Crimes of Atrocity, The Problem of Punishment and the Situ of Law

This essay offers a conceptual and normative reconstruction of international criminal law. Post-Nuremberg developments in international criminal law have shifted the field from an “aggressive war” to an “atrocity paradigm.” This “atrocity paradigm” has redefined the core meaning of “international” as this term applies to criminal law; it has exploded spatio-temporal limitations on prosecution; and it has given rise to a prosecution-facilitating, victim-centric jurisprudence supported by novel theories of liability. It has largely failed, however, to rethink the basic purposes of the criminal sanction. This failure leaves international criminal law in a troubled state, lacking a coherent justificatory logic. A solution to this problem lies in understanding the atrocity trial as a didactic exercise. According to this perspective, crimes of atrocity are best understood not as attacks on humanity writ large but as attacks on the idea that human life is an enterprise organized in terms of group attachments, collective identities, and community allegiances. The trial process and the act of judgment must then be attentive to the history of concrete communities – both of victims and perpetrators – a goal best served by staging the trial in a venue that enjoys an organic link between proceeding, people, and place.