Case Explained: Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law - Legal Perspective

Case Explained:This article breaks down the legal background, charges, and implications of Case Explained: Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law – Legal Perspective

abstract. The
historian Raul Hilberg once observed that we would all be happier if we
believed the perpetrators of the Holocaust were crazy. But mass atrocity is
never so simple. We may search in Germany, Bosnia, the Congo, or Rwanda for the
madman or the deviant, but often we will find instead an ordinary person, one
who commits a crime at the barrel of a gun or who succumbs to the awful
indirect coercion that pervades entire communities in the throes of
transformative violence. In the ashes of atrocity, criminal courts have been
created, but many scholars have come to think that the basic structures of
criminal law—built to address willful deviance from society’s norms—are
inappropriate for dealing with the complex context of mass atrocity crimes.

This
Article challenges this critique by making three contributions. First, it
presents a novel descriptive account of how courts addressing mass atrocity
crimes wrestle with the concept of deviance in criminal responsibility. Second,
applying principles of domestic criminal law, the Article proposes a theory of
“aspirational expressivism,” which envisions international criminal law as
legitimately and positively setting forth aspirations for human behavior,
rather than simply drawing a line between normalcy and deviance. Finally, the
Article builds on the theory of aspirational expressivism to make the normative
claim that courts can be more than forums for condemning the world’s horrors,
as their role has been predominantly conceived. Instead, they can be—and should
be—sites of storytelling, providing an opportunity for understanding how individuals
choose to perpetrate unspeakable crimes, articulating how we hope people will behave
in the most demanding of circumstances, and shaping our beliefs about the way
we ought to behave under the unflattering light of the way we actually do.

author. Assistant Professor of Law,
University of California, Berkeley, School of Law. This Article won the 2014
Association of American Law Schools Section on Criminal Justice Junior Scholars
Paper Competition. For helpful comments and conversations, I am deeply grateful
to Ty Alper, José Alvarez, Ken Bamberger, Nels Bangerter, Dan Bodansky, David Caron,
Anupam Chander, Jen Daskal, Mark Drumbl, Avlana Eisenberg, Dan Filler, Laurel
Fletcher, Stavros Gadinis, David Gartner, Andrew Guzman, Monica Hakimi, Angela
Harris, Oona Hathaway, Kinch Hoekstra, Sandy Kadish, Chris Kutz, Máximo Langer,
Katerina Linos, Larry May, Judge Gabrielle Kirk McDonald, Luis Moreno-Ocampo,
Melissa Murray, Jens Ohlin, Darryl Robinson, Bertrall Ross, Andrea Roth, Peter
Rush, Jonathan Simon, Gerry Simpson, David Sklansky, Avani Sood, James Stewart,
Madhavi Sunder, Karen Tani, Jenia Turner, Kish Vina-yagamoorthy, Chuck
Weisselberg, Andrew Woods, and participants at the ASU International Law
Colloquium, Berkeley Law Faculty Retreat and Junior Working Ideas Group, Junior
International Law Scholars Annual Meeting, Legal Scholarship 4.0 Conference,
SMU Criminal Justice Roundtable, Vanderbilt Law School Faculty Workshop, UC
Davis School of Law Faculty Colloquium, and the University of Melbourne
Affective States in International Criminal Justice Symposium. Bita Assad,
Musetta Durkee, Britt Harwood, Shayne Henry, and Maya Karwande provided
outstanding research assistance. Ariela Anhalt and the staff of the Yale Law Journal provided excellent
editorial assistance.

Introduction

On July 16, 1995, twenty-three-year-old Dražen Erdemović shot and killed some
seventy unarmed men and boys at the Branjevo farm in the Bosnian town of
Srebrenica. Erdemović,
a low-level soldier in the Bosnian Serb army, had been ordered to execute these
individuals. When his commander, Brano Gojković, first instructed the members of the unit that they were
to kill the civilians who would soon begin arriving at the farm, Erdemović refused. Gojković told him that he
could either pick up his gun and start shooting, or line up with the victims
and face death himself. Erdemović 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.

Twelve hundred men and boys were killed that day. The
following year, Erdemović
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.
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. Erdemović became the first defendant convicted by
the ICTY.

We typically think of the criminal law as punishing those who
deviate from what society deems expected, normal, or good. And indeed, Erdemović 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, Erdemović
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.” The court sentenced Erdemović to five years in
prison, a conspicuously lenient punishment for the murder of seventy people;
yet still, it branded him a criminal.

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 Erdemović 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.
To understand all is to forgive all, the saying goes. But to conceptualize the
law as a tool of either condemnation or understanding is to create a false dichotomy.

This Article posits an alternative interpretation, one that
envisions a role for the criminal law in both denouncing mass atrocities as
crimes and conceding that these crimes are often committed by ordinary
people—not “alien others,” not madmen, not deviants.
By understanding the criminal law as an instrument that legitimately sets forth
aspirations for human behavior in
trying situations, rather than one that simply reflects what is identified as
normal or typical, this Article argues that international criminal courts need
not go to the lengths they do to paint the defendants in front of them as
deviants. And by recognizing the normalcy of those perpetrators, the courts can
be more than forums for voicing outrage against the world’s horrors, as they
have been principally conceived. Instead, these courts can serve as
sites of storytelling, providing both an opportunity to derive insights into
how individuals choose to perpetrate crimes and an occasion for articulating
how we hope people will behave in the most hopeless of circumstances.

This Article intervenes in a longstanding debate over the
appropriateness of domestic criminal law structures for offenses under
international law. Many scholars and practitioners in the field have noted that
although international criminal law shares traits with a national system of
criminal law, it differs in significant ways from “ordinary” criminal law.
International criminal law exists to address situations of exceptional
violence, terror, and despair: organized massacres of hundreds of thousands, systematic
rapes and mutilations motivated by hatred for the ethnicity or religion of the
victims, forced pregnancy, enslavement, torture. International criminal law is
seen as unique, as distinct from ordinary criminal law, because of the
widespread savagery it must confront; instead of ordinary crime, it targets
extraordinary crime.

The average perpetrator, too, is said to be different in the
international criminal law context. In contrast to the perpetrator of ordinary
domestic crime, whose actions deviate from those of other members of society,
the perpetrator in mass atrocity commits crimes alongside masses of other
individuals who are doing the same. Whereas the perpetrator of ordinary crime
acts in violation of widely accepted social norms, the perpetrator of mass
atrocity participates in acts that, in his community, fall squarely within the
parameters of widely accepted social norms.
For individuals in conflict settings, participation in group crime may fortify
a sense of community and belonging when society is otherwise disintegrating. In
the time, place, and society in which they are committed, some crimes—even the
most horrific of crimes—may be quite frighteningly normal.

These unique features of mass atrocity have been the subject
of a rich scholarly discussion. Mark Drumbl, Laurel Fletcher, Christopher Kutz,
and Gerry Simpson, among others, have examined questions of deviance through
the lenses of criminology, social psychology, philosophy, and sociology, inspiring
a robust debate about whether the reality of mass atrocity is adequately addressed
by the law that intends to respond to it. This Article steps into that
conversation and seeks to transform it by offering three contributions to the
existing scholarship: (1) a novel descriptive
account of how international criminal tribunals conceive of the role of
deviance in criminal responsibility; (2) a new theoretical understanding of expressivism in international criminal
law; and (3) based on that theory, a normative
critique of the courts’ approach to deviance and a path to a more productive
role for the law in the wake of mass atrocity. Throughout its analysis, this
Article takes the unconventional approach of drawing examples from domestic
criminal law—from provocation to sexual assault to drunk driving—to disentangle
some of the confusions that have beset international criminal law. This
methodology is deliberate, built on a belief that the project of international
criminal law is at its core an attempt to answer the same questions about
choice and responsibility that arise in domestic criminal law. Accordingly, the
ultimate aim of this Article—to illuminate in criminal law an opportunity to
understand how individuals make decisions and to model behavior rather than
just condemn it—finds focus here in the context of mass atrocity, but the
Article has implications for situations of pressure and horror confronted by
domestic criminal law as well.

This Article proceeds in four Parts. Part I briefly describes
the critique of international criminal law that I refer to as the “deviance
paradox”: the notion, put forward by many scholars, that international criminal
law is ill suited to assign responsibility to perpetrators of mass atrocity
crimes, many of whom are not deviant in the same way that perpetrators of
ordinary crimes are. To explain why those who study mass atrocity maintain that
these extraordinary crimes are understandable—even as they are horrific—this
Part presents social science and historical research that suggests that social
pressures can drive ordinary people with no propensity for violence to commit
violent acts. Stanley Milgram’s shock experiment, Philip Zimbardo’s Stanford
prison experiment, and Christopher Browning’s study of the ordinary men
responsible for rounding up and killing over one million people in Nazi Germany
provide powerful evidence to support the theory that in the right circumstances,
evil can be quite ordinary.

