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have proven “conducive to harmony and cooperation,” such as postFranco Spain and
Mozambique. Id. at 367.
126. According to South African Justice Albie Sachs, microscopic and logical truths are exacted
on a “beyond a reasonable doubt” standard derived from a sequential proof of facts. Albie
Sachs, Lecture at Columbia University School of Law (Apr. 13, 1999), cited and discussed
in Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda,
75 N.Y.U. L. Rev. 1221, 1283 (2000) (notes on ¬le with author). For Sachs, experiential and
dialogic truths are different. They emerge phenomenologically when people come forward
and tell their stories. Restorative mechanisms “ whether in the form of truth commissions
276 Notes to Pages 176“179

or traditional dispute resolution “ may constitute comfortable sites for such storytelling.
Through a process of accretion over time, these expressions of experience create an over-
arching historical narrative that can displace preexisting narratives that normalized or
legitimized violence. For Sachs, courts do not encourage experiential or dialogic truths.
127. Aukerman, op. cit., at 73.
128. Martti Koskenniemi, Between Impunity and Show Trials, 6 Max Planck Yearbook of
U.N. Law 1, 33 (2002) (discussing Miloˇevi´ proceedings).
sc
129. Elizabeth Neuffer, The Key to My Neighbor™s House 298 (2002).
130. The IHT™s Dujail judgment was announced in November 2006. Written reasons were
issued in December 2006. The trial attracted considerable concern regarding its apparent
departure from internationalized due process standards and the fact that three defense
lawyers and a witness had been assassinated. Sentences for convicted defendants ranged
from death to term imprisonment (15 years). An appeals court af¬rmed most of the IHT
sentences, including Saddam Hussein™s, in December 2006. Hussein was executed. In the
IHT judgment, only 4 (of 283) pages dealt with sentence (in addition, there was a brief
discussion in Part 2 of the judgment regarding the legality of punishment). The IHT offered
no explanation as to the purposes of sentencing. In addition to being brief, the sentencing
discussion was rote and repetitive. The IHT listed the convicts and their convictions,
ordered as to type of conviction, and then stipulated a penalty. The IHT did not explain,
for the public, exactly why some of the defendants received lesser sentences than others.
To be sure, a discerning reader could total the numbers of convictions, and the crimes for
which convictions were issued, and come to some conclusion that the gravity of certain
convictions exceeded that of others or that an accumulation of convictions mechanically
led to a harsher sentence. However, such inferences never were explicated. The IHT did
not mention aggravating or mitigating factors. It remains unclear whether what the IHT
took as aggravating factors in sentencing were identical to factors it considered in ¬nding
liability (the Nuremberg judges did this, but the ICTY, which sentences less severely than
the IHT, has repudiated such double-dipping).
131. For example, Plavˇi´ refused to involve anyone else in the violence or testify in any other
sc
cases. She took responsibility for her own actions, but stated that this responsibility was
hers “alone” and was not to be “extend[ed] to other leaders who have a right to defend
themselves.” Combs, International Decisions, op. cit., at 934 (citing reports). The bargained-
for testimony of another defendant who pled guilty was subsequently found to be evasive
and even false. See, e.g., Prosecutor v. Momir Nikoli´ , Case No. IT-02-60/1-A, ¶ 106 (ICTY
c
Appeals Chamber, March 8, 2006) (“[T]he mere fact that the Deronji´ Trial Chamber gave
c
signi¬cant weight to the accused™s co-operation notwithstanding certain false statements
does not illustrate that the Trial Chamber in this case abused its discretion in reaching a
different result.”); see also Prosecutor v. Krsti´ , Case No. IT-98-33-A, ¶ 94 (ICTY Appeals
c
Chamber, April 19, 2004) (hesitating to rely independently on Deronji´ ™s plea-bargained
c
testimony in the proceedings against Krsti´ owing to discrepancies in Deronji´ ™s testimony
c c
and the ambiguity surrounding some of the statements he had made).
See, e.g., Prosecutor v. Sikirica, Case No. IT-95-8-S, ¶ 149 (ICTY Trial Chamber, Nov. 13,
132.
2001) (“ . . . a guilty plea contributes directly to one of the fundamental objectives of the
international tribunal: namely, its truth-¬nding function”); Prosecutor v. Todorovi´ , Case
c
No. IT-95-9/1-S, ¶ 81 (ICTY Trial Chamber, July 31, 2001) (stating that “a guilty plea is
always important for the purpose of establishing the truth in relation to a crime”).
Prosecutor v. Deronji´ , Case No. IT-02-61-S, ¶ 4 (ICTY Trial Chamber, March 30, 2004)
133. c
(Schomburg, J., dissenting).
134. Combs, International Decisions, op. cit., at 931. Other cases where charges were dropped
include Prosecutor v. Bisengimana, Case No. ICTR-00-60-T, ¶¶ 136“137 (ICTR Trial
Chamber, April 13, 2006); Prosecutor v. Mrdja, Case No. IT-02-59-S, ¶¶ 4“5 (ICTY
Trial Chamber, March 31, 2004) (dropping charge of crime against humanity as part
Notes to Page 179“184 277

of the plea bargain). Babi´ also pled guilty to one count of persecution as a crime
c
against humanity in exchange for agreement by the ICTY Prosecutor to drop four
other charges. Babic Admits Persecuting Croats, BBC News (Jan. 27, 2004), available
at http://news.bbc.co.uk/2/hi/europe/3433721.stm.
135. Combs, Procuring Guilty Pleas, op. cit., at 91.
136. Id. at 91“92.

7. from law to justice
1. Paul Roberts, Restoration and Retribution in International Criminal Justice: An Exploratory
Analysis, in Restorative Justice and Criminal Justice 115, 119 (von Hirsch et al., eds.
2002).
2. Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16 Eur.
J. Int™l L. 113, 114 (2005); Martti Koskenniemi, The Gentle Civilizer of Nations: The
Rise and Fall of International Law 1870“1960 (2001).
3. Koskenniemi, International Law in Europe, op. cit., at 115. It is important to differentiate
universality from universalism. “[U]niversalism is the attempt to eliminate particularity
and achieve uniformity at [the] global level; ˜universality™ is the attempt to bring out and
develop the global resonance of particular ideas.” Susan Marks & Andrew Clapham,
International Human Rights Lexicon 398 (2005).
4. Stuart Hampshire, Innocence and Experience 90 (1989). Hampshire describes these
“great evils” as follows: “murder and the destruction of life, imprisonment, enslavement,
starvation, poverty, physical pain and torture, homelessness, friendlessness.” Id. He thus
writes well beyond the proscriptions of international criminal law.
5. David Luban, Intervention and Civilization: Some Unhappy Lessons of the Kosovo War,
in Global Justice and Transnational Politics 79, 103 (De Greiff & Cronin eds.,
2002). The unique moral gravity of genocide is set out in Richard J. Bernstein, Radi-
cal Evil: A Philosophical Interrogation (2002). See also David Hirsch, The Law
Against Genocide: Cosmopolitan Trials 156 (2003) (observing that “there is no one
who argues that genocide is traditional in a particular ˜culture™ [ . . . ] there is universal
agreement that a social formation, a group of people, must not be allowed to murder entire
populations”).
6. Larry May, Crimes Against Humanity 22 (2005) (¬nding such a justi¬cation by reference
“to the security principle, the international harm principle, jus cogens norms, and the
international rule of law”).
7. The State of Israel v. Adolf Eichmann (Sup. Ct. Israel, May 29, 1962), 36 Int™l L. Rep. 277,
287, 291 (1968).
8. To be sure, not all scholarly communities adopt the legal de¬nition of these crimes (at
least this has been my experience). Historians, political scientists, and anthropologists may
de¬ne genocide somewhat differently. Also, in some cases (for example, crimes against
humanity), these de¬nitions have evolved over time.
9. The line between procedure and substance is not watertight. Procedure can affect sub-
stance; substance can affect procedure.
10. May, Crimes, op. cit., at 252.
11. I use the term path dependence crudely. For a sophisticated treatment of path dependence,
see Oona Hathaway, Path Dependence in the Law: The Course and Pattern of Change in a
Common Law Legal System, 86 Iowa L. Rev. 601 (2001). Path dependence has consider-
able potential as an analytic tool. One possible direction for future research is to explore
whether other areas of international law, for example economic relations or environmental
protection, derive from dominant national practices and, if so, to contrast this process of
diffusion with that of international criminal law.
12. May, Crimes, op. cit., at 175.
278 Notes to Pages 184“186

