Who Are Atrocity’s “Real” Perpetrators, Who Its “True” Victims and Beneficiaries?

Modern law’s response to mass atrocities vacillates equivocally in how it understands the dramatis personae to these expansive tragedies, at once extraordinary and ubiquitous. Is there any principled order to this? If not, should we care?

We sometimes treat the parties as individual “natural persons”—say, Slobodan Milošević, as defendant before the International Criminal Tribunal for the former Yugoslavia. At other times, the characters emerge as social groups of various sorts, which law treats as irreducible to the individuals composing them. The law so regards, for instance, the victims of genocide, persecution, aggression, apartheid, and certain war crimes.

This would not be worthy of note, were it not often perfectly possible to conceptualize the same facts in either fashion, individualizing now what was, a moment ago, taken to be collective in character, and vice versa. In the historical episode just mentioned, for instance, the party liable for most Balkan war crimes and genocide would then be “The State Union of Serbia and Montenegro.” And the victims would be seen as the people targeted by the war crime of “attacks against individual civilian persons not taking part in hostilities.”

In atrocity’s aftermath, the law thus often authorizes us to move in either direction, or in both at once, as on the facts just described. The puzzle is more complex still. The law sometimes instructs us that we must individuate, not collectivize. And sometimes, it tells us the very opposite, on what would appear to be identical facts. It is not clear whether any principled rationale or regularity exists in the way we manage such matters. Even if there is indeed an intelligible pattern in the law’s workings, does it correspond to how mass atrocities actually occur, that is, with factual regularities in the evidentiary record of these catastrophic conflagrations? An affirmative response would be reassuring. For it means that reality is out there, that it can be determined through available methods of discovery, and that our law closely reflects it. There is order to the universe.

Or do the commonalities in our legal responses, such as they are, arise simply from the consistent but unthinking application of longstanding rules bearing no genuine relation to the events themselves, rules derived from law’s encounters with wrongs very different in scale, motivation, and the organization of their commission? After all, our handling of these unusual cases depends, to an embarrassing extent, on the most tenuous and counterintuitive of “legal fictions.” All is flux.

We might ask much the same questions in a normative key. Must the logical order we may desire in the world’s legal response to these colossal horrors meticulously track their true character, as historians would describe and social scientists explain it? Or is it enough that the law’s conceptual structure, as a fluid intellectual creation, allows us to contest the meaning of these events, whatever we take their “true facts” to be, in juridically cognizable terms, even ones devised for the very occasion? We must then acknowledge that the law is simply—forgive the clunky cliché—a social construction, which we may put up or tear down at will. All of the law is, after all, created to serve our purposes, which vary widely from one historical circumstance to another. The law is not intended to naively “mirror” the empirical world, even to the limited extent we could hope to discern it from the widely conflicting accounts of these infinitely complex episodes.

I here defend a middle ground. On one hand, any satisfactory legal response to mass atrocity must correspond to essential facts, often startlingly novel, about what actually transpired, even as legal actors may contest what these are. On the other hand, any acceptable atrocity-response must also cohere with preexisting rules for understanding the parties and processes involved. It must nonetheless also enable opposing counsel to offer competing interpretations of the events’ true legal import. We need not understand law’s coherence to preclude all lawyerly contrivance.

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