Trump’s perplexing insistence on ‘keeping’ Middle Eastern oil
“In the case of the United States, specifically, acting on such a policy could put the U.S. military in the position of acting as war profiteers in foreign war zones,” – James G. Stewart
“In the case of the United States, specifically, acting on such a policy could put the U.S. military in the position of acting as war profiteers in foreign war zones,” – James G. Stewart
By James G. Stewart
“President Trump wants it known that — despite his recent decision to pull back the U.S. militarily back from previously Kurdish-held territory in Syria — he plans on “keeping the oil” in Syria and using American troops to do it. If he follows through, he’ll set a dangerous precedent — and might commit a war crime.”
With David Welna
A substantial portion of the natural resources we consume are stolen. My own thinking about this problem emerged from the ground-up, so to speak, as I realised that certain atrocities I was involved in investigating for an international criminal tribunal almost two decades ago were facilitated by resource predation that was completely devoid of any legal authority. This initial sense of shock was later followed by an unwelcome realisation that the same was true for a substantial body of resource transactions in wars throughout the world, and that in large part, these realities represent a continuation of practices instantiated in colonialism. Initially, my scholarly work involved thinking about how the war crime of pillage might apply to these wartime transactions, and after a long period away from the topic working on tangential themes, I am now completing a second project considering how using pillage of natural resources to address resource wars might bolster (or undermine) the passivist ambition behind the prohibition on the use of force in international law. It is a pleasure to host a discussion of Wenar’s overlapping work, and to present a set of criticisms that apply to my earlier thinking to some extent too.
Wenar’s book starts with similar intuitions to my own, but he takes matters in a narrower, broader then different direction altogether. His focus is narrower than mine in that he is preoccupied with the theft of oil and oil alone. Although many of his insights might be easily transposed to other natural resources, his analysis reasonably selects one of the most spectacular exemplars. Yet his focus is broader than mine because, even though he certainly takes resource predation in war into account and references plunder on occasion, his analysis is not tied to warfare in any meaningful way. On the contrary, Blood Oil is a text that highlights how deference to “might makes right” in international law enables the theft of natural resources the world over by conferring title in natural resources on whatever actor is able to forcibly control them. For Wenar, this control need not necessarily be achieved through warfare, providing his arguments with far wider normative sweep. By implication, Wenar’s project is considerably more ambitious than my own, but this comes at the price of increased exposure to arguments from a critical perspective that I hoped he might react to.
Blood Oil’s most significant contribution lies in its recourse to democracy as a solution to the underlying problem, indeed it may be that democracy is Wenar’s central pre-occupation. I have set out how Wenar gets to democracy through natural resources in my introduction to this symposium, but I summarize my reading of that trajectory again here briefly. Reflecting earlier work in the philosophical tradition, Wenar argues that international law’s willingness to recognize political groups that forcibly acquire control over natural resource endowments makes international law complicit in the collapse of domestic institutions, the ubiquity of coup cultures, the predominance of patronage networks as forms of political governance, and the catastrophic consequences these phenomena entail for local populations. In his own words, “[r]ewarding violence with rights makes a nonsense of property.” Doing so “violates rights on a massive scale, and it causes enormous suffering;” and it undermines democracy since “[t]he money that goes to these men wins them unaccountable power: power unchecked by law or custom or conscience.”
Wenar’s solution is to turn international law against itself by formally insisting on the pre-existing rights of peoples to their natural resources in international human rights treaties, then declaring stolen resources that are alienated in violation of the four principles he announces to ascertain whether peoples have demonstrated meaningful consent to the sale of their resource wealth. Through this method, he ties what he calls “bare-bones civil liberties and basic political rights” to the ability of states to pass good title in resources harvested from within their territory. The implications of the legal construction he supports are stark: non-democratic states cannot sell natural resources. As Wenar puts it, “[t]he people cannot possibly control their resources under a highly authoritarian regime: a military junta or a personalistic dictatorship, an autocratic theocracy or a single-party state.” Thus, peoples’ ownership over natural resources acts as a mechanism to ratchet up global democracy. Although much moral and political philosophy would support this goal, I here invite Wenar to reflect on analogies with areas of international law that also suggest the danger of important unintended consequences.
A perspective that draws on a critical history of international law seems particularly germane since international law has a long history of: (a) attempting to use international human rights law to leverage democracy; (b) making international recognition conditional upon a putative government’s democratic credentials; and (c) ostracizing communities from global trade based on their government’s deficiencies. I wonder, therefore, if engaging with this history alongside Wenar’s innovative new argument also reinforces the value of an intellectual dialogue between philosophy and international law. At a certain juncture in this brilliant text, Wenar is critical of “international lawyers” as part of the problem. I want to disaggregate that group slightly by demonstrating some diversity of opinion amongst them and, in keeping with the focus of this blog, show how the history of international law offers different vantage points that may be intellectually useful to this global justice project. As I say, I am also motivated to ask Wenar to respond to criticisms that, to some extent, are also applicable to my own earlier work.
