Atrocity, Punishment, and International Law.

• Author: Heller, Kevin Jon
• Position: Book review

ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW. By Mark A. Drumbl. New York: Cambridge University Press. 2007. Pp. xv, 298. Cloth, $80; paper, $29.99.

INTRODUCTION

After nearly fifty years of post-Nuremberg hibernation, (1) international criminal tribunals have returned to the world stage with a vengeance. The Security Council created the International Criminal Tribunal for the former Yugoslavia ("ICTY") in 1993 and the International Criminal Tribunal for Rwanda ("ICTR") in 1994. Hybrid domestic-international tribunals have been established in Sierra Leone (2000), East Timor (2000), Kosovo (2000), Cambodia (2003), Bosnia (2005), and Lebanon (2007). And, of course, the international community's dream of a permanent tribunal was finally realized in 2002, when the Rome Statute of the International Criminal Court ("ICC") entered into force. (2)

This unprecedented proliferation of international criminal tribunals reflects the world community's deep-seated faith in the ability of trials to heal the wounds caused by mass atrocity. The Security Council resolution establishing the ICTY claimed that an international tribunal "would contribute to the restoration and maintenance of peace." (3) The ICTR Statute states that the prosecution of those responsible for genocide in Rwanda would "contribute to the process of national reconciliation" and help ensure "that such violations are halted and effectively redressed." (4) Not to be outdone, the Rome Statute confidently links criminal prosecutions to the "peace, security and well-being of the world." (5)

If anything, the human rights community is even more optimistic about the transformative potential of criminal trials, often insisting that international trials are "the single most appropriate response to communal violence" (6) and "the centerpiece of social repair." (7) Indeed, it is not an exaggeration to say that "the quest for 'justice' [has] displaced the traditional pursuit for 'truth' as the rallying cry for the human rights movement." (8)

In Atrocity, Punishment, and International Law, Mark Drumbl (9) categorically rejects this kind of unbridled faith in international criminal law. First, he believes that "[a] proliferation of adversarial and individualized criminal law does not inevitably lead to enhanced effectiveness in sanctioning or deterring atrocity" (p. xii). And second, he argues that a preference for international trials has "prompted a shortfall with regard to the consideration and deployment of other legal, regulatory, and transformative mechanisms in the quest for justice" (p. 5). Drumbl thus insists that international criminal law needs to be pluralized both vertically and horizontally: vertically, by requiring tribunals to defer more readily to national and local transitional-justice institutions; and horizontally, by encouraging national and local authorities to rely more heavily on nonpunitive accountability mechanisms, (10) whether legal (such as civil sanctions) or nonlegal (such as truth commissions) (p. 18).

One paragraph is obviously insufficient to capture the complexity of Drumbl's argument. Part I thus explores his deconstruction of the transformative potential of international trials and his proposed reconstitution of international criminal law at greater length. Part II then argues that although Drumbl's critique is both compelling and persuasive, his reconstitution is likely to be less effective--and less just--than he believes.

1. DRUMBL'S ARGUMENT

   1. The Limits of Individual Criminal Responsibility

      Drumbl's argument unfolds from the undeniable premise that the collective nature of "extraordinary international crimes"--genocide and crimes against humanity in particular--distinguishes them from "ordinary domestic crimes" (p. 11). Three differences stand out.

      First, whereas ordinary domestic crimes normally affect a small number of victims targeted indiscriminately, (11) extraordinary international crimes involve large numbers of victims who are specifically targeted because they are members of a disfavored group (p. 4). The gravamen of genocide is the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." (12) And ordinary crimes like murder and rape only become crimes against humanity when committed as part of a "widespread or systematic attack" on a civilian population. (13)

      Second, ordinary domestic crimes are usually committed either by individuals or by small groups of perpetrators whose culpability is relatively equal. Extraordinary international crimes, by contrast, are normally committed by large groups of perpetrators whose culpability differs substantially (p. 25). At the top of the pyramid are the conflict entrepreneurs, the individuals who "exacerbate discriminatory divisions, which they then commandeer" (p. 25). Next are the mid-level officials who, "while exercising authority over others and often ordering killings, themselves remain subject to authority and, accordingly, are ordered into ordering others" (p. 25). Below the mid-level leaders are the actual killers, "most of whom are ordinary folks" (p. 25). And finally, there are the bystanders, "those multitudes who comply with the violence, who acquiesce in it, or who idle while it unfolds around them" (p. 25). These groups, in Drumbl's opinion, "represent descending levels of blameworthiness for atrocity"--although all are necessary for atrocity to occur (p. 25).

