. 8
( 11)


in a responsible collective might make it much more dif¬cult for individuals
to hide within the collective, seek exoneration in its anonymity, bene¬t from
the diffusion of responsibility, and proffer excuses in Milgram™s agentic state of
transposed responsibility. Collective responsibility could inject a risk allocation
and management analysis into the minds of the general population in the very
inchoate stages of atrocity. I believe this would help move extant frameworks
from being essentially reactive to tragedy to a somewhat more proactive position.
Moreover, collective responsibility frameworks would monitor more than just
the activities of individuals. Monitoring also could extend to corporate entities,
thereby implicating very relevant actors that fall outside the reach of inter-
national criminal law (for example, the ICC or ad hoc tribunals only have
jurisdiction over natural persons). Corporate entities are major facilitators of
genocide, insofar as they produce the tools by which genocide is executed. They
provide the means to industrialize atrocity. Moreover, collective sanction does
not have to limit itself to agents of the perpetrator group. Would international
204 Atrocity, Punishment, and International Law

institutions and foreign states have responded with the same nonfeasance to
genocide in Rwanda or Srebrenica were they to be subject to the reach of
collective sanctions? This is a particularly poignant question given empirical
research that indicates that mass violence, particularly state-centered violence,
can be slowed or stopped by military interventions, led for example by the inter-
national community or foreign states, which directly challenge the perpetrator
or aid the target of the policy.90
That said, this is a discussion of what might be, not what obviously is. Exper-
iments have not been concluded. Data have not been generated. It may well
be that a collective responsibility framework would fall short of these utilitarian
goals, or would attain some of them in certain places but not in others. For exam-
ple, it is not implausible that the existence of a collective sanctions framework
would induce group members to permit atrocity and then simply devote their
energies to covering it up. It is possible that the existence of collective responsi-
bility would prompt groups to insure against the civil liability that results from
genocide, thereby creating moral hazard. Perhaps bene¬ting bystanders are not
rational thinkers; perhaps they are no different than Interahamwe militia or
suicide bombers.
But we will never be able to evaluate the potential or limitations of a hori-
zontally expanded law of atrocity that contemplates group-based sanction unless
we shed our fears and dispassionately engage with collective responsibility as a
regulatory mechanism and as a possible tool in the justice toolbox. My point
here is to spark renewed discussion and research.
Ultimately, my proposal for horizontal cosmopolitan pluralism is a humanis-
tic one that supports collective claims but endeavors to straddle the gap between
crude and careful group demarcation. I believe the group can be de¬ned crudely,
with the subsequent opportunity for group members to af¬rmatively demonstrate
why they should be excluded from the liable group. Reasons for exclusion would
include members™ activities prior to or during the atrocity. This creates a strong
incentive to resist or, at least, not to acquiesce. Victims, too, would be excluded
from liability. With regard to Bosnia and Herzegovina™s claim, in the event geno-
cide were attributable to the Serbian state, I would proffer a hypothetical liability
framework in which the Serbian state could be sanctioned, but in which indi-
vidual or institutional members of Serbian society could be permitted to avoid
footing the bill, or foot less of the bill than others, by af¬rmatively demonstrating
what they did to prevent genocide or to oppose the state. Such a process could
open up a wide discursive space about who did what during times of atrocity,
thereby serving powerful didactic and expressive purposes. Looking at the other
side of the coin: I believe the claimant group also can be de¬ned crudely if
this is how it elects to de¬ne itself. Victims should be entitled to constitute
themselves as they see ¬t for the purpose of ¬ling claims and should be given
quali¬ed deference if not every individual member of the group meets exacting
standing rules. I am less concerned over unjust enrichment for some members
of victim communities than I am over sanction for some members of perpetrator
communities who actively resisted.
From Law to Justice 205

(v) conclusion
The cosmopolitan pluralism I envision would permit criminal trials and pun-
ishment to stake a claim in the justice matrix and, hence, be a participant in
the justice process, but would cast this claim as procedurally deferential (with
quali¬cations) to the local and as conceptually porous to alternate private law
and extrajudicial modalities. In both cases, the result is that the universal norm
of accountability for great evil enters into dialogic relational intercourse with
local procedure and the richness of the legal landscape beyond the narrowness
of ordinary criminal law.
In the end, an independent theoretical understanding of the organic and
myriad sources of mass atrocity shall not come from a process of reduction
animated by a strong preference for deviance-based criminal law. Rather, it more
readily emerges from a process of accretion that recognizes that mass atrocity
arises when, collectively, groups fail to respect fundamental obligations owed
to humanity and individuals within those groups either actively or passively
facilitate that failure. Encouraging multiple forms of accountability through
diverse, and different, legal orders might go some way to recognize the truly
extraordinary nature of the evil at hand and, thereby, promote the attainment
of penological goals.
Justice for atrocity is not synonymous with international criminal trials. It
entails much, much more. Any value that selective adversarial prosecutions of
individuals deemed most responsible for atrocity, which is the mandate of the
ICC, actually convey will only appreciate if these prosecutions concurrently
operate within, as opposed to shutter out, a multilayered and diverse array of
initiatives “ legal as well as political “ that promote accountability.
chapter 8

Conclusion: Some Immediate Implications

The trajectory I have traced began with the compilation and review of sen-
tences issued by domestic courts and international tribunals in cases of great
evil. Courts and tribunals af¬rm that they punish extraordinary international
criminals mainly to promote retribution, deterrence, and expressivism. It turns
out, however, that there is a shortfall between retributive and deterrent goals and
the realities of sentence. This shortfall can be explained in part by international
criminal law™s reliance on the modalities of ordinary liberal criminal law, which
is designed for deviant individuals in select jurisdictions and not for the obedient
masses that, to varying degrees, are associated with discrimination-based atrocity.
Expressive aspirations, although more obtainable, remain quite frail.
In response to this shortfall and frailty, I propose a process of critique and
renewal that portends changes in the way in which perpetrators of atrocity are
to be punished. These reforms would encourage looking beyond stated puni-
tive rationales to consider other justi¬cations, including currently undervalued
goals such as restoration. Societies with a collective as opposed to individual-
ist ethos would have more space to pursue accountability mechanisms other
than adversarial criminal trials. Vertical and horizontal reforms would splin-
ter the present focus on a handful of retrospective trials motored top-down
by internationalist modalities; these reforms also would fragment the power-
ful remedial preference for incarceration. For a variety of reasons exogenous
to the quality of justice, liberal internationalist modalities, with their prefer-
ence for trial and incarceration, have migrated to the national and local levels
even in those places where such process and sanction are neither innate nor
Ultimately, the cosmopolitan pluralist vision I propose fosters an obligation-
based preventative model, operationalized from the bottom-up through diverse
modalities that contemplate a coordinated admixture of sanctions calibrated
to each speci¬c atrocity. The toolbox of sanctions could include imprison-
ment, reparations, community service, lustration, declaratory relief, restitution,
af¬rmative duties to promote human rights, and institutional and constitu-
tional reforms to diminish the likelihood that discrimination-fueled hatemongers
(re)assume power.
Conclusion: Some Immediate Implications 207

Instead of the tight social control and scripted narrative envisioned by individ-
ualist criminal law, more free-ranging approaches that uproot the many sources
of violence “ a much more accurate, albeit inconvenient, topography “ could
be encouraged in situ when local authorities pursue these in good faith. Pun-
ishment frameworks could thereby transcend those of preexisting criminal law
formulations, harness broader sociological forces, attend to the local needs of
the places directly af¬‚icted by mass atrocity, and strive to integrate alternate
These proposed reforms are ambitious and wide-ranging. They demand
much in the way of intellectual and ¬nancial support. Although keyed to the
long term, these proposals also are capable of gradual and incremental artic-
ulation. Accordingly, the reform process need not be overwhelming. Existing
hard-won frameworks, whether institutional or conceptual, can be modi¬ed
to accommodate the beginnings of a cosmopolitan pluralist vision. By way of
conclusion, I identify several short-term adjustments.

(i) legal institutions and jurisprudence
Proposed adjustments include:
(1) Retool the division of labor by recognizing, either expressly through textual
amendment or implicitly through interpretative canon, a presumption of qual-
i¬ed deference toward national or local institutions in the following processes:
r Referrals from ad hoc tribunals to national courts;
r Rome Statute article 17 admissibility determinations;
r Referrals from the Security Council or states party to the ICC;
r Decisions by the ICC Prosecutor to investigate or prosecute proprio
r Security Council decisions to create new punishing institutions (e.g., on an
ad hoc basis); and
r Determinations of the “interests of justice” under Rome Statute article
(2) Integrate non-Western legal traditions into globalized understandings of the
adequacy of due process; insert comparative law methodologies more deeply
into the international jurisprudence.
(3) Recognize the dif¬culties that extant modalities of sentence experience in
attaining their avowed aspirations (retribution, deterrence, and expressivism);
develop the separate sentencing hearings contemplated by the Rome Statute
such that they involve a rich, principled, and textured discussion of punish-
ment; integrate the sociopsychological aspects of individual agency in collective
cataclysm into the sentencing metric.
(4) Encourage the ICC in the inchoate steps it has taken to involve victims in its
processes; assess the potential and limits of victim impact testimony, including
208 Atrocity, Punishment, and International Law

in sentencing; adequately support the ICC™s Trust Fund; and provide similar
funds for those places whose atrocity currently is judicialized by international
or internationalized institutions.

(5) Eliminate charge bargaining, and permit plea bargaining only in cases of
confessions with apologies and where the defendant admits the full scale of his
or her involvement (even if pleading guilty only to one umbrella charge). This
admission should take the form of a detailed signed document, read into the
judicial record, in which the defendant allocutes to all of the facts that serve
as a basis for the charges. Such a requirement would move plea bargaining in
the direction of restorative initiatives (e.g., those practiced by the South Africa
Truth and Reconciliation Commission).

(6) While the need for diversity of punishment structures must be appreciated,
work on “bringing law to sentencing”1 once a structure has been developed for
a speci¬c atrocity so that outcomes within that jurisdiction become predictable
and referenced to a stable heuristic. Such reform would allow involved parties to
know what type of information to adduce and what weight to place thereupon.
To the extent that “bringing law to sentencing” opens a discussion regarding
the establishment of sentencing guidelines or tariffs, that discussion should be
welcomed (recognizing that, when implemented crudely, mandatory tariffs can
depersonalize punishment and lead to excessively rigid outcomes).

(7) Expand the language of judgments, as Laurel Fletcher advises, to explicate
the role of bystanders.2

(8) Clarify and synthesize jurisprudential linkages between the International
Court of Justice, on the one hand, and criminal justice institutions at the domes-
tic and international levels, on the other hand, in cases of extraordinary inter-
national crimes.

(9) Consider collective sanction, in particular monetary sanction, on a group
(state or otherwise) when it reasonably could have prevented extraordinary inter-
national crimes but declined to do so; once the group is delineated, permit
group members an opportunity to af¬rmatively demonstrate why they should be
excluded from responsibility (e.g., based on their opposition to the violence or
their own victimization).

(10) Welcome the participation of citizens from af¬‚icted con¬‚ict zones in the
accountability process so that a technocratic transnational expert community
does not dominate; also, dovetailing with the general principle of quali¬ed
deference, exert a preference to site justice institutions locally with concomitant
investment in outreach.

