Drumbl: When 'Mere Presence' Implicates, But the 'Scale of the Operation' Mitigates: The Curious Criminality of Mass Atrocity

Mark A. Drumbl (Washington and Lee Univ. - Law) has posted When 'Mere Presence' Implicates, But the 'Scale of the Operation' Mitigates: The Curious Criminality of Mass Atrocity. Here's the abstract:

This paper unpacks thorny criminological and penological questions through the lens of a single case, Prosecutor v. Grégoire Ndahimana (ICTR Trial Chamber III, 2011). This case is yet another judicial intervention into the Nyange church massacre, a tragedy that took the lives of up to 2,000 Tutsi civilians. Ndahimana was the bourgmestre (mayor) of the commune – Kivumu – in which the church was sited. He was convicted and sentenced to a 15 year term of imprisonment, less (as is customary) time served (in his case, since August 2009).

This paper initially proceeds descriptively and then pursues an interrogative bent.

As to description, this paper sets out the gruesome details of the Nyange church massacre, the background of the accused Ndahimana, and the specifics of his trial judgment and sentence. Ndahimana was convicted of genocide and of extermination as a crime against humanity by aiding and abetting as well as by virtue of his command responsibility. Judges on Trial Chamber III, however, fractured regarding modes of liability and also regarding factors in mitigation. As to modes of liability, the majority dismissed many of the allegations against Ndahimana and found that he had command responsibility only over the communal police, whom he failed to punish for crimes they committed on April 15, 1994, and that he aided and abetted the church demolition merely by being present at the time (April 16) and lending tacit approval thereto. As to penological determinations, the majority relied upon the systemic nature of the demolition and the broad coordination that it necessitated in order to mitigate Ndahimana’s sentence. The majority posited that his involvement may have been “more the product of duress” than of “extremism or ethnic hatred.” Judge Arrey sharply dissented regarding both liability and sentence.

As to interrogation, this paper inductively cycles back from the judgment to explore more fully the admixture of situational and dispositional factors that fuelled the Nyange church massacre. The Ndahimana case exposes the murkiness of individual agency within connived collective criminality. It elucidates the clumsiness of the purported joint criminal enterprise – the infighting, tensions, and squabbles among group members – while recognizing its destructive effectiveness. This case also examines how a seemingly moderate small-town politician became, in the time span of several days, ensnared in one of the balefully iconic acts of the Rwandan genocide. Finally, the trial proceedings attest to troubling inconsistencies in fact-finding within the ICTR even among factually overlapping cases.

In the end, one take-away is that much more than the pyrrhic and reductive intercessions of the criminal law are required to appreciate the etiology of mass atrocity, at least how it unfolded at the micro-level in Nyange, and, moreover, to fashion adequate remedies. Hence, the call for pluralism: a true pluralism, namely, one of method, of nomenclature, of epistemology, and of accountability.