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debate about prosecution of human rights atrocities, the criminal justice anal-
ogy used in that debate largely relies on Western assumptions about ordinary
crime.”4
This inclination toward borrowing from the familiar additionally is motored
by a perception that borrowing can ful¬ll an important legitimizing function.
In¬‚uential scholars such as Hersch Lauterpacht thought that the more inter-
national law resembled domestic law, the more it would look familiar and
23
24 Atrocity, Punishment, and International Law

like a complete legal system and the less it would look like politics.5 From
Lauterpacht™s viewpoint, there was no principled reason to differentiate between
the national and the international. To the extent to which failing to differen-
tiate legitimated international law by making it more law-like, so much the
better.
Even though the resemblance between international and domestic legal pro-
cess initially may have served as a legitimizing factor, once contemporary inter-
national criminal tribunals actually began to judicialize atrocity in the Balkans,
East Timor, and Rwanda, this resemblance turned into somewhat of a liability.
Although ordinary criminal process and our experience with common criminals
certainly can teach us something about mass atrocity, this base of preexisting
knowledge does not have all the answers. The complex sources of atrocity, the
multitudes of victims and perpetrators, and the organic nature of responsibility
challenge traditional process and institutions.6
Otto Triffterer, a leading architect of extant international criminal law, “poses
the question of the transferability of criminal law concepts to the international
sphere, but avoids giving an answer by turning the question around: ˜Why
not?™”7 With great respect, this response is too facile. Considerable dif¬culties
mar the transplantation of domestic criminal law to the international context.
These dif¬culties transcend the standard, and at times tired, arguments accord-
ing to which it is dif¬cult to analogize from the domestic order to the inter-
national because the latter lacks a constabulary, legislature, and enforcement
agencies.
Dif¬culties are especially evident when it comes to contrasting the focal
point of the judicial process, namely the accused.8 To be sure, extraordinary
international crimes violate jus cogens norms and, thereby, are universally con-
demnable. That said, whereas for the most part individual participation in ordi-
nary crime deviates from generally accepted social norms in the place and time
where the crime is committed, extraordinary crime has an organic and group
component that makes individual participation therein not so self-evidently
deviant. Participation is often a matter of obeying of¬cial authority, not trans-
gressing it.
Ordinary criminal law operates in a continuous national or local context
to manage routine violations of law; extraordinary international criminal law
operates in a dynamically discontinuous context of collective crisis and recov-
ery. Although it is convenient to think of genocidal killers as common criminals,
there is reason to question the usefulness of this analogy. A paradigm of individu-
alized culpability may well be suitable for deviant isolated crime, although some
criminologists challenge this premise. This same paradigm, however, is all the
more ill ¬tting for crimes committed by collectivities, states, and organizations.9
Group crimes can be the aggregate of the participation of all involved individ-
uals; they, however, also can constitute a sum that exceeds the parts. In this
chapter, I explore whether there is reason to doubt the assumption that the
extraordinary international criminal should be subject to processes and punish-
ments developed for ordinary common criminals. I do so through a review of
Conformity and Deviance 25

the actors on the stage of atrocity: perpetrators, bystanders, bene¬ciaries, and
victims.


(i) perpetrators and bene¬ciaries
Perpetrators of mass atrocity are not a uniform group. They can be divided into
three broad categories. First, at the apex, are con¬‚ict entrepreneurs: namely,
those individuals who exacerbate discriminatory divisions, which they then
commandeer. Among their goals is to acquire and retain political power. Sec-
ond are those leaders who, while exercising authority over others and often
ordering killings, themselves remain subject to authority and, accordingly, are
ordered into ordering others. Authority, after all, is situational. The third cate-
gory includes the actual killers, most of whom are ordinary folks. This category is
often very large in number. It is in this third group that Anastase Nkinamubanzi,
the bulldozer driver whose story opens this book, belonged. Of course, the dis-
tinctions among these groups are not watertight.10
A much larger group also bears responsibility for atrocity even though its mem-
bers are not, strictly speaking, perpetrators. This group comprises bystanders:
those multitudes who comply with the violence, who acquiesce in it, or who
idle while it unfolds around them. In many cases, these bystanders bene¬t ide-
ologically and politically from the atrocity. Atrocity actualizes their self-worth
through group pride. They feel part of a grand social project without bloodying
their own hands. These individuals also gain from atrocity in a more craven,
materialistic way. They may, for example, opportunistically move into a sud-
denly vacant apartment, double the size of their farm, or get a promotion at
work. One way to describe this subset of bystanders is as bene¬ciaries. Not all
bystanders are bene¬ciaries, but many are.
These groups represent descending levels of moral blameworthiness for atroc-
ity. In other words, con¬‚ict entrepreneurs are the most culpable according to
standards adopted by traditional criminal law, namely intentionality of action.
They are followed by other leaders and killers, then by those who assist atrocity,
those who bene¬t from it, and lastly those who draw their blinds and look away.
Nearly all bystanders, even bene¬ting bystanders, fall outside of what interna-
tional criminal law de¬nes as “guilt.” They are not subjects or objects of the
trial, a process to which they once again are bystanders and, as I eventually
argue, bene¬ting bystanders insofar as the trial confers upon them the status of
collective innocence.
Richard Goldstone “ re¬‚ecting a widely held position “ posits that leaders
and those in superior positions in the chain of command are, owing to their
positive governance obligations, more deserving of prosecution and weightier
punishment for their involvement in mass atrocity.11 This position has been
internalized by international lawmakers. Accordingly, prosecutorial efforts have
tilted toward defendants in higher-ranking positions. That said, this tilt certainly
has not immunized rank-and-¬le killers from prosecution in international crim-
inal tribunals.12 For example, nearly all of the prosecutions that took place at the
26 Atrocity, Punishment, and International Law

East Timor Special Panels involved low-level, and often poorly educated, offend-
ers. Furthermore, the ICTY™s early convictions involved Draˇ en Erdemovi´ , a
z c
lowly soldier of the Bosnian Serb army, and Duˇko Tadi´ , an essentially indis-
s c
tinguishable thug.
The stated prosecutorial focus on in¬‚uential defendants squares with the
reality that certain leaders who act as con¬‚ict entrepreneurs create the social
norms that trap others as captive participants. These entrepreneurs strategically
normalize hatred that initially may have been deviant and isolated. As such,
sanctioning their behavior may conform to a criminology and penology that
censures deviance. However, international criminal tribunals have not staked
out a consistent penological position when it comes to sentencing leaders as
opposed to subordinates. In fact, an ICTY Trial Chamber noted that the case
law “does not evidence a discernible pattern of . . . imposing sentences on sub-
ordinates that differ greatly from those imposed on their superiors.”13
Independent of the problem of inconsistency within international criminal
law institutions, Goldstone™s argument “ however reasonable “ fails to address
a central concern. Atrocity would not reach truly epidemic levels but for the
vigorous participation of the masses. For many mid-level of¬cials and rank-and-
¬le killers, participating in atrocity is not deviant behavior. Even less deviant is
the complicity and acquiescence of the bystander. This complicity and acqui-
escence falls outside of the criminal law paradigm but constitutes an essential
prerequisite in order for violence to become truly massive in scale. Part of the rid-
dle of purposively responding to mass atrocity, and preventing it, is to assess how
law can implicate the complicit and acquiescent masses who are responsible
even if not formally guilty.
To be sure, not all atrocities, or atrocity perpetrators, ¬t the same psychosocial
pro¬le. There are cases in which human rights abuses are perpetrated top-down,
through occasional and targeted covert state operations, such as in Chile. In
these cases, leaders plausibly could be punished for deviant behavior because
they themselves recognized that what they were doing was wrong and that is
why they covered it up.14 In Pinochet™s Chile, torture by the DINA agency was
done in isolated basements. The victims of Operation Condor were furtively
thrown out of helicopters. Death ¬‚ights in Argentina, which targeted political
opponents of the military government, similarly resulted in secretive deaths in
the depths of the sea.15 Alternately, megalomaniacal leaders can encourage and
reward violence initiated through party or military bureaucracies that involve
broad networks of agents, informants, and sycophants. This apparently was
the case in Saddam Hussein™s Iraq.16 But there are other cases where con¬‚ict
entrepreneurs exhorted violence and, in response, substantial numbers of aver-
age people ordinarily disconnected from the political process eagerly butchered
other human beings, in full view of the public, with the acquiescence or complic-
ity of many of their fellow citizens. It is this third typology of violence that is most
prone to metastasize into epidemics of atrocity, although the ¬rst two typologies
also can reach widescale levels. The discriminatory nature of the violence often
directly correlates with the zeal of public participation therein.
Conformity and Deviance 27

Rwanda presents a compelling case study of this third typology of violence.
The Rwandan genocide disturbingly demonstrates David Luban™s perception
that “getting people to murder and torment their neighbors is not hard; in
some ways, it turns out to be ridiculously easy.”17 Luis Salas writes that “[t]he
manner in which [Rwandans] were killed, and the pleasure that attackers
derived from in¬‚icting the greatest pain, is shocking to even the most experi-
enced investigators.”18 The Rwandan genocide was characterized by broad-based
involvement and popular support.19 It was not spontaneous, but was planned.
Con¬‚ict entrepreneurs (such as media of¬cials) and the Rwandan political and
military leadership primed a Hutu population ready to kill. The killings were not
secret. Rather, they “were committed publicly in full view of the population.”20
The preexisting normative structure was suspended and replaced with the nor-
malization of ethnic elimination.21 The act of killing required individual action,
but this same act doubled as an expression of collective agency. To speak of indi-
vidual mens rea among the rank-and-¬le in such contexts is a bit fanciful.22 It is
unclear whether participants acted out of the kind of free will that H.L.A. Hart
would determine indispensable to the allocation of criminal guilt.23 Throughout
Rwanda, neighbors killed neighbors they had known since childhood and with
whom they previously had lived in harmony. Familiarity between victim and
victimizer is not a characteristic unique to Rwanda. A similar situation arose
in East Timor, where “the majority of perpetrators came from the same village
as the victims . . . attack[ing] persons whom they had known since they were
children, had attended school with [ . . . ].”24
Nor does Rwanda stand alone in its narration of broad public complicity and
the zeal of the killers as phenomena that counter the deviance of the violence.
For example, Iris Chang in The Rape of Nanking cites eyewitness evidence that
many Japanese soldiers so enjoyed the murder and sexual terror they in¬‚icted
on hundreds of thousands of Chinese civilians in 1937, that they made a sport
out of it through contests.25 In Sierra Leone, many perpetrators were ordinary
children, often “ but not always “ kidnapped and drugged, who began killing
and maiming in the most grotesque fashion amid the company of their new
families of killers. Violence in the former Yugoslavia also implicated broad lev-
els of responsibility. The Bosnian Serb government “ normally taciturn when
it comes to discussing Serb ethnic cleansing campaigns “ has recognized the
collectivization of violence. In October 2005 it identi¬ed over 19,000 soldiers
operating in the region during the Srebrenica massacre, in which 7,000 Bosnian
Muslim men and boys were isolated within a UN safe zone and slaughtered.26
This list was compiled to provide “a fuller picture of how the crimes were per-
petrated.”27 Although individual participants in ethnic violence may satisfy a
variety of goals, including greed and settling scores with neighbors, what char-
acterizes the greatest evils is the actualization of goals of ethnic advancement
and elimination of the other.
Peter French writes that extraordinary international criminals tend to exem-
plify an Aristotelian conception of wickedness.28 Aristotle, French notes, con-
ceived of wickedness that is perpetrated by persons who do not believe that what
28 Atrocity, Punishment, and International Law

