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Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology

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Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology Michigan Journal of International Law Volume 33 Issue 4 2012 Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology Ziv Bohrer University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Human Rights Law Commons, Law and Psychology Commons, and the Litigation Commons Recommended Citation Ziv Bohrer, Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology, 33 MICH. J. INT'L L. 749 (2012). Available at: https://repository.law.umich.edu/mjil/vol33/iss4/3 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. IS THE PROSECUTION OF WAR CRIMES JUST AND EFFECTIVE? RETHINKING THE LESSONS FROM SOCIOLOGY AND PSYCHOLOGY Ziv Bohrer* INTRODUCTION ............................................................................................ 750 I. IMPACT OF SOCIOLOGY AND PSYCHOLOGY ON CRIMINAL LAW: DOMESTIC CRIMES VERSUS WAR CRIMES ...................................... 756 A. Justifying PenalLaw in Light of Sociology and Psychology....................................................................... 756 1. Rational, Dissuadable Behavior as the Premise that Justifies Penal Law ..................................... 756 2. Criminal Law's Reaction to Behavioral-Determinism C laim s.............................................................................. 76 1 B. Sociopsychological-CoercionClaims in Agreement with Legal Theory ................................................. 762 1. Support for New Defenses Based on Sociological and Psychological Research ............................................ 762 2. Arguments that the Research Findings Necessitate N ew D efenses .................................................................. 763 C. Differences Between Domestic Crimes and War Crimes Prosecution......................................................... 770 II. JURISPRUDENTIAL REACTIONS TO SOCIOPSYCHOLOGICAL- C OERCION C LAIM S ......................................................................... 772 A. Should Sociopsychological-Coercion Claims Be Accepted? .............................................................. 774 1. Increasing Readiness to Accept Sociopsychological- Coercion Claims in the Context of War Crimes .............. 774 2. The Overinclusiveness of Sociopsychological- Coercion Claim s .............................................................. 778 B. JurisprudentialAttempts to Limit Sociopsychological- Coercion Claims ..................................................................... 780 * Visiting Research Scholar, University of Michigan Law School (2011-12). The ide- as in this Article were developed while writing my doctoral thesis. See Ziv Bohrer, The Superior Orders Defense in Domestic and International Law-A Doctrinal and Theoretical Revision (June 21, 2012) (unpublished Ph.D. dissertation, Tel Aviv University) (on file with author). I am extremely grateful to Eyal Benvenisti (my doctoral thesis supervisor) and to Re'em Segev (who served as an additional academic instructor) whose support, guidance, comments, and encouragement made all the difference. I am deeply indebted to Steven R. Ratner, who read several versions of this Article and whose comments and insights have strongly contributed to its improvement. I am also very grateful to Lena Bohrer, Margaret M. deGuzman, Thomas A. Green, Samuel R. Gross, Monica Hakimi, Michele Manspeizer, Mark Osiel, Samuel P. Plott, Sonja B. Starr, Nicki Weinberg, and the participants of the JILSA Annual Meeting for their comments and help. Lastly, I wish to thank the Fulbright Foundation for its support. Michigan Journalof InternationalLaw [Vol. 33:749 1. The Consequentialist Response ...................................... 781 2. The Moral-Blame Response ........................................... 783 3. The "Balancing" Response ............................................. 786 III. THE INFLUENCE OF PENAL NORMS ON SOCIOPSYCHOLOGICAL COERCION ................................................ 788 A . Research Findings.................................................................. 790 1. Psychological Research ................................................... 790 2. Sociological Research ..................................................... 793 B. War Crimes Prosecutionand Requirements for Penal Norms to Be Influential ................................................ 794 1. Fairness ............................................................................ 794 2. E nforcem ent .................................................................... 798 3. C om munication ............................................................... 800 C. Rational,Dissuadable Behavior in War Crimes- If Research FindingsAre Not Misinterpreted......................... 805 IV. How SHOULD ICL RESPOND TO SOCIOPSYCHOLOGICAL COERCIVE CONDITIONS? ................................................................ 807 A. Increasingand Not DecreasingProactivity ........................... 807 B. Minimizing the Scope of Sociopsychological- CoercionD efenses .................................................................. 808 C. Sociopsychological Coercive Conditions as a Mitigating Consideration................................................ 809 D. A Sociopsychological-CoercionDefense Should (Sometimes) Still Be Afforded ................................................. 811 V. WHO SHOULD BE AFFORDED A SOCIOPSYCHOLOGICAL- COERCION DEFENSE IN WAR CRIMES PROSECUTION? ......... .. .. 814 A. Limits on the Coercion Defense ............................................. 814 B. The Brainwashingor Coercive-IndoctrinationDefense ......... 815 C ON CLU SIO N ............................................................................................... 8 18 INTRODUCTION Should perpetrators of genocide, violent acts against civilians during war, or other massive violations of core human rights be punished? Interna- tional criminal law (ICL) answers this question affirmatively, asserting that the punishment of such atrocities is just and that their effective prosecution can (and should) contribute to the prevention of such future acts.' 1. See, e.g., Rome Statute of the International Criminal Court pmbl., openedfor signa- ture July 17, 1998, 2187 U.T.N.S. 90 [hereinafter Rome Statute]. The Rome Statute begins as follows: "Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation .... " A common interpretation of the first part of this sentence is that it expresses a core retributive Kantian principle. According to this principle, individuals who commit horrific crimes must be pun- ished even if their punishment will not lead in any way to a future decrease in crimes. See, e.g., George P. Fletcher, Parochial Versus Universal CriminalLaw, 3 J. INT'L CRIM. JUST. 20, 26 (2005). The second part of this sentence clearly states a consequentialist rationale, i.e., to Summer 2012] Is the Prosecutionof War Crimes Just and Effective? 751 Moreover, an increasing attempt has been made in the international and domestic arenas to act in accordance with these assertions of ICL through the prosecution of war crimes.2 During the last two decades the role of ICL has become gradually more significant,3 and the fall of the Soviet bloc has lifted the main political barriers that had prevented the implementation of ICL.4 Furthermore, the atrocities of the 1990s (mainly in the former Yugo- slavia and Rwanda) have reaffirmed the post-World War II realization that means directed against states (such as reprisals and countermeasures) are in- sufficient to prevent those atrocities that ICL is designed to prevent and punish.5 These atrocities have also strengthened the moral conviction that perpetrators of such acts must be punished.6 Thus, ICL has been increasing- ly applied through the use of international tribunals that directly apply the norms of ICL, as well as through domestic prosecution of acts that consti- tute war crimes.7 These attempts on the international and domestic levels are strongly connected.8 Accordingly, it can be argued that an international penal legal ensure "effective prosecution." Moreover, Pre-Trial Chamber I of the International Criminal Court (ICC) reached the conclusion that this part of the sentence instructs the ICC to act in order to maximize the deterrent effect of war crimes prosecution and obligates the ICC to sub- ordinate the retributive aim of war crimes prosecution to its crime-prevention aim. See Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning Pre- Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case Against Mr. Thomas Lubanga Dyilo, 47-48 (Feb. 24, 2006). 2. For the purpose of this Article, hereinafter all three core categories of acts that are defined as crimes by international law-genocide, crimes against humanity, and war crimes (in the narrow sense of the term)-will be referred to jointly as "war crimes" because of the
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