Part II offers a look at how international courts have
grappled with the role of deviance as they assign criminal responsibility.
Based on a study of all final judgments and sentencing decisions and appeals
therefrom in the ICTY and its sister court, the International Criminal Tribunal
for Rwanda (ICTR), this Part
shows that the emphasis on categories of deviance and normalcy that has
dominated scholarship in this area also has infused the work of the courts. I establish
this through two observations. First, I demonstrate how the courts, seeking to
avoid aspirational standards and at the same time accepting the notion that
ordinary people commit terrible crimes, create categories of individuals who,
they assert, are not ordinary and
thus should be expected to behave differently from the norm. The courts contend
that even if the average person might succumb to coercion, the soldier should
not; or that even if the average person might lose himself in a whirlwind of
violence, the well-educated one should not. Second, I
show that the courts, by augmenting punishments for leaders who have exploited
an impressionable population’s trust, implicitly endorse the notion that
ordinary people succumb to pressures to obey and conform. Put together,
the acknowledgment of human frailty in atrocity and the accompanying expectation
of better behavior from certain categories of people enable the courts to
insist that even though perpetration of these crimes in these settings may be
quite typical, for these defendants,
it is a mark of deviance.

Part III disputes a central foundation of scholars’ notion of
the deviance paradox and courts’ apparent understanding of responsibility in
mass atrocity—that criminal law punishes behavior diverging from the
ordinary—and introduces the theory of aspirational expressivism. I posit that
criminal law is better understood as an instrument that often sets out
aspirational goals rather than one that merely punishes deviation from ordinary
behavior. The basic idea of aspirational expressivism will sound familiar to
anyone immersed in Anglo-American criminal law, through concepts such as the
reasonable person and casebook classics like Regina v. Dudley and Stephens.
But this understanding of aspirational expressivism has been obscured in
international criminal law, as scholars and practitioners in the field have
envisioned the law’s capacity to punish legitimately as contingent on the
offender’s deviation from the ordinary. Criminal law, however, operates not
only in this negative space, identifying acts that individuals ought not
undertake, but also in a positive space, proffering ideals of how individuals ought to behave—even if they typically do
not.

Based on this understanding of criminal law, Part IV urges
that international criminal courts interpret their work through the lens of
aspirational expressivism, which would allow them legitimately to punish
deviations from aspirational standards. The courts could then both condemn
those who succumb to situational pressures and admit the normalcy, however
horrific, of crime in certain situations—without having to devise arbitrary
categories of individuals who should be expected to behave better than the
average person. International criminal courts should acknowledge that even if
the average person may behave just as a defendant did, the criminal law may
still legitimately punish, as the law does more than just reflect average
behavior: it can function as a voice of our moral imagination and move us to
aspire beyond the ordinary.

This approach reveals a way out of the deviance paradox. By recognizing the criminal law as an instrument that can legitimately
set out aspirational ideals of behavior—rather than fearing that an absence of
deviance in the accused weakens the operation of the criminal law—we can see
the normalcy of violence as a feature that makes that violence an even more
appropriate target for the criminal law. To accept that criminal law
regularly establishes aspirational standards for its subjects is to accept that
criminal courts can acknowledge the ease with which individuals slip into violent
conduct and in the same breath demand that they behave otherwise.

Recognizing the capacity for criminal law to punish
deviations from aspirational standards not only provides a normative
justification for prosecutions and convictions of seemingly ordinary
individuals, but also creates a space for criminal judgments to assist in
understanding how mass atrocity takes place. If international criminal courts
admit that the defendants before them were drawn to violence by social forces
rather than straining to insist that there was something deviant about the
offenders, judges could use the trial process and the decisions they produce to
explore how ordinary people came to commit horrific acts. After decades of
“never again,” the community that has created international criminal courts
needs to think about atrocity prevention in more nuanced ways. Examining the
motivations of individual perpetrators has far more promise for contributing to
an end to atrocities than do prison sentences meted out to a handful of
offenders with no attempt to comprehend how they metamorphosed from ordinary
people to extraordinary criminals.

Part IV concludes with a response to counterarguments. First,
it considers the contention that punishment of an ordinary person making understandable
choices is unfair. Criminal law often condemns such a person: when new laws
punish conduct that remains common, such as texting while driving or even
sexual intercourse in the absence of affirmative consent, the criminal law is
punishing ordinary people who made understandable choices. We are thus already
accustomed to criminal law extending its reach to such individuals in its
aspirational norm-setting functions. Moreover, punishment of individuals who
engaged in common or understandable behavior can be made more palatable through nuance and individualization in
punishment.Beyond
this, the cornerstone of criminal responsibility and punishment should not be
typicality of the offender or the offense, but rather the exercise of choice
and judgment by a person who engages in conduct prohibited by the criminal law.
If we understand the criminal law as justified by its aspirational expressive
purposes, then punishment of such individuals despite their ordinariness can
serve to confirm that even in the commission of mass atrocity crimes, there are
opportunities for choice, and there are opportunities to choose differently
from the norm.

Second, Part IV addresses arguments that admitting the role
of social and environmental forces in motivating perpetrators of mass atrocity
would compromise the legitimacy of international courts. Critics argue that
recognizing the larger contextual factors at work in driving perpetrators would
dangerously draw attention to the role of foreign states and international
organizations in creating the situation that led to the violence in the first
place. This argument has some purchase. Consider the rotten social background
defense of American criminal law, which would provide a partial defense to
those who could show that their criminal acts were in part attributable to
socioeconomic deprivation. One explanation for why the defense
never got off the ground in the United States was its uncomfortable
acknowledgment that the system that punishes an individual is the very same
system that contributed to that individual’s wrongdoing. Nonetheless, I argue that conceding
the role of the system in contributing to mass atrocity crimes can enhance the
legitimacy of the courts rather than detract from it. I work through this
contention by drawing lessons from domestic criminal law to propose that we
should accept that institutions that contribute to crimes can also, and do
also, contribute to their prevention. Recognizing the responsibility of
bystander states and organizations in the perpetration of atrocities need not
vitiate the responsibility of the individual perpetrators; the two can coexist.
Moreover, recognizing the responsibility of those states or organizations may
generate a more responsibly involved international community, one that
contemplates not merely a duty to intervene to protect human rights, but also
the longer-term and more complex consequences of intervention for the politics
and stability of societies.

Ultimately, this Article is an examination of the stories the
law puts forward about what it means to live through the world’s greatest
horrors, and the way violence does and does not change us. It is an account of
law’s most basic functions—not simply resolving disputes or determining guilt
or innocence, but also shaping our beliefs about what is typical and deviant,
about normal human weakness and extraordinary aspiration, about the way we
ought to behave and the way we actually do.

I. the
deviance paradox

One of the most ubiquitous critiques of the project of
international criminal justice is the contention that the criminal law, built
as it is around a foundational belief in responsibility for willful deviation
from society’s norms, cannot properly account for the fact that the ordinary
perpetrator of mass atrocity crimes is normal rather than deviant. I refer to
this contention as the “deviance paradox,” deliberately choosing the word
“paradox”—a seemingly irreconcilable situation that in fact has a solution—to
indicate that there is indeed a way out of the conundrum. This Part describes
the deviance paradox. After situating the paradox in international criminal
law’s foundation in individual responsibility, this Part discusses social
science and historical research upon which scholars rely to support their
contention that in times of extraordinary violence, to commit a crime is to be
normal.

A. Individual
Responsibility

International criminal law is, in essence, the law of
atrocity. Encompassing prohibitions against genocide, crimes against humanity,
war crimes, and aggression, this body of law originated in the
International Military Tribunal at Nuremberg, which tried twenty-two military
and political leaders of Nazi Germany. Since that time, international
tribunals have been established to prosecute individuals for crimes committed
during the disintegration of Yugoslavia and the 100-day genocide in Rwanda, and
now a permanent International Criminal Court has jurisdiction over atrocities
committed around the world.

International criminal law is distinct from any municipal
criminal law in the narrowness of the crimes under its jurisdiction, but it
resembles domestic criminal law in its general structure and fundamental
principles, including its central principle of individual, as opposed to
collective, responsibility. Whereas international law traditionally
contemplates responsibility for only the state, rather than the individuals who
run the state, international criminal law seeks accountability exclusively for
individuals. Scattered precedents for this focus
on individuals existed prior to World War II. The Treaty of Versailles, for example,
charged Kaiser Wilhelm with the “supreme offence against international morality
and the sanctity of treaties” and declared the Allies’ intention to prosecute
him, while it also granted the Allied Nations the right to try additional
individuals for “violations of the laws and customs of war.”
Only in the aftermath of the Second World War, however, did leaders begin to
consider the normative implications of individual responsibility as opposed to
state responsibility. The declaration of the Nuremberg Tribunal that “[c]rimes
against international law are committed by men, not by abstract entities” has
become something of a slogan for the core tenet of international criminal law
that blame should be placed on individuals, not on states or militaries or
political organizations. For the
architects of Nuremberg, this focus on individuals was instrumental: trials of
individuals could pinpoint those directly responsible for the crimes of war,
thus affirming that not all Germans were guilty.

When international trials for mass atrocity were revived in
the 1990s, this emphasis on individual responsibility persisted. The creators
and supporters of the ICTY and ICTR pushed for individual responsibility in
part because they believed that doing so could halt the cycles of collective
blame that caused the atrocities in the first place. As stated in the ICTY’s
first annual report, “If responsibility for the appalling crimes perpetrated in
the former Yugoslavia is not attributed to individuals, then whole ethnic and
religious groups will be held accountable . . . . [C]linging to feelings
of ‘collective responsibility’ easily degenerates into resentment, hatred and
frustration and inevitably leads to further violence and new crimes.”
That is, if all Serbs are responsible for the massacres at Srebrenica, then
peace can never exist between Serbs and Bosniaks; but if Milošević and Mladić and Karadžić and a handful of
others are responsible, then perhaps the larger communities can coexist.