While Wenar is eager to undercut international law’s deference to “might makes right,” he simultaneously relies on international law in order to call pre-existing and legal the peoples’ right to natural resources he uses to do that work. Stated differently, instead of arguing for people’s rights over natural resources as a purely normative matter, he places important weight on his view that the concept is already instantiated in international human rights treaties. Doctrinally, that view sides with some international lawyers, and plays down the very numerous references to states as owners of natural resources alongside peoples in international law. More importantly though, I wonder if this deference to human rights doctrine leaves a core philosophical question unanswered. Since reading his excellent book, it has struck me that on the normative plane, the distinction between states versus peoples as owners of natural resources may boil down to a contest between rule of law and democracy as primary objectives. Thus, I wonder if readers might benefit from a leading moral and political philosopher’s assessment of whether rule of law is a more viable target to shoot for in the global resource sector.
Relatedly, what constitutes a “people” for Wenar’s theory is of major importance. This is particularly true if the contest between states’ and peoples’ ownership over natural resources overlooks indigenous rights to resource wealth within established nation states. The United Nations Declarations on Rights of Indigenous Peoples stipulates that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Likewise, an important body of caselaw is developing within human rights bodies affirming indigenous rights to natural resources. Thus, I wonder if treating “peoples” as an abstraction leaves unaddressed a whole set of questions that will likely be crucial to an indigenous perspective on these questions, such as how to understand indigenous ownership of natural resources as against majoritarian preferences within the post-colonial state, and equally importantly, whether using self-determination to affirm peoples’ rights to natural resources also enables political autonomy.
As for democracy, Wenar’s work has important analogs in international law’s attempts to promote democratic governance, which might also assist his work. Wenar’s use of people’s ownership of natural resources to promote global democracy is interesting and novel, but the method itself has a long pedigree. In 1992, for instance, Thomas Franck wrote an especially influential article entitled The Emerging Right to Democratic Governance, wherein he too appealed to aspects of international human rights law to bolster democracy building. Whereas Wenar draws on the peoples’ right over natural resources contained within the human right to self-determination, Franck used a range of different civil and political rights in the construction of his equivalent. Self-determination was certainly one of Franck’s emphases, but in addition, he pointed to freedom of expression in human rights treaties, the right to a participatory electoral process in the Universal Declaration of Human Rights, and the right to peace enshrined in the UN Charter. The particular human rights Franck and Wenar employ partially overlap, but their strategies are more or less identical.
In Franck’s earlier iteration of the argument, the risks of imperialism were a central concern, so I wonder how Wenar would address these risks. While Franck wrote between the fall of the Berlin Wall and September 11, when all things seemed politically possible, much of his article was dedicated to tempering the anxiety that this new right to democratic government would turn out to be a trojan horse for neo-colonialism. Franck couched this worry in international law terms too, by exploring how the imposition of democracy might transgress the international law norm of non-interference in the domestic affairs of a state. As we will see, that countervailing principle offers something of a push-back to projections of political uniformity globally. For Franck, his democratic norm ultimately sailed on the safe side of these rocks in ways that may be helpful to Wenar’s argument, but as a reflection of the relative diversity of opinion in the field, other international lawyers saw far greater peril. Martti Koskenniemi, for instance, called the argument “messianic,” objecting that it amounted to “a call for contextual management of far-away societies in reference to Western liberal policies.”
In a similarly critical spirit, Susan Marks’ review of the whole democratic entitlement movement in international law warned that “dire consequences” could follow when legitimacy is denied non-democratic states. Her concern that the deployment of human rights as a mechanism for pro-democratic intervention might end up having predominantly negative, even dire, effects points to a second important theme I take up momentarily. For now, it is sufficient to summarize that Wenar’s use of human rights to generate democratic entitlements is anticipated in international law, that his intellectual predecessors were seriously preoccupied with the potential pitfalls involved in implementing the right, and that a major segment of international law scholarship criticized the endeavor as counterproductive. This history raises the interesting question whether Wenar’s new hook—natural resource ownership—can transcend these concerns and the politics that caused a rise and then fall of this very similar agenda at a point in history that was probably more amenable to the project.
