the one hand, the most relentless
skeptics of universal law as a response to mass atrocity and, on the other hand, the
most relentless proponents who often remain distrustful of bottom-up initiatives
in postcon¬‚ict societies. If successful, my arguments could inspire short-term
reforms to existing institutions and a longer-term reconstitution of the ¬eld. I
chart some proposals.
Within this process of reconstitution, it is important to emphasize contribu-
tions from nonlawyers, in particular anthropologists, mental health profession-
als, criminologists, social workers, political scientists, and public policymakers.
I think the arguments of this book will be of interest to them, and I hope they
feel welcome in debates among international lawyers that pertain to complex
questions of justice.
The roots of this academic project trace back to my work in 1998 in the
Rwandan genocide prisons. Along the way, many colleagues provided invaluable
comments, feedback, and ideas on this manuscript at various stages of drafting “
from the inchoate to the nearly ¬nished. I thank each of you. It would be
impossible to list everyone who played a part. But here is an attempt, in no
particular order: Rick Kirgis, Ken Gallant, Roger Clark, Diane Marie Amann,
Chris Blakesley, Chandra Lekha Sriram, Erin Daly, Penny Andrews, Allison
Marston Danner, Scott Sundby, Ellen Podgor, Laura Dickinson, Holger Rohne,
Laurel Fletcher, Darryl Brown, Tai-Heng Chen, Louise Halper, Paul Roberts,
Donal Coffey, Cyrus Tata, Michael Fowler, Rosemary Byrne, Ralph Henham,
David Zaring, Brad Wendel, Dorothy Brown, and Linda Malone.
A number of individuals deserve special thanks. Bert Westbrook and Kevin Jon
Heller came along near the end of the writing process. Their encouragement,
Preface and Acknowledgments xiii

insight, and careful reads of the manuscript helped sustain my energy. Chris
Gosnell gave me tremendous perspective. Larry May, who has introduced me
to much of the rich philosophical literature on international criminal justice,
offered wonderful advice and suggestions. I also would like to acknowledge the
commentary from three anonymous reviewers at Cambridge University Press,
whose input at a much earlier stage in the drafting process helped frame the
debates.
My wife Michelle read every chapter. Her unwavering support, love, and
patience, which guided every step taken through this project, continue to
brighten each of my days. My parents deserve credit for many things, not the
least of which is teaching me to ¬nish a thought before beginning a new one.
Kira Horstmeyer, Washington and Lee Law Class of 2007, provided invaluable
assistance with editing and cite checking. I also thank my former students Matt
Earle, Erica Richards, and Sara Sakagami for their research work; Helen Hartt
for library assistance; and Diane Cochran for administrative help. The editors
at Cambridge University Press were a pleasure to work with.
This project grew enormously as a result of feedback from commentators
at presentations made at the following universities: Vanderbilt, St. Andrews,
Nottingham-Trent, Trinity College Dublin, Maryland, Washington and Lee,
Nottingham, Texas, Washington University in St. Louis, Ohio State, NUI “
Galway, Georgia, Case Western, and Wilfrid Laurier. Parts of the project also
were presented at meetings of the American Society of International Law, Inter-
national Studies Association, Law and Philosophy Association, Association of
American Law Schools, and Law and Society Association. I am grateful to
participants in those meetings for their insights.
I wrote much of this book from a lovely of¬ce with a thoughtful view at
University College, Oxford University, where I was appointed Visiting Fellow
for Michaelmas Term 2005. I extend my warmest gratitude to Univ for hosting
me. I also thank the Institute for International Integration Studies at Trinity
College Dublin, where I served a very productive stint as a Visiting Scholar
in May 2006. My greatest appreciation, however, goes to my home institution,
Washington and Lee University, School of Law, for un¬‚aggingly and unfailingly
supporting this research agenda from its inception, including through the grant
of sabbatical leave and resource support through the Frances Lewis Law Center.
I owe a great professional and personal debt to Dean David Partlett for his
friendship and encouragement.
Select parts of this book contain material that draws from, adapts, or is
signi¬cantly reworked from my article, “Collective Violence and Individual
Punishment: The Criminality of Mass Atrocity,” which appeared in Northwest-
ern University Law Review, Vol. 99, No. 2, 539 (Winter 2005). This article has
been used by special permission of Northwestern University School of Law,
Northwestern University Law Review. Adaptation re¬‚ects the evolution of my
thinking, events on the ground, and the results of new research. I was deeply
honored when this article was selected as one of two co-winners of the 2005
Scholarly Papers Competition of the Association of American Law Schools.
xiv Preface and Acknowledgments

Select portions of Chapter 4, Part (i) draw from, update, and adapt material that
originally appeared as a published lecture in the Ohio Northern University Law
Review, Vol. 31, 41 (2005), for which the Ohio Northern University Law Review
grants permission to reuse. Cover photo c James Nachtwey/VII.
This book incorporates material and data on sentencing gathered up to May
2006, inclusive, unless otherwise indicated. Any errors or omissions in the text
are entirely my own.
List of Abbreviations




DRC Democratic Republic of the Congo
FRY Federal Republic of Yugoslavia
ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IHT Iraqi High Tribunal
IMT International Military Tribunal (at Nuremberg)
JCE Joint criminal enterprise
OSCE Organization for Security and Cooperation in Europe
RPF Rwandan Patriotic Front
SCSL Special Court for Sierra Leone
SFRY Socialist Federative Republic of Yugoslavia
Special Panels East Timor Special Panels
UNAMIR United Nations Assistance Mission in Rwanda




xv
atrocity, punishment, and international law
chapter 1


Extraordinary Crime and Ordinary Punishment:
An Overview




Beginning on April 8, 1994, Tutsi escapees “ hunted and terri¬ed “ ¬‚ed to the
Catholic church in Nyange, a rural parish in western Rwanda. They sought
shelter from attacks incited by Hutu extremists. The attackers were determined
to eliminate the Tutsi as an ethnic group and killed individual Tutsi as a means
to this end.
The Nyange church soon ¬lled with over two thousand huddled Tutsi, many
of whom were wounded. These Tutsi initially thought the church, as a house of
God, would be a refuge. In fact, they had been encouraged to hide there by parish
priests. The priests, however, decided to demolish the church. Accordingly,
workers were engaged to operate a mechanical digger.
On April 16, 1994, a worker named Anastase Nkinamubanzi bulldozed the
church with the Tutsi crammed inside. The roof crashed down. A few Tutsi
survived the razing of the church. Nearly one-third of the local Hutu population
assembled to ¬nish them off. They did so with machetes, spears, and sticks.
Four years later, a Rwandan court prosecuted six individuals on charges of
genocide and crimes against humanity for the Nyange church massacre.1 Nki-
namubanzi was among the accused. From the case report, we learn that he
was born in 1962, was a bachelor, and worked as a heavy equipment driver.2
Nkinamubanzi had no assets. He had no prior criminal record. The case
report also sets out, through the sterility of legal prose, the evidence under-
pinning the accusations that he mechanically leveled a church with two thou-
sand Tutsi trapped inside. After demolishing the church, Nkinamubanzi calmly
asked the priests for the promised 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 imprison-
ment. Although Nkinamubanzi admitted he bulldozed the church bursting with
escapees, the court did not formally accept his guilty plea, the details of which
it found inexact. Still, the court was in¬‚uenced by his request for forgiveness. It
considered that request as a mitigating factor. Two other defendants, who were
church leaders, received the death penalty at trial; these sentences have not
been carried out.
1
2 Atrocity, Punishment, and International Law

