7 - From Law to Justice  pp. 181-205

From Law to Justice

By Mark A. Drumbl

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In this chapter, I outline two proposals. These proposals begin a conversation. They do not seal a conclusion. The proposals respond to two major, and interconnected, shortcomings of dominant modalities of prosecution and incarceration: (1) the democratic deficits and externalization of justice that they trigger; and (2) the difficulties they experience in attaining stated penological objectives.

The two proposals, which I present as reforms, are: (1) vertical: to rescript the division of labor toward greater inclusiveness of in situ sociolegal institutions and bottom-up input; and (2) horizontal: to look beyond criminal process and welcome the general regulatory power of law, as well as extralegal interventions, to holistically capture the broad-based complicity that inheres in mass atrocity.

These two reforms are synergistic. When twinned, they promote a pluralistic understanding of accountability; their goal is to activate a broader sense of justice in the aftermath of atrocity. These reforms aim to move the agenda from law to justice: initially, by advancing international criminal law to a capacious law of atrocity and, ultimately, to an enterprise that constructively incorporates extrajudicial initiatives.

Of course, international criminal law as currently implemented through prosecution and incarceration goes some way to promote justice. But it is intrinsically limited. A richly multivalent approach could go further. It could push penological objectives, for instance reintegration and restoration, which heretofore have been given short shrift.