. 10
( 11)


144. c
ber, Dec. 18, 2003).
Prosecutor v. Raˇevi´ and Todovi´ , Case No. IT-97-25/1-PT, ¶ 44 (ICTY Referral Bench,
145. sc c
July 8, 2005).
146. Sieber Report, op. cit., at 31.
147. Id. at 52.
148. The Montenegran electoral result might encourage a similar outcome in Kosovo which,
from the Serbian perspective, would be much more controversial.
149. Sieber Report, op. cit., at 53“54.
150. Id. at 56“57.
151. Bosnia and Herzegovina Criminal Code, art. 48.
152. Id. art. 39.
153. Sieber Report, op. cit., at 37.
154. Id. at 37“38.
Prosecutor v. Mejaki´ et al., Case No. IT-02-65-T, ¶ 59 (ICTY Referral Bench, July 20,
155. c
156. Sieber Report, op. cit., at 47“48.
157. Organization for Security and Co-operation in Europe, Department of Human Rights
and Rule of Law Legal System Monitoring Section, Kosovo: Review of the Criminal
Justice System (April 2003“October 2004) Crime, Detention, and Punishment 47
n.187 (2004) [hereinafter Kosovo: Review (2004)].
158. Id. at 11.
159. Id. at 6, 34, 44.
160. Id. at 34 n.115.
161. Id. (calling the Kanun “vengeful”).
162. Organization for Security and Cooperation in Europe, Human Rights Department, War
Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress
and Obstacles 12 (March 2005) (document on ¬le with the author) [hereinafter War
Crimes Trials 2005]; Kosovo: Review (2004), op. cit., at 13; Organization for Security
and Cooperation in Europe, Plea Agreements in Bosnia and Herzegovina 1 (2005)
[hereinafter Plea Agreements] (noting that plea agreements, a “common law based
mechanism,” have become “one of the core mechanisms within the criminal procedure of
Bosnia and Herzegovina since its introduction in 2003” in a broad variety of cases ranging
from minor trespassing offenses to crimes against humanity).
163. Plea Agreements, op. cit., at 5.
164. Id. at 20, 26, 28 (reporting on the use of plea bargains for both ordinary and extraordinary
offenses, but noting that in Bosnia and Herzegovina plea agreements have been used in
four war crimes cases and that these generally did not require cooperation on the part of
the defendant).
165. Sieber Report, op. cit., at 68.
166. Id.
167. Id. at 66, 69, 76.
168. Id. at 75.
169. War Crimes Trials 2005, op. cit.
Notes to Pages 105“108 253

170. Id. at 11. Information on the War Crimes Chamber is online, available at http://www.
171. BBC, War crimes court opens in Bosnia, available at http://news.bbc.co.uk/2/hi/europe/
172. War Crimes Trials 2005, op. cit., at ii.
173. Id. at i.
174. Id. at 6.
175. Id. at i. Courts in Bosnia and Herzegovina continue to issue judgments for extraordinary
international crimes that postdate the 2005 OSCE Report. In January 2006, a Bosnian
court sentenced a former Muslim soldier to fourteen years™ imprisonment for killing Croat
civilians during the Bosnian Wars. Late in 2005, a Bosnian Serb court sentenced three
former Serb police of¬cers to up to twenty years™ imprisonment for the murders of Muslim
civilians in 1994. On February 11, 2005, a Bosnian Serb court acquitted eleven Bosnian Serb
police of¬cers on war crimes charges, leading to criticism by a number of human rights
groups. Humanitarian Law Center, Press Release, War Crimes Trials Before National
Courts, First war crimes trial in Republika Srpska (March 20, 2005).
176. War Crimes Trials 2005, op. cit., at ii.
177. Id.
178. Compiled from case information id. at 52“56.
179. E-mail from Ernesto Kiza, Max-Planck Institut, to Mark Drumbl, August 23, 2005 (on ¬le
with the author and cited with permission).
180. Id.
181. Id.
182. Id.
183. See, e.g., Associated Press, Prosecutors welcome Canada™s ruling to extradite Kosovo war
crimes suspect (September 23, 2005) (reporting that a decision by Canadian authorities to
extradite a Serb paramilitary soldier to Serbia to face trial is a “show of con¬dence” in the
Serb judicial system).
184. BBC News, Serbs jailed for Vukovar massacre (December 12, 2005), available at http://news.
185. BBC, Serb video ˜executioners™ charged (October 7, 2005), available at http://news.bbc.
co.uk/2/hi/europe/4320504.stm (reporting that ¬ve former Serbian policemen from the
notorious Scorpions unit have been charged with murder in the 1995 Srebrenica massacre).
186. Nicholas Wood, Video of Serbs in Srebrenica Massacre Leads to Arrests, N.Y. Times
(June 3, 2005) (citing an opinion poll that showed that over 50 percent of respon-
dents did not know about war crimes in Bosnia or did not believe they had taken
187. Humanitarian Law Center, Press Release, Serbia Is Not Doing Enough To Ful¬l Its Obli-
gations Towards The Victims Of Armed Con¬‚icts In The Former Yugoslavia (December 10,
188. Organization for Security and Cooperation in Europe Mission to Croatia, Background
Report: Domestic War Crimes Trials 2004 3, 10“11 (April 26, 2005) [hereinafter Back-
ground Report 2005].
189. Organization for Security and Cooperation in Europe Mission to Croatia, Supplementary
Report: War Crime Proceedings in Croatia and Findings from Trial Monitoring
(June 22, 2004) [hereinafter Supplementary Report].
190. See, e.g., Background Report 2005, op. cit.
191. Id. at 3.
192. Id. at 4.
193. Id. at 18.
194. Id. at 17, 31.
195. OSCE Mission to Croatia, Domestic War Crimes Trials, available at http://www.osce.org/
254 Notes to Pages 108“110

196. Background Report 2005, op. cit., at 4.
197. Id. at 11, 14. Some trials proceeded in absentia. Id. at 40.
198. Id. at 14.
199. Id. at 36 (citing article 38 of the 1993 Criminal Code).
200. Id. at 15, 36. In 2005 Croatian courts issued higher sentences. For example, in December
2005 a Croatian court sentenced an ethnic Serb paramilitary member to ¬fteen years for
participating in the killings of six Bosnian men at Srebrenica.
201. Id. at 48.
202. Supplementary Report, op. cit., at 11.
203. Organization for Security and Cooperation in Europe Mission to Croatia, Background
Report: Domestic War Crimes Trials 2003 24 (2004).
204. Id.
205. Organization for Security and Cooperation in Europe Mission to Croatia, Background
Report: Domestic War Crimes Trials 2002 19 (2003).
206. Background Report 2005, op. cit., at 36.
207. Id. at 36“37, 39 (all mitigating factors discussed).
208. Id. at 37.
209. Id. at 37“38.
210. Prosecutor v. Branko Stankovi´ , Osijek County Court K 50/02, September 9, 2002, con-
¬rmed by the Supreme Court, I Kz 878/02“5 (February 4, 2003).
211. Prosecutor v. Milos Loncar, K-18/02“110, conviction con¬rmed by the Supreme Court, I Kz
791/02“6, (May 6, 2005).
212. Background Report 2005, op. cit., at 38“39.
213. Id. at 39.
214. Press Release, OSCE Mission Says Domestic War Crimes Trials Have Improved in Croatia
but More Progress Needed, available at http://www.osce.org/item/14055.html?print = 1 (not-
ing particular improvements regarding whether a Serb war crime defendant will receive a
fair trial before the Croatian judiciary, but also expressing concerns over unsubstantiated
proceedings against Serbs, in absentia trials, unwarranted arrests, and the continuing high
error rate in trial court verdicts triggering reversals from the Supreme Court). See also
Associated Press, Croatian Court Acquits Serb Prison Guard of War Crimes (October 31,
2005) (on ¬le with the author) (discussing case of Jovan Petkovi´ , a former Serb prison
guard accused of raping and subjecting a female inmate to psychological torture during
her incarceration; Petkovi´ had been sentenced in absentia to twelve years, then was extra-
dited from Switzerland in 2005; on October 31, 2005, he was acquitted by a Croatian court
of war crimes charges because the key witness retracted parts of her allegations in the retrial
held in Croatia).
215. ¨
Re J, IV-26/96, Higher Regional Court at Dusseldorf (September 26, 1997); judgment
subsequently con¬rmed by the German Federal Constitutional Court, BverfG, December
12, 2000, 2BvR 1290/99 (con¬rming the constitutionality of sentencing by German courts
of individuals convicted of genocide in Bosnia). Jorgi´ was found guilty of eleven cases
of genocide, in conjunction with several cases of dangerous bodily harm, deprivation of
liberty and/or murder, but in all cases as acting as an accessory to these crimes.
216. BayObLG, Judgment, December 15, 1999, 6 St 1/99.
217. BayObLG, Judgment, May 23, 1997, 3 St 20/06, NJW 1998 392. For commentary on the
Djaji´ case, see Christoph J. Safferling, International Decision, Prosecutor v. Djaji´ , No. 20/
c c
96, Supreme Court of Bavaria, 3d Strafsenat, May 23, 1997, 92 Am. J. Int™l L. 528 (1998).
218. ¨
Higher Regional Court at Dusseldorf (Nov. 29, 1999), 2 StE 6/97.
219. ¨
Re J, IV-26/96, Higher Regional Court at Dusseldorf (September 26, 1997).
220. Id.
221. Prosecution v. Sari´ , Eastern Division of High Court (Third Chamber) (November 25, 1994)
(judgment con¬rmed by the Danish Supreme Court on August 15, 1995, and a subsequent
Notes to Pages 110“113 255

application to the European Court of Human Rights was declared inadmissible on February
2, 1999).
222. The judgment reports that the “jury were in agreement on an additional question relating
to the possibility of increasing the sentence.” Id. at 5. Sari´ was also permanently extradited
from Denmark and, owing to a mental condition that developed following the commission
of the crimes, ordered to be hospitalized until the sentence could be served. Id. at 5“6.
223. Carlos Santiago Nino, Radical Evil on Trial 13 (1996).
224. Id. at 12. Collaboration and national indignity were created as new offenses following the
liberation of France and were not categorized as extraordinary international crimes.
225. Id. at 11.
226. Id. at 12.
227. Mauthausen Trial (March 29“May 13, 1946), information available at http://www.jewish-
virtuallibrary.org/jsource/Holocaust/WarCrime42.html. The Mauthausen trial was held by
the American Military Tribunal sitting in the former Dachau concentration camp.
228. Nino, op. cit., at 9 (reporting, with regard to severity of sentence, research by John H.
Herz that “in the more than 1,000 cases tried between 1959 and 1969, fewer than 100 of the
convicted Nazi criminals received life sentences and less than 300 received limited terms”
and that “[i]n the following twelve years, there were 6,000 convictions, but only 157 were
for life imprisonment”).
229. Id. at 10.
230. Yamashita v. Styer (In re Yamashita), 327 U.S. 1 (1946) (U.S. Supreme Court af¬rming death
sentence issued by a military commission in the Philippines against Japanese General
Yamashita for war crimes, but not commenting on the penological purpose or rationale of
the sentence).
231. Trial of Hans Albin Rauter (Netherlands Special Court in The Hague, May 4, 1948, and
Netherlands Special Court of Cassation, January 12, 1949), reprinted at 14 Law Reports
of Trials of War Criminals 89, 109 (1949).
232. Id. at 110.
233. ¨
See, e.g., Trial of Hauptsturmfuhrer Amon Leopold Goeth (Supreme National Tribunal
of Poland, Cracow, 1946), reprinted at 7 Law Reports of Trials of War Criminals 1, 4
234. 7 Law Reports of Trials of War Criminals 84, 86, 88 (1948).
235. 11 Law Reports of Trials of War Criminals 103 (1949).
236. 14 Law Reports of Trials of War Criminals 158“159 (1949).
237. The Peleus Trial (British Military Court for the Trial of War Criminals (Hamburg), 17“20
October, 1945), reprinted at 1 Law Reports of Trials of War Criminals 1, 20 (1947)
(notes on the case); see also 1 Law Reports of Trials of War Criminals 109 (1947).
238. 11 Law Reports of Trials of War Criminals 103 (1949).
239. 3 Law Reports of Trials of War Criminals 88“89 (1948). The Norwegian lawmakers
also noted that war criminals “increased their guilt by systematically committing whole
series of the most appalling crimes.” Id. at 89.
240. 3 Law Reports of Trials of War Criminals 96“97 (1948).
241. See, e.g., Trial of General von Mackensen and General Maelzer (British Military Court
(Rome), 18“30 November, 1945) reprinted at 8 Law Reports of Trials of War Criminals
1, 2 (1949) (case report stating that “[b]oth accused were found guilty and sentenced to
death by being shot. The Con¬rming Of¬cer con¬rmed the ¬ndings on both accused but
commuted both sentences to imprisonment for life.”); Trial of Albert Kesselring (British
Military Court (Venice), 17 February“6 May, 1947), reprinted at 8 Law Reports of Trials
of War Criminals 9, 12 (1949) (con¬rming of¬cer commuting death sentence to life
imprisonment); Trial of Helmuth von Ruchteschell (British Military Court (Hamburg), 5
to 21 May, 1947), reprinted at 9 Law Reports of Trials of War Criminals 82, 86 (1949)
(con¬rming of¬cer not con¬rming guilt on one of the convictions and reducing sentence
256 Notes to Pages 113“114