As for the Nyange church, over a decade later “all that is left of the mas-
sacre site are heaps of earth and concrete.”4 And, as for Nkinamubanzi, media
accounts indicate that “ stricken with tuberculosis “ he is serving his sentence
in a Rwandan prison.5
Many ordinary people in Rwanda were like “ or, at least, a little like “ Nkina-
mubanzi; many others are like him in many other places, countries, and con-
tinents; moreover, many more have the potential to become like him in the
future. Ordinary people often are responsible for killing large numbers of their
fellow citizens, whether by their own hands, by helping the hands of others,
or by encouraging the handiwork. Some revel in the killings.6 Others simply
play along nervously, grimacing while they administer the deathblows or ¬dget-
ing while they distribute a list of targeted victims. Many simply think they are
doing their patriotic duty and ful¬lling their civic obligation, which they satisfy
with pride, P¬‚icht, composure, and the quiet support of the general population.
They are the exemplars of Hannah Arendt™s “banality of evil.”7 That said, those
leaders who give the orders to kill or in whose name the killings are undertaken
also promote banality. After all, it is they who normalize violence and make
it a way of life. Acting as what Amartya Sen describes as “pro¬cient artisans
of terror,”8 these leaders ensconce atrocity as civic duty and, thereby, become
con¬‚ict entrepreneurs.
So, what exactly do we do with individuals, leading a group or acting on its
behalf, who murder tens, hundreds, thousands “ or more “ fellow members of
humanity because of their membership in a different group? Should we subject
these killers to the process of law? If so, what kind of law? What punishment
is appropriate? What about the collective forces that provide the killers with
a support network and social validation? Should we sanction those, too? If so,
how?
This book addresses the reasons that extant criminal justice institutions “
sited domestically as well as internationally “ give for punishing perpetra-
tors of mass violence and also investigates whether the sentences levied by
these institutions support these penological rationales. Little scholarship has
been undertaken in this area. In fact, whereas sophisticated work explores the
substantive crimes,9 the formation of institutions and their independence,10
and the impact of prosecuting these crimes on collective reconciliation and
political transition,11 only isolated “ and often conclusory “ analysis exists
concerning what institutions say they are accomplishing by punishing and,
most importantly, whether the punishments issued actually attain the goals
they are ascribed. Leading treatises on international criminal law devote lim-
ited space to punishment and sentencing.12 The project that follows begins
to address this lacuna in the scholarly literature. With this analysis as a base,
the project then pushes in a normative direction by inquiring how offenders
should be punished and how extant punishment schemes might be enhanced.
In this ¬rst chapter, I provide an overview of the arguments advanced in this
book.
Extraordinary Crime and Ordinary Punishment: An Overview 3


(i) extraordinary crime
The liberation of the concentration camps at the end of the Second World
War uncorked a torrent of emotions. For the survivors, these emotions scaled a
wide spectrum. Primo Levi and Viktor Frankl poignantly recorded how survivors
experienced relief, fear, and loneliness while engaged in a painful search for
meaning and the relevance of their survival.13 For the liberating soldiers, there
was repulsion and shock; for the returning Axis combatants, shame, denial, and
disappointment.
The Allied rulers divided about what to do with the Nazi leaders. U.K. Prime
Minister Churchill sought their quick dispatch, including by extrajudicial exe-
cution, owing to the fact that their guilt was so evident that there was no need
for judicial process to establish it.14 The Soviet Union™s Stalin sought similar
ends, but following short show trials. U.S. President Truman, encouraged by
Secretary of War Stimson, envisioned careful trials to narrate to all the value of
law and the depth of the defendants™ culpability.
This latter view prevailed, leading not only to the Nuremberg trials, but also
to the genesis of an in¬‚uential paradigm. This paradigm cast Nazi crimes as
extraordinary in their nature and, thereby, understood them 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.15 This under-
standing gave two distinct groups 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.
Arendt explored Nazi crimes and their relationship with totalitarianism. She
initially described these crimes as they occurred within the context of the Holo-
caust as “radical evil,” borrowing a phrase that had been coined much earlier
by Immanuel Kant.16 In subsequent work, Arendt recast the evil as “extreme” or
“thought-defying,” preferring such descriptions to “radical” owing to the evolu-
tion of her thinking regarding the thoughtlessness and banality of the violence.17
International lawmakers did not believe that extreme evil lay beyond the
reach of the law. They felt that law could recognize extreme evil and sanction it
as a breach of universal norms. The area of law believed to be best suited for the
condemnation of extreme evil was the criminal law. And, in fact, the criminal
law has gained ascendancy as the dominant regulatory mechanism for extreme
evil. This ascendancy began with Nuremberg and has, in the years since, gained
currency and become consolidated.
In terms of substantive categorization, however, extreme evil was no ordinary
crime. After all, Arendt herself noted that extreme evil “explode[d] the limits
of the law.”18 This did not mean that this evil was incapable of condemnation
through law, but that the law had to catch up to it. In this regard, international
lawmakers categorized acts of extreme evil as qualitatively different than ordi-
nary common crimes insofar as their nature was much more serious.19 These
4 Atrocity, Punishment, and International Law

acts seeped into the realm of extraordinary international criminality. And the
perpetrator of extraordinary international crimes has become cast, rhetorically
as well as legally, as an enemy of all humankind.20 I use both of these phrases in
this book given that they re¬‚ect dominant understandings of the wrongdoing and
wrongdoers. Those acts of atrocity characterized as extraordinary international
crimes include crimes against humanity (an appellation that neatly embodies
our shared victimization), genocide, and war crimes.21
The de¬nitions of these crimes have evolved over time to become quite
complex. Stripped to the essentials, though, crimes against humanity include a
number of violent acts “when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack.”22
Genocide is de¬ned to 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.23 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 con¬‚ict.24 Whereas killing the enemy is part of a soldier™s
ordinary activity, torture, inhumane treatment, or willful murder of civilians
is not. Launching attacks that are disproportionate, that fail to discriminate
between military and civilian targets, or that are not necessary to secure a military
advantage also can constitute war crimes.
At the very core of the extraordinariness of atrocity crimes is conduct “
planned, systematized, and organized “ that targets large numbers of individ-
uals based on their actual or perceived membership in a particular group that
has become selected as a target on discriminatory grounds.25 In these situa-
tions, group members become indistinguishable from, and substitutable for,
each other. The individual becomes brutalized because of group characteris-
tics. The attack is not just against individuals, but against the group, and thereby
becomes something more heinous than the aggregation of each individual mur-
der. Moreover, the discriminatory targeting of a group is often effected in the
name of the persecutor™s own group. Accordingly, the interplay between indi-
vidual action and group membership is central to extraordinary international
criminality. This interplay engenders thorny questions of responsibility and pun-
ishment. Crimes motivated by this discriminatory animus are deeply in¬‚uenced
by notions of group superiority and inferiority, which, in turn, propel collective
action.
To recap: international lawmakers believe that extreme evil is cognizable
by substantive criminal law. Because extreme evil is so egregious, however,
only special substantive categories of criminality (in some cases newly de¬ned,
named, or created) could capture it. These categories include genocide, crimes
against humanity, and war crimes.
De¬ning the crimes, though, is only one step in the enforcement process.
It would also be necessary to establish procedures, institutions, and sanctions
through which perpetrators of atrocity could be brought to account. Proce-
dures, institutions, and sanctions have emerged.26 International criminal justice
Extraordinary Crime and Ordinary Punishment: An Overview 5

