Mark A. Drumbl

Bio: Mark A. Drumbl is an academic researcher from Washington and Lee University. The author has contributed to research in topics: Criminal law & International law. The author has an hindex of 16, co-authored 112 publications receiving 1473 citations. Previous affiliations of Mark A. Drumbl include University of Arkansas at Little Rock & Columbia University.

Atrocity, Punishment, and International Law

Abstract: 1 Extraordinary crime and ordinary punishment: an overview 2 Conformity and deviance 3 Punishment of international crimes in international criminal tribunals 4 Punishment of international crimes in national and local criminal justice institutions 5 Legal mimicry 6 Quest for purpose 7 From law to justice 8 Conclusion: some immediate implications

Reimagining Child Soldiers in International Law and Policy

Abstract: 1. Coming of Age in Atrocity 2. Children Who Soldier: Practices, Politics, and Perceptions 3. Not So Simple 4. Child Soldiers and Accountability 5. Unlawful Recruitment and Use of Children: From Proscription to Prevention 6. Rights, Wrongs, and Transitional Reconstruction 7. Reinvigorating the International Legal Imagination

Punishment Postgenocide: From Guilt to Shame to 'Civis' in Rwanda

Abstract: Following the 1994 Rwandan genocide, national and international trials set out to encourage national reconciliation, promote peace, punish perpetrators, foster a culture of human rights, and effect justice. In this Article, Professor Mark Drumbl questions the ability of these trials to achieve these goals and suggests they may in fact aggravate ethnic identity politics, thereby threatening Rwanda's long-term stability. He argues that the highly interdependent yet dualist nature of Rwandan society, together with the widespread level of participation in and victimization by the genocide, create a situation where accountability for the violence and the deterrence of future violence can be pursued more effectively through the restorative cultivation of shame, rather than through the retributive imposition of guilt. Although criminal sanction usually attaches to deviant conduct, participation in genocide in Rwanda was not particularly deviant, nor was it an individualized, pathological transgression. Professor Drumbl asks whether there might be times and places where collective wrongdoing needs to be exposed and not hidden by the law's preference for individual fault. Despite the concerns that ought to be emerging from the Rwandan experience, international lawyers continue to push - with significant degrees of success - for selective criminal prosecution as a preferred, and potentially exclusive, response to mass atrocity. In contrast, he suggests that creating presumptions in favor of criminal trials may preempt the supervening inquiry about the suitability of those trials to the afflicted society. Professor Drumbl concludes that policy responses to mass atrocity should be founded upon contextual inquiries, not driven by globalitarian or legalistic agendas, and should recognize the uniqueness of each incident of mass atrocity and the uniqueness of the reconstruction process that should follow, instead of flattening that uniqueness. This may lead to a preference for flexible, polycentric responses within and outside of what may be customarily identified by the West as the "law."

Collective Violence and Individual Punishment: The Criminality of Mass Atrocity

Abstract: There is a recent proliferation of courts and tribunals to prosecute perpetrators of genocide, war crimes, and crimes against humanity. The zenith of this institution-building is the permanent International Criminal Court, which came into force in 2002. Each of these new institutions rests on the foundational premise that it is appropriate to treat the perpetrator of mass atrocity in the same manner that domestic criminal law treats the common criminal. The modalities and rationales of international criminal law are directly borrowed from the domestic criminal law of those states that dominate the international order. In this Article, I challenge this foundational premise. First, I posit that the collective nature of the system criminality of mass violence is qualitatively different than the deviant nature of individual transgressions punished under ordinary domestic criminal law. Accordingly, borrowing from the national to ground the international simply is a convenient, although inappropriate, manifestation of path-dependency. Second, I evaluate the sentences issued by international criminal justice institutions. Surprisingly, although international tribunals have sentenced over 100 offenders over the past five years (and will sentence many more in the immediate future), very little evaluative research has been done on international sentencing. The purpose of this exercise therefore is to build an empirical research agenda with a view to assessing whether the punishment actually inflicted by international tribunals satisfies their avowed deterrent, retributive, and expressive aspirations. Third, based on the evidence, I propose a disarticulation between the effects of international sentencing and its aspirations. One explanation for this disarticulation is the absence of a sui generis theory of punishment for those who commit mass violence. Although there has been expansive institution-building in international criminal law, there has been little theoretical modeling. Unless the brick and mortar institutions are supported by a robust criminology, penology, and victimology, international criminal law will fall short. This Article then proposes several elements that could form part of this self-supporting theoretical and operational framework.

