INTRODUCTION I. THE DEVIANCE PARADOX A. Individual Responsibility B. Collective Perpetration 1. The Social Dynamics of Mass Atrocity 2. Authority and Conformity 3. The Tension Between Individual Responsibility and Collective Perpetration II. DEVIANCE IN MASS ATROCITY: THREE STORIES A. The Reluctant Executioner B. The Lapsed Cosmopolitan C. The Hateful Provocateur III. A MORE COMPLETE ACCOUNT OF EXPRESSIVISM IN INTERNATIONAL CRIMINAL LAW A. Unjustified Expectations B. Deviance and Positive Expressivism C. Normalcy and Aspirational Expressivism IV. A NEW VISION FOR CRIMINAL COURTS IN EXTRAORDINARY TIMES A. Judging and Understanding 1. Narratives of Perpetration 2. A Decision Grounded in Aspirational Expressivism B. The Risks of Aspirational Expressivism 1. Nuance and Condemnation 2. Disavowal and Responsibility CONCLUSION INTRODUCTION
On July 16, 1995, twenty-three-year-old Drazen Erdemovic shot and killed some seventy unarmed men and boys at the Branjevo farm in the Bosnian town of Srebrenica. Erdemovic, a low-level soldier in the Bosnian Serb army, had been ordered to execute these individuals. When his commander, Brano Gojkovic, first instructed the members of the unit that they were to kill the civilians who would soon begin arriving at the farm, Erdemovic refused. Gojkovic told him that he could either pick up his gun and start shooting, or line up with the victims and face death himself. Erdemovic submitted to the order, drinking brandy as the hours went on to distract himself from the stench of bodies piling up in the hot sun. (1)
Twelve hundred men and boys were killed that day. The following year, Erdemovic confessed his role in the slaughter to a French journalist. Soon after, he was charged with war crimes and crimes against humanity by the International Criminal Tribunal for the Former Yugoslavia (ICTY), the court created by the United Nations Security Council in 1993 to prosecute individuals responsible for atrocities committed during the Yugoslav civil wars. (2) He had sought to assert a duress defense based on the threat against his life, but the court rejected his argument, holding that duress is not a complete defense for homicide and declaring him guilty of war crimes. (3) Erdemovic became the first defendant convicted by the ICTY. (4)
We typically think of the criminal law as punishing those who deviate from what society deems expected, normal, or good. (5) And indeed, Erdemovic did the unthinkable. He killed innocent people-some blindfolded, others watching their friends and neighbors slaughtered in line before them; some paralyzed by fear, others shouting defiantly until the moment they were silenced with a bullet. At the same time, Erdemovic behaved in a way that, if we allow ourselves to imagine the darkest of moments, might be understandable. He had a gun to his head. He was scared and panicked. He feared what would happen to his wife and eight-month-old baby if he refused or ran. The judges who decided his fate recognized this, asserting that any person facing such a threat to his life would react the same way. They recognized the "human frailty" of us all and insisted that they would not "'expect' a person whose life is threatened to be [a] hero and to sacrifice his life by refusing to commit the criminal act demanded of him." (6) The court sentenced Erdemovic to five years in prison, a conspicuously lenient punishment for the murder of seventy people; yet still, it branded him a criminal. (7)
This decision has become a touchstone for those who argue that criminal law as we know it cannot adequately address the ugly realities of mass atrocity. If Erdemovic did what any person would have done--if, indeed, we can understand the choice he made--then what does it mean to convict him of a crime? Many critics of the decision, and of international criminal law more generally, describe it as hypocrisy, bristling at the uncomfortable juxtaposition of the criminal law's sanction and the notion that any person, in the right circumstances, might commit an atrocious act. (8) To understand all is to forgive all, the saying goes. But to conceptualize the law as a tool of either condemnation or understanding is to create a false dichotomy.