largely is operationalized through criminal tribunals. Courtrooms have gained
ascendancy as the forum to censure extreme evil. Accountability determinations
proceed through adversarial third-party adjudication, conducted in judicialized
settings, and premised on a construction of the individual as the central unit
of action.27 A number of select guilty individuals squarely are to be blamed for
systemic levels of group violence. At Nuremberg, some of the guilty were hung.
Today, punishment predominantly takes the form of incarceration in accordance
with the classic penitentiary model, where convicts are isolated and sequestered.
The enemy of humankind is punished no differently than a car thief, armed rob-
ber, or felony murderer in those places that adhere to this model domestically.
The ascendancy of the criminal trial, courtroom, and jailhouse as the pre-
ferred modalities to promote justice for atrocity is not random. Rather, it is
moored in a particular worldview that derives from the intersection of two in¬‚u-
ential philosophical currents. The ¬rst of these currents is legalism; the second
is liberalism.
To follow Judith Shklar, legalism is the view that “moral relationships [ . . . ]
consist of duties and rights determined by rules.”28 When it comes to atrocity,
however, the application of legalism becomes narrower. It does so in two ways.
One is disciplinary. The turn is not to law generally to promote justice in the
aftermath of terribly complex political violence but, rather, most enthusiasti-
cally to the criminal law. I argue that the preference for criminalization has
prompted a shortfall with regard to the consideration and deployment of other
legal, regulatory, and transformative mechanisms in the quest for justice.29 The
second narrowing is sociocultural. The kind of legalism, voiced through the
criminal law, which has become operative is one that embodies core elements
of liberalism, including, as Laurel Fletcher notes, the tendency to “locate the
individual as the central unit of analysis for purposes of sanctioning violations.”30
Liberalism originates in and underpins the legal structures of Western societies.
Accordingly, when it comes to atrocity, the justice narrative is deeply associ-
ated with liberal legalism rooted in the ordinary procedure and sanction of the
criminal law of Western states. Although I share Fletcher™s de¬nition of liberal
legalism as “refer[ing] to the legal principles and values that privilege individual
autonomy, individuate responsibility, and are re¬‚ected in the criminal law of
common law legal systems,”31 I would add that these values also are shared by
civil law legal systems suggesting, at a deeper level, the dif¬culty in deracinating
them from Western social and legal thought.32 The ascendancy of these modal-
ities of justice thereby represents the ascendancy of speci¬c forms of procedure
and sanction, which often become applied to societies where such forms are
neither innate nor indigenous.
In this book, at times I turn to phrases such as liberal legalist or Western legalist
to describe the dominant method of determining responsibility and allocating
punishment in the wake of atrocity. At times, I also turn to the phrase ordinary
criminal law and process as shorthand for the domestic law and process regu-
lating common crime in liberal states. I recognize the complex philosophical
debates on liberalism generally. This book is not a treatise on liberalism. Nor
6 Atrocity, Punishment, and International Law

is it a broadside thereof. Nor is it a critique of Western philosophical traditions
generally. Many of the philosophical approaches I ¬nd compelling, for exam-
ple, cosmopolitanism, pluralism, and democratic theory, associate with liberal
Western traditions. My goal is not to assess the merits of liberalism as a broad,
and often abstractly de¬ned, philosophical worldview. Rather, my goal is much
more modest. I intend to investigate the effectiveness of criminal trials and pun-
ishment, as presently conducted internationally and nationally, as responses to
atrocity. I also investigate the effects that the embrace of criminal prosecution
and punishment has on other potential approaches to regulate, sanction, and
prevent atrocity. Neither legalism nor liberalism can be fully disentangled from
these investigations insofar as they both animate the preference for prosecution
and punishment as presently constituted.


(ii) ordinary process and punishment
A paradox emerges. International lawmakers have demarcated normative dif-
ferences between extraordinary crimes against the world community and ordi-
nary common crimes. However, despite the proclaimed extraordinary nature of
atrocity crime, its modality of punishment, theory of sentencing, and process of
determining guilt or innocence, each remain disappointingly, although perhaps
reassuringly, ordinary “ so long as ordinariness is measured by the content of
modern Western legal systems.
At the international level, there has been a proliferation of new legal insti-
tutions to adjudge mass violence. These institutions have become legitimated
as appropriate conduits to dispense justice and in¬‚ict punishment.33 A number
of justi¬cations are evoked in this regard. One is deontological, namely that
the crimes are so egregious that they victimize all of us and, hence, must be
condemned internationally; it would be unjust for a particular state™s courts
to “con¬scate” these crimes.34 Other justi¬cations are pragmatic. Extraordi-
nary international crimes often trigger security concerns, threaten regional
stability, affect the viability of groups, and induce cross-border refugee move-
ments. In a very real sense, these crimes therefore implicate what Larry May
calls an “international interest.”35 International institutions also derive legit-
imacy because, in the wake of atrocity, national institutions may be annihi-
lated, corrupt, politicized, biased, or too insecure. Accordingly, but for the cre-
ation of an international institution, in many instances no justice would be
effected.
That said, international institutions have not acquired a monopoly on the
accountability business. Far from it. In fact, most of this business actually is
carried out by national and local institutions, which are or increasingly look like
Western criminal courts, and which rely on jurisdictional bases such as territo-
riality, nationality, or universality.36 International institutions serve as tremen-
dously important trendsetters for their national and local counterparts.37 There-
fore, the distinctions between international and national institutions are far from
watertight.38
Extraordinary Crime and Ordinary Punishment: An Overview 7

Newly created international institutions include the International Crimi-
nal Court (ICC, 2002),39 ad hoc tribunals for Rwanda (International Criminal
Tribunal for Rwanda, ICTR, 1994)40 and the former Yugoslavia (International
Criminal Tribunal for the Former Yugoslavia, ICTY, 1993),41 the Special Court
for Sierra Leone (SCSL, 2000),42 and a variety of hybrid panels or chambers.
Hybrid institutions divide judicial responsibilities between the United Nations,
or its entities, and the concerned state.43 Strictly speaking, they are, therefore,
internationalized legal institutions instead of purely international legal institu-
tions; that said, in the interest of simplicity, I consider them under the rubric of
international institutions. A hybrid model currently operates in Kosovo;44 one
has ceased operations in East Timor;45 another is emerging in Cambodia.46
There is considerable homogeneity among these international institutions.
All of them largely incorporate ordinary methods of prosecution and punishment
dominant in liberal states. This incorporation is noted but does not raise many
eyebrows within the community of international criminal law scholars, including
among its most distinguished members.47 Within this process of incorporation,
international criminal courts and tribunals have “ to varying degrees inter se “
technically harmonized aspects of Anglo-American common law procedure with
tenets of the Continental civil law tradition.48 However, this harmonization is
far from a genuine amalgam that accommodates the sociolegal traditions of
disempowered victims of mass violence “ largely from non-Western audiences “
who already lack a voice in international relations.49 Although these traditions are
not incommensurable with Western systems, and share points of commonality,
they differ in important ways, including when it comes to rationales for and
modalities of punishment. In short, international criminal law largely borrows
the penological rationales of Western domestic criminal law.
These international institutions also borrow from the operation of human
rights frameworks in dominant states, in particular due process rights accorded to
criminal defendants. International criminal procedure accords great importance
to the need to “pay particular respect to due process”50 in order to avoid, in Justice
Jackson™s famous admonition, “pass[ing] [ . . . ] defendants a poisoned chalice.”51
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.52 Due process
rights, which apply to persons accused of common crimes in liberal states, now
inure to the bene¬t of persons accused of extraordinary international crimes
often committed far away from these states. Among legal scholars, there is little,
if any, questioning of the suitability of this transplant. A contrario, it is often a
cause for celebration. I believe that the reality on the ground is more complex
and that it is problematic for international institutions to assume that formulaic
reliance upon due process standards alone leads to legitimacy and credibility,
particularly among populations transitioning from con¬‚ict. I do not deny the
relevance of due process in preserving the humanity of those who prosecute and
in serving as an example for the rule of law. I have elsewhere underscored the
importance of both of these phenomena.53 I merely suggest that justice is not a
recipe; and due process is not a magic ingredient.
8 Atrocity, Punishment, and International Law

