by Mark A. Drumbl. New York and Cambridge: Cambridge University Press, 2007. 320pp. Hardback, $80.00/£45.00. ISBN: 9780521870894. Paper. $29.99/£17.99. ISBN: 9780521691383. eBook format. $24.00. ISBN: 9780511282652.
Reviewed by Daniel C. Turack, Capital University Law School, Columbus, Ohio. Email: DTurack [at] law.capital.edu.
Mark Drumbl considers the three most atrocious crimes in international law to be genocide, crimes against humanity and war crimes, and he looks at how the perpetrators of these crimes have been punished, and how they might have been made to answer for these heinous crimes that are labeled as extraordinary international crimes. ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW examines the processes employed by the various international courts, such as the Nuremberg and Tokyo Tribunals following the Second World War, the two ad hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda ((ICTR), and the International Criminal Court (ICC).
Drumbl’s study also incorporates domestic courts’ enforcement of international criminal law in the territory where armed conflict occurred, exercising territorial or national jurisdiction, or the universality principle, as well as the Gacaca system operating in Rwanda. Moreover, the coverage also includes domestic courts of states enforcing international criminal justice where the acts in question were not perpetrated, but where the perpetrator is located. Furthermore, the domestic justice system also covers the internationalized domestic courts in host countries, such as the East Timor Special Panels, the hybrid model in Kosovo and the Special Court for Sierra Leone (SCSL).
The focus is an empirical examination of the sentencing by these local, national and international institutions. His methodology is to review the positive legal instruments, the sentences and sentencing jurisprudence. He is asking whether the extant methods of sentencing actually attain the affirmative objectives of punishment. There appears to be a paucity of evaluative research on punishment and sentencing practices of international tribunals. The distinctions between international and national institutions’ handling of this phase of criminal justice are far from watertight. But Drumbl finds their practices to be “confusing, disparate, inconsistent and erratic” (p.11). International criminal law is shown to largely borrow penological rationales from western criminal law. Due process rights, which apply to persons accused of common crimes, are shown to apply to accused of extraordinary international crimes.
In considering the sentences handed down in the first trials at Nuremberg, and the Tokyo trials, it appears that judges had absolute discretion, and both Tribunals did not elucidate on guidelines [*746] although more consideration was given to mitigating factors than aggravating factors. Limited discussion of sentencing rationales occurred at subsequent Nuremberg proceedings. The Tokyo Tribunal was reticent in addressing sentencing. Subsequent trials of Japanese war criminals were held at the national level that took the form of military courts-martial. Drumbl finds the textual bases for punishment in the ICTR and ICTY to be “thin” (p. 50), while the constitutive documents of the SCSL, the East Timor Special Panels and Kosovo Special Panels to be “laconic” (p.50). He reviews their sentencing practices. The jurisprudence of the ad hoc tribunals discloses lists of the aggravating and mitigating factors considered, and the place of plea bargains. Thus far, it appears that vagueness in the “positive law frameworks enables judges to access a wide range of evidence in determining sentence,” and international criminal sentencing practice remains “open-ended”(p.66).
In looking at punishment of international crimes in national and local courts, Drumbl provides excellent concise background on how and when these courts began to undertake such cases, and whether there were any shortcomings. Some of his findings are based on documents not readily available, such as the Report of the Organization for Security and Cooperation in Europe, War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina (2005). He does single out a few cases for specific comment, such as those involving Eichmann in Israel, Barbie, Touvier and Papon in France, and, Priebke in Italy. In the main, Drumbl concludes that “[p]enological goals and modalities of sanction are more diverse at the national and local levels than they are internationally. . . [and] sentencing is an afterthought and poorly conceptualized” (p.121).
Drumbl asks whether association with western law causes an imbalance or injustice in international tribunals in holding perpetrators to these extraordinary international crimes accountable for their wrongs. He alludes to many factors that include restorative initiatives, indigenous values, qualified amnesties, the needs of victims, reparations, distributive justice, and the like, while the accountability process “remains narrowly oriented to incarceration following liberal criminal trials” (p.147). Stated values of the punishment of extraordinary international criminals are principally retribution, deterrence, and expressivism. Drumbl measures whether the sentencing modalities at the local, national and international levels attain these aspirations and concludes that retributive and deterrent goals fall short, while there is greater success in reaching expressive goals among the general public. I particularly like his evaluation of management strategies in comparing the sixty-six count ICTY trial of Slobodan Milosevic, which of course never reached a conclusion due to the death of the accused, and the decision to try Saddam Hussein and others before the Iraqi High Tribunal, in a series of mini trials, for crimes against humanity and war crimes. The first mini-trial involving the killing of 148 residents of Dujail in 1982, brought a death sentence [*747] for Saddam Hussein, and he was executed shortly thereafter.
In Drumbl’s view, international criminal law is currently implemented through prosecution and incarceration as the formula for promoting justice. He offers proposals that would augment reintegration and restoration so that international criminal law would be only a part of the total justice picture. He would encourage diverse multiple forms of accountability so that the different legal orders ultimately realize penological goals. To overcome the shortfall that currently exists, Drumbl ends with a series of proposed adjustments that would alter the legal institutions as we know them, and subsequently, international jurisprudence.
Drumbl provides a good index to link the reader to the text and endnotes. All of the footnotes appear as endnotes with reference to associated pages. Personally, I like to read the footnotes at the bottom of the page where I have read the text instead of being diverted elsewhere, which I find disconcerting. The research is impeccable, and the writing gifted.
© Copyright 2007 by the author, Daniel C. Turack.