B. Collective
Perpetration

Prosecutorial discretion, too, might be expected to play a
role in alleviating some of the problems posed by the deviance paradox. To the
extent that the individuals prosecuted are targeted on account of their willful
deviation from social norms, singling them out as reprehensible would not alarm
those who worry that prosecution of the non-deviant offender might undermine
the foundations of international criminal law. Prosecutorial discretion,
however, can only go so far in softening the blow of the deviance paradox. For
one, international criminal law exists outside of the particular individuals
who are prosecuted in international courts: even if the courts only touch a
handful of people, the law, properly understood, still applies to anyone whose
conduct is proscribed, prosecution or not. Moreover, the ripple effects of
international accountability are felt in national courts, where criminal
prosecutions have targeted low-level individuals in cases guided at least in
part by international laws. As a result, even if the low-level soldier with a
gun to his head, or the otherwise peace-loving teacher who got swept up in the
violence around him, will not be haled before an international tribunal ever
again, he might still be fair game for a national tribunal; and even if not,
the notion that he could be subject
to prosecution, in either a national or an international court, continues to
trouble those who question the appropriateness of allowing criminal punishment
to stretch its fingers into the realm of actions that many, perhaps most, could
have done.

II. deviance
in mass atrocity: three stories

The prominence of questions of
deviance and normalcy in scholarly studies of international criminal law
prompts consideration of whether courts, too, consider these kinds of dynamics.
Accordingly, this Part examines how international criminal courts conceive of
the role of deviance in assigning criminal responsibility. Based on a reading
of the final judgments, sentencing judgments, and appeals therefrom in the ICTY
and ICTR, I argue that the international criminal courts, like many of the
scholars who study them, have seized on the categories of deviance and
normalcy, and in their decision making they emphasize the ways in which the
defendants before them differ from the average person and thus may be treated
as deviant.

I offer three sketches of individuals who committed horrific
crimes. I first return to Dražen Erdemović, whose story began this Article’s exploration of the
deviance paradox. I then turn to individuals who, the courts say, should have
known better because of their privileged education or upbringing. Finally, I
look at individuals who were found to have taken advantage of an impressionable
audience. In each section, I situate the acts of these individuals and their
treatment by the tribunals in the context of similar cases. Challenging the dominant
understanding that the tribunals fail to contemplate the deviance of offenders
in mass atrocity situations, this Part
devises an original descriptive account to explain how the tribunals approach
the dynamics of individual responsibility in mass atrocity. Indeed, rather than
ignoring dynamics of deviance and normalcy, the tribunals assess culpability
through the lens of those categories.

Before turning to the cases, I offer a caveat. While the
cases discussed reflect a broader trend in the tribunals, the analysis that
follows is not meant to suggest that in every case the tribunals are guided by
one consistent or coordinated approach to deviance. The trial chambers of the
ICTY and ICTR operate separately, and decisions are made by many different judges.
Moreover, the courts do not uniformly follow the approach I describe. In a few
cases, for example, education or cultural background is used as a mitigating
rather than an aggravating factor.
Sentencing judgments are, moreover, scattered and vague; even when an
aggravating factor is mentioned, there is no indication of whether it lengthens
a sentence or is merely being noted. My aim is not to contend that one
approach governs or to make a quantitative claim about, for example, the
frequency with which certain features are treated as making a person more or
less blameworthy. Instead, I intend in this Part to point out one approach that
guides the tribunals in many situations and to draw from these observations a
larger argument about our understanding of the criminal law and its vast
possibility as an instrument of change.

A. The
Reluctant Executioner

No individual defendant in international criminal law
demonstrates the difficulty of the deviance paradox more sharply than Dražen
Erdemović. Perhaps
for that reason, arguably no decision in international criminal law is more
notorious than the judgment in Erdemović’s case. He enlisted in the Bosnian Serb army in 1994,
after brief stints in both the Bosnian and Croatian
militaries soon after the eruption of the Bosnian civil wa r. He had never seen combat, and he was
taken by surprise when, on a hot day in July 1995, his commanding officer instructed
him and his fellow soldiers to shoot the Muslim men and boys who would begin
arriving at the farm by bus that morning. Erdemović initially refused: “I said immediately
that I did not want to take part in that and I said, ‘Are you normal? Do you
know what you are doing?’” His commanding officer gave him a
choice: either cooperate and kill, or, “if [he was] sorry for [the victims],
line up with them” and be killed himself.
Erdemović reluctantly
agreed to participate. According to
his own estimate, he killed some seventy unarmed men and boys that day.

When the war ended a few months later, Erdemović left the army, tormented
by what he had done at Branjevo farm, and he confessed his crimes to a
journalist. Within days, he was arrested by
Yugoslav authorities and charged by the ICTY with crimes against humanity and,
in the alternative, war crimes. After he pleaded guilty and was
sentenced to a ten-year prison term,
Erdemović
appealed on the grounds that his guilty plea had not been informed and unequivocal. Because Erdemović insisted when he was
entering his plea that he had killed only because he was coerced, the Appeals
Chamber of the ICTY had to examine the question of whether a claim of duress
contradicted an admission of guilt. The
Appeals Chamber thus had to grapple with the novel question of whether duress
could be a complete defense to the killing of innocent persons or whether it
could only offer mitigation at sentencing.

Confronted with this issue of first impression, the Appeals
Chamber undertook a detailed assessment of the meaning of the duress defense
and its availability in this case. The Chamber ultimately split, with three of
the five judges determining that duress could not be a complete defense to
homicide.
The majority’s conclusions were primarily explained in a separate opinion by
Judge McDonald and Judge Vohrah, who analyzed the question on both doctrinal
and policy grounds. In its evaluation of the doctrine, the opinion found that
no unequivocal rule of customary international law existed as to the availability
of duress as a defense to homicide.
The opinion then turned to an examination of state practice and concluded that
civil-law states generally allow duress to serve as a defense to homicide,
whereas common-law jurisdictions sometimes limit the defense to non-homicide
crimes. Based on this assessment, the
majority concluded that it could not find a general principle of law recognized
by civilized nations that would allow an assertion of duress as a complete
defense to homicide crimes under international law.

Having found no definitive rule of international law either
prohibiting or allowing a duress defense, the opinion turned to policy
considerations.
The opinion of Judge McDonald and Judge Vohrah emphasized that the law “must
serve broader normative purposes in light of its social, political and economic
role.”
Given that domestic jurisdictions concerned with mere “ordinary crimes” would
preclude a defendant from asserting a duress defense, they argued, the law
could not recognize such a defense for extraordinary crimes:

If national law denies recognition of duress as a
defence in respect of the killing of innocent persons, international criminal
law can do no less than match that policy since it deals with murders often of
far greater magnitude. If national law denies duress as a defence even in a
case in which a single innocent life is extinguished due to action under
duress, international law, in our view, cannot admit duress in cases which
involve the slaughter of innocent human beings on a large scale.

Although it focused in this passage on the magnitude of
violence at issue in international crimes, the opinion ultimately relied on a
moral principle, rather than a question of quantity, to justify its decision to
preclude a duress defense for Erdemović. The opinion declared that its ultimate goal was to
enforce international humanitarian law, which is concerned with “the protection
of humankind.”
To allow a soldier to assert a duress defense against charges of murder would
inevitably undermine that body of law by allowing him
to prioritize his own safety above that of innocent civilians.
Accordingly, the decision set out “an absolute moral postulate which is clear
and unmistakable for the implementation of international humanitarian law”: no
matter how dire the circumstances, and no matter how useless resistance to a
threat may be, duress may not be a defense to the killing of innocents.

Commentators both inside and
outside the Tribunal have interpreted the opinion of Judge McDonald and
Judge Vohrah as setting a standard of behavior that no person could live up to,
as calling for heroism in circumstances under which only an extraordinary
person could ever be a hero. In dissent, Judge Cassese lodged a
scathing criticism of the majority’s judgment. Judge Cassese would have allowed
a duress defense for two reasons. First, because no specific rule of customary
international law prohibits the use of a duress defense against crimes against
humanity or war crimes based on the killing of innocent persons, Judge Cassese
argued that the general rule of allowing a duress defense for any crime should
apply. Second, Judge Cassese differed from
the majority in his approach to the purpose of the criminal law. In his view,
“[l]aw is based on what society can reasonably expect of its members. It should
not set intractable standards of behaviour which require mankind to perform
acts of martyrdom, and brand as criminal any behaviour falling below those standards.”
To Judge Cassese, Erdemović did what any person in his situation would have done. As
a result, to describe that conduct as criminal would pervert the meaning of the
criminal law.

The fact that these victims would have died even without
Erdemović’s participation
was particularly meaningful to Judge Cassese
and to Judge Stephen, who also wrote a dissent. Judge Stephen contended that
there simply was no real choice available to Erdemović, as “the desire for self-preservation
is not merely instinctive but rational.”
Accordingly, he wrote, “a law which would require [that desire] to be
contradicted is not consistent . . . with a rational system of law.”
Outside of the tribunal, too, the Appeals Chamber’s refusal to allow Erdemović to assert a duress
defense came to be understood as an unrealistic demand for heroism and a
contortion of the basis for criminal law.