13. Id. See also David Chuter, War Crimes: Confronting Atrocity in the Modern World
94, 96“97 (2003).
14. Radhika Coomaraswamy, Identity Within: Cultural Relativism, Minority Rights and the
Empowerment of Women, 34 Geo. Wash. Int™l L. Rev. 483, 513 (2002).
15. Kant revisited cosmopolitanism as taught by the Cynics and Stoics. He invoked their
teachings in his elucidation of the concept of cosmopolitan law. Immanuel Kant, Political
Writings (ed. Reiss, trans. Nisbet, 2d ed., 1991).
16. Summarizing the Stoic approach, Nussbaum writes that “[w]e need not give up our special
affections and identi¬cations, whether ethnic or gender-based or religious. We need not
think of them as super¬cial, and we may think of our identity as constituted partly by
them.” Martha C. Nussbaum, Patriotism and Cosmopolitanism, in For Love of Country?
9 (Nussbaum, 2002).
17. Nussbaum, Patriotism and Cosmopolitanism, op. cit.; Martha C. Nussbaum, Reply, in For
Love of Country? 131 (Nussbaum, 2002); Martha C. Nussbaum, Kant and Cosmopoli-
tanism, in Perpetual Peace: Essays on Kant™s Cosmopolitan Ideal 25“57 (Bohman
& Lutz-Bachmann eds., 1997); Martha C. Nussbaum, Frontiers of Justice: Disability,
Nationality, Species Membership (2006).
18. David Hollinger, Postethnic America 84“85 (1995) (positing that cosmopolitans are
receptive to “recognition, acceptance, and eager exploration of diversity” and, unlike uni-
versalists, do not view diversity as a problem).
19. David Held, Democracy and the Global Order: From the Modern State to Cos-
mopolitan Governance (1995).
20. Kok-Chor Tan, Justice without Borders: Cosmopolitanism, Nationalism, and Patri-
otism 102“105 (2004) (writing largely within the context of economic justice). See also
Hirsch, op. cit. (constructing international criminal law as an incipient form of cosmopoli-
tan law).
21. Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers xviii
(2006) (“A creed that disdains the partialities of kinfolk and community may have a past,
but it has no future.”).
22. Paul Schiff Berman, Seeing Beyond the Limits of International Law, 84 Tex. L. Rev. 1265
(2006).
23. Nussbaum, Patriotism and Cosmopolitanism, op. cit., at 4.
24. Id. at 14.
25. Nussbaum, Reply, op. cit., at 141.
26. Id. at 135.
27. Kwame Anthony Appiah, Cosmopolitan Patriots, in For Love of Country? 22 (Nussbaum,
2002) (describing “rooted cosmopolitanism” and “cosmopolitan patriotism”).
28. Appiah, Cosmopolitanism, op. cit., at xxi. By moving international law from its focus on
states to include a vision of individuals as independent moral actors, and then bestow-
ing international legal personality upon individuals, the ICC propounds a cosmopolitan
conception of international law.
29. Berman, Seeing Beyond, op. cit., at 1303“1304. See also Paul Schiff Berman, Towards a
Cosmopolitan Vision of Con¬‚ict of Laws: Rede¬ning Government Interests in a Global Era,
153 U. Pa. L. Rev. 1819, 1821“1823 (2005) (considering cosmopolitanism in choice of law
and civil procedure).
30. Berman, Seeing Beyond, op. cit., at 1304“1305. For a general discussion, see also Jeremy
Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. Mich. J. L. Reform
751 (1992).
31. This term is from Anthony Giddens, The Third Way: The Renewal of Social Democ-
racy 66 (1998). Giddens writes within the starkly different context of reforming social
democracy, speci¬cally in Great Britain. He does include a chapter on the cosmopolitan
nation and cultural pluralism, in which the term cosmopolitan pluralism is not developed.
Notes to Pages 187“191 279

32. For more detailed treatment of this argument, see Mark A. Drumbl, Punishment, Postgeno-
cide: From Guilt to Shame to Civis in Rwanda, 75 N.Y.U. L. Rev. 1221, 1224“1225 (2000).
See also Jeremy Sarkin & Erin Daly, Too Many Questions, Too Few Answers: Reconciliation
in Transitional Societies, 35 Colum. Hum. Rts. L. Rev. 661, 665“666 (2004) (positing that
the meaning of reconciliation will be different in each society).
33. I personally do not see a convincing empirical or experiential basis for such a conclusion.
34. Mattias Kumm, The Legitimacy of International Law: A Constitutionalist Framework of
Analysis, 15 Eur. J. Int™l L. 907, 921 (2004).
35. Yuval Shany, Toward a General Margin of Appreciation Doctrine in International Law?, 16
Eur. J. Int™l L. 907, 907 (2005).
36. Id. at 910, 939.
37. Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass
Atrocity, 99 Nw. U. L. Rev. 539, 610 (2005), my use of this term reprised in Harvey M.
Weinstein & Eric Stover, Introduction: con¬‚ict, justice, and reclamation, in My Neighbor,
My Enemy: Justice and Community in the Aftermath of Mass Atrocity 1, 12 (Stover
& Weinstein eds., 2004).
38. For example, the Eichmann trial was widely televised.
39. Michael Slote explores virtue ethics through the writings of Hutcheson, Hume, and Mar-
tineau. See Michael Slote, War Crimes and Virtue Ethics, in War Crimes and Collective
Wrongdoing 77 (Joki´ ed., 2001).
c
40. Anthony Ellis, Introduction, in War Crimes and Collective Wrongdoing 1, 14 (Joki´ c
ed., 2001). See also Slote, op. cit., at 81 (noting that a morality of war crimes based
on sentimentalist virtue ethics will, in determining what is just, “look to what people
(notably but not exclusively legislators) are trying to do with a nation™s future” [emphasis
omitted]).
41. “[A] basic tenet of social reconstruction or reclamation is the need for post-war communi-
ties to de¬ne and take ownership of the processes of justice and reconciliation.” Weinstein
& Stover, Introduction: con¬‚ict, justice and reclamation, op. cit., at 18. Moreover, as I have
argued should be the case in Afghanistan, international criminal law interventions would
do well to encourage the inclusion of all community members in the processes by which
community norms are edi¬ed. Mark A. Drumbl, Rights, Culture, and Crime: The Role
of Rule of Law for the Women of Afghanistan, 42 Colum. J. Transnat™l L. 349 (2004).
Many local customs to which international law understandably expresses considerable ret-
icence are in fact promulgated by elites unrepresentative of local populations or religious
leaders unrepresentative of the members of religious communities. By fostering access
to the construction of representative local norms instead of binarily opposing extant local
norms to international standards and then imposing those international standards, interna-
tional legal intercessions can help overcome the democratic de¬cit. Instead of encouraging
mimicry by national institutions that may pursue ulterior motives, perhaps international
criminal law intercessions can empower locally.
42. The XVIIth International Congress of Penal Law (Beijing, China, September 2004), Reso-
lutions, Section IV, Concurrent National and International Criminal Jurisdiction and the
Principle “Ne bis in idem,” Part I, General Principles 1, 2 (on ¬le with the author).
43. Id.
44. For additional background information on the atrocities in the Sudan, see Beth Van
Schaack, Darfur and the Rhetoric of Genocide, 26 Whittier L. Rev. 1101 (2005); Rosanna
Lipscomb, Restructuring the ICC Framework to Advance Transitional Justice: A Search for
a Permanent Solution in Sudan, 106 Colum. L. Rev. 182 (2006).
45. Janjaweed literally means devils on horses.
46. United Nations, International Commission of Inquiry on Darfur, Report to the United
Nations Secretary-General, pursuant to Security Council Resolution 1564 (January 25,
2005).
280 Notes to Pages 191“193

47. S.C. Res. 1593 (March 31, 2005) (United States, China, Algeria, and Brazil abstaining).
Sudan is not a party to the Rome Statute. The Sudan referral is therefore an example of
how the ICC can act like an ad hoc tribunal in situations where the Security Council
¬nds a breach of the peace, threat to the peace, or an act of aggression. Resolution 1593
did consider “the possibility of conducting proceedings in the region.” Id. ¶ 3.
48. Sudanese President Vows to Defy U.N. Vote, Washington Post (April 3, 2005) at A30.
49. Elizabeth Rubin, If Not Peace, Then Justice, New York Times Magazine 43, 44“45
(April 2, 2006).
50. On August 13, 2005, a Sudanese court convicted three low-level members of the Sudanese
Army of “waging war” in Darfur. Show Trials are Not Substitutes for International Criminal
Courts, Damanga Statement, Sudan Tribune (August 23, 2005) (on ¬le with the author).
This court, referred to as the Darfur Special Criminal Court, was specially established
by decree of the Sudanese government to prosecute individuals for crimes committed in
Darfur. Id. On November 18, 2005, this court sentenced two soldiers to death for tortur-
ing and killing civilians. High-level defendants have not yet been implicated. Victims™
rights groups are concerned that trials conducted in the Sudan do not do justice to vic-
tims nor prevent the government from continuing to perpetrate atrocities against its own
population.
51. For a much broader discussion of the Pashtunwali, see Drumbl, Rights, Culture, and Crime,
op. cit.
52. For example, in 2006, Afghanistan™s National Security Court convicted a former head
of intelligence and deputy prime minister of war crimes and sentenced him to death by
shooting for killing hundreds of people during communist rule. Yousuf Azimy, Afghan
Court Sentences Former Spy Chief to Death (Reuters, Feb. 25, 2006) (on ¬le with the
author). Afghans generally view state courts as corrupt.
53. The use of young girls as chits to settle feuds is practiced elsewhere, even where of¬cially
illegal. In November 2005, a village council in Pakistan decreed that ¬ve young women
should be “abducted, raped or killed” for refusing to honor marriages that “were part of
a compensation agreement ordered by the village council and reached at gunpoint after
the father of one of the girls shot dead a family rival.” Isambard Wilkinson, Blood Debt
Women Offered Up for Rape, The Telegraph (UK) (November 22, 2005). At the time
of the agreement, the girls ranged in age from six to thirteen years old. Compensatory
arrangements that involve handing over women to resolve disputes are called vani in this
region of Pakistan. Vani has been banned by the Pakistani Parliament, but this ban “has
been widely ignored.” Id.
54. Drumbl, Rights, Culture, and Crime, op. cit., at 386“88. See also generally Isobel Coleman,
Women, Islam, and the New Iraq, 85:1 Foreign Affairs 24, 25“26 (January/February 2006)
(discussing the views of scholars that the content of certain Islamic laws emerged from
“selective interpretation by patriarchal leaders and a mingling of Islamic teachings with
tribal customs and traditions” undertaken historically for purposes of consolidating the
control exercised by such leaders).
55. June 2006.
56. John F. Burns, Hussein Lawyer Seized and Slain in Baghdad Raid, N.Y. Times (June 22,
2006); Joshua Partlow & Bassam Sebti, Hussein Defense Lawyer Kidnapped, Killed, Wash-
ington Post (June 21, 2006); Sabrina Tavernise & Christine Hauser, Another Lawyer in
Hussein™s Trial Is Slain by Gunmen, N.Y. Times (Nov. 8, 2005).
57. John F. Burns, Hussein™s Trial Resumes in Baghdad, N.Y. Times (Nov. 28, 2005).
58. Another example involves the United Nations Security Council™s unanimous resolution
to transfer Charles Taylor to The Hague to be tried by the Special Court for Sierra Leone
sitting in the ICC™s courtroom facilities. See Security Council Resolution 1688 (June 16,
2006). Sweden and the U.K. have promised to jail Taylor if he is ultimately convicted.
Sierra Leonean of¬cials fear that the prosecution of Charles Taylor in Freetown would
destabilize the region.
Notes to Pages 194“198 281

