Academic journal article The Yale Law Journal

Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law

Academic journal article The Yale Law Journal

Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law

Article excerpt

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 


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. …

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