[opiniojuris] Kevin Jon Heller: New Review Essay on SSRN

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Posted by Kevin Jon Heller:
New Review Essay on SSRN
http://www.opiniojuris.org/posts/1190251280.shtml


   I have posted a (long) review of [1]Mark Drumbl's new book Atrocity,
   Punishment, and International Law on [2]SSRN. The review essay is
   forthcoming in the Michigan Law Review's annual book-review issue.
   Here is the abstract:

     In "Atrocity, Punishment, and International Law" (Cambridge
     University Press, 2007), Mark Drumbl provides an important and
     compelling critique of international criminal law's ability to
     deliver transitional justice in societies that have experienced
     mass atrocity. In his view, the individualized liberal-legalist
     criminal trials favored by international criminal law â- as
     exemplified by the ICTY, ICTR, ICC, and the numerous hybrid
     tribunals â- have two basic flaws: they fail to account for the
     collective nature of mass atrocity, because they cannot reach
     bystanders, states, and international organizations, all of whom
     play a necessary role in its perpetration; and their selectivity
     and relatively lenient sentences deprive them of meaningful
     retributive or deterrent value. Those limitations do not make such
     trials superfluous, but they indicate that international criminal
     law needs to be pluralized in two important ways: vertically, in
     terms of the allocation of authority between international
     tribunals and national and local transitional-justice institutions;
     and horizontally, in terms of the kinds of accountability
     mechanisms national and local institutions use to address mass
     atrocity.
     This review essay agrees with Drumbl's deconstruction of
     international criminal law, but argues that his proposed
     reconstitution of it is likely to be both less effective and less
     just than he believes. After summarizing Drumbl's argument, the
     essay identifies three basic problems with his proposals for
     vertical pluralization: (1) very few national or local
     transitional-justice institutions will satisfy the requirements of
     his proposal for "qualified deference"; (2) in the wrong hands,
     Drumbl's requirement that such institutions avoid inflicting "great
     evils" on victims or third-parties could easily devolve into little
     more than a modern-day repugnancy clause, imposing Western values
     on those who knowingly reject them; and (3) it is not clear why it
     should never be acceptable to tolerate a "great evil" in the name
     of peace. The essay then discusses two basic problems with his
     proposals for horizontal pluralization, focusing on his support for
     non-punitive collective sanctions: (1) in order to avoid being
     retributively unjust, collective sanctions would have to be imposed
     using the same liberal-legalist procedures that paralyze
     international criminal trials; and (2) only retributively unjust
     collective sanctions could effectively deter mass atrocity.

   As always, comments are welcome and would be most appreciated.

References

   1. http://law.wlu.edu/faculty/profiledetail.asp?id=11
   2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014964#PaperDownload