(11) Preclude early release/conditional release based on the ordinary criminal
law of the state that agrees to detain the convict if that state has no territorial or
national connection to the violence.
Conclusion: Some Immediate Implications 209

(ii) political institutions and behavior
Proposed adjustments include:
(1) Explore how international organizations can become contractually bound
to intercede when conditions of con¬‚ict entrepreneurship arise; in this process,
link with UN reform as contemplated by the New Threats Panel Report and
broader notions of humanitarian armed intervention and humanitarian com-
munications intervention so that ex post punishment does not substitute for ex
ante prevention.
(2) Explore how national frameworks can place duties on in¬‚uential public
and private of¬ces to diminish the chances that persons occupying such of¬ces
convert them into platforms for con¬‚ict entrepreneurship.
(3) For donor communities and human rights activists: resist exerting pressure on
national institutions to conform to the procedural modalities of international
legal institutions; decouple funding from mimicry, but not from ¬ne-grained
quali¬ed deference assessments.
(4) Resist the tendency to look for simplicity in response to fundamentally com-
plex crimes.
(5) Setting of scholarly agendas: track convicts over time and analyze the abil-
ity of local mechanisms, such as gacaca and mato oput, to attain regulatory

(iii) closing note: critique and renewal
The ICC has come of age. Universal criminal jurisdiction is settled. National
courts prosecute extraordinary international crimes. These developments, while
striking, are only the beginning of the justice metric. They certainly are not the
end. To view them as such would evince a perilously narrow understanding
of justice. Much work remains to be done in order for the punishment of the
great evils to develop a meaningful doctrinal method tied to a penology that
truly is its own. Should international criminal law fail to push in this direction,
it risks consigning itself to a perpetual stage of adolescence or, in the much
more eloquent words of Cherif Bassiouni, to no more than “Potemkin justice.”3
Extant institutions can become more relevant for communities reconstructing
themselves in the wake of mass atrocity. Courts and tribunals are not ends in
themselves. Rather, they are elements of a much broader project.
The choice is not one between safeguarding extant institutions, on the one
hand, or living lawlessly in a world of impunity, on the other. This is a false
dichotomy. There is another option: one of critique and growth. This option
recognizes the potential (and limits) of law to enhance human welfare. It also
recognizes that de¬ciencies must be addressed, not glossed over. International
law is to be studied, not venerated. Only through hard work, and modesty regard-
ing past accomplishments, can humanity move from law to justice.

1. extraordinary crime and ordinary punishment: an overview
1. Prosecutor v. Nkinamubanzi et al. (April 17, 1998, 1 i` re instance, Kibuye), RMP 50919/S4/
GM/KBY/97, RP CH.SP.014/01/97, p. 2.
2. Id. p. 1 (identifying him as a “chauffeur”).
3. Id. p. 14.
4. Rory Carrol, Rwandan Priest Goes on Trial for Genocide, The Guardian (Sept. 21, 2004).
5. ICTR/Seromba “ Man Who Bulldozed Church Accused of Being Paid to Change Testi-
mony, Information, Documentation and Training Agency (Tanzania) News (April 6, 2006).
Nkinamubanzi was supposed to appear as a prosecution witness at the International Crim-
inal Tribunal for Rwanda (ICTR) in proceedings against the head priest of Nyange parish,
Father Athanase Seromba. Nkinamubanzi was to testify that Seromba instructed and paid
him to level the church. However, he then changed his story to exculpate Seromba,
allegedly in exchange for bribes. Id. Seromba was convicted by an ICTR Trial Chamber in
December 2006 of genocide and extermination as a crime against humanity and sentenced
to ¬fteen years™ imprisonment.
6. Such as Mika Muhimana, convicted in 2005 by the ICTR and sentenced to life imprison-
ment, who among other brutalities grotesquely “cut a pregnant woman from her breasts
down to her genitals and remove[d] her baby, who cried for some time before dying.” Pros-
ecutor v. Muhimana, Case No. ICTR-95-1B-T, ¶¶ 612, 614 (ICTR Trial Chamber, April
28, 2005). Moreover, “[a]fter disemboweling the woman, the assailants [ . . . ] then cut off
her arms and stuck sharpened sticks into them.”
7. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (rev. ed.,
1965). For other accounts of the banality theme, see Christopher Browning, Ordinary
Men: Reserve Police Battalion 101 and the Final Solution in Poland (1992); Mark
Osiel, Mass Atrocity, Ordinary Evil, and Hannah Arendt (2001).
8. Amartya Sen, Identity and Violence: The Illusion of Destiny 2 (2006).
9. See, e.g., M. Cherif Bassiouni, Introduction to International Criminal Law (2003);
Antonio Cassese, International Criminal Law (2003); Bruce Broomhall, International
Justice and the International Criminal Court: Between Sovereignty and Rule of
Law (2004); Leila Nadya Sadat, The International Criminal Court and the Trans-
formation of International Law: Justice for the New Millennium (2002); William
Schabas, Genocide in International Law (2000).
10. Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 Calif.
L. Rev. 1, 7“8 (2005); Laurence R. Helfer & Anne-Marie Slaughter, Why States Create
International Tribunals “ A Response to Professors Posner and Yoo, 93 Calif. L. Rev. 899,
905 (2005).
11. Ruti Teitel, Transitional Justice (2000); Osiel, Mass Atrocity, op. cit.

212 Notes to Pages 2“4

12. See, e.g., Bassiouni, op. cit. (devoting 18 pages out of a total of 740); Cassese, op. cit.
(devoting 3 pages out of a total of 458).
13. Viktor Frankl, Man™s Search for Meaning: Experiences in the Concentration Camp
(trans. 1959); Primo Levi, Survival in Auschwitz (reprint 1995).
14. Robert Cryer, Prosecuting International Crimes: Selectivity and the Interna-
tional Criminal Law Regime 36, 38 (2005); Peter Maguire, Law and War: An American
Story 90 (2000); Carlos Santiago Nino, Radical Evil on Trial 5“6 (1996).
15. This view persists today. See, e.g., Kenneth J. Campbell, Genocide and the Global
Village 28 (2001) (citing UN Secretary-General Annan as stating that “the crime of geno-
cide against one people truly is an assault on us all”). This view derives from the actual
events at the Nuremberg trials and, perhaps more importantly, subsequent interpretation
thereof. Telford Taylor, Nuremberg and Vietnam: An American Tragedy 13“14 (1970)
(noting also that “ ˜Nuremberg™ is both what actually happened there and what people
think happened, and the second is more important than the ¬rst”).
16. Hannah Arendt, The Human Condition 241 (1958). See also Nino, op. cit., at vii, ix.
17. C. Fred Alford, Augustine, Arendt, and Melanie Klein: The (De)Privation of Evil, 10 J. for
the Psychoanalysis of Culture & Soc™y 44, 50“51 (2005) (describing developments in
Arendt™s thinking from the Origin of Totalitarianism (1951) to Eichmann in Jerusalem
(1963)). For Arendt, only good “has depth and can be radical;” evil was like a “fungus” on
the “surface” that could spread and “lay waste [to] the whole world.” Id. I also use the term
great evil to describe this violence.
18. Hannah Arendt, Letter from Hannah Arendt to Karl Jaspers (August 18, 1946), in Hannah
Arendt & Karl Jaspers, Hannah Arendt, Karl Jaspers: Correspondence, 1926“1969, 54
(Kohler & Saner eds., 1992).
Prosecutor v. Deronji´ , Case No. IT-02-61-A, ¶ 136 (ICTY Appeals Chamber, July 20, 2005)
19. c
(quoting ICTY Appeals Chamber judgment in Celebi´ i, ¶ 806: “The cases which come
before the [International] Tribunal differ in many respects from those which ordinarily
come before national jurisdictions, primarily because of the serious nature of the crimes
being prosecuted, that is ˜serious violations of international humanitarian law.™ ”); Prosecutor
v. Tadi´ , Case No. IT-94-1 (ICTY Appeals Chamber, Oct. 2, 1995) (warning of the “perennial
danger” that international crimes might be characterized as ordinary crimes and citing this
danger as justifying ICTY primacy).
20. For use of this term, see David Luban, A Theory of Crimes Against Humanity, 29 Yale J. Int™l
L. 85, 90 (2004); Steven C. McCaffrey, Understanding International Law 184 (2006)
(surveying practice and policy that extends the appellation “enemy of all humankind” to
the torturer and other perpetrators, including of genocide, crimes against humanity, war
crimes, and the slave trade).
21. I contend that the proscription of widespread attacks by terrorists deliberately undertaken
against civilian populations and the ¬nancing thereof, which are criminalized within
transnational criminal law, have moved from this level to that of international criminal law,
becoming in the least an obligation erga omnes. I consider such attacks as atrocity crimes,
both on their own and, if the legal tests are met, as crimes against humanity (for example,
the September 11, 2001, attacks). See Mark A. Drumbl, Judging the 11 September Terrorist
Attack, 24 Hum. Rts. Q. 323 (2002). The Rome Statute of the International Criminal Court,
which precedes the jurisgeneration triggered by the international community™s response
to the September 11 attack, does not create jurisdiction to prosecute terrorism. Rome
Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 [hereinafter Rome
22. Rome Statute, op. cit., art. 7. Acts include murder, enslavement, extermination, deporta-
tion, persecution, rape, torture, sexual slavery, enforced prostitution, and forced pregnancy.
23. Id. art. 6.
24. War crimes cover two sorts of activities: crimes committed in international armed con¬‚ict
and violations of the laws and customs of war, a residual category applicable to noninter-
national armed con¬‚icts. Id. art. 8.
Notes to Pages 4“5 213

25. The dolus specialis of genocide entails proof of intent to wipe out a target group in whole
or in part. I construct this intent as (in the least) discriminatory in nature. Formal proof
of discriminatory intent is not a required element in all jurisdictions for all crimes against
humanity. Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 S.C.R. 40,
¶ 144 (Supreme Court of Canada (2005)); but see Larry May, Crimes Against Humanity
124“128 (2005) (arguing in favor of requiring discriminatory intent in cases of crimes against
humanity). Persecution is an example of a crime against humanity for which there is a
settled requirement of discriminatory intent. Mugesera v. Canada, ¶ 145; Prosecutor v.
Bralo, Case No. IT-95-17-S (ICTY Trial Chamber, December 7, 2005); Prosecutor v. Barros
and Mendonca, Case No. 01/2004, ¶ 22(e) (Dili Dist. Ct. Serious Crimes Spec. Panel, May
12, 2005, aff™d East Timor Ct. App.). The requisite intent is the denial of a fundamental
right on discriminatory grounds. Hate speech may rise to this level (see, e.g., Prosecutor v.
Nahimana, Case No. ICTR-99-52-T, ¶ 117 (Summary of Judgment) (ICTR Trial Chamber,
Dec. 3, 2003)) or it may not (see, e.g., Prosecutor v. Kordi´ and Cerkez, IT-95-14/2-A (ICTY
Appeals Chamber, Dec. 17, 2004)). When taken as a whole, what distinguish crimes against
humanity from ordinary crimes is that the acts in question become crimes against humanity
if they are committed as part of a widespread or systematic attack directed against any civilian
population or any identi¬able group. Mugesera v. Canada, ¶ 151. Systematic attacks will
include some sort of common policy or plan that operates on a patterned basis; they are
not random. Mugesera v. Canada, ¶ 155. The interpretation of “widespread” involves the
large-scale nature of the act: in the language of the ICTR, that it is “carried out collectively
with considerable seriousness and directed against a multiplicity of victims.” Prosecutor
v. Akayesu, Case No. ICTR-96-4-T, ¶ 580 (ICTR Trial Chamber, Oct. 2, 1998); see also
Prosecutor v. Kayishema, Case No. ICTR-95-1-T, ¶ 123 (ICTR Trial Chamber, May 21,
26. Nuremberg was a watershed. That said, the notion that alleged war criminals should
be tried and punished if found guilty certainly existed prior to Nuremberg. See generally
Anthony Ellis, What Should We Do With War Criminals?, in War Crimes and Collective
Wrongdoing 97, 97 (Joki´ ed., 2001). In fact, the pre“World War II period was important
for international criminal law in that it saw the development of proposals for the ¬eld and
enforcement; a few trials occurred for alleged World War I crimes, for example domestically
at Leipzig. Nuremberg, however, practically operationalized the perceived need to punish
within an international criminal tribunal. And, looking beyond Nuremberg, this practical
operationalization has blossomed in earnest over the past decade.
27. See Martti Koskenniemi, Hersch Lauterpacht and the Development of International Crim-
inal Law, 2 J. Int™l Crim. Just. 810, 824 (2004) (noting that “ ˜individualism™ is a recent
aspect of Western thinking that may undermine forms of experience or ways of life that
cannot be articulated in the individualist terms familiar to the (developed) West”).
28. Judith Shklar, Legalism: Law, Morals, and Political Trials 152 (1964).
29. Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding
Transitional Justice, 15 Harv. Hum. Rts. J. 39, 40 (2002) (concluding that participants in
the debate over the use of prosecutions in transitional justice “share a basic assumption:
prosecuting perpetrators of injustice is the optimal method for dealing with past atrocities”);
Stephen Landsman, Alternative Responses to Serious Human Rights Abuses: Of Prosecution
and Truth Commissions, 59 Law & Contemp. Probs. 81, 83 (1996) (concluding that the best
response is vigorous prosecution). Moreover, preferences in a context of ¬nite resources
can lead to exclusivity.
30. Laurel E. Fletcher, From Indifference to Engagement: Bystanders and International Crim-
inal Justice, 26 Mich. J. Int™l L. 1013, 1031 (2005). Fletcher also refers to this concept
as “international legalism.” Id. at 1015. She also refers to “liberal law adjudication.” Id.
at 1062.
31. Id. at 1031. Other scholars also turn to “liberal legalism” as a descriptive tool. See, e.g.,
Sanja Kutnjak Ivkovi´ & John Hagan, The Politics of Punishment and the Siege of Sarajevo:
Toward a Con¬‚ict Theory of Perceived International (In)justice, 40 Law & Soc™y. Rev. 369
214 Notes to Pages 5“6