This understanding of the majority opinion, however, misses
an important feature of its reasoning. Instead of demanding one standard of
behavior, the decision set out two: the standard of the ordinary person and the
standard of the ordinary soldier. By constructing these alternative baselines
of behavior, the opinion asserted that the criminal law should not demand
heroism and insisted that the Appeals Chamber was merely criminalizing
deviation from the ordinary, even as the court indeed demanded heroism from
Erdemović.

The opinion directly took on the argument that “the law
cannot demand more of a person than what is reasonable,”
focusing first on the question of whether the court should allow a defense when
the accused participates in the killing of victims who would be killed even
without his participation. Rather than
disputing that the ordinary person would yield to such a threat, the judges
conceded that it is indeed unreasonable for a person to sacrifice his life when
doing so would not save the lives of victims who would be killed despite that
person’s resistance. Beyond this,
the opinion admitted that it would be unreasonable for a person to yield to a
threat of death even if the victims would not
be killed anyway. Indeed, the decision stated that the person who, “when faced
with a threat to his child’s life, . . . decid[es] to obey a command to shoot
innocent persons in order to save the life of his child” is “act[ing] reasonably.” Thus, the decision did not expect or
even imagine that a person would resist threats to his life or his family;
instead, it accepted that any ordinary person in these circumstances would
yield to the threat of death and take innocent lives.

Nonetheless, despite asserting that the ordinary person would
yield to a threat of death even if that meant killing innocent people (and that
an ordinary person would yield to a threat of death if those innocent people
would be killed regardless), the opinion still reached the conclusion that
Erdemović should
have resisted—but not because the judges expected Erdemović to be a hero, they
claimed.
Instead, Judge McDonald and Judge Vohrah insisted
that what they asked of Erdemović was not heroism, but ordinary
behavior. The opinion conceded that a person faced with a threat of
death would submit. But a soldier
faced with death is another matter.

Early in their opinion, Judge McDonald and Judge Vohrah
stated that it was confining its analysis to the question of whether duress
provides a complete defense for a soldier
who has been charged under international law with killing innocent persons.
Notably, the prosecution had not restricted its arguments in this way; instead,
it had examined the question of the availability of the duress defense to any
defendant. It was the choice of Judges McDonald and Vohrah to inquire as to the
availability of the defense to a soldier in particular.
Restricting the analysis to the issue of a soldier
faced with a threat of death, rather than evaluating any personunder the same circumstances, allowed
the majority to transform Erdemović’s behavior from normal, understandable human behavior
into deviant behavior that diverged from the conduct expected of him.

The opinion suggested that Erdemović did what any person would have done;
threatened with death, he killed people who would have been killed even if he
had resisted.
But if that is the case—if Erdemović did the same thing a reasonable person would have done in
the same situation—then how can a criminal conviction and prison sentence be
justified? Judges McDonald and Vohrah resolved this tension by turning Erdemović into a deviant,
casting him not as an ordinary person, but as an ordinary soldier. Even though
the ordinary person would yield to such a threat, Erdemović belonged to a
category of person of whom we will—indeed, we must—ask more. Accordingly, the
decision was able to maintain that it was not asking for heroism, as the
dissent accused, but rather was simply punishing a deviation from ordinary
behavior. To do so, however, the decision shifted its lens so that Erdemović’s actions diverged
from the standards expected of him.

B. The
Lapsed Cosmopolitan

Erdemović is an especially hard case in international criminal
law. The tribunals typically do not indict such low-level perpetrators,
and Erdemović
faced direct coercion in a way that other defendants generally have not.
Nonetheless, the ICTY’s approach of carving out categories of actors who can be
expected to behave differently from—that is, better than—the ordinary person
represents a larger trend. Just as the ICTY asserted that soldiers should be
expected to have considered the possibility that they would lose their lives,
the courts have treated individuals who grew up with cosmopolitan or educated
backgrounds as having the capacity to behave differently from the ordinary
person. By failing to live up to the special standard of behavior the courts
set for them based on their background, these defendants show themselves to be
deviant and thus more deserving of punishment.

Duško Tadić, for example, was the first individual tried by the ICTY.
During the war, he was a member of the paramilitary forces that supported the
Bosnian Serb army when it attacked the town of Kozarac.
During the raid on Kozarac, which formed part of a larger effort to expel the
entire non-Serb population from the area, Tadić participated in several killings and in the forced transfer
of masses of civilians to detention camps. Tadić did not have a gun to his head; by most accounts, he was
a thug, a man who seemed to enjoy the power he wielded so violently over
others. There was no need to go beyond the
acts he committed, and his attitude in committing them, in painting Tadić as criminally
responsible. Yet at sentencing the Trial Chamber noted that, because Tadić was raised in an
atmosphere of “ethnic and religious tolerance,” and because he was “capable of
compassion towards and sensitivity for” others, his commission of crimes during
the civil war required “an even greater evil will” for him than such crimes
would require “for lesser men.” The court imagined,
moreover, how these “lesser men” would behave. Citing the “virulent” and “endemic”
propaganda that “contributed to the crimes in the conflict,” the Trial Chamber
quoted the work of social psychologists Herbert Kelman and V. Lee Hamilton, who
wrote that “‘moral restraints against killing or harming become less
effective’” when the victims are dehumanized.
Thus, the average person may be so affected by the circumstances of mass
violence that he commits crimes he would not otherwise commit. By virtue of his
upbringing, however, Tadić
fell into a category of individuals of whom we should expect more.

This same type of reasoning emerges with respect to
defendants who are well educated. For individuals like Paul Bisengimana,
participation in the Rwandan genocide was particularly egregious in the view of
the ICTR because he “was an educated person who could appreciate the dignity
and value of human life and was aware of the need for and value of peaceful
co-existence between communities.”
Similarly, the ICTR concluded that because Augustine Bizimungu had an
“exemplary education and military background,” he “was in a position . . . to
halt the killings.” The ICC has
pursued a similar approach in the one sentencing judgment it has issued to
date, the sentencing of Congolese warlord Thomas Lubanga Dyilo. The ICC noted
that Lubanga “is clearly an intelligent and well-educated individual, who would
have understood the seriousness of the crimes,” and the court held that those
factors were relevant in determining his sentence.

These holdings recall the judgment by the U.S. military
tribunal at Nuremberg in the Einsatzgruppen
case, prosecuted against twenty-four defendants who were members of the SS
death squads during the Second World War. The Einsatzgruppen leadership
consisted of highly “educated and cultured” individuals,
and the tribunal seemed particularly offended by the idea that men who were so
“well-bred” did not know better than to carry out a campaign of extermination.
The tribunal remarked:

The defendants are not untutored aborigines incapable
of appreciation of the finer values of life and living. Each man at the bar has
had the benefit of considerable schooling. Eight are lawyers, one a university
professor, another a dental physician, still another an expert on art. One, as
an opera singer, gave concerts throughout Germany before he began his tour of
Russia with the Einsatzkommandos. . . . It was indeed one of the many
remarkable aspects of this trial that the discussions of enormous atrocities
w[ere] constantly interspersed with the academic titles of the persons
mentioned as their perpetrators. If these men have failed in life, it cannot be
said that it was lack of education which led them astray.

In the treatment of both these men
and the culturally and educationally privileged defendants before the ICTR and
ICTY, courts contend that the average person might have committed the acts in
question. At the same time, they also define categories of individuals who are
different from—and purportedly superior in moral capabilities to—the average
person, and who, by behaving as would the average person, show their deviance. The expectation that those who are educated or cultured
should have known better than to get caught up in the violence around them
indicates an approach to deviance and criminal responsibility that concedes
that some—the “untutored aborigines,” in the
words of the Nuremberg Tribunal, or the “ordinary soldier[] whose morals were merely
loosened by the hardships of war,” in the words of the ICTY Trial Chamber —will be swayed by the powerful or will succumb to the
pervasiveness of violence. At the same time, this approach also proposes that
others, by virtue of their backgrounds, can be expected to do better, to know
better, to withstand the whirlwind that surrounds them and resist the
temptation to kill.

C. The Hateful Provocateur

The previous two sections address the ways in which
international criminal tribunals create categories of people who are expected
to behave differently from the average person. When the courts create these
categories, they locate criminal blameworthiness in defendants’ failure to meet
the particular standard of behavior set for the accused’s particular subgroup.
Alongside the creation of these categories, in their decisions on leaders the tribunals also have offered
a portrait of how they view the average person. In particular, the tribunals
depict leaders’ culpability as deriving not only from their acts of masterminding,
planning, or encouraging crimes, but also from their activities aiming to
affect the choices of the individuals who carry out the crimes. In doing so,
the tribunals construct an image of the ordinary person as participating in
crimes because of natural susceptibility to pressure and coercion.

Hassan Ngeze provides one illustration. Ngeze, a Rwandan journalist, founded
and served as editor for the newspaper Kangura,
a publication that aimed to appeal to Hutu readers by branding itself as “the
voice that seeks to awake and guide the majority people” in Rwanda.
Soon after its creation, Kangura began
to warn of an impending Tutsi uprising, printing lists of Tutsi leaders and
Hutu “accomplices” who should be watched and publishing Ngeze’s “Hutu Ten Commandments,”
which included such statements as “[e]very Hutu should know that all Tutsi are
dishonest in their business dealings,” “[t]he Rwandan armed forces must be
exclusively Hutu,” and “[t]he Hutu should stop having mercy on the Tutsi.”

