Liberal Legal Norms Meet Collective Criminality
International criminal law (“ICL”) tends to focus on the same question asked by the Cambodian survivor above: who was ultimately most responsible? Focusing on the culpability of senior leaders has powerful appeal. It resonates with a natural human tendency to personify misdeeds and identify a primary locus for moral blame. It also serves political ends by putting a face on mass crimes, decapitating the old regime, and leaving room for reconciliation at lower levels. But what happens when smoking guns do not point clearly toward high-ranking officials? And how can the law address the fact that most atrocities are committed by lower-level functionaries in the field? It is seldom possible to put all-or even mostof the culprits of mass atrocities on trial. What legal doctrines and policy practices best help a society achieve the delicately intertwined goals of justice, peace, and reconciliation? Mark Osiel tackles these vexing questions in Making Sense of Mass Atrocity. Osiel is a seasoned and accomplished analyst of ICL. In this latest work, the fifth in a series of books dealing with responses to mass atrocity, he compels readers to reflect on how such crimes really happen, how the law currently addresses them, and how it should. He offers trenchant critiques of ICL and proposes significant doctrinal and policy reforms, focusing on how legal rules and practices can incentivize relevant actors to prevent or deal with such abuses. His book may rankle some of ICL’s true believers, but it offers an important and constructive contribution to a field that can sometimes use a bit more introspection.