59. Rwanda has fairly tranquilly conducted ten thousand prosecutions in the Specialized
Chambers of the national courts.
60. See generally Donald Francis Donovan & Anthea Roberts, The Emerging Recognition of
Universal Civil Jurisdiction, 100 Am. J. Int™l L. 142, 153 (2006).
61. Id. at 142.
62. There is limited coordination between the ICJ and the various international criminal courts
with regard to the consistent development of substantive law.
63. Whether through private law or extrajudicial mechanisms.
64. Just because a justice initiative is restorative in nature does not necessarily equate it with
collective sanction. Restorative justice can narrowly focus on individuals with the level of
proven guilt that a liberal criminal trial would require.
65. In its 1993 judgment in Aloeboetoe et al. Case (Reparations), the InterAmerican Court
of Human Rights awarded monetary damages to victims of a massacre in a tribal village
in Suriname. Suriname had admitted its liability, so the dispute proceeded to issues of
compensation and reparation. One of the points of dispute was whether customary tribal law
or Suriname™s civil law applied. The InterAmerican Commission on Human Rights asserted
that tribal law applied and that the application of tribal law would permit group recovery for
the tribe as a whole. Aloeboetoe et al. Case (Reparations), Judgment (September 10, 1993),
¶¶ 55, 81, 83. The InterAmerican Court, however, refused to award damages to the tribe as a
whole and, instead, awarded damages individually where claims were proved to be causally
related to the harms. I thank Diane Marie Amann for this reference. The ICC Rules are
responsive to this issue, in that they permit reparations to be awarded on an “individualized
basis” or, where the ICC “deems it appropriate, on a collective basis or both.” ICC R.P. &
Evid. Rule 97(1), available at http://www.icc-cpi.int/library/basicdocuments/rules(e).pdf.
66. See supra Chapter 2.
67. Such state criminal responsibility is not accepted by publicists (for example, the Inter-
national Law Commission). James Crawford, The drafting of the Rome Statute, in From
Nuremberg to The Hague 109, 116 (Sands ed., 2003).
68. Mark A. Drumbl Pluralizing International Criminal Justice, 103 Mich. L. Rev. 1295 (2005)
(spooling out the differences among collective guilt, collective responsibility, and collec-
tive liability); Hannah Arendt, Collective Responsibility, in Responsibility and Judgment
(Kohn ed., 2003). For further discussion of collective responsibility, see Joel Feinberg, Col-
lective Responsibility, 65 Journal of Phil. 674 (1968); Larry May, Sharing Responsibility
(1992).
69. With one exception: where every member of the group actually contributed equally to
the wrongdoing, and did so through pertinent positive action. “There is nothing wrong in
principle with the idea of assigning guilt to an entire population, assuming that everyone
has indeed engaged in the same transgression. As Arendt points out, that is the situation in
the Biblical story of the towns of Sodom and Gomorrah. . . . ” May, Crimes, op. cit., at 161.
70. As a criminal law doctrine, joint criminal enterprise obviously involves culpability, not
responsibility.
71. See Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosn. & Herz. v. Yugo.), 1993 I.C.J. 3 (Apr. 8). The (former) FRY had ¬led a
counterclaim in 1997 (which it withdrew on September 10, 2001), in which it requested
the ICJ adjudge that Bosnia and Herzegovina was responsible for the genocide of Serbs.
See Order, Case Concerning Application of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), 2001 I.C.J. 91 (Sept. 13).
72. The Confederation of Serbia and Montenegro was dissolved in May 2006 when, following
a plebiscite, Montenegro narrowly voted for independence. Serbia now is the successor
state to Serbia and Montenegro.
73. See Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croat. v. Yugo.), 1999 I.C.J. 118 (July 2) (alleging that Serbia and Montenegro
remains liable for infringements of the Genocide Convention by virtue of the activities of
282 Notes to Pages 198“201

FRY armed forces and paramilitary detachments on the territory of Croatia from 1991 to
1995).
74. Case Concerning Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosn. & Herz. v. Yugo.), I.C.J. General List No. 91 (July 11, 1996)
(preliminary objections).
Id. ¶ 32.
75.
76. Id., joint declaration of Judge Shi and Judge Vereshchetin (emphasis in original).
77. Id.
78. Marko Milanovi´ , State Responsibility for Genocide, 17 Eur. J. Int™l L. 553, 589 (2006).
c
79. The ICJ may rule in favor of Serbia and Montenegro. It may do so by concluding that there
was no genocide in Bosnia as a whole (which is the thrust of Bosnia and Herzegovina™s
claim) or at Srebrenica speci¬cally (the latter ¬nding would entail disagreement with the
ICTY™s ¬nding that genocide occurred at Srebrenica). Obversely, if the ICJ were to rule that
genocide occurred in Bosnia as a whole, this, too, would diverge from the ICTY™s approach.
The ICJ is not bound to follow the ICTY although, formally, ICTY judgments are “judicial
decisions” and, hence, constitute a subsidiary source of international law. See Statute of the
International Court of Justice, 59 Stat. 1055, art. 38(1)(d) (June 26, 1945). Alternately, the
ICJ may dismiss the Bosnian claim on the basis that genocidal intent cannot be attributed
to the state of Serbia and Montenegro, or that the state had no control over perpetrators
found to have genocidal intent. The ICJ may even avoid these dif¬cult questions entirely
and dismiss based on other grounds, possibly including “ in a maneuver that smacks of
avoidance doctrine “ revisiting jurisdiction. The groundwork for such a maneuver already
may have been laid in 2004 by virtue of how a majority of the ICJ disposed of Serbia and
Montenegro™s claims against certain NATO states. Case Concerning the Legality of Use
of Force (Serb. & Mont. v. Belgium et al.), ICJ General List No. 105 et al. (December 14,
2004). Serbia and Montenegro had ¬led suit regarding alleged violations of international
law triggered by what it argued was an unlawful use of force by a number of NATO countries
involved in the “humanitarian armed intervention” bombings of the FRY in 1999. Although
all ICJ judges agreed that the preliminary objections as to jurisdiction should be granted
(and the claim dismissed), a number of judges disagreed with the reasoning of the majority
insofar as it related to the Genocide Convention. Seven judges noted in a joint declaration
that the majority™s approach “appears to leave some doubt as to whether Yugoslavia was
a party, between 1992 and 2000, to the United Nations Genocide Convention. Such an
approach could call into question the solutions adopted by the Court with respect to its
jurisdiction in the case brought by Bosnia-Herzegovina against Serbia and Montenegro for
the application of the Genocide Convention.” Joint Declaration of Vice-President Ranjeva,
Judges Guillaume, Higgins, Kooijmans, Al-Khasawneh, Buergenthal, and Elaraby, ¶ 13.
See also Separate Opinion of Judge Higgins, ¶ 18; Separate Opinion of Judge Elaraby,
Part V.
80. Thomas Franck, State Responsibility in the Era of Individual Criminal Culpability, But-
terworth Lecture, Queen Mary, University of London, Department of Law (October 10,
2005) pp. 19“20 (earlier draft manuscript on ¬le with the author). Franck considers that
acts attributed to the state “are the acts of the society as a whole unless it can be shown
that the conditions of governance in that state, at the critical time when genocide was
being planned and executed, were such that the people, by asserting their power, could
not have resisted.” Id. at p. 18. Mark Osiel is similarly minded. “When state-sponsored mass
atrocity enjoys the substantial support of a country™s population, its citizens should share
the costs of redressing it. This is especially true when the regime perpetrating the atrocities
was relatively democratic, responsive to popular will, like Serbia during the Balkan wars.”
Mark Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105 Colum.
L. Rev. 1751, 1841 (2005).
81. Examples include: corporate law, including litigation against corporations under the Alien
Tort Claims Act (affecting shareholders not responsible for and generally with no in¬‚uence
Notes to Pages 201“209 283

