Why should individualized crimes, especially those committed by minor players, be so difficult to prosecute internationally? The first thing to note is that the International Criminal Court will probably not be prosecuting minor players. This is at least in part because of intense criticism leveled at the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, respectively) for spending so many early years focusing on just such minor players instead of the big fish. Conceptually, the idea is that it is hard to see the acts of torture or rape as constituting an assault on a population; that is, it is hard to see these minor players as being held responsible for such things as genocide or crimes against humanity when they only played such a role in the mass crime. Those who planned the mass crime seem more reasonably to be held responsible for such crimes.
In addition, there are so many minor players, on both sides of ethnic wars, for instance, who could be prosecuted, that we risk the label of "victor's justice" when, for instance, only Serbs are singled out for prosecution and not also members of other ethnic groups. If we stick to the leaders, prosecutors will not have as much discretion in deciding whom to prosecute. Indeed, one of the main things that the U.S. government has worried about in international criminal law (although not in U.S. domestic law) is the abuse of prosecutorial conduct in how decisions are reached about who, from a very long list of possible defendants, is in fact put in the dock. Prosecutors will still have discretion about whom to prosecute when they are forced to concentrate on the leaders rather than the small fry, but that discretion will be less likely to be abused.
Mayerfeld's comments address some of the same issues that the other critics have brought out. But there is a sense in which he believes that his criticisms are more devastating than the other critics, especially on the charge that I embrace impunity. Mayerfeld argues that my proposal will "cut a large swath through war crimes law," but Luban contends that my view is too conservative, such as in the current way that international criminal law is understood. Surely, these two critics cannot both be right. Nonetheless, for their different--and even conflicting--reasons, both say that my proposal will allow for too much impunity. It might be appropriate to ask what exactly is my critics' preferred alternative. Altman and Luban have sometimes been tempted to embrace international vigilante justice, where any state can prosecute any human rights abuser. I am not quite sure what alternative Mayerfeld proposes.