The ICTR charged Ngeze with multiple crimes, along with two
co-defendants who were members of the steering committee that established the
Radio Télévision Libre des Mille Collines, the radio station that broadcast messages
urging Hutus to massacre Tutsis during the genocide. Ngeze was convicted of
genocide, conspiracy to commit genocide, direct and public incitement to commit
genocide, and persecution and extermination as crimes against humanity. In determining Ngeze’s sentence, the
Trial Chamber considered not only his actions in disseminating hateful speech
and calling the public to violent action, but also his position of power.
Ngeze, said the Trial Chamber, “was in a position to . . . shape public
opinion.” Instead of using that power to work
toward peace, he “abused the trust of the public by using his newspaper to
instigate genocide.” The Trial Chamber stated that Ngeze
“poisoned the minds of his readers, and by words and deeds caused the death of
thousands of innocent civilians.”

In considering Ngeze’s “abuse[]” of the public’s trust as an
aggravating circumstance, the ICTR recognized that individuals can be shaped by
their environments. The judgment compared Ngeze and his co-defendants to Julius
Streicher, the publisher and editor of the anti-Semitic Nazi weekly Der Stürmer who was convicted of crimes
against humanity and executed in 1946.
In its judgment, the Nuremberg Tribunal described Streicher’s work as “poison .
. . injected into the minds of thousands of Germans which caused them to follow
the National Socialist policy of Jewish persecution and extermination.”
It is possible to understand the culpability of both Ngeze and Streicher as
lying in their hatred and their desire to realize the destruction of entire
populations. But both the ICTR and the Nuremberg Tribunal saw their crimes as
social rather than individual: their culpability lay in their capacity to cause
others to share in their hatred and
to carry out their desires.

Ngeze is by no means an isolated case; this approach to
culpability frequently appears in decisions of the ICTR and ICTY. Early in its
work, the Trial Chamber of the ICTR held that “[a]buse of positions of authority
or trust is generally considered an aggravating factor,”
and the court has returned repeatedly to the idea that a person who abuses the
trust of the community is particularly blameworthy. Simeon Nchamihigo, for
example, was accused of genocide, complicity in genocide, and crimes against
humanity based on his orders to kill Tutsi civilians. In its judgment, the
Trial Chamber expanded upon its typical holding that abusing a position of
authority will be considered an aggravating factor. It noted that because
Nchamihigo, a deputy prosecutor in the Rwandan Ministry of Justice during the
genocide, held a position in which he was “expected to uphold rule of law and
principles of morality,” his actions were particularly powerful in influencing
the public.
This type of reasoning extends beyond leaders who had political power to those
who had relationships of trust with their constituents. As Minister of the
Interior, Calliexte Kalimanzira had little political authority, but the fact
that “[h]e was loved and appreciated for his efforts at empowering his
community by contributing to the agricultural development of his native region”
aggravated his blameworthiness, according to the Trial Chamber of the ICTR.
The respect that the community had for him “made it likely that others would
follow his example.”

In each of these cases, and in several more, the courts have
conceded that for many individuals in mass atrocity settings, perpetration of
crime stems not from any particular disposition toward violence, but rather
from the circumstances—influential leaders encouraging perpetrators to act and
reassuring them that there will be no consequences, or propaganda that
dehumanizes the victims and characterizes violence as a social act.
By drawing on narratives of leaders who abuse the trust of their
constituencies, the courts offer a vision of ordinary people succumbing to
social pressures. In the courts’ telling, the crimes of these leaders enable us
to understand how ordinary people picked up machetes and garden tools and used
them to slaughter their neighbors.

III. a more complete account of
expressivism in international criminal law

The tribunals, it seems, seek to have it both ways: even as
they have succumbed to the idea that criminal responsibility rests on deviance,
they have found ways to neatly do away with the problem in some cases by
devising reasons to expect more of the defendant than they ask of the average
person. This approach anticipates and provides a defense against a challenge
that would insist that the perpetrators’ crimes are understandable and thus
inappropriate for criminal punishment. Nonetheless, we should be wary of
embracing the tribunals’ artifice of identifying categories of people who
should be expected to behave differently from the average individual. The
following two Parts explain why the question of criminal responsibility in mass
atrocity should be thought of as an opportunity
for developing individual notions of responsibility, rather than a conundrum in
which the concept of responsibility must be compromised in order to justify
criminal punishment.

After pointing out the flaws in the international criminal
courts’ deviance-focused approaches to decision making, this Part contends that
these approaches rest on an unnecessarily narrow vision of criminal law, and it
offers a more complete account that draws on familiar functions of domestic
criminal law. Whereas believers in the deviance paradox warn that criminal
law’s legitimacy may be compromised by the punishment of behavior that is not deviant,
I argue that criminal law has two discrete and accepted functions. First, criminal
law can legitimately target conduct that diverges from a standard of ordinary
behavior. In so doing, the criminal law sends a message not only about what
constitutes deviance, but also about what constitutes normalcy. Second,
criminal law can legitimately target conduct that diverges from an aspirational
standard of behavior. In so doing, the criminal law sends a message about behavior
that might not be normal, but is desirable nonetheless. Understood through the
lens of these dual functions, criminal prosecutions for mass atrocity crimes can serve a legitimate goal—even for
perpetrators who are not deviant in the way that the paradigmatic perpetrator
of criminal acts is—by giving voice to the better angels of our nature and
setting out a model for behavior in the most demanding of times.

A. Unjustified
Expectations

Is there any sense to expecting more of soldiers, or those
who come from cosmopolitan backgrounds, or those who are well educated?
Soldiers, of course, occupy a unique position in times of war. They are
required to prioritize the lives of innocents over their own. For conscripts, this choice is not
voluntary,
and even those who voluntarily enlist, like Erdemović, might not truly anticipate losing
their lives. Erdemović
was never an eager soldier. He had been discharged from the Croatian forces
when he tried to help a Serb cross the border, and when he enlisted in the
Bosnian Serb army, he requested a non-combat position and was placed in a unit
that carried out reconnaissance missions and manned border checkpoints.
Erdemović, then,
may well not have contemplated losing his life when he joined the army. But even
if he had—even if a soldier voluntarily enlists and has full knowledge of the
possibility that he will not survive the next week or month or year—facing a
risk of death at the hands of an enemy differs dramatically from laying down
one’s life in the face of one’s own threatening and criminal commander.
Does it make sense to expect the average soldier to accept death in these
circumstances? Unless we drastically redefine our understanding of the average
battlefield, it does not.

Creating categories of people who are believed to differ from
the average person—the soldier, the educated person, the cosmopolitan—is at its
heart an exercise in othering. By separating people who are expected to behave
differently, these decisions treat the defendant as abnormal, drawing a line
between us and them. In so doing, the decisions declare that the criminal is
distinctive in making the choice that he did.
In Emile Durkheim’s terms, by identifying the deviants, the courts enable
everyone else to unify around shared values, not simply around the rule of law
or around a culture of accountability, but around a mutual belief that we never
would do what those people in the dock did. If such line-drawing were
successful, it could serve to legitimize the project of international criminal
law by convincing onlookers of not only the moral responsibility of those who
are tried and convicted, but also the moral authority of the courts to brand
these individuals as deviant.

The line-drawing, however, is not only unsuccessful, but is
also unnecessary. For one, it is apparent that at least some of the defendants
were driven by their own sadism and cruelty, and pointing to their educational
or cultural background seems simply beside the point in explaining their
blameworthiness. But more generally, creating a class
of deviants is necessary only if we narrowly envision criminal law as voicing
condemnation for certain acts that diverge from the ordinary. That is, of
course, an important basis of the criminal law, but it is not the only one.

B. Deviance
and Positive Expressivism

First-year criminal law courses often begin by introducing
the idea that criminal prohibitions declare society’s belief that certain
conduct merits condemnation. Crimes are said to be those acts
that diverge from social norms;
‘‘blame is reserved for the (statistically) deviant.’’ Enforcing the law against
individuals who commit those socially deviant acts can reinforce the norms
themselves. Thus, by punishing murder, or robbery, or driving while
intoxicated, the criminal law voices society’s assessment that those acts
should not take place, that they are harmful, that they merit censure.

This interpretation of the purpose of punishment reflects a
belief in an expressive function of criminal law. Rather than focusing
exclusively on, for example, the retributive value or deterrent objectives of
the law, expressive theories assert that law has an educative role and examine
the “message” sent through trial or punishment. Expressivist theories may exist
separately from other justifications for criminal law or may overlap with them.
For example, guilty but mentally ill verdicts, which might be difficult to
justify as a matter of deterrence, retribution, or even incapacitation, make
more sense under a theory of expressivism as a way to express condemnation of
the offender as blameworthy and brand him as a criminal.
Hate crime laws, meanwhile, may reflect both expressive and retributive
motivations, as they “signal that perpetrators of hate crimes are more culpable
than those who commit parallel crimes.”

