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severity of punishment were explicitly retributive. It noted that ordinary Nor-
wegian law “did not lay down suf¬ciently severe penalties” as it was “founded
on the supposition of a normal social life.”239 This instance is one of the infre-
quent times where lawmakers expressly noted the difference between ordinary
common crime and extraordinary international crime and turned to this differ-
ence to justify augmenting the retributive censure for extraordinary international
crime. However, the French approach is more indicative of overall state prac-
tice. The French Law Concerning Trial of War Criminals in the French Zone of
Germany simply stated that the penalties that can be applied to offenders are
those provided in the ordinary penal code (for ordinary crimes).240 There does
not seem to be any predictable, or at times even explicable, basis upon which
mercy reviews or con¬rmations of sentence were conducted.241 These often
reduced the severity of sentence initially issued, at times quite drastically. For
example, two sentences of life imprisonment issued to two members of the
Japanese Military Police by an Australian Military Court were each commuted
to two-year sentences by the con¬rming of¬cer.242 Lieutenant General Kurt
Maelzer™s sentence was reduced from ten years™ imprisonment to three years™
imprisonment “by higher military authority.”243 In the Dachau concentration
camp trial, thirty-six of the forty convicts initially were sentenced to death. How-
ever, the reviewing authority commuted three of the death sentences to terms of
hard labor (life, twenty years, ten years) and then the con¬rming authority com-
muted ¬ve of the remaining thirty-three death sentences to various ¬xed terms
of hard labor.244 Despite a small number of additional trials that took place in
Munich in the 1950s, 1960s, and 1970s, the crimes committed at Dachau largely
remained unpunished.
As was the case at Nuremberg, a primitive typology of mitigating factors arose
in cases prosecuted in the immediate aftermath of World War II. One factor
was following superior orders, which, although largely incapable of exculpating
114 Atrocity, Punishment, and International Law

an accused, routinely was considered in mitigation.245 In this regard, many
national courts and military commissions emulated the approach taken by the
IMT judges. The more categorical the order, and the less the person to whom the
order was made had any input regarding its content, the greater the tendency
to mitigate the sentence. An individual™s obeying laws and instructions while
“exercis[ing] no initiative to any marked degree” was one factor that a U.S.
Military Commission (Shanghai) found to “compel unusually strong mitigating
consideration.”246 That said, pleas of superior orders did not mitigate sentence
in every case.247 Overall, however, superior orders was probably the factor most
frequently accepted in mitigation.
Other mitigating factors, many of which were judicially created, include:
age, experience, and family responsibilities of the offender;248 that the offender™s
“mental faculties were defective and undeveloped”;249 minority (as per national
law);250 that the offender “stupidly allowed himself to be carried along with
the criminal stream of German terrorism, rather than acted with intent on his
own initiative”;251 and the “brief, passive, and mechanical participation of the
accused.”252 A British Military Court was asked to take into account a defendant™s
“previous record as a brave, responsible soldier,” but “nevertheless” sentenced
him to death by hanging (the sentence was con¬rmed and implemented).253 In
the Zyklon B Case, which involved the complicity of German industrialists in the
killing of Allied nationals in concentration camps, a British Military Court issued
death sentences (subsequently con¬rmed and implemented) despite pleas of
mitigation related to defendants™ alleged lack of knowledge as to the use the
gas was being put to, pressure from the military police, duress, and that one
defendant had a wife and three children.254 Also ineffective in the Zyklon B Case
was a plea that, had the offender not cooperated, “the S.S. would certainly have
achieved the aims by other means.”255 A Special Court in Amsterdam reduced
a sentence to ¬fteen years™ imprisonment for a crime against humanity in part
because the offender “did not act on his own spontaneous initiative [but] was
drawn into the whole abominable system of terrorism and brutality carried out
under the higher German Nazi administration against civilians of the occupied
nations.”256 Sometimes seemingly felicitous circumstances entirely beyond the
offender™s control were taken into account. For example, in a case involving the
sentencing of a Japanese Navy Lieutenant convicted of subjecting prisoners of
war to danger to seven years™ imprisonment, a Netherlands Temporary Court-
Martial took into account in sentencing that the ammunition depot to which
the prisoners were dangerously exposed “was not actually hit as a result of allied
bombing.”257
Guilty pleas, which exercise considerable in¬‚uence in sentencing in contem-
porary institutions, were viewed somewhat equivocally in World War II atrocity
cases. For example, an accused facing charges of war crimes arising out of ill
treatment of Allied prisoners changed his plea to guilty and was sentenced to
death (the sentence was con¬rmed) despite his counsel™s having delivered a
closing speech calling for mitigation.258
Punishment of International Crimes Nationally and Locally 115

Discussion of aggravating factors was more limited and often was mixed into
consideration of the evidence of proof of individual criminal responsibility. Grav-
ity of the offense was a routine factor; so, too, was the of¬cial power or status
of the offender (although in cases of the crime of aggression or crimes against
the peace this would seem to be a prerequisite for criminal responsibility). In
af¬rming the death sentence awarded to Hans Albin Rauter, the Netherlands
Special Court of Cassation signaled out the “reprehensible mentality” of the
accused, the “reign of terror” he exercised, his zeal, his knowledge of the activ-
ities of the German administration in the Netherlands, and his “cowardly and
furtively committed acts” against Jews and students.259 The Court went out of
its way to note that Rauter™s commitment to furthering a German victory “pro-
vides no grounds for excuse or reasons for mitigation of punishment [ . . . ] as
feelings of patriotism can never signify a license to conduct a war with criminal
means [ . . . ] nor to apply inhumane measures of terrorism to the populations
of occupied territories.”260 In cases of criminal groups, courts considered as an
aggravating factor the extent of the involvement of the offender in the mutual
criminal relationship.261 Vulnerability of the victims also was cited. For example,
the Netherlands Temporary Court-Martial at Batavia, which convicted Washio
Awochi of the war crime of enforced prostitution, “took into consideration [in
imposing punishment] the fact that the girls involved ˜were mostly in poverty-
stricken and dif¬cult circumstances™ and that the ˜accused took advantage™ of it
for ˜his own purposes™ [ . . . ].”262


b. From the 1960s Onward
In contradistinction to trials conducted in the 1940s, trials that took place from
the 1960s onward were completed overwhelmingly (though not exclusively) by
national courts (as opposed to military instrumentalities). Also, the sentences
issued tended to be more lenient, there were many acquittals, and many inves-
tigations were stalled (and eventually scuttled) by amnesties. The defense of
following orders, which had been tightly circumscribed in the ¬rst wave of trials
to serve only discretionarily as a mitigating factor, gained broader traction in
this second wave of prosecutions with regard to determinations of individual
criminal responsibility.
That said, these trials, particularly in West Germany, did bring to light several
thousand Nazis living under assumed names and, in certain cases, prompted
some sort of reckoning with the past. They also unpacked the brutalities of the
concentration camps to the general public, although they did so in a manner that
served to individualize responsibility, clouded the collective nature of criminality
of the Nazi state, obscured complicity, and then punished without coherent
penological purpose. Notwithstanding these shortcomings, however, trials in
West Germany may have conveyed greater value to the German public than
international or extraterritorial trials in that they were undertaken under the
auspices of German of¬cials.
116 Atrocity, Punishment, and International Law

In 1963 a trial began in Frankfurt, West Germany, involving a number of
administrators and guards from the Auschwitz concentration camp. This was
one of the most notorious camps, where millions of innocent detainees had
been extirpated. Trials that had previously occurred in Poland and the German
Democratic Republic with regard to Auschwitz personnel resulted in a number
of executions. The West German proceedings concluded on August 19, 1965. Six
defendants were given life sentences, eleven were given terms of imprisonment
(ranging from slightly over three years to fourteen years), and three were acquit-
ted. Rebecca Wittmann notes that, owing to West German laws, the prosecution
could only prosecute those of¬cials who had exceeded direct orders; this require-
ment ironically led, according to Wittmann, to a legitimization of the Nazi state
and its legal framework.263 As a result, attention ¬xated only on the most brutal
and sadistic crimes while deeper questions about the normalization of violence
in the Nazi era, and the automaticity of annihilation, were left unaddressed.264
On the other hand, the Auschwitz trial appears to have had some expressive
value in Germany. It also carries ongoing pedagogical currency. For example,
there is an exhibit on the trial in the permanent collection of Berlin™s Jewish
Museum. This exhibit lauds the proceedings as having “laid the Nazi crimes
before not only the people directly involved but also the German and inter-
national public.”265 It also notes that “[t]hese sentences, some of which were
lenient, provoked intense public debate.”266
Trials also were held in West Germany with regard to personnel, including
of¬cials, from camps at Belzec, Sobibor, and Treblinka. As with Auschwitz,
these were places of absolute barbarity. Several hundred thousand individuals,
mostly Jews, were exterminated at each of these camps. Many of the defendants
were acquitted, often on the basis of following orders. For example, all but one
of the defendants in the Belzec Trial (1963“1964) were acquitted and released.
The one defendant actually convicted was punished with a 4.5-year sentence
(although he had previously served time with regard to a different offense).
A larger number of individuals were convicted in proceedings relating to the
Sobibor camp. Sentences ranged from life to ¬xed terms of imprisonment, many
as modest as three to four years. In the Sobibor trial, the court was sensitive to
allegations of following orders and coercion (i.e., if the camp personnel did not
obey they would have been punished, shot, or transferred). The Treblinka camp
of¬cials were treated somewhat more severely by the West German courts. It is
estimated that 700,000 Jews were murdered at Treblinka. The Treblinka trial
led to several convictions, for which sentences spanned from life imprisonment
to ¬xed terms ranging from three to twelve years. Given the scale of torture and
death in each of the camps, it seems quite a stretch to think of such sentences
as proportionate to the enormity of the offenses.
Probably the most prominent trial in this second wave was held outside
Germany. This was the prosecution of Adolf Eichmann in the Israeli courts.
Eichmann, an SS Lieutenant-Colonel, was not a top Nazi, nor a policymaker,
but was an of¬cial responsible for the implementation of the Final Solution. In
1960, Eichmann was kidnapped from Argentina by Israeli security agents. He
Punishment of International Crimes Nationally and Locally 117

was brought to Jerusalem to face charges of crimes against the Jewish people
(which basically constitutes the crime of genocide), crimes against humanity,
and war crimes. Unlike at Nuremberg, where the prosecutorial focus was on
Nazi aggression and war crimes, in this trial the Holocaust occupied central
stage.
The Jerusalem District Court convicted Eichmann on December 12, 1961.267
His claim of superior orders was rejected insofar as the acts in question were
found to be manifestly unlawful268 and Eichmann™s “inner attitude” was one
of wholehearted and willing support of the Final Solution and, hence, belied
any minimization of his moral responsibility.269 The District Court held that
“mere blind obedience could never have brought [Eichmann] to commit the
crimes which he did with the ef¬ciency and devotion with which he carried
them out, had it not been for his fanatical belief that he was thereby ful¬lling
an important national mission.”270 Eichmann was “not lukewarm in his orders
nor in his deeds, but energetic, full of initiative and active to the extreme in his
efforts for the realization of the ˜Final Solution.™”271 The evidence established
that, although Eichmann “received his principal orders from above,”272 he held
a key position in the architecture of the Final Solution and enjoyed considerable
supervisory and discretionary authority. The District Court remarked:

[Eichmann™s] hatred was cold and calculated, aimed rather against the Jewish
people as a whole than against the individual Jew, and it is for just this reason
that it was so venomous and destructive in all its manifestations. To the task
he devoted his alert mind, his great cunning and his organizing skill. He acted
within the general framework of the orders which were given to him, but
within this framework he went to the very limit to bring about the speedy and
complete extermination of all Jews in the territories under German rule and
in¬‚uence. In saying all this we do not mean that the accused was exceptional
in his evilness in the regime which had raised him. He was a loyal disciple of
a regime which was wholly evil and malicious.273

Eichmann™s death sentence was pronounced on December 15, 1961. This sen-
tence was permitted by Israel™s Nazis and Nazi Collaborators (Punishment) Law
5710/1950. In exercising its discretion to impose the death penalty, the District
Court referenced the “unparalleled horror” of the crimes. The District Court
noted that Eichmann™s crimes differed “from criminal acts perpetrated against
persons as individuals. It may be said that such comprehensive crimes, as well as
crimes against humanity which are directed against a group of persons as such,
are even more heinous than the sum total of the criminal acts against individ-
uals of which they consist.”274 The District Court thereby intimated the need
to enhance the severity of sentence in order to meet the additional retributive
goals of punishment for such comprehensive crimes.
Eichmann™s convictions and sentence were af¬rmed on appeal to the Israeli
Supreme Court on May 29, 1962.275 The Supreme Court dismissed superior
orders insofar as it held that “within the framework of the order to carry out
the ˜Final Solution,™ [Eichmann] acted independently and even exceeded the
118 Atrocity, Punishment, and International Law

duties imposed on him through the service channels of the of¬cial chain of
command [ . . . ].”276 Eichmann was “the high and mighty one.”277 Following
an unsuccessful plea for clemency to the President of Israel, Eichmann was
hanged on May 31, 1962. His body was cremated. His ashes were scattered over
the sea. In addition to giving Eichmann his just deserts “ to the extent this
ever could be possible “ the trial achieved important expressive purposes. It
of¬cialized the stories of many Holocaust survivors. For some, testifying was
cathartic. The trial proceedings and judgments provided a historiography of the
rise of the Nazi party and its anti-Semitic ideology. It explained how this ideology
was implemented country by country and camp by camp in frenzied pursuit of
the Final Solution. Punishing Eichmann facilitated an important educational
function. It also served a political function in terms of justifying the need for
the state of Israel.
Trials held in the 1980s and 1990s involved perpetrators “ once young “
who, by the time they became defendants, had grown quite old. By and large,
these individuals were not high pro¬le. Their trials, however, quickly became
spectacles owing to their symbolic value. Some of these trials postdated the
formation of the ICTR and ICTY and, therefore, unfolded against the tapestry
of the early case law of these institutions. In turn, the ad hoc tribunals refer back
to these national decisions in the elaboration of their own jurisprudence.
Many national trials arose from a renewed, albeit anxious, interest on the part
of states to investigate whether war criminals continued to lurk in their midst,
including individuals who may have emigrated from the devastated Continent
amid the confusion and labor shortages that followed the end of World War II, for
example, to Canada (where the Deschˆ nes Inquiry was established), the United
e
States, and the United Kingdom. In some cases, deportation proceedings were
instituted against suspected Nazi war criminals: the countries to which former
Nazis immigrated following World War II have sought to strip those immigrants
who became citizens of their citizenship because they had lied about their past
on their entry papers. In some cases, denaturalization was obtained even though
the individuals in question never were convicted criminally in the courts of the
countries to which they were deported or extradited.
Many of these suspects, which investigations reveal engaged in acts of unfath-
omable barbarity, lived quite unremarkably for half a century. Some raised fami-
lies and went about their own affairs quite tranquilly. They never got into trouble
with the law. The case of Anthony Sawoniuk presents an example. Sawoniuk was
convicted of war crimes in Crown Court in the United Kingdom in 1999; the
conviction was upheld by the Court of Appeal (Criminal Division) in 2000.278
He was sentenced to two life terms for murdering two Jews. Sawoniuk, origi-
nally from Domachevo in what is now western Belarus, had been living in the
United Kingdom since 1946 (where he eventually retired as a British Rail ticket
inspector). During World War II, he served in a police unit allied to the Nazis
in Domachevo. At the time of conviction he was seventy-eight years old, deaf in
one ear, nearly blind in one eye, diabetic, and suffering from heart disease, high
blood pressure, and a mental condition.279 He, the illiterate, illegitimate son of
Punishment of International Crimes Nationally and Locally 119

a washerwoman, had held a lowly rank in the hierarchy but, as Mr. Justice Potts
noted at trial, “to the Jews of Domachevo it must have seemed otherwise.”280
Sawoniuk died in prison in November 2005.
A trilogy of cases “ Barbie, Touvier, and Papon “ decided in the French courts
is noteworthy. Klaus Barbie, a German, was convicted on July 4, 1987, for crimes
against humanity (as harmonized between international law, e.g., the Nurem-
berg Statute, and domestic French law) and sentenced to life imprisonment.281
He died in prison in 1991. Barbie was the head of the intelligence section of the
Gestapo in Lyon. He arrested and deported Jews to the concentration camp at
Auschwitz. He also had been tasked to destroy the French Resistance. Follow-
ing World War II, he had ¬‚ed to Germany and then to Bolivia. Paul Touvier
was convicted on April 20, 1994, for complicity in crimes against humanity. He
had been sheltered by rightwing elements of the French Catholic Church and
occasionally was seen dressed as a priest.282 The convictions pertained to his
killing of seven Jewish hostages while he served in the pro-Nazi milice. He was
sentenced to imprisonment for life; and a symbolic one franc was awarded in
damages upon request by the civil parties.283 He, like Barbie and Sawoniuk, died
in prison. As was the case in Barbie, the substantive law of the proceedings was
a medley of French domestic law and international law as represented by the
Nuremberg Charter and IMT judgments. Maurice Papon, at the time eighty-
seven years old, was convicted by a French court on April 2, 1998, for complicity
in crimes against humanity for his involvement in the deportation of Jews to con-
centration camps.284 He had a higher position than either Barbie or Touvier.285
In the 1960s, Papon had become the police chief of Paris. He was sentenced
to ten years™ imprisonment.286 In 2002, Papon™s sentence was suspended and he
was released from prison owing to his age and poor health.
There are many other cases. These include Erich Priebke, a Nazi SS Cap-
tain initially sentenced in 1997 by an Italian military tribunal to ¬fteen years™
imprisonment (reduced by ten years to account for an amnesty) for his role in
the 1944 massacre of Italian civilians near Rome. Priebke™s conviction subse-
quently became entangled in appellate litigation. In 1999, Alfons Goetzfried
was sentenced in Stuttgart to ten years™ imprisonment for his role in killing tens
of thousands of Jews at the Maidanek concentration camp. The sentence, how-
ever, was waived on account of the time Goetzfried had spent in a Soviet camp.
Anton Malloth was convicted in 2001 by a German court of inter alia beating
and kicking a Jewish prisoner to death at the Theresienstadt prison camp in
Czechoslovakia in 1944. Although at the time of conviction Malloth was eighty-
nine years old, he was sentenced to life in prison.287 Joseph Schwammberger
(an Austrian Nazi who commanded a forced labor camp) was convicted in 1992
in Stuttgart and sentenced to life in prison. Schwammberger, who had hidden
in Argentina for forty years, died in prison in 2004 at the age of ninety-two.288
Julius Viel, a former SS of¬cer, was sentenced by a German court in 2001 to
twelve years™ imprisonment for murders near the Theresienstadt camp. The
judge noted that the exemplary life Viel had led after World War II, in which
he became a respected journalist and won a government award of merit in 1983,
120 Atrocity, Punishment, and International Law