over corporate action); law of agency; insurance law; social host liability; and professional
responsibility. See also George Fletcher, Liberals and Romantics at War: The Problem of
Collective Guilt, 111 Yale L. J. 1499, 1536 (2002).
82. See, e.g., Daryl J. Levinson, Collective Sanctions, 56 Stan. L. Rev. 345 (2003) (discussing
collective legal sanctions against groups in nonWestern societies). The United Nations
Security Council has invoked some of the harshest kinds of collective sanctions, for example
the imposition of economic sanctions on a state and monitoring of a state™s activities.
83. See, e.g., 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, December 19, 2005) (¬nal judgment).
Id. ¶ 345. The ICJ did engage in a form of avoidance doctrine when it came to ignoring
84.
the DRC™s claim that Uganda committed aggression and should be responsible therefore.
On February 3, 2006, the ICJ dismissed upon jurisdictional grounds a claim brought to it
by the DRC against Rwanda regarding violence on Congolese territory that might have
overlapped with the ICC™s investigations. International Court of Justice, Press Release
2006/4, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo
v. Rwanda, 2002) (February 3, 2006).
85. Drumbl, Pluralizing International Criminal Justice, op. cit., at 1315“1319, 1322. For an exam-
ple of one author™s dif¬culties in distinguishing guilt from responsibility, and resultant
essentialization of my work, see Lars Waldorf, Mass Justice for Mass Atrocity: Rethinking
Local Justice as Transitional Justice, 79 Temp. L. Rev. 1, 83 (2006).
86. Fletcher actually develops his analysis within the context of collective guilt instead of
collective responsibility. Fletcher, Liberals and Romantics at War, op. cit. (arguing that
collective guilt actually has a sound grounding in Western culture); George P. Fletcher,
Collective Guilt and Collective Punishment, 5 Theoretical Inquiries in Law 163, 168, 169,
173“174 (2004) (assuming that collective guilt is a “plausible [ . . . ] and sometimes healthy
response to collective wrongdoing” and discussing the biblical reference in Genesis in
which ten of Joseph™s brothers come to the collective conclusion that they are guilty for
having ignored their brother™s cries of pain).
87. “[C]ollective responsibility can sometimes be more productive of societal healing and
harmony than is the accusation and counter-accusation of the criminal trial™s attempt to
establish individual responsibility.” May, Crimes, op. cit., at 246.
88. Osiel, The Banality of Good, op. cit., at 1839“1840. Osiel is one of the few scholars to explore
the role of incentives, monitoring, and policing in contexts of mass atrocity. His ultimate
proposal “ the imposition of monetary sanctions on the military of¬cer corps “ is fairly
modest.
89. James Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass
Killing 205 (2002).
90. Matthew Krain, International Intervention and the Severity of Genocides and Politicides, 49
Int™l Stud. Q. 363, 383 (2005).


8. conclusion: some immediate implications
1. The expression is from Frank O. Bowman III, The Failure of the Federal Sentencing Guide-
lines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1327 (2005).
2. Laurel E. Fletcher, From Indifference to Engagement: Bystanders and International Crim-
inal Justice, 26 Mich. J. Int™l L. 1013 (2005).
3. M. Cherif Bassiouni, Introduction to International Criminal Law 703 (2003).
Index




Accountability. See also speci¬c nation or Babi´ case, 60, 62, 166
c
Bagaragaza case, 140
tribunal
externalization of justice and, 128 Barayagwiza case, 131
limitations of, 147“148 Barbie case, 119, 176
Afghanistan Bashir, Omar Hassan, 191“192
Independent Human Rights Commission, Bassiouni, Cherif, 209
44 Belgium, proceedings involving atrocities in
quali¬ed deference, proposed applicability of, Rwanda, 83“84
192 Belzec camp, proceedings regarding, 116
war crimes, 243 Beno case, 61
Aggravating factors. See also speci¬c nation or Berman, Paul Schiff, 20, 185, 186
bin Laden, Osama, 132
tribunal
examples of, 64 Bisengimana case, 159, 167
ordinary criminal process compared, 65“66 Bizuru case, 75
special circumstances of war as, 104 Blagojevi´ cas´ , 163
ce
Aiding and abetting theory of liability, 39 Blaˇki´ cas´ , 56, 65
sc e
Akayesu case, 131 Booth, Cherie, 36
Akhavan, Payam, 9 Bormann, Martin, 47
Al-Qaeda, 132, 133 Bosnia and Herzegovina
Allot, Philip, 36 atrocities, 99
Amann, Diane Marie, 17, 151 ICJ claim against Serbia and Montenegro,
Amnesty, 154. See also speci¬c nation or 198“201, 282
independence of, 99
tribunal
Amnesty International, report on Rwanda, 76 national/local legal institutions, 105“106
Anglo-American common law cantonal courts, 105
convergence with Continental civil law, 127, early release, 101“102
128 in¬‚uence of ICTY, 103
ICTR, in¬‚uence of, 127“128 maximum sentences, 102
ICTY, in¬‚uence of, 127“128 mitigating factors, 103
Appiah, Kwame Anthony, 20, 185, 186 new criminal codes, 100
Arendt, Hannah, 2, 3, 29, 31, 156, 182 ordinary criminal process compared with
Argentina atrocity proceedings, 104
amnesty, 154 OSCE report on prosecutions in, 105
crimes against humanity, 243 plea bargaining, 103, 167
Aukerman, Miriam, 23, 176 range of sentences, 102
Auschwitz camp, proceedings regarding, 116 referrals by ICTY to, 138, 139
Avocats sans fronti` res (ASF), 77
e reparations system, 106
Awochi case, 115 sentencing practices, 101, 106, 253



285
286 Index

Bosnia and Herzegovina (cont.) deterrence and, 202
public participation in atrocities, 27 expressivism and, 202
Srebrenica massacre (See Srebrenica group members, effect on, 202“203
massacre) ICJ claim of Bosnia and Herzegovina against
War Crimes Chamber, 105 Serbia and Montenegro, applicability to,
Brdanin case, 56 200“201
Buchanan, Allen, 135 ordinary criminal process, existence in, 37“38
Bugirimfura case, 75 overview, 197
Burke-White, William, 145 potential bene¬ts of, 204
Bystanders potential shortcomings of, 204
collective responsibility and, 203 research, importance of, 204
complicity of, 26 utilitarianism and, 202
dissuasion of, 172 Combs, Nancy Amoury, 161, 179
overview, 25 Command responsibility theory of liability, 39
Common law. See Anglo-American common
Cambodia Extraordinary Chambers law
historical background, 217 Commutation of sentences. See Early release
maximum sentences, 52“53 Complementarity principle, 141“147
overview, 7 comparative law assessments and, 142“143
positive law frameworks, 50 discretion regarding, 143
Canada, emigration of World War II atrocity homogeneity encouraged by, 143
suspects to, 118 nonprosecutorial proceedings and, 142
Ceausescu, Elena, 156 overview, 141
Ceausescu, Nicolae, 156 pressure on states to prosecute, 143
Ceˇi´ case, 166
sc quali¬ed deference proposal contrasted, 147
Chang, Iris, 27 review of national practices and, 142
Charge bargaining, 164, 179 self-referrals to ICC and, 143“144
Chile, amnesty, 154 sham proceedings and, 142
Churchill, Winston, 3 unresolved issues regarding, 141
Chuter, David, 129 Conditional release. See Early release
Cigar, Norman, 38 Conditions of imprisonment. See speci¬c nation
Civil damages or tribunal
proportionality in, 161 Confessions
Rwanda (See Rwanda) plea bargaining and, 163
Civil law. See Continental civil law Rwanda, 74
Clark, Phil, 96 Conformity, 29“35
Cobban, Helena, 131 deviance and, 32
Cohen, Albert, 33 ethnic superiority notions and, 30
Collective guilt extraordinary crimes in context of, 29“30
collective responsibility contrasted, 197 group consciousness, effect of, 32
opposition to, 197 individual choice, effect on, 31
rejection of, 35“36 mental illness, lack of evidence of, 30
Collective nature of atrocities, 9 national superiority and, 30
Collective responsibility psychosis, lack of evidence of, 30
bystanders and, 203 racial superiority and, 30
careful method of de¬ning responsible religious superiority and, 30
groups, 198 weak sense of autonomy and propensity to
citizen™s duties to state and, 203 commit, 29“30
collective guilt contrasted, 197 Congo, Democratic Republic of
conspiracy and, 38 ICJ claim against Uganda, 201
corporate entities, 38, 203“204 legal transplants, 126
corruption and, 38 self-referral to ICC, 145
crude method of de¬ning responsible groups, victim-centered restorative justice, 63
197“198 Conspiracy
debate, importance of, 201“202, 204 collective responsibility and, 38
de¬ning responsible groups under, 197, 204 elements of, 39
Index 287

