Making Sense of Mass Atrocity

Abstract

Genocide, crimes against humanity, and the worst war crimes are possible only when the state or other organisations mobilise and co-ordinate the efforts of many people. Responsibility for mass atrocity is always widely shared, often by thousands. Yet criminal law, with its liberal underpinnings, prefers to blame particular individuals for isolated acts. Is such law, therefore, constitutionally unable to make any sense of the most catastrophic conflagrations of our time? Drawing on the experience of several prosecutions, this book both trenchantly diagnoses the law's limits at such times and offers a spirited defence of its moral and intellectual resources for meeting the vexing challenge of holding anyone criminally accountable for mass atrocity. Just as war criminals develop new methods of eluding law's historic grasp, so criminal law flexibly devises novel responses to their stratagems. Mark Osiel examines several such legal innovations in international jurisprudence and proposes still others.

How do international lawyers handle facts? The role of folk sociological theories at the International Criminal Court

“…Claus Roxin intended to undercut Eichmann’s defence strategy, which described him as a simple cog in an organization with no knowledge of the final purpose of his work (Delpla ; Osiel ). Turning the argument against Eichmann, this legal approach holds that the Nazi leaders could be considered the author of the crimes committed by their subordinates, as each member of the organizational apparatus is reduced to a mere interchangeable and disposal tool.…”

“…This doctrine is based on the early works of Claus Roxin and is identified by the term: 'perpetrator behind the perpetrator' (Täter hinter dem Täter). (Pre-Trial Chamber I, Decision on the confirmation of charges, 2008) Claus Roxin intended to undercut Eichmann's defence strategy, which described him as a simple cog in an organization with no knowledge of the final purpose of his work (Delpla 2011;Osiel 2009). Turning the argument against Eichmann, this legal approach holds that the Nazi leaders could be considered the author of the crimes committed by their subordinates, as each member of the organizational apparatus is reduced to a mere interchangeable and disposal tool.…”

The Thesis of Norm Transformation in the Theory of Mass Atrocity

“…35 At the same time, this change in the law directly counters existing social norms against "snitching" on fellow members of one's military unit. 36 Osiel's proposal clearly depends upon the theoretical assumption that it is possible to reliably identify differences in the norms accepted by particularly situated individuals across two or more moments in time. In this way this preventive application of the thesis of norm transformation parallels the explanatory applications discussed above.…”

International Criminal Law: An Ideology Critique

“…120 '[M]odern mass atrocity', with its 'polymorphic' forms of responsibility and perpetration, involve the 'intermixing of "many hands"'. 121 For these commentators, the defining feature of mass atrocity is its collective nature: it involves a broad range of perpetrators -leaders and 'conflict entrepreneurs', mid-level officials, actual killers, community members who profit from a conflict, bystanders -each with different levels of blameworthiness but all necessary for atrocity to occur. 122 Such critics suggest that ICL should adopt different forms of process and punishment.…”