they are doing is wrong or immoral.29 French contrasts this conception with what
he identi¬es as a Christian conception of wickedness, which is “preferential” in
the sense that the perpetrator knows that the act is morally wrong but still under-
takes it.30 Referencing the Balkans atrocities, French concludes that “media
accounts of the average Balkan war criminals re¬‚ect an Aristotelian rather than
the Christian conception of wickedness.”31 In fact, “[t]he reports make it appear
that the perpetrators did what they did believing (albeit perversely) that it was
the right thing to do.”32 The more the violence is linked with group-based char-
acteristics, the more perpetrators seem to exemplify an Aristotelian conception
of wickedness rather than a Christian conception; and the easier it becomes to
kill rather than break away from the dominant group of killers.
For Daniel Jonah Goldhagen, Nazi Germany constitutes a similar example.33
According to Goldhagen, ordinary Germans “ fueled by eliminationist anti-
Semitism and believing in large numbers that the Jews “ought to die” “ became
willing executioners.34 Germans participated in the Holocaust because “they
thought [ . . . ] the annihilation of the Jews was socially desirable, and that the
Jews were a particularly inferior form of subhumans. They simply thought they
were doing the right thing.”35 This made it possible for a radical government
to implement a radical plan. Insofar as it was only in Germany that virulent
anti-Semitism was combined with a radical government and suf¬cient military
might, the Holocaust “could have been produced only by Germany.”36
The Goldhagen thesis has generated considerable controversy. It has led to
a more fractious debate than have reports of the collectivization of violence in
Rwanda, the Balkans, or East Timor. Much of this controversy arises from per-
ceptions that Goldhagen ascribes a cultural basis to the Holocaust.37 Although
these perceptions are not entirely accurate, in his subsequent foreword to the
German language edition of Hitler™s Willing Executioners, Goldhagen goes out
of his way to con¬rm that, although the Holocaust only could have happened in
Germany, this was not because of any immutable or eternal German national
character.38 He “reject[s] categorically” (not to mention somewhat defensively)
the notion that essential psychological dispositions of the Germans produced
the Holocaust.39
As I see it, rooting atrocity in culture implies that certain nationalities or
ethnicities have characteristics that could immunize them from succumbing
to atrocity. Because atrocity has occurred in multiple locations on multiple
continents, and because all human beings have the capacity to commit brutal
acts, the reality is that atrocity is not so much a cultural phenomenon as it is
one tied to humanity at large. That said, there are such things as cultures of
hatred and cultures of violence. People can be acculturated or socialized into
eliminationism, even though atrocity cannot be explained away by culture or
national character. There is a difference between culture and acculturation
into hatred. I believe the process of acculturation into hatred can arise within
any culture, although it may invoke culturally speci¬c signi¬ers in that process.
What is more, cultures of hatred can give way to cultures of peace or, at least,
recognition of the horrors of hate. Goldhagen points out how this transformation
Conformity and Deviance 29

has occurred in Germany over the past half-century. Were it not for the possibility
of lancing cultures of hate, any consequentialist rationalization of punishment
would be entirely doomed at the starting gate.
Also contributing to the controversy that dogs Goldhagen™s work is his discus-
sion regarding what exactly to do with those individuals caught up in the Nazi
collectivization of violence. Goldhagen writes that these “enormous” numbers
of Germans are “criminal.”40 He invokes the notion of guilt, which he applies
to these individuals; he locates their guilt very traditionally in their individual
actions. However, perhaps in response to the public reaction to his work, Gold-
hagen goes out of his way to say that he (once again) “reject[s] categorically”
the notion of collective guilt, which he de¬nes as guilt “merely by dint of [ . . . ]
membership in a collectivity.”41
My sense is that, were Goldhagen to operate within a model of liability that
transcended liberal criminal law as the tool with which to assess wrongdoing,
and instead were to contemplate an accountability model that permitted more
¬ne-grained distinctions and polycentric remedies, then perhaps his argument
would be less intimidating to many readers. Moreover, he may feel less of a need
to beat a hasty retreat by trouncing the notion of collective guilt, a trouncing
that seems misplaced given the focus of his research project on the complicity
of the German public and how it stood primed to eliminate European Jewry.
This retreat is distracting insofar as Goldhagen is right to note the deeply collec-
tive aspects of mass atrocity, its industrial nature, and the challenge this reality
presents for accountability and prevention. Now that they face their own mor-
tality, more evidence arises from the “millions of low-level functionaries who
did the daily, dirty work of genocide” during the Holocaust.42 This evidence
con¬rms the organic nature of the violence, how its tentacles gripped deeply
into the social fabric, and how average people “slipped, bit by bit, into evil.”43
After long shifts in the forced labor camps, the brutalizing guards would dance
the night away and romance lovers under the stars “ just like any other working
person enjoying downtime from the job before once again reporting dutifully
for work the next morning.


(ii) conformity, transgression, and the group
Drawing from their ¬eldwork in Bosnia, legal scholars Laurel Fletcher and
Harvey Weinstein identify a “communal engagement with mass violence” that,
in their estimation, criminal trials leave unaddressed.44 They propose that indi-
viduals may not always have control over their actions in the context of col-
lective events, particularly cataclysmic events.45 Participants may be captives
of social norms; at a minimum, they certainly are captivated by those norms.
The breadth of these norms could be such that the violence itself, as Arendt
provocatively noted, becomes nothing more than banal in the time and place
where it is committed.46 Paradoxically, persons with a weakened sense of individ-
ual autonomy and independence commit crimes that are normatively deemed
more serious than ordinary domestic crimes.47 This seems to ¬‚y in the face
30 Atrocity, Punishment, and International Law

of the criminology of ordinary crime that international criminal law adopts
as a self-rationalization, insofar as culpability in ordinary crime derives from
the extent of the perpetrator™s voluntary independent participation therein.
These contradictions might well explain why, despite the rhetoric, actual pun-
ishments levied out for extraordinary international crimes are of comparable
severity to (and often are more lenient than) those used to sanction serious
ordinary crime in national legal systems. I further explore this phenomenon in
Chapter 6.
Perpetrators of extraordinary international crimes generally belong to a col-
lective that shares a mythology of ethnic, national, racial, or religious superiority,
perhaps even infallibility.48 Psychologists such as Gustav Le Bon and Sigmund
Freud, as well as theologians like Reinhold Niebuhr, have suggested the “regres-
sion inherent in group behavior”; they have noted the effects of the group on
individual personality, including how group association fragments conscience
and facilitates emotion over judgment.49 What is more, group dynamics may
well diffuse responsibility, obscure individual decisionmaking, and suppress dis-
sent. Psychologist James Waller, in his impressive work Becoming Evil: How
Ordinary People Commit Genocide and Mass Killing, ¬‚atly remarks that “the
most outstanding common characteristic of perpetrators of extraordinary evil
is their normality, not their abnormality.”50 Those who commit extraordinary
international crimes may be the ones conforming to social norms whereas those
who refuse to commit the crimes choose to act transgressively.
Nor can these perpetrators generally be diagnosed as psychotic. Admittedly,
some are.51 However, other than certain notoriously sadistic offenders, the evi-
dence does not suggest that most atrocity perpetrators are insane, demented, or
ill. Waller surmises that there

is no reason to expect that the distribution of [antisocial personality disorder]
among perpetrators of genocide is any greater than that of the general pop-
ulation; there are actually very good reasons to expect that the distribution
is less than that of the general population. [ . . . ] Even if we were to broaden
our search for psychopathology beyond [antisocial personality disorder], it is
doubtful that rates of abnormality among perpetrators run any higher than
what we ¬nd among the general population.52

Douglas Kelley, a psychiatrist dispatched to the Nuremberg proceedings, did
not ¬nd evidence of psychiatric disturbance among the defendants.53 Waller
notes that “none of the experts wished to go on record as stating that, according
to psychological test data, many of the Nazis may actually have been normal or
even well-adjusted.”54 Even though it would make it easier for the rest of human-
ity to distance itself from the perpetrators by proving how insane, or deviant, they
were, they really were neither. Ironically, in Nazi Germany an effort was made to
weed out sadists and psychopaths from even the most extreme killing personnel “
for example the Einsatzgruppen “ insofar as it was felt that such persons “would
not be as ef¬cient, effective, and dependable as killers [ . . . ].”55
Conformity and Deviance 31