Continental civil law bystanders and, 172
convergence with Anglo-American common collective responsibility and, 202
law, 127, 128 consequentialist rationales for, 62
ICC, harmonization with Anglo-American effectiveness of extant sentencing
common law in, 127 frameworks, 149
Contract law. See Horizontal reform empirical evidence and, 16“17
Coomaraswamy, Radhika, 184“185 expressivism, relationship to, 174
Cosmopolitan theory, 185“187 general deterrence, 61, 169
adversarial criminal trials, role of, 21 incapacitation compared, 62
collective nature of atrocities and, 21 joint criminal enterprise and, 170
cosmopolitan pluralism model, low probability of apprehension of
186“187 perpetrators, problem of, 17
diversity of, 185 overview, 11, 169
¬‚exibility of, 20“21, 186 rationality of perpetrators, assumption of, 17,
horizontal reform and (See Horizontal 171“172
reform) rehabilitation compared, 62
multiple af¬liations and, 185 retribution, relationship to, 149
overview, 19“20 selectivity, effect of, 169“170
patriotism and, 185“186 social engineering function of, 16
pluralism and, 186 speci¬c deterrence, 61, 169
tension between universal and particular weaknesses of for extraordinary crimes,
within, 20 172“173
Criminal guilt, 36 Deviance
Criminal law. See Ordinary criminal process de¬ned, 33
Criminal tribunals, preference for, 5 deviant nature of acts not self-evident,
Croatia 32
ICJ claim against Serbia and Montenegro, group consciousness, effect of, 32, 33
198 Discretion. See also speci¬c nation or tribunal
independence of, 99 advantages of, 162
national/local legal institutions, 107“109 complementarity principle, regarding,
Criminal Code, 102 143
ethnic bias, 107“108 problems with, 162
inconsistency in sentencing, 109 prosecutorial discretion (See Prosecutorial
less serious offenses, 108 discretion)
mitigating factors, 108“109 Disparity in sentences. See Proportionality
ordinary courts, 107 Djaji´ case, 109
c
ordinary criminal process compared with Downes, David, 33
atrocity proceedings, 104 Due process
sentencing practices, 102, 108 expressivism, effect on, 177
Special Court for War Crimes, 107 international legal institutions, 7
summary of proceedings, 107 Rwandan gacaca, criticisms of, 94
referrals by ICTY to, 138 Durkheim, Emile, 174
Cryer, Robert, 143, 151
Early release, 53“55. See also speci¬c nation or
Dallaire, Rom´ o, 137
e tribunal
Darfur con¬‚ict. See Sudan commutation of sentences, 53
Death penalty, 156. See also speci¬c nation or pardons, 53
proportionality in, 159“160
tribunal
Del Ponte, Carla, 96 East Timor
Delali´ case, 59
c externalization of justice, 129
Democratic d´ ¬cits, 133“138
e legal transplants, 126
Deronji´ case, 166, 179
c national/local legal institutions
Des Forges, Allison, 131 conditions of imprisonment, Special
Deterrence, 169“173. See also speci¬c nation or Panels contrasted, 161
imprisonment, problems with, 129
tribunal
administrative limitations on, 170“171 public participation in atrocities, 27
288 Index

East Timor Special Panels minitrials (Iraqi High Tribunal), effect of,
aggravating factors, 65 178“179
average prison sentences, 11 overview, 11“12, 173“174
conditions of imprisonment, 161 plea bargaining, effect of, 179
costs, 53 procedural rules, effect of, 176“177
deterrence, 61“62 retribution compared, 61
dif¬culty in capturing suspects, 170 selectivity, effect of, 176“177
discretion, 53 truth, establishment of, 174“175
disparity in sentences, 162 value of, 17
domestic principles, effect on sentencing weaknesses of, 17“18
practices, 65 Externalization of justice, 127“133
early release, 11, 58 accountability and, 128
extraordinary crimes contrasted to ordinary East Timor, 129
crimes, proportionality in, 155“156 expressivism, effect on, 177
historical background, 216“217 former Yugoslavia (See Yugoslavia, former)
jurisprudence of other tribunals, 55, 65 overview, 14
life sentences, not authorized to impose, population, attitudes of, 130
11 punishment and, 128
maximum sentences, 53 Rwanda (See Rwanda)
mitigating factors, 65 terrorism, approach to contrasted, 132“133
number of convictions, 55, 57“58 victims, attitudes of, 130
overview, 7 Extraordinary crimes, atrocities viewed as,
plea bargaining, 53, 65, 167 3“6
positive law frameworks, 50
range of sentences, 58 Fletcher, George, 35, 36, 128, 202
reconciliation, 150 Fletcher, Laurel, 5, 29, 150, 208
restitution, 53 Flick trial, 48
retribution, 60“61 Foreign courts. See speci¬c nation
selectivity, 151 Former Yugoslavia. See Yugoslavia, former;
sentencing practices, 50, 53, 58 speci¬c nation
weakness of resources, 55 France
Eichmann, Adolf, 49, 111, 116“118, 121, 156, 171, collaborators, trials of, 110
175, 182“183 Rwanda, proceedings involving atrocities in,
Einsatzgruppen trial, 48 83
Erdemovi´ case, 26
c vigilantism, 149
Ethiopia, crimes against humanity, 243 World War II atrocity proceedings, 119
European Court of Human Rights, 188 Franck, Thomas, 201
European Union, subsidiarity principle, 188 Frankl, Victor, 3
Expressivism, 173“179. See also speci¬c nation or French, Peter, 27“28
Freud, Sigmund, 30
tribunal
charge bargaining, effect of, 179 Furundˇ ija case, 54“55, 130
z
collective responsibility and, 202
conviction, focus on, 174 Gacaca. See Rwanda
deterrence, relationship to, 174 Gang activity, 32, 33
due process, effect of, 177 Garland, David, 174
effectiveness of extant sentencing frameworks Geneva Conventions, 133
and, 149 Genocide
evidentiary rules, effect of, 176“177 crimes against humanity distinguished, 4
externalization of justice, effect of, 177 de¬ned, 4
interruption of proceedings, effect of, intent requirement, 4, 35
177“178 motivations for, 35
accountability, expansion of, 177 sentencing comparison to war crimes and
elderly defendants, problems with, 177“178 crimes against humanity, 162, 163
limitations on, 176 war crimes distinguished, 34
management strategies, effect of, 178“179 war distinguished, 34
Index 289

Germany restitution law
former Yugoslavia, proceedings involving effectiveness of, 195“196
atrocities in, 109 integration of prevailing international
Holocaust (See Holocaust) criminal law with, 194
Nuremberg Tribunal (See Nuremberg relief under, 196
Tribunal) state liability and, 195
public participation in atrocities, 27 tort law
World War II atrocity proceedings, 119“120 effectiveness of, 195“196
Goetzfried case, 119 integration of prevailing international
Goldhagen, Daniel Jonah, 28“29 criminal law with, 194
Goldsmith, Jack, 10 relief under, 196
Goldstone, Richard, 25, 26, 36 Hostages trial, 48
¨
Goring, Hermann, 46, 47 Human Rights Watch, 91
Group consciousness, 32 Humanity, crimes against
Group crimes, 38“39 de¬ned, 4
Group targeting, 4 genocide compared (See Genocide)
Guilty pleas intent requirement, 35
pure guilty pleas, 163 motivations for, 35
Rwanda, 74, 79 Nuremberg Tribunal, 47
World War II atrocities, 114 terrorism proposed as, 212
war crimes distinguished, 34
Hamdan case, 133 war distinguished, 34
Hampshire, Stuart, 182 Hume, David, 190
Hart, H.L.A., 27, 66 Hussein, Saddam, 9, 26, 153, 178, 193
Hate crimes, 32
Hegel, G.W.F., 150 ICC. See International Criminal Court
Held, David, 20, 185, 186 ICJ. See International Court of Justice
Henham, Ralph, 128 ICTR. See International Criminal Tribunal for
Higiro case, 81 Rwanda
Hirschi, Travis, 33 ICTY. See International Criminal Tribunal for
Hollinger, David, 20, 185 the Former Yugoslavia
Holocaust I. G. Farben trial, 48
collective nature of atrocities, 27 Imprisonment, 11“14. See also speci¬c nation or
Japanese atrocity proceedings compared, tribunal
110“111 aggravating factors, 11
Nuremberg Tribunal (See Nuremberg average prison sentences, 11
Tribunal) deterrence as goal of (See Deterrence)
other postwar criminal proceedings, early release, 11
48“49 expressivism as goal of (See Expressivism)
Horizontal reform, 194“204 inconsistent sentences, problem of, 15“16
atrocity, creation of law of, 194 life imprisonment (See speci¬c nation or
collective guilt, opposition to, 197 tribunal)
collective responsibility (See Collective limitations of, 180, 181
responsibility) location of, 53
contract law mitigating factors, 11
effectiveness of, 195“196 national/local legal institutions, 12
integration of prevailing international ordinary criminal process, incorporation of,
criminal law with, 194 11“12
relief under, 196 plea bargains, 16
implications of, 19 preference for, 5
obligation, integration of law of with proportionality precept, 15
prevailing international criminal law, purposes of, 11“12
194, 195 retribution as goal of (See Retribution)
overview, 18“19, 181 similarity of sentences for ordinary crimes and
resistance to, 196“197 atrocities, problem of, 15
290 Index

