105 Cal. L. Rev. 777
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol105/iss3/4
The law of mass atrocity readily recognizes that responsibility and punishment for the world’s worst horrors—campaigns of displacement, rape, torture, and killing—ought to fall primarily on the political, military, or community leaders who bring about these systematic crimes. But the international criminal courts that try and punish these individuals tell a narrow story about the harms perpetrated by leaders of mass crime. It is a story of leaders who abuse the power that derives from the coercive structures of government and governance—from hierarchy, from the capacity to order and punish subordinates, from the ability to force bureaucracies and institutions into service of violence. This account is not inaccurate, but it is grossly incomplete. The law ought to ascribe responsibility to leaders not only for these abuses of coercive power, but also for their acts of moral persuasion—using their positions of influence to guide, persuade, and convince others of the necessity, or even the rightness, of wrongdoing.
Moral persuasion is a familiar and destructive phenomenon; it is Hitler convincing Germans of the “Jewish peril” and Rwandan politicians warning Hutus that Tutsis cannot be trusted. It forms a crucial component of many situations of mass atrocity, for it transforms ordinary citizens into willing executioners, ready to carry out leaders’ devastating plans. And yet, the idea of moral persuasion is largely missing from both legal scholarship and judicial practice. This Article presents a broad new understanding of leadership and crime by undertaking the first deep investigation of the topic. It offers three contributions: (1) a novel descriptive account of how the law of mass atrocity addresses the culpability of leaders; (2) a theoretical understanding of why this body of law overlooks leaders’ crimes of moral persuasion; and (3) a normative claim for why moral persuasion crimes should be recognized as a source of culpability for leaders.
Attending to the full harms of mass atrocity crime—including the moral, psychic, and societal wounds it leaves behind—requires a complete understanding of its formula. Accordingly, this Article argues for the recognition of moral persuasion as a critical repair to a system that is preoccupied with formal power, anxious about the perverse ordinariness of extraordinary crime, and in need of deeper connection with the reality of the horrors it addresses.