This replication of the process, sanction, and rationales of ordinary criminal
law is reassuring to some, insofar as the familiar often is comfortable. But this
replication also is vexing, in that the perpetrator of mass atrocity fundamentally
differs from the perpetrator of ordinary crime. The fulcrum of this difference 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 in the times and places where they are com-
mitted. Assuredly, as I explore in Chapter 2, this is not the case for all incidents
of atrocity. However, as atrocity becomes more widescale in nature, and more
popular, it becomes more dif¬cult to construct participation therein as deviant.
Insofar as international criminal law claims a regulatory interest in the most seri-
ous crimes of international concern, it concerns itself with the kind of violence
that is most dif¬cult to reconcile with deviance theory. Although widespread
acts of extraordinary international criminality transgress jus cogens norms, they
often support a social norm that is much closer to home.54 In such cases, partic-
ipation in atrocity becomes a product of conformity and collective action, not
delinquency and individual pathology. This latter reality, which I initially came
to appreciate experientially through my work with detainees in Rwanda,55 brings
to light complex and discom¬ting issues of human agency. Although this deep
complicity cascade does not diminish the brutality or exculpate the aggressor,
it does problematize certain tropes central to international criminal law such
as bystander exoneration, individual autonomy, and the avoidance of collective
sanction. The complicity cascade also involves the misfeasance or nonfeasance
of foreign governments and international organizations during times of atroc-
ity, thereby imperiling the moral legitimacy of pronouncements of wrongdoing
by foreign and international judges elected by and representing these putatively
neutral governments and organizations. What is more, many extraordinary inter-
national criminals, who engaged in acts of unfathomable barbarity, are able to
conform easily and live unobtrusively for the remainder of their lives as normal
citizens. The examples of Nazis who ¬‚ed Germany following World War II to
take up residence elsewhere in Europe or the Americas stand out. This ability
to ¬t in suggests something curious, and deeply disquieting, about atrocity per-
petrators: namely, their lack of subsequent delinquency or recidivism and their
easy integration into a new set of social norms.
Chapter 2 examines distinctions between the perpetrator of mass atrocity and
the perpetrator of ordinary common crime. In this regard, Chapter 2 consid-
ers perspectives that contend that distinctions between the extraordinary and
ordinary criminal are not so apparent and, in fact, may be quite blurred. In par-
ticular, I give careful consideration to: (1) certain ordinary common crimes that
share collective characteristics; and (2) sophisticated new research on individ-
ual participation in civil war that suggests that not all participants are motivated
by political goals, but that some are motivated by private goals in a manner
that resembles the behavior of the common criminal. Ultimately, I conclude
that there remains a materially signi¬cant difference between the perpetrator of
discrimination-based atrocity and the ordinary common criminal such that the
Extraordinary Crime and Ordinary Punishment: An Overview 9

application of punishment designed for the latter to the former is ill ¬tting and,
what is more, that this ill ¬t accounts for a number of the penological shortfalls
of the project of international criminal law. This ¬nding does not eviscerate
the usefulness of accumulated knowledge regarding the common criminal in
terms of how we consider punishing the extraordinary international criminal.
Rather, it suggests that we need to transcend this knowledge instead of rely-
ing heavily upon it. Moreover, thinking hard about the perpetrator of atrocity
could help us better understand the ordinary common criminal and the extent
to which extant punishment schemes for common criminals (already subject to
considerable criticism) can better attain their own penological objectives.
Chapter 2 also explores tensions within ordinary criminal law between indi-
vidualism as a ¬rst principle56 and the reality that ordinary criminal law excep-
tionally turns to notions of vicarious liability and collective responsibility that,
prima facie, run contrary to the ethos of individual agency.57 Paradoxically, how-
ever, even though international criminal law responds to conduct that is much
more collective in nature than that faced by ordinary criminal law, it evokes a
similar rhetorical archetype of individual agency.58 This leads to deep tension
and doctrinal tautness.
Despite the fact that the suitability of ordinary criminal process for collective
acts of atrocity cannot be assumed, and is in fact problematic, newly created
punishing institutions bene¬t from signi¬cant levels of enthusiasm. The turn to
criminal trials to promote justice for atrocity has acquired striking support among
scholars and policymakers. Payam Akhavan and Jan Klabbers are right to observe
that many legal scholars ascribe lofty transformative potential to atrocity trials.59
There is a sense that conducting more criminal trials in more places af¬‚icted by
atrocity will lead to more justice, so long as those trials conform to due process
standards. Optimism regarding the potential of international criminal tribunals
also echoes, albeit with greater circumspection, in other scholarly communities
ranging from historians to moral philosophers.60
Legal practitioners, too, share this enthusiasm.61 International human rights
activists also are enthusiastic partisans and, according to William Schabas,
thereby have “adjusted [their] historic predisposition for the rights of the defense
and the protection of prisoners to a more prosecution-based orientation.”62
Political actors, such as states and international organizations (for example, the
United Nations) “ along with nongovernmental organizations and development
¬nanciers “ stand behind international criminal tribunals. Even while oppos-
ing the ICC and shrinking the role of criminal law in the “war on terror,” the
U.S. government elsewhere propounds legalist prosecution, punishment, and
incarceration for individual perpetrators of mass atrocity. The United States has
supported temporary international criminal tribunals from Nuremberg in 1945
to the ICTR and ICTY today, and atrocity prosecutions in general, as exempli-
¬ed by the Saddam Hussein trial.63 Many of the substantive international crimes
(and principles of individual penal responsibility) punishable by the Iraqi High
Tribunal (whose Statute was drafted with considerable U.S. assistance) track
those of the Rome Statute of the ICC. U.S. opposition to the ICC does not
10 Atrocity, Punishment, and International Law

focus on the appropriateness of its methods, but, rather, on the independence of
the institution and the prospect that U.S. soldiers, of¬cials, or top leaders might
become its targets.64
In short, faith on the part of so many activists, scholars, states, and policy-
makers in the potential of prosecution and incarceration has spawned one of
the more extensive waves of institution-building in modern international rela-
tions. I believe the time has come to pause and reexamine this faith, even if
just for a moment. I argue that prosecution and incarceration is not always the
best way to promote accountability in all af¬‚icted places and spaces. In fact,
my interviews of perpetrators and survivors in Rwanda and experiences with vic-
tims of internecine violence in Afghanistan suggest that the structural simplicity
pursued by the prevailing paradigm of prosecution and incarceration squeezes
out the complexity and dissensus central to meaningful processes of justice and
reconciliation.65
To be sure, some constituencies (for example, international relations theo-
rists of the realist school) express considerable reserve regarding the merits of
international criminal law and its institutional operationalization. According to
the realist conception, law should do no more than promote cooperation when
states ¬nd 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.66 Other realists,
for example, George Kennan, criticize the “legalistic approach to international
affairs” because this approach “ignores in general the international signi¬cance
of political problems and the deeper sources of international instability.”67 Eric
Posner, John Yoo, and Jack Goldsmith currently import this view into the legal
academy under the auspices of rational choice theory.68 Other scholars, in turn,
have compellingly demonstrated weaknesses that inhere in this importation.69
There is middle ground, which I hope to cultivate, between the proponents
and the naysayers. This middle ground recognizes “ but does not romanticize “
the potential of atrocity trials; it also recognizes the limits to the criminal law™s
ability to rationalize complex social phenomena. One of my goals is to 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 discrimina-
tion, but which expresses concern that dominant procedural and institutional
methodologies fall short in terms of legitimacy and effectiveness.70 I believe this
critique is central to developing a sophisticated understanding of social con-
trol at the global level for those who breach the global trust. Furthermore, I
hope to look beyond the criminal law to consider the role that law generally,
as well as other regulatory initiatives, can play in promoting justice following
atrocity. In this regard, I hope to pursue an encouraging but tempered search
for law™s potential. The search for this potential begins with a review of the exist-
ing accomplishments of international criminal law in sentencing extraordinary
international criminals.
Extraordinary Crime and Ordinary Punishment: An Overview 11