from ten to seven years™ imprisonment); The Peleus Trial (British Military Court for the
Trial of War Criminals (Hamburg), 17“20 October, 1945), reprinted at 1 Law Reports of
Trials of War Criminals 1, 13 (1947) (all sentences con¬rmed by Commander-in-Chief,
British Army of the Rhine); The Almelo Trial (British Military Court for the Trial of War
Criminals (Almelo), 24“26 November, 1945), reprinted at 1 Law Reports of Trials of
War Criminals 35, 41 (1947) (all sentences con¬rmed by Commander-in-Chief, British
Army of the Rhine).
242. Trial of Sergeant-Major Shigeru Ohashi and Six Others (Australian Military Court
(Rabaul), 20“23 March, 1946), reprinted at 5 Law Reports of Trials of War Crimi-
nals 25, 26 (1948).
243. Trial of Lieutenant General Kurt Maelzer (United States Military Commission (Florence,
Italy), 9“14 September, 1946), reprinted at 11 Law Reports of Trials of War Criminals
53, 53 (1949).
244. The Dachau Concentration Camp Trial (General Military Government Court of the
United States Zone, Dachau, 15 November“13 December, 1945), reprinted at 11 Law
Reports of Trials of War Criminals 5, 8 (1949). See also The Abbaye Ardenne Case
(Canadian Military Court (Aurich), 10“28 December, 1945), reprinted at 4 Law Reports
of Trials of War Criminals 97, 109 (1948) (“The Convening Authority, however, com-
muted the death sentence to one of life imprisonment, on the grounds that Meyer™s degree
of responsibility did not warrant the extreme penalty.”).
245. See, e.g., Trial of Carl Bauer et al. (Permanent Military Tribunal at Dijon, October 18, 1945),
reprinted at 8 Law Reports of Trials of War Criminals 15, 16 (1949) (recognizing that two
defendants had acted on Bauer™s orders, admitting this as an extenuating circumstance, and
sentencing them to ¬ve years™ imprisonment each). In some cases, treatment of superior
orders as going to mitigation and not to exculpation was recognized in the positive law
instruments that enabled the military or civilian proceedings. Trial of Hans Szabados
(Permanent Military Tribunal at Clermont-Ferrand, June 23, 1946), reprinted at 9 Law
Reports of Trials of War Criminals 59, 61 (1949) (notes on the case); United States
Law and Practice Concerning Trials of War Criminals by Military Commissions and
Military Government Courts, 1 Law Reports of Trials of War Criminals 120 (1947).
246. Trial of Lieutenant-General Shigeru Sawada and Three Others (United States Military
Commission (Shanghai), 27 February, 1946“15 April, 1946), reprinted at 5 Law Reports
of Trials of War Criminals 1, 7 (1948).
247. See, e.g., The Peleus Trial (British Military Court for the Trial of War Criminals (Hamburg),
17“20 October, 1945), reprinted at 1 Law Reports of Trials of War Criminals 1, 20“21
(1947) (notes on the case) (U-boat commander and medical of¬cer sentenced to death
by shooting in spite of their plea of superior orders, but mitigation found on the basis
of superior orders for another defendant sentenced to ¬fteen years™ imprisonment). In
this case, the U-boat engineer was sentenced to life imprisonment “probably” because he
opposed the order given by the commander to another accused. Id. at 21. See also Trial of
Bruns and Two Others (Eidsivating Lagmannsrett and the Supreme Court of Norway, 20
March and 3 July, 1946), reprinted at 3 Law Reports of Trials of War Criminals 15,
18 (1948).
248. The Belsen Trial (British Military Court, Luneberg, 17 September“17 November, 1945),
reprinted at 2 Law Reports of Trials of War Criminals 1, 122“125 (1947).
249. Trial of Wilhelm Gerbsch (Special Court in Amsterdam, First Chamber, April 28, 1948),
reprinted at 13 Law Reports of Trials of War Criminals 131, 132 (1949).
250. Trial of Alois and Anna Bommer and their Daughters (Permanent Military Tribunal at
Metz, February 19, 1947), reprinted at 9 Law Reports of Trials of War Criminals 62,
66 (1949) (citing provisions of the French Penal Code).
251. Trial of Willy Zuehlke (Netherlands Special Court in Amsterdam, August 3, 1948, and
the Netherlands Special Court of Cassation, December 6, 1948), reprinted at 14 Law
Reports of Trials of War Criminals 139, 141 (1949) (also noting in mitigation that the
Notes to Pages 114“118 257

illegal arrests “did not originate with the accused”). Zuehlke initially was sentenced to
seven years™ imprisonment and the Netherlands Special Court of Cassation reduced that
sentence to ¬ve years on account of its treatment of the mitigating circumstances.
252. The Jaluit Atoll Case (United States Military Commission (Marshall Islands), 7“13 Decem-
ber, 1945), reprinted at 1 Law Reports of Trials of War Criminals 71, 76 (1947) (reducing
sentence of one defendant to ten years™ imprisonment on this basis). This is an interesting
factor insofar as it can extend to the automaticity of mass atrocity in contexts of bureaucra-
tized violence.
253. The Dreierwalde Case (British Military Court (Wuppertal), 11“14 March, 1946), reprinted
at 1 Law Reports of Trials of War Criminals 81, 84 (1947).
254. The Zyklon B Case (British Military Court (Hamburg), 1“8 March 1946), reprinted at 1
Law Reports of Trials of War Criminals 93, 102 (1947).
255. Id.
256. Trial of Wilhelm Gerbsch (Special Court in Amsterdam, First Chamber, April 28, 1948),
reprinted at 13 Law Reports of Trials of War Criminals 131, 132 (1949).
257. Trial of Tanabe Koshiro (Netherlands Temporary Court-Martial (Macassar), 5 February,
1947), reprinted at 11 Law Reports of Trials of War Criminals 1, 2“4 (1949) (citing also
the notes on the case).
258. Trial of Willi Mackensen (British Military Court, Hannover, January 28, 1946), reprinted
at 11 Law Reports of Trials of War Criminals 81, 81 (1949).
259. Trial of Hans Albin Rauter (Netherlands Special Court in The Hague, May 4, 1948, and
Netherlands Special Court of Cassation, January 12, 1949), reprinted at 14 Law Reports
of Trials of War Criminals 89, 110 (1949).
260. Id. As I noted in the previous section, some national courts in the former Yugoslavia that
have sentenced perpetrators of ethnic cleansing in the 1990s may part company with these
261. Trial of Shigeki Motomura and 15 Others (Netherlands Temporary Court-Martial at Macas-
sar, July 18, 1947), reprinted at 13 Law Reports of Trials of War Criminals 138, 145 (1949).
262. Trial of Washio Awochi (Netherlands Temporary Court-Martial at Batavia, October 25,
1946), reprinted at 13 Law Reports of Trials of War Criminals 122, 125 (1949) (notes on
the case).
263. Rebecca Wittmann, Beyond Justice: The Auschwitz Trial (2005).
264. Id.
265. Personal visit, November 19, 2006.
266. Id.
267. Trial of Adolf Eichmann, Criminal Case No. 40/61, in the District Court of Jerusalem.
Id. ¶¶ 221“222. The applicable Israeli legislation excluded superior orders as a defense to
liability. In this regard it tracked Nuremberg. The court explicitly noted that the rejection
of the defense of superior orders was justi¬ed in that: “Perhaps it is not a vain hope that
the more this recognition [of the rejection of the defense] takes root in the minds of men,
the more they will refrain from following captive after criminal leaders, and then the rule
of law and order in the relations between nations will be reinforced.” Id. ¶ 220.
Id. ¶¶ 222, 226“228.
Id. ¶ 231.
Id. ¶ 235.
Id. ¶ 231.
Id. ¶¶ 241“242.
274. Trial of Adolf Eichmann in Jerusalem: Judgment Part 26/Sentence, available at
275. The State of Israel v. Adolf Eichmann (S. Ct. Israel, May 29, 1962), 36 Int™l L. Rep. 277
276. Id. at 313.
277. Id. at 339.
258 Notes to Pages 118“124

278. R. v. Sawoniuk, [2000] 2 Cr. App. Rep. 220, [2000] Crim L.R. 506 (LEXIS printout on ¬le
with the author).
279. Id. at p. 3 of LEXIS printout (on ¬le with the author).
280. Sue Clough, Killer, 78, Gets Life For War Crimes, The Telegraph (U.K.) (April 2, 1999);
BBC News, Life for War Criminal (April 1, 1999), available at http://news.bbc.co.uk/1/hi/
281. On the Barbie trial, see generally 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. Transnat™l. L. 289 (1994).
282. David Stout, Paul Touvier, 81, French War Criminal, N.Y. Times (July 18, 1996).
283. Leila Sadat Wexler, Re¬‚ections on the Trial of Vichy Collaborator Paul Touvier for Crimes
against Humanity in France, 20 L. & Soc. Inquiry 191, 209 (1995).
284. For more information regarding l™affaire Papon, see The Papon Affair: Memory and
Justice on Trial (Golan ed., 2000).
285. Touvier, in fact, was “a relatively minor ¬gure.” Sadat, Re¬‚ections on the Trial of Vichy
Collaborator Paul Touvier, op. cit., at 199.
286. The ten-year sentence was con¬rmed by the Cour de Cassation in 2004, which thereby
rejected Papon™s ¬nal appeal.
287. BBC News, Killer Nazi Prison Guard Jailed, available at http://news.bbc.co.uk/1/hi/
288. Associated Press, Joseph Schwammberger, 92, Nazi Labor Camp Commander, Dies, N.Y.
Times (December 4, 2004).
289. Franz-Norbert Piontek, Germany Jails Ex-Nazi In “Last War Crimes Trial,” Reuters Wire
Service (on ¬le with the author).
290. Sadat, Re¬‚ections on the Trial of Vichy Collaborator Paul Touvier, op. cit., at 211.
291. BBC News, Killer Nazi Prison Guard Jailed, op. cit.