Psychologists have studied individual obedience to violent orders. The ¬nd-
ings from these studies are varied. Among these studies, however, Stanley
Milgram™s are the best known.56 These studies involved individual interactions
between teachers and a mock learner where teachers believed they were admin-
istering electric shock to the learner, even to levels described as “severe” or
“XXX,” when the learner failed to give the correct answers to the questions
posed. Milgram™s work suggests that ordinary people are quite willing to in¬‚ict
harm, even serious harm, on strangers if instructed by an authority ¬gure (in
Milgram™s initial test, about two-thirds of all subjects did so). Many of Milgram™s
subjects continued to comply even though they exhibited great consternation
and nervousness at the choices they faced. To be sure, it can be dif¬cult to
extrapolate from Milgram™s survey to the actual behavior of individuals in con-
texts where perpetrators know and can see for themselves that they are in¬‚icting
pain and killing people. Milgram™s subjects, despite the cries (and eventual
silence) from those given shocks for their wrong answers, were assured that no
permanent physical damage would result from the shocks. The learner sat in a
different room than the teachers. Subject and object were separated.
Despite these limitations, though, Milgram™s experiments do ground his writ-
ing on what he labeled the “agentic state.”57 In this state, persons are drained
of their personal responsibility in the sense that they become agents of the duty
expected of them by authority ¬gures. Amid the structural factors that precede
mass atrocity, those individuals who resist assimilation into an agentic state are
often deviant. What is more, insofar as individualized international criminal law
often targets only a handful of high-pro¬le or particularly sadistic offenders, it
fails to deter the formation of an agentic state. Those who simply obey their
industrial duty in the killing ¬elds run little risk of ever being caught by the
criminal trial model, yet at the time reap the bene¬ts of membership in and
social promotion within the favored group.
Although Milgram™s writing on the substitute agentic state could be used
to justify the exoneration of individual responsibility in situations of collective
violence, this is not my intention. Nor is my purpose to venture into the world
of evolutionary psychology, where certain experts “ perplexed by the observa-
tion that “no other species shows the degree of premeditated mass killings of its
own species that humans have shown over the centuries” “ suggest that humans
are simply wired to adapt to group expectations, even terribly violent ones, in
order to survive.58 Nor do I wish to enter a debate on whether collective pres-
sures eviscerate moral choice and free will, and instead substitute determinism.
Rather, I make more modest use of Milgram™s ¬ndings to argue that collectiviza-
tion, diffusion, and conformity whittle down the scope of individual choice and,
accordingly, create group phenomena that intersect brusquely with legal systems
based on the primacy of individual agency. One response might be for the law
to respond collectively. Looking at responses through a collective lens might
recognize the automaticity of mass atrocity. Arendt hinted at the monochrome
created by totalitarianism and noted that totalitarianism makes human beings
32 Atrocity, Punishment, and International Law

super¬‚uous, which “happens as soon as all unpredictability “ which, in human
beings, is the equivalent of spontaneity “ is eliminated.”59
In sum, I contend that the perpetrator of mass atrocity is qualitatively different
than the perpetrator of ordinary crime. Of course, the two are not fully shorn
of any similarities. However, their differences are material, suggesting the need
to judiciously contemplate a novel schematic of punishment for the extraordi-
nary international criminal. Extraordinary international crime often ¬‚ows from
organic groupthink in the times and places where it is committed, making
individual participation therein less deviant and, in fact, more of a matter of
conforming to a social norm.60 This deep complicity cascade does not dimin-
ish the brutality or exculpate the aggressor. But it imperils certain assumptions
about bystander innocence and the salutary role of the international community;
squeezes out histories of colonialism and exploitation; and assuages the many by
blaming the few. The deep complicity cascade plays a much more dynamic role
in the commission of mass atrocity than it does in isolated, ordinary common
crimes. Ignoring or denying the uniqueness of the criminality of mass atrocity
stunts the development of effective methods to promote accountability for mass
criminals.
At this point, two challenges to this thesis present themselves. These pull in
different directions, but share in common the precept that the lines between
the extraordinary and the ordinary are blurred.
The ¬rst challenge posits that a number of ordinary domestic crimes share
certain of the collective characteristics I ascribe to extraordinary international
crimes. This overlap suggests that, in some instances, the distinction between
ordinary crime punishable under domestic law and extraordinary crime pun-
ishable under international law is not clear cut. For example, domestic crime
such as gang activity, drug offenses, hate crimes, certain white-collar crimes,
and organized crime may arise from adhesion to a certain code or norm within
a particular community. These may be intensely social crimes, deeply collabo-
rative at the subgroup level. Accordingly, so goes the critique, it would be far too
absolutist to posit that deviance theory serves as a basis to ground all criminal
sanction in ordinary domestic contexts.
In response, I would agree that there is a subset of ordinary common crime
where the deviant nature of individual involvement in the criminality is not
self-evident. Within this subset, there is an unequivocal need for criminolog-
ical and penological research that recognizes the in¬‚uence of the group as
a social agent and the structural nature of criminogenic conditions. Collater-
ally, international lawyers concerned about mass atrocity can learn from their
domestic counterparts concerned with gang activity and hate crimes. However,
the existence of this subset does not impugn my position that ordinary com-
mon crime and extraordinary international crime can be differentiated along
an axis of deviance. Violent acts such as murder, torture, in¬‚iction of physical
harm, and sexual assault deviate materially more from social norms operative
in ordinary times in ordinary places than they do from social norms in places
af¬‚icted by the breakdown and remobilization that are conditions precedent to
Conformity and Deviance 33

mass atrocity. The breakdown and remobilization are much more transformative
than anything experienced even within violent subcultures of ordinary polities.
Whereas the state punishes infractions of ordinary criminal law, in situations
of mass atrocity the entire apparatus of the state urges the violence and can
even go so far as to sanction nonparticipation. A society in the throes of mass
atrocity, particularly discrimination-based atrocity, is often one in which the law
says that killing members of the “other” group is legal, whereas killing a mem-
ber of your own group is not (unless that member opposes the eliminationist
policies).
Although deviance is a fuzzy concept,61 theorists basically de¬ne it as “banned
or controlled behaviour which is likely to attract punishment or disapproval.”62
Deviants “tend to make their lives rather more hazardous and problematic.”63
They demonstrate a “real strain toward concealment.”64 Yet those who partic-
ipate in truly mass killing engage in an activity that is not banned and which
may even be public. Those who refuse to participate are the ones who generally
make their lives more hazardous and problematic.
In the prelude to and implementation of mass atrocity, group leaders dis-
tribute weapons, build industrial extermination facilities, feed and house mur-
derers, and, in some cases, provide them sexual slaves. All of this is done in order
to facilitate the targeting of victims simply based on their immutable charac-
teristics, not any threat the victims actually pose as individuals to the group, to
its control of territory, or to its status. In those few areas of ordinary domestic
criminality where individual deviance is obfuscated by group ordering, such as
certain gang activity, this simply does not rise to the level of conforming to the
dictates of a criminal state. Even if gang-related delinquency amounted to what
Albert Cohen calls a “˜way of life™ in [ . . . ] inner urban neighbourhoods,”65 this
lifestyle is de¬ned in opposition to the mainstream. Travis Hirschi found that,
for control theorists, delinquent acts “result when an individual™s bond to society
is weak or broken.”66 The killer in contexts of mass atrocity, on the other hand,
often exhibits a very strong bond with both state and society. It is the delinquent
in cases of mass atrocity who dissociates from the group. As David Downes and
Paul Rock note, the ideal-type portrait of the nondelinquent includes being
imbued with a strong belief in the need to obey rules, not deviate from them.67
In the cauldron of atrocity, it is Holmes™ good person and the Hartian of¬cial,
both of whom internalize the value of positivist state law, who conform to the
societal expectation of extirpation.
The second challenge is somewhat obverse to the ¬rst. This challenge posits
that extraordinary international crimes really are not that extraordinary; in fact,
they are not aberrational but, rather, are suf¬ciently commonplace throughout
history so as to become ordinary. Arguendo, it is perfectly reasonable to subject
them to the processes and modalities of ordinary common crime.
I have three responses to this second challenge. First, even if one were to
accept the underlying criminality as ordinary, the reality is that the ordinary
process and punishment currently invoked by legal institutions is highly selec-
tive. The personnel and modalities of international criminal tribunals, and the
34 Atrocity, Punishment, and International Law

national institutions they in¬‚uence, implement liberal criminal law to postcon-
¬‚ict (and, at times, con¬‚ict) societies for which this law often is exogenous.
Second, irrespective of whether the underlying criminality is characterized as
ordinary or extraordinary, the punishment of group-based atrocity crimes through
extant sanctioning modalities fails to satisfy penological aspirations. Third, and
more foundationally, it does not seem tenable to posit that occurrences of mass
atrocity are as commonplace as occurrences of, say, armed robbery or arson
to claim the insurance money. Mass atrocity that implicates an “international
interest,” to borrow from Larry May™s characterization of international crimi-
nality, is far from routine.68 Discrimination-based violence, such as genocide
and persecution as a crime against humanity, that results in the mobilization of
entire societies into the killing of masses of people just because of their mem-
bership in another group is not a matter of course. Participation in an atrocity
after it has begun may be a matter of conforming to a social norm, and hence
be prosaic, but creating an atrocity that eliminates or cleanses a group based on
discriminatory grounds is not an ordinary everyday occurrence.
This third response can be unpacked further. I underscore the importance of
not falling into the trap that equates campaigns of genocide and crimes against
humanity with war. Even if war were ordinary, this does not mean that genocide
or crimes against humanity are as well. Both are quite distinct from war. As the
Rwandan experience instructs, genocide and war are separate initiatives with
separate goals. The Holocaust is not the same as Nazi aggression. Moreover,
unlike campaigns of genocide or ethnic cleansing, under international law war
exceptionally can be lawful.
Moreover, genocide and crimes against humanity differ in important regards
even from those acts that amount to unlawful conduct in war, namely war crimes
(violations of the jus in bello) or the unlawful waging of war (violations of the jus
ad bellum that lead to the crime of aggression).69 The distinction between war
crimes, on the one hand, and crimes against humanity and genocide, on the
other, is re¬‚ected in the Rome Statute™s designation of the latter two as manifestly
illegal but not the former. This distinction is further re¬‚ected in the fact that
the Rome Statute accords states the option of a seven-year opt-out period to the
ICC™s jurisdiction over war crimes,70 but not to genocide and crimes against
humanity. The crime of aggression is not yet de¬ned in the Rome Statute and,
hence, cannot be prosecuted.
Stathis Kalyvas has found that many participants in a historical range of civil
wars in places as diverse as the United States, England, Lebanon, Afghanistan,
and Liberia were motivated by materialism, greed, and avarice.71 The wrong-
doing in¬‚icted by these participants, some of which rises to the level of war
crimes, therefore is not inspired by ideological public motives such as the pro-
motion of group identity but, rather, by private motives as pithy as thievery.
Conduct within the framework of nonideological civil war that Kalyvas notes is
animated by self-interested materialism targets victims not as indistinguishable
members of a group but, rather, because of their individual wealth, standing,
prior conduct, and assets. Although I do not believe that even the most privately
Conformity and Deviance 35