(iii) punishment in international
and national institutions
Chapter 3 reviews the positive law of international criminal tribunals, 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. In contemporary
international practice, sanction effectively is limited to imprisonment, with the
majority of extraordinary international criminals receiving ¬xed terms. There is
no sentencing tariff. Although able to do so, as of the time of my data compilation
(May 2006), the ICTY has not issued a life sentence.71 The East Timor Special
Panels (Special Panels) were not empowered to issue a life sentence. At the ICTY,
among term sentences ¬nalized by May 2006, the mean term was 14.3 years
and the median term 12 years. The length of ¬xed terms of imprisonment is
palpably lower at the Special Panels, where the mean sentence for extraordinary
international crimes is 9.9 years and the median sentence 8 years. The ICTR
sentences more severely. It routinely awards life sentences. Slightly less than half
of all ICTR convicts receive life sentences; the remainder receive much longer
¬xed terms of imprisonment than at the ICTY.72
In the case of the ICTY and Special Panels, 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 yet occurred
at the ICTR.
A more exacting review of the judgments and data suggests that international
criminal tribunals are developing more sophisticated approaches to determin-
ing sentence. A typology of aggravating and mitigating factors has emerged.
However, despite these steps toward greater standardization, the sentencing
practice of international institutions remains confusing, disparate, inconsis-
tent, and erratic; it gives rise to distributive inequities. The sanction imposed
on extraordinary international criminals largely remains little more than an
afterthought to the closure purportedly obtained by the conviction. Ultimately,
relegating punishment to the status of an afterthought demeans its value and
meaning.
In the area of punishment and sentencing, international tribunals very closely
borrow the rationalities of ordinary domestic criminal law “ in particular, retribu-
tion and general deterrence “ without effectively appreciating the fundamental
differences between perpetrators of extraordinary international crimes such as
mass atrocity and perpetrators of ordinary domestic crimes in ordinary times.
Whereas retribution is backward-looking, in that it punishes the criminal to
the extent of the criminal™s desert, deterrence theories are forward-looking and
consequential in that they punish so that the convict, or others in the case of
general deterrence, will be dissuaded by fear of punishment from offending
or reoffending. Expressivism is a tertiary goal that surfaces in the international
12 Atrocity, Punishment, and International Law

jurisprudence. Expressivist theories extol the messaging value of punishment to
af¬rm respect for law, reinforce a moral consensus, narrate history, and educate
the public. Expressivism punishes to strengthen faith in rule of law among the
public, as opposed to punishing because the perpetrator deserves it or because
potential perpetrators will be deterred by fear of it. Other aspirations for punish-
ment sporadically emerge in the jurisprudence, although these are subaltern.
These other aspirations, to which reference is neither patterned nor consistent,
include reconciliation, reintegration, and rehabilitation.73
The wave of institution-building in the international legal order has in¬‚u-
enced national and local legal orders as well. Many of these have elected to
proscribe extraordinary international crimes. A particularly fertile area of com-
parative analysis is the study of those areas in which atrocity has become judi-
cialized transsystemically at multiple levels through multiple institutions. I con-
sider these multivalent sites of judicialization with regard to three atrocities:
the 1994 Rwandan genocide, ethnic cleansing in the Balkans throughout the
1990s, and the Nazi Holocaust. In Chapter 4, I review the activities of national
and local legal institutions sharing contacts with these three atrocities. I devote
considerable attention to Rwanda because of my legal work there, the broad
implementation of neotraditional gacaca dispute resolution, and the issuance
of a large number of sentences by the domestic court system.
The data on punishment and sentencing reveal greater diversity in terms of
the type of sanction at the national and local levels (which includes community
service, incarceration, lustration, the death penalty, and compensation) than
that available internationally. Moreover, with speci¬c regard to incarceration,
national and local institutions sentence perpetrators to a broader range of terms
than their international counterparts. However, when it comes to penology,
national and local institutions for the most part parrot the goal of retribution (and,
secondarily, general deterrence), even where this goal may not be indigenous.
Aggravating and mitigating factors track those of the ordinary criminal law of
dominant states quite closely.
My review of national and local jurisdictions suggests the ebb and ¬‚ow of
powerful currents of legal transplant.74 Legal processes operative in dominant
national legal systems can technically meld (for example, civil law and common
law methodologies), then migrate into the international order and there crystal-
lize into the normalized methods of international law. These transplants then
come full circle through their subsequent return and superimposition upon
multiple legal systems at the national and local levels, including diverse dis-
empowered systems, through vertical applications of authority. One funnel for
these applications is the primacy of certain international legal institutions, such
as the ICTY and ICTR, over domestic institutions. Both the ICTR and ICTY
are to wind down their trial operations by the end of this decade. However,
this goal only becomes attainable should the ICTR and ICTY ¬‚ex their power
to refer cases to national courts. The referral process prompts national legal
topographies to absorb internationalized liberal modalities of criminal process
and punishment as preferred responses to mass atrocity. Furthermore, although
Extraordinary Crime and Ordinary Punishment: An Overview 13

the ICC is to be complementary to national initiatives,75 I examine “ through
the vehicle of two self-referrals the ICC has received (from Uganda and the
Democratic Republic of the Congo) “ how it also exerts conformist pressures
on national and, in particular, local accountability mechanisms.
Although national institutions still punish with a broader qualitative vari-
ety of sanction and, in cases of incarceration, a broader quantitative range of
length of imprisonment, I predict, as the modalities of international tribunals
continue to enter national legal frameworks through referrals, complementar-
ity, and other conduits,76 that both the variety of sanction and range of sen-
tences available within national frameworks increasingly will shrink. In terms
of imprisonment, for example, I foresee that national institutions will raise min-
imum sentences “ and embed duties to prosecute that might disfavor alter-
nate modalities of accountability “ while lowering maximum sentences and,
in addition, eliminating the death penalty. In particular, conformist pressures
are placed on local approaches, such as restorative methodologies. The situa-
tion of traditional dispute resolution “ gacaca “ in Rwanda is a telling exam-
ple. Although the ICC offers potential for greater inclusiveness, which I con-
sider, as a whole international criminal law remains distant from restorative
and reintegrative methodologies, both in theory as well as in practice, which I
argue weakens its effectiveness and meaning in many places directly af¬‚icted by
atrocity.
Ironically, this transplant from the international to the national may in fact
be welcomed by many state actors. Particularly in transitional contexts, not all
of which match the idealized path to greater democratization, state actors often
crave and seek out the consolidation of power occasioned by punitive crim-
inal law frameworks instead of the more free-ranging and authority-diffusing
modalities of justice that percolate bottom-up from local constituencies. In this
vein, international modalities can inform center-periphery relationships in tran-
sitional societies in a way that consolidates centralized state authority.
When aggregated, these various pressure points squeeze out local approaches
to justice, most notably those that eschew the methods and modalities domi-
nant internationally. These pressure points are proving to be of great relevance
to the structure of punishment modalities for extraordinary international crim-
inals although they have little to do with theoretical or applied determinations
regarding the actual nature of extraordinary international crime. The effect of
these legal migrations is a homogenization of process. This homogenized pro-
cess may convey limited meaning to perpetrators, victims, or bystanders. In
particular, victimological research indicates that individualized criminal trials
often do not correspond to victim preferences when pursued as the dominant
response, and certainly not when pursued exclusively.
In this analysis, I take as a baseline that there is little advantage in venerating
the local or that which otherwise differs from dominant discourse simply to pro-
mote pluralistic difference as an end in itself. Local punishment schemes, in par-
ticular of a communitarian nature, may be prone to manipulation, abuse, or arbi-
trary application. Moreover, many national legal orders are corrupt, unreliable,
14 Atrocity, Punishment, and International Law

