Author: Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute at Washington and Lee University.] Atrocity Speech Law is a hefty book. It is, as Professor Gordon himself describes it, a ‘tome’. Atrocity Speech Law is rigorous and ambitious: packed with information, breathtakingly detailed, brimming with integrity, and vivified by important themes of law...

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington & Lee University, and Visiting Scholar, CICJ, VU University Amsterdam.] This post is part of the NYU Journal of International Law and Politics, Vol. 47, No. 4, symposium. Other posts in this series can be found in the related posts below. Atrocity begins with story-telling. Elegies lament unrighted wrongs from ancient battles. Fables weave and spin the bravado of national or ethnic superiority. The roll, pitch, and yaw of an entire literature ritualizes dehumanization: stories of vermin, poisonous mushrooms in children’s books, bespectacled intellectuals, enemies of the state. Then come exhortations to cut the tall trees, to take out the garbage, and to make way for Lebensraum. The filth is to be scrubbed, the society purified, the landscape cleansed. Atrocity metastasizes once these stories become performed. New stories then emerge. These stories narrate pain and suffering. Their tales, however, may redound with redemption; their ballads may record harrowing strategies of survival paired with forensic accounts of death; at times, too, chants of resistance arise. In the aftermath of atrocity, these stories become memory. The construction of memory, then, becomes an act of the living and a sign of life. For survivors, authorship over memory represents the exercise of agency and autonomy. For perpetrators and their supporters, revising (or denying) memory – also an act of authorship – becomes a tactic to thrive in changing times. It is no surprise that in the aftermath of mass atrocity the recovery of memory, and its reclamation, matters so much to so many. The hunger for memory, however, intersects with the blandness of law. This encounter frustrates, perhaps most acutely for victims. It is here that Professor Lopez enters the conversation. She recognizes this frustration. She also gestures towards a path forward. For her, law can respect memory. It can channel stories of survival, subjugation, and suffering. While Professor Lopez is an optimist about law’s potential, she remains more circumspect about how, exactly, we should understand memory. In a particularly thoughtful argument, she contends that conversations ought to move towards “collective memory.” For Professor Lopez, collective memory arises when those most affected by mass atrocity “though discussion and ritual … merge their fragmented recollections into one holistic narrative.” Collective memory is unscripted. It emerges organically through a synthesis of informal conversations, shared glances, tacit rejections, and knowing nods. Drawing from a rich array of sources, Professor Lopez posits that collective memory is more accurate, consistent, and concise than individual memory. In sum, then, Professor Lopez effectively exposes law’s predilection for individual conduct and illustrates how this penchant inhibits law’s ability to inflect collective action. For her, this is a loss. It is a loss because victims yearn for more. Professor Lopez’s response is reformist. Human rights lawyers should preserve and promote collective memory. Integrating collective memory of victims into legal process, for Professor Lopez, would clarify how atrocity begins and could document the pain it inflicts, while also furthering aspirations of reconciliation, transition, the development of an historical record, nation-building, and legal reform. How to accommodate collective memory into legal proceedings? Professor Lopez’s recognizes that the criminal law may find such accommodations awkward, if not downright unworkable. The criminal law, after all, is primarily about adjudging the guilt or innocence of the defendant. The need to focus on the defendant requires the foregrounding of all sorts of due process rules. This need stymies the use of collective memory in penal process because collective memory cannot be properly vetted. Professor Lopez therefore directs our gaze elsewhere. She points to tort-based claims, action civile, and the victims’ participation scheme built by the Rome Statute and present at the ECCC. Professor Lopez’s article makes a tremendously valuable contribution to the literature on transitional justice. Her diagnosis of law’s foibles, and her proclamation of the potential of collective memory, is sterling. She has the courage to offer some remedial responses. Her article is a rich base for a symposium. For me, her piece opens two shutters. The first is architectural. The second is discursive.

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington and Lee University School of Law.] This post is part of our symposium on the latest issue of the Leiden Journal of International Law. Other posts in this series can be found in the related posts below. Darryl Robinson is among the most exciting thinkers currently engaged with international criminal law (ICL). In his latest piece, the subject of today's discussion, he surveys the field. While much of academic work is given over to exploiting fissures and wedges, Darryl yearns for compatibilities. Ever the optimist, he searches for bridges and synergies. Darryl – rightly, I think – notes that ICL’s roots lie in a teleological formalism. Motivated by the very human impulse to pursue accountability for the equally human impulse to inflict great harms, the formalists established the foundations and charted the territory. Celerity was the name of the game; time was of the essence. But making sense of the macabre isn’t easy, so the formalists soon had to contemplate instrumental short-cuts. One of these, as Darryl identifies, was to the principle of legality. Acting in the name of the law necessitated diluting the purity of the law. Retroactivity, duress, specific intent, and the causality of contribution became viewed as vaguely inconvenient instead of centrally constitutive. These compromises, in turn, spawned a second wave of scholarship, which Darryl describes as the liberal critique. This critique recovered the value of legality for ICL. Its advisories, however, also risked rendering the system unworkable, too exigent, and somewhat unwieldy. This critique may have overemphasized general principles of law drawn from ordinary systems, rather than built lex specialis for violence in extremis. A third critique then emerged, which Darryl portrays as the critique of the liberal critique. This critique – in which Darryl generously incudes my own efforts – intimates that the collective nature of atrocity is such that compromises to liberal legalism, while not necessarily justifiable, are eminently understandable. In this regard, the critique of the liberal critique could be seen as coming full circle and supporting the work, and the compromises, of the formalists. Alternately, the critique of the liberal critique could be seen as nihilistic – nothing works, so let’s do nothing. But neither caricature gets to the heart of the critique of the liberal critique. The focus of this critique is on methodology and ordinality, that is, questioning why the criminal law should be such a primadonna in the pursuit of post-conflict justice. This critique does not suggest inaction but, rather, exceeding present efforts and, in addition, working differently. This critique begins with an epistemological inquiry: from where do we know what we know about mass atrocity? It ends with an assumptive challenge: why is it, exactly, that we believe that the criminal law has so much to offer and yields such a high return on an at times astronomical investment?