motivated thief in the chaos of civil war can be paralleled to the most privately
motivated thief in a stable polity, one inference that arises from Kalyvas™ research
is that ordinary criminal modalities may be appropriate to capture individuals
who commit war crimes when acting upon materialistic motivations, especially
when doing so through individual action independent from the group.
That said, the inference does not extend to foot soldiers of atrocity, moti-
vated by ideological and political goals, who turn to horri¬c violence to further
the collective good of the group of which they are so proud. Of course, some
participants in eliminationist genocide are encouraged by prospects for lucre
and material gain or simply to settle personal vendettas; other participants are
inspired by a medley of private and public motives. However, material motiva-
tions exert much greater in¬‚uence on routine civil war participants than on actors
in ethnic eliminationism for whom ideology constitutes the catalytic motivator.
It is important, as I alluded to in Chapter 1, to differentiate discrimination-based
crimes from other serious violations of international criminal law. Lessons from
ordinary criminal law appear of least value when it comes to punishing par-
ticipants in ideologically motivated discriminatory violence designed to bleach
society of the “other.” These crimes are often state crimes, instead of crimes
committed against the state.72
Substantive proof of the guilt of genocide or crimes against humanity requires
more than just proof of the actus reus of the violent act. In the case of genocide,
guilt requires demonstration of the intent to wipe out a group in whole or in
part. It is this goal “ eliminationism or puri¬cation “ that is extraordinary in its
nature and bespeaks the manifest illegality at hand. Moreover, for persecution
as a crime against humanity there also is a discriminatory animus; for all crimes
against humanity there is the requirement to prove the systematic or widespread
nature of the offense. This requires proof of a level of planning and organization
that is found in few, if any, ordinary crimes. Also extraordinary is the broad
network of collateral support that the perpetrators of these crimes enjoy, which
simply does not apply to ordinary domestic crime. Ordinary people may become
g´ nocidaires, to be sure, but only under extraordinary circumstances.
e


(iii) posttraumatic liberalism disorder
My argument thus far is that collective violence cannot be rigorously analyzed
without considering the effects of the collective on the individual. That said,
this collective aspect creates considerable discomfort. It interfaces queasily with
liberal legalism. This discomfort is manifested in international criminal law™s
eschewing of collective guilt and, even, collective responsibility; as well as its
solemn preference for the guilt of a few individuals. International criminal law
replaces the traditional subject of international law, the state, with a nontradi-
tional subject, the individual, notwithstanding the fact that the abject criminality
of mass violence often is committed at the behest of or in furtherance of the
state.73 As I introduced in Chapter 1, international criminal law thereby gloms
onto what George Fletcher calls the “liberal idea that the only true units of
36 Atrocity, Punishment, and International Law

action in the world are individuals, not groups.”74 Cherie Booth echoes this
conventional wisdom:
[P]roceedings before the ICC have the potential of countering the attribution
of collective responsibility for acts committed by individuals. [Eminent South
African jurist] Richard Goldstone put it well when commenting on the emo-
tive photographs of the accused in the dock at Nuremberg. He said that “one
sees a group of criminals. One does not see a group of representatives of the
German people “ the people who produced Goethe or Heine or Beethoven.”75

The reality, however, is that the people who produced Goethe, Heine, and
Beethoven also produced Goebbels, Himmler, and Mengele. If Goldstone is
to credit the entire German people for producing artistic geniuses, why should
that same population be spared responsibility for producing mass criminals?
The logic of collective exoneration is somewhat frail. Although it is politically
or managerially expedient to insist that responsibility for mass atrocity not be
widely shared, this is not a realistic or accurate appraisal of the reality of atroc-
ity on the ground. When an ICTY Trial Chamber held in the Momir Nikoli´ c
sentencing decision that “by holding individuals responsible for the crimes com-
mitted, it was hoped [ . . . ] that the guilt of the few would not be shifted to the
innocent,” it played to a wishful construction of atrocity rather than the bitter
reality of atrocity.76 After all, mass violence involves the guilt of many, not a
few, and the responsibility of many more. In the end, the law is overambitious
by claiming such a transformative role, but then underambitious by involving
only a handful of characters. Philip Allot aptly remarks: “Feeble old men and
their seedy subordinates shuf¬‚e into the court-room, shrunken ¬gures bearing
no physical relationship to the physical scale of suffering [ . . . ].”77
Fletcher and Weinstein maintain that the “liberal idea” elides its own effects.
Most important among these is that “individualized guilt may contribute to
a myth of collective innocence.”78 Fletcher and Weinstein™s research ties into
psychoanalytic literature. It dovetails with the work of Karl Jaspers.79 Jaspers
discusses a number of levels of guilt, including the criminal, the moral, and
the metaphysical.80 The criminally guilty are those who gave orders or executed
crimes.81 Moral guilt “ a nonjuridical category “ covers those who “conveniently
closed their eyes to events, or permitted themselves to be intoxicated, seduced or
bought with personal advantages, or who obeyed from fear.”82 The metaphysi-
cally guilty are those who fail to do whatever they can to prevent the commission
of the crime.
Trials do not involve what Jaspers identi¬es as the morally or metaphysically
guilty. Nor should they. It is doubtful that individual criminal punishment ought
to attach to all morally and metaphysically guilty individuals. However, this does
not mean that these individuals are blameless, or that they ought to be considered
as blameless, or that they are entitled to the law™s intervening in a manner that
pronounces their innocence. That said, Fletcher and Weinstein found that “in
periods of collective violence, the focus on individual crimes has been used
by many to claim collective innocence.”83 Claims of collective innocence are
facilitated by “the conventional operation of legalism as an ideology,” which
Conformity and Deviance 37

excludes bystanders from liability and fails to provide any “organized mechanism
for [them] to confront and acknowledge the ways in which their inaction or
passive participation contributed to the atrocities conducted in their name.”84
As Robert Meister notes, the “individuating project[,] a necessary component of
criminal prosecutions[,]” neglects the world of bystanders and the reality that
“[p]olitics, after all, is not merely about what people do, but also about what
they support, wish, and condone [ . . . ].”85 Without these wishes, this support,
and all the condonation, the violence never would become truly massive and
deeply rooted.
My concern is not a programmatic one that pertains to legal defense strategies.
Accordingly, I am not making an argument for ex post facto or nullum crimen sine
proevia lege defenses. The question of retroactivity “ namely, whether persons
can be convicted of acts that were perfectly legal under national laws in place
at the time “ has been elegantly addressed elsewhere.86 My purpose here is not
to breathe life into exculpations such as following orders, duress, or the “simi-
larity of evil”87 with a view to facilitating the acquittal of individual defendants.
Wickedness remains wickedness, whether Aristotelian in nature or not. Vic-
tims of great wickedness deserve accountability; future generations are entitled
to legal and policy responses that are purposive. Nonetheless, actually under-
standing something about the participants “ whether perpetrators, bystanders,
or bene¬ciaries “ is a necessary step to grasp the scourge and, hence, to mitigate
its effects and emphasize the deontological nature of the wrongdoing. A similar
purpose is served by exploring the impact and logic of prevailing punishment
frameworks “ instead of taking these for granted “ with a view to improving
them, even if improvement entails their revision.
One attraction of extant international criminal process is that, when all is said
and done, it manages to hold certain select individuals responsible. In this regard,
it insists on individual responsibility within the opacity of collective anonymity.
Occasionally, it can even ferret out distant acolytes who do not kill but supply the
killers with the weapons necessary to elevate atrocity to massive levels.88 Despite
these accolades, however, the implementation of international criminal law
is characterized by the fact that it fails to hold accountable the full array of
people who individually are responsible for the collectivization of atrocity. In
this sense, it skims the surface of the dynamic and diverse sources of mass atrocity.
Assuredly, each responsible individual is not, and hence ought not to be found,
criminally culpable. However, when the turn to criminal prosecutions squeezes
out other mechanisms, whether legal or extralegal, which can instantiate a much
broader rendition of responsibility, the entire justice matrix is compromised.
International criminal culpability is too crude a device to assimilate and measure
the small things many people do that make the larger things fewer people do
truly pandemic. This crudeness suggests that the orthodoxy of the predicate of
avoiding collective responsibility could be rethought and broader “ecological”
approaches to the violence acknowledged.89
Assuredly, ordinary criminal law and process, even in those polities most
apparently grounded in a theory of individual agency (e.g., the United States), are
not wholly exclusive of notions of vicarious liability and collective responsibility.
38 Atrocity, Punishment, and International Law