did not reduce the enormity of the crime, although he chose not to hand down
a life sentence owing to the length of time between the crime and the sentenc-
ing (although, given Viel™s age of eighty-three at the time of sentencing, the
punishment de facto is one of life).289 In other cases from diverse jurisdictions,
prosecutors have elected not to proceed, and judges have elected not to enforce
(or to suspend) sentence, owing to the advanced age of the accused. These deci-
sions, which do not seem to be made on any predictable basis, have, in turn,
given rise to litigation and appeals.
What is the purpose of punishment in these cases? Leila Sadat, speci¬cally
referring to Touvier, concludes that “considering [the] age, neither speci¬c deter-
rence nor rehabilitation appear particularly relevant [ . . . ].”290 Sadat™s conclu-
sion is generalizable to all recent prosecutions of former Nazis. In any event,
neither of these two factors receives much in the way of traction as a rationale
of punishing extraordinary international criminals regardless of the time lag
between commission of offense and conviction in any court at any level, whether
national, local, or international. What about general deterrence? There is some
evidence that punishment is directed to aspiring war criminals. For example,
some of the media commentary with regard to the Sawoniuk conviction referred
to its purported deterrent effects on the Kosovo atrocities then unfolding. The
Malloth conviction was expressly categorized as a warning to deter today™s neo-
Nazis.291 That said, today™s neo-Nazis differ markedly from their predecessors
insofar as the hate crimes of today™s generation, albeit induced to some extent by
group adhesion, amount to deviations from the accepted rules of a stable polity
instead of complying with or furthering the dictates of a criminal state.
Retribution consistently remains a goal. As with deterrence, the value of
retribution as a goal diminishes as the time between commission and conviction
expands. The amount of pain that can be exacted from the convict, if pain is
measured by length of sentence, diminishes sharply when the convict is ninety
years old. Independent of physical realities of life span, some courts will consider
that the time lag and the health of the accused serve as mitigating factors. The
retributive value of punishment is further clouded by the fact that, in certain
cases, the pain is dulled by the release of the offender or the suspension of
sentence owing to advanced age. That said, age is not a predicable factor in
mitigation. In some cases of comparable age, life imprisonment explicitly is
awarded whereas in others it is not. In some cases, proceedings never are initiated
(or become discontinued) because of the age of the accused, whereas in others
defendants become more zealously pursued precisely because of their age and
the perceived need to punish before they peacefully pass away. However, the
overall pattern with regard to advanced age, if actually considered, is one where
it mitigates sentence (as opposed, say, to increasing it insofar as elderly accused
will often have avoided sanction for most of their lives). The ill health of the
accused, if considered, will mitigate sentence although, once again, its admission
as a mitigating factor remains unprincipled and discretionary.
Probably the most plausible justi¬cation for punishing aged former Nazis lies
in the expressivist value of this punishment. Condemning these Nazis completes
Punishment of International Crimes Nationally and Locally 121

the tapestry of the past in the nick of time before they die. It promotes respect
for the victims by casting the harms as transgressions of universal norms. In the
cases of Touvier and Papon, judicial condemnation permitted French society to
re¬‚ect upon its own internal divisions between those who collaborated with and
those who resisted Nazi Germany. Admittedly, dif¬culties arise when courts,
through their often convoluted rules of evidence, are called upon to of¬cialize
history. However, judging from national trials of World War II atrocities, they
perform a reasonable job in this regard.


(iv) conclusion
Penological goals and modalities of sanction are more diverse at the national
and local levels than they are internationally. However, as is the case with inter-
national institutions, by and large sentencing is an afterthought and poorly con-
ceptualized. Retribution remains a consistent goal, although national and local
punishing institutions experience considerable dif¬culty in operationalizing
enhanced retribution to accord atrocity perpetrators their comeuppance. Aggra-
vating and mitigating factors derive from those applicable to ordinary common
criminals. There are trends to consider certain factors in a typology of aggrava-
tion and mitigation, but recourse to these factors in actual cases is unpredictable
and obscured by signi¬cant discretion. Other than with regard to expressivism,
there is little evidence of any effort to theorize a penology re¬‚ective of or tailored
to the criminality of mass atrocity. In terms of expressivist rationales, sanction-
ing at the national and local levels can serve important storytelling purposes,
such as is the case with partie civile claims in Rwanda and popular trials like
Eichmann™s, although there are many other cases where the messaging value is
obtuse or even contrary to prosecutorial intentions.
Pressures emanating from dominant international norms narrow the diversity
of national and local accountability modalities. These pressures also whittle
away operational differences between national modalities and these norms, in
particular in the context of procedure and sanction. Insofar as international
criminal prosecutions largely occur in states shattered by con¬‚ict, susceptibility
to these pressures is particularly high. Developments on the ground in Rwanda
and the states emerging from the former Yugoslavia suggest powerful patterns
of legal migration.
Although national courts still punish with a broader qualitative variety of sanc-
tion and, in cases of punitive sanction, a broader quantitative range of length of
imprisonment (sometimes even death), pressures from international institutions
reduce both the variety and range of sentence available within national frame-
works. In terms of imprisonment, for example, I contend that these pressures
prompt the raising of minimum sentences “ and embed duties to prosecute
that might discourage alternate modalities of accountability “ while lowering
maximum sentences. These pressure points are proving to be of great rele-
vance to the structure of punishment modalities for extraordinary international
criminals although neither has much, if anything, to do with theoretical or
122 Atrocity, Punishment, and International Law

applied determinations regarding the actual nature of extraordinary international
crime.
Collaterally, this transplant from the international to the national may in
fact be welcomed by many state actors, who enjoy the consolidation of power
occasioned by centralized punitive criminal law frameworks and prefer it to
the more free-ranging and authority-diffusing informal modalities of justice that
may arise at local levels. The end result is the squeezing out of local approaches
that are extralegal in nature, as well as those that depart from the methods and
modalities dominant internationally. As I explore in greater detail in the next
chapter, goals of retribution and general deterrence become injected into local
legal cultures and institutions for which these goals may be neither indigenous
nor innate. This places considerable stress on local approaches, especially those
that traditionally are restorative in nature. Such has been the fate of gacaca in
Rwanda.
chapter 5


Legal Mimicry




The international legal system holds atrocity perpetrators accountable by prose-
cuting and incarcerating them. This approach also seeps into national and local
legal systems. This seepage is animated by a number of factors, including inter-
nationalist pressures and the receptiveness of certain domestic actors to these
pressures. Domestic actors often mimic international trendsetters, whose mod-
ern ideas they transplant to national and local contexts.1 The result is a diffusion
of liberal prosecutorial and correctional models. This diffusion is entangled with
the diffusion of Western legalism generally.
Punishment for extraordinary international criminals is deeply associated
with core liberal legalist assumptions manifested in the ordinary operation of
the criminal law in Western states generally, regardless of their provenance
(i.e., ideal-type civilian or common law systems). In this regard, Rama Mani
notes that international justice evidences a predominance of Western-generated
theories and an absence of non-Western discourse.2 Most international lawyers
are Westerners or members of Western-trained transnational elites. For Mani,
this leads to “a troubling imbalance or ˜injustice™ in the study of justice,” insofar
as “international lawyers . . . have largely referred to and replicated their own
legal systems, rather than catered to and built on local realities and needs.”3
The question I pose in this chapter is whether this association with Western
law spells, in Mani™s terms, a “troubling imbalance or injustice” when it comes
to holding perpetrators of extraordinary international crimes accountable for
their wrongdoing. This chapter explores this question through an examina-
tion of the operation of international criminal tribunals, including the referral
process of the ad hoc tribunals and the ICC™s complementarity mechanism.
Although both of these mechanisms are putatively geared to involving national
entities in the accountability process, they serve as important, albeit not exclu-
sive, conduits that funnel internationalized process to the national and local
levels.4 These conduits represent vertical applications of authority that radi-
ate downward from the international to the national and, eventually, to the
local. In assessing the legitimacy and effectiveness of these vertical applica-
tions of authority, I avail myself of two important indicia: (1) externalization


123
124 Atrocity, Punishment, and International Law

of justice, which I identify as a situation where the outputs of the judicial
process are methodologically distant5 from populations directly af¬‚icted by
the violence; and (2) democratic de¬cits, which I identify as the exclusion of
af¬‚icted populations from the design, development, and operation of account-
ability mechanisms. I conclude that the implementation of international crim-
inal law has occasioned “ and, despite reform at the ICC tilting toward victim
inclusion, remains prone to occasioning “ a democratic de¬cit in part by plac-
ing considerable power in the hands of poorly accountable foreign experts.
Assuredly, extraordinary international crimes are offenses against us all. How-
ever, I am troubled by a justice process that may favor the interests of those
only morally affected by the violence over those actually physically af¬‚icted
by it.
The cultural foundations of the modalities of international criminal law
means that their application to diverse spaces and places externalizes justice
from the communities most traumatized by atrocity. One of the effects of these
undemocratic externalizations is the sidelining of certain sanctioning mecha-
nisms. The ¬nal sections of this chapter present restorative justice mechanisms
as one such example. Since restorative mechanisms serve important goals in
certain postcon¬‚ict societies, sidelining them renders the justice paradigm less
effective than it could be and stunts the development of a penological framework
tailored to the peculiarities of mass atrocity. Rwanda serves as a case study insofar
as restorative initiatives, as set out in Chapter 4, are underactualized despite their
considerable potential. Although the ICC takes restorative initiatives more seri-
ously, its treatment of the Ugandan situation demonstrates the limited restorative
potential of ICC interventions as well as nettlesome con¬‚icts between the goals
of international prosecutors (indictment, trial, and imprisonment) and those of
Acholi victim communities (peace, justice, and reintegration).
Much is to be welcomed in the fact that the international criminalization
of genocide, crimes against humanity, and war crimes can prod national and
local actors to hold perpetrators accountable. In some cases, no accountability
would arise but for the creation of international institutions. These realities do
not diminish the need for prudence, however, when it comes to the migration
of procedural methods by which the accountability process is to unfurl and the
transplant of monochrome schematics of sentencing by which punishment is
to be visited upon perpetrators.
Assuredly, it is problematic to blindly glorify the local or that which otherwise
differs from dominant discourse simply to promote pluralism as an end in itself.
International intervention can be salutary to the extent that it purges corrupt
practices, rebuilds shattered infrastructures, limits abusive sanctioning schemes,
and promotes legitimacy. In situ legal institutions can be deeply susceptible to
political interference and manipulation by state actors; many are profoundly
undemocratic and themselves externalize justice from community members
excluded from their formation and operation. In some cases, regime change in
transitional societies results in bias within accountability institutions. In other
contexts, pursuing accountability in situ destabilizes national security; or is
Legal Mimicry 125

¬‚atly impossible, in that the atrocious regime still controls power. In all of these
situations, there is a strong argument in favor of international intercessions.
However, the nature of these intercessions should incorporate local voices,
foster capacity, and integrate indigenous approaches to justice (whether legal or
extralegal). The value of punishment will increase to the extent that it resonates
with local populations, is internalized in ravaged communities, and can form a
coordinated part of postcon¬‚ict transition instead of competing with other transi-
tional justice mechanisms. I believe that international punishing institutions, as
presently constituted, are insuf¬ciently attuned to the national and local. These
institutions, as is the case with many transnational bureaucracies, should take
better care in the exercise of their institutional agendas to nurture the well-being
of the societies whose tragedies they seek to redress.


