Making Sense of Mass Atrocity.

• Author: Ciorciari, John D.
• Position: Book review

MAKING SENSE OF MASS ATROCITY. By Mark Osiel. Cambridge: Cambridge University Press. 2009. Pp. xviii, 257. 50 [pounds sterling].

INTRODUCTION

In early 2008, a Cambodian survivor confronted a Khmer Rouge leader for the first time at a U.N.-backed tribunal in Phnom Penh. Facing Pol Pot's infamous deputy, Nuon Chea, she recounted her parents' untimely deaths and her brutal imprisonment at age seven, when she was shackled beside her four-year-old brother. Nuon Chea has denied responsibility for these and other atrocities during the Khmer Rouge reign of terror in the late 1970s, but the victim asked plaintively, "If Nuon Chea claimed he was not responsible, who was then for the loss of my parents and other victims' loved ones?" (1)

That plea drove to the heart of the challenge of accounting for mass atrocity. From the gas chambers at Auschwitz to the dust-swept plains of Darfur, survivors are left scouring for answers. What happened? How can the crimes be explained? Who should be blamed? What can help victims heal? How can future abuses be prevented? These questions follow any crime but pose particular problems after mass atrocities, which invariably involve numerous perpetrators acting through complex organizations.

International criminal law ("ICL") tends to focus on the same question asked by the Cambodian survivor above: who was ultimately most responsible? Focusing on the culpability of senior leaders has powerful appeal. It resonates with a natural human tendency to personify misdeeds and identify a primary locus for moral blame. It also serves political ends by putting a face on mass crimes, decapitating the old regime, and leaving room for reconciliation at lower levels. But what happens when smoking guns do not point clearly toward high-ranking officials? And how can the law address the fact that most atrocities are committed by lower-level functionaries in the field? It is seldom possible to put all--or even most--of the culprits of mass atrocities on trial. What legal doctrines and policy practices best help a society achieve the delicately intertwined goals of justice, peace, and reconciliation?

Mark Osiel (2) tackles these vexing questions in Making Sense of Mass Atrocity. Osiel is a seasoned and accomplished analyst of ICL. In this latest work, the fifth in a series of books dealing with responses to mass atrocity, (3) he compels readers to reflect on how such crimes really happen, how the law currently addresses them, and how it should. He offers trenchant critiques of ICL and proposes significant doctrinal and policy reforms, focusing on how legal rules and practices can incentivize relevant actors to prevent or deal with such abuses. His book may rankle some of ICL's true believers, but it offers an important and constructive contribution to a field that can sometimes use a bit more introspection.

This Review begins by introducing the problem Osiel seeks to address--namely, the challenge of responding to collective atrocities. In Part II, it assesses his arguments on how to reform relevant legal doctrines. Part III examines his claims regarding the roles of amnesty and prosecution as national and international actors seek to promote diverse interests in retribution, deterrence, and reconciliation. Finally, Part IV evaluates his boldest proposal--to supplement existing practices by imposing collective civil sanctions on military officers in certain circumstances.

1. THE DILEMMA: INDIVIDUAL DEFENDANTS FOR COLLECTIVE WRONGS

   At its core, Making Sense of Mass Atrocity is an effort to relieve tension between the basic tenets of legal liberalism and the grisly social reality of how mass crimes are committed. Modem ICL sprouted from the seeds of the Nuremberg and Tokyo tribunals and rests on a foundation of broadly "liberal" principles that emphasize individual rights and responsibilities. Its signal achievement has been to move beyond the law's traditional remedy of imposing collective civil penalties against states, "pierce the sovereign veil," and hold individuals responsible for their crimes. There is much to be said for a focus on accountability. By challenging impunity, ICL helps develop and reinforce basic human rights norms. The threat of criminal prosecution gives would-be offenders reason to think twice before orchestrating mass abuses. (4) Criminal trials also provide at least some victims with a sense of justice and empowerment and may help facilitate personal healing as well. (5)

   Prioritizing individual culpability can be problematic, however, if the pendulum swings too far. Leaders cannot commit mass atrocities alone. Osiel thus identifies a basic conundrum: "Criminal law sees a world of separate persons, whereas mass atrocity entails collective behavior" (p. x). He warns that "[w]ith its focus on discrete deeds and isolated intentions, legal analysis risks missing the collaborative character of genocidal massacre, the vast extent of unintended consequences, and the ways in which 'the whole' conflagration is often quite different from the sum of its parts" (p. 2).