5. legal mimicry
1. They do so for a variety of reasons. National agents may learn from the transnational
judicial dialogue they engage in with their international counterparts. See, e.g., Anne-
Marie Slaughter, A New World Order (2004). They may hold a good faith belief that
criminal trials constitute an effective accountability mechanism. Additionally, as discussed
in Chapter 4, certain state of¬cials may prefer centralized frameworks to consolidate power
and, hence, be attracted to prosecutorial models attached to the state or an international
organization, instead of anchored in local communities or local leaders.
2. Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War 47“48
3. Id. at 48, 81. It is important not to essentialize. There are instances of overlap between
the values promulgated by Western and non-Western legal systems; moreover, con¬‚icts
among systems are not necessarily unbridgeable. However, when the replication of Western
systems becomes a grundnorm for institutional design, any meaningful process of bridging
and integrating diffuse values may become jeopardized.
4. I do not discuss the principles that should govern the concurrent application of authority
exclusively among national institutions. That said, I recognize the possibility that modal-
ities such as extradition, and the potential assertion of jurisdiction over a suspect based
on universality (in cases when such an assertion trumps one based on territoriality or
nationality), also may have a homogenizing effect in terms of process and punishment.
Universal jurisdiction permits any court anywhere to prosecute and punish extraordinary
international criminals.
5. And, in some cases, physically distant, in that institutions are sited away from the con¬‚ict
or postcon¬‚ict society. Although referrals and complementarity are designed to mitigate
Notes to Pages 124“128 259

the negative effects of physical externalization of justice, they by de¬nition do not dissipate
methodological externalization and, in fact, may contribute to it.
6. There is a vast scholarly literature on legal transplants. See, e.g., Alan Watson, Legal
Transplants: An Approach to Comparative Law (2d ed., 1993); Pierre Legrand, The
Impossibility of “Legal Transplants,” 4 Maastricht J. European & Comp. L. (2000);
William Twining, Diffusion of Law: A Global Perspective, 49 J. Legal Pluralism 1 (2004).
7. North American Free Trade Agreement, U.S.-Canada-Mexico, 32 I.L.M. 605 (1993)
[hereinafter NAFTA]; Ari A¬lalo, Meaning, Ambiguity and Legitimacy: Judicial (Re-) Con-
struction of NAFTA Chapter 11, 25 Nw. J. Int™l L. & Bus. 279 (2005).
8. Chapter 11 provides ¬ve speci¬c kinds of protection: national treatment, most favored
nation, minimum standard of treatment, preclusion of performance requirements, and
against expropriation. See, e.g., NAFTA, op. cit., arts. 1102, 1103, 1105, 1110.
9. See, e.g., International Centre for Settlement of Investor Disputes, Case No. ARB(AF)/98/3,
The Loewen Group, Inc. v. United States, Final Award ( June 26, 2003), available at
10. A¬lalo, op. cit. Referencing the Loewen case, A¬lalo concludes that the legitimacy of the
NAFTA would be jeopardized were the arbitral panel to have found for the complainants,
inasmuch as this would too quickly have threatened the normal course of operation of the
U.S. legal system.
11. David A. Westbrook, Theorizing the Diffusion of Law: Conceptual Dif¬culties, Unstable
Imaginations, and the Effort to Think Gracefully Nonetheless, 47 Harv. Int™l L.J. 489, 490
12. Prosecutor v. Norman, Case No. SCSL-2003-08-PT, Decision on the Request by the Truth
and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel
Hinga Norman, ¶ 33 (Oct. 29, 2003).
13. Ren´ David & John E.C. Brierley, Major Legal Systems in the World Today (1985).
14. Antonio Cassese, International Criminal Law 365“88 (2003). There are also a number
of mixed national jurisdictions.
15. For example, some national common law systems permit prosecutorial appeal of acquittals
in criminal cases, while others (such as the United States) do not. International criminal
process permits prosecutorial appeal. In fact, the Appeals Chamber of the ICTY and ICTR
can substitute (and has, upon appeal, substituted), entirely new convictions or more serious
convictions (for example, as a primary perpetrator instead of a secondary perpetrator)
than what had initially been imposed at trial. See, e.g., Prosecutor v. Semanza, Case No.
ICTR-97-20-A (ICTR Appeals Chamber, May 20, 2005). In these situations, the Appeals
Chamber af¬xes sentence, instead of merely remitting a matter to the Trial Chamber for
redetermination of sentence.
16. Basil S. Markesinis, A Matter of Style, 110 Law Q. Rev. 607 (1994).
17. Cassese, op. cit., at 384; Geert-Jan Alexander Knoops, An Introduction to the Law of
International Criminal Tribunals 6 (2003).
18. Daryl A. Mundis, Book Review, 97 Am. J. Int™l L. 1012, 1013 (2003) (reviewing Richard May
& Marieke Wierda, International Criminal Evidence (2002)).
19. Admittedly, there also are examples in U.S. criminal procedure where separate sentencing
hearings are not provided for, so “ as is the case throughout this discussion “ these are not
watertight conclusions, but general tendencies.
20. Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, art. 76
[hereinafter Rome Statute].
21. For example, on the topic of admissibility, the ICTR Trial Chamber in the Akayesu judg-
ment held that “any relevant evidence having probative value may be admitted into evi-
dence, provided that it is being in accordance with the requisites of a fair trial. [ . . . ]
[H]earsay evidence is not inadmissible per se and [the Trial Chamber] has considered
such evidence, with caution[.]” Prosecutor v. Akayesu, Case No. ICTR-96-4-T, ¶ 136 (ICTR
260 Notes to Pages 128“130

Trial Chamber, Sept. 2, 1998). See also discussion supra Chapter 2; ICC R.P. & Evid. Rule
63(5) (“The Chambers shall not apply national laws governing evidence [ . . . ]”), available
at http://www.icc-cpi.int/library/basicdocuments/rules(e).pdf. However, the international-
ized law of evidence for mass atrocity prosecutions remains the output of a process of
tweaking the familiar to make it more permissive rather than formulating something new
tailored speci¬cally for collective system criminality. M. Cherif Bassiouni, Introduction
to International Criminal Law 626“627 (2003). See also Mark Drumbl, Case-Note,
Prosecutor v. Krsti´ , ICTY Authenticates Genocide at Srebrenica and Convicts for Aiding
and Abetting, 5 Melbourne J. of Int™l Law 434 (2004).
22. H˚ kan Friman, Procedural Law of Internationalized Criminal Courts, in International-
ized Criminal Courts 325, 356 (Romano, Nollkaemper, & Kleffner eds., 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”). These very modest innovations in international procedure, however, are absent
from the punishment schemes of extant international institutions.
23. See generally Ralph Henham, Some Issues for Sentencing in the International Criminal
Court, 52 Int™l & Comp. L. Q. 81 (2003). I recognize that, among Western powers, there are
deep divisions between the United States, on the one hand, and other Western countries,
on the other, when it comes to supporting the ICC. These differences, however, are
attributable to power politics, not divergent jurisprudential approaches to methodologies
of prosecuting and punishing extraordinary international criminals, which the United
States has strongly supported in ad hoc legalist institutions that it can in¬‚uence. Many
Western common law countries are staunch supporters of the ICC, such as Canada, New
Zealand, the United Kingdom, and Australia.
24. For Koskenniemi, “individualism” is a “recent aspect of Western thinking that may under-
mine forms of experience or ways of life that cannot be articulated in the individualist
terms familiar to the (developed) West.” Martti Koskenniemi, Hersch Lauterpacht and the
Development of International Criminal Law, 2 J. Int™l Crim. Just. 810, 824 (2004).
25. George Fletcher, Liberals and Romantics at War: The Problem of Collective Guilt, 111 Yale
L. J. 1499, 1511 (2002).
26. Boaventura de Sousa Santos, The Heterogeneous State and Legal Pluralism in Mozambique,
40 Law & Soc. Rev. 39, 51 (2006).
27. Ralph Henham, Conceptualizing Access to Justice and Victims™ Rights in International
Sentencing, 13(1) Social & Legal Studies 27, 36 (2004).
28. For general treatment of the phenomenon of externalization of justice, see Chandra Lekha
Sriram & Brad R. Roth, Externalization of Justice: What Does It Mean and What Is at
Stake?, XII Finnish Yearbook of International Law 3 (2001).
29. This constraint can affect internationalized national tribunals and hybrid institutions. In
Sierra Leone, for example, of¬cials in the region and the Special Court for Sierra Leone
recommended that former Liberian President Charles Taylor, the Court™s most prominent
indictee, be moved to ICC facilities in The Hague for trial out of fears that prosecuting
him in Sierra Leone might destabilize the region. Taylor was eventually transferred to ICC
facilities to face eleven counts of war crimes and crimes against humanity that, looking
ahead, will be adjudged in proceedings conducted entirely by the Special Court for Sierra
30. Nancy Amoury Combs, Procuring Guilty Pleas for International Crimes: The Limited In¬‚u-
ence of Sentencing Discounts, 59 Vand. L. Rev. 69, 131 (2006).
31. See, e.g., Bassiouni, op. cit., at 554 (discussing profound public distrust for the judicial
system in Kosovo owing to Serbian-sanctioned discrimination).
32. David Chuter, War Crimes: Confronting Atrocity in the Modern World 231 (2003).
33. Search for Speed and Reconciliation, The Economist 48 (October 6, 2001).
34. Rwanda Says UN Lawyer on Most Wanted Genocide List, Hirondelle News Agency
(Lausanne) (Feb. 28, 2006) (on ¬le with the author).
Notes to Pages 130“131 261

35. Samantha Power, “A Problem from Hell”: America and the Age of Genocide 364“385
36. John Torpey, Introduction, in Politics and the Past 22 (Torpey ed., 2003).
Prosecutor v. Furundˇ ija, Case No. IT-95-17/1-T, ¶ 290 (ICTY Trial Chamber, Dec. 10,
37. z
38. Mark Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105 Colum.
L. Rev. 1751, 1754 n.10 (2005).
39. Sanja Kutnjak Ivkovi´ & John Hagan, The Politics of Punishment and the Siege of Sarajevo:
Toward a Con¬‚ict Theory of Perceived International (In)justice, 40 L. & Soc™y. Rev. 369,
385 (2006).
40. Chandra Lekha Sriram, Globalising Justice: From Universal Jurisdiction to Mixed Tribunals,
22 Neth. Q. Hum. Rts. 7, 22 (2004) (reporting calls among certain East Timorese for
international tribunals to take over prosecutions in East Timor); Press Release, available at
(in light of the Special Panels™ ceasing operation, issuing a call for an international
tribunal to take over). But see Colum Lynch & Ellen Makashima, E. Timor Atrocities
Detailed, Washington Post (Jan. 21, 2006) at A12 (East Timorese government of¬cials
¬rmly expressing their opposition to an international tribunal for East Timor owing inter
alia to concerns about the impact of prosecutions on democratic transition).
41. Peter Uvin & Charles Mironko, Western and Local Approaches to Justice in Rwanda, 9
Global Governance 219, 223 (2003); see also Timothy Longman, The Domestic Impact of
the International Criminal Tribunal for Rwanda, in International War Crimes Trials:
Making a Difference? 33“41 (Ratner & Bischoff eds., 2004) (noting widespread ignorance
of the work of the ICTR among Rwandans but ¬nding that those aware of the ICTR™s work
had a more positive perception of the ICTR than did those unaware of its work).
42. Many Tutsi believe that, although ICTR trials place considerable emphasis on the rights of
the accused, they disregard the rights of victims and witnesses. Kingsley Chiedu Moghalu,
Image and Reality of War Crimes Justice: External Perceptions of the International Criminal
Tribunal for Rwanda, 26 Fletcher F. World Affairs 21, 29 (2002). Some Rwandan Hutu
see the ICTR as political and designed to pursue victors™ justice, regardless of its emphasis
on due process. Others, however, see it as less political than the Rwandan national courts,
particularly in high-pro¬le cases.
43. Longman, The Domestic Impact of the International Criminal Tribunal for Rwanda,
op. cit.
44. Luis Salas, Reconstruction of Public Security and Justice in Post Con¬‚ict Societies: The
Rwandan Experience, 26 Int™l J. Comp. & Applied Crim. Just. 165, 191 (2002).
45. Alison Des Forges & Timothy Longman, Legal Responses to Genocide in Rwanda, in My
Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity
49, 56 (Stover & Weinstein eds., 2004).
46. Id.
47. Laura Fraser, Coffee, and Hope, Grow in Rwanda, N.Y. Times (August 6, 2006). The
budget for the East Timor panels was U.S. $6.3 million in 2001. Suzanne Katzenstein,
Hybrid Tribunals: Searching for Justice in East Timor, 16 Harv. Hum. Rts. J. 245, 258
(2003). The ICTY has cost U.S. $630 million since its inception in 1993. Daryl A. Mundis,
The Judicial Effects of the “Completion Strategies” on the Ad Hoc International Tribunals,
99 Am. J. Int™l L. 142, 142 n.2 (2005).
48. I do not say that, in the absence of the ICTR, all of these funds would have gone
to reconstruction. In fact, but for the ICTR, none of this money ever may have been
raised. The fact that the ICTR was able to attract such funding demonstrates the pull
that liberal legalist interventions have upon the sensibilities of donor organizations and
49. Helena Cobban, Think Again: International Courts, Foreign Policy, No. 153, 22, 24
(March/April 2006). State accountability mechanisms deliberately were eschewed in
262 Notes to Pages 131“133

