Making Sense of Mass Atrocity

Genocide, crimes against humanity, and the worst war crimes are possible only when the state or other organisations mobilise and co-ordinate the efforts of many people. Responsibility for mass atrocity is always widely shared, often by thousands. Yet criminal law, with its liberal underpinnings, prefers to blame particular individuals for isolated acts. Is such law, therefore, constitutionally unable to make any sense of the most catastrophic conflagrations of our time? Drawing on the experience of several prosecutions, this book both trenchantly diagnoses the law's limits at such times and offers a spirited defence of its moral and intellectual resources for meeting the vexing challenge of holding anyone criminally accountable for mass atrocity. Just as war criminals develop new methods of eluding law's historic grasp, so criminal law flexibly devises novel responses to their stratagems. Mark Osiel examines several such legal innovations in international jurisprudence and proposes still others.

Review of the hardback: 'The law's confrontation with mass evil is the urgent focus of Mark Osiel's engrossing, compelling, and wholly original book. Ranging from Dachau to Darfur, Cambodia and South America to the former Yugoslavia, Osiel weaves together deep understanding of how violence becomes organized, the cloudy relationships between leaders and others, the role of emerging networks of violence, and the law's difficulties in coming to grips with assigning responsibility for mass evil. Academically original, yet written in a lively, accessible voice, this book is essential reading on one of the central moral, political, and legal struggles of our time.' Richard H. Pildes, Sudler Family Professor of Constitutional Law, Co-Director, NYU Center on Law and Security, NYU School of Law, Review of the hardback: 'This focus of this book is on two central questions: how does mass atrocity happen and how should the criminal law respond. By addressing them not only from a legal perspective, but also drawing from a vast literature outside the law … Mark Osiel engages the reader into a much needed 'thinking outside the box' exercise, inviting international criminal lawyers to leave the 'professorial echo chamber' and to have a fresh look at the social realities of mass atrocity and the legal theories that try to capture it. The result is a refreshing analysis of these theories as they emerge from the jurisprudence of the ad hoc tribunals and the ICC … Osiel paints a fascinating picture of the political context in which legal choices between these theories are made, exploring the conflicting incentives of international and national prosecutors in post-conflict societies and explaining why national and international courts often treat similarly situated offenders differently. He offers some interesting new possibilities and solutions, and suggests ways to overcome bystander indifference in situations where mass atrocities occur … invaluable reading …' Christine Van den Wyngaert, Judge, International Criminal Court, Review of the hardback: 'Mark Osiel continues his unique blend of close legal reasoning, a profound sense of the worst potentials lurking in human nature, and a deep appreciation of the practical … At the root of the work is a deeply moral motive – to find effective means of restraining and punishing the worst kinds of atrocities. What most distinguishes Osiel's contribution is his avoidance of legal or moral idealism. Exploring the scope and limits of the law's power over such behavior, Osiel offers sage, judicious, balanced, and realistic proposals for finding our way toward a more law-governed international community.' Martin L. Cook, Admiral James Bon Stockdale Chair of Professional Military Ethics, U.S. Naval War College, Review of the hardback: 'In this provocative, seminal work, Professor Osiel masterfully explores innovative legal vehicles to justly hold accountable individual and group perpetrators of mass atrocity … He brings to bear ground-breaking, and in some cases, somewhat controversial legal theories and tactics to attach proper criminal liability to those culpable in mass killings. A bold, highly instructive, and invaluable contribution to transnational humanitarian law.' Colonel Joseph P. 'Dutch' Bialke, U.S. Air Force Judge Advocate

Mark Osiel's writings seek to show how legal responses to mass atrocity can be improved by understanding its organizational dynamics, as revealed through comparative historical analysis. His writings have inspired several conferences and are assigned at many leading universities in North America and Western Europe, in a number of fields. He lives in The Hague, where he is director of public international law programs at the T.M.C. Asser Institute, a think tank associated with the University of Amsterdam. His books include Mass Atrocity, Collective Memory & the Law (1997), Obeying Orders: Atrocity, Military Discipline, and the Law of War (1999), Mass Atrocity, Ordinary Evil, and Hannah Arendt: Criminal Consciousness in Argentina's Dirty War (2002), and The End of Reciprocity: Terror, Torture & the Law of War (2009). Osiel lectures widely on humanitarian law, both abroad and at the U.S. war colleges. He regularly consults to international organizations and governments in post-conflict societies on issues of transitional justice. His articles have appeared in the Harvard Law Review, Columbia Law Review, California Law Review, Pennsylvania Law Review, Human Rights Quarterly, Law & Social Inquiry, and Representations, among others. Osiel has been a visiting Fellow at Cambridge University, Harvard's Kennedy School of Government, the London School of Economics, as well as universities in Argentina, Brazil, France, and India (as a Fulbright lecturer).