Deviance, aspiration, and the stories we tell: reconciling mass atrocity and the criminal law.

• Author: Mohamed, Saira
• Position: III. A More Complete Account of Expressivism in International Criminal Law through Conclusion, with footnotes, p. 1665-1689

3. A MORE COMPLETE ACCOUNT OF EXPRESSIVISM IN INTERNATIONAL CRIMINAL LAW

   The tribunals, it seems, seek to have it both ways: even as they have succumbed to the idea that criminal responsibility rests on deviance, they have found ways to neatly do away with the problem in some cases by devising reasons to expect more of the defendant than they ask of the average person. This approach anticipates and provides a defense against a challenge that would insist that the perpetrators' crimes are understandable and thus inappropriate for criminal punishment. Nonetheless, we should be wary of embracing the tribunals' artifice of identifying categories of people who should be expected to behave differently from the average individual. The following two Parts explain why the question of criminal responsibility in mass atrocity should be thought of as an opportunity for developing individual notions of responsibility, rather than a conundrum in which the concept of responsibility must be compromised in order to justify criminal punishment.

   After pointing out the flaws in the international criminal courts' deviance-focused approaches to decision making, this Part contends that these approaches rest on an unnecessarily narrow vision of criminal law, and it offers a more complete account that draws on familiar functions of domestic criminal law. Whereas believers in the deviance paradox warn that criminal law's legitimacy may be compromised by the punishment of behavior that is not deviant, I argue that criminal law has two discrete and accepted functions. First, criminal law can legitimately target conduct that diverges from a standard of ordinary behavior. In so doing, the criminal law sends a message not only about what constitutes deviance, but also about what constitutes normalcy. Second, criminal law can legitimately target conduct that diverges from an aspirational standard of behavior. In so doing, the criminal law sends a message about behavior that might not be normal, but is desirable nonetheless. Understood through the lens of these dual functions, criminal prosecutions for mass atrocity crimes can serve a legitimate goal--even for perpetrators who are not deviant in the way that the paradigmatic perpetrator of criminal acts is--by giving voice to the better angels of our nature and setting out a model for behavior in the most demanding of times.

   1. Unjustified Expectations

      Is there any sense to expecting more of soldiers, or those who come from cosmopolitan backgrounds, or those who are well educated? Soldiers, of course, occupy a unique position in times of war. They are required to prioritize the lives of innocents over their own. (144) For conscripts, this choice is not voluntary, (145) and even those who voluntarily enlist, like Erdemovic, might not truly anticipate losing their lives. Erdemovic was never an eager soldier. He had been discharged from the Croatian forces when he tried to help a Serb cross the border, and when he enlisted in the Bosnian Serb army, he requested a non-combat position and was placed in a unit that carried out reconnaissance missions and manned border checkpoints. (146) Erdemovic, then, may well not have contemplated losing his life when he joined the army. But even if he had--even if a soldier voluntarily enlists and has full knowledge of the possibility that he will not survive the next week or month or year--facing a risk of death at the hands of an enemy differs dramatically from laying down one's life in the face of one's own threatening and criminal commander. (147) Does it make sense to expect the average soldier to accept death in these circumstances? Unless we drastically redefine our understanding of the average battlefield, it does not.

      Similarly, there is little reason to expect that educated persons or those who come from cosmopolitan backgrounds should be able to withstand the pressure of the violence around them any more than the average person would. In attributing to these categories of individuals a capacity to know better than the average person, the international criminal courts have created a doctrine akin to a converse of the rotten social background defense. (148) Instead of affording a defendant the opportunity to introduce testimony on his psychological, cultural, educational, or economic background as a way of explaining his criminal behavior, and thus lessening his blameworthiness for that behavior, (149) the tribunals use a defendant's educational or social history against him, as a way of heightening the blameworthiness of the conduct under scrutiny. But whether we turn to history or literature or social science, we come up short when we try to find reasons to believe that a privileged educational or cultural background necessarily enables a person to resist the pull to violence any better than another. (150) Perhaps this construction exposes the "black sheep effect" playing out in these courts: it is too horrifying for judges to accept that educated elites who look so similar to them can commit such horrific acts. (151) When those judges insist that the defendants should have known better, they also insist that they themselves would have known better had they been in the same situation. But a person who has not been in such a situation does not know how he would behave and can only hope that he will never have to answer that question. (152)