Theorists of international criminal law have seized on the
expressive functions that criminal law can serve. Indeed, theories of expressivism are
not merely descriptive statements about what the law can do; they have become
normative statements about what the law should
do. In justifying the initiation of criminal trials for mass atrocities,
scholars and practitioners point to the capacity for international criminal law
and trials to communicate the outrage of the international community in the
face of certain acts, and they further emphasize the need for the international
community to demonstrate its intolerance of the criminal acts.
As Antonio Cassese writes, “the international community’s purpose” in
establishing a system of international criminal law was “not so much
retribution as stigmatization” of certain conduct.

As Cassese’s comment shows, expressivism in international
criminal law has operated primarily in negative space: criminal law
communicates to the public what conduct should not be undertaken. But even as
stigmatization of particular acts forms an important component of what the
criminal law does, and of what it should do, this is not its only task. Just as
criminal law declares society’s belief that certain conduct is condemnable, it
also declares that certain conduct is normal or acceptable.
Examining the functions of domestic law, David Garland has emphasized this
affirmative side of criminal law’s expressive function, noting that penalties
communicate not only “how we should think about . . . evil, . . . pathological,
. . . and illegitimate,” but also “how we should think about good . . . ,
normal . . . , [and] legitimate.” Garland’s analysis is largely rooted
in the work of Emile Durkheim, whose
thinking on the sociology of punishment has laid the groundwork for theorists
of the expressive or educative functions of the criminal law. Durkheim describes punishment as a “sign indicating that
the sentiments of the collectivity are still unchanged” despite the choice of
the offender to diverge from those collective sentiments, and he argues that crime serves an
integrative function by binding the community of law-abiders in their outrage
against deviant criminals. Other
scholars, too, have proposed that the criminal law serves to voice positive
messages. Jean Hampton, for example, asserts that criminal punishment “‘takes
back’ the demeaning message” communicated by the offender to the victim.
In international criminal law, much has been made of the capacity for the trial
to announce the triumph of the rule of law. Lawrence Douglas elegantly
describes the Nuremberg Tribunal as “an act staged not simply to punish extreme
crimes but to demonstrate visibly the power of the law to submit the most
horrific outrages to its sober ministrations[,] . . . making visible . . . the
sweeping neutral authority of the rule of law.”

In calling attention to the positive side of expressivism, I
highlight a phenomenon that is different from the rule of law rationales, one
that operates, in the manner of Garland’s work, by means of affirmatively
communicating to the public what is normal or acceptable alongside its
declaration of what is abnormal and unacceptable. Of course, this declaration
is not explicit. The criminal law only punishes; it does not offer gold stars
to the most admirable citizens. But in its choices about which behavior is
punished and which behavior is not, and in its decisions about how behavior is
punished, the law reveals certain attitudes about what is normal and what is
deviant.

The law of provocation provides an instructive example. The
partial defense of provocation provides that a person who kills another in the
heat of passion, upon adequate provocation, is guilty of manslaughter rather
than murder.
When treated as an excuse, the defense arises out of the notion
that the “heat of passion impairs a person’s agency,” as someone acting in hot
blood “finds it more difficult to exercise self-control than a person in a
cooler emotional state.” In early common
law, finding one’s wife in the act of adultery was categorically considered
“adequate provocation”; the defendant thus only had to establish that he was in
a sudden heat of passion, without reasonable time to cool off, in order to meet
the requirements of the defense. Witnessing the adulterous act was considered
adequate provocation because lawmakers believed that any ordinary man would
lose his self-control in that situation. As the Michigan Supreme Court
explained, “In determining whether the provocation is sufficient or reasonable,
ordinary human nature, or the average
of men recognized as men of fair average mind and disposition, should be taken
as the standard. . . .” Accordingly,
because it is “ordinary human nature” to respond to adultery with hot blood,
witnessing adultery is adequate provocation. As for the broader question of why
losing one’s cool upon adequate provocation should be a defense at all, the
Supreme Court of New Mexico explained the basis of the law as follows: “[T]he
man who takes life under those circumstances is not to be punished; not because
he has performed a meritorious deed; but because he has acted naturally and
humanly.”

Although the modern law of provocation has abandoned the
early common-law approach of allowing a defense as long as the killer was
responding to an act that fell into one of the discrete, defined categories of
legal provocation, it still retains the notion that the
person who can claim legally adequate provocation deserves mitigated punishment
because that person has behaved naturally, as any normal person would. The drafters of the Model Penal
Code, for example, characterize the provocation defense as a “concession to
human weakness.” That is, it is “common experience”
that anger compromises a person’s ability to behave appropriately. Thus the killer who merits a
provocation defense is not an unusual person; instead, that person is acting in
a way that, the law says, we can understand.

In this sense, the criminal law of provocation serves not
only a negative expressivist function—that is, voicing the law’s condemnation
of the act of killing—but also a positive expressivist function: voicing the
law’s assessment that the person who loses his cool in certain situations
behaves in a way that is normal.
This interpretation is not meant to suggest that the provoked killing is
commendable; the killer is still punished for manslaughter and is still identified
as a perpetrator of a serious crime. But by allowing the defense on the grounds
that doing so recognizes common human frailty, the law announces that the
person who cannot maintain his self-control in certain circumstances merits a
reduced punishment because an ordinary person would have done the same.

C. Normalcy
and Aspirational Expressivism

If we imagine criminal law as legitimately punishing
individuals only for deviating from the norm, or from behavior that can be
expected of the ordinary person in a particular situation, then it is difficult
to accept international criminal law as it is currently structured. Criminal
law, however, does far more than this. In addition to defining ordinary
behavior in contradistinction to deviance, criminal law—in certain cases—delineates
behavior that may not be ordinary, but that should set the standard for
appropriate conduct nonetheless. I describe this as “aspirational
expressivism,” theorizing that the criminal law declares certain conduct to be
behavior to which people should aspire.

The “reasonable person” standard that pervades Anglo-American
law provides one example of aspirational expressivism. The reasonable person is
sometimes conflated with the “ordinary person,” but the two are distinct and
ought to be considered separately. While we might aspire to be reasonable at
all times, the ordinary person—who might be defined as the average or typical
person—may well fail to meet those aspirations. Accordingly, what the reasonable
person does or thinks often differs from what the ordinary person does or
thinks. Accordingly, if a defendant held an
unreasonable belief that certain minorities are dangerous, that belief would
not be relevant to determining the validity of a self-defense claim in a
prosecution for the killing of a member of that minority, no matter how typical
the belief.

Outside of the reasonableness inquiry, too, criminal law sets
forth standards that call on individuals to be better than the average person. State in the Interest of M.T.S.
transformed rape law by interpreting New Jersey’s sexual assault statute to
hold that, in the absence of “affirmative and freely-given permission” to the
specific act of penetration, any act of sexual penetration constitutes the
“physical force” necessary to establish sexual assault. The expectation that an individual
will provide “affirmative and freely-given permission” may strike some as out
of touch with ordinary patterns of sexual intimacy,
but does that make it invalid as a standard enforced by the criminal law? There
is no reason that it should. Even if the
average person does not conform to these rules, the criminal law may encourage
behavior to shift in that direction.
So, too, with newer crimes like distracted driving. Philippa Curtis, a
twenty-two-year-old woman in Oxford, England, was sentenced to a prison term of
twenty-one months after she crashed into and killed Victoria McBryde while
texting with friends. Many people sympathized with Curtis. Even a close friend
of the victim said of Curtis, “‘[S]he seemed like such a normal girl. . . .
Until Tory’s death I texted while driving, as have most people. I don’t think
[Curtis] realized the danger she was causing.’”
Curtis’s behavior may well have been normal and typical. Nonetheless, the
criminal law still may legitimately punish that behavior—and may even seek to
punish that behavior precisely because it is
typical—in order to modify widespread perceptions of what is ordinary
behavior.

To be sure, all criminal law is aspirational in some
contexts. If a law prohibiting murder is violated by one person in a community
of thousands, then that law may be understood as representing an aspiration for
the one, even as it is defined by deviance for the rest. I refer, however, to a
type of law that sets out aspirational standards for a broader set of the
community—a prohibition that identifies conduct that might not be ordinary or
typical, but is desirable nonetheless—and, conversely, identifies conduct that
might be ordinary and typical, but is undesirable nonetheless.
As an aspirational tool, criminal law envisions a set of behaviors that might
one day become the norm.

IV. a new vision for criminal courts
in extraordinary times

In situations where masses of people victimize others, there
is no denying that violence and cruelty are typical, ordinary, or normal. But
despite this ordinariness, courts still have an opportunity to send a powerful
message with their decisions. This Part builds upon the cases examined in Part
II and the theoretical analysis provided in Part III to offer a way out of the
seemingly paradoxical world of criminal responsibility for individuals in mass
atrocity situations. Rather than creating categories of people who should be
thought of as different from the norm so that defendants can be identified as
diverging from their particular category’s higher standard of behavior, the
courts should insist that even though the demands of the law may surpass what
we might expect of the average person, they still provide fair standards around
which to build criminal responsibility. By recognizing the criminal law as a
statement of aspirational standards, we solve the paradox; instead of interpreting
an absence of deviance and the application of the criminal law as
self-contradictory, we can see the normalcy of violence as making it an even
more appropriate target for the criminal law.