(2006); Eric A. Posner & Adrian Vermeule, Transitional Justice as Ordinary Justice, 117
Harv. L. Rev. 761, 792 n.92 (2004) (referring to “liberal procedural legalists”).
32. See also generally David Chuter, War Crimes: Confronting Atrocity in the Modern
World 94 (2003) (“[I]nternational criminal law™s vocabulary and concepts are not neutral.
They are culturally speci¬c, constructed and manipulated by a very small number of
countries . . . ”). As Gary Bass notes, the “pursuit of war criminals can only be explained
with reference to domestic political norms in liberal states.” Gary J. Bass, Stay the Hand
of Vengeance: The Politics of War Crimes Tribunals 35 (2002).
33. History has bestowed this legitimacy upon international institutions despite Arendt™s relative
equivocation as to whether these extraordinary crimes were more suitably dealt with at the
national or international levels.
34. See Alain Pellet, Internationalized Courts: Better Than Nothing . . . , in Internationalized
Criminal Courts 437, 438 (Romano, Nollkaemper, & Kleffner eds., 2004) (“[I]t must be
kept in mind that only crimes which ˜deeply shock the conscience of humanity™ can justify
an internationalization of their prosecution, which involves a far-reaching blow to the
competence of domestic courts on an issue which otherwise would come under ˜matters
which are essentially within the domestic jurisdiction of States™. . . . [W]hen such serious
crimes are at stake . . . it is then important that they not be ˜con¬scated™ by any particular
state, including the one in which the crime has been committed or of which the victims or
the authors are nationals.”). See also generally Arendt, Eichmann in Jerusalem, op. cit.,
at 269.
35. May, Crimes Against Humanity, op. cit., at 99, 106; Larry May, War Crimes and Just
Wars 15 (2005) (monograph on ¬le with the author); Michael J. Matheson, United Nations
Governance of Post-Con¬‚ict Societies, 95 Am. J. Int™l L. 76, 83 (2001). For May, crimes
against humanity always implicate international interests given their group-based or system-
atic nature, whereas war crimes do not. War crimes, for May, are crimes against humaneness
rather than crimes against humanity.
36. Universal jurisdiction, in particular, is predicated largely on the fact that the extraordinary
international criminal offends the interests of all of humanity. See Kenneth C. Randall,
Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785, 803 (1988); see also The
State of Israel v. Adolf Eichmann (S. Ct. Israel, May 29, 1962), 36 Int™l L. Rep. 277, 291 (1968)
(universal international crimes arise from the fact that they “constitute acts which damage
vital international interests,” “impair the foundations and security of the international
community,” and violate “universal moral values and humanitarian principles”).
37. Foreign in¬‚uences also inform the operationalization of justice at the national and local
38. For example, although I consider the Iraqi High Tribunal (also referred to as the Iraqi
Higher Criminal Court) to be a national legal institution, it embodies foreign and inter-
national elements. See generally Statute, Law No. 10 2005 (October 9, 2005), Of¬cial
Gazette of the Republic of Iraq, No. 4006 (October 18, 2005). The Iraqi High Tribunal
[hereinafter IHT] receives expertise from the United States, was created pursuant to the
invasion of Iraq by foreign powers, and directly incorporates certain of the crimes and liabil-
ity theories from the constitutive documents of international criminal tribunals. The IHT
was established on December 10, 2003, and approved by the Iraqi Transitional National
Assembly on August 11, 2005. Its purpose is to prosecute high-level members of the for-
mer Iraqi regime. The IHT™s Statute, initially drafted in 2003, was amended in 2005 and
approved in October 2005. The IHT is empowered to prosecute genocide, crimes against
humanity, war crimes, and certain violations of Iraqi law committed between July 17, 1968,
and May 1, 2003. It adheres to a civil law model with investigative judges. The IHT is
to have primacy over all other Iraqi courts with respect to the extraordinary international
crimes within its jurisdiction. Its personnel are Iraqi. In its interpretation of the crimes
within its jurisdiction, the IHT may resort to relevant decisions of international criminal
courts. Id. art. 17. The IHT shall also turn for guidance to the sentences of international
Notes to Pages 6“7 215

criminal courts when it comes to af¬xing punishment for the extraordinary international
crimes within its jurisdiction. Id. art. 24. In addition to sentences previously issued by other
international courts, the IHT is to take into account factors such as the gravity of the
crime and the individual circumstances of the convicted person. However, punishment
is that prescribed by domestic Iraqi law, which includes the death penalty. The IHT™s
Rules of Procedure and Evidence permit guilty pleas. The Rules mandate the IHT when
sentencing offenders to take into consideration aggravating and mitigating circumstances.
Only one speci¬c example is given, this being a mitigating factor: substantial cooperation.
On guilty pleas and mitigating/aggravating factors, see generally Rules of Procedure and
Evidence, The Of¬cial Gazette of the Republic of Iraq, No. 4006, Rules 37, 65 (Octo-
ber 18, 2005). The October 2005 version of the IHT Statute identi¬es in a postscript its
“justifying reasons” for imposing punishment as follows: to expose the crimes committed
in Iraq; to lay down rules and punishments to condemn the perpetrators after a fair trial; to
form a high criminal court; to reveal the truth, agonies, and injustice; to protect the rights
of Iraqis; and “alleviating injustice and for demonstrating heaven™s justice as envisaged
by the Almighty God.” The IHT™s ¬rst judgment was issued in writing and translated in
December 2006. This judgment involved culpability for state executions in the village of
Dujail. The sentencing part of the IHT judgment was so terse that it did not involve dis-
cussion of penological goals, even those noted in the Statute, nor any explanation of why
each convict received the sentence he was awarded (Saddam Hussein received the death
39. The ICC, which entered into force on July 1, 2002, was created by the Rome Statute
of the International Criminal Court. See Rome Statute, op. cit. It is a permanent
institution mandated to investigate and prosecute the most serious crimes of interna-
tional concern, namely genocide, crimes against humanity, and war crimes. At the
time of writing, 100 nations have become parties to the Rome Statute. See U.N.
Treaty Collection, Rati¬cation Status, available at http://untreaty.un.org/ENGLISH/bible/
englishinternetbible/partI/chapterXVIII/treaty11.asp (last visited May 25, 2006). The Rome
Statute has been signed by 139 nations. The ICC is investigating allegations of crimes in
a number of places, including Sudan, the Democratic Republic of the Congo (DRC),
and Uganda. It has arrested its ¬rst individual: alleged Congolese militia leader Thomas
40. The ICTR was established as an ad hoc institution by the Security Council. See Statute
of the ICTR, U.N. SCOR, 49th Sess., 3453d mtg. at 15, U.N. Doc. S/Res/955 (1994). It
investigates and prosecutes persons responsible for genocide and other serious violations
of international humanitarian law committed in the territory of Rwanda and Rwandan
citizens responsible for genocide and other such violations committed in the territory of
neighboring states, between January 1, 1994, and December 31, 1994. In 1994, an extremist
government headed by members of the Hutu ethnic group fostered a populist genocide
that resulted in the murder of 500,000 to 800,000 members of the Tutsi ethnic group.
41. The ICTY was established as an ad hoc institution by the Security Council to investigate
and prosecute persons responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1991. See Statute of the ICTY,
U.N. SCOR, 48th Sess., 3217th mtg. at 29, U.N. Doc. S/Res/827 (1993). These con¬‚icts
involved ¬ghting among Serbs, Croats, Bosnian Muslims, and Kosovo Albanians. In total,
approximately 250,000 individuals were killed in this ¬ghting.
42. The Sierra Leone Special Court, which has begun operations, was established jointly by
the government of Sierra Leone and the United Nations to prosecute those who bear the
greatest responsibility for serious violations of international humanitarian law and Sierra
Leonean law committed in the territory of Sierra Leone since November 30, 1996. See
Statute of the Special Court for Sierra Leone, art. 1, S.C. Res. 1315, U.N. SCOR, 55th Sess.,
4186th mtg. at 1, available at http://www.sc-sl.org/scsl-statute.html. The violence in Sierra
Leone arose from con¬‚ict between government and rebel forces during the 1990s.
216 Notes to Page 7