Incapacitation capture of suspects, 170
deterrence compared, 62 comparative analysis of sentences, 59“60
overview, 149 conditions of imprisonment, national/local
Individualism legal institutions contrasted, 160
conformity and, 31 consecutive versus concurrent sentences, 51
group crimes and, 38“39 creation, 7
international legal institutions, in, 38 discretion, 51, 58“59
limitations in application to atrocities, 35“41 disparity in sentences, 162
ordinary criminal process and, 9, 37“38 early release, 53, 54, 160
Intent requirement for atrocities, 35 expressivism and, 131“132, 175
International Court of Justice (ICJ) gacaca compared, 88“89
Bosnia and Herzegovina, claim against Serbia historical background, 215
and Montenegro, 198“201, 282 imprisonment, 51
Congo, claim against Uganda, 201 location of imprisonment, 53
Croatia, claim against Serbia and mitigating factors, 51, 63“64
Montenegro, 198 number of convictions, 55
overview, 195 plea bargaining, 65, 167“168
International Criminal Court (ICC) positive law frameworks, 50
accountability and, 134“135 primacy and, 133
aggravating factors, 52 range of sentences, 56, 158“159
complementarity principle (See reconciliation and, 62, 150
Complementarity principle) referrals by, 140“141
Continental civil law and Anglo-American completion strategies, 138
common law, harmonization of, 127 death penalty, effect of, 140, 141
creation, 7 lack of local control over, 140“141
discretion, 52 Norway, to, 140
historical background, 215 obstacles to, 140
jurisprudence of other tribunals, 55 restitution and, 53
maximum sentences, 52 retribution and, 60“61
mitigating factors, 52 selectivity and, 151
plea bargaining, 65 sentencing hearings, 51
positive law frameworks, 50 sentencing practices, 50, 57
purposes of punishment, 52 U.S. support for, 9
restitution, 53 victim disengagement and, 135“136
selectivity, 152 International Criminal Tribunal for the Former
self-referrals to Yugoslavia (ICTY)
Congo, by, 145 accountability and, 133“134
Uganda, by, 143“146 aggravating factors, 51, 63“64
separate sentencing hearings, 51 Anglo-American common law, in¬‚uence of,
Sudan, jurisdiction over, 135 127“128
Trust Fund for Victims, 43, 53 appeals from sentences, 50
U.S. opposition to, 9“10 average prison sentences, 11
victim-centered restorative justice, 62, 63 Bosnia and Herzegovina, in¬‚uence on
victim disengagement and, 135“136 national/local legal institutions, 103
International Criminal Tribunal for Rwanda budget for, 131
(ICTR) charge bargaining, 179
accountability and, 133“134 comparative analysis of sentences, 59“60
admissibility of evidence, 259“260 conditions of imprisonment, national/local
aggravating factors, 51, 63“64 legal institutions contrasted, 160
Anglo-American common law, in¬‚uence of, consecutive versus concurrent sentences, 51
127“128 creation, 7
appeals from sentences, 50 deterrence and, 169
attitudes of Rwandan people toward, 72 dif¬culty in capturing suspects, 170
average prison sentences, 11 discretion, 51, 58“59
budget for, 131 disparity in sentences, 162
Index 291

domestic law, relevance of changes in, externalization of justice (See Externalization
51, 100 of justice)
early release, 11, 53, 54“55, 57, 159“160, factors to consider in punishment, 63“66
233“234 group crimes, 38“39
expressivism and, 175 historical background, 46“50
former Yugoslavia, in¬‚uence on homogeneity of, 7
national/local legal institutions, 103 hybrid institutions, as, 7
historical background, 215 inconsistent sentences, problem of, 15“16
imprisonment, 51 incorporation of national/local sentencing
Kosovo practices, 163
in¬‚uence on national/local legal indeterminacy regarding punishment in, 66
institutions, 103 mitigating factors, 63“66
jurisdiction over, 102 nonWestern legal traditions, incorporation of,
lex mitior, principle of, 51 7
life sentences, 11 overview, 6
location of imprisonment, 53 plea bargaining, 64“65
mitigating factors, 51, 63“64 positive law frameworks, 50“55
number of convictions, 55 proportionality and national/local legal
plea bargaining, 65, 165 institutions (See Proportionality)
positive law frameworks, 50 purposes of punishment, 60“63
primacy and, 133 reconciliation, 62, 150
range of sentences, 56, 157“158 referrals (See speci¬c tribunal)
reconciliation and, 62, 150 retribution, 60, 61
referrals by, 138“140 sentencing practices, 55“59
Bosnia and Herzegovina, to, 138, 139 short-term reform proposals, 21
case law review, 139 transplants (See Transplants)
completion strategies, 138 victim-centered restorative justice, 62“63
conformity of national courts, 139 Western legal traditions, incorporation of, 7,
Croatia, to, 138 23“25
resistance to, 139“140 Iraqi High Tribunal
Serbia and Montenegro, to, 139 expressivism, 178“179
statistics, 138 historical background, 214“215
restitution and, 53 management strategies, 178
retribution and, 60“61 minitrials, 178“179
reversal of convictions, 39“40 quali¬ed deference, proposed applicability of,
selectivity, 151 193
sentencing practices, 50, 57 U.S. support for, 9
separate sentencing hearings, lack of, 51 Israel, Eichmann case. See Eichmann, Adolf
Serbia and Montenegro, in¬‚uence on Italy, World War II atrocity proceedings, 110, 119
national/local legal institutions, 103
truth, establishment of, 175 Jackson, Justice Robert H., 7, 175
U.S. support for, 9 Japan
vicarious liability and, 39“40 public participation in atrocities, 27
victim disengagement and, 135“136 Tokyo Tribunal (See Tokyo Tribunal)
International legal institutions, 46“58. See also World War II atrocity proceedings, Holocaust
proceedings compared, 110“111
speci¬c tribunal
aggravating factors, 63“66 Jaspers, Karl, 36, 156
collective guilt, rejection of, 35“36 Jelisi´ case, 166
c
complementarity principle (See Joint criminal enterprise, 39, 40, 170, 226
Complementarity principle) Joki´ case, 166
c
deterrence, 60, 61“62, 173 Jorgi´ case, 109
c
discretion, problems with, 66“67 Justice trial, 48
disparity in sentences, 162 Juvenile offenders
due process, 7 Rwanda, 79“80
expressivism, 175 Special Court for Sierra Leone, 52
292 Index

Kagame, Paul, 95 Longman, Timothy, 131
Kalyvas, Stathis, 34“35 Luban, David, 27, 182
Kambanda, Jean, 168
Kant, Immanuel, 3, 150 Maelzer case, 113
Karadzi´ , Radovan, 170
c Malamud-Goti, Jaime, 171
Katzenstein, Suzanne, 151 Malloth case, 119, 120
Kelley, Douglas, 30 Mani, Rama, 123, 127
Kennan, George, 10 Markesinis, Basil, 127, 128
Kiza, Ernesto, 42, 43, 44, 106 Max Planck Institute, 42
Klabbers, Jan, 9 May, Larry, 6, 34, 182“183, 184, 202
Kony, Joseph, 145 M´ gret, Fr´ d´ ric, 171
e ee
Kordi´ case, 56
c Meister, Robert, 37
Koskenniemi, Martti, 176, 182 Meron, Judge Theodor, 7, 38, 54
Kosovo Metaphysical guilt, 36“37
atrocities, 99 Methodological chauvinism, avoiding, 148
jurisdiction of ICTY, 102 Milgram, Stanley, 31, 203
legal transplants, 126 Military commissions, World War II atrocity
national/local legal institutions proceedings in, 110
Code of Lek¨ Dukagjini, 103
e Miloˇevi´ , Slobodan, 130, 153, 166, 177, 178
sc
ICTY in¬‚uence over, 103 Mitigating factors. See also speci¬c nation or
Kanun law, 103 tribunal
new criminal codes, 102“103 examples of, 64
ordinary courts, 102“103 ordinary criminal process compared,
vigilantism, 149 65“66
Kosovo Special Panels Mladi´ , Ratko, 170
c
historical background, 216 Moral guilt, 36“37
jurisprudence of other tribunals, 55“56 Moreno-Ocampo, Luis, 152
overview, 7 Moussalli, Michel, 76
positive law frameworks, 50 Mozambique, postcon¬‚ict experiences, 131
sentencing practices, 53, 234“235 Mrdja case, 166
Krsti´ case, 56, 163, 175
c Muhimana case, 158
Krupp trial, 48 Munyeshyaka case, 83
Kunarac case, 146 Musema case, 131
Kuslji´ case, 109
c
National/local legal institutions, 68“122. See also
Lauterpacht, Hersch, 23“24 speci¬c nation
Lautz trial, 48 aggravating factors, 121
Laval, Pierre, 110 amnesty, 69
Le Bon, Gustav, 30 bulk of atrocity proceedings taking place in,
Levi, Primo, 3 68
Lex mitior, principle of, 51 deterrence, 170
Liberal legalism disparity in sentences, 162
hybrid between Continental civil law and diversity, 121
Anglo-American common law, 127, 128 expressivism in, 121
limitations in application to atrocity gacaca (See Rwanda)
proceedings, 35“41 harsher punishment for extraordinary crimes
overview of application to atrocity at times in, 68“69
proceedings, 123“125 imprisonment by, 12
philosophical effect on atrocity law, 5 international legal institutions, transplant of
Rwandan gacaca compared, 92“93 concepts from, 12“14, 121“122
suitability for atrocity proceedings, 128 methodological creativity, 70
Liberia, Taylor case, 260, 280 mitigating factors, 121
Life imprisonment. See speci¬c nation or overview, 6, 68“71
pressure from international institutions, 70
tribunal
Local legal institutions. See National/local legal proportionality and international legal
institutions institutions (See Proportionality)
Index 293