(i) transplants and legal geologies
Although my speci¬c concern is the effectiveness of transplants with regard to
the sanctioning of perpetrators of mass atrocity, it is helpful to begin with some
discussion of legal transplants generally.
Transplants operate in all ¬elds of law and regulation, including economic
policy, investment, taxation, and property law.6 The area of economic regulation
is characterized by signi¬cant conformist pressures. The rapid marketization of
formerly communist economies was accompanied by wholescale transplants of
largely U.S. securities, banking, and capital markets law. These transplants, often
boilerplate, took root in some jurisdictions while in others remained as potted
plants.
Transplants also are occasioned by processes of regional integration. Chap-
ter 11 of the North American Free Trade Agreement (NAFTA), for example,
externalizes U.S. conceptions of expropriation for governmental action (takings)
onto the Mexican and Canadian legal systems.7 Chapter 11, which addresses for-
eign investment, purports to offer economic security and protection to investors
from one NAFTA party who make ¬nancial investments in another NAFTA
party.8 Although this externalization initially was undertaken in the name of
protecting U.S. investors in Mexico, the application of Chapter 11 has proven
to be more nuanced. It has resulted in unanticipated attacks on venerated ele-
ments of the U.S. legal order, such as punitive damages in civil cases and the
jury system, that, too, reveal conformist pressures exerted upon the U.S. system
when it is the outlier.9
I contend that internationalists ought to pause before concluding that the
replacement of the “other” by that which is familiar to them, namely the “inter-
national,” is axiomatically bene¬cial. Although transplants are a fact of life where
power meets rules in frameworks of supranational regulation, this does not dis-
sipate the need to think critically about them. For example, writing within the
context of NAFTA, Ari A¬lalo urges caution when international arbitral panels
are tasked with assessing the conformity of national legal practices with inter-
national norms.10 My concern is different, insofar as my motivation is not for
126 Atrocity, Punishment, and International Law

international institutions to preserve their legitimacy but, rather, for the regula-
tory goal at hand, namely the punishment of perpetrators of mass atrocity, to be
as credible and effective as possible.
A ¬ne line lies between chauvinism and constructive law reform, especially
when the transplants emanate from the trendsetters of the international legal
order and are insinuated into the domestic sphere of its objects. In this regard,
as David Westbrook writes, “the diffusion of law cannot be separated from those
social processes discussed under the rubric of globalization.”11 Accordingly, the
legitimacy and effectiveness of Western legalist modalities of prosecuting and
punishing perpetrators of atrocity cannot be assumed simply on the basis that
these modalities now have become widely diffused. Rules agreed upon by elite
international lawmakers are not necessarily in tune with bottom-up perspectives.
Discord grows to the extent that diffusion is motored by behavior of powerful
state actors to increase their in¬‚uence, weaker state actors to protect their power
within unsettled domestic polities, and in¬‚uential transnational nonstate actors
to further their own institutional goals.
Although transplants from international criminal institutions to national legal
orders in Rwanda, Uganda, the Democratic Republic of the Congo (DRC), East
Timor, or Kosovo are new, the process of transplanting is old. As such, I am con-
cerned with a new wrinkle to a long-standing practice. The legal systems of
many of the places currently receiving internationalized process and sanction
for perpetrators of mass atrocity themselves are products of iterated processes of
transplantation that have occurred throughout history, generally coincident with
conquest, annexation, or colonial “discovery.” In many of these places, broad
swaths of commercial, public, and administrative law already are transplanted “
and have been for generations. In other cases, the regulatory sediment is multi-
layered insofar as earlier transplants have been replaced by new ones. The legal
geology is thick. Therefore, transplants in a relatively new area “ namely, the
punishment of extraordinary international criminals “ can represent fresh law
among ¬elds of law that already have been tilled through frequent transplants.
So, if the law already is transplanted, why is it of concern that more is becoming
transplanted now, this time from the international level instead of directly from
foreign conquering powers?
Three responses come to mind. First, just because law previously was trans-
planted does not mean that this law necessarily is viewed by local populations as
legitimate; and, even if it is viewed as legitimate through processes of intergen-
erational socialization, this is no guarantee that the same will happen for freshly
transplanted law. Second, as I set out in Chapter 6, the sentencing frameworks
of international criminal law, although appearing modern and hence effec-
tive, operatively fall short of their aspirations and, thereby, cannot rely on their
modernity as a proxy for their effectiveness. Third, national governments may
welcome transplants for any number of self-serving reasons that have nothing to
do with their merit or endogenous resonance within local communities. These
reasons can involve preserving state authority, promoting centralized bureau-
cracy, quashing opposition, receiving foreign assistance, or shielding the state
Legal Mimicry 127

from international legal responsibility. Transplants may become implemented
at the state level and retransplanted to local levels for ulterior purposes of state
control over local affairs and to build up the apparatus of state authority in what
are often fractious polities.
In the context of punishing extraordinary international criminals, transplants
have encouraged uniformity of sanction. Should this uniformity be of concern?
Indeed, it should if one listens to what victims in con¬‚ict societies want. Vic-
tims prefer more diversi¬ed responses instead of monosyllabic implementation
of formal criminal trials. Moreover, when international lawyers state as a “¬rst
principle[],” as Judge Robertson of the Special Court for Sierra Leone recently
did in a ruling exploring the interface between criminal trials and truth com-
missions in Sierra Leone, that “[c]riminal courts offer the most effective rem-
edy,” they advance an unproven academic argument and, in the name of that
argument, institutionalize a series of expensive policy responses and establish a
normative hierarchy at which they sit at the apex.12 I believe the time has come
to revisit the wisdom of this “¬rst principle.”


(ii) externalization of justice
One of the limitations of Mani™s work is its apparent crudeness in generalizing
about “Western” legal systems. After all, Western legal process is not monolithic.
Rudimentary comparative law analysis suggests that the Western legal family
divides between common law (Anglo-American) and civil law (Continental
European) branches.13 Comparative legal scholars enunciate some general-
ized differences between these two branches.14 For example, whereas ideal-type
civil law systems are inquisitorial in nature, ideal-type common law systems are
adversarial. Both systems, however, also share much in common. Moreover,
there are differences within each of these two branches among various national
jurisdictions.15 That said, as Sir Basil Markesinis puts it, differences may be
more a matter of style, in that, among Western legal systems, there is a grow-
ing convergence in terms of the questions asked, requirements established, and
conclusions reached.16
The ICC re¬‚ects an amalgam of civil and common law approaches. Compro-
mises are found throughout. The adversarial nature of ICC trials originates in
common law systems, but the fact that the ICC Pre-Trial Chamber acts some-
what akin to an investigatory magistrate derives from civilian methodologies.
Common law approaches have exerted considerable in¬‚uence in the structure
and functioning of the ICTY and ICTR, especially initially.17 Speci¬c examples
include: stated recourse to precedent and inductive reasoning in formulating
judicial opinions; extensive cross-examination within an essentially adversarial
process;18 the availability of plea bargaining; and the active role of defense coun-
sel and of amici. However, ideal-type civil law methods have become in¬‚uential
in the operation of the ad hocs over time. One example is the structure of sen-
tencing determinations, which are added on to the main proceeding in the form
of closing arguments, as is the case in civil law jurisdictions, and not part of a
128 Atrocity, Punishment, and International Law

separate sentencing hearing, which is the case in common law jurisdictions.19
Other than in cases of proceedings on an admission of guilt, the Rome Statute
permits the determination of sentence in the main proceedings, but also permits
a separate sentencing hearing on motion of the Trial Chamber and requires a
separate hearing at the request of the Prosecutor or the accused.20 Evidentiary
rules at the international tribunals also re¬‚ect a compromise between ideal-type
civil and common law approaches.21
The procedural frameworks of international criminal law do express some
novelty in that they represent hybrid cross-pollination between common law
and civil law legal systems that, to some degree, pragmatically absorbs the par-
ticularities of mass violence. However, the limited novelty that exists is deeply
technical in nature and, to paraphrase Markesinis, reconciles stylistic difference.
It is not foundational. To suggest that this blended procedure is sui generis
sets a low bar for a determination of jurisprudential originality.22 The techni-
cal hybridization of common law and civil law approaches has been relatively
easy to obtain because, within the rubric of criminal justice, both legal fami-
lies evince a focus on punitive, retributive justice, as well as a preference for
incarceration as a remedy.23 Both common law and civil law methodologies are
keyed to individualizing responsibility.24 Both fear collective responsibility, at
least rhetorically. George Fletcher observes that “[t]he generalization holds in
our [common law] legal system as well as in the civil law tradition: Collective
entities, their actions, their responsibility, and their guilt “ these are ideas that
run afoul of the methodological commitments of the legal mind.”25
As Boaventura de Sousa Santos notes, Continental civil law and Anglo-
American common law are “subcultures of Eurocentric political-legal cul-
ture.”26 These two Western traditions motor the liberal legalist approach to
extraordinary international criminality. Ralph Henham contends that “the ide-
ology and structures of punishment [in international sentencing] are closely
aligned to maintaining the economic and political integrity of Western liberal
democracies.”27 As a whole, international criminal process is not a genuine amal-
gam that accommodates the disempowered victims of mass violence “ largely
from non-Western audiences “ already lacking a voice in international relations.
Although the ICC takes some steps in this integrative direction, which I explore
in this chapter, these are just the ¬‚edgling beginnings of meaningful inclusion.
Disconnects emerge when the pursuit of accountability and the imposition
of punishment arise through processes that are distant from or alien to local
populations. In such situations, justice is externalized. When justice is exter-
nalized from the af¬‚icted societies for which it ought to be most proximately
intended, it then becomes even more dif¬cult for any of the proclaimed goals of
prosecuting and punishing atrocity perpetrators “ whether denouncing extreme
evil, expressing rule of law, voicing retribution, or preventing recidivism “ to take
hold.28 Although this justice becomes more intelligible for faraway audiences,
this can come at the price of intelligibility for those at home whose neighbors
were killers or victims.
Legal Mimicry 129

