¹ Osiel, Mark, Choosing Our Responses to Mass Atrocity: The Law of Transitional Justice (forthcoming, 2015)Google Scholar.

² Rome Statute of the International Criminal Court. Art. 8(2)(b)(xxvi).

³ Some might even detect in so atomistic an approach the whiff of so-called “neoliberalism.” By that term, people have in mind a certain tendency—increasingly pervasive, allegedly pernicious—within much of contemporary social policy and the law embodying it. Neoliberals hold that each of us is always, through practices of self-management, wholly accountable for his personal conduct, and for his fate in life, good or ill. And yet, within international law, scholars concur that surely the most celebrated trend over the past thirty years has been the emergence of a new paradigm centered on the protection of individual persons, both within states and in relations between them. This is a framework unifying the law of human rights, of armed conflict, and international crime—fields once entirely distinct, even regularly at odds. There is individualism, then, and there is individualism.

⁴ Dubinsky, Paul, “Justice for the Collective: The Limits of the Human Rights Class Action,” Michigan Law Review 102, no. 6 (2004), pp. 1152, 1180CrossRefGoogle Scholar.

⁵ Max Weber borrowed this term from Goethe to explain empirical correlations arising from neither unidirectional causation nor logical entailment, but a two-way process of sympathetic compatibility or mutual predisposition between one set of ideas and another. Elective affinities prompt us to find certain notions and practices felicitous—in ways we would often find hard to articulate—because of their congenial fit with others to which we are already committed, intellectually and emotionally. Despite these affinities, we may nonetheless elect not to act upon them, in light of any number of competing considerations more weighty in the circumstances.