American examples of the penetration of such notions include racketeering
and anticorruption legislation, corporate crimes, certain instances of felony
murder, and conspiracy. Other areas of law that regulate human activity also
hold people responsible for the wrongdoing of others. These areas do not do so
criminally, but through other manifestations of responsibility such as tortious
liability or withholding of administrative privileges. Some areas of law, such as
the law of agency, are entirely devoted to testing the limits of the vicariousness of
responsibility. In all cases, but certainly in the case of criminal guilt, Mark Osiel
notes that these departures from principles of individual responsibility remain
quite controversial.90 This controversy reveals “ as I have argued elsewhere “
the in¬‚uence of individualism as the ¬rst principle of ordinary liberal criminal
law.91
It is peculiar, then, that international criminal law, in procedurally trans-
planting from the domestic, also apparently essentializes ordinary criminal law
by “ at least rhetorically “ caricaturizing its individualist elements into a Webe-
rian ideal-type. The rhetoric of international criminal process insists, as the
Nuremberg Tribunal intoned, that extraordinary international crimes are the
crimes of men.92 Insofar as international criminal law responds to conduct that
is much more collective in nature than that faced by ordinary criminal law, the
fact that it evokes a similar rhetorical archetype of individual agency suggests
the broader nature of international criminal law™s rhetorical preoccupation with
individual culpability. International criminal tribunals vigorously assert a preoc-
cupation to avoid collective guilt93 and view this avoidance as promoting socially
transformative goals in a manner that transcends the conventional wisdom of
ordinary criminal law. As Norman Cigar and Paul Williams observe, “[t]he need
to establish individual responsibility in order to avoid conclusions of collective
guilt has been highlighted by both the United Nations Secretary-General and
the [ICTY] Chief Prosecutor.”94 Furthermore, international criminal tribunals
ardently underscore the need to “pay particular respect to due process.”95 For
ICTY President Meron, “[t]here can be no cutting corners” when it comes to
due process else the tribunal ceases to be credible to the public.96 In cases
where corners are found to have been cut, international judges are quite willing
to reduce the sentence issued against the defendant.97 No empirical evidence
is cited for the proposition that the public (in particular, members of af¬‚icted
communities) actually invest such importance in these due process rights, espe-
cially those of the accused, although these rights support other important goals.
In the main, defendants accused of extraordinary international crimes before
international tribunals have access to more due process than the large majority
of defendants worldwide accused of routine common crimes before national
institutions.
The emphasis international criminal tribunals place upon individual agency
meshes awkwardly with the connived nature of group crimes. The emphasis on
individualism raises the stakes, insofar as departures that international criminal
tribunals practically have to make from principles of individual responsibility
become greater in controversy than the departures made by ordinary criminal
Conformity and Deviance 39

courts. These departures, which contemplate some level of group dynamic, are
seemingly necessary at the level of extraordinary international criminality given
the collective nature of the violence and the acute pressure collective harms
in¬‚ict on legal systems geared to ferreting out individual wrongdoing. The need
for these departures arises from several sources: political pressures to obtain con-
victions; the forensic challenges presented by mass graves; dif¬culties in securing
testimony and retaining its probativeness in the face of cross-examination; the
complex sequencing of administrative directives that order massacre; the fact
that elements of an overall crime can be committed by many different people
without any person undertaking each element of the offense; the diffusion of
responsibility in situations of disorder; and the need to protect the rights of vic-
tims and witnesses. Simply put, it is taxing to shoehorn collective agency into
the framework of individual guilt. The application of modern laws of evidence
to the context of mass violence for which they were not initially designed can be
problematic. The need for institutions of international criminal law to innovate
in light of these demands suggests that these institutions are capable of some
independent criminological development (although evidence has not come to
light of independent penological or sentencing practice).
Practical examples of departures from classical understandings of individ-
ual agency include liability theories of joint criminal enterprise (better known
by its acronym JCE),98 command responsibility,99 and aiding and abetting.100
The independent crime of conspiracy to commit genocide or aggressive war
presents another example.101 As the ICTY Appeals Chamber intoned when it
canonically developed JCE in the Tadi´ judgment, personal culpability is the
c
foundation of criminal responsibility but, at the same time, liability can be
established through common design in situations where systems are disordered
and it is dif¬cult to determine personal culpability. National courts prosecut-
ing extraordinary international criminality also have turned to vicarious liability
theories. One example is the culpability theory of association de malfaiteurs
(group of criminals) in Rwanda, whose application has engendered tension in
the jurisprudence.102 Another is the U.S. Supreme Court™s af¬rmation “ with
some stinging dissent “ of the conviction of Japanese General Yamashita for the
illicit activities of troops under his command in the Philippines.
These occasional departures, however, are not treated as natural. They gen-
erate considerable controversy.103 This controversy (re¬‚ected in, for example,
the ridicule some observers exhibit toward JCE, which is demeaned as stand-
ing for “just convict everyone”) is exaggeratedly heated insofar as punishing
three people jointly for, say, the murder of thousands still seems nearly as arti-
¬cially reductionist as punishing only one person. In truth, the level of group
dynamic contemplated by international criminal tribunals is extremely modest.
The level of controversy triggered by these modest departures from orthodoxies
of individual agency indicates the strength of individual agency as an ordering
principle.
These controversies, however, have become suf¬ciently poignant to prompt
international judges to rein in the scope of vicarious liability and reaf¬rm the
40 Atrocity, Punishment, and International Law

importance of subjective individual responsibility. Judges have done so even
where the result is to modify doctrine such that a conviction at trial becomes
an acquittal on appeal. For example, in July 2004, the ICTY Appeals Chamber
reversed sixteen of the nineteen convictions previously entered by an ICTY Trial
Chamber against Bosnian Croat military of¬cer Tihomir Blaˇki´ for ordering
sc
crimes against humanity and war crimes against Muslim civilians and, also,
for failing as a commander to prevent the commission of those crimes.104 The
Appeals Chamber emphasized the need for the ICTY Prosecutor to prove sub-
jective awareness or, at a minimum, recklessness on the part of the accused in
order to secure a conviction based on command responsibility or ordering.105 In

another case, Prosecutor v. Brdanin, an ICTY Trial Chamber held JCE to be an
inappropriate mode of liability when the case has an extraordinarily broad nature
and the accused is physically and structurally remote from the commission of
the crimes.106
Judicial discomfort with vicarious liability certainly is not limited to con-
temporary settings. The criminalization of organizations that had occurred at
Nuremberg and was adhered to in subsequent proceedings also engendered con-
troversy. This constitutes yet another example of the tensions inherent in inter-
national criminal law™s impetus to criminalize collective wrongdoing through
the vehicle of individual guilt. The International Military Tribunal at Nurem-
berg (IMT) remained insistent that “[ . . . ] criminal guilt is personal, and that
mass punishment should be avoided.”107 Concerns over collective guilt were
in part channeled to sentence, with the emergence of an IMT recommenda-
tion that the sentence for membership in a criminal organization not exceed
that of the DeNazi¬cation Law (which set a maximum of ten years), in marked
contradiction to the discretion given to judges.108 Concerns over collective guilt
also were in part channeled to the elucidation of standards that limited crim-
inalization only to certain members of the declared criminal organization so
that the “guilt of all or any [ . . . ] members remains on the traditional ground
of ˜personal™ guilt.”109 Thus, the criminalization of organizational membership
at Nuremberg was not operationalized in a manner that strayed too far from
individualized guilt, thereby assuaging concerns over the derogation this would
pose to liberal legalism. Furthermore, in some of the subsequent proceedings,
the United States Military Tribunal placed the burden of proof in tests of per-
sonal guilt on the prosecution, instead of on the defense as was presupposed,
once again citing liberal legalist concerns.110
In the end, international judges incorporate vicarious elements in order to
render convictions, but then express great concern that criminalization ought
not to be based on vicarious liability. However, the controversy with regard
to JCE is not whether members of the enterprise bear some responsibility for
atrocity but, rather, whether they are culpable. Therefore, an expanded account-
ability paradigm that implicated broader levels of group responsibility through
mechanisms outside the criminal law “ for which I advocate in Chapter 7 “
ironically might relieve exogenous pressures on the criminal law to convict and,
thereby, assuage the need to cultivate vicarious culpability theories. Yet, the
Conformity and Deviance 41

internationalized accountability paradigm resists meaningful reform that would
capture responsible groups. It prefers instead to stick with often ¬ctionalized
notions of individual agency, although it nervously permits the occasional com-
promised departure therefrom (such as through JCE).
Why did the legal ¬ction of individual agency and its concomitant, collective
innocence, emerge? Possible motivations range from the well-intentioned to the
self-serving, and include: the assuaging search for simplicity; a good faith belief
that individualized guilt simply is the most effective and practical response to
mass crimes; and the absolution of the acquiescent and nonfeasant through the
condemnation, to borrow from Makau Mutua, of a few savages.111 Absolving the
many might be more conducive to the grand project of social healing. Such
absolution may have currency as a necessary chit in the process of peace. After
all, it is doubtful that bene¬ciaries would give up their preferred status without
private property rights to protect their ill-begotten gains. Implicating too many
individuals might threaten peace and, as such, the ¬ction of collective innocence
could serve important political purposes. Externalizing the monstrosity of the
atrocity on a few savages protects the humanity of the complicit masses. When
the aggressor group retains its humanity, however ¬ctional, it may simply be
easier for a postcon¬‚ict society to forgive, forget, and move on.
On the other hand, survey evidence from victims reveals discomfort with the
selectivity of indictments and skepticism of the bene¬ts of collective exoneration.
Such evidence, which I present in the next section, demonstrates that victims
prefer a broad range of ¬ne-grained sanctions, textured according to the context
of each postcon¬‚ict society, that fall in between the reductionist outputs of
international criminal law, namely guilt or absolution.


(iv) victims
Victims are the vili¬ed prey stalked by the perpetrators of mass atrocity. They
are targeted en masse based on discriminatory grounds. Once the discrimination
takes root, it initially leads to the social deaths of the victims. Social death means
ostracizing and dehumanizing the victim group. Its members get pushed like
rubbish to the edges of society and subjected, often by law, to the dominion of
the aggressor group. Degrading epithets such as cockroaches, maggots, vermin,
excrement, dogs, and merchandise are used to refer to members of the “other”
group. It is much easier to kill that which already has been deformed by social
death. The following example, summarized by James Waller, is telling:

A story in the New York Times that appeared on the last day of 1994 describes an
incident in which a Bosnian Serb, armed with an automatic weapon, knocked
on the door of a Muslim neighbor and ordered her outside. The Muslim
woman proclaimed, “Visovic, you know me, you know my husband . . . How
can you do this to me?” Visovic replied: “That time is over. I no longer know
you.” Whereupon he ordered her to crawl along the street as he kicked her
repeatedly.112
42 Atrocity, Punishment, and International Law