This Part goes beyond a defense of aspiration in criminal
law, however, to argue for the promise of greater candor in decision making in
international criminal law. Criminal law’s history of setting out aspirational
norms—and the instances in which the law has succeeded in changing norms so
that the aspirational standard became typical—would provide cover for decisions
that punish even those who look like ordinary men,
but straightforwardness in the courts’ reasoning is essential. Tom Tyler has
written that people obey the law when they believe it is legitimate—when they
believe it is the right thing to do, and when they believe that the authorities
making decisions about the law are fair in doing so.
The courts should thus abandon their efforts to craft stories of deviance about
the perpetrators before them and instead more candidly identify the sources of
criminal blameworthiness. These perpetrators are culpable not because in committing
their crimes they failed to meet some standard of behavior for a particular
class of people who should be expected to be better than ordinary, but rather
because in doing so they failed to live up to the standard of behavior that,
even if the average person would fail, we can all still hope to meet.

Before proceeding, I should note that this defense of the
capacity of international criminal courts to achieve expressivist goals is not
meant to suggest that the answer to the question of how to prevent atrocities
or to enable communities to move forward is more criminalization and more
prosecutions. To the extent that we rely on criminal prosecutions to achieve
these goals, however, admitting that ordinary people undertake extraordinary
crimes is a productive endeavor.

A. Judging
and Understanding

1. Narratives
of Perpetration

Studies of international criminal law abound with
expectations that the courts can provide an officially sanctioned account of
what happened in a time of mass violence. Narratives can serve as powerful
antidotes for the collective amnesia that often accompanies mass atrocity.
Criminal trials broadcast a story that challenges and ultimately triumphs over
perpetrators’ insistence that crimes never took place or that they were not
crimes at all. Narratives can
also provide some insight into how these crimes came to take place. The stories
presented in international criminal law are about years of conflict between
communities; they tell of cycles of transgressions and years of accumulating
anguish, campaigns of dehumanization, and systems of vulnerability. Alternatively,
courts play out the stories of victims, giving voice to the many individuals
who are silenced by atrocity. What is missing, however, is the story of the
perpetrators.

“We tell ourselves stories in order to live,” wrote Joan
Didion in The White Album. “We look
for the sermon in the suicide, for the social or moral lesson in the murder of
five. We interpret what we see, select the most workable of the multiple choices.
We live entirely . . . by the imposition of a narrative line upon disparate
images . . .”
In the law, trials are the means by which judges or juries or the public at
large try out different narratives—of a particular crime or of the larger
world—and select one that will prevail. Law is “the open hearing in which one
point of view, one construction of language and reality, is tested against
another.”
And ultimately in a court, one point of view prevails; one narrative emerges triumphant.

To speak of crafting a story out of genocide might seem
simply too ghastly, but it is the impulse of human nature, and it is a
venerated goal of international criminal courts.
The written opinions of these tribunals overflow with details of names and
places and acts, but they provide little insight into motivations, feelings, or
decision making by particular defendants at particular times. Why did Radislav
Krstić, for
example, go along with Mladić’s orders to eliminate all Muslims in Srebrenica? At
trial, he made clear that he did not have a particular hatred for his victims.
“We all went to school together, we socialised together, and we had a great
respect for each other,” he said.
Did he believe it was the only way to save his life? The only way to ensure the
survival of his people? Was he too weak or too scared to resist? Did he simply
not care, or did he grow to hate the victims? Did he actively choose to be a
part of the massacre, as the ICTY contended?

The impulse of international criminal tribunals to view perpetrators
through categories of normalcy and deviance may offer greater moral clarity to
the stories of mass atrocities; it is easier to accept that a person took
another’s life or body or family because of the perpetrator’s distinctive
monstrosity than it is to accept that many people may well have done the same.
But blurring these categories, accepting that ordinariness and criminality can
reside in the same person, and paying greater attention to how individuals
decide to participate in violence may provide some answers to questions that
are horrific to ask but nonetheless must be answered.
Such information is valuable for victims, who may want to know how or why those
responsible for the deaths, rapes, and torture of themselves and their loved
ones came to commit such evil. It also is
valuable for the world at large. The narrative function of international
criminal law has been understood as a service to victims and to formerly warring
communities.
It is received wisdom that providing an accurate account of a crime allows individuals
and peoples to move on and take solace in the official acknowledgment of what
happened.
Beyond that, however, more information about individual decision making can
illuminate what allows a person to be drawn into mass violence. A greater
understanding of these dynamics may be of use in creatively thinking about how
to avoid future conflicts. International criminal law has made progress in
holding accountable a handful of individuals who have committed atrocities, but
it is not clear that the advent of prosecutions has affected individual
choices. Massacres still take place, leaders and foot soldiers still commit
crimes, and it seems doubtful that the unlikely prospect of trials will change
this reality anytime soon. If the very existence of trials does not help to
avert future atrocities, then perhaps at least we can learn something from
those trials to move in this direction.

2. A
Decision Grounded in Aspirational Expressivism

What would a judgment guided by aspirational expressivism
look like? To return to Dražen Erdemović, the ultimate punishment—a term of five years’
imprisonment for killing seventy people—might look just the same. But the account
of Erdemović’s
culpability would look quite different. Instead of admitting that the ordinary
person would have done the same as Erdemović but insisting that he should have behaved differently
because of his status as a soldier, a judgment that accepted the aspirational
role of criminal law would admit that Erdemović committed an act that many would do, and indeed, that
many did. Such a judgment would acknowledge the normative role of the law not
only in reinforcing clear prohibitions against killing,
but also in voicing that the law operates in horrific situations—even in situations
in which we might understand why the defendant did what he did—and in seeking
to comprehend why Erdemović made the choice he did.

One piece of this effort is recognizing that, no matter how
horrific the circumstances, there are moments of choice. The Erdemović
decision portrays agency at two extremes. The prosecution asserted, and Judges
McDonald and Vohrah agreed, that the situation that Erdemović faced was
characterized by a “lack of moral choice.” At the same time, the court’s quick
leap to expecting more of soldiers resulted in portraying them as having no
choice in the matter; this reasoning assumes that it should have been obvious
to Erdemović
that he should not have picked up his gun. Whereas critics of the international
criminal legal regime argue that courts should pay more attention to the lack
of agency exercised by individuals in these situations as a result of indirect
and direct coercion, the courts
here minimize the agency that actors exercise in the opposite direction: they
judge these defendants as if they should have seen no alternative but to act
lawfully.

Characterizing a person in these circumstances as having
either no choice but to kill or no choice but not to kill fails to consider the
complexity of the choice, and it misses the opportunity that resides in trying
to understand that complexity. At trial, Erdemović testified that on other occasions he refused the orders
of commanders to kill innocent people,
a fact that, curiously, is never mentioned in the decision denying him a duress
defense. What made him able to resist in those situations but not in this one?
Why was there choice in those situations and not this one? Perhaps the lesson
of Erdemović’s
crime is that he was a model for
critical thought and resistance—he tried to avoid combat; he refused orders he
found unconscionable; he recognized the brutality of what he was being asked to
do. The judges deciding his fate may have recognized these circumstances, and
for that reason sentenced him to a prison term of only five years; but still,
the decision on duress frames him as a deviant rather than a model. More
attention to the real choices he made could transform what international
criminal courts do. Scholars and practitioners who are troubled by the deviance
paradox in international criminal law rally around the idea that agency is
compromised in circumstances of mass violence —but agency is not vitiated altogether.
These judgments offer an opportunity to understand agency and choice as a
spectrum rather than as extremes.

Understanding agency and choice in this way, moreover, may
provide a response to those who would find unsettling and unjust the punishment
of an “ordinary” person making “understandable” choices. Again, the criminal
law does this all the time; punishing an individual for failing to adhere to
the standard of the reasonable person is exactly that.
More broadly, typicality may be a helpful proxy for what is right, and deviance
may be a helpful proxy for what is wrong. But they are only proxies, and in the
upside-down worlds in which mass atrocity takes place, that fact is critical.
What is typical and what is deviant may be transformed by circumstances. The
cornerstone of punishment and the assignment of criminal responsibility need
not be deviance. Choice, judgment, the opportunity to do something else—these
are better ways to identify the spaces in which there is opportunity for the
criminal law to do some good.

Accordingly, emphasizing the choice that was available, and
how that choice was made, can serve the goals of the criminal law. Drawing on
Kant, Hannah Arendt criticized those who, like Eichmann, “refrain[ed] from
critical judgment,” those who willingly surrendered their capacity—indeed,
their responsibility—to choose. In expecting whole classes of people
to behave differently on account of some generalized experience, however,
international criminal courts attribute to defendants that same sin of
“abnegation of the faculties of the mind.”
But these are moments of choice, not choicelessness; and courts have an
opportunity to affirm this, to grasp at some understanding of these moments,
and to imagine that when a person next faces a similar point of decision, he
may set off on a different path.