43. The various hybrid institutions contemplated here are internationalized to different degrees
insofar as the division of labor between the international and the national varies from
institution to institution.
44. See United Nations Interim Administration Mission in Kosovo, Reg. 2000/64 (Dec. 15,
2000). These special panels (also called “Regulation 64 panels”) adjudicate violations of
domestic criminal law that include those occurring in 1998 and 1999 in the course of
the armed con¬‚ict then ongoing in Kosovo between Kosovo separatists and the forces of
the Federal Republic of Yugoslavia. Organization for Security and Cooperation in Europe
Mission in Kosovo, Kosovo™s War Crimes Trials: A Review 9 (Sept. 2002). Regulation 64
panels do not have exclusive jurisdiction over such crimes. Many of the crimes within the
jurisdiction of the panels are international crimes that have been enacted in domestic law.
Bert Swart, Internationalized Courts and Substantive Criminal Law, in Internationalized
Criminal Courts 295 (Romano, Nollkaemper, & Kleffner eds., 2004). These include
genocide, crimes against humanity, and war crimes. International judges or prosecutors
can be assigned to these panels upon request by prosecutors, the accused, or defense
counsel in order to ensure judicial impartiality or the proper administration of justice. One
of the motivations for the creation of these hybrid courts in Kosovo is the “problem of
ethnic bias, both actual and perceived [ . . . ].” International Judicial Support, UNMIK “
Police & Justice, available at http://www.unmikonline.org/justice/ijsd.htm.
45. East Timor was admitted (as Timor-Leste) on September 27, 2002, as the 191st mem-
ber of the United Nations (I use the former name in this book). In 1999, following a
plebiscite in which a majority of East Timorese favored the region™s independence from
Indonesia, militia forces supported by the Indonesian army massacred over one thousand
East Timorese civilians and engaged in a widespread campaign of deportation, property
destruction, and sexual violence. The Indonesian administration of East Timor collapsed
following the violence. The United Nations Transitional Administration in East Timor
(“UNTAET”) facilitated East Timor™s transition to independence. Suzanne Katzenstein,
Hybrid Tribunals: Searching for Justice in East Timor, 16 Harv. Hum. Rts. J. 245, 249 (2003).
Courts were organized in East Timor with the assistance of UNTAET. On the Organi-
zation of Courts in East Timor, U.N. Transnational Administration in East Timor, U.N.
Doc. UNTAET/REG/2000/11 (Mar. 6, 2000), available at http://www.un.org/peace/etimor/
untaetR/Reg11.pdf, amended by U.N. Doc. UNTAET Regulation 2001/25 (Sept. 14, 2001),
available at http://www.un.org/peace/etimor/untaetR/2001-25.pdf. These include District
Courts and a Court of Appeals. Id. § 4. One District Court, located in Dili, had two Spe-
cial Panels for Serious Crimes with exclusive jurisdiction over “serious criminal offenses,”
namely genocide, war crimes, crimes against humanity, murder, sexual offenses, and
torture committed between January 1 and October 25, 1999. Id. § 9; On the Establish-
ment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, U.N. Transna-
tional Administration in East Timor, § 1.3, U.N. Doc. UNTAET/REG/2000/15 (June 6,
2000), at http://www.un.org/peace/etimor/untaetR/Reg0015E.pdf [hereinafter UNTAET
Regulation 15]. The applicable law was both international criminal law, including cus-
tomary international law, and national criminal law (predominantly Indonesian law).
UNTAET Regulation 15, §§ 4“9. The substantive international crimes were nearly fully
taken from the Rome Statute. Sylvia de Bertodano, East Timor: Trials and Tribulations,
in Internationalized Criminal Courts 90 (Romano, Nollkaemper, & Kleffner eds.,
2004). Judges were of mixed national and international provenance. UNTAET Regu-
lation 15, § 22. The mandate of the Special Panels ended on May 20, 2005. At that
point, ¬fty-¬ve trials had been completed; eighty-four individuals had been convicted
and three acquitted. Before ceasing operations, the Special Panels only were able to
try about one-quarter of all individuals indicted for serious crimes pertaining to the
East Timorese violence. Those who bear primary responsibility for the violence have
yet to be held to account. See generally Press Release, available at http://www.jsmp.
minihub.org/Press%20Release/2005/May/050524%20End%20SPSC.pdf. The closing of the
Notes to Pages 7“8 217

Special Panels also terminated a number of investigations into human rights violations.
Id. In January 2006, the East Timor Commission for Reception, Truth, and Reconcilia-
tion issued its report. It concluded that Indonesian security forces and the militias they
supported had killed at least 100,000 East Timorese since 1975. Colum Lynch & Ellen
Nakashima, E. Timor Atrocities Detailed, Washington Post (Jan. 21, 2006) at A12.
46. Khmer Rouge Trials, Annex Draft Agreement Between the United Nations and the Royal
Government of Cambodia, G.A. Res. 57/228, U.N. Doc. A/RES/57/228 (May 22, 2003); Law
on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Pros-
ecution of Crimes Committed During the Period of Democratic Kampuchea, available
at http://www.derechos.org/human-rights/seasia/doc/krlaw.html. From 1975 to 1979, the
Khmer Rouge executed, tortured, and starved to death approximately 1.7 million Cambo-
dians. These agreements created Extraordinary Chambers in the Courts of Cambodia for
the prosecution of Khmer Rouge leaders and others most responsible during the period
April 17, 1975, to January 6, 1979, for serious violations of Cambodian penal law, interna-
tional humanitarian law and custom (including genocide), and international conventions
recognized by Cambodia. A number of countries have pledged suf¬cient funds to sustain
the Extraordinary Chambers. Physical plant has been arranged. Judges and prosecutors
have been sworn in. It appears as if prosecutions will begin in 2007.
47. See generally Bassiouni, op. cit., at 11, 588 (arguing that the goals of international criminal
law are an extension of the goals of national criminal law and that international criminal law
lacks its own juridical method); Cassese, op. cit., at 18 (stating that “international criminal
law . . . results from the gradual transposition on to the international level of rules and legal
constructs proper to national criminal law or national trial proceedings”); Tom J. Farer,
Restraining the Barbarians: Can International Criminal Law Help?, 22 Hum. Rts. Q. 90,
91 (2000) (casting the purpose of penal sanctions in cases of international crimes as “largely
coextensive” with the purpose of penal sanctions in national legal orders); Bass, op. cit., at
16“28 (observing that international criminal law emerges from legal liberalism that analo-
gizes to the domestic); Leila Sadat Wexler, The Interpretation of the Nuremberg Principles
by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 Colum. J.
Trans. L. 289, 364 (1994) (noting that the normative aspect of international criminal law is
“international in character,” but that “punishment and procedure is necessarily municipal
in character”).
48. Typically, common law criminal procedure is adversarial in nature, whereas the civil law
tradition is inquisitorial. There has, however, been some convergence among national
legal systems in the West in matters of criminal procedure, including the importation of
adversarialism into archetypically nonadversarial systems. As I examine further in Chap-
ter 5, this convergence has been obtainable owing to underlying philosophical similarities
among Western legal systems, which share a basic liberal legalist predisposition.
49. See Ralph Henham, Some Issues for Sentencing in the International Criminal Court, 52
Int™l & Comp. L.Q. 81 (2003) (describing this harmonization as a pragmatic political
settlement among powerful international actors).
50. Molly Moore, Trial of Milosevic Holds Lessons for Iraqi Prosecutors, Washington Post
(October 18, 2005).
51. Robert Jackson, Opening Speech for the Prosecution at Nuremberg (Nov. 21, 1945), reprinted
in Robert Jackson, The Case Against the Nazi War Criminals 7 (1946).
52. Moore, op. cit.
53. See Mark A. Drumbl, The Expressive Value of Prosecuting and Punishing Terrorists:
Hamdan, the Geneva Conventions, and International Criminal Law, 75 Geo. Wash. L.
Rev. (forthcoming 2007).
54. International law de¬nes a jus cogens norm as a customary rule applicable to all states from
which no derogation is possible.
55. Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, 75
N.Y.U. L. Rev. 1221, 1290“1292 (2000).
218 Notes to Page 9

56. Mark A. Drumbl, Pluralizing International Criminal Justice, 103 Mich. L. Rev. 1295 (2005)
(review essay); see also Meir Dan-Cohen, Responsibility and the Boundaries of the Self, 105
Harv. L. Rev. 959 (1990) (noting that the criminal law™s ethic of individualism seems to
trump the implementation of collective responsibility).
57. “[ . . . ] American criminal law does not always condition criminal liability on a clear show-
ing of personal culpability, as demonstrated by the rules on felony murder, Pinkerton
conspiracies, and liability under the Racketeer In¬‚uenced and Corrupt Organizations Act
(RICO).” Mark Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105
Colum. L. Rev. 1751, 1754 n.9 (2005). But Osiel then notes the “near exclusive reliance of
domestic criminal law on individualistic premises.” Id. at 1841. Osiel goes on to conclude
that “[t]hese doctrines remain controversial, however, precisely because of their arguable
departure from that principle.” Id.; see also id. at 1786 n.155 (noting that Pinkerton liability
is rejected by the U.S. Model Penal Code).
58. Furthermore, regulators at the national level do not rely exclusively on penal sanction
to promote compliance with the law. In many jurisdictions, civil suits play an important
role. This even is the case in places that evidence a preference for the criminalization
of transgressive behavior. International legal institutions overwhelmingly regulate atrocity
through the criminal law instead of other forms that law commonly takes. The ICC envi-
sions a slightly more diversi¬ed approach, insofar as it is joined by a Trust Fund for Victims
that might serve restitutionary and restorative goals, although it is unclear exactly how the
practice of the Fund shall unfold.
59. Payam Akhavan, The International Criminal Court in Context: Mediating the Global and
Local in the Age of Accountability, 97 Am. J. Int™l L. 712, 712 (2003) (noting that the “eupho-
ria” surrounding the ICC™s establishment creates a “sympathetic posture” that “obscures
a more critical discourse on the ef¬cacy of managing massive atrocities in distant lands
within the rari¬ed con¬nes of international legal process”); Jan Klabbers, Just Revenge?
The Deterrence Argument in International Criminal Law, XII Finnish Y.B. Int™l L. 249,
250 (2001) (noting that “we have all fallen under the spell of international criminal law
and the beauty of bringing an end to the culture of impunity”); Fr´ d´ ric M´ gret, Three
ee e
Dangers for the International Criminal Court: A Critical Look at a Consensual Project, XII
Finnish Y.B. Int™l L. 193, 201 (2001) (writing that there is “a ¬‚ow of rhetoric endowing
the ICC with almost mythical powers,” including the management of international affairs
through criminal law). See also generally Antonio Cassese, Re¬‚ections on International
Criminal Justice, 61 Mod. L. Rev. 1, 6 (1998); Jackson Nyamuya Maogoto, War Crimes
and Realpolitik 8 (2004) (“[I]nternational tribunals . . . have become the international
community™s primary response to humanitarian crises . . . ”).
60. Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials
of the Holocaust 257“261 (2001) (insisting that the legal response to crimes as extraor-
dinary as the Holocaust must take the form of a show trial that can serve both the interest
of justice as conventionally conceived and also a broader didactic purpose serving the
interests of history and memory); John M. Czarnetzky & Ronald J. Rychlak, An Empire
of Law? Legalism and the International Criminal Court, 79 Notre Dame L. Rev. 55,
62 (2003) (noting that “faith in the ICC” is “held quite strongly in Western intellectual
61. See generally Benedict Kingsbury, Is the Proliferation of International Courts and Tribunals
a Systemic Problem?, 31 N.Y.U. J. Int™l L. & Pol. 679, 688 (1999) (citing John Bolton, Reject
and Oppose the International Criminal Court, in Toward an International Criminal
Court? 37“38 (Frye ed., 1999)).
62. See William Schabas, Sentencing by International Tribunals: A Human Rights Approach,
7 Duke J. Comp. & Int™l L. 461, 515 (1997); see also Stuart Beresford, Unshackling the
Paper Tiger “ the Sentencing Practices of the Ad Hoc International Criminal Tribunals for
the Former Yugoslavia and Rwanda, 1 Int™l Crim. L. Rev. 33, 89 (2001) (“It is paradoxical,
therefore, that while they were once the champion of prisoners™ rights, the human rights
Notes to Pages 9“11 219

