Atrocity, Punishment, and International Law

by Mark A. Drumbl

• ISBN13: 9780521870894
• ISBN10: 0521870895
• Format: Hardcover
• Copyright: 2007-07-09
• Publisher: Cambridge University Press

Summary

This book argues that accountability for extraordinary atrocity crimes should not uncritically adopt the methods and assumptions of ordinary liberal criminal law. Criminal punishment designed for common criminals is a response to mass atrocity and a device to promote justice in its aftermath. This book comes to this conclusion after reviewing the sentencing practices of international, national, and local courts and tribunals that punish atrocity perpetrators. Sentencing practices of these institutions fail to attain the goals that international criminal law ascribes to punishment, in particular retribution and deterrence. Fresh thinking is necessary to confront the collective nature of mass atrocity and the disturbing reality that individual membership in group-based killings is often not maladaptive or deviant behavior but, rather, adaptive or conformist behavior. This book turns to a modern, and adventurously pluralist, application of classical notions of cosmopolitanism to advance the frame of international criminal law to a broader construction of atrocity law and towards an interdisciplinary, contextual, and multicultural conception of justice.

Table of Contents

Preface and Acknowledgments	p. xi
List of Abbreviations	p. xv
Extraordinary Crime and Ordinary Punishment: An Overview	p. 1
Extraordinary Crime	p. 3
Ordinary Process and Punishment	p. 6
Punishment in International and National Institutions	p. 11
Deconstruction: The Disconnect between Aspirations of Punishment and Realities of Sentence	p. 15
...and Reconstitution	p. 18
Conclusion	p. 21
Conformity and Deviance	p. 23
Perpetrators and Beneficiaries	p. 25
Conformity, Transgression, and the Group	p. 29
Posttraumatic Liberalism Disorder	p. 35
Victims	p. 41
Conclusion: Law on Borrowed Stilts	p. 44
Punishment of International Crimes in International Criminal Tribunals	p. 46
Positive Law Frameworks of Contemporary Institutions	p. 50
Sentencing Practice	p. 55
Penological Justification and Implementation: The Jurisprudence	p. 59
Why Punish?	p. 60
What Factors to Consider in Punishing?	p. 63
Conclusion	p. 56
Punishment of International Crimes in National and Local Criminal Justice Institutions	p. 68
Rwanda	p. 71
National Courts in Rwanda, Including Specialized Chambers	p. 73
Foreign National or Military Courts	p. 83
Gacaca	p. 85
Former Yugoslavia	p. 99
Positive Law Frameworks	p. 99
Courts in Bosnia and Herzegovina	p. 105
Courts in Serbia	p. 106
Courts in Croatia	p. 107
Foreign Courts	p. 109
World War II	p. 110
Immediate Aftermath of the War	p. 112
From the 1960s Onward	p. 115
Conclusion	p. 121
Legal Mimicry	p. 123
Transplants and Legal Geologies	p. 125
Externalization of Justice	p. 127
Democratic Deficits	p. 133
Referrals	p. 138
Complementarity	p. 141
Conclusion	p. 147
Quest for Purpose	p. 149
Retribution	p. 150
Selectivity	p. 151
Severity of Sanction and Discretion of Sentencing Judges	p. 154
Overwhelming Gravity of the Crimes	p. 155
Treatment of High-Level Offenders	p. 157
Variability in Sentencing	p. 161
Plea Bargaining	p. 163
Deterrence	p. 169
Expressivism	p. 173
Selective Truths	p. 176
Interrupted Performances	p. 177
Management Strategies	p. 178
Pleading Out	p. 179
Conclusion	p. 180
From Law to Justice	p. 181
Pluralist Process for Universal Evil?	p. 182
Cosmopolitan Theory	p. 185
Vertical Authority Allocations: A Case for Qualified Deference	p. 187
Horizontal Dimensions: Obligation in Multiple Orders	p. 194
Conclusion	p. 205
Conclusion: Some Immediate Implications	p. 206
Legal Institutions and Jurisprudence	p. 207
Political Institutions and Behavior	p. 209
Closing Note: Critique and Renewal	p. 209
Notes	p. 211
Index	p. 285
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