Collective Violence and Individual Punishment: The Criminality of Mass Atrocity

Abstract: INTRODUCTION This Article examines the Intel-nationalization of law and order discourse and its application to individual perpetrators of organic violence. The analysis begins with a question: what punishment befits someone who murders, or is responsible for the murders, of hundreds, thousands, or tens of thousands? It ends with the somewhat unsettling proposition that a reconceptualization of prevailing legal theory, policy, and practice is in order for such punishment to be truly purposive. The prevailing paradigm views mass atrocity as something greater than the sum of its parts, namely each of its ordinary constituent murders.1 Under this paradigm, mass violence is constructed as something extraordinarily transgressive of universal norms. Transgressions of this ilk call out for investigation, prosecution, and punishment leading, perhaps ineluctably, to the emergence of a relatively new branch of law-the law of atrocity. Acts of atrocity are characterized as crimes against the world community or, more emotively, as offenses against us all. These include categories of criminality such as crimes against humanity,2 genocide,3 war crimes,4 and, to some extent, large-scale terrorism.5 Since these assaults are constructed as being of concern to humanity as a whole, international institutions putatively representative of the global community become appropriate conduits to dispense justice and inflict punishment.6 These international institutions therefore drift into what Michel Foucault called the "political economy" of punishment.7 This political economy bureaucratizes and normalizes punishment, thereby inserting it deeply into the now-globalized social body.8 Although Foucault's discussion is limited to punishment by the state, I would apply his heuristic to the new and additional layers of bureaucratization contemplated by the emerging punitive arm of the supra-stale of international organization. Despite the extraordinary nature of this criminality, its modality of punishment, theory of sentencing, and process of determining guilt or innocence each remains disappointingly ordinary. The dominant discourse determines accountability through third-party trial adjudication premised on liberalism's construction of the individual as the central unit of action.9 This means that a number of selected guilty individuals squarely are to be blamed for systemic levels of violence. Punishment, too, is uninspiring. It overwhelmingly takes the form of incarceration in accordance with the classic penitentiary model.10 The "enemy of all of humankind"11 is punished no differently than a car thief, armed robber, or cop killer. A paradox emerges. Legal scholars have demarcated normative differences between extraordinary crimes against the world community and ordinary crimes against the local community. These scholars, however, largely are content to subject both to the same process. Although there has been a proliferation of new international legal institutions to adjudge mass violence-for example, the International Criminal Court (ICC, 2002),12 ad hoc tribunals for Rwanda (International Criminal Tribunal for Rwanda, ICTR, 1994)13 and the former Yugoslavia (International Criminal Tribunal for the former Yugoslavia, ICTY, 1993),14 special courts (such as in Sierra Leone, 2000),15 and hybrid16 panels or chambers (Kosovo, 2000,17 East Timor, 2000,18 and under negotiation for Cambodia, 2003)19-these institutions are quite homogenous in terms of how they deal with offenders.20 In fact, and to varying degrees inter se, they largely cannibalize methods of prosecution and punishment dominant within those states that dominate the international political order.21 Consequently, the new "constitutional moment" in international law that thoughtful scholars such as Leila Sadat posit emerges from these new institutions, in particular the ICC, may be more a matter of brickand-mortar design than of theoretical conceptualization.22 There is, of course, vivid debate regarding the suitability of dominant methods of punishment in the ordinary domestic context. …