community is now at the forefront and in many cases the instigator of the international
community™s desire to punish.”).
63. Hearing Before the House Comm. on Int™l Relations, 107th Cong., 2nd Sess., at 25 (Feb.
28, 2002) (“The United States remains proud of its leadership in supporting the two ad
hoc tribunals and will continue to do so in the future.”) (statement of Pierre Prosper,
U.S. Ambassador at Large for War Crime Issues); Bass, op. cit., at 24“25 (discussing U.S.
involvement in promoting due process for Nazi war criminals); Juan E. Mendez, Human
Rights Policy in the Age of Terrorism, 46 St. Louis U. L.J. 377, 388 (2002) (reporting that
the ICTY and ICTR “enjoyed decisive support “ of a bipartisan nature “ from the United
States”); Beth K. Dougherty, Combating Impunity: The Charles Taylor Case at the Special
Court for Sierra Leone 1 (unpublished manuscript on ¬le with the author) (“The U.S. is the
largest single donor to the Sierra Leone [Special Tribunal].”). That said, the United States
currently is pressuring the ad hoc tribunals to complete their work by 2008, a prospect
that appears improbable. S.C. Res. 1503, U.N. SCOR, 58th Sess., 4817th mtg., at 1 (2003);
Nancy Amoury Combs, International Decisions, 97 Am. J. Int™l L. 923, 935 (2003).
64. Rupert Cornwell, US Will Deny Aid to Countries that Refuse Court Immunity Deals, Inde-
pendent (U.K.) (Nov. 4, 2003) (reporting of¬cial statements made by then U.S. Under-
secretary of State John Bolton). The United States did not oppose the Security Council™s
referral of the Darfur situation to the ICC. See generally Nora Boustany, A Shift in the
Debate on International Court, Washington Post (Nov. 7, 2006) at A16.
65. Drumbl, Punishment Postgenocide, op. cit.; Mark A. Drumbl, Victimhood in Our Neigh-
borhood: Terrorist Crime, Taliban Guilt, and the Asymmetries of the International Legal
Order, 81 N.C. L. Rev. 1, 75“92, n.30 (2002); Mark A. Drumbl, Rights, Culture, and Crime:
The Role of Rule of Law for the Women of Afghanistan, 42 Colum. J. Transnat™l L. 349
66. Carl Schmitt, The Concept of the Political (Schwab trans., 1996).
67. George F. Kennan, American Diplomacy 99 (1951); see also id. at 95 (arguing the “most
serious fault” of U.S. foreign policy is “a legalistic-moralistic approach to international
problems”). Henry Kissinger frets that an “unprecedented movement has emerged to sub-
mit international politics to judicial procedures . . . [which] risk[s] substituting the tyranny
of judges for that of governments.” Henry A. Kissinger, The Pitfalls of Universal Jurisdiction,
80 Foreign Aff. 86, 86 (July/Aug. 2001).
68. Posner & Yoo, Judicial Independence, op. cit.; Jack Goldsmith & Eric Posner, The Limits
of International Law (2005).
69. Helfer & Slaughter, op. cit. (commenting on Posner & Yoo article); Paul Schiff Berman,
Seeing Beyond the Limits of International Law, 84 Tex. L. Rev. 1265 (2006) (review essay
commenting on Posner & Goldsmith).
70. I de¬ne legitimacy as the condition that arises when authority is exercised in a manner
seen as justi¬ed. Criminology is the study of crime, criminals, and criminal behavior. Vic-
timology is the study of crime victims. Penology is the study of punishment and prisoners.
71. In November 2006, as this book was going to press, the ICTY Appeals Chamber sentenced
Stanislav Gali´ to life “ thereby resulting in the ¬rst actual life sentence. On an earlier
occasion, the Appeals Chamber overturned a life sentence that had been issued by an
ICTY Trial Chamber.
72. Data current to May 2006. Although the ICTR convicts a signi¬cantly larger proportion
of its defendants for genocide than the ICTY or Special Panels (both of which convict
mainly for crimes against humanity), it is not apparent that this fact coherently explains the
ICTR™s more severe sentences. After all, ICTR genocide sentences are longer than genocide
sentences at these other tribunals. In Chapter 6, I also consider two other explanations for
this differential judicial behavior: incorporation of national law and the sheer gravity of
atrocity in Rwanda. The ICTY thus far has issued two genocide convictions. The Special
Panels did not issue a genocide conviction, although the East Timor Court of Appeal
did convict one defendant for genocide contrary to the Portuguese Penal Code following
220 Notes to Pages 11“15

acquittal by the Special Panels for crimes against humanity and sentenced that individual
to twenty-¬ve years™ imprisonment. Prosecutor v. dos Santos, Case No. 16/2001, ¶ 75 (East
Timor Ct. App., July 15, 2003). Insofar as it remains unclear whether genocide actually was
committed in East Timor, the more useful comparison is between the ICTY and ICTR
sentences for genocide.
73. Just like in many in¬‚uential ordinary justice systems, rehabilitation is given little effectivity.
See, e.g., Prosecutor v. Deronji´ , Case No. IT-02-61-A (ICTY Appeals Chamber, July 20,
2005); Prosecutor v. Kordi´ and Cerkez, Case No. IT-95-14/2-A, ¶ 1079 (ICTY Appeals
Chamber, Dec. 17, 2004). On reconciliation, see Prosecutor v. Babi´ , Case No. IT-03-72-
A (ICTY Appeals Chamber, July 18, 2005) (refusing to reduce a sentence even though
¬nding that the Trial Chamber erred in failing to consider the activities of the accused
toward encouraging peace and reconciliation in the region). Although the jurisprudence
displays some movement toward discussing reconciliation as a penological goal, this goal
is poorly operationalized.
74. On transplants generally, see Alan Watson, Legal Transplants: An Approach to Com-
parative Law (2d ed., 1993).
75. Rome Statute, op. cit., art. 17.
76. Complementarity and referrals are only two of many pressure points exerted on national
jurisdictions to mimic the process of international criminal tribunals. Other pressure points
include: instrumental needs to obtain ¬nancing and legitimacy; defensive maneuvers to
shield from criticism; sel¬sh concerns regarding the eliding of actual systemic responsibility
that protects state power and interests and curtails deeper examinations of state responsi-
bility for violence; and jurisdictional goals to receive cases from foreign national courts (for
example, through extradition).
77. Decision of January 17, 2006, on Participation of Victims, ICC Pre-Trial Chamber,
available at http://www.icc-cpi.int/library/cases/ICC-01-04-101 tEnglish-Corr.pdf. Chapter
5 explores con¬‚icts between victim communities in Uganda and the ICC with regard to
ICC investigations and indictments. Prosecutor and victim communities do not necessarily
share complementary interests.
78. Immanuel Kant, The Metaphysical Elements of Justice (Ladd trans., 2d ed., 1999).
For discussion of retribution, see also Michael Moore, The Moral Worth of Retribution, in
Principled Sentencing: Readings on Theory & Policy 150 (von Hirsch & Ashworth
eds., 1998); Joshua Dressler, Hating Criminals: How Can Something that Feels So Good
Be Wrong?, 88 Mich. L. Rev. 1448 (1990) (review essay); Jean Hampton, Correcting Harms
versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. Rev. 1659, 1686 (1992);
Jeffrie G. Murphy, Kant™s Theory of Criminal Punishment, in Retribution, Justice, and
Therapy: Essays in the Philosophy of Law (1979).
79. On the in¬‚uence of international human rights standards on international criminal tri-
bunals, see Allison Marston Danner & Jenny Martinez, Guilty Associations: Joint Criminal
Enterprise, Command Responsibility, and the Development of International Criminal Law,
93 Cal. L. Rev. 75 (2005).
80. This broad discretion recently was reaf¬rmed in Prosecutor v. Semanza, Case No. ICTR-
97-20-A, ¶ 312 (ICTR Appeals Chamber, May 20, 2005) (“Trial Chambers are vested with
broad discretion to tailor the penalties to ¬t the individual circumstances of the accused
and the gravity of the crime.”); Prosecutor v. Kvoˇ ka et al., Case No. IT-98-30/1-A, ¶ 668
(ICTY Appeals Chamber, February 28, 2005) (recognizing that there is “no de¬nitive list
of sentencing guidelines”), ¶ 669 (“Sentencing is essentially a discretionary process on
the part of a Trial Chamber.”), ¶ 715 (“[T]he Trial Chamber has discretion as regards the
factors it considers in mitigation, the weight it attaches to a particular mitigating factor,
and the discounting of a particular mitigating factor.”)
81. Osiel, The Banality of Good, op. cit., at 1804“1829 (positing differing incentives faced by
international and national prosecutors in bringing to book perpetrators of extraordinary
international crime).
Notes to Pages 16“24 221

82. Peter Uvin & Charles Mironko, Western and Local Approaches to Justice in Rwanda, 9
Global Governance 219, 223 (2003); Timothy Longman, The Domestic Impact of the Inter-
national Criminal Tribunal for Rwanda, in International War Crimes Trials: Making
a Difference? 33, 37 (Ratner & Bischoff eds., 2004).
Prosecutor v. Kordi´ and Cerkez, IT-95-14/2-A, ¶ 1076 (ICTY Appeals Chamber, Dec. 17,
83. c
2004) (“both individual [n.b. speci¬c] and general deterrence serve as important goals of
sentencing” and also discussing reintegrative deterrence).
84. See, e.g., William W. Burke-White, Complementarity in Practice: The International Crimi-
nal Court as Part of a System of Multi-level Global Governance in the Democratic Republic
of Congo, 18 Leiden J. Int™l L. 557 (2005) (noting also the methodological limitations to
his careful research and the impossibility of turning to these data to provide statistically
meaningful evidence that the ICC has direct deterrent effect).
85. Diane Marie Amann, Message as Medium in Sierra Leone, 7 ILSA J. Int™l & Comp. L.
237, 238 (2001).
Prosecutor v. Kordi´ and Cerkez, IT-95-14/2-A, ¶¶ 1080“1082 (ICTY Appeals Chamber, Dec.
86. c
17, 2004) (referring to the “educational function of a sentence” that “aims at conveying
the message that rules of humanitarian international law have to be obeyed under all
circumstances . . . [and] seeks to internalize these rules and the moral demands they are
based on in the minds of the public”; also noting that: “The unfortunate legacy of wars
shows that until today many perpetrators believe that violations of binding international
norms can be lawfully committed, because they are ¬ghting for a ˜just cause™. Those people
have to understand that international law is applicable to everybody, in particular during
times of war”).
87. Douglas, op. cit., at 2“5.
88. The Confederation of Serbia and Montenegro was dissolved in May 2006 when, following
a plebiscite, Montenegro narrowly voted for independence. Serbia now is the successor
state to Serbia and Montenegro.
89. This term is from Anthony Giddens, The Third Way: The Renewal of Social Democ-
racy 66 (1998). Giddens writes within the starkly different context of reforming social
democracy, speci¬cally in Great Britain. He does include a chapter on the cosmopolitan
nation and cultural pluralism, in which the term cosmopolitan pluralism is not developed.