Assuredly, there are pragmatic reasons in favor of externalizing justice. A par-
ticularly compelling case in favor of outsourcing trials arises in situations where
proceeding locally or nationally would trigger political instability or insecurity.29
Furthermore, externalized justice is better than no justice at all: ensuring that
some justice is done is another pragmatic reason in favor of outsourcing trials to
international or, in the case of universal jurisdiction crimes, foreign courts. After
all, national actors may resist the pursuit of accountability or may be devastated
in the wake of atrocity. Such was the case in the former Yugoslavia and Rwanda,
respectively, at the time of the creation of the ICTY and ICTR. In these situa-
tions, physically externalizing the institution and its personnel may be one way
to ignite an accountability process. However, in these situations it becomes all
the more important for punishing institutions to coordinate their activities with
political transition in the society whose atrocities are being judged, especially
as time passes. What is more, just because an institution is physically external-
ized from the af¬‚icted society does not mean that it must proceed in a manner
that is methodologically externalized. It is this latter form of externalization that
concerns me the most in the operation of the ICTY and, especially, the ICTR.
Moreover, proceedings can be physically sited within the af¬‚icted jurisdiction,
but remain methodologically externalized. This, too, invites disconnects.
Although there is cause for greater optimism, there is no guarantee that
hybrid institutions will internalize justice among local populations. East Timor
is an example. Although traditional East Timorese understandings of justice
emphasize compensation, restoration, and ritual, the East Timor Special Panels
extensively imposed incarceration as a sanction. They did so despite the fact that:
East Timorese view incarceration as an alien form of punishment and do not
seek to avoid it with quite the same urgency as Western defendants. Because
crime is conceived as creating an imbalance of values, traditional East Tim-
orese justice mechanisms do not seek primarily to punish the offender, but
aim rather to restore values and to re-establish the socio-cosmic order.30

In many postcon¬‚ict societies, national dispute resolution institutions, espe-
cially courts, are viewed with tremendous skepticism as they had often served as
instruments of social control in authoritarian regimes.31 But the preference for
international institutions cannot be based solely on the faults of national or local
institutions. After all, in many cases the putative neutrality of international insti-
tutions, assuming arguendo that this is a sine qua non of justice and legitimacy,
is lost on local populations. Chuter comments that “it is asking a great deal of
people [in the former Yugoslavia] to credit that a court largely set up, funded,
and staffed by Western powers that have intervened militarily in the Balkans can
ever deliver verdicts that represent the truth or even would seek to do that.”32 In
other cases, the competence of international institutions is viewed skeptically.
The ICTR “has [ . . . ] been dogged by scandals including the discovery that
genocide suspects themselves were on the tribunal™s payroll as defence-team
investigators.”33 One of the defense counsel appointed by the ICTR was in fact
130 Atrocity, Punishment, and International Law

on a 2006 “most wanted list” of genocide suspects in Rwanda.34 What is more,
most Rwandans I have met simply do not see how the international community,
which idly sat by during the genocide,35 now has the moral legitimacy to punish
individual Rwandans as perpetrators.
In the end, just because transnational lawmakers tend to see international
judges as less susceptible to political manipulation or bias than their national
counterparts does not mean that local populations see them that way, too. Sim-
ilarly, just because an institution is international does not mean ipso facto that
it is better or more legitimate. Transcending local parochialisms, which plays
well for individuals operating transnationally, may actually feel quite empty to
the vast majority of people, for whom politics, justice, and life are lived locally.
Consequently, an international institution, such as the ICTR, can easily become
“a rather distant reality.”36
International judges may ¬nd this limitation dif¬cult to digest. For example,
the ICTY boldly stated in the Furundˇ ija sentencing decision that “[i]t is the
z
infallibility of punishment [ . . . ] which is the tool for retribution, stigmatiza-
tion and deterrence. This is particularly the case for the International Tribunal:
penalties are made more onerous by its international stature, moral authority
and impact upon world opinion [ . . . ].”37 Although having the ability to punish
is central to the authoritativeness of an institution, it does not necessarily follow
that the power to punish accords legitimacy to an institution. Osiel, citing polit-
ical science research, notes that “[t]here has been vehement backlash against
the [ICTY] within Serbia and Croatia.”38 Longitudinal research conducted in
Sarajevo between 2000 and 2003 demonstrates a marked reduction in the per-
centage of respondents who believe the ICTY is the appropriate jurisdiction
to adjudicate and punish offenders, with a corresponding increase in selection
preference in favor of local institutions.39 Postdating this research, Miloˇevi´ ™s
sc
years of parrying with the ICTY left a great deal of public frustration among all
constituencies in the former Yugoslavia that only was exacerbated by his death
during the trial.
Certain victim communities may view sanction of atrocity perpetrators as less
onerous because of the international provenance of the punishing tribunals. It
often is the case that these perpetrators previously had been coddled or even
supported by foreign powers, including the funders of international tribunals,
who only became denunciatory after atrocity had been committed. On the other
hand, there may be other local constituencies who may prefer international legal
institutions over corrupted local ones.40 All things considered, the reality on the
ground is complex and it is not satisfactory generally to assume the enhanced
legitimacy of international institutions.
Postgenocide Rwanda attests to the costs occasioned by externalized justice,
as well as how easy it is for the process of operational and methodological exter-
nalization to be set in motion. The Rwandan public remains largely ignorant
of, ambivalent to, or at times estranged from the ICTR.41 ICTR trials are by
and large inaccessible and have minimal impact on victims™ lives. Perceptions
of the ICTR vary among the Hutu and Tutsi communities, although lack of
Legal Mimicry 131

knowledge or interest in the ICTR prevails among both groups.42 Some evi-
dence indicates that the more Rwandans learn of the ICTR™s work, the more
inclined they become to view the institution more favorably.43 However, other
observers report that many informed Rwandans, regardless of ethnicity, see the
ICTR as a foreign tribunal operating distantly under the aegis of the same
entities that permitted the genocide to continue in the ¬rst place.44 Interviews
undertaken by Allison Des Forges and Timothy Longman led them to con-
clude that: “[M]any Rwandans felt that the work of the ICTR was far removed
from their daily lives. Respondents complained that the trials were held far
away from Rwanda and were organized using western-style judicial practices
that place a heavy emphasis on procedure and have little concern for commu-
nity interests.”45 One speci¬c concern noted by Des Forges and Longman was
that many of the Rwandans they interviewed “saw the adversarial legal approach
applied in the ICTR as foreign to traditional Rwandan methods of con¬‚ict
resolution.”46
It is also understandable why Rwandans question the amount of resources
consumed by the ICTR. For 2004“2005, the UN General Assembly appropriated
for the ICTR a total biennial budget of U.S. $255,909,500 gross; for 2006“2007, a
total budget of U.S. $269,758,400 gross was appropriated and 1,042 posts autho-
rized. In previous years, budgets (at times biennial, at times annual) ranged
from U.S. $29 million to U.S. $180 million. By the end of 2007, the cost of
the ICTR™s operations will have exceeded U.S. $1 billion. When appropriations
by the UN General Assembly are totaled, and divided by the number of trial
verdicts issued, the result becomes one of approximately U.S. $30 million for
each person who has heard a verdict. This is a staggering sum of money in
a country with a per capita economic output of about U.S. $1,500.47 Surely,
even just a part of these funds could have made a huge difference in terms of
operationalizing restitutionary or reparative remedies for Rwandans.48 Helena
Cobban notes, by contrast, that amnesty applications in South Africa cost less
than U.S. $4,300 per case and, in postcon¬‚ict Mozambique, demobilization
and reintegration programs for thousands of former combatants cost about
U.S. $1,000 per combatant.49 Similar disparities exist elsewhere: whereas in
2001 the total budget for governing East Timor was U.S. $65 million, the annual
budget for the ICTY alone was U.S. $96.4 million.50 The ICTY has over one
thousand employees.
On the positive side, ICTR trials have raised international awareness of what
happened in Rwanda in 1994 and have developed an historical record. ICTR
jurisprudence has advanced and clari¬ed numerous areas of substantive inter-
national criminal law. For example, the Akayesu decision provided a sophis-
ticated de¬nition of ethnicity (as an element of the crime of genocide) and
also advanced a progressive understanding of sexual violence in which rape
was found to be a tool of genocide.51 The Musema decision extended com-
mand responsibility outside of the military context into a civilian corporate
environment.52 In Barayagwiza, an ICTR Trial Chamber issued a seminal ver-
dict against media leaders for inciting genocide, in which it set a standard for
132 Atrocity, Punishment, and International Law

differentiating statements of ethnic pride (protected by virtue of freedom of
expression) from incitement to hate (not protected by freedom of expression).53
However, the main bene¬ciary of the ICTR™s work arguably has been the
international community “ whether in terms of assuaging guilt or developing
international criminal law “ and not Rwandans. There is something discon-
certing about externalizing justice so that it primarily resonates with certain
extraterritorial audiences. Extraordinary international crimes create two sorts of
victims: those actually attacked and, in more of an abstract sense, the rest of
the world community. The victimology I envision would be one in which those
directly af¬‚icted by the violence have a greater moral claim to the internalization
of justice “ certainly methodologically “ than global audiences.
Ironically, when Western societies become victimized by extraordinary inter-
national criminality, there is no question of externalizing justice for the bene¬t
of transnational audiences. The 9/11 attacks “ which I posit constitute crimes
against humanity “ present a stark example.54 In the wake of these attacks, not
only was a low premium placed on international criminal law as a mechanism to
pursue justice, but the thought that an internationalized court adhering to inter-
nationalized legalist procedure would pronounce justice was also unacceptable
to U.S. (and many, albeit not all, Western) policymakers. No such tribunal was
created. In fact, no serious proposal ever was made; nor would such a proposal
have gained traction.
Nationals of eighty-one countries perished on September 1155 and nationals
of thirty-nine countries were implicated to varying degrees in the attacks.56
Subsequent Al-Qaeda bombings have occurred all over the world. Al-Qaeda is
a transnational actor whose depraved crimes represent threats to international
peace and security. Nonetheless, no serious attempt was made to empower
neutral international criminal tribunals to punish terrorists and their ¬nanciers.
The notion that Osama bin Laden, if caught, would have been spared the death
penalty was unthinkable in U.S. discourse. The thought that erudite judges from
outside the United States would determine his culpability, and that prosecutors
from outside the United States would conduct the proceedings, would be simply
unimaginable to most Americans.
Yet, this is precisely the kind of justice that the international community
and Western, including U.S., donors have instituted elsewhere in the name of
ethnic neutrality and the avoidance of ethnic bias. When victims in Rwanda
and the states emergent from the former Yugoslavia “ together with state of¬-
cials and the general public “ proclaimed their dissatisfaction with international
criminal prosecutions, a typical response was that these prosecutions were nec-
essary for the slow yet steady process of establishing rule of law, a culture of
human rights, and combating impunity without propagating revenge.57 The
2006 National Security Strategy of the United States notes that “the hard core of
the terrorists cannot be deterred or reformed,”58 yet the United States supports
international criminal tribunals premised on the hope that their operation shall
deter genocide. If suicidal terrorists are beyond deterrence, why should hardcore
g´ nocidaires be any different?
e
Legal Mimicry 133