Beyond just human rights norms, the international law governing recognition offers a second parallel that might provide helpful insight. After all, it is the doctrine of recognition in international law that sustains the “might makes right” principle Wenar rightly views as a cause of so much suffering. In addressing this issue, Wenar views Western conferral of privileges over resource endowments to foreign authoritarian regimes via the international law of recognition as one of the primary means by which the West causes global poverty. To paraphrase the argument, Singer’s child drowning in the puddle is not the appropriate metaphor for our obligations vis-à-vis the global poor because we placed and maintain the child in the puddle, in part because our international laws of recognition confer warlords with title in natural resources. To my mind, this critique of recognition likely misses the clearer ways the West causes poverty and fails to engage with the competing values recognition seeks to balance. Even if the doctrine of recognition is unquestionably a causal influence on this deplorable state of affairs, the deeper question is whether it is a necessary evil in the ugly world we find ourselves in.
In practice, states have waxed and waned in their willingness to make democratic credentials prerequisites for their recognition of foreign states and/or governments. In 1907, the Foreign Minister of Ecuador, Carlos Tobar, announced that his government would not recognize any entity that came to power through extra-constitutional means. In 1913, President Wilson formally adopted this doctrine too, then employed it for the better part of two decades to withhold recognition from various would-be governments in South and Latin America. By 1932, however, the practice of making recognition conditional on forms of government, democratic or otherwise, had fallen from favour. Recipient states viewed the practice as a hypocritical violation of the principle of non-intervention in domestic affairs, since no government could trace its lineage to an unbroken line of democratic legitimacy. And most significantly, withholding recognition from non-democratic regimes created a two tiered system; one within the bosom of international law and the other a group of pariahs. Quite apart from replicating standards of civilization, this bifurcation robbed states of a legal framework for governing their inevitable dealings with non-democratic regimes.
In theory, the scholarly literature on recognition is extensive and diverse, but some of the leading scholars are also reluctant about treating democracy as a sine qua non for recognition in international law. Brad Roth, for instance, concludes his masterful treatment of these issues by arguing that “the absence of a meaningful ‘democratic entitlement’ in the international system ought not to be lamented; though superficially attractive, assertions of a new ‘democratic’ legalism pose serious dangers to international peace and security, and even to democracy itself.” I provide a concrete illustration below, but I want to pause to bring the practice and theory of recognition together to show how they offer a significant contribution to the more recent philosophical projects focused on global justice. The combined effect of this international law theory and practice is that, whatever one might think of the underlying argumentation, the supposition that “might makes right” is an evil to be overturned likely requires a supplemental inquiry into whether the alternative might make matters even worse.
These concerns become particularly apparent if we turn to international law’s experience with sanctions. The assumption in Wenar’s great book (and sometimes in my own earlier thinking) is that once consumers refuse to purchase natural resources that are stolen from peoples, authoritarian governments will fall, resource wars will dissipate, poverty will decline and human beings will prosper. I have come to wonder if this logic mimics early thinking about sanctions in international law, where international institutions pressured whole societies in an attempt to coerce their uncooperative governments to comply with international law obligations. Significantly, experience has shown that depriving local populations of access to global markets because of their government’s intransigence can have debilitating effects for local peoples, without necessarily changing their government’s behavior as desired. In fact, sanctions’ social, physical and psychic impact could even rise to the level of a crime against humanity in certain circumstances. The question is, could these unintended side-effects also flow from attempts to coerce democracy, thereby providing an illustration of the “dire consequences” and “dangers to international peace and security, and even to democracy itself” that critics have warned about?
This brings me to two final queries about this highly original, brilliantly written, hugely important book. Perhaps the fact that this new project focuses on natural resources offers a point of differentiation with all that came before in international law, which will allow it to steer clear of some of the objections I share here. Likewise, an appeal to consumers directly could possibly bypass international law and the politics that undergird it, to better achieve the enormously important goals Wenar seeks to promote. Both these questions strike me as valuable further inquiries that could be helpful to those who are for or against the new form of promoting democratic entitlement globally that Wenar has developed. In this spirit, it is a real pleasure to host Wenar’s work on this blog, which I constructed in a bid to promote exactly this type of critical but respectful dialogue about aesthetically pleasing, paradigm shifting work in the service of crucially important values.
 Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World 73 (1 edition ed. 2015).
 Id. at 334.
 Id. at xlviii.
 Wenar argues that a people’s consent over the alienation of their natural resources implies four basic principles, namely: (a) information (citizens must be able to find out about the management of their resources); (b) independence (citizens’ approval must not be forced); (c) deliberation (citizens must be able to discuss the management of their resources with each other; and (d) dissent (citizens must be able to dissent from management of their natural resources without risking severe costs). Id. at 227.
 Id. at 228.
 Id. at 229.