prosecutorial discretion, 69 collective responsibility in, 37“38
quali¬ed deference proposed toward (See Croatia, atrocity proceedings compared,
Quali¬ed deference) 104
range of sentences, 121“122 former Yugoslavia, atrocity proceedings
reconciliation in, 150 compared, 104“105
research methodology, 70“71 mitigating factors in compared to atrocity
retribution in, 121 proceedings, 65“66
selectivity in, 153 plea bargaining in, 164
sentencing practices, 69 problems in applying to atrocity proceedings,
World War II atrocity proceedings (See World 6, 8, 9
War II atrocities) proportionality and extraordinary crimes (See
Netherlands, proceedings involving atrocities in Proportionality)
former Yugoslavia, 110 World War II atrocity proceedings compared,
Niebuhr, Reinhold, 30 112, 113
Nikoli´ case (Dragan), 51
c Organization for Security and Cooperation in
Nikoli´ case (Momir), 36, 56, 165
c Europe (OSCE), report on prosecutions
9/11 attacks, 132“133 in former Yugoslavia, 105
Nino, Carlos Santiago, 110 Osiel, Mark, 15, 38, 71, 130, 202
Niyonteze case, 83
Nkinamubanzi case, 1“2, 68 Papon case, 119, 121, 176
Norway, unsuccessful referral by ICTR to, 140 Pardons. See Early release
Nteziryayo case, 82 Peace, crimes against, at Nuremberg Tribunal,
Nuremberg Tribunal 47
aggravating factors, 46, 47 Penology for atrocities
Charter, 46 cosmopolitan pluralism model and, 187
criminal law, application of, 3 national/local legal institutions generally and,
death penalty, 5 121
discretion, 50 World War II atrocity proceedings generally,
expressivism, 175“176 112
extraordinary crime paradigm, 3 Perpetrators, 25“29
humanity, crimes against, 47 apprehension, low probability of, 17
mitigating factors, 46“47, 48, 230 bene¬ciaries, 25, 26
ordinary criminal process in, 50 bystanders (See Bystanders)
other postwar criminal proceedings, 48“49 categories of, 25
peace, crimes against, 47 con¬‚ict entrepreneurs, 25
pronouncement of sentences, 47, 48 leaders, 25, 26
psychosis, lack of evidence among levels of moral culpability, 25
defendants, 30 ordinary crimes and atrocities, perpetrators
sentencing practices, 46, 48 contrasted, 8“9, 32
subsequent proceedings, 47“48 prosecutorial focus on in¬‚uential
U.S. support for, 9 perpetrators, 25“26
vicarious liability and, 40 public participation in atrocities and,
war crimes, 47 26
Nussbaum, Martha, 20, 185“186 rationality, assumption of, 17
Nzabonimpa case, 79 P´ tain, Henri, 110
e
Pinochet, Augusto, 26, 84
Obligation, proposed integration of law of with Plavˇi´ case, 160, 165“166, 168, 179
sc
prevailing international criminal law, 194 Plea bargaining, 163“169. See also speci¬c
Op´ ration Turquoise, 137“138
e nation or tribunal
Ordinary criminal process, 6“10 bene¬ts of, 164
adversarial criminal trials, role of, 21 bilateral negotiations, 163“164
aggravating factors in compared to atrocity charge bargaining, 164, 179
proceedings, 65“66 confessions and, 163
application to atrocity proceedings, 3 expressivism, effect on, 179
Bosnia and Herzegovina, atrocity proceedings indeterminacy, effect on retributive value of,
compared, 104 166“167
294 Index

Plea bargaining (cont.) Quali¬ed deference, proposal for, 187“194
international legal institutions generally, Afghanistan, applicability to, 192
64“65 avoidance of gratuitous iterated punishment,
ordinary criminal process, 164 190
overview, 163 complementarity principle contrasted, 147,
problems with, 16, 164 188
pure guilty pleas, 163 democratic legitimacy, 190
sentence bargaining, 164 disjunctive nature of guidelines for, 189“190
testimony by victims, avoidance of, 164“165 evil not in¬‚icted on other individuals, 191
types of, 163“164 globalitarianism, avoiding, 188“189
Pluralist process, 182“185 good faith, 190
Pol Pot, 153 guidelines for, 189
Posner, Eric, 10 implications of, 19
Priebke case, 119 Iraqi High Tribunal, applicability to,
Primacy. See speci¬c tribunal 193
Proportionality, 154“163. See also speci¬c nation margin of appreciation doctrine and, 188
national/local legal institutions, to, 18
or tribunal
disparity in sentences and, 161“163 overview, 18, 181
comparative assessment of atrocities, 162 procedural methods not voiding substantive
domestic law, effect of, 162“163 content, 190“191
international legal institutions generally, Rwanda, applicability to, 193“194
162 speci¬c characteristics of violence, 190
national/local legal institutions generally, subsidiarity principle contrasted, 188
162 Sudan, applicability to, 191“192
overview, 154, 161 utilitarian objectives, satisfying, 188“189
extraordinary crimes contrasted to ordinary Quinn, Joanna, 145
crimes, 155“157 Quisling, Vidkun, 110
former Yugoslavia, 155
human rights limitations on punishment, Range of sentences. See speci¬c nation or
156 tribunal
overview, 154, 155 Rathgeber, Corene, 42, 43, 44
international and national/local legal Rauter case, 112, 115
institutions, contrasted, 157“161 Reconciliation, 150, 195“196. See also speci¬c
civil damages, 161 nation or tribunal
conditions of imprisonment (See speci¬c Referrals, 138“141. See also speci¬c tribunal
Reform proposals, 206“209
nation or tribunal)
early release (See speci¬c nation or collective responsibility (See Collective
responsibility)
tribunal)
overview, 154, 157 cosmopolitan theory (See Cosmopolitan
range of sentences (See speci¬c nation or theory)
horizontal reform (See Horizontal reform)
tribunal)
stigmatization, 161 overview, 18“21, 205
precept of, 15, 61 quali¬ed deference (See Quali¬ed deference)
Prosecutorial discretion vertical reform (See Quali¬ed deference)
Holocaust-related proceedings and, 69 Rehabilitation
national/local legal institutions generally, 69 deterrence compared, 62
selectivity and, 151, 152 overview, 149
South Africa, 69 Special Court for Sierra Leone, 62
Prosecutorial focus on in¬‚uential perpetrators, Reintegration, 149
25“26 Reparations
Punishment Bosnia and Herzegovina, 106
imprisonment (See Imprisonment) contract law and, 195“196
purposes of (See also speci¬c topic), 149“180 restitution law and, 195“196
sentencing practices (See Sentencing Rwanda, 88
practices) tort law and, 195“196
Index 295

Research France, 83
collective responsibility, importance in, overview, 83
204 Switzerland, 83
national/local legal institutions, research gacaca, 85“99
methodology, 70“71 accountability and, 97“98
victims, importance of, 44 aggravating factors, 89
Restitution. See also speci¬c nation or tribunal categories of offenders, 86“87
horizontal reform and (See Horizontal Category 1 offenders, 86, 87
reform) Category 2 offenders, 86, 87, 88
overview, 53 Category 3 offenders, 87, 88
Restorative process coercion in, 96“97
Congo, Democratic Republic of, 62“63 community service, 88, 89
contract law and, 195“196 death penalty, 87
forgiveness and, 148 decentralized nature of, 85
importance of, 148 d´ gradation civique, 89
e
limitations of, 148 discretion, 90
restitution law and, 195“196 discursive aspects of, 96
Sierra Leone, 148 due process criticisms, 94
tort law and, 195“196 empowerment and, 96
Retribution, 150“169. See also speci¬c nation or future prospects, 72“73, 91“92
genocide, suitability for, 93, 97
tribunal
deterrence, relationship to, 149 historical background, 85
effectiveness of extant sentencing schemes ICTR compared, 88“89
and, 149 informality of proceedings, 85
expressivism compared, 61 international attitude toward, 95
inconsistent sentences, problem of, 15“16 juvenile offenders, 90, 248“249
overview, 11, 150 legislation regarding, 87
plea bargaining and (See Plea bargaining) levels of jurisdiction, 87
proportionality and (See Proportionality) liberal legalism compared, 92“93
selectivity and (See Selectivity) life imprisonment, 87
sentences for ordinary crimes and atrocities, maximum sentences, 88
comparison of, 15 mitigating factors, 89“90
shortcomings of prevailing international national courts (Specialized Chambers of)
criminal law approach, 184 compared, 88“89
vengeance distinguished, 61 Organic Law on Gacaca Jurisdictions, 72,
vigilantism, effect on, 149 86, 222
Roberts, Paul, 181 overview, 85
Robertson, Judge Geoffrey, 127 political motivations of, 95“96
Rock, Paul, 33 problems with, 93“94
Rohne, Holger-C., 42, 43, 44 public participation, 85, 87
Romania, proportionality in extraordinary punishment, purposes of, 90
contrasted to ordinary crimes, 156 purposes of, 86
Rubenfeld, Jed, 135 quali¬ed deference, applicability of, 93,
Rutaganda case, 58 193“194
Rwanda range of sentences, 88
Amnesty International report on, 76 reconciliation, 98“99, 150
atrocities, 71 reparations, 88
Constitution, 94“95 resistance to, 98
externalization of justice restitution, 89
expressivism and, 131“132 restorative nature versus retribution, 94, 97
ICTR, effect of, 131 sentencing practices, 90“91
problems with, 130“131 statistics, 85“86
foreign courts, proceedings in, 83“85 supplemental manual to Organic Law on
Belgium, 83“84 Gacaca Jurisdictions, 90
effect of, 84“85 traditional gacaca compared, 92
296 Index