   Tension certainly does exist. As Mark Drumbl and others have noted, it is awkward to "shoehorn collective agency into the framework of individual guilt.'' (6) Organizational behavior and systemic forces are essential to understanding past atrocities and preventing future ones, but criminal trials tend to downplay these dynamics. Prosecutors have incentives to treat complex collectives as bundles of discrete, autonomous actors rather than organic wholes. Focusing on structure rather than agency is dangerous when seeking convictions and assigning blame; it risks presenting defendants as fungible cogs in an impersonal machine. Genocidal killers could go free, and support for tribunals could quickly evaporate.

   The fact that prosecutors can usually target only a fraction of suspects exacerbates the problem. They target senior figures when possible, but convicting those leaders is often difficult. Smoking-gun evidence rarely links them directly to crimes carried out by their subordinates. To avoid letting high-ranking criminals off the hook, prosecutors and judges have powerful incentives to devise new doctrines that stretch the boundaries of individual responsibility. In such circumstances, ICL risks reaching beyond the pale of the basic principle of culpability and breaching individual rights in an effort to defend them. Osiel argues that the law "seems to find itself impaled on the horns of this dilemma" (p. 3). Without "doctrinal ingenuities, criminal law might never fully reach mass atrocity's masterminds," he writes. "Yet, if liberal legality achieves this laudable goal only by compromising its first principles, then in the process it has surely lost its moral bearings, even sacrificed its soul" (p. 118).

   Even successful prosecutions of leaders are only a partial response to widespread terror. Most low-level offenders escape judgment, and the threat or occurrence of trials does not ensure that they will lay down their arms, reconcile with erstwhile adversaries, and forego future abuses. Osiel rightly argues that a range of policy options deserves consideration in responding to collective crimes. He develops a number of doctrinal and policy reforms, taking an "economic vantage point" (p. 11) that prioritizes giving key actors incentives to prevent and punish gross human rights violations.

2. REFORMING LEGAL DOCTRINES

   The first set of challenges is doctrinal. Fighting impunity requires holding leaders accountable. A leader may be held liable as a principal for perpetrating, planning, or ordering a crime or as an accessory for aiding and abetting] However, high-ranking criminals rarely pull the trigger; most physical acts of mass atrocity are committed by foot soldiers and functionaries. Moreover, leaders usually try to avoid leaving evidence of specific orders, concrete plans, or even clear chains of command. In such cases, prosecutors must look to other forms of responsibility. Since the late 1990s, the International Criminal Tribunal for the former Yugoslavia ("ICTY")-and to a lesser extent, the International Criminal Tribunal for Rwanda ("ICTR")--have refined or expanded legal doctrines to connect leaders to far-flung atrocities. They have relied primarily on the concepts of joint criminal enterprise ("JCE") and superior responsibility.

   JCE is based on the "common purpose doctrine" that emerged from the post-World War II trials of Nazi defendants engaged in organized murder. The ICTY Appeals Chamber set forth the three basic forms of the doctrine in the 1999 Tadic judgment. (8) The first, "basic" form ("JCE-I") resembles the doctrine of conspiracy. It applies when a defendant belongs to a group possessing a common criminal purpose and renders the defendant liable for intended crimes of the group, even if the defendant was not the physical perpetrator. (9) The second, "systemic" form ("JCE-II") is similar. It renders a defendant liable for crimes committed by other members of a concentration camp or similar facility if they shared a common criminal purpose and carried out complementary functions. (10) The third, "extended" form ("JCE-III") was the most groundbreaking and controversial. It allows a court to find a defendant guilty for a crime by another group member that "while outside of the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose.'' (11) JCE-III is based on the notion that people who engage in exceptionally dangerous activities should bear the risk of foreseeable adverse consequences.

   The doctrine of superior responsibility offers an alternative path to conviction. It grew out of the ancient principle of command responsibility in wartime. In its modem embodiment, it subjects both civilian and military leaders to criminal liability for a failure to punish or prevent crimes by subordinates when under a duty to do so. (12) The ICTY's 1998 Celebici...