Mozambique™s transition from systemic con¬‚ict. Instead, local communities turned to
traditional healers who conducted ceremonies to reintegrate ¬ghters.
50. William W. Burke-White, A Community of Courts: Toward a System of International Crim-
inal Law Enforcement, 24 Mich. J. Int™l L. 1, 45 (2002).
51. Prosecutor v. Akayesu, Case No. ICTR-96-4 (ICTR Appeals Chamber, June 1, 2001).
52. Prosecutor v. Musema, Case No. ICTR-96-13-T (ICTR Appeals Chamber, Nov. 16, 2001).
53. Prosecutor v. Nahimana, Barayagwiza, and Ngeze, Case No. ICTR-99-52-T (ICTR Trial
Chamber, Dec. 3, 2003).
54. The discussion that follows distills an argument presented in much greater detail in Mark
A. Drumbl, Judging the 11 September Terrorist Attack, 24 Hum. Rts. Q. 323 (2002) and in
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, 92“105 (2002).
55. Letter sent by Ambassador John Negroponte to Richard Ryan, President of the Security
Council, reprinted in United States of¬cially informs United Nations of strikes, Washing-
ton Times (Oct. 9, 2001) at A14.
56. Roy Gutman, Christopher Dickey, & Sami Yousafzai, Guantanamo Justice?, Newsweek
34, 35 (July 8, 2002).
57. See generally Human Rights Watch, Rwanda, in Playing the “Communal Card”: Com-
munal Violence and Human Rights (1995).
58. The National Security Strategy of the United States of America 12 (March 2006).
59. In Hamdan v. Rumsfeld, the U.S. Supreme Court ruled inter alia that Common Article 3 of
the Geneva Conventions applies to the con¬‚ict against Al-Qaeda. Hamdan v. Rumsfeld, 548
U.S. (2006) (slip op.), available at http://www.supremecourtus.gov/opinions/05pdf/05-
184.pdf. The Court invalidated the military commissions the United States had set up to
prosecute a handful of Guant´ namo detainees (in Hamdan™s case, the charges involved
conspiracy to commit war crimes). The Court held that these commissions fell short of
minimal Common Article 3 requirements, in particular the preclusion of “the passing of
sentences and the carrying out of executions without previous judgment pronounced by
a regularly constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.” The Court, however, did not specify exactly what would
be required for military commissions to meet these requirements, noting that there was
considerable ¬‚exibility (“Common Article 3 obviously tolerates a great degree of ¬‚exibility
in trying individuals captured during armed con¬‚ict [ . . . ]”). Id. opinion of the Court at
p. 72. Only a plurality of the Court ruled that Common Article 3 requirements incorporated
at least the barest of trial protections recognized by customary international law. It appears
that, for the majority of the Court, conformity with U.S. courts-martial practice would
satisfy minimal Common Article 3 requirements; in fact, the Court even left the door open
for military commissions to depart from U.S. courts-martial practice if a practical need
could explain the departure. U.S. courts-martial practice is less respectful of liberal due
process than procedure at the ICC or ad hoc tribunals. The 2006 Military Commissions
Act was passed by Congress, and signed by the President, in response to the Hamdan
judgment. For a discussion of this legislation, see Mark A. Drumbl, The Expressive Value of
Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International
Criminal Law, 75 Geo. Wash. L. Rev. (forthcoming 2007).
60. See generally Jos´ E. Alvarez, Torturing the Law, 37 Case W. Res. J. Int™l L. 175 (2006).
61. Statute of the ICTR, U.N. SCOR, 49th Sess., 3453d mtg. at 15, art. 8(2) (1994); Statute of
the ICTY, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 29, art. 9(2) (1993). See
also Robert Cryer, Prosecuting International Crimes: Selectivity and the Inter-
national Criminal Law Regime 132, 136 (2005) (citing, as further examples of primacy,
ICTY Statute art. 29 and ICTR Statute art. 28 (on cooperation) and ICTY Statute art. 18(2)
and ICTR Statute art. 17(2) (empowering the ad hoc Prosecutor to investigate on a state™s
territory without the consent of the state)).
62. In the case of gacaca for genocide, there is an attempt to democratize the accountability
process by having judges elected from and by local communities.
Notes to Pages 134“136 263

63. This increased willingness also is evident in the Security Council™s referral of the Darfur
violence to the ICC, insofar as the Security Council noted the “possibility of conducting
proceedings in the region.” Security Council Res. 1593 (March 31, 2005). See also ICC R.P.
& Evid., op. cit., Rule 100 (permitting ICC to sit in a state other than the host state). On a
broader policy basis, the UN Secretary-General has expressed a desire for transitional justice
initiatives to “eschew one-size-¬ts-all formulas and the importation of foreign models” but
then in the same document paradoxically urges the rati¬cation of the ICC, which risks,
albeit less blatantly than the ad hocs, these very results. Rule of Law, Transitional Justice,
Con¬‚ict and Post-Con¬‚ict Societies, Report by the Secretary-General, UN Doc. S/2004/616
(Aug. 3, 2004) (on ¬le with author).
64. See Statute of the Special Court for Sierra Leone, S.C. Res. 1315, U.N. SCOR, 55th Sess.,
4186th mtg. at 1, art. 8(2) (2000), available at http://www.sc-sl.org/scsl-statute.html.
65. Chandra Lekha Sriram, Wrong-Sizing International Justice? The Hybrid Tribunal in Sierra
Leone, 29 Ford. Int™l L. J. 472 (2006).
66. For a discussion of dif¬culties faced by hybrid institutions, see Rosa Ehrenreich Brooks,
The New Imperialism: Violence, Norms, and the “Rule of Law,” 101 Mich. L. Rev. 2275,
2296 (2003) (discussing obstacles for the Kosovo hybrid panels); Katzenstein, op. cit., at 246,
253 (noting that some of the initial problems at the hybrid tribunals include inef¬ciency,
incorrect application of international law, failure to apply international law, minimization
of local participation, insuf¬cient building of capacity, and failure to uphold due process
standards); Suzannah Linton, Rising from the Ashes: The Creation of a Viable Criminal
Justice System in East Timor, 25 Melb. U. L. Rev. 122, 176 (2001) (reporting shortcomings
in the management of the hybrid tribunals).
67. Rome Statute, op. cit., art. 1 (providing that the ICC “shall be complementary to national
criminal jurisdictions”).
68. Within the context of signing onto and ratifying the Rome Statute, another wrinkle is
the divergent attitudes of European countries, on the one hand, and the United States,
on the other hand, toward the ICC as an institution. As I set out in Chapter 1, U.S.
disquiet with the ICC ¬‚ows not from the ICC™s model of prosecution and punishment
but, rather, from the possibility that it might exercise jurisdiction over U.S. nationals. To
this end, other countries have been subject to political pressure by the U.S. and European
countries to join or not join the Rome Statute, and in many cases states that have joined
have also concluded agreements at the behest of the United States to limit jurisdiction in
certain cases. That said, two researchers “elicited very little statistical evidence that the ICC
represents a proxy war in a global battle for moral, legal, or political dominance between
Europe and the United States.” See generally Allison Marston Danner & Beth Simmons,
Why States Join the International Criminal Court 34 (manuscript on ¬le with the author,
69. See generally id. at 32.
70. Cassese, op. cit., at 158.
71. Allen Buchanan, Justice, Legitimacy, and Self-Determination 323 (2004). See also
Richard H. Pildes, The Dark Side of Legalism, 44 Va. J. Int™l L. 145, 159“161 (2003).
72. Jed Rubenfeld, The Two World Orders, Wilson Q. 22 (Autumn 2003).
73. Id. at 26“27.
74. Id. at 27.
75. Id.
76. See, e.g., ICC R.P. & Evid., op. cit., Rules 86, 89, 93 (Rule 86 states the ICC Trial
Chamber and other organs of the ICC “shall take into account the needs of all vic-
tims and witnesses [ . . . ] in particular, children, elderly persons, persons with disabilities
and victims of sexual or gender violence”). For more information on victims and the
ICC, see Participation of victims in proceedings and reparation, available at http://www.icc-
77. Decision of January 17, 2006, on Participation of Victims, ICC Pre-Trial Chamber, available
at http://www.icc-cpi.int/library/cases/ICC-01-04-101 tEnglish-Corr.pdf.
264 Notes to Pages 136“139

