Atrocity, Punishment, and International Law (review)

It is estimated that the number of people killed over the last hundred years as a result of actions considered international crimes is more than 170 million.¹ Countries where mass atrocity has occurred during the twentieth century include Armenia, Bosnia, Burundi, China, the Democratic Republic of Congo, Ethiopia, Guatemala, India, Indonesia, Iraq, Nigeria, Pakistan, Rwanda, the Soviet Union, Sri Lanka, Turkey, and Uganda.

While the various components of international law required to deal with such crimes have existed for some time, one of the major weaknesses of the international human rights and international humanitarian systems has been enforcement. ² The international community took few steps, except perhaps in the last decade and half, to hold responsible parties accountable at the international level. In general, accountability for mass violations of international law did not often occur, even domestically, until quite recently.³ While some domestic trials have taken place since the Nuremburg trials in the 1940s, until 1993 when the International Criminal Tribunal for the former Yugoslavia (ICTY) and 1994 when the International Criminal Tribunal for Rwanda (ICTR) were established, no international criminal tribunal existed to punish those accountable for international crimes.⁴ Initially, the international criminal justice system was ad hoc in nature, but the establishment of the International Criminal Court (ICC) created a permanent court, albeit for only a few international crimes.⁵ The ratification of the international criminal court statute by more than 100 countries has influenced those countries to import the statute's standards as well as international legal principles into domestic law.

The use of hybrid courts (joint domestic and international courts) in Cambodia, Kosovo, East Timor, and Sierra Leone⁶ have been useful to some extent in dealing with country-specific mass atrocities which an international tribunal on its own, far from the scene of the conflict, would have had difficulty addressing.

Many of the new courts, including the Extraordinary Chambers in Cambodia, the Special Panels in East Timor, the Special Court for Sierra Leone, and the Kosovo courts, increasingly have international and national judges applying both national and international law.

As a result of the formation of the various international courts since 1993, international law in general and international criminal law specifically have dramatically grown in substance and stature. Developments in international law not only affect the international tribunals but also the domestic courts that apply international law. The literature on the various components of the new laws and institutions has also burgeoned. However, the study of punishments in the field of international criminal law is one area that remains underdeveloped.

It is to this broad field that Mark Drumbl's Atrocity, Punishment and International Law contributes. Drumbl is well qualified to evaluate these questions. He is the Class of 1975 Alumni Professor of Law at Washington and Lee University's Law School and Director of the School's Transnational Law Institute. He has taught advanced courses on international criminal law. He is a well-known speaker on issues relating to international law and justice, including in the media. This book has already received the International Association of Criminal Law (US National Section) Book of the Year Prize for 2007.

Drumbl's book deals specifically with the question of sentencing by the tribunals, which in general is an understudied area of international law.⁷ Two questions drive the book, the first descriptive and the second normative: 1) How do we punish those who commit genocide, crimes against humanity, or discrimination-based war crimes? and 2) How should we punish such individuals?

Atrocity, Punishment, and International Law critically examines the sentences handed down by international criminal justice institutions including hybrid courts, their reasons for doing so, and the effectiveness of such sanctions visà-vis their purported goals of promoting retribution and deterrence. The book also provides suggestions for improvements to the system. Drumbl's empirical research leads him to conclude that the current international criminal sentencing paradigm fails to meet its intended goals. Thus, his aim is to "locate a principled middle...