2. conformity and deviance
1. M. Cherif Bassiouni, Introduction to International Criminal Law 585 (2003).
2. Id. at 583.
3. See, e.g., 15 Law Reports of Trials of War Criminals 1, 197 (1949) (commenting with
regard to World War II atrocity proceedings that “[i]n general the rules of evidence applied
in War Crime trials are less technical than those governing the proceedings of courts
conducting trials in accordance with the ordinary criminal laws of states”). In addition,
international evidence law also represents a harmonization of ideal-type common law and
civil law approaches to admissibility.
4. Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding
Transitional Justice, 15 Harv. Hum. Rts. J. 39, 41 n.15 (2002). See also Martti Koskenniemi,
International Law and Hegemony: A Recon¬guration, 17 Cambridge Review of Inter-
national Affairs 197, 210 (2004) (noting that the ICTY is ideologically dependent on its
Western supporters).
5. Hersch Lauterpacht, Private Law Sources and Analogies of International Law
6. Sanford Levinson, Responsibility for War Crimes, 2 Phil. & Pub. Aff. 244, 245 (1973)
(“There seems to be an inverse relationship between the number of individuals
involved . . . and the ef¬cacy of traditional legal analysis as a mode of comprehending
it . . . ”).
222 Notes to Pages 24“27

7. Andreas L. Paulus, Legalist Groundwork for the International Criminal Court: Commen-
taries on the Statute of the International Criminal Court, 14 Eur. J. Int™l L. 843, 859
(2003) (citing Otto Triffterer, Preliminary Remarks: The Permanent International Criminal
Court “ Ideal and Reality, in Commentary on the Rome Statute of the International
Criminal Court 17 (Triffterer ed., 1999)).
8. Or, in the matter of sentencing, the convict.
9. This ill ¬t is of particular concern insofar as the methods of international criminal pro-
cess, through mechanisms such as primacy, referrals, and complementarity, now are being
assimilated into the fabric of the legal orders of communities that do not share a predispo-
sition toward liberal legalism.
10. Moreover, it is possible to be both a perpetrator and victim (for example, in the case of child
soldiers) or a perpetrator and a rescuer (for example, Hutu killers in Rwanda occasionally
saved a favored Tutsi).
11. Richard J. Goldstone, The International Tribunal for the Former Yugoslavia: A Case Study
in Security Council Action, 6 Duke J. Comp. & Int™l L. 5, 7 (1995).
12. Lower-level offenders have been prosecuted by international tribunals for a number of
reasons, including strategic concerns such as ability to obtain custody, lower-level offenders™
willingness to implicate others, and availability of (or access to) inculpating evidence.
Prosecutor v. Krsti´ , Case No. IT-98-33-T, ¶ 709 (ICTY Trial Chamber, Aug. 2, 2001)
13. c
(conclusion left undisturbed on appeal); Prosecutor v. Plavˇi´ , Case No. IT-00-39 & 40/1-
S, ¶ 134 (ICTY Trial Chamber, Feb. 27, 2003) (sentence of eleven years for Bosnian Serb
leader); Prosecutor v. Kvoˇ ka et al., Case No. IT-98-30/1T, ¶¶ 752-67 (ICTY Trial Chamber,
November 2, 2001) (more severe sentence issued to lower-ranked offender in the Omarska
camp crimes and lesser sentences to those occupying supervisory roles).
14. Several ex-of¬cials of Gen. Pinochet™s secret police, including DINA and its successor,
have been prosecuted and convicted in Chile. They received sentences ranging from life
imprisonment to three years. Pinochet died on December 10, 2006, as this book went to
15. A Spanish court sentenced Adolfo Scilingo, a former Argentine naval of¬cer, to 640 years
in prison for crimes against humanity, torture, and terrorism for his involvement with death
¬‚ights. 640 years for Argentine in Spain, CNN (April 19, 2005) (document on ¬le with the
author). Under Spanish law, thirty years is the maximum time that Scilingo can serve. Id.
16. Special Report: Establishing the Rule of Law in Iraq, U.S. Inst. of Peace 8 (Apr. 2003).
17. David Luban, Intervention and Civilization: Some Unhappy Lessons of the Kosovo War, in
Global Justice and Transnational Politics 107 (De Greiff & Cronin eds., 2002).
18. Luis Salas, Reconstruction of Public Security and Justice in Post Con¬‚ict Societies: The
Rwandan Experience, 26 Int™l J. Comp. & Applied Crim. Just. 165, 175 (2002). “Many of
the victims died because their bodies were so badly torn after repeated rapes in which sharp-
ened sticks, gun barrels or boiling water often replaced penises. . . . Others died because
their attackers tried to gouge out their genitalia or otherwise sexually mutilate them with
machetes after raping them.” Id.
19. Mahmood Mamdani, When Victims Become Killers 18 (2001). See also Amy Chua,
World on Fire 170 (2004) (noting that “a majority of the Rwandan people supported,
indeed personally conducted, the unspeakable atrocities”).
20. Organic Law establishing the organization, competence and functioning of Gacaca Courts
charged with prosecuting and trying the perpetrators of the crime of genocide and other
crimes against humanity, committed between October 1st, 1990 and December 31, 1994,
pmbl, Nos. 40/2000 (January 26, 2001) and 33/2001 (June 22, 2001).
21. Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the “Rule of Law,” 101
Mich. L. Rev. 2275, 2327 (Hutu leaders “succeeded in dramatically shifting the normative
commitment of several million Rwandan Hutus”). See also Jos´ E. Alvarez, Crimes of
States/Crimes of Hate: Lessons from Rwanda, 24 Yale J. Int™l L. 365, 368 (1999) (positing
that implementation of genocide in Rwanda was a communal crime of hate).
Notes to Pages 27“29 223

22. Judith Shklar, Legalism: Law, Morals, and Political Trials 172 (rev. ed., 1986).
23. H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 114
24. Patrick Burgess, Justice and Reconciliation in East Timor: The Relationship between the
Commission for Reception, Truth and Reconciliation and the Courts, 15 Crim. L. F. 135, 147
(2004). There was an embedded group element to the East Timorese violence. See, e.g.,
Prosecutor v. Fernandez, Case No. 02.C.G.2000, 4 (Dili Dist. Ct. Serious Crimes Spec.
Panel, Mar. 1, 2000, sentence reduced by East Timor Ct. App., October 29, 2001) (“the
victim was tied, beaten and suffering and [ . . . ] the crowd was shouting ˜kill him, kill him™ ”)
(case prosecuted as ordinary murder but revealing communal nature of violence).
25. Iris Chang, The Rape of Nanking: The Forgotten Holocaust of World War II (1997).
26. BBC, Srebrenica massacre list compiled, available at http://news.bbc.co.uk/2/hi/europe/
4310310.stm (last visited June 6, 2006).
27. Id.
28. Peter A. French, Unchosen Evil and Moral Responsibility, in War Crimes and Collective
Wrongdoing 29, 32“34 (Joki´ ed., 2001).
29. Id. at 32.
30. Id. at 33.
31. Id.
32. Id. (noting also that perpetrators “are described as brimming with righteousness while
carrying out the atrocities of ethnic cleansing”). See also Donal Coffey, Seminar Paper
(Washington & Lee University, Fall 2004) (on ¬le with the author) (theoretically modeling
in¬‚uences and incentives faced by individual perpetrators).
33. Daniel Jonah Goldhagen, Hitler™s Willing Executioners: Ordinary Germans and
the Holocaust (1996).
34. Id. at 9, 14, 450“454.
35. James Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass
Killing 39 (2002) (describing the Goldhagen thesis).
36. Goldhagen, op. cit., at 480 (Appendix 3: foreword to the German edition).
37. For criticism, see Waller, op. cit., at 39“49. French makes a similar argument to Goldhagen
in the Serbian case. He contends that perpetrators of mass atrocity in the Balkans have been
“immersed in their culture of ethnic hatred, baptized in it from birth. It is an unquestioned,
unexamined part of their lives.” French, op. cit., at 42. See also generally Michael A. Sells,
The Bridge Betrayed: Religion and Genocide in Bosnia (1996).
38. Goldhagen, op. cit., at 478 (Appendix 3: foreword to the German edition).
39. Id.
40. Id. at 482. For supplemental discussion, see also David Cooper, Collective Responsibility,
“Moral Luck,” and Reconciliation, in War Crimes and Collective Wrongdoing 205,
208 (Joki´ ed., 2001).
41. Goldhagen, op. cit., at 481 (Appendix 3: foreword to the German edition).
42. Alix Christie, Guarding the Truth, Washington Post Magazine (Feb. 26, 2006) at W08.
There were nearly one million men in the Waffen-SS alone.
43. Id. The White Rose, a resistance group that operated in Munich during World War II,
distributed pamphlets throughout German universities until its leaders were caught and
executed. White Rose Lea¬‚et II made explicit reference, inter alia, to the murder of Jews
in Poland. It then inquired: “Why are we telling you these things, since you are fully aware
of them “ or if not of these, then of other equally grave crimes committed by this frightful
sub-humanity? . . . Why do the German people behave so apathetically in the face of all
these abominable crimes . . . ?” The White Rose: The Resistance by Students against
Hitler 45“46 (1991).
44. Laurel E. Fletcher & Harvey M. Weinstein, Violence and Social Repair: Rethinking the
Contribution of Justice to Reconciliation, 24 Hum. Rts. Q. 573, 605 (2002) (citing social
science and psychological research).
224 Notes to Pages 29“35

45. Id. at 607“610.
46. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil 252 (1965).
47. An East Timor panel recognized this nuance but then sentenced the individual perpetrator
(a head of a militia contingent) to seven years™ imprisonment for abduction and murder
as a crime against humanity. Prosecutor v. Agustinho Atolan, Case No. 3/2003, ¶ 23 (Dili
Dist. Ct. Serious Crimes Spec. Panel, June 9, 2003).
48. Immi Tallgren, The Sensibility and Sense of International Criminal Law, 13 Eur. J. Int™l
L. 561, 573 (2002).
49. Discussed in Waller, op. cit., at 30“32.
50. Id. at 87. See also id. at xiii (noting how “[a]s collectives, we engage in acts of extraordinary
evil, with apparent moral calm and intensity of supposed purpose, which could only be
described as insane were they committed by an individual”).
51. See, e.g., Tim Judah, The Serbs 233 (1997) (reporting on sadists and psychopaths).
52. Waller, op. cit., at 70.
53. Douglas M. Kelley, 22 Cells in Nuremberg: A Psychiatrist Examines the Nazi War
Criminals (1947). See also discussion in Waller, op. cit., at 61“71 (subsequent interpretation
of the initial data compiled at Nuremberg).
54. Waller, op. cit., at 63. See also id. at 66 (summarizing extensive research by a group
of psychologists as demonstrating that the leaders of Nazi Germany were “for the most
part, extremely able, intelligent, high-functioning people. [ . . . ] There was no evidence of
thought disorder or psychiatric condition in most of these men.”).
55. Id. at 67. See also Christopher R. Browning, Ordinary Men: Reserve Police Battalion
101 and the Final Solution in Poland (1992).
56. Stanley Milgram, Behavioral Study of Obedience, 67 J. of Abnormal and Soc. Psych. 371
(1963); Stanley Milgram, Obedience to Authority: An Experimental View (1974).
57. Stanley Milgram, Obedience to Authority, op. cit., at 133, 143“147.
58. Waller, op. cit., at 151, 167.
59. Peg Birmingham, Holes of Oblivion: The Banality of Radical Evil, 18 Hypatia 80, 84 (2003)
(reproducing text from a 1951 letter from Arendt to Jaspers).
60. See also Tallgren, op. cit., at 575.
61. It is often “second-hand and speculative, based upon imagination, others™ reports and
hostile encounters.” David Downes & Paul Rock, Understanding Deviance: A Guide
to the Sociology of Crime and Rule Breaking 1, 23“24 (1998).
62. Id. at 26.
63. Id.
64. Id. at 27.
65. Id. at 149 (citing Albert K. Cohen, Delinquent Boys: The Culture of the Gang (1955)).
66. Travis Hirschi, Causes of Delinquency 16 (1969).
67. Downes & Rock, op. cit., at 240.
68. Larry May, Crimes Against Humanity 99, 106 (2005).
69. See Robert Cryer, Prosecuting International Crimes: Selectivity and the Interna-
tional Criminal Law Regime 268 (2005) (“While a state may be fairly con¬dent that its
of¬cials will not commit genocide or crimes against humanity, the same cannot be said for
war crimes, which are an omnipresent danger in times of armed con¬‚ict.”).
70. Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9, art. 124
[hereinafter Rome Statute]. Only France and Colombia have availed themselves of this
opportunity. Article 124 shall be reviewed at the ¬rst Review Conference in 2009.
71. Stathis N. Kalyvas, The Ontology of “Political Violence”: Action and Identity in Civil Wars,
1:3 Perspectives on Politics 475 (2003).
72. Marko Milanovi´ , State Responsibility for Genocide, 17 Eur. J. Int™l L. 553, 603 (2006)
(“Genocide is indeed a state crime: there is not a single instance of genocide in recorded
history which was not committed either directly by a state, or by a state through one of its
Notes to Pages 35“37 225