and illegitimate; in many postcon¬‚ict societies, the industrialization of mass vio-
lence often arose as a matter of conforming to the law. International input can
ameliorate the output of national and local institutions. History boasts of many
examples of international or foreign injection of values and constitutive docu-
ments that, in turn, helped 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). The migration and transplant of
human rights documents can improve the lives of disempowered communities
that, hitherto, may have been excluded from decision making through applica-
tion of discriminatory norms. That said, history also boasts of many examples of
failed impositions, imperial projects, and cultural manipulation. In the end, just
as it is irresponsible to sentimentally venerate the local qua local, it is equally
irresponsible to venerate a process simply because it has become globalized and
thereby assume its legitimacy, effectiveness, and credibility.
In the case of international criminal law, it may be that the transplanted
nature of institutionally in¬‚icted punishment is effective precisely because it
is transplanted. In Chapter 5, I examine this contention. Ultimately, the cul-
tural speci¬city of the implicated traditions gives me reason for pause, especially
because the operation of international criminal tribunals largely takes place out-
side of the West. The implementation of international criminal law therefore
risks a democratic de¬cit by excluding local values and personalities, which is
somewhat ironic because the excluded local often represents the precise popu-
lation that was most traumatized by the criminality. Victims and survivors have
greater access to the ICC than to other international criminal tribunals. The
ICC offers opportunities for representatives of af¬‚icted populations to share their
views and concerns, even at the investigatory stage. However, these opportuni-
ties, which I explore further in Chapter 5, are modest; moreover, they already
have been subject to contestation and tension among prosecutors, victims, and
judges.77
In contemporary cases, the application of the modalities of international
criminal law has externalized justice from the communities directly ravaged
by atrocity. Until these modalities become adapted to demonstrate greater
sensitivity to and inclusiveness of the local, phenomena of externalized jus-
tice shall continue. Although international criminal justice institutions con-
cern themselves with a small number of defendants who share the greatest
responsibility for an atrocity, these institutions deeply in¬‚uence the fabric of
national and local legal orders that may aspire to hold accountable a vastly
larger group of lower-level offenders. In the end, it seems that some of the
shortcomings of law and development movements “ such as exclusion of local
involvement, top-down law reform, the imposition of alien legal process, and
the devaluing of indigenous customs “ reappear in the implementation of inter-
national criminal law. Although local practices at times admittedly are problem-
atic, international lawyers should think hard about how to accommodate their
potential.
Extraordinary Crime and Ordinary Punishment: An Overview 15


(iv) deconstruction: the disconnect between
aspirations of punishment and realities of sentence
Chapter 6 explores the three central theoretical justi¬cations “ retribution, deter-
rence, and expressivism “ that have been proffered for punishing perpetrators of
atrocity at various jurisdictional levels. I observe disconnects between the effects
of sentencing and retributive and deterrent aspirations. Expressivism, too, faces
operational challenges “ but presents a more viable penological justi¬cation.
Although retributive theory has many shades, these share in common the
precept that the criminal deserves punishment proportionate to the gravity of the
offense.78 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? Can an architect, or tool, of
mass atrocity ever receive just deserts?
The data presented in Chapters 3 and 4 reveal 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 ordi-
nary crime. Some positive law instruments at 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 indicates
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 atrocity cannot be re¬‚ected
in retributive punishment owing to human rights standards, which cabin the
range of sanction.79 In particular, these standards limit the amount of pain that
institutions can in¬‚ict upon convicts.
At the international level, there are inconsistencies in terms of the quantum of
punishment meted out to similarly situated offenders within institutions and also
among institutions. These inconsistencies arise from the broad discretion that is
accorded to international judges and the lack of a sentencing heuristic.80 At the
national level, there is, in the aggregate, a wider variety of sanction and, in cases
of incarceration, a wider range of quantum of sentence. The wider variety and
range of sanction, which give rise to considerable unpredictability in sentencing,
arise from a number of sources. Included among these are political concerns that
can weaken the ability of domestic prosecutors to bring charges in transitional
situations that, as Mark Osiel documents,81 often involve amnesties. Although
these political concerns may satisfy other potential goals, such as reconciliation,
peace, and the promotion of democratic legitimacy, they operate in tension
with retribution. At the other end of the spectrum, certain national institutions
sentence more harshly than international institutions (and even order the death
penalty), offer conditions of imprisonment that are more onerous, permit more
16 Atrocity, Punishment, and International Law

limited access to conditional release, or sanction simultaneously through diverse
areas of law (for example, civil damages awards, although these are largely uncol-
lected). The fact that national institutions may punish offenders more harshly
than international institutions also 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, ostensibly more deserving of harsher punishment. Although there are
situations where the stigmatizing value of punishment by international criminal
tribunals is greater than that of national institutions, and might outweigh the
reduced pain of a shorter and more comfortable prison term, research surveys
reveal that there are other situations where there is no perception of enhanced
stigma.82
A further challenge to the retributive value of punishment at both the national
and international levels is the avid procedural incorporation of plea bargains in
cases of extraordinary international crime. Plea bargains involve the prosecutor
and defendant negotiating an agreement in which the defendant self-convicts.
In some cases, the prosecutor agrees to drop certain charges as part of the
exchange (this is called charge bargaining). It is generally the case that the
court or tribunal with jurisdiction will have to approve the plea agreement. The
court or tribunal generally is under no obligation to adhere to the negotiated
sentencing range. Independent curial review thereby provides some oversight,
but also injects uncertainty. Regardless of the speci¬c form of the plea bargain,
these exchanges disconnect punishment from desert or gravity and often render
it contingent on what the convict knows and who else the convict is willing to
implicate. Paradoxically, plea bargaining is generally available for extraordinary
international crimes at all levels of judicialization, even though in many national
jurisdictions it is not possible for serious cases of ordinary crime. The fact that
plea bargains are readily available for atrocity crimes, but not available in many
jurisdictions for serious ordinary crimes, weakens the purportedly enhanced
retributive value of punishing atrocity crimes. To be sure, there are many reasons
that favor plea bargaining for atrocity crimes. However, plea bargains intersect
tensely with retributive aspirations.
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 speci¬c deterrence in the transsystemic
jurisprudence,83 general deterrence largely remains the focus. General deter-
rence posits that if one person is punished, this punishment 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 social engineering
function.
To this end, it makes sense to consider empirical evidence whether poten-
tial extraordinary international criminals would be deterred by the punishment
of others following criminal trials. There are scattered anecdotal reports of
deterrence.84 However, no systematized or conclusive evidence of discernible
deterrent effect has yet been proffered. In any event, any anecdotal research
Extraordinary Crime and Ordinary Punishment: An Overview 17