78. Jeffrey Gettleman, Uganda Peace Hinges on Amnesty for Brutality, N.Y. Times (Sept. 15,
79. See Jos´ E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 Yale J.
Int™l L. 365 (1999).
80. For example, in order to conform to expectations of impartiality and neutrality, the Special
Court for Sierra Leone has prosecuted the activities of both rebels and government forces
even though both groups may not share equal moral responsibility for the pervasiveness of
crimes against humanity in the country. On a more general note, referencing an interlocu-
tory decision by the ICTY in the Tadi´ case, Ruti Teitel argues that the legalist argument
that the use of the criminal law can depoliticize ethnicity is ¬‚awed “insofar as the offenses
that are often at issue, such as massive persecution, tend to involve systemic policy [and] a
mix of individual and collective responsibility.” Ruti Teitel, Humanity™s Law: Rule of Law
for the New Global Politics, 35 Cornell Int™l L. J. 355, 379 (2002).
81. Alan J. Kuperman, Rwanda in Retrospect, 79 Foreign Affairs 94 (2000); Alison Des Forges
& Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda (1999).
82. On hate propaganda in Rwanda generally, see William A. Schabas, Hate Speech in Rwanda:
The Road to Genocide, 46 McGill L. J. 141 (2000).
83. Dallaire also reported on poor training and bad behavior on the part of some peacekeepers,
although a minority.
84. See generally, Rom´ o Dallaire, Shake Hands with the Devil: The Failure of Humanity
in Rwanda (2003).
85. Both of these completion strategies were well received by the Security Council. See S.C.
Res. 1503 (August 28, 2003); S.C. Res. 1534 (March 26, 2004). Several factors motivate these
completion strategies: ¬nancial pressure from donor states; a desire to wind down the
work of the tribunals; the integration of national actors; and the modernization of national
sociolegal structures.
86. Institute for War and Peace Reporting, Tribunal Update (Sept. 9, 2004), available at
http://www.iwpr.net/index.pl?tribunal index.html; Completion Strategy of the Interna-
tional Criminal Tribunal for Rwanda, ¶ 7, U.N. Doc. S/2004/341 (2004); Report on the
Judicial Status of the International Criminal Tribunal for the Former Yugoslavia and the
Prospects for Referring Certain Cases to National Courts, U.N. Doc. S/2002/678 (2002).
87. There appears to be greater largesse with regard to what happens to nonindicted individ-
uals insofar as “[i]t will be up to the local judiciaries to decide whether to complete the
investigations and prosecute the cases.” Carla del Ponte Addresses the Security Council,
ICTY Press Release (December 15, 2005), available at http://www.un.org/icty/pressreal/
88. ICTY President Pocar Addresses the Security Council, ICTY Press Release (December 15,
2005), available at http://www.un.org/icty/pressreal/2005/speech/pocar-sc-051215.htm.
89. In its form applicable to proceedings pending in December 2005.
90. ICTY Rules of Procedure and Evidence, Rule 11bis(A), available at http://www.un.org/
91. Id. arts. 11bis(B), (C).
92. ICTY President Pocar Addresses the Security Council, op. cit.
93. For an enumeration of the content of a “fair trial,” see Prosecutor v. Mejaki´ et al., Case No.
IT-02-65-T, ¶ 68 (ICTY Referral Bench, July 20, 2005) (representative of the adversarial
common law model of adjudication); see also Statute of the ICTY, op. cit., art. 21; Statute
of the ICTR, op. cit., art. 20.
94. A case in which referral was denied is Prosecutor v. Dragomir Miloˇevi´ , Case No. IT-98-
29/1-PT, ¶ 24 (ICTY Referral Bench, July 8, 2005) (referral denied owing to the gravity of
the crimes, number of civilians affected, and the senior military position of the accused).
Prosecutor v. Mejaki´ et al., Case No. IT-02-65-AR11bis.1, ¶ 44 (ICTY Appeals Chamber,
95. c
April 7, 2006).
96. ICTY President Pocar Addresses the Security Council, op. cit.
Notes to Pages 139“142 265

97. Although not a situation of a referral, the relationship between the Iraqi High Tribunal
(IHT) and the general courts in Iraq also speaks to this tension. Whereas the IHT, a spe-
cialized entity tasked with processing a dozen (or so) notorious defendants associated with
the Ba™ath regime, is comparatively well funded, the general court system in Iraq “ which
is completely deluged with defendants suspected of gruesome, and freshly committed,
sectarian violence “ is perilously underfunded and dysfunctional.
Prosecutor v. Mejaki´ et al., Case No. IT-02-65-T, ¶¶ 28“30 (ICTY Referral Bench,
98. c
July 20, 2005).
99. See, e.g., Prosecutor v. Jankovi´ , Case No. IT-96-23/2-AR11bis.2 (Decision on Rule 11bis
Referral) ¶¶ 13“14, 16 (ICTY Appeals Chamber, November 15, 2005).
Prosecutor v. Raˇevi´ and Todovi´ , Case No. IT-97“25/1-PT, ¶ 19 (ICTY Referral Bench,
100. sc c
July 8, 2005).
101. BBC News, Rwandan anger at suspect transfer, available at http://news.bbc.
co.uk/1/hi/world/africa/4717828.stm (reporting that Rwanda wishes to receive referred cases
but that this option has been rejected by the ICTR because Rwanda will not repeal the
death penalty).
102. ICTR Prosecutor Requests Transfer of Bagaragaza Case to Norway for Trial, ICTR Press
Release, ICTR/INFO-9-2-471.EN (February 15, 2006). For the purposes of this case, ICTR
Rule 11bis did not read exactly the same as ICTY Rule 11bis.
103. Id.
104. Transfer of Bagaragaza case to the Kingdom of Norway denied, ICTR Press Release,
ICTR/INFO-9-2-477.EN (May 22, 2006).
105. Alhagi Marong, The ICTR Appeals Chamber Dismisses the Prosecutor™s Appeal to Transfer
Michel Bagaragaza for Trial to Norway, ASIL Insight (Vol. 10, Issue 25, October 3, 2006).
The Appeals Chamber underscored how approaching the accusations against Bagaragaza
as ordinary substantive crimes triable under domestic substantive criminal law runs the
risk of trivializing their nature and the signi¬cance of the Rwandan atrocity.
106. Rome Statute, op. cit., art. 17(1)(a) (limiting the jurisdiction of the ICC only to situations
where a state with jurisdiction is unable or unwilling genuinely to investigate or prosecute);
art. 17(1)(b) (making a matter admissible at the ICC if the state has investigated and the state
has decided not to prosecute the person concerned if the decision re¬‚ects an unwillingness
or inability genuinely to prosecute).
107. The ICC Rules of Procedure and Evidence allow a state to present evidence whether “its
courts meet internationally recognized . . . standards for [ . . . ] independent and impartial
prosecution” in order to satisfy the complementarity test. ICC R.P. & Evid., op. cit.,
Rule 51. For a discussion of how the complementarity principle may dissuade states from
deploying restorative justice mechanisms such as truth commissions, see Jennifer Llewelyn,
A Comment on the Complementary Jurisdiction of the International Criminal Court: Adding
Insult to Injury in Transitional Contexts, 24 Dalhousie L.J. 192 (2001).
108. Mahnoush H. Arsanjani & W. Michael Reisman, The Law-in-Action of the International
Criminal Court, 99 Am. J. Int™l L. 385, 391 (2005) (citing, however, a policy paper
that regularly refers to the domestic initiatives for these lower-ranking perpetrators as
109. See, e.g., Carsten Stahn, Complementarity, Amnesties, and Alternative Forms of Justice:
Some Interpretive Guidelines for the International Criminal Court, 3 J. Int™l Crim. J.
695, 713 (2005) (“even alternative forms of justice must guarantee basic fair trial rights
to the accused” under the complementarity test). But see contra Kevin Jon Heller, The
Shadow Side of Complementarity: The Effect of Article 17 on National Due Process (2006)
(unpublished manuscript on ¬le with the author, cited wth permission) (arguing that ICC
jurisdiction only is triggered when due process at the national level makes it more dif¬cult
to convict an accused).
110. Rome Statute, op. cit., art. 53(1)(c).
111. Arsanjani & Reisman, op. cit., at 399 n.56.
266 Notes to Pages 143“145

112. Rome Statute, op. cit., art. 53(3)(b). Furthermore, investigations and prosecutions that
continue following due consideration under article 53 can be deferred by the Security
Council by virtue of article 16 of the Rome Statute. The wording of article 16, which
requires a majority of the Security Council and all ¬ve permanent members to vote
to defer, makes it politically improbable that the Security Council would so act. That
said, the possibility of deferral does represent, on the one hand, some putatively pub-
lic control over the ICC™s decisionmaking but, on the other, weakens the ICC™s deter-
rent value by adding another layer of selectivity and indeterminacy to the exercise of
113. See, e.g., Alain Pellet, Internationalized Courts: Better Than Nothing . . . , in Internation-
alized Criminal Courts 439 (Romano, Nollkaemper, & Kleffner eds., 2004).
114. Article 14 of the International Covenant on Civil and Political Rights can serve as an
example of these guarantees. International Covenant on Civil and Political Rights, G.A.
Res. 2200A, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc A/6316 (1966).
115. Cryer, op. cit., at 143, 164.
116. Accord, id. at 164. In terms of substantive law, although not formally required, many parties
have enacted implementing legislation that amends or modi¬es domestic criminal law to
incorporate the substantive crimes proscribed by the Rome Statute.
117. Mohamed M. El Zeidy, The Ugandan Government Triggers the First Test of the Comple-
mentarity Principle: An Assessment of the First State™s Party Referral to the ICC, 5 Int™l
Crim. L. Rev. 83, 99 (2005). A number of other African states have referred matters as well.
The Ugandan violence has cross-border effects in the DRC and in southern Sudan; the
Lord™s Resistance Army, in fact, has bene¬ted in the past from the support of the Sudanese
118. Eric Blumenson, The Challenge of a Global Standard of Justice: Peace, Pluralism, and
Punishment at the International Criminal Court, 44 Colum. J. Transnat™l L. 801, 808
n.23 (2006); see also Cryer, op. cit., at 225.
119. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), International Court of Justice (ICJ General List, No. 116, Dec. 19,
2005) (¬nal judgment).
120. Similarly, there is evidence that the decision by the DRC to refer appalling domestic
atrocity to the ICC served a number of purposes, including offering “a politically expedient
solution for the Congolese president to deal with potential electoral rivals.” 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, 559 (2005). In his work on the Extraordinary Chambers in the Courts
of Cambodia, Burke-White observes how Cambodian leader Hun Sen “has been able
to use the threat of prosecution as a political tool against his enemies. In so doing he
has externalized the political costs onto the U.N.” Burke-White, A Community of Courts,
op. cit., at 39.
121. Blumenson, op. cit., at 810 (citing a survey by Uganda™s Refugee Law Project that reported
antagonism toward ICC intervention among the victim community).
122. Id. at 809 n.24. I would note that there is certainly no guarantee that Acholi leaders or
interlocutors speak for all members of their communities.
123. Joanna R. Quinn, Sophisticated Discourse: Why and How the Acholi of Northern Uganda
are Talking about International Criminal Law 16 (2006) (unpublished manuscript on ¬le
with the author, cited with permission).
124. Marc Lacey, Victims of Uganda Atrocities Choose a Path of Forgiveness, N.Y. Times
(April 18, 2005) at A1; BBC News, LRA Victims Seek Peace with Past, available at
http://news.bbc.co.uk/2/hi/africa/5341474.stm; Joanna R. Quinn, Comparing Formal and
Informal Mechanisms of Acknowledgement in Uganda 8 (2006) (unpublished manuscript
on ¬le with the author, cited with permission) (noting that, in many parts of Uganda,
Notes to Pages 145“148 267

customary mechanisms “have more de facto authority than comparative Western mod-
els”). Helena Cobban reports that Acholi leaders seek Kony™s reintegration into Acholi
society through traditional rituals, which they believe is the best guard against future vio-
lence. Helena Cobban, Forgiveness: More Important Than Prosecuting War Criminals,
Christian Science Monitor (Aug. 17, 2006).
125. Children compose 80 percent of the membership of the Lord™s Resistance Army.
126. Blumenson, op. cit., at 816 n.46. Quinn notes that that the Ugandan government also has
to some extent formalized these customary practices. Quinn, Sophisticated Discourse, op.
cit., at 26“27. This is a similar phenomenon to that evident in Rwanda.
127. Burke-White, Complementarity in Practice, op. cit., at 569“570, 572. A number of trials
for crimes against humanity and war crimes have in fact concluded at the military level
in the DRC. Avocats sans fronti` res, Premier jugement pour crimes de guerre en RDC
(March 27, 2006) (on ¬le with the author); Avocats sans fronti` res, Nouvelle condemnation
pour crimes contre l™humanit´ par le tribunal de garnison de Mbandaka (June 21, 2006)
(on ¬le with the author). These trials invoked the language of the Rome Statute, were
conducted through processes that Avocats sans fronti` res deemed met international due
process standards, and resulted in the conviction, ¬ning, and incarceration of over forty
128. Burke-White, Complementarity in Practice, op. cit., at 574 (“[T]here are strong indications
that the ICC, as a supranational layer of governance authority, is altering incentives at the
national level and catalyzing reform efforts.”).
129. World this Week, The Economist 8 (March 19, 2005); Lacey, op. cit. The Ugandan gov-
ernment instituted an amnesty plan for many lower-level rebels in 2000. As of January
2005, nearly 15,000 applications for amnesty had been received. See Quinn, Sophisticated
Discourse, op. cit., at 16. Quinn observes that the ICC referral “put[s] into doubt” the future
of the amnesty process. Id. at 20.
130. Mark Osiel, Modes of Participation in Mass Atrocity, 39 Cornell Int™l L. J. 793, 817“820
131. Gettleman, op. cit.
132. As of the summer of 2006, the Ugandan Parliament has expressed an intention to incor-
porate traditional rituals into national law as part of the peace process with the Lord™s
Resistance Army. Along with standardizing these rituals, this initiative would seemingly
place them in methodological con¬‚ict with ICC trials for those rebel leaders the ICC has
indicted, assuming the ICC obtains custody over these indictees.
133. Rome Statute, op. cit., art. 5.
134. Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am.
J. Int™l L. 407, 408 (2004).
135. Helena Cobban reports: “In late 1998, when leaders of the three ethnic groups in Bosnia
were discussing creating a joint truth commission to establish a common record of
the past decade, they were told bluntly by ICTY™s Chief Prosecutor, Louise Arbour,
that such an effort would contaminate her evidence. Arbour also told aid donors not
to support the Bosnian initiative, which set back its plans considerably.” Helena Cob-
ban, The Legacies of Collective Violence, Boston Review (April/May 2002), available at
136. See Leopold von Carlowitz, Crossing the Boundary from the International to the Domestic
Legal Realm: UNMIK Lawmaking and Property Rights in Kosovo, 10 Global Governance
307, 319 (2004).
137. William J. Long & Peter Brecke, War and Reconciliation 3 (2003) (offering case studies
on Colombia, North Yemen, Chad, Argentina, Uruguay, Chile, El Salvador, Mozambique,
South Africa, and Honduras).
138. Id. at 71.
139. See supra Chapter 2.
268 Notes to Pages 149“151

