Collective Violence and Individual Punishment: The Criminality of Mass Atrocity

By Drumbl, Mark A. | Northwestern University Law Review, Winter 2005 | Go to article overview

Collective Violence and Individual Punishment: The Criminality of Mass Atrocity


Drumbl, Mark A., Northwestern University Law Review


INTRODUCTION

This Article examines the Intel-nationalization of law and order discourse and its application to individual perpetrators of organic violence. The analysis begins with a question: what punishment befits someone who murders, or is responsible for the murders, of hundreds, thousands, or tens of thousands? It ends with the somewhat unsettling proposition that a reconceptualization of prevailing legal theory, policy, and practice is in order for such punishment to be truly purposive.

The prevailing paradigm views mass atrocity as something greater than the sum of its parts, namely each of its ordinary constituent murders.1 Under this paradigm, mass violence is constructed as something extraordinarily transgressive of universal norms. Transgressions of this ilk call out for investigation, prosecution, and punishment leading, perhaps ineluctably, to the emergence of a relatively new branch of law-the law of atrocity. Acts of atrocity are characterized as crimes against the world community or, more emotively, as offenses against us all. These include categories of criminality such as crimes against humanity,2 genocide,3 war crimes,4 and, to some extent, large-scale terrorism.5 Since these assaults are constructed as being of concern to humanity as a whole, international institutions putatively representative of the global community become appropriate conduits to dispense justice and inflict punishment.6 These international institutions therefore drift into what Michel Foucault called the "political economy" of punishment.7 This political economy bureaucratizes and normalizes punishment, thereby inserting it deeply into the now-globalized social body.8 Although Foucault's discussion is limited to punishment by the state, I would apply his heuristic to the new and additional layers of bureaucratization contemplated by the emerging punitive arm of the supra-stale of international organization.

Despite the extraordinary nature of this criminality, its modality of punishment, theory of sentencing, and process of determining guilt or innocence each remains disappointingly ordinary. The dominant discourse determines accountability through third-party trial adjudication premised on liberalism's construction of the individual as the central unit of action.9 This means that a number of selected guilty individuals squarely are to be blamed for systemic levels of violence. Punishment, too, is uninspiring. It overwhelmingly takes the form of incarceration in accordance with the classic penitentiary model.10 The "enemy of all of humankind"11 is punished no differently than a car thief, armed robber, or cop killer.

A paradox emerges. Legal scholars have demarcated normative differences between extraordinary crimes against the world community and ordinary crimes against the local community. These scholars, however, largely are content to subject both to the same process. Although there has been a proliferation of new international legal institutions to adjudge mass violence-for example, the International Criminal Court (ICC, 2002),12 ad hoc tribunals for Rwanda (International Criminal Tribunal for Rwanda, ICTR, 1994)13 and the former Yugoslavia (International Criminal Tribunal for the former Yugoslavia, ICTY, 1993),14 special courts (such as in Sierra Leone, 2000),15 and hybrid16 panels or chambers (Kosovo, 2000,17 East Timor, 2000,18 and under negotiation for Cambodia, 2003)19-these institutions are quite homogenous in terms of how they deal with offenders.20 In fact, and to varying degrees inter se, they largely cannibalize methods of prosecution and punishment dominant within those states that dominate the international political order.21 Consequently, the new "constitutional moment" in international law that thoughtful scholars such as Leila Sadat posit emerges from these new institutions, in particular the ICC, may be more a matter of brickand-mortar design than of theoretical conceptualization.22

There is, of course, vivid debate regarding the suitability of dominant methods of punishment in the ordinary domestic context. …

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