Instead of applying preexisting international criminal law precedents good
enough for “others,” U.S. of¬cials invested tremendous energy in designing insti-
tutions and procedures for accused terrorists that minimize the scope of due pro-
cess and public access. And even when, in its 2006 judgment in Hamdan v. Rums-
feld, the U.S. Supreme Court stepped in to invalidate one of these institutions “
the military commissions “ it certainly did not mandate that the commissions
emulate the standards or modalities of international criminal law institutions.59
In the wake of the Hamdan decision, the U.S. government af¬rmed that it would
respect the most basic requirements of Common Article 3 of the Geneva Con-
ventions in the treatment of Al-Qaeda detainees. It then enacted legislation,
the Military Commissions Act, that may well fall below Common Article 3™s
minimum requirements. Even in the improbable event that, in the practice
of the military commissions, the United States were to incorporate a generous
understanding of the basic requirements contemplated by Common Article 3,
any such understanding would be a far cry from the weighty due process and
human rights standards for defendants that international criminal law obliges
victims of atrocity in Rwanda and Bosnia to assimilate.
Whereas perpetrators of mass atrocity elsewhere are to be treated as persons,
entitled to a raft of due process, perpetrators of violence in “our” neighbor-
hoods are treated as something strikingly subaltern. Is it not disturbing when
the nationality of the victims determines the perpetrators™ level of due process
entitlements? Although there is room to debate the precise value of due process
for the legitmacy of a punishing institution, extolling the virtue of due process
for other victims but shirking it for “ourselves” creates a glaring operational
inconsistency that, at a minimum, corrodes the expressive value of the military
commission process. More disturbingly, international criminal law should not
be built upon the travails of the disempowered objects of international institu-
tions while the masters of those same institutions pursue the sort of self-help,
and systematic parsing of legalism,60 forbidden to others.


(iii) democratic de¬cits
Instead of building accountability and restoration from the bottom-up through
integration of indigenous laws, customs, personalities, politics, and practices,
international criminal law interventions drop from the top-down. This unidirec-
tionalism is most poignant in the Statutes of the ad hoc tribunals, which grant
the tribunals primacy over all other courts in the exercise of their activities.61
These tribunals were created for Rwanda and the former Yugoslavia by reso-
lution of the Security Council; in the case of Rwanda, over the objection of a
Rwandan government that was in place because its military forces were the only
ones that actually ended the genocide. ICTY and ICTR judges are not directly
accountable to populations in the former Yugoslavia or Rwanda. Although nei-
ther of these jurisdictions has a history of domestic judicial accountability,62
this does not mean that international judges should follow in this same pattern.
Both the ICTY and ICTR have, over time, demonstrated increased willingness to
134 Atrocity, Punishment, and International Law

engage with national constituencies and, to this end, have established outreach
programs.63 These programs, however, have been modest and are geared to dis-
seminating information about the tribunals to national constituencies. These
programs certainly do not reassess the relationship between international legal
institutions and aggrieved populations.
Primacy also is a feature of the Special Court for Sierra Leone.64 This insti-
tution, however, is the product of negotiation between the government of Sierra
Leone and the United Nations, which goes some way to address concerns over
local disenfranchisement. Assuredly, as Chandra Lekha Sriram observes in the
case of Sierra Leone, internationalized (as opposed to purely international)
courts that remain formally separate from the national judicial system of the
country in question do little to rebuild local capacity and expertise, or incor-
porate local manifestations of popular will, both of which often are touted as
advantages for internationalized modalities as tools of political transition.65 How-
ever, the infusion of international of¬cials into a process that is vested with and
anchored in local capacity may augment credibility and, thereby, represent some
potential for healthy coconstitutive local engagement.66
The ICC makes a number of improvements over the ad hoc tribunals with
regard to concerns over democratic de¬cits. The ICC only will admit a case
once it deems that the complementarity principle has been satis¬ed.67 Accord-
ing to this principle, which I unpack later in this chapter, the ICC only will
assume jurisdiction when a state is unable or unwilling genuinely to investigate
or prosecute. This improvement, however, does not materially redress the demo-
cratic de¬cit insofar as the local is not necessarily included in the machinery of
international criminal law. Another improvement lies in the fact that the ICC
is an institution created by international treaty. Accordingly, participation in the
ICC depends on the consent of states. It therefore seems reasonable to con-
tend that those states that consent to the ICC indicate, through their consent,
their support for the modalities of justice and punishment pursued by the ICC.
The reasonableness of this proposition, however, is not self-evident. States, after
all, do not always re¬‚ect society. The process by which many states (particularly
illiberal states) consent is far from democratic insofar as there may be minimal to
no bottom-up participation or debate during the rati¬cation process. Moreover,
states consent to international treaties for a variety of reasons, not all of which
are indicative of endorsement of the actual content of those treaties. Motivating
reasons include, although certainly are not limited to, considerations such as
maintaining standing in the international community, pursuing the appearance
of legitimacy and modernity, and pressure from donor states.68 Decisions to
sign onto (and, to a lesser degree, subsequently to ratify and implement) the
Rome Statute are contoured by a broad array of factors, including international
economic and political considerations.69
Nor do state decisions to refer matters to the ICC necessarily represent a
normative preference for criminal trials as policy responses to episodes of cat-
aclysmic atrocity. In terms of penology, the ICC is not mandated to take into
account local or national sentencing practices; nor is reference to these practices
Legal Mimicry 135

even suggested in the Rome Statute.70 In this regard, the Rome Statute formally
differs from the Statutes of the ICTY and ICTR. Moreover, the ICC can exercise
jurisdiction over nationals of states that do not consent to be bound by it; or it
can, as is the case with the Sudan, exercise jurisdiction over an atrocity by virtue
of Security Council referral “ a process that does not materially differ from the
anatomy of the institutional creation of the ICTR or ICTY.
International criminal law interventions as currently structured therefore rep-
resent grist for the mill of those who posit the antidemocratic nature of inter-
national law generally. Allen Buchanan, for example, fears the in¬‚uence of
an unaccountable global technocratic elite.71 With regard to the ICC, I would
note that it has independent lawmaking capacity through which it becomes more
than the agent or delegee of consenting states. This is part of a broader trend
among international organizations whereby treaty secretariats acquire quasileg-
islative or judicial powers. This emergence of a treaty-centered international
administrative bureaucracy can remove important matters “ including those
that relate to the actual obligations assumed “ from the control of consent-
ing states. This phenomenon is similar to the twentieth-century growth of the
administrative apparatus of modern welfare states, and resultant technocracy,
which also induces a whittling down of democratic input in important aspects
of national lawmaking.
Jed Rubenfeld remarks that international efforts toward transitional justice,
which often include scripting constitutional and foundational documents, pro-
ceed in top-down fashion.72 Rubenfeld identi¬es “international constitutional-
ism” as a viewpoint from which it is “not particularly important for a constitution
to be the product of a national participatory political process.”73 Rather, from
this viewpoint, the goal is to implement an agenda agreed to by the international
human rights community. Although “[n]ational rati¬cation of a new constitu-
tion might be instrumentally valuable, . . . having a committee of expert foreign
jurists draw up a constitution would be perfectly satisfactory in principle.”74 In
fact, according to Rubenfeld™s description of the prevailing viewpoint, “interpre-
tation by a body of international jurists is . . . not only satisfactory but superior
to local interpretation, which invariably involves constitutional law in partisan
and ideological political disputes.”75
Rubenfeld™s observations are somewhat apposite to international criminal law
interventions in that these interventions tend to look beyond local interpretation
in favor of administration by a transnational expert community. This leads to a
paradox: the society reeling from violence becomes disenfranchised from the
redressing of that violence, which, instead, becomes a task suited to the techno-
cratic savvy of international lawyers. Assuredly, many of these societies may never
have experienced democracy nor may they foresee realistic short-term prospects
for democratization (some may even trend in the opposite direction). This, how-
ever, surely is not a valid reason to further add to popular disenfranchisement
in these same places.
The ICC™s framework has been informed by lessons regarding victim dis-
engagement from the ICTR and ICTY. These lessons have led to another
136 Atrocity, Punishment, and International Law

improvement in the ICC approach, namely that the ICC is more welcoming
of victims than the ICTR and ICTY have been in practice.76 Victim opportuni-
ties to participate in ICC investigations and proceedings are subject to judicial
permission and subordinate to the defendant™s due process rights. Just as is the
case with the ICTR and ICTY, there are no juries at the ICC. That said, early
indications are that ICC judges are open to victim participation. An ICC Pre-
Trial Chamber ruled that victims can become involved in ICC investigations in
the DRC and present their views and concerns, ¬le documents, and request the
ordering of speci¬c measures.77 The ICC Prosecutor, who opposed the victims™
applications, immediately appealed this decision, fearing an encroachment on
his freedom of action. There are, therefore, con¬‚icts between his of¬ce, on the
one hand, and victim communities, on the other. As of the time of writing, the
appeal has not been adjudged. Furthermore, con¬‚icts are emerging between
victim communities and the Prosecutor with regard to investigations and indict-
ments in Uganda, which I explore later in this chapter. Although both seek
justice, the Prosecutor and victim communities do not necessarily share a syn-
ergistic relationship, despite the accommodation made to victims in the Rome
Statute, thereby suggesting the complex victimology at play. Whereas in Uganda
the ICC Prosecutor seeks justice through criminal prosecutions, victim com-
munities seek justice through peace and traditional reintegration ceremonies.78
As it grows and matures, international criminal law should continue to recon-
ceive its relationship with local politics. In light of their growing professionaliza-
ton and bureaucratization, often coordinated from faraway centers of power, it
becomes all the more important for international criminal lawyers to integrate
with local entities. Chapter 7 provides some ideas regarding how this might
take place by proposing a horizontal expansion in the operation of international
criminal law such that it interfaces more actively with political institutions and,
thereby, pursues a more holistic vision of justice.
Although there are some indications that the ICC will chart a more inclusive
orientation, the accumulated practice of international criminal tribunals thus
far demonstrates discomfort with local politics and, as a result, tends to exclude
locals, in particular members of the af¬‚icted society, from the administration of
justice undertaken for their bene¬t. One of the reasons why there is skittishness
regarding the involvement of locals in capacities that exceed that of witness or
defendant is because of fears that such involvement would taint institutional
operation owing to ethnic or national bias. Certain in¬‚uential international
punishing institutions in fact tether their legitimacy to their ethnic and national
neutrality.79 I believe that, although there certainly is something to be gained
in minimizing bias, something also is lost when the pursuit of minimizing bias
excludes those with the greatest interest in accountability for the con¬‚ict and
transition to peace. Furthermore, international lawmakers should not be obliv-
ious to the fact that the pursuit of neutrality itself can politicize.80
As I brie¬‚y inquired in the context of externalization of justice: do distant,
impartial, and disinterested parties necessarily have greater moral authority to
adjudicate atrocity? In some cases, the same disinterested parties that now judge
Legal Mimicry 137

