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Article Excerpt
ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW BY MARK A DRUMBL (NEW YORK CITY, US: CAMBRIDGE UNIVERSITY PRESS, 2007) 316 PAGES. PRICE A$59.95 (PAPERBACK) ISBN 9780521691383.
Mark Drumbl's Atrocity, Punishment and International Law is an important and challenging book that addresses one of the most complex issues facing international criminal justice in the late postmodern world: namely, how to make the justifications, structures and practices of international penality more responsive to the harms caused by those behaviours which are labelled as 'international crimes' and to the demands for justice of societies and communities damaged by war and social conflict. In this sense, Drumbl's book is less about the norms and authority of substantive international law, and more about the institutions and functions of punishment administered internationally in the name of international humanitarian law and its various hybridised and national manifestations. The complexity of the intellectual task is considerable in that it crosses disciplinary boundaries and, in so doing, confronts a number of controversial and unresolved academic debates which have fundamental implications for the development of international criminal justice as a conceptual and social reality.
The book's central purpose is stated concisely in the preface: 'How do we, and how should we, punish someone who commits genocide, crimes against humanity, or discrimination-based war crimes? These questions--the former descriptive, the latter normative--are the focus of this book'. (1) Drumbl sets out to achieve his objective through a largely positivist analysis of law and sentencing, concentrating particularly on Rwanda (where he has personal experience as a former intern), the former Yugoslavia, and World War II, especially the Holocaust.
Chapter 1, 'Extraordinary Crime and Ordinary Punishment: An Overview', as its title suggests, sets the scene for what follows and summarises the major themes running through the text. Drumbl rightly points out that, whereas substantive international criminal law has spawned a considerable scholarly literature, analysis of the rationales, structures and empirical effects of international punishment is still in its infancy. (2) He also correctly signals the need for such analyses to address the normative aspects of punishment. (3) In essence, the chapter focuses on the historical development of extraordinary crimes, and traces the reasons for the ascendancy of international trial justice as a response to mass atrocity since Nuremberg, attributing this to the intersection of the two philosophical strands of legalism and liberalism. (4) Following Shklar (5) and Fletcher, (6) Drumbl cites liberal legalism as responsible for the ascendancy of individual responsibility in criminal and civil law systems of justice, this being reflected in the dominant method for allocating responsibility and punishment following mass atrocity. (7)
The second chapter, entitled 'Conformity and Deviance', begins to develop some of the book's main themes. Drumbl's main concern here is to confront the paradox that extraordinary crimes, unlike ordinary crimes, may not be deemed deviant at the time and place they are committed. (8) Although he regards mass atrocity as difficult to reconcile with 'deviance theory', (9) his analytical overview of the area is sometimes less than convincing. He describes deviance as a fuzzy concept' that is not clearly applicable to certain kinds of criminalised behaviour, especially extraordinary crimes. (10) For example, Drumbl points to the inadequacy of deviance theory to explain situations where the autonomy of the individual is overridden by group pressures to conform with behavioural norms that may be perceived as completely unacceptable to outsiders, drawing parallels with certain forms of discrimination-based atrocity. (11) In so doing, he refers to subcultural explanations of gang conformity as transient (12) and, by definition, oppositional to dominant norms. (13) However, this analysis ignores later work by Becker (14) and Lemert (15) which stresses the contingent and relative nature of deviant labelling, particularly in pluralistic notions that deviance must be relevant, so that an understanding of context is imperative. Also ignored is the whole thrust of critical criminology's emphasis on the deconstruction of 'deviant' contexts, not to mention victimisation. Similarly, Drumbl's invocation of Hirschi's control theory (16) to illustrate the paradox of the often strong bonds uniting perpetrators of mass atrocity with both state and society (17) ignores Hirschi's later work with Gottfredson which emphasises the importance of the relationship between contingent and psychological variables. (18) These points are not mere quibbles because they indicate a greater need to engage with theory that is capable of explaining the normative contexts of 'deviance' and the development of methodologies for their understanding. (19)
A similar vagueness surrounds Drumbl's explication of the concept of 'conflict entrepreneurs' (20)--somewhat reminiscent of Becker's 'moral entrepreneurs' (21)--which he introduces to describe 'those individuals who exacerbate discriminatory divisions, which they then commandeer'. (22) For example, it would perhaps have been useful to develop this, together with the other levels of hierarchical authority relationships which Drumbl adumbrates, (23) within a more nuanced consideration of theories of power and hegemony (such as that of Foucault (24)), in so far as this may have helped to explain the broader contexts of authority, blame and responsibility.
The chapter closes with a section on 'Victims' that contains a useful evaluation of Kiza, Rathgeber and Rohne's (25) recent work on war victimisation and its contribution to the victimology of mass atrocity. (26) As Drumbl correctly points out, a significant limitation of this research is its failure to address victims' perceptions of the purposes of punishing offenders, (27) although this has since been the subject of further work by Parmentier. (28) Additionally, any social theory which seeks to explain the nature and significance of victimisation must necessarily address its legal, socio-historical, economic and political dimensions. For a comparative analysis, this involves appreciating the multi-layered nature of the relationships between the values and actions which produce victimisation within particular cultures and being able to make epistemologically acceptable generalisations about such relationships.
Chapters 3 and 4 contain the empirical core of the book. Chapter 3, 'Punishment of International Crimes in International Criminal Tribunals', is an analytical tour de force of the sentencing law and practice of international criminal institutions. In particular, there are very useful sections which address the internal and comparative...
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