Similarly, in one of the initial Rwandan gacaca sessions, one of¬cial commented:
Celui qui tuait ne voyait pas qu™il tuait un homme, il croyait tuer un animal
suite aux lecons donn´ es par les autorit´ s d™alors.113
¸ e e
Victims are not selected because of individual fault, but because of their
actual or perceived membership in a despised group.114 For example, the Khmer
Rouge murdered the Cambodian professional classes just because they were
professionals who were believed to present a group threat to the veneration of
peasant life. No attempt was made to select victims based on veri¬able individual
threats they posed to individual members of the aggressor group. The degree of
collectivization (whether among aggressors, bystanders, or victims) will differ in
each case of mass atrocity, but it is always present.
Some victims survive the ordeal. They embark on the road of recovery from
the physical injuries they sustained, the emotional trauma from months or years
of hiding, and the loss of their loved ones. These persons, as is the case for all
of us, have preferences for how the future should be ordered. They also have
opinions on what should happen to their oppressors. What are these?
Some empirical research exists on victim preferences regarding modalities
of accountability and punishment. One comprehensive study was recently con-
cluded by three researchers (Ernesto Kiza, Corene Rathgeber, and Holger-C.
Rohne) af¬liated with the Max Planck Institute in Germany.115 The researchers
interviewed over one thousand victims in eleven postcon¬‚ict or con¬‚ict
regions.116 The interviewees had been subject to war victimization, which
includes, but is not limited to, extraordinary international crimes.117
The researchers determined that, overall, victims are favorably disposed to
trials conducted under international law118 “ which augurs well for adversarial
international criminal justice initiatives119 “ although there was considerable
unevenness to this support among regions.120 The research does not elaborate
on the provenance of international criminal process as derivative of dominant
national methodologies, nor its subsequent expatriation back to diverse national
levels. Respondents expressed lurking support for domestic law (across the board,
44 percent of respondents indicated that prosecutions should be based on domes-
tic law); and also support for religious principles.121 Overall, 49 percent of the
participants responded that an international court should be responsible for pros-
ecution whereas 28 percent opted for a domestic solution and 25 percent for a
mixed domestic“foreign solution.122 Here, too, the researchers found enormous
regional variation.
Overall, in terms of sanction, 42 percent of victims supported imprisonment
and 39 percent payment of money to the victims.123 Once again, researchers
found wide regional variation (for example, only 10 percent of Afghans said that
perpetrators should be imprisoned). In certain of the eleven regions, monetary
sanctions garnered more favorable responses than imprisonment (Afghanistan,
Bosnia, Croatia, Congo, and the Philippines).124 A different study independently
initiated by different researchers (limited to Bosnia and Rwanda) similarly found
preferences for various modalities of sanction, along with “expansive” ideas about
Conformity and Deviance 43

punishment that involved “all wrongdoers “ the big ¬sh as well as the local small
fry.”125
One key result from the research of Kiza, Rathgeber, and Rohne is that
victims and survivors tended to see responses in an integrated, and not mutually
exclusive or singular, fashion. Perhaps in anticipation of this possibility, the
researchers permitted interviewees to allocate favorable responses to more than
one category of process or sanction. In many cases, victims expressed preferences
for prosecutions based both on domestic and international law, and for sanctions
also to be mutually inclusive. The fact that, overall, victims expressed strong
support for reparations and restitutionary forms of justice does not augur well
for criminal justice, at least as practiced by the ad hoc tribunals, and suggests
that methodologies that incorporate such remedies (such as those operative in
Rwanda™s national legal order and, incipiently, the ICC™s Trust Fund for Victims)
should be pursued in earnest. More to the point is the conclusion that the
research supports the merit of multiple, heterogeneous, integrative approaches
to both the process of accountability and to sanction.126 The research does not
support those looking for simple solutions and singular preferences for one
modality instead of another. In fact, the central conclusion supported by the
research is that victims prefer pluralistic solutions and understand accountability
to proceed sedimentarily, meaning that international criminal law™s push for
prosecution and incarceration, which may lead to operational exclusivity given
scarcity of resources, may not be particularly effective.
The statistics on what victims view as the main purposes of taking action
against offenders are fascinating. Sixty-nine percent said that establishing the
truth about what happened is a main purpose “ in fact, this is the most frequently
identi¬ed purpose.127 A further 25 percent answered that enabling people to live
together was a main purpose; the same percentage indicated that taking revenge
on the perpetrators was a main purpose (again, the researchers permitted multi-
ple responses by victim interviewees).128 A fruitful avenue of subsequent research
would be to contrast these results with those of victims of crimes committed ordi-
narily in peacetime through deviant criminal behavior. A relevant question is
whether the latter group of victims is as concerned with “telling the truth” about
what happened or about living together. If not, then this additionally suggests
the existence of (and need for) an independent victimology of mass atrocity;
it would also provide a further justi¬cation for the philosophical concern that
borrowing from the national to ground process and punishment for extraordi-
nary international crimes is ill ¬tting, as is the migration of these newly minted
international methodologies back into the sphere of the diversely domestic, for
example through the incentive structure established by complementarity and
referrals.
Although the value of Kiza, Rathgeber, and Rohne™s research toward develop-
ing a victimology of mass atrocity is high, it remains subject to certain limitations.
A number of methodological and practical inquiries arise.
One question is whether the interviewed population understood “interna-
tional courts” and a “permanent international judiciary”129 as something they
44 Atrocity, Punishment, and International Law

would have any control over or participation in, or whether “ in accordance
with views of the violence as crimes against all of humanity “ this would be
a process controlled by ethnically neutral or nationally neutral foreigners (i.e.,
the reality of the ICTR or ICTY, and a de¬nite prospect for ICC prosecutions).
Based on my work in Rwanda, I would express skepticism that local populations
would avidly support the use of international methods that actively disempow-
ered them. On a related note, a report issued in 2005 by the Afghan Independent
Human Rights Commission found a level of victimization of nearly 70 percent
in the general population and a desire for approaches to justice controlled by
the Afghan people and rooted in Afghan traditions, although supported by the
international community.130
Second, public surveys, while extremely informative, generally reveal the
reality that different people in the same community tend to want different things.
Accordingly, it can be tenuous to generalize from surveys to truly useful oper-
ational principles, although when such surveys reveal a deep preference for
polycentrism they present a challenge for the de jure or de facto primacy of
prosecution and incarceration.
Third, Kiza, Rathgeber, and Rohne™s research does not inquire of victims
what they believe should be the purpose of punishing offenders (whether that
punishment takes the form of execution, incarceration, or monetary payments).
An interesting research question therefore is left unaddressed.
Finally, the border between victims and victimizers is not always ¬rm, but is
at times porous. In episodic bouts of mass atrocity, victims may in fact become
victimizers; persecuted individuals or groups may in turn persecute their perse-
cutors or innocent third parties.131 The dual status of such individuals simulta-
neously presents therapeutic and punitive dilemmas.
Regardless of these limitations, victimological research is tremendously
important. We need to learn much more about victims. This will prove dif¬cult
to the extent that international criminal law remains focused on the defendant™s
guilt or innocence, instead of integrating the victim, the harms he or she suf-
fered, and the myriad elements that nefariously conspired to in¬‚ict those harms.
Although the ICC positively takes steps in this direction (which I introduce in
Chapter 3),132 unless victim integration initiatives are taken seriously the place
of victims in the justice project, as well as the experiences they have to offer,
will remain marginal and untapped.


(v) conclusion: law on borrowed stilts
The international community is prosecuting extraordinary international crimes
without ¬rst having developed a thorough criminology of mass violence, a suit-
able penology for perpetrators, or a thoughtful victimology for those aggrieved.
The disconnect between the aspirations of legal institutions and the realities
of their work is speci¬cally evident when it comes to penological rationales and
sanctioning practices. As I elaborate in greater detail in Chapter 3, the dominant
internationalized discourse simply assumes that isolated incarceration “ at times
Conformity and Deviance 45

of leaders, but not always “ is an appropriate punishment in the wake of mass
suffering and murder. This assumption is so ingrained that there was a dearth of
substantive debate on the subject of sentencing at the Rome Conference that
led to the ICC. The only exceptions were a heated discussion of the legality
under international law of the death penalty and, in earlier preparatory sessions,
differences over establishing minimum sentences for certain offenses.133 I do not
believe, however, that the one-size-¬ts-all suitability of distant incarceration and
isolation of perpetrators from the roiled society should be taken as axiomatic.
chapter 3


Punishment of International Crimes in International
Criminal Tribunals




Contemporary international criminal tribunals “ such as the ICTR, ICTY, and
ICC “ have inherited little penological guidance from their watershed prede-
cessors, the Nuremberg and Tokyo Tribunals. Assuredly, Nuremberg and Tokyo
were momentous occasions in terms of the prosecution of extraordinary interna-
tional crimes, the establishment of liability theories, and the discrediting of cer-
tain defenses. These two international tribunals, however, were far from ground-
breaking in terms of conceptualizing a sentencing policy. Although retribution
and deterrence played an important role,1 these goals were not operationalized
in a sentencing heuristic.
Article 27 of the Nuremberg Charter gave judges “the right to impose . . . on
conviction . . . death or such other punishment as shall be determined . . . to be
just.”2 The sentencing provision of the Charter of the Tokyo Tribunal read the
same. Accordingly, judges had nearly absolute discretion in the sentencing pro-
cess. Jurisprudentially, the Nuremberg and Tokyo Tribunals did not elucidate
sentencing guidelines; discussion of sentencing issues and rationales largely was
perfunctory, especially in comparison to the thorough discussion of questions of
legal liability. Neither tribunal had a veritable sentencing phase (either distinct
or joined to the proceedings). The perception of sentence as an afterthought,
instead of a vivid situs of analysis, permeated even the most thoughtful compilers
of World War II atrocity prosecutions at the international and national levels. For
example, in approximately two hundred pages of thorough summary that consti-
tutes the ¬nal volume of the Law Reports of Trials of War Criminals, only three
pages are devoted to punishment.3 This may simply re¬‚ect the fact that these
¬fteen volumes are intended to report on legally relevant cases and, given the
inattention accorded sentencing, there was little of legal relevance to report on.
Judges at Nuremberg and Tokyo expended scarce effort in identifying aggra-
vating factors, which often were implied within the criminal conduct itself.
Discussion of mitigating factors received more attention. Although (as was the
¨
case with Reichsmarschall Hermann Goring) judges often came rather quickly
to the seemingly self-evident conclusion that there was “nothing to be said in
mitigation,”4 for certain defendants certain facts were accepted as mitigating. In
fact, some of the factors contemporary international criminal justice institutions
46
Punishment in International Tribunals 47