had, through their disengagement, permitted atrocity to continue. The violence
that escalated in Rwanda in April 1994 did not come as a surprise. There were
many indicators that a carefully constructed plan had been plotted since at least
1992 to eliminate the Tutsi. Many of these indicators were known to the inter-
national community. However, they were ignored, undervalued, or downplayed
by international organizations and foreign states. The passivity of the interna-
tional community enabled hate-mongers to normalize their hatred; this same
passivity encouraged ordinary Hutu to see this hate not as deviant or reprehen-
sible behavior, but as something that properly formed part of Hutu civic duty.
Powerful states refused to call the violence in Rwanda genocide even as news
reports emerged that the killings met the legal de¬nition of genocide.
In the immediate prelude to and actualization of the genocide, international
peacekeeping efforts in Rwanda were weak. There is evidence that more effective
deployment of peacekeepers may have reduced the severity of the genocide,
although it is far from apparent that it would have fully prevented genocide.81
There also is evidence that, were radio communications to have been jammed
and other media dissemination of hate propaganda to have been impeded, the
extent of the violence and its ferocity may have been attenuated.82
The bulk of the peacekeeping effort fell upon the shoulders of the United
Nations Assistance Mission in Rwanda (UNAMIR). This was headed by a
Canadian, Lt. Gen. Rom´ o Dallaire, and was constituted by soldiers from several
e
countries. UNAMIR had been present in Rwanda prior to and during the geno-
cide. Its size was reduced in early April 1994 with the murder, by Hutu extremists,
of a number of Belgian peacekeepers, which prompted the withdrawal of the
remaining Belgians. UNAMIR, despite brave and dedicated efforts, was under-
staffed and crimped by extremely tight rules of engagement that prevented it
from ¬ghting back against genocidal killers or intervening more directly.83
Dallaire bluntly has stated that the international community lacked the will to
intervene decisively in Rwanda.84 Although Dallaire communicated to senior
UN of¬cials the intelligence he had received from informants well ahead of
time that genocide was being planned in Rwanda, institutionally speaking the
United Nations remained unmoved. The execution of the actual genocide cor-
responded closely to what Dallaire had been told months in advance would take
place. Dallaire™s requests for more forces, better equipment, and a more aggres-
sive mandate went unheeded. Tragically, over a decade later, dithering now is
occurring with regard to peacekeeping and peaceenforcement intervention to
mitigate atrocity in the Darfur region of the Sudan.
Ironically, once the international community did become active in Rwanda
near the end of the genocide, its interventions served bene¬cial as well as
troubling purposes. Op´ ration Turquoise, led by the French, helped protect
e
Hutu refugees as they escaped areas occupied by the RPA. That said, Op´ ration
e
Turquoise also allowed many perpetrators of genocide to ¬‚ee and set up shop
in refugee camps in the DRC, Rwanda™s neighbor to the west. These perpe-
trators terrorized Rwandans inside the camps and, with these as a base, made
incursions into Rwanda itself, prompting further military action by the Rwandan
138 Atrocity, Punishment, and International Law

government that, ultimately, led to protracted multistate armed con¬‚ict through-
out the Great Lakes region of Africa.
Given this tragedy, it simply cannot be assumed that an international tribunal
created by the UN Security Council and supported by the same states that
failed so miserably in preventing genocide in Rwanda carries much legitimacy
in the eyes of Rwandans. To Rwandans, the international community is far from
neutral. Consequently, shuttering Rwandans out of its decisionmaking in the
name of neutrality becomes especially alienating.


(iv) referrals
The ICTY and ICTR have adopted “completion strategies.”85 One of the central
mechanisms in service of these strategies is for the ICTY and ICTR to refer
cases to national courts.86 These could be courts in the states of the former
Yugoslavia or in Rwanda, but also could be courts in other countries. The
referral mechanism preserves the primacy of the ad hoc tribunals over national
institutions, but allows some cases to be processed at the national level. Referrals
are to involve mid- to low-level perpetrators. In some cases, referrals concern
individuals actually indicted by the ad hoc tribunals; referrals of nonindicted
cases to national authorities also are contemplated.87
There are important limitations to the referral process as a mechanism to
internalize justice and democratize its administration. In particular, referrals
create a situation in which defendants may have spent many years in interna-
tional custody only to be returned to national jurisdictions, in part because those
defendants are no longer suf¬ciently important to the international tribunals or
because those same tribunals now are facing ¬nancial pressures, thereby reveal-
ing the contingency of criminal liability at the international level.
As of December 2005, the ICTY Prosecutor has ¬led twelve referral motions
involving twenty accused; one case has been referred to Croatia and two to the
War Crimes Chamber of the State Court of Bosnia and Herzegovina.88 Not all
motions for referral have been granted. ICTY referrals are undertaken pursuant
to Rule 11bis and its new amendments. According to Rule 11bis,89 a case can be
referred to the national jurisdiction where the crime was committed, in which
the accused was arrested, or that otherwise has jurisdiction and is willing and
adequately prepared to accept the case.90 It is the ICTY, through its Referral
Bench, that determines whether or not to refer. In making this determination,
the Referral Bench is to consider the gravity of the crimes charged and the level
of responsibility of the accused; it also must be satis¬ed that the accused will
receive a fair trial and that the death penalty will not be imposed or carried out.91
The request for referral is to be made by the ICTY Prosecutor or by the Referral
Bench of its own accord. In all cases, “upon referral of a case, the [ICTY] still
may be called upon to take back those cases where an accused is not afforded
a fair trial in the State to which they were referred.”92 The Referral Bench in
fact requires regular reports following a decision to refer and, depending on the
information contained therein, may recall the case.
Legal Mimicry 139

The effect of this process is to induce national courts that seek jurisdiction
to conform to a variety of modalities that mimic those found in international
criminal law regarding sanction (i.e., no death penalty) and procedure (i.e., a fair
trial).93 Thus, those national courts that emulate these modalities become able to
prosecute perpetrators of extraordinary international crimes, albeit not the most
serious offenders, nor those highest in the chain of command, nor those whose
offenses were not geographically contained.94 In practice, a number of national
jurisdictions compete over the chance to receive a referral. This adds a further
incentive to conform as closely as possible with ICTY practice, process, and
penalty in order to improve the chances of prevailing in this de facto tournament.
The decision where to refer a case remains, within the auspices of the statutory
framework, a discretionary one on the part of the Referral Bench.95 The ICTY
has in a number of cases decided not to refer cases to the national courts of
Serbia and Montenegro despite requests to do so.
A review of the case law of the Referral Bench suggests that the ICTY takes
its substantive review of the relevant domestic law quite seriously. This incen-
tivizes national courts that seek custody to emulate the ICTY™s process in order to
maximize chances of success in receiving referrals. National judges participate
in ICTY training initiatives, geared to “ensur[ing] that due process is accorded
in cases referred” and “to build local capacity.”96 Although there are many
advantages to this process, referrals do have a ¬‚attening effect on the diversity of
national legal frameworks. The result is a standardization of law and practice,
transplanted from the international level back down to diffuse national contexts,
masking its initial origin in the domestic legal fabric of those states that dominate
the international sociolegal order. Referrals also encourage national jurisdic-
tions to create separate atrocity crime courts or chambers, which has happened
throughout the states emergent from the former Yugoslavia. There is signi¬cant
upshot to creating these institutions. That said, given ¬nite resources, edifying
specialized courts or chambers means that alternate accountability mechanisms
become disadvantaged. Also potentially disadvantaged are investments into the
general court system, which seems a perverse result in that the general sys-
tem may actually end up processing a vastly larger number of suspects than
the specialized system. All in all, high-pro¬le specialized chambers may divert
resources and attention from the general judicial system, thereby occasioning
tension.97
Somewhat perplexing with regard to the allegedly retributive, deterrent, and
expressive superiority of international prosecutions over those of national courts
is the fact that certain defendants in referral cases have strenuously resisted trans-
fer to the national courts to which they were eventually referred, preferring to
have their case adjudicated by the ICTY. One defendant argued that the referral
would violate his decision voluntarily to surrender to the ICTY, suggesting that
he never would have surrendered to the Bosnian national courts.98 Other defen-
dants went so far as to contend that the gravity of the crimes charged against
them was so serious, and their position in the command structure so high, that it
would be inappropriate to refer their case out of the ICTY.99 These defendants
140 Atrocity, Punishment, and International Law

