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Human Rights Quarterly 22.1 (2000) 118-147

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Why Prosecute? Critics of Punishment for Mass Atrocity

Mark J. Osiel

International debate now rages over how new democratic regimes ought best to redress the wrongs of their predecessors, especially the massive human rights violations perpetrated by government officials. 1 This article offers a nutshell summary of the major objections often raised to criminal prosecution, with a view to sharpening the terms of debate over the strengths and weakness of that approach to the problem.

The harm wrought by state sponsors of mass atrocity is so colossal that even skeptics of the criminal law's coherence and defensibility find themselves longing for their doubts to be allayed, at least for perpetrators such as these. In the face of such monstrous wickedness, retributive impulses emerge powerfully even in those most critical of our practices of punishment and their underlying assumptions. If ever there were an "easy case" (in the moral sense, at least) for criminal punishment, surely this is it. Or so one would suppose.

Yet in the few instances where conviction has been obtained for large-scale, state-sponsored massacres, it has been secured only at the apparent price of troubling departures from settled law and principles. Hence, for instance, Judith Shklar's observation that the Nuremberg trial of major war criminals represented "a genuine moral crisis . . . for persons of [End Page 118] liberal convictions." 2 To prosecute such offenders in a manner consistent with existing law and its moral premises has often appeared impossible, even to those most sympathetic and actively dedicated to the task. From such widespread dissatisfactions, some have reluctantly concluded that Western law displays inherent and intractable limits in redressing calamities of this sort. 3

This article briefly surveys several of the major doubts arising from efforts to prosecute perpetrators of administrative massacre, doubts leading many to conclude that criminal law is singularly unsuitable as a societal response to such wrongs. Despite the serious nature of these criticisms, lawyers and legal scholars tend to dismiss these pervasive discontents rather too perfunctorily. 4 My objective here is simply to display the considerable range of dissatisfactions that have developed among those of unquestionably good faith about the merits of this course of action. 5 Each of the misgivings discussed here has different bearing on particular societies, depending on such variations as the content of national law and the distribution of political power. 6

There are at least nine major reasons for doubting the wisdom of criminal prosecution. First, there are doubts about whether the nature of the offense has been or can be accurately conceptualized within legal terms, that is, in a way that encompasses its novel perniciousness. Doctrinal innovations developed to capture some of these new features. Qualms persist, however, concerning whether these innovations are consistent with the principles of liberal morality upon which Western criminal law is built. This is a second major source of concern.

Third, some are skeptical of the possibility of identifying a morally defensible line between legally culpable and inculpable parties, where many of the latter may have actively supported and made possible the crimes of the former. This is an analytical or conceptual problem but one [End Page 119] with acutely practical repercussions. Fourth, there are misgivings that the intellectual architects of administrative massacre may possess an evil so "radical" as to exceed our capacity to punish it. Conversely, the subaltern who follows the orders of superiors, not identifying with their genocidal schemes, may display defects of character too pedestrian or "banal" to warrant serious penal sanction. This is a fifth discontent.

Sixth, some object to criminal prosecution on the grounds that certain alternatives, particularly official investigations and public discussion of their content, may achieve much the same purposes as prosecution, while circumventing its political risks and moral ambiguities. Seventh, culpable parties may often be so numerous or powerful as to compel an end to prosecutions, perhaps destroying the new democracy that launched them. Democracy should not be put at risk, it is argued, merely to achieve "backward-looking faultfinding," 7 in Ackerman's...