6. quest for purpose
1. Joshua Dressler, Understanding Criminal Law 6“8 (1987).
2. David Mendeloff, Truth-Seeking, Truth-Telling, and Postcon¬‚ict Peacebuilding: Curb the
Enthusiasm?, 9 International Studies Review 355, 368 (2004).
3. See, e.g., Prosecutor v. Delali´ , Case No. IT-96-21, ¶ 806 (ICTY Appeals Chamber, Feb.
20, 2001) (holding that offender rehabilitation should be considered as a relevant factor but
not one that should be given undue weight); Prosecutor v. Kunarac, Case No. IT-96-23, ¶
843 (ICTY Trial Chamber, Feb. 22, 2001) (holding that the use of preventive detention as
a general sentencing factor is not fair or reasonable). In the Staki´ case, the ICTY Trial
Chamber, citing German developments in “modern criminal law,” suggested that general
deterrence could be linked to “reintegrating potential perpetrators into the global society.”
Prosecutor v. Staki´ , Case No. IT-97-24-T, ¶ 902 (ICTY Trial Chamber, July 31, 2003). This
somewhat novel link did not, however, receive play in the Appeals Chamber judgment
in Staki´ , in which the sentence of life imprisonment was reduced to a forty-year term.
Prosecutor v. Staki´ , Case No. IT-97-24-A (ICTY Appeals Chamber, March 22, 2006).
4. For example, “[i]n the East Timorese world view, offenders must reconcile with their
victims if balance is to be restored following a crime.” Nancy Amoury Combs, Procuring
Guilty Pleas for International Crimes: The Limited In¬‚uence of Sentencing Discounts, 59
Vand. L. Rev. 69, 136 (2006).
5. See supra Chapter 4. For commentary that predates my experiences, see Mahmood Mam-
dani, Reconciliation Without Justice, 46 S. African R. Books 3“5 (Nov.“Dec. 1996) (ob-
serving that “Rwanda exempli¬es . . . the pursuit of justice without reconciliation. . . . ”).
6. Laurel E. Fletcher, From Indifference to Engagement: Bystanders and International Crim-
inal Justice, 26 Mich. J. Int™l L. 1013, 1022“1023 (2005). Commentators have opined that
demands to extradite suspects to the ICTY may have prolonged the con¬‚ict in the Balkans,
aggravated political instability within successor states in the region, and prematurely weak-
ened local courts. See, e.g., Nils Christie, Answers to Atrocities: Restorative Justice as an
Answer to Extreme Situations, in Victim Policies and Criminal Justice on the Road
to Restorative Justice 379, 387 (Fattah & Parmentier eds., 2001); Jack Snyder & Leslie
Vinjamuri, Trials and Errors: Principles and Pragmatism in Strategies of International Jus-
tice, Int™l Security 5, 12, 23 (Winter 2003/2004); Steven Erlanger, Did Serbia™s Leader Do
the West™s Bidding Too Well?, N.Y. Times § 4, p. 4 (Mar. 16, 2003).
7. Immanuel Kant, The Metaphysical Elements of Justice (Ladd trans., 2d ed., 1999);
Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Prin-
ciples of Jurisprudence as a Science of Right (1796) (Hastie trans. 1887). See also
Michael Moore, The Moral Worth of Retribution, in Principled Sentencing: Readings
on Theory & Policy 150, 150 (von Hirsch & Ashworth eds., 1998) (“[W]e are justi¬ed
in punishing because and only because offenders deserve it”); Joshua Dressler, Hating
Criminals: How Can Something that Feels So Good Be Wrong?, 88 Mich. L. Rev. 1448
(1990) (review essay); Jean Hampton, Correcting Harms versus Righting Wrongs: The Goal
of Retribution, 39 UCLA L. Rev. 1659, 1686 (1992).
G.W.F. Hegel, Philosophy of Right ¶ 101, p. 71 (1821) (Knox trans., 1952).
9. Accord, Ralph Henham, Conceptualizing Access to Justice and Victims™ Rights in Interna-
tional Sentencing, 13(1) Social & Legal Studies 27, 36 (2004).
10. Robert Cryer, Prosecuting International Crimes: Selectivity and the Interna-
tional Criminal Law Regime 198 (2005).
11. Diane Marie Amann, Group Mentality, Expressivism, and Genocide, 2:2 Int™l Crim. L.
Rev. 93, 116 (2002). See also Antoine Garapon, Three Challenges for International Criminal
Justice, 2 J. Int™l Crim. Just. 716 (2004).
12. Press Release, International Criminal Tribunal for the Former Yugoslavia, Address by Carla
Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia to
the United Nations Security Council (Nov. 27, 2001).
Notes to Pages 151“157 269

13. The ICTY and ICTR Prosecutors have considerable discretion to investigate and prosecute.
Hector Ol´ solo, The Prosecutor of the ICC Before the Initiation of Investigations: A Quasi-
Judicial or a Political Body?, 3 Int™l Crim. L. Rev. 87, 125, 130 (2003).
14. Suzanne Katzenstein, Hybrid Tribunals: Searching for Justice in East Timor, 16 Harv. Hum.
Rts. J. 245, 274 (2003).
15. But see Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9,
art. 16 [hereinafter Rome Statute] (giving the Security Council a right to demand by
resolution postponement of Prosecutorial action). Cryer underscores this provision as an
example of selectivity in the ICC™s operation. Cryer, op. cit., at 226.
16. Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial
Discretion at the International Criminal Court, 97 Am. J. Int™l L. 510, 510 (2003).
17. Id. at 521. See also Ol´ solo, op. cit., at 105.
18. Ol´ solo reports that even when there is judicial review by the ICC of Prosecutorial discre-
tion, this “simply passes to these judicial bodies the political discretion originally conferred
upon the Prosecutor.” Ol´ solo, op. cit., at 142.
19. M´ gret estimates that the ICC will be able to prosecute a dozen cases a year. Fr´ d´ ric
e ee
M´ gret, Three Dangers for the International Criminal Court: A Critical Look at a Consen-
sual Project, XII Finnish Y.B. Int™l L. 193, 213 (2001).
20. Ol´ solo, op. cit., at 107“108.
21. Rome Statute, op. cit., art. 53(2)(c); see also Ol´ solo, op. cit., at 111, 141 (arguing that the
lack of a de¬nition of “interests of justice” gives the Prosecutor the broadest possible scope
of political discretion to decide whether or not to prosecute).
22. David Chuter, War Crimes: Confronting Atrocity in the Modern World 94, 96“97
23. In the context of ordinary common crime, in particular in common law jurisdictions,
immunities, dropped charges, and sentence reductions are often exchanged for guilty
pleas or testimony. Similar arrangements also are commonly found in the practice of
international and internationalized criminal tribunals.
24. Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding
Transitional Justice, 15 Harv. Hum. Rts. J. 39, 62 (2002).
25. Comparisons among the sentences of common courts in Iraq punishing serious ordinary
crimes and the sentences of the Iraqi High Tribunal (IHT) in matters of crimes against
humanity and war crimes reveal a similar overall equivalence in terms of severity of sanction.
See generally Michael Moss, Legal System in Iraq Staggers Beneath the Weight of War,
N.Y. Times (Dec. 17, 2006). There are a large number of acquittals in the beleaguered
ordinary court system, although trials are much more perfunctory than the reasonably long
proceedings thus far at the IHT.
26. Jens David Ohlin, Applying the Death Penalty to Crimes of Genocide, 99 Am. J. Int™l L. 767
(2005) (observing that “[a]rguably, the moral severity of genocide indicates that traditional
methods of punishment might be inadequate to the retributive task”); Aukerman, op. cit.,
at 59 (observing that “[r]adical evil involves horri¬c acts that even ordinary criminals would
¬nd appalling”).
27. Taken from trial transcript, available at http://www.ceausescu.org/ceausescu texts/revolu-
28. The State of Israel v. Adolf Eichmann (S. Ct. Israel, May 29, 1962), 36 Int™l L. Rep. 277,
341 (1968).
29. Hannah Arendt, Letter to Karl Jaspers of 17 August 1946, in Hannah Arendt & Karl Jaspers,
Hannah Arendt, Karl Jaspers: Correspondence, 1926“1969 54 (1992).
30. Immanuel Kant, The Philosophy of Law 198 (trans., 1974).
Prosecutor v. Deronji´ , Case No. IT-02-61-S, ¶ 177 (ICTY Trial Chamber, Mar. 30, 2004)
31. c
(noting that “in most countries a single act of aggravated murder [n.b. murder committed
by participation in shooting and/or motivated by ethnic bias] attracts life imprisonment or
the death penalty”); Prosecutor v. Dragan Nikoli´ , Case No. IT-94-2-S, ¶ 172 (ICTY Trial
270 Notes to Pages 157“160

