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\u27s true believers, but it offers an important and constructive contribution to a field that can sometimes use a bit more introspection

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\u27s true believers, but it offers an important and constructive contribution to a field that can sometimes use a bit more introspection

Hybrid Justice

A definitive scholarly treatment of the ECCC from legal and political perspective

Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal

Important experiments in international criminal justice have been taking place at the Extraordinary Chambers in the Courts of Cambodia (ECCC or Court), a tribunal created by the United Nations and Cambodian Government to adjudicate some of the most egregious crimes of the Pol Pot era.2 The tribunal opened its doors in 2006, and although its work continues, its first seven years of operations provide an opportunity to evaluate its performance and judge the extent to which legal and institutional experiments at the ECCC have been successful to date. This Article will show that, in general, the ECCC’s most unique and unprecedented features have been among the most problematic, providing useful lessons to help guide the reform and design of future mass crimes proceedings

Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal

Important experiments in international criminal justice have been taking place at the Extraordinary Chambers in the Courts of Cambodia (ECCC or Court), a tribunal created by the United Nations and Cambodian Government to adjudicate some of the most egregious crimes of the Pol Pot era.2 The tribunal opened its doors in 2006, and although its work continues, its first seven years of operations provide an opportunity to evaluate its performance and judge the extent to which legal and institutional experiments at the ECCC have been successful to date. This Article will show that, in general, the ECCC’s most unique and unprecedented features have been among the most problematic, providing useful lessons to help guide the reform and design of future mass crimes proceedings

Archiving Memory after Mass Atrocities

Archiving and disseminating records of past atrocities is crucial in societies emerging from periods of conflict or repressive rule. It advances victims’ “right to the truth” and promotes broader social goals of accountability and historical truth. This working paper explores legal and policy issues that arise when collections of documents pertaining to past atrocities are discovered in societies emerging from civil war, state collapse, or dire misrule. It argues for a foundational approach to documentation focused on sound archival methodology and the application of a transparent set of norms as fairly as possible to build a credible base for accountability and accurate historical memory. The paper considers the difficult questions of who should lead such efforts, how the interests of preservation and dissemination can best be advanced, and how to deal with concerns pertaining to privacy and national security. To develop the argument for a foundational approach, the paper draws on examples from a number of cases, including Cambodia, Guatemala, Iraq, Paraguay, Serbia, and others.La