      Third, and finally, "whereas ordinary crime tends to be deviant in the times and places it is committed, the extraordinary acts of individual criminality that collectively lead to mass atrocity are not so deviant in the times and places where they are committed" (p. 8). Murder, torture, and rape are prohibited regardless of whether a country is at peace or suffering mass atrocity. Yet the state's willingness to punish such acts and the populace's willingness to condemn them as immoral differs significantly depending on the context. In times of peace, both punishment and condemnation are the norm, isolating the perpetrator and branding his act as deviant. In times of atrocity, the state not only encourages the perpetrator's act; similar acts are committed by large swaths of the population (p. 33). The peacetime relationship between norm and transgression is thus inverted: "[t]hose who commit extraordinary international crimes [are] the ones conforming to social norms," while "those who refuse to commit the crimes choose to act transgressively" (p. 30).

      Given these differences, we would expect international criminal law to be specifically attuned to the collective nature of mass atrocity. The opposite is actually true: "despite the proclaimed extraordinary nature of atrocity crime, its modality of punishment, theory of sentencing, and process of determining guilt or innocence, each remain disappointingly, although perhaps reassuringly, ordinary" (p. 6). Drumbl is referring here to what he calls the "liberal legalist" criminal trial--a trial in which "[a]ccountability determinations proceed through adversarial third-party adjudication, conducted in judicialized settings, and premised on a construction of the individual as the central unit of action" (p. 5). Long a mainstay of domestic Western criminal law, such trials are now the idiom of international criminal law, as well.

      In Drumbl's view, international criminal law's embrace of the forms of ordinary criminal law is deeply problematic. First, he believes that liberal-legalist trials of extraordinary international criminals are incapable of addressing the complicity of bystanders, states, and international organizations in mass atrocity. And second, he believes that such trials are unlikely to realize the basic penological goals of ordinary criminal law--retribution and deterrence.

      1. The Web of Complicity

         As noted earlier, mass atrocity can only occur with the participation of four discrete groups of perpetrators: conflict entrepreneurs, mid-level officials, actual killers, and bystanders. The first three groups are subject to prosecution--the actual killers for committing the atrocities, the mid-level officials and conflict entrepreneurs for commanding or abetting them. Bystanders, by contrast, are essentially immune from prosecution: It is simply not criminal for someone to "draw their blinds and look away" as innocents are slaughtered (p. 25). It is not even criminal for someone to benefit indirectly from atrocity--the Hutu who sees the slaughter of Tutsis as a source or ethnic pride, the German who moves into a luxurious apartment previously occupied by a Jew deported to Auschwitz. There is thus a dangerous lacuna at the heart of international criminal law.

         Nor is that the only lacuna. International criminal law's focus on individual guilt also "pulls our gaze away from the many other actors involved in the tapestry of atrocity--including malfeasant, complicit, or distracted states and their officials, along with decisionmakers in international organizations" (p. 173). The severity of the Rwandan genocide could have been significantly reduced had the UN heeded the desperate warnings of its head peacekeeper that the atrocities were about to occur (p. 137). Similarly, a strong case can be made that the ICTY was created to atone for the world community's failure to intervene in the former Yugoslavia. (14) International criminal law is powerless, however, to punish such unconscionable failures of political will--thereby increasing the likelihood that they will not be the last ones.

      2. Penological Rationales

         Drumbl also questions the utility of international criminal law within its narrow band of responsibility. In his view, liberal-legalist trials of extraordinary international criminals are unlikely to promote either retribution or deterrence, the traditional rationales for punishment.

         1. Retribution

            Drumbl identifies three limitations on the retributive value of international criminal law. First, given the...