must take into account the reality that atrocity has continued to occur in 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 judicial institu-
tions. We can have faith and hope that deterrence works. Chapter 6 explores
two challenges to this faith. The ¬rst is the reality that there is a very low “ albeit,
happily, growing “ probability that perpetrators actually will be taken into the
custody of authorities that pursue accountability. The second is the assumption
of perpetrator rationality, or at least a certain degree of rationality, amid the cat-
aclysm 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-bene¬t analysis and thereby control their behavior. The
work of anthropologists and the research of journalists in con¬‚ict zones, both of
which I examine, suggests a much more nuanced picture of human agency.
Expressivism is the third rationale for punishment that emerges jurispruden-
tially in cases of extraordinary international crime. It occupies a less in¬‚uential
place than retribution or deterrence. Diane Marie Amann notes that expressivist
theories look at the messaging effect of trials, verdict, and punishment.85 Expres-
sivists maintain that punishment af¬rms the value of law, strengthens social
solidarity, and incubates a moral consensus among the public.86 For expres-
sivists, trials and punishment also serve powerful pedagogical roles. Trials nar-
rate events “ publicly “ and then impose punishment on the guilty in a manner
that can shame and stigmatize.87 The result is an intensely dramaturgical pro-
cess that tells a story. The performance aspect is particularly elevated for leaders
and propagandists of atrocity “ public ¬gures known to many and before whom
many have trembled. But performativity also can arise through prosecution of
the small fry, insofar as atrocity involves many local narratives. In some cases,
the expressive value of storytelling is enhanced when it takes the form of judi-
cial pronouncement, which is cloaked in a mantle of authority, and occurs
through rules of evidence, which can intone an aura of reliable impartiality.
Consequently, although it seems a reach for liberal legalist punishment to exact
retribution or deter individuals from killing in cataclysmic times by instilling
a fear of getting caught, punishment bears greater promise to educate future
generations about the effects of extreme evil and edify a moral consensus that
repudiates discrimination-based violence and those who peddle in it. To this
end, I believe expressivism has greater viability than deterrence or retribution
as a basis for a penology of extraordinary international crime. Assuredly, 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.
That said, the expressive goals of punishment are fragile. Their attainment
is jeopardized by the selectivity and formalism of legal process. The historical
narrative can become crimped by recourse, animated by managerial concerns,
to prosecutorial strategizing and plea bargaining (in particular, charge bargain-
ing). Gaps between international criminal process and expectations of local
18 Atrocity, Punishment, and International Law

populations, in particular non-Western populations, may trigger an external-
ization of justice, thereby diminishing the prophylactic value of verdict and
punishment. In certain contexts, restorative methodologies anchored in local
expectations serve as clearer conduits for the elaboration of the truth.
In conclusion, liberal prosecutorial and correctional modalities make very
modest gains in terms of actualizing retributive and deterrent goals; they do
somewhat better at actualizing expressive goals. In the aggregate, though, these
modalities trigger a palpable disconnect. This disconnect, which operates at the
level of international institutions as well as at the level of conformist domestic
institutions, suggests that the preference for incarceration following what liberal
international lawyers deem to be a procedurally acceptable trial on the whole
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.


(v) . . . and reconstitution
But what then? And where now? In Chapter 7, I begin this conversation by
proposing two synergistic reforms to wean the pursuit of accountability for per-
petrators of extreme evil from a selective, and ill-¬tting, liberal criminal law
model.
The ¬rst reform is vertical. I propose to recalibrate the application of author-
ity among extant criminal justice institutions at multiple regulatory sites (the
international, national, and local). Currently, as Chapter 5 explores, these appli-
cations of authority radiate downward from the international. Instead, I propose
reform to better welcome bottom-up approaches to procedure and sanction.
Insofar as local and national accountability mechanisms are potentially abu-
sive, corrupt, illegitimate, and susceptible to machination, there is a need for
gatekeeping. Accordingly, I propose that in situ justice modalities be accorded
a presumption of deference, but that this presumption be quali¬ed. I outline
six important criteria to qualify the presumption in favor of deference and,
thereby, ful¬ll this gatekeeping function. I apply these criteria to three case
studies: Afghanistan (customary mechanisms to sanction human rights abuses),
Iraq (the Iraqi High Tribunal™s prosecution of Ba™ath leaders), and the Sudan
(proceedings of the Sudanese government to respond to atrocity in Darfur).
Furthermore, I distinguish quali¬ed deference from complementarity and also
from doctrines such as subsidiarity and margin of appreciation.
The second reform is horizontal. Here, I propose a diversi¬cation in which the
hold of the criminal law paradigm on the accountability process yields through
a two-step process: initially, to integrate approaches to accountability offered
by law generally (such as judicialized civil sanctions or group-based public ser-
vice) and, subsequently, to involve quasilegal or fully extralegal accountability
mechanisms such as truth commissions, legislative reparations, public inquiries,
transparency, and the politics of commemoration. I hope to develop coordinated
application of modalities of sanction that more closely track the peculiarities of
Extraordinary Crime and Ordinary Punishment: An Overview 19

collective violence. The goal of horizontal reform is to advance from law to
justice: initially, by moving international criminal law to a capacious law of
atrocity and, ultimately, to an enterprise that constructively incorporates extra-
judicial initiatives. If operationalized, these reforms raise the possibility that
a larger number of individuals could become implicated in the justice pro-
cess, thereby inviting a broader conversation regarding the viability of collective
responsibility for collective criminality. Chapter 7 considers this dif¬cult and
controversial issue “ in theory as well as in practice “ through the lens of the liti-
gation that Bosnia and Herzegovina has initiated against Serbia and Montenegro
(now Serbia)88 before the International Court of Justice.
These vertical and horizontal reforms can operate conjunctively to promote a
pluralistic implementation of accountability for mass atrocity that moves beyond
ordinary criminal law designed by Western states for common criminals.
One implication of these reforms is that sanction might look different and
assume different calibrations in each case of atrocity. In other words, the process
of justice might look different in Sierra Leone than it does in Cambodia, and the
process of justice in Cambodia might differ from that in Kosovo. This may lead
to some messiness in terms of the pursuit of justice; it may also create a need for
international lawyers to become more familiar with comparative methodologies,
particularly from the developing world. In short, I envision a penology that gains
its independence through an embrace of procedural diversity. Is such a position
tenable in light of my understanding of discrimination-based atrocity as universal
extreme evil?
Although I accept that a case can be made for the universality of the wrong-
doing (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 extant modalities of international criminal law as the method to secure these
universal accountability goals. It is crucial to separate the substantive goals at
hand, namely the condemnation of extreme evil, from the process regarding
how this condemnation is to be operationalized and the institutions where this
process occurs. In Chapter 7, I defend the proposition that certain substantive
universals, such as accountability for extreme evil, can be attainable through
diverse procedural mechanisms. In this regard, I draw from cosmopolitan theory.
Cosmopolitanism has come to the fore in discussions over multiculturalism in
domestic political and educational institutions. It has informed global debates
over the distribution of resources. Its application to international criminal law,
however, is less settled “ albeit deeply promising.
Cosmopolitans, from the ancient Stoics and Cynics to their contemporary
counterparts, share the belief that all human beings belong to a single moral
community. Cosmopolitans differ, however, regarding the values intrinsic to this
shared community. Some cosmopolitans argue that there is a very thick set of
shared values and that this set should expand; whereas other cosmopolitans claim
a thin set and are more agnostic regarding the question whether the content of
this thin set should expand. One important issue for cosmopolitans is the place
of local, patriotic, and national af¬liations in human identity. All cosmopolitans
20 Atrocity, Punishment, and International Law

