Victims Who Victimize: Transcending International Criminal Law's Binaries

30 Pages Posted: 4 Feb 2016 Last revised: 1 Jun 2016

See all articles by Mark Drumbl

Mark Drumbl

Washington and Lee University - School of Law

Date Written: January 29, 2016


Literary accounts of atrocity unpack the subtleties of and contiguities among victims and perpetrators. Judicial accounts of atrocity, in contrast, proceed austerely. They do so because they must justify punishment and incapacitation. Judicial accounts – law’s stories – tend therefore to elide the conduct of the oppressed in times of atrocity, including the agency of the oppressed to harm others. This flattened narrative, a keystone in the architecture of justiciability, stifles the urge of survivors to memorialize this conduct and related betrayals, loyalties, connivances, and acts of resistance. This article juxtaposes holocaust experiential literature (Levi, Frankl, Kertész, Ka-tzetnik) with Holocaust judging (the Kapo collaborator trials in Israel) when it comes to conceptualizing victim-persecutors. This article does so didactically to interrogate international criminal law's interaction with former child soldier Dominic Ongwen, currently awaiting trial at the international criminal court. Experiences with the Kapo trials might provide a way to re-cast the current proceedings against Ongwen. This article, however, ultimately discourages criminal prosecutions of victim-perpetrators. It instead encourages international criminal law to recede, rather than to regale, and in turn to welcome stories as told diversely through multiple formats.

Keywords: Atrocity, Child Soldiering, Conduct of the Oppressed, Etiological Expressive Purposes, Perpetrators, Victims, Victim-Perpetrator Circularity

JEL Classification: K00, K10, K14, K33

Suggested Citation

Drumbl, Mark, Victims Who Victimize: Transcending International Criminal Law's Binaries (January 29, 2016). Washington & Lee Legal Studies Paper No. 2016-2. Available at SSRN: or

Mark Drumbl (Contact Author)

Washington and Lee University - School of Law ( email )

Sydney Lewis Hall
Lexington, VA 24450
United States
540-458-8531 (Phone)
540-458-8488 (Fax)


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