Rwanda (cont.) United Nations Assistance Mission in
historical background, 71 Rwanda (UNAMIR), 137
ICTR (See International Criminal Tribunal vigilantism, 149
for Rwanda) Rwanteli case, 82
legal transplants, 126
national courts (Specialized Chambers of), Sadat, Leila, 120
73“83 Salas, Luis, 27
aggravating factors, 75, 78“79 Samardˇ i´ case, 105
zc
Category 1 offenses, 73, 74 Santos, Boaventura de Sousa, 128
Category 2 offenses, 73 Saric case, 110
Category 3 offenses, 73 Sawoniuk case, 118“119, 120
Category 4 offenses, 73 Schabas, William, 9, 91
civil damages; amount of awards, 81; case Schmitt, Carl, 10
law regarding, 82; material damages, 82; Schwammberger case, 119
moral damages, 82; overview, 82“83; SCSL. See Special Court for Sierra Leone
purposes of, 81; tables, 82 Selectivity, 151“154. See also speci¬c nation or
civil liability; criminal convictions, effect tribunal
of, 81; private actions, 80; purposes of, amnesty and, 154
80“81 deterrence, effect on, 169“170
conditions of imprisonment, ICTR expressivism, effect on, 176“177
contrasted, 160 national/local legal institutions generally,
confessions, 74 153
Conseil de Guerre, 76 offenses, small number of, 151
culpability, categories of, 73 overcapture, effect of, 153“154
death penalty, 74 overview, 151
d´ gradation civique, 75“76 perpetrators, small number of, 151
e
d´ gradation militaire, 76 political considerations, 152
e
detention for genocide-related charges, 72 prosecutorial discretion, 151, 152
deterrence, 170 undercapture, effect of, 154
discretion, 73, 76“77 Self-referrals to ICC
disparity in sentences, effect of domestic Congo, by, 145
law, 162, 163 Uganda, by, 143“146
early release, 73, 160 Semanza case, 56, 60, 159
expressivism, 176 Sen, Amartya, 2
factors to consider in punishment, Sentencing practices. See also speci¬c nation or
76“77 tribunal
gacaca compared, 88“89 appeals from sentences, 50
guilty pleas, 74, 79 community service, 88, 89
interpretive jurisprudence, 75 comparative analysis of sentences, 59“60
level of sophistication of, 77 consecutive versus concurrent sentences, 51
mitigating factors, 75, 78, 79“80 death penalty, 156
Organic Law, 72 international legal institutions generally,
overview, 71, 72 55“59
Penal Code, 73 legal transplants and, 126
plea bargaining, 74, 168“169 national/local legal institutions generally, 69
purposes of punishment, 77“78 Separate sentencing hearings. See speci¬c
qualitative review of judgments, 77 nation or tribunal
range of sentences, 73, 158“159 Serbia and Montenegro
reconciliation, 78, 150 ICJ claim by Bosnia and Herzegovina against,
retribution, 78 198“201, 282
sentencing practices, 69, 73, 74“75, 76 ICJ claim by Croatia against, 198
separate sentencing hearings, lack of, 77 national/local legal institutions, 106“107
statistics on punishment, 76 ethnic bias, 104, 106
peacekeeping efforts, 137“138 ICTY, in¬‚uence of, 103
public participation in atrocities, 27 international pressure on, 106
Tutsis, Hutu attacks on, 1, 71 new criminal codes, 101
Index 297

sentencing practices, 101 civil war, 191
Special Court for War Crimes, 106 Darfur con¬‚ict, 63, 137
summary of proceedings, 106“107 ICC jurisdiction over, 135
unstructured nature of, 106 quali¬ed deference, applicability of, 191“192
War Crimes Prosecutor, 106 Suriname, atrocity in, 281
referrals by ICTY to, 139 Switzerland, proceedings involving atrocities in
Shany, Yuval, 188 Rwanda, 83
Shi Jiuyong, Judge, 199“200
Shigemitsu case, 49“50 Tadi´ , Dusko, 26, 146, 178
c
Shklar, Judith, 5 Tan, Kok-Chor, 20, 185, 186
Sieber, Ulrich, 104 Taylor, Charles (Liberia), 260, 280
Sierra Leone Taylor, Charles (scholar), 184
public participation in atrocities, 27 Taylor, Telford, 47
restorative process, 148 Terrorism
Special Court (See Special Court for Sierra crimes against humanity, as, 212
Leone) externalization of justice in U.S. military
Truth and Reconciliation Commission, commission proceedings contrasted,
148 132“133
Simi´ case, 179
c Tojo, Hideki, 49
Slote, Michael, 190 Tokyo Tribunal
Slovenia, independence of, 99 aggravating factors, 46, 47
Smeulers, Alette, 172 Charter, 46, 49
Sobibor camp, proceedings regarding, 116 discretion, 50
Sokolovi´ case, 109
c expressivism, 176
South Africa jurisdiction, 49
amnesty, 69, 131, 154 mitigating factors, 46“47, 49“50
prosecutorial discretion, 69 other postwar criminal proceedings, 50
Truth and Reconciliation Commission, 208 problems with, 49
Soviet Union, World War II atrocity pronouncement of sentences, 49
proceedings, 110 sentencing practices, 46
Special Court for Sierra Leone (SCSL) Tort law. See Horizontal reform
accountability and, 134 Touvier case, 119, 120, 121, 176
aggravating factors, 52 Transplants, 125“127
creation, 7 critical thinking, need for, 125“126
historical background, 215 East Timor, 126
jurisprudence of other tribunals, 55 economic policy, in, 125
juvenile offenders, 52 existing transplants, relevance to atrocity law,
life imprisonment not permitted, 52 126
mitigating factors, 52 international to national/local legal
positive law frameworks, 50 institutions, 12“14, 121“122
primacy and, 134 legitimacy of, 126
rehabilitation, 62 overview, 125
sentencing practices, 52 problems with, 126“127
separate sentencing hearings, 51 sentencing practices and, 126
Srebrenica massacre, 27, 105, 107, 110, 165, 175, ulterior motives for, 126“127
200 uniformity of punishment encouraged by,
Sriram, Chandra Lekha, 134 127
Staki´ case, 56, 60
c Treaty of Versailles, 201
Stalin, Josef, 3 Treblinka camp, proceedings regarding, 116
Stankovi´ case, 109
c Triffterer, Otto, 24
Stimson, Henry L., 3 Truman, Harry S., 3
Strugar case, 166 Twahirwa case, 81
Subsidiarity principle
European Union, 188 Uganda
quali¬ed deference contrasted, 188 expressivism, 176
Sudan ICJ claim by Congo against, 201
298 Index

Uganda (cont.) death penalty, 111
legal transplants, 126 deterrence, 120
resistance to ICC investigations, 144“145 discretion, 111
self-referral to ICC, 143“146 emigration of suspects, 118
victim-centered restorative justice, 63 expressivism, 111, 120“121
victim disengagement and ICC, 136 guilty pleas, 114
Ukurikiyimfura case, 82 historical background, 111
United Kingdom, emigration of World War II Holocaust (See Holocaust)
atrocity suspects to, 118 leniency in national courts, 111“112
United States military commissions, proceedings in, 110
Iraqi High Tribunal, support for, 9 mitigating factors, 113“114, 120
military commissions, 133 Nuremberg Tribunal (See Nuremberg
Nuremberg Tribunal, support for, 9 Tribunal)
ordinary criminal process, support for use of, ordinary criminal process compared, 112, 113
9“10 overview, 110
World War II atrocities, emigration of purposes of punishment, 111, 112, 120
suspects to, 118 retribution, 111, 120
sentencing practices, 69, 112“113
Vereshchetin, Judge Vladlen Stepanovich, symbolic value of proceedings, 118
199“200 Tokyo Tribunal (See Tokyo Tribunal)
Vertical reform. See Quali¬ed deference
Vicarious liability, 39“41 Yamashita, General, 112
ICTY and, 39“40 Yoo, John, 10
Nuremberg Trials and, 40 Yugoslavia, former. See also speci¬c nation
Victims, 41“44 atrocities, 99
disengagement, 135“136 externalization of justice, 129, 130
externalization of justice, attitudes toward, 130 foreign courts, proceedings in, 109“110
ICC Trust Fund for Victims, 43, 53 FRY Constitution, 101
justice, preferences regarding, 42“44 historical background, 99
plea bargaining avoiding testimony by, ICTY (See International Criminal Tribunal
164“165 for the Former Yugoslavia)
research, importance of, 44 national/local legal institutions, 99“110
restorative justice for, 62“63 aggravating factors, 100, 103“104
social death, 41 conditions of imprisonment, ICTY
Viel case, 119“120 contrasted, 160
Vigilantism, 149. See also speci¬c nation or death penalty, 100
early release, ICTY contrasted, 159“160
tribunal
in¬‚uence of ICTY, 103
Wald, Patricia, 174 mitigating factors, 100, 103
Waller, James, 30, 41, 203 ordinary criminal process compared with
War crimes atrocity proceedings, 104“105
crimes against humanity distinguished, 34 overview, 99
de¬ned, 4 penalties for extraordinary crimes, 104“105
genocide compared (See Genocide) plea bargaining, 167
motivations contrasted with atrocities, 34“35 positive law frameworks, 99“105
Nuremberg Tribunal, at, 47 range of sentences, ICTY contrasted,
Weinstein, Harvey, 29, 36 157“158
Westbrook, David, 126 selectivity, 153
Williams, Paul, 38 sentencing practices, 69
Wittman, Rebecca, 116 SFRY Criminal Code, 99“100
World War II atrocity proceedings
aggravating factors, 115 Zyklon B case, 114

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