so preferred adjudication at the ICTY that, in resisting referral elsewhere, they
were willing to risk precluding their ability ultimately to raise lack of gravity or
command authority as mitigating factors in sentencing.100
The retention of the death penalty on the books in Rwanda creates a sig-
ni¬cant obstacle to its ability to receive high-pro¬le referrals from the ICTR.
Rwanda already has responded to these international abolitionist pressures. For
example, it has not carried out death sentences since 1998. The number of
individuals who receive death sentences in national courts has declined pro-
gressively with each passing year. Insofar as Rwanda continues to resist these
international pressures and retains the death penalty, even if only symbolically,
the ICTR may simply refer cases elsewhere.101
In fact, the ¬rst ICTR Rule 11bis motion ¬led by the ICTR Prosecutor (on
February 15, 2006) requested transfer not to Rwanda, but to Norway.102 The case
involved Michel Bagaragaza, former director general of the of¬ce controlling
the Rwandan tea industry. The ICTR Prosecutor contends that the transfer of
cases under Rule 11bis to jurisdictions other than Rwanda would “provide for
wider understanding of how genocide can happen” and, in Bagaragaza™s case,
would assist the administration of justice insofar as Bagaragaza may be able
to provide information on other genocide suspects who have falsely claimed
refugee status in Norway.103 Except for these incidental contacts, Norwegians
have no connection to the Rwandan genocide other than being victims in the
sense that all individuals everywhere are the victims of the crimes committed
by the enemies of humankind. Bagaragaza supported the transfer of his case to
Norway. The Rwandan government objected to the transfer.
On May 19, 2006, an ICTR Trial Chamber denied the ICTR Prosecutor™s
referral motion on the basis that Norway lacked jurisdiction over the crimes
alleged in the Bagaragaza indictment.104 This denial was subsequently upheld
by the Appeals Chamber.105 Norway had not codi¬ed genocide or complicity
in genocide in its domestic criminal law. For the judges who heard the matter,
it was not acceptable that Bagaragaza would be prosecuted only for ordinary
crime (i.e., murder).
The dispute over where Bagaragaza should be tried re¬‚ects Rwanda™s vulner-
ability. An international of¬cial (the ICTR Prosecutor) and very distant foreign
government (Norway) “ in both cases, over which the Rwandan population has
no control “ agree to prosecute a high-pro¬le suspected g´ nocidaire. They reach
e
this agreement because they deem the judicial process in Rwanda too out of syn-
chronicity with liberal legalist values to deserve to prosecute him. The concern
over Rwanda™s compatibility with these values, including appropriate modalities
of sentencing, is so great that it threatens to oust strongly presumptive grounds
of jurisdiction such as territoriality and nationality. In the end, ICTR judges
disagreed with the Prosecutor™s recommendation. However, the Rwandan pop-
ulation remains marginalized insofar as it has no control over ICTR judges.
Although there is reason to question why the Rwandan government retains the
death penalty on the books (i.e., for social control?), as well as its general motiva-
tions, the result of this jurisdictional maneuvering and intrainstitutional feuding
Legal Mimicry 141

over an accused genocidal leader™s apparent entitlement to avoid Rwandan legal
process is disempowering to those who survived the litany of abuses he is alleged
to have committed.
At the time of writing, the ICTR Prosecutor also has made other requests for
transfer of ICTR detainees to member states of the United Nations. In the event
that Rwanda agreed ex ante not to pursue the death penalty against anyone
referred by the ICTR, which might allow it to hear these cases, a retributive
imbalance would be triggered. Those higher-level defendants that have been
in custody at the ICTR would thereby become exempt from Rwandan law
as applicable to all other Rwandans. Alternately, the prospect of referrals may
simply change Rwandan law.


(v) complementarity
Article 17 of the Rome Statute of the ICC, which governs the admissibility of
cases, operationalizes the complementarity principle.106 According to this prin-
ciple, states are given the ¬rst opportunity to investigate or prosecute individuals
alleged to have committed the crimes proscribed by the Rome Statute. States,
through their courts, could obtain jurisdiction over alleged perpetrators in a vari-
ety of ways, including the traditional exercise of jurisdiction based on nationality
(i.e., citizenship of the accused) or territoriality (i.e., where the crimes were com-
mitted). It is only if states are unwilling or unable genuinely to investigate or
prosecute these crimes that the ICC can admit the case (assuming, of course, that
ICC jurisdiction otherwise exists and that the case properly has been referred).
Accordingly, the complementarity mechanism provides a vivid situs for broader
comparative law concerns regarding the integration of diverse legal traditions
into international institutions.107
The complementarity mechanism operates in conjunction with article 20 of
the Rome Statute, which addresses ne bis in idem. Article 20(3) prevents the
ICC from asserting jurisdiction over a person who has been tried by “another
court” for the same conduct unless the proceedings in the other court: (a) were
for the purpose of shielding the person concerned from criminal responsibility;
or (b) “were not conducted independently or impartially in accordance with
the norms of due process recognized by international law and were conducted
in a manner which, in the circumstances, was inconsistent with an intent to
bring the person concerned to justice.” The ICC thereby incentivizes states to
undertake their own domestic proceedings and accords states some leeway in
exactly how to implement them. But the scope of the leeway is fettered and
remains subject to review.
A number of thorny questions arise. What exactly does “unwilling or unable
genuinely to carry out the investigation or prosecution” mean for the purposes
of article 17? What is a proceeding that is “not conducted independently or
impartially in accordance with the norms of due process recognized by inter-
national law” for the purpose of article 20 and, also, for the determination of
“unwillingness” under article 17?
142 Atrocity, Punishment, and International Law

In some cases, such as sham proceedings designed to shield an accused or pro-
ceedings designed gratuitously to humiliate good faith witnesses, the answer will
be clear-cut. These proceedings are, after all, not exactly “genuine,” if the term
is understood to connote good faith efforts. Also clear-cut are situations where
there has been a total collapse in the administration, judiciary, or constabulary
of the state in question, which is not an infrequent occurrence in a postcon-
¬‚ict society. But what about proceedings that, although well intentioned, are
not prosecutorial in form? Or are investigatory, but lead in good faith to truth
commissions instead of adversarial and individualized criminal prosecutions?
Complexities also arise even if the investigations lead to criminal prosecutions.
What if the prosecutions fail to comport with internationalized due process
standards? What if they follow methodologies that differ from ICC methodol-
ogy? Differences in punishment also might run afoul of the complementarity
regime. This could be because punishment is viewed as too harsh (i.e., the death
penalty) or too lenient (i.e., community service, reparations, or apology instead
of the internationalized norm of incarceration in distant prisons).
It is likely that the ICC shall approach complementarity determinations with
some restraint. The ICC probably will focus its efforts on national systems that
avoid bringing offenders to justice, rather than on places that do so but in a
manner that provides less due process than the ICC. In particular, the ICC pre-
sumably would tolerate the diversity of national initiatives regarding lower-level
offenders because its purpose trends toward the prosecution and punishment of
those who bear the most serious responsibility, for example, leaders and other
“big ¬sh.”108 Moreover, article 17 mostly concerns objective criteria (especially
as regards the inability genuinely to investigate or prosecute). However, notwith-
standing my predictions of restraint by the ICC, it appears that subjective review
of national practices simply may be inevitable in terms of the determination
whether the activities of a state amount to a genuine unwillingness to investi-
gate or prosecute.109 Subjective review also may be inevitable in assessing the
conformity of national practices to the “principles of due process recognized by
international law.” To be sure, this review is not as explicitly directed at the qual-
ity of justice as that mandated by Chapter 11 of the NAFTA, but does implicitly
involve the reviewability of national decisions and the nature of national initia-
tives to respond to mass atrocity (or decisions whether to respond at all).
Serious comparative law assessments therefore are likely to occur within the
context of Rome Statute articles 17 and 20. These comparative law assessments
could also arise within the context of article 53(1)(c), which sets some guidelines
for the ICC Prosecutor in his decision whether or not to initiate an investigation:
the Prosecutor shall consider whether “[t]aking into account the gravity of the
crime and the interests of victims, there are nonetheless substantial reasons to
believe that an investigation would not serve the interests of justice.”110 This pro-
vision can cover situations where a state may have chosen to respond to endemic
violence through truth commissions or national amnesties, and affords the Pros-
ecutor some discretion to elect not to pursue a matter otherwise admissible.111
It is foreseeable that the Prosecutor might determine it unwise to investigate a
Legal Mimicry 143

matter where national authorities have implemented truth-seeking mechanisms
coupled with quali¬ed amnesties. But there is no express mention of criteria that
differentiate acceptable amnesties or mechanisms from unacceptable ones. In
any event, any decision by the Prosecutor not to proceed based entirely on article
53(1)(c) must be subsequently con¬rmed by an ICC Pre-Trial Chamber.112
To summarize: there remains some subjective discretion in determining gen-
uine unwillingness to investigate or prosecute, and a greater level of subjective
discretion regarding the determination whether ICC investigation would not
serve the interests of justice. In these instances, the ICC Prosecutor would con-
sider a range of factors, including the quality of justice proffered at the national
level, along with broader political rami¬cations. In assessing the quality of jus-
tice, there may be recourse to contrast the proffered national proceedings to
those envisioned by international criminal law. After all, the dominant view
among international criminal lawyers is that the processual content of interna-
tional criminal law is central to its legitimacy.113 In particular, the need may arise
to consider the due process of the proceedings as a measure of their legitimacy,
and in this regard it seems inescapable that the due process guarantees114 of
international criminal law once again shall enter the analysis as some sort of
template.
Robert Cryer observes that “the system of complementarity creates a strong
interest in States not to cheat by failing to prosecute. [ . . . ] States, particularly
in relation to offenses by their nationals, are more likely to prefer to investigate
at the national level, rather than have an investigation proceeded with in public
by an independent international investigator.”115 Both the language of the com-
plementarity provisions as well as the psychology of judging (after all, the ICC
will judge its own jurisdiction to judge) suggest that the more a national legal
process approximates that of the ICC, including its speci¬c trial and sanction-
ing modalities, the greater the likelihood that this process will be palatable and
pass muster. This, in turn, suggests that one permutation is that national insti-
tutions will model themselves along the lines of the ICC in order to maximize
their jurisdiction.116 Complementarity, therefore, may encourage heterogeneity
in terms of the number of institutions adjudicating international crimes, but
homogeneity in terms of the process they follow and the punishment they mete
out. In the end, the content of local practices may be excluded regardless of the
legitimacy with which these practices are perceived. Because the preferred prac-
tice is that which dominates in Western societies, excluded local practices over-
whelmingly will be those present in non-Western societies. Moreover, because
the political realities of international criminal law institutions suggest that the

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