B. The
Risks of Aspirational Expressivism

1. Nuance
and Condemnation

Despite the opportunities presented by an aspirational
expressivist vision of criminal law, there are risks as well. Whenever the law
seeks to function as an agent of social change, there is a risk that overreach
will delegitimize the law or the legal system.
Especially in the context of the criminal law, and its harsh sanctions and
lasting stigma, to punish those who are widely believed not to merit sanction
may call into question the moral basis of the law. These concerns, however, are
mitigated in situations in which a person causes a serious harm, such as death,
and in situations in which punishment can be more nuanced than a stark choice
between conviction and acquittal. The
Queen v. Dudley and Stephens provides a helpful example.
Dudley and Stephens were part of the crew of a shipwrecked yacht, The Mignonette.
After weeks aboard a lifeboat with no remaining food and no fresh water, they
killed and ate the body of the ship’s cabin boy, Richard Parker, who by that
point was ill and weak. They were
rescued four days later and, when they returned home, prosecuted for the murder
of Parker.
Although law students typically learn about the two sailors as an example of a
court enforcing a sacred norm of ordinary behavior—the prohibition against
killing —the
case is better understood as an example of a court imposing an aspirational
norm—the prohibition against survival cannibalism on the high seas. A.W.B.
Simpson’s fascinating account of the circumstances surrounding this decision, Cannibalism and the Common Law, explains
that cannibalism at sea was not an uncommon occurrence during those days, and
the British government was determined to put a stop to it. The prosecution of Dudley and
Stephens represented an effort by the Crown to change the norms of the sea, to
take what was a “normal” practice
and recast it as deviant, as criminal.

Dudley and Stephens ultimately were convicted and sentenced
to death, despite the desperation of the circumstances on the lifeboat, the
normalcy of their actions on the high seas at the time, and widespread public
sympathy for their plight. The court may have been motivated to deliver a death
sentence to prove to the public the inviolability of the norm that it sought to
portray as already in existence, rather than conceding that it was merely an
aspiration. Ultimately, however, the Queen commuted the sentence to six months’
imprisonment.
The aspiration the law set out for Dudley and Stephens, and for all those who
might find themselves in a similar situation, was accompanied by mercy. The
case’s denouement may render it a cautionary tale for the fate of aspirational
law in domestic systems in which decision makers have scant opportunity to
temper punishment with understanding. But in the world of international
criminal law, there is greater promise, as punishments are flexible, and judges
have the freedom to write opinions explaining their decisions both as to guilt
or innocence and as to the sentences they impose.

2. Disavowal
and Responsibility

Some might argue that the position put forward in this
Article—that the international criminal courts should acknowledge that ordinary
individuals, not monsters, commit crimes in atrocity situations because of the
circumstances around them—is politically unfeasible. Those who hold this view
would warn that a court’s admission that a defendant is an average person
influenced by the circumstances around him—rather than one motivated by an evil
disposition—would invite reflection on the degree to which the international community
played a role in creating the very circumstances that drove the individual to
wrongdoing. Such an admission, in turn, would invite a judgment that the courts
themselves—representatives of that same international community—have no
legitimate authority to stand in judgment.
This understanding recalls the theory of the rotten social background defense.
After proposing the defense in a D.C. Circuit decision, Judge David Bazelon was
told that his idea “created more problems than it solved” because it called too
much attention to society’s role in criminal wrongdoing.
To this, Judge Bazelon responded that the problems had been there all along;
his opinions proposing the defense “simply uncovered bullets that society has
always refused to bite.”

The United Nations Security Council created the ICTY and ICTR
as efforts to hold accountable the perpetrators of horrible acts, certainly,
but also as efforts to absolve the international community of its own sins of inaction.
Atrocities took place as the world looked on; the efforts that the Council and
individual states made to prevent these atrocities were anemic. The ICTY and
ICTR were as much a way for the international community to pat itself on the
back for a job well done as they were a way to ensure reconciliation and victim
vindication.

In elaborating on a rotten social background defense, Richard
Delgado contends that society “does violence to an individual when it refuses
to prevent the deprivation and suffering resulting from its social and economic
order.”
As Delgado notes, however, the state’s responsibility in such a situation will
vary according to one’s conception of the state’s proper role.
We can imagine two ideas of the state at work in the frequent refusal of the
ICTY and ICTR to admit how context may mitigate a defendant’s blameworthiness
and their silence on the role of the international community in creating situations
of atrocity. The courts may be imagining an international community with no duties
to prevent violent situations, or they may be imagining an international community
whose only obligation is not to directly perpetuate such violence. In either
case, this scaled-back vision conflicts with a rather grandiose one of the international
community as creator and organizer of trials, as guarantor of justice, and as
final decider of responsibility or impunity.

Even if the international community expresses its outrage and
intolerance for mass atrocity at the highest pitch, it should not be permitted
to disavow all responsibility for mass atrocities, and international criminal
law should dispel the myth that the crimes perpetrated in places like Rwanda,
Bosnia, or Sudan are solely the making of particular individuals.
As Kofi Annan stated at the ceremony marking the tenth anniversary of the
Srebrenica massacre:

We can say—and it is true—that great nations failed
to respond adequately. . . . We can say—and it is undeniable—that blame lies,
first and foremost, with those who planned and carried out the massacre . . . .
But we cannot evade our own share of responsibility.

International criminal law has been
so immersed in the project of identifying individual guilt, in order to
eliminate the allegation of collective guilt, that it has failed to capture the
reality of mass atrocity. These events did not materialize out of nowhere; they
were preceded by small steps—from minor human rights abuses to campaigns of
discrimination to systemic dehumanization.
These events are distinct from isolated murders; in every instance, there was
an opportunity for the escalation to stop, and there was an international community,
a Security Council, that could have done more to try to stop it.
Although international intervention is often thought of as existing separately
from international criminal law, I urge that these two concepts be considered
in tandem. An international criminal legal regime that places more emphasis on
criminal behavior as a typical response to situational pressures could
illuminate the role of the authority figures or peers who immediately influence
the individual perpetrators, while it could also draw greater attention to the
role of other political actors who could have played a part in stopping the
atrocity.

At the same time, accepting that the international community
played a role in the creation of the atrocious circumstances does not destroy
this community’s capacity to play a role in resolving crises. In the American
criminal justice system, despite the core belief in an individual’s responsibility
for his own wrongdoing, we also acknowledge ways in which the broader society
both contributes to criminal activity and can play a part in stopping it.
Cities that fail their citizens with inadequate schools, job opportunities, or
housing organize gun buybacks and tattoo removals for former gang members.
Outside of government, too, institutions that may be seen as bearing some
responsibility for failing to prevent crimes also seek to change individuals’
behavior. College campuses offer orientation programs in which students are
alerted to the prevalence of acquaintance rape, urged to look out for one
another, and exhorted not to take advantage of those under the influence.
Bars offer free soft drinks to designated drivers.

In these scenarios and others, we accept that institutions
that contribute to crimes can also contribute to their prevention, and we still
feel comfortable holding individuals accountable for their actions. So, too,
can it be in the realm of international criminal law. Recognizing the
responsibility of bystander states and organizations in the perpetration of
atrocities need not vitiate the responsibility of the individual perpetrators.
The two can coexist and, indeed, can point to a path forward. Recognizing the
role of states or organizations in failing to intervene may convince these
actors that ex post accountability mechanisms are insufficient and may motivate
them not only to think more about intervention in impending atrocities, but
also to consider more responsibly the longer-term consequences of intervention
on the politics and stability of states and societies.

Conclusion

Discussions of international criminal law often begin by
cautioning that it vastly differs from any system’s domestic criminal law. Its
goals are more ambitious, its audiences more varied, its crimes more
horrendous, its perpetrators more ordinary.
To be sure, some differences do exist, but the dichotomy between international
and national may be overstated. The world of domestic criminal law
is rife with situations of pervasive violence and coercion, situations in which
the ostensibly deviant criminal behaves in an understandable or ordinary way.
Rather than a mark of deviance in the community, for example, carjacking can be
a rite of passage for young men entering the world of gang violence; from
there, more serious crimes become the norm.
For individuals living through the madness of domestic violence, the world
turns upside down: in their view, authorities who are entrusted with enforcing
the law offer little help, and killing the abuser can seem to provide the only
way out.
The powerful individuals who direct or enable their subordinates to sell toxic
mortgages or to torture prisoners are blameworthy not only for their willful
blindness or their direct orders, but also for their role in creating a
community in which morals are inverted and in which actions once considered
wrongful are now considered normal, appropriate, or productive. And, to be sure, the world of
international criminal law is rife with situations of deliberate and uncomplicated
wrongdoing. Sociopaths and sadists find new and expansive ways to hurt people
and wreak havoc, to terrorize the vulnerable, and to use impressionable and
scared publics as puppets to accomplish terrible ends.

These situations are united by the fact that in these moments
of wrongdoing, there is choice. And in these moments of choice, exercising
agency is neither uncomplicated nor absolute. It is compromised, and it is
complex. Criminal law can punish and blame in these moments, but to do only
that would fail to fulfill the promise of criminal law. It can also seek to
understand these moments of choice, to narrate and disseminate the stories of
those moments, to concede that they are devastatingly ordinary. They are also
devastatingly destructive, and for many observers that fact alone indicates
that these acts deserve—indeed, demand—judgment, and their perpetrators deserve
punishment. But the instrument of the criminal law need not be so blunt as to
comprise only punishment and approval. In between these extremes is space for
punishment accompanied by understanding, judgment accompanied by the woeful
concession that ordinary people do terrible things. The criminal law can serve
both needs by acknowledging the ordinariness of the acts it addresses, by
recognizing that these acts merit punishment, and by using its educative and
narrative voice to call for us all to do better.

Case Explained: Deviance, Aspiration, and the Stories We Tell: Reconciling Mass Atrocity and the Criminal Law – Legal Perspective

ByBuzz Reporter

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

By Buzz Reporter

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