by Mark Osiel. New York: Cambridge University Press, 2009. 276pp. Hardback. £53.00/$98.00. ISBN:9780521861854. Paperback. £29.99/$50.00. ISBN: 9781107403185. eBook. $78.00. ISBN: 9780511590269.
Reviewed by Scott Straus, Department of Political Science, University of Wisconsin, Madison. Email: sstraus [at] wisc.edu.
MAKING SENSE OF MASS ATROCITY, one of several books that Mark Osiel has published recently on atrocity and the law, is terrific. In the book, Osiel squarely brings to bear an empirical understanding of mass atrocity with some of the limits of the law in achieving criminal accountability. Osiel asks tough questions, he is sensitive to the empirical complexities of mass violence (in part due to his embrace of social science scholarship), and he makes persuasive critiques of existing prosecutorial strategies. The book has obvious and immediate relevance to scholars and practitioners who toil in the field of international criminal justice. More generally, any scholar working on transitional justice should read the book. Even for scholars who work on the dynamics of political violence, Osiel’s book makes a compelling and refreshing case for how legal studies should be married to empirical, social scientific scholarship.
A Professor of Law at the University of Iowa, Osiel writes that the two main questions that frame the book are the following. First, how does mass atrocity happen, and, second, how should criminal law respond? (p. vii) The emphasis in the book is clearly on the latter, but one of the most interesting and persuasive arguments in the book is how the former should shape the latter. Throughout the book, Osiel argues that in a number of ways the law’s most common conceptual tools for responding to mass atrocity are a poor fit with the empirics of what happens in mass atrocity. This is a fundamentally important point; in effect, Osiel is arguing for a closer link between empirical studies of political violence, on the one hand, with legal study and the practice of criminal law, on the other. To his credit, he argues against the notion that the law should simplify our understanding of mass atrocity; rather, he argues, it is our complex understanding of mass atrocity that should change how we think about the law.
The book makes a number of arguments for the ways in which criminal law is currently limited when faced with the realities of mass atrocities. In general in criminal law, Osiel argues, the alleged criminal is conceived of as acting independently or at least as part of a world of separate persons. The criminal is further imagined to deviate from a country’s laws. By contrast, in atrocity cases, the empirical dynamics generally involve collective behavior; violence is perpetrated by groups and against groups, and it involves many. Moreover, atrocity is often a function of official endorsement and bureaucratic enforcement, rather than being at odds [*377] with state policy, and people participate in the crimes because of loyalty to the state or to their profession. “The moral world that the law assumes is thus rendered topsy-turvy,” writes Osiel (p.xi).
He further argues, reasonably, that responsibility for mass atrocities is widely shared between what he calls, at different points, big fish, small fry, and brokers. In the end, mass atrocity requires the participation of many, usually in the thousands, and the law must find a way to establish connections between far-flung actors and to allocate responsibility at different levels of power. Thus, a key question is how the law conceptualizes relationships among the perpetrators.
Osiel embraces these challenges, arguing ultimately that the law is resourceful and resilient in the face of the empirical complexities of mass violence. He claims that legal liberalism, which requires individual culpability for criminal liability, can account for the realities of mass atrocities. However, to get there, Osiel proposes a reform to the main conceptual tools in use.
The two most common doctrines for holding major figures accountable for mass atrocity are 1) superior responsibility and 2) joint criminal enterprise. Osiel sees problems with both. “Neither ideal type fits the facts very closely,” he writes perceptively (p.70).
Superior responsibility implies a top-down model, a hierarchy of command. It further requires the ability to document that agents are thoroughly subordinated. In short, superior responsibility suggests a degree of formal control by superiors, or principals, over agents. However, in reality, as Osiel argues, documenting that level of control is difficult, and in fact perpetrators who commit the killing or organize the killing at a local level have degrees of autonomy in terms of how they carry out the action. Superior responsibility is thus a poor fit with the ways in which mass atrocities unfold. From a prosecutor’s standpoint, the requirements of proving superior responsibility are often so onerous that in pursuing that option prosecutors risk acquittal. Focusing on superior responsibility has thus been a less popular tactic. For example, in the various cases at the International Criminal Tribunal for the former Yugoslavia (ICTY), which is the key court of study for Osiel’s book, only one case of more than 100 total accused before the court, used superior responsibility (p.48). At the same time, the concept of superior responsibility gets the politics right, Osiel suggests, in laying the blame squarely on leaders.