Chamber, Dec. 18, 2003); 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, 90 (2001).
Prosecutor v. Furundˇ ija, Case No. IT-95-17/1-T, ¶ 290 (ICTY Trial Chamber, Dec. 10, 1998)
32. z
(“It is the infallibility of punishment . . . which is the tool for retribution, stigmatization and
deterrence. This is particularly the case for the International Tribunal: penalties are made
more onerous by its international stature, moral authority and impact. . . . ”).
33. An additional wrinkle is the operation of the nulla poena sine lege principle that, in some
contexts, may preclude the punishment imposed by an international institution to exceed
that ordinarily available at the national level within the relevant jurisdiction.
Prosecutor v. Kordi´ and Cerkez, IT-95-14/2-A, ¶ 1086 (ICTY Appeals Chamber, Dec. 17,
34. c
2004) (genocide and war crimes against civilians under the SFRY Criminal Code were
punishable with imprisonment of a minimum of ¬ve years or the death penalty [the latter
could be substituted with imprisonment for a term of twenty years]).
Prosecutor v. Mrdja, Case No. IT-02-59-S, ¶¶ 121, 122, 129 (ICTY Trial Chamber, March 31,
2004) (sentencing defendant to seventeen years™ imprisonment when a national court
would have been able to impose a term of twenty years); Prosecutor v. Obrenovi´ , Case No.
IT-02-60/2-S, ¶¶ 58, 60, 156 (ICTY Trial Chamber, Dec. 10, 2003); Prosecutor v. Kunarac
et al., Case No. IT-96-23/1-A, ¶ 349 (ICTY Appeals Chamber, June 12, 2002) (af¬rming
Kunarac™s sentence of twenty-eight years); Prosecution v. Strugar, Case No.IT-01-42-T, ¶
473 (ICTY Trial Chamber, January 31, 2005) (af¬rming as a matter of law that the ICTY
Trial Chamber can impose a sentence greater than that which would have been imposed
by SFRY courts).
36. See, e.g., Sanja Kutnjak Ivkovi´ & John Hagan, The Politics of Punishment and the Siege
of Sarajevo: Toward a Con¬‚ict Theory of Perceived International (In)justice, 40 L. & Soc™y.
Rev. 369, 379 (2006).
See, e.g., Prosecutor v. Raji´ , Case No. IT-95-12-S, ¶¶ 7“8 (ICTY Trial Chamber, May 8,
37. c
Prosecutor v. Muhimana, Case No. ICTR-95-1B-T, ¶ 592 (ICTR Trial Chamber, April 25,
39. Ohlin, op. cit., at 755 n.59.
Prosecutor v. Semanza, Case No. ICTR-97-20-A, ¶ 380 (ICTR Appeals Chamber, May 20,
2005). See also id. ¶ 393.
Prosecutor v. Bisengimana, Case No. ICTR-00-60-T, ¶ 194 (ICTR Trial Chamber, April
13, 2006).
42. Cf Rome Statute, op. cit., art. 110 (providing that when the convict has served two-thirds of
the sentence, or twenty-¬ve years in the case of life imprisonment, the ICC shall review the
sentence to determine whether or not it should be reduced based on the convict™s willing-
ness to cooperate with the court, assistance in locating assets, or other factors establishing
a clear and signi¬cant change of circumstances); ICC R.P. & Evid. Rules 211, 223“224,
available at http://www.icc-cpi.int/library/basicdocuments/rules(e).pdf.
43. Chuter, op. cit., at 222. The health care available to ICTR convicts imprisoned in Mali
is not as comprehensive as that available in the ICTR detention unit. But it is superior
to what is available to those imprisoned in Rwandan prisons. Moreover, should ICTR
convicts begin to serve sentence in Western prisons, then their level of health care would
well surpass that available in Rwanda.
44. HIV-positive ICTR witnesses, who often travel from Rwanda to Arusha to testify on behalf of
the Prosecution, reportedly do not receive equivalent medication to defendants (although
the ICTR Witness and Victims Support Unit has made this need a priority). See generally
Samantha Power, Rwanda: The Two Faces of Justice, 50 New York Review of Books
(January 16, 2003).
45. Nancy Amoury Combs, International Decisions, 97 Am. J. Int™l L. 923, 936 (2003).
Notes to Pages 160“165 271

46. Combs, Procuring Guilty Pleas, op. cit., at 93 n.106.
47. Id. at 132.
48. This is an area in which retribution brushes up with expressivism.
49. For example, in Rwanda the state is entitled to pursue d´ gradation civique.
50. Differences among the national frameworks become more ambiguous in cases of lower-
level offenders.
51. William Schabas, Genocide in International Law 9 (2000).
Prosecutor v. Mrdja, Case No. IT-02-59-S, ¶¶ 121, 122, 129 (ICTY Trial Chamber, March
31, 2004). See also Prosecutor v. Kordi´ and Cerkez, IT-95-14/2-A, ¶ 1085 (ICTY Appeals
Chamber, Dec. 17, 2004); Prosecutor v. Staki´ , Case No. IT-97-24-T, ¶ 887 (ICTY Trial
Chamber, July 31, 2003) (noting that national sentencing practice “will . . . be considered,
although in itself is not binding”).
Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, ¶ 31 (ICTR Trial Chamber, June 1, 2000)
(“While the Chamber will refer as much as practicable to the sentencing provisions under
the law [of Rwanda], it will also exercise its unfettered discretion to determine sentences.”).
In cases where a departure from national practices is occasioned, reasons for the depar-
ture must be provided and the divergence explained. Prosecutor v. Semanza, Case No.
ICTR-97-20-A, ¶¶ 345, 377 (ICTR Appeals Chamber, May 20, 2005). In the case of the
ICTR, the judges™ guarded approach to including national sentencing practice persists
notwithstanding exhortations by ICTR Prosecutors that the existence of the death penalty
and life imprisonment in the domestic Rwandan penal law justify a harsher sentence at the
ICTR. William A. Schabas, Genocide Trials and Gacaca Courts, 3 J. Int™l Crim. J. 879,
888 (2005). Schabas posits that the reference to national sentencing practice in the ICTR
Statute was included to protect the defendant, not justify severe punishment. Id. at n.22.
This is another indication that the distinction between national sentencing practices in
Rwanda and the former Yugoslavia does not suf¬ce as explanation for the divergent severity
of sentences issued by the ICTY and ICTR.
Prosecutor v. Marqu´ s et al., Case No. 09/2000, ¶ 1116 (Dili Dist. Ct. Serious Crimes
54. e
Spec. Panel Dec. 11, 2001) (holding, in a manner similar to the ICTY, that “the sentencing
practices in the courts of East Timor may be used for guidance, but [are] not binding”).
55. Prosecutor v. Blagojevi´ and Joki´ , Case No. IT-02-60-T (ICTY Trial Chamber, January 17,
c c
Prosecutor v. Krsti´ , Case No. IT-98-33-A, ¶¶ 248, 250 (ICTY Appeals Chamber, April 19,
56. c
Prosecutor v. Staki´ , Case No. IT-97-24-A, ¶ 375 (ICTY Appeals Chamber, March 22,
57. c
2006) (“The Appeals Chamber stresses that there is no hierarchy of the crimes within
the jurisdiction of the Tribunal [ . . . ]”). Some ICTR judgments suggest that genocide and
crimes against humanity are more serious than war crimes; genocide also has been referred
to as the “crime of crimes.” See, e.g., Prosecutor v. Kambanda, Case No. ICTR-97-23-S, ¶
14 (ICTR Trial Chamber, Sept. 4, 1998).
58. See, e.g., Prosecutor v. Erdemovi´ , Case No. IT-96-22-T (ICTY Trial Chamber, Nov. 29,
Prosecutor v. Bisengimana, Case No. ICTR-00-60-T, ¶¶ 136“137 (ICTR Trial Chamber,
April 13, 2006).
60. Prosecutor v. Bralo, Case No. IT-95-17-S (ICTY Trial Chamber, December 7, 2005).
Prosecutor v. Sikirica, Case No. IT-95-8-S, ¶ 149 (ICTY Trial Chamber, November 13, 2001)
(noting that a guilty plea saves the international tribunal the time and effort of a lengthy
investigation and trial); Michael P. Scharf, Trading Justice for Ef¬ciency: Plea-Bargaining
and International Tribunals, 2 J. Int™l Crim. Just. 1070, 1076 (2004) (“It is noteworthy that
the international Tribunals have primarily justi¬ed plea-bargaining in terms of conserving
scarce judicial resources . . . ”).
Prosecutor v. Todorovi´ , Case No. IT-95-9/1-S, ¶ 80 (ICTY Trial Chamber, July 31, 2001).
62. c
272 Notes to Pages 165“166

63. See generally Combs, Procuring Guilty Pleas, op. cit.
64. Ralph Henham & Mark Drumbl, Plea Bargaining at the International Criminal Tribunal
for the Former Yugoslavia, 16 Crim. L. F. 49, 54 (2005). Segments of the comparative
discussion of the situation of plea-bargained convicts that follows draw from id. at 57“58.
65. Prosecutor v. Babi´ , Case No. IT-03-72-A (ICTY Appeals Chamber, July 18, 2005) (Appeals
Chamber con¬rmed a sentence that exceeded the Prosecutor™s recommendation owing to
the gravity of the crime and held that the Trial Chamber acted correctly when it departed
from the Prosecutor™s recommendation). For an example from the ICTR, see Prosecutor
v. Bisengimana, Case No. ICTR-00-60-T (ICTR Trial Chamber, April 13, 2006) (issuing
a sentence of ¬fteen years while the plea agreement recommended a sentence between
twelve and fourteen years). In the Dragan Nikoli´ case, an ICTY Trial Chamber issued
a sentence of twenty-three years to a defendant who had concluded a plea agreement
in which the Prosecutor recommended a sentence of ¬fteen years. Prosecutor v. Dragan
Nikoli´ , Case No. IT-94-2-S (ICTY Trial Chamber, Dec. 18, 2003). The Trial Chamber
in imposing a higher sentence had focused on retributive concerns such as brutality, the
number of crimes committed, and the underlying intention to humiliate and degrade.
The Appeals Chamber reduced the sentence to twenty years. Prosecutor v. Dragan Nikoli´ , c
Case No. IT-94-2-A (ICTY Appeals Chamber, Feb. 4, 2005). The Appeals Chamber held
that the defendant understood that the recommendation was just a recommendation and
that exceeding it constituted an appropriate exercise of the Trial Chamber™s discretion.
66. Combs, Procuring Guilty Pleas, op. cit., at 87.
Prosecutor v. Momir Nikoli´ , Case No. IT-02-60/1-S, ¶ 183 (ICTY Trial Chamber, Dec. 2,
67. c
68. Prosecutor v. Momir Nikoli´ , Case No. IT-02-60/1-A (ICTY Appeals Chamber, March 8,
2006). The Appeals Chamber found that the Trial Chamber had committed a number
of errors: (1) the Trial Chamber doubly counted the role the defendant played in the
commission of the crime; (2) the Trial Chamber relied on a translation error as evidence
of the gravity of the offense (the error involved comments by defense counsel in closing,
imputed to the defendant, that “only” seven thousand individuals had been murdered
at Srebrenica, which the Trial Chamber had found “shameful,” when defense counsel
actually had stated that “around” seven thousand individuals had been murdered); and (3)
the Trial Chamber did not provide a reasoned opinion regarding how it relied upon the
evasiveness, untruthfulness, and confusion of the defendant™s testimony tendered in his
cooperation with the Prosecutor to reduce the value of cooperation as a mitigating factor.
Id. at ¶¶ 61“62, 70“73, 114.
Prosecutor v. Plavˇi´ , Case No. IT-00-39 & 40/1-S, ¶¶ 16, 42 (ICTY Trial Chamber,
69. sc
Feb. 27, 2003).
Prosecutor v. Babi´ , Case No. IT-03-72-S, ¶ 102 (ICTY Trial Chamber, June 29, 2004),
70. c
aff™d on appeal, Prosecutor v. Babi´ , Case No. IT-03-72-A (ICTY Appeals Chamber, July
18, 2005).
Prosecutor v. Joki´ , Case No. IT-01-42/1-S, ¶ 8 (ICTY Trial Chamber, March 18, 2004), aff ™d
71. c
on appeal, Prosecutor v. Joki´ , Case No. IT-01-42/1-A (ICTY Appeals Chamber, August 30,
2005) (sentence of seven years af¬rmed even though Appeals Chamber vacated many of
the convictions initially entered on the basis of superior responsibility).
72. Prosecution v. Strugar, Case No. IT-01-42-T (ICTY Trial Chamber, January 31, 2005).
73. On the subject of age as a mitigating factor, in December 2005 an ICTR Trial Chamber
sentenced Aloys Simba, a sixty-seven-year-old senior Rwandan army of¬cer, to twenty-¬ve
years in prison following a trial. Although Simba™s sentence did not involve a plea bargain,
the negligible practical effect of age in mitigation indicates retributive gaps between ICTY
and ICTR sentencing practice. In another case, though, the ICTR did turn to the defen-
dant™s advanced age and weak health to mitigate sentence. Prosecutor v. Ntakirutimana
et al., Case No. ICTR-96-10, ¶ 898 (ICTR Trial Chamber, Feb. 21, 2003).
Prosecutor v. Mrdja, Case No. IT-02-59-S, ¶ 129 (ICTY Trial Chamber, March. 31, 2004).
Notes to Pages 166“169 273