Imperialism, sovereignty, and the making of international law

Abstract: Acknowledgements Table of cases Table of treaties Introduction 1. Francisco de Vitoria and the colonial origins of international law (i) Introduction (ii) Vitoria and the problem of universal law (iii) War, sovereignty and the transformation of the Indian (iv) Conclusion 2. Finding the peripheries: colonialism in nineteenth-century international law (i) Introduction (ii) Elements of positivist jurisprudence (iii) Defining and excluding the uncivilized (iv) Native personality and managing the colonial encounter (v) Reconceptualizing sovereignty 3. Colonialism and the birth of international institutions: the mandate of the League of Nations (i) Introduction (ii) Creation of the mandate system (iii) The league of nations and the new international law (iv) The mandate system and colonial problems (v) The mandate system and the construction of the non-European state (vi) Government, sovereignty, and economy (vii) The mandate and the discussion of sovereignty (viii) The legacies of the mandate system: toward the present (ix) Conclusion 4. Sovereignty and the post-colonial state (i) Introduction (ii) Decolonization and the universality of international law (iii) Development, nationalism and the post-colonial state (iv) Development and the reform of international law (v) Permanent sovereignty over natural resource and the new international economic order (vi) The 1962 resolution on PSNR (vii) The 1974 charter of rights and duties among states (viii) Colonialism and the emergence of transnational law (ix) Sources of law and international contracts (x) Overview and conclusions 5. Governance and globalization, civilization and commerce (i) Introduction (ii) Good governance and the third world (iii) Governance, human rights and the universal (iv) International financial institutions, human rights and good governance (v) International financial institutions and the mandate system (vi) Conclusions and overview 6. On making war on the terrorists: imperialism as self-defense (i) Introduction (ii) The war against terrorism (WAT) (iii) The United States and imperial democracy (iv) Historical origins: war, conquest and self-defense (v) Terrorism and the United Nations: a Victorian moment (vi) Terrorism, self-defense and third world sovereignty Conclusion.

Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation

Abstract: Close relatives and friends are dead or missing. Homes lie in ruins. Property has been destroyed. With everybody experiencing trouble, severe privations and physical suffering, it is still something altogether different whether one retains a home and household goods or has been ruined by bombs; whether he sustained his suffering and losses in combat at the front, at home, or in a concentration camp; whether he was a hunted.., victim or one of those who, even though in fear, profited by the regime .... Men have come to the limits of humanity and returned home, unable to forget what really was .... The suffering differs in kind, and most people have sense only for their

Many Clicks but Little Sticks: Social Media Activism in Indonesia

Abstract: Drawing on empirical cases from Indonesia, this article offers a critical approach to the promise of social media activism by analysing the complexity and dynamics of the relationship between social media and its users. Rather than viewing social media activism as the harbinger of social change or dismissing it as mere “slacktivism,” the article provides a more nuanced argument by identifying the conditions under which participation in social media might lead to successful political activism. In social media, networks are vast, content is overly abundant, attention spans are short, and conversations are parsed into diminutive sentences. For social media activism to be translated into populist political activism, it needs to embrace the principles of the contemporary culture of consumption: light package, headline appetite and trailer vision. Social media activism is more likely to successfully mobilise mass support when its narratives are simple, associated with low risk actions and congruent with dominan...

Restorative justice The real story

Abstract: Advocates’ claims about restorative justice contain four myths: (1) restorative justice is the opposite of retributive justice; (2) restorative justice uses indigenous justice practices and was the...

An Introduction to International Criminal Law and Procedure

Abstract: Written by a team of international lawyers with extensive academic and practical experience of international criminal law, the fourth edition of this leading textbook offers readers comprehensive coverage and a high level of academic rigour while maintaining its signature accessible and engaging style. Introducing the readers to the fundamental concepts of international criminal law, as well as the domestic and international institutions that enforce that law, this book engages with critical questions, political and moral challenges, and alternatives to international justice. Suitable for undergraduate and postgraduate students, academics and practitioners in the field, and cited by the International Criminal Tribunal for Yugoslavia, the International Criminal Court, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the highest courts in domestic systems, this book is a must-read for anyone interested in learning more about international criminal law.