[Mark A. Drumbl is Class of 1975 Alumni Professor of Law & Director of the Transnational Law Institute, Washington and Lee University School of Law] This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.
International criminal law reclines upon simple binaries: good/evil – for instance – as well as authority/helplessness and perpetrator/victim. Victims, however, can victimize. And, correlatively, perpetrators can both kill and save at the same time. Perpetrators may do so selflessly at great risk to themselves or selfishly at great benefit to themselves. Or they may do so impulsively – perhaps with no discernible motive at all. In Roman Polanski’s The Pianist, Itzhak Heller, a Jewish ghetto police guard, suddenly pulls the protagonist Władysław Szpilman out of a line of detainees forced to board a train to Treblinka. Heller, derided for having badly beat up Jews, risks death to save Szpilman – but only Szpilman, who himself is far from heroic – from death.  The scene ends. The audience is left hanging in the characters’ “grey zone”. Why did Heller do that? And why Szpilman?
The erraticism of human nature unsettles the reductive parsimony of the courtroom. It is tough enough to convict human rights abusers for their inhumanity. Now, the law has to recognize their glimmers of humanity, as well, and make sense of these dissident facts. Assuredly, tout comprendre, c’est tout pardonner; but perhaps, also, tout considérer, ça pardonne également. Professor Galbraith’s important article explores how international criminal law (ICL) grapples with the abuser who also saves the lives of others.  She does so through an examination of the place of “good deeds” in the sentencing practice of the ad hoc tribunals. Galbraith understands “good deeds” to signify acts of humanitarian behavior undertaken by the convict, presumably in the time-frame covered by the indictment, towards individuals on the “other side,” notably, individuals who are not the specific victims of the convict’s crimes. Galbraith’s research demonstrates that the ICTY and ICTR consider good deeds (a.k.a “selective assistance”) in mitigation of sentence, albeit in a manner that is inconsistent within the tribunals themselves and also inconsistent as between the two tribunals. Galbraith is concerned with this incoherence. In response, she builds a normative argument in favor of considering good deeds in mitigation. She roots her argument in a retributive understanding that – regardless of motive –good deeds undertaken toward members of the other side ought to count. Hers is therefore an objective, effects-based analysis. For Galbraith, obligation does not matter either: in other words, respecting customary international law requirements also constitutes a good deed. Regardless of pre-existing duty, or subjective motive, “a defendant who has done good deeds towards those on the other side of the conflict merits less retribution, from a collective perspective, than a comparable defendant without such good deeds.”  The less selective the assistance, to be sure, the more it should count. Galbraith’s article is a valuable contribution to sentencing, which chronically presents as one of ICL’s most under-theorized aspects. It does not surprise me that judicial treatment of good deeds as mitigating circumstances remains unpredictable and desultory.  Galbraith’s development of a workable test is to be applauded. In my book Atrocity, Punishment, and International Law, I chided ICL for its excessive dependence on the principles of ordinary municipal criminal law – which I had described as “borrowed stilts.” Galbraith’s push to ground a theory of good deeds in the specifics of collective atrocity crimes is a refreshing bid to develop a sui generis penology for ICL. Five aspects of Galbraith’s project, nevertheless, uncork broader questions.

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).] Assuredly, discussion of the Charles Taylor sentence might revolve around its length – 50 years, for a 64 year-old man – and the proportionality between such a heavy sentence and the fact that most (but certainly not all) of his criminal...

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).] How does Kony2012 inform our understanding of child soldiers? How does it sculpt international efforts to prevent child soldiering? Kony2012 feeds into and reinforces pre-existing assumptions and narratives. I argue in my book Reimagining Child Soldiers that these assumptions...

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).] A long time in coming, to be sure, and slightly anticlimactic, the Lubanga judgment nonetheless represents a watershed – a first, in any event, for the ICC.  What might the legacies of the Lubanga judgment be? I...

[Mark A. Drumbl is a Professor at Washington and Lee University School of Law] In Complementarity in Crisis:  Uganda, Alternative Justice, and the International Criminal Court, Professor Alexander Greenawalt strikes a cautionary note.  He underscores that the ICC cannot on its own effectively serve transitional justice interests.   It needs help.   In the end, Sasha concludes that "the Ugandan peace process reveals...

[Mark Drumbl is the Class of 1975 Alumni Professor of Law, Washington and Lee University School of Law.] Susan Benesch’s VJIL article is timely, thoughtful, and important. She insightfully sets out the catalytic relationship between hate propaganda and genocide. Her comparison of the methodological similarities between the Rwandan and Nazi German contexts is instructive. The mainstreaming of hate-mongering is a condition...

[Mark Drumbl is the Class of 1975 Alumni Professor of Law at Washington & Lee Law School and a discussant in the Opinio Juris On-line Symposium. He blogs regularly at AIDP Blog.] In Toward an International Criminal Procedure: Due Process Aspirations and Limitations, Professor Gregory Gordon inquires why international criminal procedure "has failed to achieve the level of due process offered...