Heller: Review Essay, Deconstructing International Criminal Law

Kevin Jon Heller (Univ. of Auckland - Law) has posted Review Essay, Deconstructing International Criminal Law (Michigan Law Review, forthcoming). Here's the abstract:

In "Atrocity, Punishment, and International Law" (Cambridge University Press, 2007), Mark Drumbl provides an important and compelling critique of international criminal law's ability to deliver transitional justice in societies that have experienced mass atrocity. In his view, the individualized liberal-legalist criminal trials favored by international criminal law - as exemplified by the ICTY, ICTR, ICC, and the numerous hybrid tribunals - have two basic flaws: they fail to account for the collective nature of mass atrocity, because they cannot reach bystanders, states, and international organizations, all of whom play a necessary role in its perpetration; and their selectivity and relatively lenient sentences deprive them of meaningful retributive or deterrent value. Those limitations do not make such trials superfluous, but they indicate that international criminal law needs to be pluralized in two important ways: vertically, in terms of the allocation of authority between international tribunals and national and local transitional-justice institutions; and horizontally, in terms of the kinds of accountability mechanisms national and local institutions use to address mass atrocity.

This review essay agrees with Drumbl's deconstruction of international criminal law, but argues that his proposed reconstitution of it is likely to be both less effective and less just than he believes. After summarizing Drumbl's argument, the essay identifies three basic problems with his proposals for vertical pluralization: (1) very few national or local transitional-justice institutions will satisfy the requirements for qualified deference; (2) in the wrong hands, Drumbl's requirement that such institutions avoid inflicting "great evils" on victims or third-parties could easily devolve into little more than a modern-day repugnancy clause, imposing Western values on those who knowingly reject them; and (3) it is not clear why it should never be acceptable to tolerate a "great evil" in the name of peace. The essay then discusses two basic problems with his proposals for horizontal pluralization, focusing on his support for non-punitive collective sanctions: (1) in order to avoid being retributively unjust, collective sanctions would have to be imposed using the same liberal-legalist procedures that paralyze international criminal trials; and (2) only retributively unjust collective sanctions could effectively deter mass atrocity.