avail themselves of to reduce sentence trace back to the Nuremberg proceedings.
Facts considered in mitigation at Nuremberg included: not being a dominant
organizational ¬gure, evidence of abiding by the laws of war, following orders,
and opposing certain of¬cial policies.5 These facts often were discussed co-
extensively with the determination of liability on speci¬c charges, so it remains
unclear whether they were contemplated as being in mitigation of the sentence
or in mitigation of the accused™s degree of responsibility or, even, of guilt with
regard to speci¬c charges. Con¬‚ation of factors pointing to criminal liability and
factors pointing to the aggravation or mitigation of sentence remains a trouble-
some area of international penology, although contemporary justice institutions,
in particular the ICTY, have made an effort to disentangle these factors in the
name not only of theoretical clarity, but also fairness to the accused.
The Nuremberg prosecutions involved major war criminals whose crimes
could not be assigned a speci¬c geographic location. The Nuremberg Tribunal
(of¬cially called the International Military Tribunal, or IMT) was authorized to
prosecute crimes against the peace, war crimes, and crimes against humanity.6
Crimes against humanity only were prosecutable to the extent that they were
associated with one of the two other crimes, thereby requiring a nexus between
them and armed con¬‚ict initiated by Germany (consequently, these proceedings
focused on Nazi aggression). I consider the IMT to be an international court
created by a multilateral treaty, although it certainly was not a global court.7
The IMT sentences were pronounced on October 1, 1946 (the day after the
IMT delivered its judgment), coinciding with Yom Kippur, the sacred Day
of Atonement in Judaism. Twelve death sentences (by hanging) were issued.
¨
Goring, one of the defendants sentenced to death, ingested cyanide the night
before his scheduled execution. Three individuals received life imprisonment
and another four received ¬xed terms (two to twenty years, one to ¬fteen, one
to ten). Three defendants were acquitted. Two individuals were not prosecuted
even though scheduled for prosecution: one committed suicide before the trial
began and the other was too ill to be prosecuted. Martin Bormann, chief aide
to Hitler, was tried in absentia. A number of organizations were declared to be
criminal: for example, the SS, Gestapo, and Nazi Leadership corps.
Twelve further rounds also occurred at Nuremberg. These were referred to
as the “subsequent proceedings.” These proceedings, constituted under Allied
Control Council Law No. 108 and Military Government Ordinance No. 7,
took place in front of American judges assembled in United States Military
Tribunals. Although “organized and conducted on behalf of the United States
under General Telford Taylor,”9 the subsequent proceedings were deemed by
reporters of the time to be international proceedings,10 were explicitly consti-
tuted as such,11 and were found by judges to be “based upon international author-
ity and [to] retain international characteristics.”12 The subsequent proceedings
involved members of criminal organizations (such as the SS and Gestapo), of¬-
cials, notorious killers (e.g., Einsatzgruppen), industrialists, doctors, and jurists.
These proceedings, taken as a whole, implicated 177 individuals. Although some
defendants were acquitted, most were convicted.
48 Atrocity, Punishment, and International Law

Limited discussion of sentencing rationales occurred in the subsequent pro-
ceedings. In some cases the sentences were issued the same day the verdicts were
read. To give a ¬‚avor of the sentences: in the Einsatzgruppen trial (September
1947 to April 1948, the ninth subsequent proceeding), twenty-four individuals
were accused. Among those sentenced, fourteen were sentenced to death, two
to life, three to twenty years, one to ¬fteen, and two to ten years.13 Twelve of the
death sentences later were commuted to a variety of lesser sentences ranging
from life imprisonment to ¬xed terms of imprisonment. The severity of sen-
tences issued to those convicted in other rounds of the “subsequent proceedings”
ranged from comparable to the Einsatzgruppen defendants to more lenient. For
example, in the joint trials of industrialists, sentences imposed ranged from 1.5
to 8 years (I.G. Farben trial) and from just under 3 years to 12 years plus forfeiture
of property14 (Krupp trial). The case reports are silent with regard to factors to
differentiate the punishment in¬‚icted on the various individuals convicted in
the industrialists™ trials.
In the Justice trial (February“December 1947), ¬fteen former jurists were
prosecuted.15 Six were acquitted and released. Nine were convicted and sen-
tenced: three to ten years, one to ¬ve years, one to seven years, and four to life
imprisonment. Defendants for whom there was no evidence warranting mitiga-
tion received life imprisonment; but so, too, did others for whom no discussion
was had regarding the existence or nonexistence of mitigating factors. In fact,
among all the convicted defendants, it is only in the case of one, Lautz (Chief
Public Prosecutor at the People™s Court in Berlin), that the report reveals that
the military tribunal referred to mitigation of punishment: it cited Lautz™s non-
activity in Nazi Party matters and his resistance to efforts by Party of¬cials to
in¬‚uence his conduct (although he was found to have yielded to Hitler™s in¬‚u-
ence and guidance).16 Lautz received ten years™ imprisonment, more than others
for whom no discussion of mitigation appears in the case report.
In the Hostages trial, the military tribunal issued a rare discussion in which it
opined generally that the degree of mitigation depends on many factors, includ-
ing the nature of the crime, the age and experience of the person, the motives
for the criminal act, the circumstances under which the crime was commit-
ted, and provocation.17 As with IMT practice, this discussion evinces a con¬‚a-
tion of factors pertaining to culpability and mitigation, in particular when it
came to including “the failure of the nations of the world to deal speci¬cally
with the problem of hostages and reprisals by convention, treaty, or otherwise
[ . . . which . . . ] mitigates to some extent the seriousness of the offense.”18 In the
Flick trial, the Tribunal delved into “incidents” in the lives of two of the con-
victed defendants, “some of which involved strange contradictions,” including
interceding to protect certain Jewish friends and saving survivors on a sunk ship,
to mitigate sentences to seven and ¬ve years.19
To be sure, the international proceedings at Nuremberg were but one sliver
of the judicialization of World War II atrocities in Europe. The vast majority
of proceedings occurred at the national level “ in national courts or in military
Punishment in International Tribunals 49

commissions “ or by instrumentalities of the occupying powers throughout
Germany (for example, U.S., U.K., and Soviet military courts) and other states.
Some proceedings operated prior to the trials at Nuremberg; some coincided
with Nuremberg; and many occurred thereafter, in some cases initiated in ordi-
nary courts well over half a century after Nuremberg. These proceedings are
not international proceedings and, therefore, I consider their approaches to
sentencing in Chapter 4, which surveys the activities of national and local
legal institutions in punishing extraordinary international criminals. To fore-
shadow a bit, however, sentences by military instrumentalities initially grav-
itated more toward the death penalty than in the Nuremberg proceedings.
What is more, many of these death sentences were quickly carried out, espe-
cially in regard to former concentration camp of¬cials appearing before military
courts (for whom death sentences seemed to be the norm). Some of these
cases edi¬ed important substantive principles of international criminal law “
for example, the Dachau case™s development of common design20 “ but not
penology. Sentences of national courts, in particular German courts, were some-
what more lenient, albeit not so in all cases (e.g., the Israeli Supreme Court™s
1962 judgment upholding Adolf Eichmann™s death sentence). Amnesty laws
were passed in a number of national jurisdictions. Even at the level of mili-
tary instrumentalities, over time there emerged pressure to parole most of those
convicted.21
The Tokyo Tribunal of¬cially was called the International Military Tribunal
for the Far East. Its jurisdiction was based on the Tokyo Charter. Judges from
eleven different countries sat on the Tribunal. This Tribunal indicted twenty-
eight individuals in proceedings that began in 1946 and ended in 1948. These
individuals (“Class A” criminals) mostly were military and political leaders. Of
these, seven were sentenced to death, including General Tojo, Japan™s Prime
Minister during much of World War II, who was hanged in 1948. Sixteen others
were sentenced to life in prison and two to ¬xed terms of con¬nement. Two
died of natural causes before trial; another had a nervous breakdown and was
removed. No acquittals were rendered. Over time, though, many of the convicts
were pardoned. For example, of the sixteen individuals given life sentences, three
died in prison while the remaining thirteen were paroled in the 1950s. Three
convicts assumed senior government posts after their release, which suggests
that their convictions did not materially discredit them among the Japanese
public. Considerable doubts have been expressed regarding the quality of the
proceedings, their accordance with due process, and their impartiality.22 These
doubts have cast a shadow over the Tokyo Tribunal, making its work less iconic
than Nuremberg™s. This shadow, in turn, attests to the connection between due
process and the credibility of adversarial criminal prosecutions.
The Tokyo Tribunal was reticent when it came to discussing sentence. One
defendant whose sentence was mitigated was Mamoru Shigemitsu, the former
Japanese Foreign Minister, who was found not to be involved in the formulation
of the war conspiracy. By the time he acceded to his ministerial post, the Tribunal
50 Atrocity, Punishment, and International Law

noted that the machinery of war crimes and war of aggression already had
been established. Shigemitsu received a seven-year sentence. Moreover, he was
paroled in 1950 and subsequently served in the Japanese cabinet.
Many trials of Japanese accused of extraordinary international crimes were
held separately at the national level in the United States, the United Kingdom,
and other states, including throughout the Paci¬c arena; these trials also took
place in the form of military courts-martial, some of which were conducted by
the Dutch.
In sum, this formula of discretion exercised within a strict reliance on tra-
ditional modes of punishment reserved for ordinary common criminals that
began at Nuremberg and Tokyo largely persists in contemporary institutions.
The exercise of discretion affects the severity but not the form of punishment,
which, insofar as the death sentence has been eliminated in international crim-
inal law institutions, now effectively has become limited to incarceration. De
jure certain contemporary international criminal justice institutions can award
restitutionary remedies, but they have not yet done so in practice. Assuredly,
at both Nuremberg and Tokyo different defendants did receive different sen-
tences. The judges thereby exercised their discretion to vary the punishment
according to the individual defendant. They did so, however, without provid-
ing a framework or heuristic to account for the exercise of discretion, although
they did develop a rudimentary typology of facts in mitigation that continues to
inform international criminal penality to this date. Let us now turn to the work
of contemporary institutions.