ˇ sc
75. Prosecutor v. Ceˇi´ , Case No. IT-95-10/1-S, ¶¶ 3, 13, 111 (ICTY Trial Chamber, March 11,
76. Prosecutor v. Jelisi´ , Case No. IT-95-10-T (ICTY Trial Chamber, December 14, 1999).
Prosecutor v. Deronji´ , Case No. IT-02-61-S, ¶¶ 44, 97“98, 277, 280 (ICTY Trial Chamber,
77. c
March 30, 2004).
Id., ¶¶ 135, 230, 280.
Prosecutor v. Deronji´ , Case No. IT-02-61-A, ¶ 151 (ICTY Appeals Chamber, July 20,
79. c
80. Accord, Julian A. Cook, III, Plea Bargaining at The Hague, 30 Yale J. Int™l L. 473, 477 (2005)
(noting “a plea hearing process that varies considerably from courtroom to courtroom due,
in large part, to the illimitable discretion that the Tribunal rules afford ICTY judges”).
81. Combs, Procuring Guilty Pleas, op. cit., at 127.
See, e.g., Prosecutor v. Franca da Silva, Case No. 04a/2001, ¶ 145 (Dili Dist. Ct. Serious
Crimes Spec. Panel, Dec. 5, 2002).
Prosecutor v. Atolan, Case No. 3/2003, ¶ 29 (Dili Dist. Ct. Serious Crimes Spec. Panel,
June 9, 2003). For this panel, remorse “is . . . of minor importance[,] . . . what matters is the
practical . . . cooperation with the Prosecution.” Id. ¶ 32.
84. Combs, Procuring Guilty Pleas, op. cit., at 73.
85. Id. at 74. See also id. at 145 (noting the Special Panels™ “somewhat arbitrary sentencing
practices” in plea-bargained cases).
86. See, e.g., Prosecutor v. Rutaganira, Case No. ICTR-95-1C-T (ICTR Trial Chamber,
March 14, 2005) (plea agreement involving not just the withdrawal of charges, but also
the Prosecutor™s requesting that acquittals be entered on the charges to which the defen-
dant did not plead guilty). Rutaganira was sentenced to six years™ imprisonment “ the
ICTR™s shortest sentence to date.
87. Prosecutor v. Bisengimana, Case No. ICTR-00-60-T (ICTR Trial Chamber, April 13, 2006).
88. Combs, Procuring Guilty Pleas, op. cit., at 103“104.
89. Id. at 73, 117“118.
90. Cesare Beccaria, On Crimes and Punishment (1764) (Young trans., 1986).
Prosecutor v. Kordi´ and Cerkez, IT-95-14/2-A, ¶ 1076 (ICTY Appeals Chamber, Dec. 17,
91. c
2004) (noting that “both individual [n.b. speci¬c] and general deterrence serve as important
goals of sentencing;” also discussing reintegrative deterrence).
92. Aukerman, op. cit., at 65, n.148 (“in the transitional justice context ˜deterrence™ almost
always refers to ˜general deterrence™ ”).
Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, ¶ 456 (ICTR Trial Chamber, Decem-
ber 6, 1999), aff ™d on appeal, Prosecutor v. Rutaganda, Case No. ICTR-96-3-A (ICTR
Appeals Chamber, May 26, 2003).
94. Report of the Secretary-General, In Larger Freedom “ Towards Development, Human
Rights, and Security for All, UN Doc. A/59/2005, ¶ 138 (March 21, 2005).
95. See, e.g., William W. Burke-White, Complementarity in Practice: The International Crimi-
nal 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 limita-
tions to his research and the impossibility of turning to these data to provide statistically
meaningful evidence that the ICC has had direct deterrent effect).
96. Jerry Fowler, A New Chapter of Irony: The Legal Implications of the Darfur Genocide
Determination, 1:1 Genocide Studies and Prevention 29, 36 (2006). There also is vivid
debate regarding the suitability of deterrence as a justi¬cation for punishment under ordi-
nary common criminal law. 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
274 Notes to Pages 170“174

97. John Braithwaite, Crime, Shame and Reintegration 69 (1989); Chuter, op. cit., at 271;
Michael Tonry, The Functions of Sentencing and Sentencing Reform, 58 Stan. L. Rev. 37,
52 (2005).
98. ICTY Press Release, ICTY President Pocar Addresses the Security Council (December 15,
99. Martha Minow, Between Vengeance and Forgiveness 50 (1998) (“Individuals who com-
mit atrocities on the scale of genocide are unlikely to behave as ˜rational actors,™ deterred by
the risk of punishment.”); Judith Shklar, Legalism: Law, Morals, and Political Trials
187 (rev. ed., 1986) (wondering “whether international criminal law can ful¬ll in any degree
the great function of criminal law “ the deterrence of potential criminals”). See also Beres-
ford, op. cit., at 43; Christopher Rudolph, Constructing an Atrocities Regime: The Politics of
War Crimes Tribunals, 55 Int™l Org. 655, 683“684 (2001); Immi Tallgren, The Sensibility
and Sense of International Criminal Law, 13 Eur. J. Int™l L. 561, 561 (2002); David Wipp-
mann, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int™l L.J.
473, 474 (1999).
100. M´ gret, op. cit., at 203.
101. Id.
102. Robert D. Kaplan, The Coming Anarchy 44“45 (2000).
103. Jaime Malamud-Goti, Transitional Governments in the Breach: Why Punish State Crimi-
nals?, 12 Hum. Rts. Q. 1 (1990).
104. Michael Ignatieff, The Lesser Evil 121 (2004).
105. Alette Smeulers, What Transforms Ordinary People into Gross Human Rights Violators?, in
Understanding Human Rights Violations “ New Systematic Studies 239, 247 (Carey
& Poe eds., 2004) (citations omitted).
106. See, e.g., Krijn Peters & Paul Richards, Fighting with Open Eyes: Youth Combatants Talking
About War in Sierra Leone, in Rethinking the Trauma of War 76, 109 (Bracken & Petty
eds., 1998) (noting that child soldiers “seek to stay alive using their strength and ingenuity as
best they can”); Kimberly Lanegran, Developments in International Law Regarding Recruit-
ment of Child Combatants from the Special Court for Sierra Leone 4 (2006) (unpublished
manuscript on ¬le with the author, cited with permission).
107. Mark J. Osiel, Mass Atrocity, Ordinary Evil, and Hannah Arendt 157 (2001); see also
Amy Chua, World on Fire 9, 124 (2004) (arguing that the simultaneous global spread of
democracy and markets is a major aggravating cause of ethnic violence, in particular in
countries with a market-dominant ethnic minority and a poor majority of a different ethnic
108. Klabbers notes a similar phenomenon at the national level: “[i]n Barbie, the French Cour
de Cassation ended up exempting France (and, by extension, democratic states generally),
from any possible complicity in crimes against humanity by linking such crimes to states
practicing ˜a hegemonic political ideology.™ ” Jan Klabbers, Book Review, 15 Eur. J. Int™l
L. 1055, 1056 (2004).
109. In Raji´ , an ICTY Trial Chamber held that “punishment aims at reinforcing the validity
and the effectiveness of the breached rules of international humanitarian law vis-` -vis the
perpetrator, the victims and the public.” Prosecutor v. Raji´ , Case No. IT-95-12-S, ¶ 69
(ICTY Trial Chamber, May 8, 2006). In the Rauter case, expressivism was explicitly cited
by the Netherlands Special Court of Cassation as an important purpose of punishment.
Trial of Hans Albin Rauter (Netherlands Special Court in The Hague, May 4, 1948, and
Netherlands Special Court of Cassation, January 12, 1949), reprinted at 14 Law Reports
of Trials of War Criminals 89, 109 (1949).
110. Patricia Wald, Book Review, 99 Am. J. Int™l L. 720, 725 (2005).
111. David Garland, Punishment and Modern Society: A Study in Social Theory 252
112. As the Nuremberg judges insisted, “only by punishing individuals who commit [crimes
against international law] can the provisions of international law be enforced.” International
Notes to Pages 174“176 275

Military Tribunal (Nuremberg), Judgment and Sentences (Oct. 1, 1946), reprinted in 41
Am. J. Int™l L. 172, 221 (1947).
113. Emile Durkheim, The Division of Labor in Society (1933).
114. For further writing on punishment as moral education, see H.L.A. Hart, Punishment and
Responsibility 255 (1968); Andrew von Hirsch, Censure and Sanctions 10 (1993).
115. Antonio Cassese, Re¬‚ections on International Criminal Justice, 61 Mod. L. Rev. 1, 1 (1998).
116. Molly Moore, Trial of Miloˇevi´ Holds Lessons for Iraqi Prosecutors, Washington Post
(October 18, 2005) at A19.
117. See generally David Luban, Beyond Moral Minimalism, 20 Ethics & International
Affairs 353 (2006).
118. Lawrence Douglas, The Memory of Judgment (2001) (writing within the context of the
Prosecutor v. Krsti´ , Case No. IT-98-33-A, ¶ 34 (ICTY Appeals Chamber, April 19, 2004).
119. c
120. Telford Taylor, The Anatomy of the Nuremberg Trials 54 (1992).
121. Robert Hariman, Popular Trials: Rhetoric, Mass Media, and the Law 2, 18 (ed.
122. Proceedings conducted locally also can be broadcast to a global audience. The process of
diffusion, however, can be more complex.
123. There are important differences between the proceedings held in Nuremberg and Adolf
Eichmann™s trial in Jerusalem. Whereas Nuremberg principally involved documentary
evidence, Eichmann turned on victim testimony; whereas Nuremberg focused on Nazi
aggression, Eichmann focused on crimes against the Jewish people.
124. Nuremberg required a nexus between the existence of an aggressive war and crimes against
humanity. This was so, according to William Schabas, owing to unease on the part of the
Allies that the independent criminalization of crimes against humanity might restrict Allied
governments with regard to their own national minorities or in the colonies. William A.
Schabas, An Introduction to the International Criminal Court 42 (2d ed., 2004).
The requirement of a nexus between aggressive war (or any armed con¬‚ict at all) and
crimes against humanity has since departed international criminal law.
125. See, e.g., Tristram Hunt, Whose Truth? Objective Truth and a Challenge for History, 15
Crim. L. F. 193, 197 (2004) (discussing the work of historian Richard Evans, who argues that
phenomena such as the “judicialization of history” that arise from retrospective criminal
law bring a crass categorization among perpetrators, bystanders, and victims that actually
presents obstacles to understanding the past, appreciating the diffuseness of historical
synthesis, and educating for the future); Eric Stover, Witnesses and the promise of justice in
The Hague, in My Neighbor, My Enemy: Justice and Community in the Aftermath of
Mass Atrocity 104, 116 (Stover & Weinstein eds., 2004) (noting that, although the ICTY
has convened four trials based on attacks by Bosnian Croats on the ethnically mixed village
of Ahmici, a study reveals that there is “absolutely no indication that these trials have in
any way transformed the way in which Croats in the village interpret what happened”).
David Mendeloff questions the instrumental usefulness of obtaining “truth.” He notes that
“we actually know very little about the impact of truth-telling or truth-seeking on peace.”
Mendeloff, op. cit., at 356. See also id. at 365: “[T]he truth-telling literature relies heavily
on anecdotal evidence.” Mendeloff observes situations where “collective forgetting” might


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