73. Eric D. Weitz, A Century of Genocide: Utopias of Race and Nation (2003) (arguing
that genocide is organized by states but is operationalized only with widespread popular
participation). Nor can international criminal courts punish corporations.
74. George P. Fletcher, Collective Guilt and Collective Punishment, 5 Theoretical Inquiries
in Law 163 (2004).
75. Cherie Booth, Prospects and Issues for the International Criminal Court, in From Nurem-
berg to The Hague 184 (Sands ed., 2003). I discuss the collective responsibility notion in
my review essay, Pluralizing International Criminal Justice, 103 Mich. L. Rev. 1295, 1317
(2005), and the short section that follows draws from this work.
Prosecutor v. Momir Nikoli´ , Case. No. IT-02-60/1-S, ¶ 60 (ICTY Trial Chamber, December
76. c
2, 2003) (emphasis in original).
77. Philip Allot, The Health of Nations 67 (2002).
78. Fletcher & Weinstein, op. cit., at 580.
79. Karl Jaspers, The Question of German Guilt (Ashton trans., 1978) (1947).
80. Id. at 31“32, 73“74.
81. Lyn S. Graybill, Truth & Reconciliation in South Africa 113 (2002) (discussing the
work of Jaspers).
82. Id. (citing Jaspers).
83. Fletcher & Weinstein, op. cit., at 604.
84. Laurel E. Fletcher, From Indifference to Engagement: Bystanders and International Crim-
inal Justice, 26 Mich. J. Int™l L. 1013, 1034“1035 (2005). See also id. at 1070 (referring to
the ICTY™s Simi´ judgment as locating “the cause of the mass and systemic persecution
in the choices made by individual criminals. Simi´ and his identi¬ed cronies are liable
and not the collective Serb population: bystanders witness the evil ˜innocently™ from the
85. Robert Meister, Human Rights and the Politics of Victimhood, 16 Ethics & International
Affairs 91, 107 (Oct. 2002).
86. See, e.g., Peter E. Quint, The Border Guard Trials and the East German Past “ Seven Argu-
ments, 48 Am. J. Comp. L. 541, 542 (2000) (analyzing whether the principle that a person may
not be convicted of a criminal offense unless that offense was established by law at the time
the act was committed ought to apply to the East German border guards who used deadly
force to prevent citizens of East Germany from escaping into West Germany); Universal
Declaration of Human Rights art. 11(2) (adopted and proclaimed by General Assembly
Resolution 217 A (III) Dec. 10, 1948), available at http://www.un.org/Overview/rights.html.
87. May, op. cit., at 161. May describes this defense as follows: “For guilt is normally assigned
only when there is a difference among people “ one person intentionally acting wrongly
where everyone, or nearly everyone, else is acting rightly “ where the perpetrator is a
monster and everyone else is a ˜normal™ member of society.” Id.
88. One example is the conviction in December 2005 of Dutch businessman Frans van
Anraat by the Hague District Court (a national court in the Netherlands) for complic-
ity in war crimes committed in Iraq. Van Anraat was sentenced to ¬fteen years™ impris-
onment. Van Anraat had supplied raw materials to the Iraqi government that, in turn,
were used for the development of mustard gas and chemical weapons. These chemical
weapons were used to attack the Kurdish population of Halabja in 1998. The Hague
District Court deemed these attacks to rise to the level of genocide (van Anraat was acquit-
ted of genocide insofar as the Hague District Court did not ¬nd suf¬cient evidence of
his knowledge of the Iraqi government™s genocidal intent). An estimated ¬ve thousand
people perished in the Halabja violence. The van Anraat case bears some parallels to a
prosecution, also initiated in the Netherlands, against Guus van Kouwenhoven, a Dutch
arms dealer associated with Charles Taylor, for war crimes and gun smuggling. Taylor™s
Dutch Ally Accused of War Crimes, Business Day (South Africa) (April 25, 2006), available
at http://www.businessday.co.za/PrintFriendly.aspx?ID=BD4A190341 (visited on April 27,
2006). The van Anraat punishment condemns and the Kouwenhoven prosecution relates a
226 Notes to Pages 37“39

broader story of collaborators, business interests, and transnational networks that facilitate
and ¬nance atrocity.
89. See Fletcher & Weinstein, op. cit., at 580, 601.
90. Mark Osiel, The Banality of Good: Aligning Incentives Against Mass Atrocity, 105 Colum.
L. Rev. 1751, 1754 n.9, 1786 n.155 (2005).
91. Drumbl, Pluralizing International Criminal Justice, op. cit., at 1304“1305. It is by no means
an exclusive principle.
92. “Crimes against international law are committed by men, not by abstract entities, and
only by punishing individuals who commit such crimes can the provisions of international
law be enforced.” Andrew Clapham, Issues of complexity, complicity and complementarity:
from the Nuremberg Trials to the dawn of the new International Criminal Court, in From
Nuremberg to The Hague 32“33 (Sands ed., 2003) (citing Trial of German Major War
Criminals (Goering et al.), International Military Tribunal (Nuremberg), Judgment and
Sentence, 30 Sept. & 1 Oct., 1946, p. 40).
See Prosecutor v. Dragan Nikoli´ , Case No. IT-94-2-S, ¶ 60 (ICTY Trial Chamber, Dec.
93. c
18, 2003) (elucidating the predicate of avoiding collective guilt within the context of sen-
tencing). Another example is the controversy over the notion of state crimes within the law
of state responsibility that roiled members of the International Law Commission.
94. Norman Cigar & Paul Williams, Indictment at the Hague: The Miloˇ evic Regime s´
and the Crimes of the Balkan War 30 n.7 (2002).
95. Molly Moore, Trial of Milosevic Holds Lessons for Iraqi Prosecutors, Washington Post
(October 18, 2005).
96. Id. See also Patricia M. Wald, The International Criminal Tribunal for the former Yugoslavia
Comes of Age: Some Observations of Day to Day Dilemmas of an International Court, 5
Wash. U.J.L. & Pol™y 87, 95 (2001) (“[A] fair trial by capable judges is indispensable to the
Tribunal™s reputation as a legitimate vehicle of international accountability.”).
97. See, e.g., Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-A (ICTR Appeals Chamber,
May 23, 2005) (decreasing the defendant™s original multiple sentences (two life sentences
and ¬fteen years) to a single sentence of forty-¬ve years, less time served in detention,
owing to Appeals Chamber™s proprio motu ¬nding of “serious” violations of Kajelijeli™s
fundamental rights during his arrest and detention).
98. A joint criminal enterprise is an understanding or arrangement amounting to an agreement
between two or more persons that they will commit a crime; the understanding or arrange-
ment need not be express, and its existence may be inferred from all the circumstances;
it need not have been reached at any time before the crime is committed. Prosecutor v.
Krnojelac, IT-97-25-T, ¶ 80 (ICTY Trial Chamber, March 15, 2002); Prosecutor v. Babi´ , c
Case No. IT-03-72-A, ¶ 27 (ICTY Appeals Chamber, July 18, 2005) (describing the third
prong of JCE (“extended prong”)). For another ICTY JCE conviction see Prosecutor v.
Staki´ , Case No. IT-97-24-A, ¶ 402 (ICTY Appeals Chamber, March 22, 2006). The Rome
Statute “common purpose” provision opens the door for the ICC to entertain a theory
of vicarious liability. See Rome Statute, op. cit., art. 25. The East Timor Special Panels
have availed themselves of both joint criminal enterprise and common purpose liability.
See, e.g., Prosecutor v. Barros and Mendonca, Case No. 01/2004 (Dili Dist. Ct. Serious
Crimes Spec. Panel, May 12, 2005, aff™d East Timor Ct. App.); Prosecutor v. De Deus, Case
No. 2A/2004 (Dili Dist. Ct. Serious Crimes Spec. Panel, April 12, 2005). For discussion of
joint criminal enterprise generally, see Allison Marston Danner & Jenny Martinez, Guilty
Associations, Joint Criminal Enterprise, Command Responsibility, and the Development of
International Criminal Law, 93 Calif. L. Rev. 75 (2005).
99. Statute of the ICTY, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 29, art. 7(3)
(1993); Statute of the ICTR, U.N. SCOR, 49th Sess., 3453d mtg. at 15, U.N. Doc. S/Res/955,
art. 6(3) (1994); Rome Statute, op. cit., art. 28(a)(i) (basing command responsibility on,
inter alia, a ¬nding that the “military commander or person either knew or, owing to the
circumstances at the time, should have known that the forces were committing or about
Notes to Page 39 227

to commit such crimes”), art. 28(b)(i) (envisioning a higher threshold for superior“
subordinate relationships outside the military context, according to which responsibility
ensues where the superior either knew or consciously disregarded information that clearly
indicated that the subordinate was committing or about to commit the crimes); Prosecutor
v. Musema, Case No. ICTR-96-13-T, ¶ 396 (ICTR Appeals Chamber, Nov. 16, 2001) (con-
victing director of a tea factory of genocide). The Charles Taylor indictment incorporates
theories of command responsibility and joint criminal enterprise.
100. Prosecutor v. Krsti´ , Case No. IT-98-33-A (ICTY Appeals Chamber, Apr. 19, 2004) (distin-
guishing between joint criminal enterprise and aiding and abetting and substituting on the
facts a conviction for aiding and abetting for one based on perpetration of a joint criminal
enterprise); Prosecutor v. Blaˇki´ , Case No. IT-95-14-A, ¶ 48 (ICTY Appeals Chamber,
July 29, 2004) (“[O]ne of the requirements of the actus reus of aiding and abetting is that
the support of the aider and abettor has a substantial effect upon the perpetration of the
crime.”); Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I (ICTR Trial Chamber,
July 15, 2004); Prosecutor v. Rutaganira, Case No. ICTR-96-3 (ICTR Trial Chamber,
March 14, 2005) (convicting as part of a plea agreement for extermination as a crime
against humanity based on aiding and abetting by omission); Prosecutor v. Blagojevi´ and c
Joki´ , Case No. IT-02-60-T (ICTY Trial Chamber, January 17, 2005) (convicting ¬rst defen-
dant for aiding and abetting complicity to commit genocide, crimes against humanity, and
war crimes and second defendant for aiding and abetting extermination and persecution
as a crime against humanity).
101. Statute of the ICTR, op. cit., art. 2(3)(b); Statute of the ICTY, op. cit., art. 4(3)(b); Prosecutor
v. Niyitegeka, Case No. ICTR-96-14-A (ICTR Appeals Chamber, July 9, 2004) (convict-
ing defendant on a number of charges, including conspiracy to commit genocide, and
sentencing him to life imprisonment); Prosecutor v. Nahimana, Case No. ICTR-99-52-
T, ¶¶ 1043“1048 (ICTR Trial Chamber, Dec. 3, 2003) (concluding that conspiracy to
commit genocide requires the existence of an agreement, but this need not be formal or
express and can be inferred from circumstantial evidence; a conspiracy to commit geno-
cide could be comprised of individuals acting in an institutional capacity even in the
absence of personal links with each other). The Rome Statute does not clearly grant the
ICC authority to prosecute conspiracy or make use of conspiracy as an alternate theory to
aiding or abetting to link a particular actor to the substantive offense, but does contem-
plate “common purpose” liability. Conspiracy played a controversial and largely ineffective
role in the Nuremberg trials. Richard Overy, The Nuremberg Trials: International Law in
the Making, in From Nuremberg to The Hague 28 (Sands ed., 2003). The IMT ruled
that only conspiracy to commit acts of aggressive war could be prosecuted as an indepen-
dent crime; conspiracy to commit war crimes and crimes against humanity could not be
independently prosecuted. Moreover, the IMT refused to embrace the U.S. Pinkerton doc-
trine. In contemporary settings, there is considerable doubt whether conspiracy to commit
war crimes is an independent crime under the law of war. The debate between Justices
Stevens (writing for a plurality) and Thomas on the United States Supreme Court on this
point is instructive. See Hamdan v. Rumsfeld, 548 U.S. (2006) (slip op.), available at
http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf. (Justice Stevens™ slip op. p. 46)
(Justice Stevens holding that conspiracy to commit war crimes is not a recognized violation
of the law of war prosecutable by a law of war military commission, and Justice Thomas
dissenting). One U.S. District Court has since adopted Justice Stevens™ reasoning to rule
that conspiracy to commit crimes against humanity or war crimes is not actionable under
the law of nations as understood for the purposes of the Alien Tort Claims Act. See Presbyte-
rian Church v. Talisman, 01 Civ. 9882 (S.D.N.Y, 2006) (also holding also that international
law does not recognize a doctrine of conspiratorial liability that would extend to activity
encompassed by the U.S. Pinkerton principle).
102. Association de malfaiteurs originates in regular domestic law (e.g., Articles 282 and 283
of the Rwandan Penal Code), but has been applied to extraordinary international crimes
228 Notes to Pages 39“42