(i) positive law frameworks of
contemporary institutions
For the most part, the textual bases for punishment provided by the positive
law instruments of the ICTR and ICTY are thin, albeit not as thin as those of
the Nuremberg or Tokyo Tribunals. The constitutive documents of the Special
Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia,
and hybrid entities in East Timor and Kosovo also are laconic when it comes
to sentencing. The positive law of the ICC is richer. Those institutions that
have actually punished offenders “ in particular, the ICTY, ICTR, and East
Timor Special Panels “ have addressed sentencing in their jurisprudence. In
this regard, they have improved the quality of the discussion from Nuremberg
and Tokyo.
The ICTY and ICTR Trial Chambers impose sentences and penalties fol-
lowing the conviction of the accused. Sentences of the ICTY and ICTR Trial
Chambers can be appealed to the Appeals Chamber. The Appeals Chamber will
“correct” sentences of the Trial Chambers if there is proof of discernible error
in the quanti¬cation of sentence or if convictions are overturned or added.23
In such situations, the Appeals Chamber may determine its own sentence.24 In
practice, the Appeals Chamber has been quite active in revising sentences.
Punishment in International Tribunals 51

In the Trial Chambers, punishment initially was delivered after a separate
sentencing hearing. This bifurcated structure has given way to a preference
to issue sentence immediately following judgment.25 This approach resonates
with civil law traditions, in which sentencing is addressed by counsel in closing
arguments and pronounced during the guilty verdict. That said, there is provision
for a separate sentencing hearing if the accused has entered a guilty plea.26 At
this hearing, the parties may submit any relevant information that may assist
the Trial Chambers in determining an appropriate sentence. The ICC and the
Special Court for Sierra Leone appear to favor a separate sentencing hearing in
all situations.27
Article 24(1) of the ICTY Statute limits penalties to imprisonment and stip-
ulates that, in the determination of the terms of imprisonment, the ICTY shall
have recourse to the general practice regarding prison sentences in the courts
of the former Yugoslavia. Article 23(1) of the ICTR Statute reads identically,
except that it refers to the courts of Rwanda instead of the courts of the former
Yugoslavia. The ICTR has interpreted this provision modestly, concluding that
it does not imply an obligation to conform to the relevant national practice.28
The ICTY™s approach is similar. What is more, the ICTY takes a dim view
whether changes in domestic law should inure to the bene¬t of the accused
(the principle of lex mitior). The ICTY Appeals Chamber held in the Dragan
Nikoli´ case that “[a]llowing the principle of lex mitior to be applied to sen-
c
tences of the International Tribunal on the basis of changes in the laws of the
former Yugoslavia would mean that the States of the former Yugoslavia have the
power to undermine the sentencing discretion of the International Tribunal™s
judges.”29
No provision is made for a minimum sentence. The only statutory guidance
the ICTY and ICTR receive in formulating sentence is to take into account
“the gravity of the offence and the individual circumstances of the convicted
person.”30 The ICTR and ICTY Rules of Procedure and Evidence supplement
these very broad sentencing provisions. The Rules stipulate that an individual
may be incarcerated for a term up to life. Therefore, ICTR and ICTY judges
have the power to impose any sentence ranging from one-day imprisonment to
life imprisonment for any crime over which the tribunal has jurisdiction.
The Rules do require that the Trial Chambers take into account mitigating
and aggravating circumstances in determining sentences. With one exception
(substantial cooperation by the offender), the Rules do not illustrate mitigating
or aggravating circumstances. In cases where an accused is convicted of multiple
charges, the ICTY Rules give the Trial Chambers the option to impose either a
single sentence re¬‚ecting the totality of the criminal conduct or a sentence in
respect of each conviction with a declaration regarding whether these sentences
are to be served consecutively or concurrently.31 In terms of the type of infor-
mation to consider in fashioning a sentence suitable for a particular offender,
ICTY and ICTR judges have “unfettered discretion to evaluate the facts and
attendant circumstances.”32
52 Atrocity, Punishment, and International Law

The ICC can sentence an offender to up to thirty years™ imprisonment, with
a possibility of “life imprisonment when justi¬ed by the extreme gravity of the
crime and the individual circumstances of the convicted person.”33 The ICC™s
positive law “ namely, the Rome Statute and the ICC Rules of Procedure and
Evidence “ jointly provide more guidance regarding sentencing than the positive
law of the ad hoc tribunals, although the basic schema is similar.34 In particu-
lar, the ICC Rules of Procedure and Evidence list aggravating and mitigating
factors.35 These replicate many of the factors developed by international judges
in the jurisprudence of the ICTY, ICTR, and East Timor Special Panels that,
in turn, themselves largely mirror the factors that animate sentencing of ordi-
nary domestic criminals for ordinary domestic crimes. These factors include
the nature of the harm caused, degree of intent, personal characteristics and
prior criminal record of the convicted person, any demonstrated cooperation
and compensation to victims, vulnerability of victims, particular cruelty, and
the mental capacity of the convict. No ordering principle is provided as to the
relative weight to attribute to any of these factors. “[O]ne or more aggravating
circumstances” may justify the imposition of life imprisonment.36 Nor does the
ICC™s positive law provide any explicit guidance as to the weight to accord to
a factor in sentencing when that same factor already may have been consid-
ered in establishing the mental element of the substantive offense.37 This is
an aspect of international sentencing that has remained murky since Nurem-
berg™s tendency to treat aggravating factors as implicit in the offense. Conse-
quently, despite the relative richness of the positive law, at the ICC the quan-
ti¬cation of sentence in individual cases still effectively is left to the exercise
of judicial discretion in a manner similar to the ICTY and ICTR. It remains
unclear what role, if any, national sentencing practice in the af¬‚icted jurisdic-
tion would play when the ICC af¬xes sentence. Nor does the ICC™s positive law
provide much guidance regarding the purposes of sentencing.38 The preamble
to the Rome Statute vaguely refers to deterrence, retribution, and expressivism,
but does not suggest how these could be operationalized in the application of
punishment.
The positive law of the Sierra Leone Special Court resembles that of the
ICTR, although there are no life sentences and juvenile offenders (between ¬f-
teen and eighteen years of age) are treated with considerable clemency.39 This
clemency is oriented toward rehabilitation of juvenile offenders and constitutes
a penological goal in its own right. However, despite considerable discussion
during the formation of the Special Court regarding the prosecution and pun-
ishment of child soldiers, no indictments have been brought against minors.
The Special Court is required to consult ICTR sentencing practices.40 The
generalized treatment of aggravating and mitigating circumstances is similar.41
The agreements between the UN and Cambodia regarding Extraordinary
Chambers in the Courts of Cambodia are virtually silent on penalty and the
determination of sentence although, taken together, they provide a minimum
sentence of ¬ve years™ imprisonment and a maximum sentence of life impris-
onment (with the possibility of combining this with seizure of personal and real
Punishment in International Tribunals 53

property acquired by criminal conduct, which is to be returned to the state).42
The Kosovo hybrid panels do not receive independent guidance for sentencing
international crimes beyond that provided by applicable ordinary criminal law,
including a newly promulgated code in Kosovo.
The East Timor Special Panels could punish through a ¬xed term of impris-
onment, capped at twenty-¬ve years for a single crime.43 Special Panel judges
received a mandate very similar to those of the ICTY, ICTR, and ICC: namely
to take into account the gravity of the offense and the individual circumstances
of the convicted person in fashioning a sentence.44 Another similarity to the ad
hocs was that the Special Panels were to have recourse to the general practice
regarding prison sentences in the courts of East Timor and under international
tribunals.45 The costs of the proceedings can be assessed against guilty defen-
dants. As is the case with other international criminal law institutions, plea
bargains were permitted.46
In addition to imprisonment, the positive law of international criminal jus-
tice institutions suggests the pursuit of accountability through restitution (the
return of illegally obtained property), forfeiture, and ¬nes.47 These forms of
accountability operate on a subaltern basis to punishment by imprisonment.48
Restitution has not been awarded in the sentences of the ICTY or ICTR.49
The ICC might prove to be more welcoming of reparative and restitutionary
approaches insofar as it is joined by a Trust Fund for Victims.50 The ICC can
make reparative orders against the convict or through the Fund, for which reg-
ulations have been developed. The Fund is to be capitalized by compensation
orders entered against convicts and also by voluntary grants from organizations
and governments. As of April 2006, the Fund has received over 1.3 million Euros
in grants. If properly supported, Fund would represent a highly desirable addi-
tion to international postcon¬‚ict legal interventions. That said, it remains far too
early to assess whether the Fund represents a meaningful commitment on the
part of international criminal law to restorative methodologies. In the past, there
has been no such commitment, either theoretically or practically. Although the
East Timor Special Panels envisioned the creation of a fund for similar purposes,
this never was realized.51
Contemporary international criminal tribunals permit sentences to be par-
doned or commuted and early release to be granted.52 This aspect of the work of
these institutions remains particularly understudied. By way of example, persons
convicted by the Special Panels have the right to be released from prison after
two-thirds of the sentence has been served as long as they have behaved well
while in custody and the release will not threaten public safety and security.53
The ICTY and ICTR share the same formal process for early release. This pro-
cess directly involves the ordinary criminal law of the state in which the convict
serves the sentence. ICTY convicts are imprisoned in Germany, Austria, Spain,
Italy, Denmark, Finland, Norway, the United Kingdom, Sweden, and France;
several ICTR convicts are incarcerated in Mali, while Benin, Swaziland, France,
Italy, and Sweden each have signed agreements with the ICTR indicating a will-
ingness to enforce sentences. In a case where the convict is eligible for pardon
54 Atrocity, Punishment, and International Law

or commutation of sentence pursuant to the applicable law of the state in which
the convict is incarcerated, the state in question is to notify the relevant ad hoc
tribunal accordingly.
By and large, the ordinary domestic law of these states (in particular where
ICTY convicts currently are imprisoned) permit eligibility for early release
after service of two-thirds of the sentence.54 Once eligibility under national
law arises, the detaining state can apply to the ICTY or ICTR President, as the
case may be, for the convict™s early release. The President (a judge who essen-
tially occupies the role of chief judge) shall decide the matter, after consultation
with others (including other international judges), on the basis of the interests
of justice and general principles of law. There is no appeal from the Presi-
dent™s decision. This decision-making discretion is contoured by points of ref-
erence enumerated in the Rules of the ICTY and ICTR and, additionally in
the case of the ICTY, a practice direction.55 Criteria to take into account in
deciding early release include: the gravity of the crime or crimes for which the
prisoner was convicted, the treatment of similarly situated prisoners, the pris-

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