Atrocity, Punishment, and International Law.

• Author: Woody, Karen E.
• Position: Book review

MARK A. DRUMBL, ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW (Cambridge University Press 2007). 298 PP.

It is impossible for offenses against the most fundamental collective sentiments to be tolerated without the disintegration of society, and it is necessary to combat them with the aid of the particularly energetic reaction which attaches to moral rules. (1) In the wake of increasing globalization over the past fifty years, international criminal law has transformed from a toothless shadow into a concrete reality; the International Criminal Court is the most recent and impressive institutional accomplishment. Unfortunately, international criminal law has enjoyed this progress on the heels of increasingly horrific international crimes. International adjudicatory institutions have taken many forms and the sentences they deliver have varied widely. (2) In Atrocity, Punishment, and International Law, Mark Drumbl reviews the strides made in international criminal law from the Nuremberg trials through present-day trials, particularly those related to the crimes committed in Rwanda and Yugoslavia. (3) In doing so, Drumbl offers one of the most comprehensive assessments of the role of punishment in international criminal law. In this Review, I detail Drumbl's primary themes and acknowledge the book's numerous and notable contributions to the field of international criminal law. I then argue that a natural extension of Drumbl's theory of cosmopolitan pluralism is the use of religious institutions as vehicles of rehabilitation and restoration for communities fractured by mass atrocity.

1. OVERVIEW

   Drumbl begins his book by giving an overview of the atrocities that occurred in Rwanda, Yugoslavia, and Nazi Germany, and then describes the national and international legal institutions erected to adjudicate and punish the perpetrators of these atrocities and others. (4) Drumbl draws from a variety of sources and disciplines to examine the rationales behind the tribunals and their punishment schemes. (5) At the heart of his analysis, however, lies a sense of skepticism towards the liberal, (6) predominantly Western notions of common crime and punishment that are imposed upon international tribunals charged with adjudicating uncommon crimes. (7) While not entirely eschewing the merits of international tribunals replete with liberal legal theories of punishment, Drumbl begins to outline the limits of the tribunals in achieving the goals of the judicial process. (8)

   In his early chapters, Drumbl writes about the fundamental differences between perpetrators of the aforementioned atrocities and "common" criminals such as car thieves or armed robbers. (9) He notes that the essence of criminal law serves to punish social deviants--individuals such as the car thief or the armed robber who commit hazardous acts, likely to warrant punishment, that depart from societal regulatory norms. (10) Yet Drumbl points out that those who engaged in the mass killings participated in "deviant" acts that were not necessarily banned by their particular society at the time. (11) Instead, because social norms were upended in the midst of atrocity, the civilians who did not participate in the killings arguably were more deviant than those who did. (12) This mass involvement in social deviance results in a pyramid of culpability: at the top are the conflict entrepreneurs, who devised and strategized the mass killing, followed by the leaders who remained accountable to the entrepreneurs yet commanded others to kill; the next tier of criminals was that of the actual killers. (13) Below this level are the complicit masses. (14)

   With this background of mass culpability, Drumbl deftly describes how a combination of national and international judicial systems have handled and sorted the first three categories of criminals. Drumbl highlights the merits and accomplishments, as well as the shortcomings, of international tribunals and national judicial systems designed to adjudicate genocidal killers and war criminals. (15) Specifically, he analyzes the punishments meted out at the International Criminal Tribunal for Yugoslavia ("ICTY"), the International Criminal Tribunal for Rwanda ("ICTR"), and the East Timor Special Panels, noting their similarities and differences to the sentences given decades ago in Nuremberg. (16) Drumbl then describes the domestic judicial systems in the countries where the atrocities took place and national efforts to restore the rule of law after atrocity. (17) He points out that despite a larger variety of sentencing options present in the national courts, (18) the trends in the international tribunals, such as the lowering of maximum sentences, have put pressure on domestic judicial systems to follow suit. (19) He buttresses his argument with sentencing statistics from both the international tribunals and national systems of justice. (20) Drumbl asserts that this indirect international pressure is a further imposition of liberal Western notions into domestic courts, and...