with some regularity in Rwanda. It embodies a lower threshold than complicity (which
requires that the act be indispensable to the commission of the crime). An example of
individual criminal responsibility for association de malfaiteurs involves a conviction of
a perpetrator who was present and exercised some supervisory functions at a roadblock
in Rwanda where criminal attacks allegedly occurred and who was unable to prove that
his presence was coerced. Minist` re Public v. Twizeyimana (June 20, 2000, ch. sp. 1 i` re e
instance Kigali), RMP 8020/S12/RE/MAITRE, RP 060/CS/KIG, p. 10. To convict for geno-
cide based on this theory, it must be shown that the group was created for eliminationist
purposes. A group that arose spontaneously without a common intention (attroupement
spontan´ sans organisation et sans intention commune) “ including a group, in which
some members wanted to kill and others did not, that assembled out of curiosity to
observe what was occurring after hearing a clamor “ does not meet this standard. Min-
ist` re Public v. Sendakiza et al. (Nov. 11, 1999, ch. sp. 1 i` re instance Rushashi), RMP
110.498/S1/NK.A/NT.M/N.G., RP 032/S1/99/CH.SP/Rshi. The association de malfaiteurs
standard runs below that of accomplice. For a de¬nition of accomplice in domestic Rwan-
dan law applicable to genocide prosecutions, see Organic Law No. 8/96 on the organization
of prosecutions for offenses constituting the crime of genocide or crimes against humanity
committed since 1 October 1990 (Journal Of¬ciel No. 17 du Sept. 1, 1996), art. 53 (de¬n-
ing accomplice as “the person who has, by any means, provided assistance to commit
offenses [ . . . ]”).
103. See, e.g., William A. Schabas, Mens Rea and the International Criminal Tribunal for the
Former Yugoslavia, 37 New England L. Rev. 1019 (2003); Danner & Martinez, op. cit.
104. Prosecutor v. Blaˇki´ , Case No. IT-95-14-A (ICTY Appeals Chamber, July 29, 2004).
Id. ¶¶ 41, 42, 62, 166.

106. Prosecutor v. Brdanin, Case No. IT-99-36-T (ICTY Trial Chamber, Sept. 1, 2004).
107. Trial of Ulrich Greifelt and Others (United States Military Tribunal, Nuremberg, 1947“
1948), reprinted at 8 Law Reports of Trials of War Criminals 1, 50 (1949) (notes on the
case, citing judgment of IMT).
108. Id. at 52. No such formal amendment to Control Council Law No. 10 was made, because
it was believed that judges would exercise their sentencing discretion in light of the IMT
recommendation. Id. at 53.
109. Id. at 50.
110. Id. at 58, 62.
111. Makau Mutua, Savages, Victims, and Saviors: the Metaphor of Human Rights, 42 Harv.
Int™l L. J. 201 (2001).
112. Waller, op. cit., at 244.
113. Translated: He who killed did not see that he was killing a man; in light of the lessons given
by the former authorities, he thought he was killing an animal. Rapport d™observation,
Les Juridictions Gacaca 3 (6 juillet 2003), Cellule de Karukamba, ASF-Belgium. In this
session, a list of accused was drawn up.
114. Cherif Bassiouni, The Protection of “Collective Victims” in International Law, in Inter-
national Protection of Victims 181, 183 (Bassiouni ed., 1988) (describing victims of
mass atrocity as groups or groupings of individuals linked by special bonds, considerations,
factors or circumstances that, for these very reasons, make them the target of victimization).
115. Ernesto Kiza, Corene Rathgeber, & Holger-C. Rohne, Victims of War: War-
Victimization and Victims™ Attitudes towards Addressing Atrocities (2005) (draft
on ¬le with the author, cited with permission of Holger-C. Rohne); report published as
Victims of War “ An Empirical Study on War-Victimization and Victims™ Attitudes
towards Addressing Atrocities (Hamburger Institut fur Sozialforschung, 2006). The
draft report I discuss includes data from Darfur (Sudan) as a case study that did not appear
in the ¬nal report.
116. Afghanistan, Bosnia and Herzegovina, Cambodia, Croatia, Democratic Republic of
Congo, Israel, Kosovo, Macedonia, Palestine, Philippines, and the Sudan. Id. at 60.
Notes to Pages 42“46 229

117. The research does not exclude ordinary crimes committed during periods of con¬‚ict.
This suggests a limitation to the utility of this study to the discussion of a victimology of
extraordinary international criminality, although this limitation certainly does not dismiss
the value of the insights that can be gleaned from this important research.
118. Kiza et al., op. cit., at 90. A 2005 study conducted by the International Center for Transitional
Justice and the Human Rights Center (Berkeley) in Uganda found that respondents (mostly
victims) supported integrated transitional justice mechanisms that included trials, a truth
commission and reparations, and also sanctions that included imprisonment, confessions,
and compensation. See Forgotten Voices: A Population-Based Survey on Attitudes
about Peace and Justice in Northern Uganda (2005).
119. Kiza et al., op. cit., at 154“155.
120. Id. at 89, 158. See also id. at 41 (corroborating International Committee of the Red Cross
research for Afghanistan that showed a striking preference in favor of domestic, even
customary, law over international law, with only a small minority favoring prosecution
based on international law).
121. Id. at 89.
122. Id. at 91.
123. Id. at 102“103.
124. Id. at 103.
125. Fletcher, From Indifference to Engagement, op. cit., at 1022“1023.
126. Kiza et al., op. cit., at 104, 158. It also suggests that victims may have different responses
depending on the nature of the involvement of the accused. The research suggests, prelim-
inarily, a strati¬cation of responses, diverse in nature, in which modality of accountability
is connected to category of offender. Id at 107.
127. Id. at 113.
128. Id. at 113“114.
129. Id. at 91.
130. A Call for Justice (2005), available at http://www.aihrc.org.af/rep detail.htm. Once
again, criminal trials formed only part of a broad understanding of justice, with consider-
able support for lustration, truth-seeking, institutional reform, and reparations. Whereas
90 percent of the six thousand respondents favored lustration/vetting of perpetrators from
governmental positions, only 40 percent favored the prosecution of notorious perpetrators.
131. See Mark Osiel, Modes of Participation in Mass Atrocity, 38 Cornell Int™l L. J. 793, 805
(2005) (discussing examples of Guatemala, Austria, South Africa, and Israeli persecutions
of Jewish collaborators).
132. The ICC subjects victim input to judicial direction and contingent upon being “conducted
˜in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair
and impartial trial.™ ” See International Criminal Court, Victims and Witnesses, available
at http://www.icc-cpi.int/victimsissues.html.
133. Ralph Henham, Some Issues for Sentencing in the International Criminal Court, 52 Int™l &
Comp. L.Q. 81, 85 (2003); Rolf Einar Fife, Article 77: Applicable Penalties, in Commentary
on the Rome Statute of the International Criminal Court 985, 991 (Triffterer ed.,
1999). Minimum sentences ultimately were disfavored.

3. punishment of international crimes in international
criminal tribunals
1. Prosecutor v. Erdemovi´ , Case No. IT-96-22, ¶ 59 (ICTY Trial Chamber, Nov. 29, 1996).
2. Charter of the International Military Tribunal, 59 Stat. 1544, 82 U.N.T.S. 279, art. 27 (1945).
3. 15 Law Reports of Trials of War Criminals 1, 200“202 (1949). In addition, the discussion
of defense pleas brie¬‚y mentions facts to consider in mitigation.
4. See, e.g., Vol. 22, Trial of the Major War Criminals Before the International
Military Tribunal 524, 527 (1946).
230 Notes to Pages 47“48

5. Obedience to superior orders explicitly was recognized in Article 8 of the Charter of the
International Military Tribunal (IMT) as a mitigating circumstance and not as a defense to
the charges. The IMT took into account other mitigating factors. For example, in the case
of Funk, the following appears in relation to the war crimes and crimes against humanity
charges: “In spite of the fact that he occupied important of¬cial positions, Funk was never
a dominant ¬gure in the various programmes in which he participated. This is a mitigating
fact [ . . . ].” Funk was sentenced to life imprisonment. Similarly, proof that “British naval
prisoners of war in camps under Doenitz™s jurisdiction were treated strictly according to
the [Geneva] Convention” was a “fact” the IMT took “into consideration, regarding it
as a mitigating circumstance.” Doenitz was sentenced to ten years™ imprisonment. For
Speer, it was recognized in mitigation that he opposed Hitler™s scorched earth program,
“deliberately sabotage[ed] it at considerable personal risk,” and that “he was one of the few
men who had the courage to tell Hitler that the war was lost and to take steps to prevent the
senseless destruction of production facilities.” Speer received twenty years. With regard to
von Neurath, it was emphasized in mitigation that he had intervened to release arrested
Czechoslovaks, had resigned, and refused to act in certain capacities. He received a term
sentence of ¬fteen years.
6. Charter of the International Military Tribunal, op. cit., art. 6.
7. Accord, Robert Cryer, Prosecuting International Crimes: Selectivity and the Inter-
national Criminal Law Regime 38“39 (2005).
8. Of¬cial Gazette of the Control Council for Germany, No. 3 (January 31, 1946). Article II(4b)
of Control Council Law No. 10 provided that “[t]he fact that any person acted pursuant
to the order of his government or of a superior does not free him from responsibility for a
crime, but may be considered in mitigation.”
9. Rt. Hon. The Lord Wright of Durley, Foreword, 6 Law Reports of Trials of War Crim-
inals v, v (1948).
10. Id. at vi.
11. ¨
Trial of Josef Altstotter and Others (United States Military Tribunal, Nuremberg, 1947),
reprinted at 6 Law Reports of Trials of War Criminals 1, 28 (1948). Control Council
Law No. 10 expressly incorporated the London Agreement, which created the IMT. Id. at
12. Id. at 28; see also The Flick Trial (United States Military Tribunal, Nuremberg, 1947),
reprinted at 9 Law Reports of Trials of War Criminals 1, 57 (1949) (notes on the case).
13. James Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass
Killing 92 (2002).
14. The forfeiture of property as a sentence was unusual in the “subsequent proceedings.”
Article II(3) of Control Council Law No. 10, although giving the judges discretion to
punish, provided as examples of punishment: death, imprisonment for life or for a term of
years (with or without hard labor), ¬nes, forfeiture of property, restitution, and deprivation
of some or all civil rights. Virtually all the sentences involved death (at times subsequently
commuted) or imprisonment, with imprisonment dominating as the preferred form of
15. ¨
Trial of Josef Altstotter and Others (United States Military Tribunal, Nuremberg, 1947),
reprinted at 6 Law Reports of Trials of War Criminals 1 (1948).
16. Id. at 75. Although the military tribunal recognized that abiding by German law was not a
defense, it indicated that if this were a defense, many of Lautz™s acts would be excusable.
17. The Hostages Trial (Wilhelm List and Others) (United States Military Tribunal, Nurem-


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