This Article posits an alternative interpretation, one that envisions a role for the criminal law in both denouncing mass atrocities as crimes and conceding that these crimes are often committed by ordinary people-not "alien others," not madmen, not deviants. (9) By understanding the criminal law as an instrument that legitimately sets forth aspirations for human behavior in trying situations, rather than one that simply reflects what is identified as normal or typical, this Article argues that international criminal courts need not go to the lengths they do to paint the defendants in front of them as deviants. And by recognizing the normalcy of those perpetrators, the courts can be more than forums for voicing outrage against the world's horrors, as they have been principally conceived. (10) Instead, these courts can serve as sites of storytelling, providing both an opportunity to derive insights into how individuals choose to perpetrate crimes and an occasion for articulating how we hope people will behave in the most hopeless of circumstances.
This Article intervenes in a longstanding debate over the appropriateness of domestic criminal law structures for offenses under international law. Many scholars and practitioners in the field have noted that although international criminal law shares traits with a national system of criminal law, it differs in significant ways from "ordinary" criminal law. International criminal law exists to address situations of exceptional violence, terror, and despair: organized massacres of hundreds of thousands, systematic rapes and mutilations motivated by hatred for the ethnicity or religion of the victims, forced pregnancy, enslavement, torture. International criminal law is seen as unique, as distinct from ordinary criminal law, because of the widespread savagery it must confront; instead of ordinary crime, it targets extraordinary crime. (11)
The average perpetrator, too, is said to be different in the international criminal law context. In contrast to the perpetrator of ordinary domestic crime, whose actions deviate from those of other members of society, the perpetrator in mass atrocity commits crimes alongside masses of other individuals who are doing the same. Whereas the perpetrator of ordinary crime acts in violation of widely accepted social norms, the perpetrator of mass atrocity participates in acts that, in his community, fall squarely within the parameters of widely accepted social norms. (12) For individuals in conflict settings, participation in group crime may fortify a sense of community and belonging when society is otherwise disintegrating. In the time, place, and society in which they are committed, some crimes--even the most horrific of crimes--may be quite frighteningly normal. (13)
These unique features of mass atrocity have been the subject of a rich scholarly discussion. Mark Drumbl, Laurel Fletcher, Christopher Kutz, and Gerry Simpson, among others, have examined questions of deviance through the lenses of criminology, social psychology, philosophy, and sociology, inspiring a robust debate about whether the reality of mass atrocity is adequately addressed by the law that intends to respond to it. (14) This Article steps into that conversation and seeks to transform it by offering three contributions to the existing scholarship: (1) a novel descriptive account of how international criminal tribunals conceive of the role of deviance in criminal responsibility; (2) a new theoretical understanding of expressivism in international criminal law; and (3) based on that theory, a normative critique of the courts' approach to deviance and a path to a more productive role for the law in the wake of mass atrocity. Throughout its analysis, this Article takes the unconventional approach of drawing examples from domestic criminal law--from provocation to sexual assault to drunk driving-to disentangle some of the confusions that have beset international criminal law. This methodology is deliberate, built on a belief that the project of international criminal law is at its core an attempt to answer the same questions about choice and responsibility that arise in domestic criminal law. Accordingly, the ultimate aim of this Article--to illuminate in criminal law an opportunity to understand how individuals make decisions and to model behavior rather than just condemn it--finds focus here in the context of mass atrocity, but the Article has implications for situations of pressure and horror confronted by domestic criminal law as well.
This Article proceeds in four Parts. Part I briefly describes the critique of international criminal law that I refer to as the "deviance paradox": the notion, put forward by many scholars, that international criminal law is ill suited to assign responsibility to perpetrators of mass atrocity crimes, many of whom are not deviant in the same way that perpetrators of ordinary crimes are. To explain why those who study mass atrocity maintain that these extraordinary crimes are understandable--even as they are horrific--this Part presents social science and historical research that suggests that social pressures can drive ordinary people with no propensity for violence to commit violent acts. Stanley Milgram's shock experiment, Philip Zimbardo's Stanford prison experiment, and Christopher Browning's study of the ordinary men responsible for rounding up and killing over one million people in Nazi Germany provide powerful evidence to support the theory that in the right circumstances, evil can be quite ordinary.
Part II offers a look at how international courts have grappled with the role of deviance as they assign criminal responsibility. Based on a study of all final judgments and...