acknowledge the existence of these af¬liations, although contemporary cos-
mopolitans engage with them with particular vivacity. I consider the approaches
of a broad array of cosmopolitans “ ranging from the Stoics and Cynics to con-
temporary writers such as Martha Nussbaum, David Hollinger, David Held,
Kok-Chor Tan, Kwame Anthony Appiah, and Paul Schiff Berman “ to the place
of local af¬liations. Overall, I conclude that these cosmopolitans welcome mul-
tiple af¬liations and overlapping associations. There are certain transnational
commonalities intrinsic to human existence, but other aspects of the human
condition remain best expressed and understood at the local level by the indi-
vidual among his or her fellow citizens and neighbors.
Insofar as the model I propose recognizes the universality of our shared mem-
bership in a moral community that condemns great evil and entitles victims
thereof “ in particular those most directly affected “ to accountability, it aligns
with cosmopolitanism™s basic precept. On the other hand, the model adopts cos-
mopolitanism™s acceptance of the richness of local identi¬cations, particularly
when this richness helps promote justice. The notion of diverse procedure for
universal wrongdoing thereby ¬ts within a cosmopolitan theory of law, although
it certainly tends toward the pluralist end of the continuum. My model, there-
fore, is one of “cosmopolitan pluralism.”89
Admittedly, there is an intrinsic tension within cosmopolitan pluralism in
terms of mediating the universal and particular. However, it is because of this
tension that cosmopolitan pluralism seems particularly well suited as a frame-
work for emergent ¬elds, such as international criminal law, that must ful¬ll
dif¬cult balancing acts between global governance and local legitimacy. Cos-
mopolitan pluralism justi¬es a position that holds that, although genocide and
discrimination-based crimes against humanity are universal evils, they can be
coherently sanctioned in diverse manners that might instantiate themselves dif-
ferently in light of the distinctive social geographies of various atrocities. One
advantage of cosmopolitan pluralist reforms is that they recognize that each
occurrence of discrimination-based atrocity is somewhat different and, instead
of ¬‚attening difference through application of one-size-¬ts-all process, endeavor
to ¬ne-tune process without undermining the expressive value of sanctioning
universal wrongdoing.
Consequently, cosmopolitan pluralism does not demand the development
of a singular vision of punishment for extraordinary international criminals that
becomes universally applicable to all extraordinary international criminals every-
where. Assuredly, the differences between the perpetrator of ordinary common
crime and the extraordinary international criminal suggest the limitations that
inhere in transposing from our experiences with the former to develop a penol-
ogy for the latter. Recognizing these limitations is important, insofar as it can
push us toward a reconstructive direction. Such a transposition becomes partic-
ularly problematic when it derives from a circumscribed set of experiences with
ordinary criminals “ namely the experiences of liberal criminal law “ which then
become mapped onto culturally diverse contexts. This does not mean, however,
that domestic law has nothing to offer in terms of regulating atrocity. Rather, until
Extraordinary Crime and Ordinary Punishment: An Overview 21

the voices of af¬‚icted populations are more clearly heard, channeled through
bottom-up perspectives, and loosened from the primacy or complementarity of
internationalist visions, we simply do not know exactly what values pertaining to
the punishment of enemies of humankind “ if any “ truly are shared among us
all. Herein lie the conversational beginnings of the formulation of a sui generis
penology for mass violence.
In sum, extraordinary international crimes are characterized, to varying
degrees, by their connived collective elements. Downplaying this character-
istic inhibits the emergence of effective penological and criminological goals. It
seems that international lawyers have drained the collective nature of the crimes
(even though they simultaneously pronounce their extraordinariness) so as to
¬t them within comforting procedural frameworks. A more challenging, albeit
highly productive, task would be to discuss methodologies that recognize that
the crimes are extraordinary precisely because of their collective tendencies. One
approach to this task is to pursue an accretion of various layers of accountability,
instead of the reductionism inherent in boiling accountability down to simple
liberal criminal law terminologies. Insofar as cosmopolitan pluralism welcomes
this horizontal accretion, it permits the extraordinary international criminal to
be treated independently, and not as an adjunct to the common criminal.
There is some room for adversarial criminal trials within the justice matrix.
The value of trials, though, best ¬‚ourishes when trials constitute a means to
justice, not the means to justice. Consequently, I posit that the value of pros-
ecutions, for example those undertaken by the ICC, will increase if the ICC
operates as one of many entities pursuing accountability in a diverse system
where power is diffused polycentrically. If alternate, and overlapping, remedies
were to become normalized and practically accessible, the political pressures
for criminal convictions ironically would diminish.
Whereas Chapter 7 considers longer-term reconstitution of the ¬eld of inter-
national criminal justice engendered by cosmopolitan pluralism, Chapter 8
offers short-term reforms to extant international criminal law institutions. By
proposing short-term reforms I assume the hard-won place of the ICC, and
other tribunals, within the international sociolegal order; I also assume that
these institutions are capable of evolution. Over time, it is through a process
of building upon past experiences through a series of imperfect reforms and
halting advances that the project of international criminal justice will advance.
In this regard, an important step is to resist the allure of parsimonious solutions
to terribly complex phenomena of communal violence and human agency.
The complexities of regulating atrocity and promoting justice in its aftermath
underscore that no single reform is curative.


(vi) conclusion
International criminal law has come a very long way since Nuremberg. Its rapid
expansion is all the more remarkable considering that, in the arc of human his-
tory, the six decades since Nuremberg amount to little more than the blink of an
22 Atrocity, Punishment, and International Law

eye. The institutions implementing international criminal law are the product
of considerable effort, relentless persistence, and great inspiration. These insti-
tutions would not have arisen but for the incredible energy, passion, and com-
mitment of international lawyers and human rights activists. In short order,
these institutions have become mainstreamed as elements of postcon¬‚ict transi-
tion. The ICC now is a permanent ¬xture in global affairs. The mainstreaming
of these institutions, however, gives rise to nettlesome questions pertaining to
effectiveness. The time has come for international criminal law as a discipline to
move beyond nascence and to welcome a second, and even more challenging,
stage: that of reappraisal, maturation, and self-improvement. I intend this book
to form part of this second-generation dialogue.
chapter 2


Conformity and Deviance




History teaches that there is something novel in pursuing justice “ instead of
vengeance “ in the aftermath of atrocity. This is a new endeavor. It is bold, fresh,
exciting, at times anxious, and certainly lacking in experience. International
criminal lawyers have stepped into this experiential void.
One way for the architects of international criminal process, most of whom
are Western or Western-trained, to assuage anxiety is to turn to that which is
familiar to them: namely, domestic criminal and human rights frameworks in
liberal states. Even though experiences with these frameworks are not easily
transferable to mass atrocity,1 it is somehow easier to replay preexisting doctrinal
frameworks rather than develop new ones. The fact that atrocity prosecutions
are reactive to cataclysmic events “ sometimes expediently so “ makes them
even more prone to claim a quick-¬x identity.2
It thus becomes understandable why the structure, rules, and methodologies
of the process and punishment of extraordinary international criminality largely
constitute a transplant of the structure, rules, and methodologies of ordinary
criminal process and punishment in those states that dominate the international
order. Assuredly, the transplant is not a perfectly repotted plant. Certain adap-
tations have taken place along the way. Some of these, for example regarding
the laws of evidence, arose in part in response to the dif¬culties in convicting
individuals for group crimes.3 Yet, as I explore in this chapter, these adapta-
tions are narrow, programmatic, and at times embarrassing to the institutions
that promulgate them. Other adaptations include often hasty incorporation of
notions of transitional justice that, at times, can be at cross-purposes with the
clarity of criminal law. However, all things considered, “[b]ecause of the power
of the United States, along with other Western countries, in the international

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