The main alternative to superior responsibility is criminal enterprise, which has been the favored approach at the ICTY, as well as at the Special Court for Sierra Leone, among other courts. The idea of criminal enterprise, which draws on mafia prosecutions in the United States, is that a series of actors are participating in an event that has a common purpose. Criminal enterprise does not imply control, but rather describes a scenario with fairly diffuse and shared responsibility. While acknowledging the value of conceiving atrocities as being part of a joint enterprise, Osiel makes a number of critiques of the approach. He argues that the concept is too elastic and broad; it [*378] does not clearly define the scope of who should be held responsible and who should not. He also argues that the concept implies a legal fiction of many disparate people participating as part of a common plan, when in fact often more banal motives drive perpetrators. Furthermore, criminal enterprise does not properly assign responsibility; it suggests different actors are similarly responsible when in fact leaders are often most responsible.
Osiel’s solution – his proposed reform – is to broaden the notion of superior responsibility. He argues that the superior should be seen not simply as controlling subordinates, but rather as controlling an organizational apparatus in which subordinates work. Osiel’s argument builds on the work of Claus Roxin, in particular with the focus on the way a superior controls a bureaucracy, but Osiel’s proposal does not require there to be formal, hierarchical bureaucracy. Rather, he argues that superiors may have “effective control” in various ways, including informal networks, and the conception of an organizational structure can imply that subordinates would still have some autonomy.
These are some of the core ideas in the first five chapters of the book, which to this reviewer’s mind are the heart of the book and the most compelling chapters in the book. Towards the end of the book, another innovative proposal is to argue that collective economic sanctions should be imposed on the officer corps of militaries that are responsible for mass atrocities. Here, Osiel argues that perpetrators of mass atrocity are strategic. They calculate costs. In situations of mass atrocity, he argues, relying on professional ethics is a weak restraint and indeed professionals often have a number of incentives to conform to the policy of their states, even if those polices entail major violence against civilians. By threatening collective economic sanctions, Osiel argues, key influential actors – military officers – would have an incentive to prevent atrocities from being committed.
There is a lot to like in this book. Osiel asks probing, rigorous, insightful questions. Throughout, he makes keen, incisive comments about the ways in which mass atrocity is committed. He is not content with simplifications or what he describes legal fictions that mischaracterize the actual dynamics of mass violence. In that, Osiel is compelling and refreshing. In making his arguments, he relies on social scientific and historical scholarship, and he draws on a lot of different cases. Some of the most interesting passages in the text come from his analysis of prosecution strategies and decisions at the ICTY, but also with regard to judicial processes in Argentina, Sierra Leone, Rwanda, and at the International Criminal Court. The result of his research and synthesis is a rich understanding of the complexity of the cases of mass violence and a willingness to embrace the limits of existing criminal legal practice.
To be sure, some questions are worth raising. First is that the book ultimately focuses attention on top-level perpetrators, in particular with Osiel’s proposal to expand superior responsibility. While that focus is warranted, it still leaves open questions about how the law should respond to lower-level perpetrators and what Osiel calls “brokers” in the middle – mayors, [*379] local police actors, paramilitary commanders and rank and file, ordinary citizens who participate in atrocity. How far should the reach of the law extend? What legal doctrine should be applied? Does Osiel endorse maximal prosecution strategies, as in Rwanda, or more top-heavy approaches, as in Peru? Second is whether the expanded notion of superior responsibility would hold water in courtrooms. Is there evidence to suggest that judges would accept this broadened notion of superior responsibility? Third is who would impose the collective economic sanctions on the officer corps that Osiel proposes? Would it be a transitional government? If there is no transition, who would impose the sanctions? Would international actors shoulder that responsibility? Also, why only the officer corps? Why not include the civil administration in cases where the administrative structure of the state made a substantial contribution to the execution of mass atrocity? The proposal is conceptually logical, but practically it would seem difficult to implement. Finally, “mass atrocity” serves as a catch-all phrase in the book to refer to different types of horror. Does Osiel endorse distinguishing among different types of atrocity? Should prosecution for genocide crimes be similar to prosecution of other atrocities?
Overall, however, these questions pale in the face of the significant contribution that the book makes. Stimulating, well-researched, and challenging, the book is well worth the time of any scholar or practitioner who devotes serious time to thinking about the causes and consequences of mass political violence.
© Copyright 2011 by the author, Scott Straus.