      Creating categories of people who are believed to differ from the average person--the soldier, the educated person, the cosmopolitan--is at its heart an exercise in othering. By separating people who are expected to behave differently, these decisions treat the defendant as abnormal, drawing a line between us and them. In so doing, the decisions declare that the criminal is distinctive in making the choice that he did. (153) In Emile Durkheim's terms, by identifying the deviants, the courts enable everyone else to unify around shared values, not simply around the rule of law or around a culture of accountability, but around a mutual belief that we never would do what those people in the dock did. If such line-drawing were successful, it could serve to legitimize the project of international criminal law by convincing onlookers of not only the moral responsibility of those who are tried and convicted, but also the moral authority of the courts to brand these individuals as deviant.

      The line-drawing, however, is not only unsuccessful, but is also unnecessary. For one, it is apparent that at least some of the defendants were driven by their own sadism and cruelty, and pointing to their educational or cultural background seems simply beside the point in explaining their blameworthiness. (154) But more generally, creating a class of deviants is necessary only if we narrowly envision criminal law as voicing condemnation for certain acts that diverge from the ordinary. That is, of course, an important basis of the criminal law, but it is not the only one.

   2. Deviance and Positive Expressivism

      First-year criminal law courses often begin by introducing the idea that criminal prohibitions declare society's belief that certain conduct merits condemnation. (155) Crimes are said to be those acts that diverge from social norms; (156) "blame is reserved for the (statistically) deviant." (157) Enforcing the law against individuals who commit those socially deviant acts can reinforce the norms themselves. Thus, by punishing murder, or robbery, or driving while intoxicated, the criminal law voices society's assessment that those acts should not take place, that they are harmful, that they merit censure.

      This interpretation of the purpose of punishment reflects a belief in an expressive function of criminal law. Rather than focusing exclusively on, for example, the retributive value or deterrent objectives of the law, expressive theories assert that law has an educative role and examine the "message" sent through trial or punishment. (158) Expressivist theories may exist separately from other justifications for criminal law or may overlap with them. For example, guilty but mentally ill verdicts, which might be difficult to justify as a matter of deterrence, retribution, or even incapacitation, make more sense under a theory of expressivism as a way to express condemnation of the offender as blameworthy and brand him as a criminal. (159) Hate crime laws, meanwhile, may reflect both expressive and retributive motivations, as they "signal that perpetrators of hate crimes are more culpable than those who commit parallel crimes." (160)

      Theorists of international criminal law have seized on the expressive functions that criminal law can serve. (161) Indeed, theories of expressivism are not merely descriptive statements about what the law can do; they have become normative statements about what the law should do. In justifying the initiation of criminal trials for mass atrocities, scholars and practitioners point to the capacity for international criminal law and trials to communicate the outrage of the international community in the face of certain acts, and they further emphasize the need for the international community to demonstrate its intolerance of the criminal acts. (162) As Antonio Cassese writes, "the international community's purpose" in establishing a system of international criminal law was "not so much retribution as stigmatization" of certain conduct. (163)

      As Cassese's comment shows, expressivism in international criminal law has operated primarily in negative space: criminal law communicates to the public what conduct should not be undertaken. (164) But even as stigmatization of particular acts forms an important component of what the criminal law does, and of what it should do, this is not its only task. Just as criminal law declares society's belief that certain conduct is condemnable, it also declares that certain conduct is normal or acceptable. (165) Examining the functions of domestic law, David Garland...