 For the leading scholarly work in this spirit, see Steven R. Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (1 edition ed. 2015). A mini-symposium on his book is online here.
 See, for instance, Emerka Duruigbo, Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law, 38 Geo. Wash. Int’l L. Rev. 33 (2006).
 In reviewing this doctrinal question many moons ago, my own work drew on much scholarly literature, General Assembly Resolutions and treaty provisions. To cite an example of the last of these, Article 21(1) of the African Charter on Human and Peoples’ Rights states that “[a]ll peoples shall freely dispose of their wealth and natural resources,” whereas Article 21(4) of the same treaty indicates that “states parties … shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.” See Corporate War Crimes: Prosecuting Pillage of Natural Resources, paras. 56-60. My own review concluded that “given that permanent sovereignty over natural resources vests in both peoples and states, the doctrine can arguably be relevant to pillage cases in either scenario.” See Corporate War Crimes: Prosecuting Pillage of Natural Resources, para. 58.
 See Corporate War Crimes: Prosecuting Pillage of Natural Resources, paras. 61-65.
 Karen Engle shows how concerns about encouraging political self-determination among indigenous peoples led states to recognize but limit self-determination during the negotiation of the UN Declaration on Rights of Indigenous Peoples. See K. Engle, On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights, 22 Eur. J. Int. Law 141–163, 144–148 (2011).
 Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int. Law 46–91 (1992).
 Ibid, at 68.
 Martti Koskenniemi, Legal Cosmopolitanism: Tom Franck’s Messianic World, 35 N. Y. Univ. J. Int. Law Polit. 471–486 (2002).
 Martti Koskenniemi, Intolerant Democracies: A Reaction Responses, 37 Harv. Int. Law J. 231–234, 233 (1996).
 Susan Marks, International law, democracy, and the end of history, in Democratic Governance and International Law 532–566, 565 (Gregory H. Fox & Brad R. Roth eds., 2000), https://www.cambridge.org/core/product/identifier/CBO9780511522307A032/type/book_part (last visited Feb 27, 2019).
 J. d’Aspremont, The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks, 22 Eur. J. Int. Law 549–570 (2011).
 Thomas W. Pogge, World Poverty and Human Rights (2008).
 Ti-chiang Chen, The International Law of Recognition, with Special Reference to Practice in Great Britain and the United States 108 (1951), http://archive.org/details/cu31924016945770 (last visited Nov 9, 2016).
 Id. at 108.; d’Aspremont argues that there was a resurgence of democracy as a criteria for recognition after the 1990s. See Jean d’Aspremont, L’Etat non-démocratique en droit internationalion: Etude critique du droit international positif et de la pratique contemporaine (2008).
 Chen, supra note 22 at 108.
 Sean D. Murphy, Democratic Legitimacy and the Recognition of States and Governments, 48 Int. Comp. Law Q. 545–581, 568–570 (1999).
 Brad R. Roth, Governmental Illegitimacy in International Law 413 (1999).
 See, for example, The Sanctions Decade: Assessing UN Strategies in the 1990s, (David Cortright & Lopez, George A. eds., 2000); Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (1 edition ed. 2007).
I’m very pleased to host this new symposium on Leif Wenar’s book Blood Oil: Tyrants, Violence, and the Rules That Run the World (OUP, 2015). This major new text takes up the problem of the resource curse and its discontents, offering a politically ambitious, substantively provocative, beautifully written, and highly accessible treatment of a major global problem. I was especially excited to see a leading political philosopher address the relationship between natural resources and global justice, and to pick up on our overlapping concern for the widespread theft of natural resources globally. Wenar not only explains the problem with great clarity, he also offers a bold prescriptive way out of the predicament. In this symposium, he submits to respectful scrutiny from a range of scholars from diverse disciplinary backgrounds who contest different aspects of his argument. Before I introduce the commentators, I add to a longer summary he himself has written by presenting some brief background about the central arguments in the book.
Wenar’s major claim is that most natural resources are stolen. He takes this view for a variety of reasons, but predominantly because the international legal order allows any armed group, no matter their how weak their democratic credentials, to enjoy legal title over a state’s natural resource endowments. In Wenar’s language, the international order’s deference to “effectiveness” is morally perverse in that it embraces “might makes right.” According to Wenar, this perversity engulfs the entire global resource sector: “‘Might makes right’ is as much true for an autocrat in coercive control of an oil-rich country as it is for a band of militants who seize a mine by force. In both cases, the alchemy of effectiveness transmutes the iron of coercion into the gold of legal title.” And yet, if peoples own natural resources, international law’s deference to effectiveness as part of this dark alchemy enables theft.
The implications of Wenar’s thesis are sweeping. As he argues, international law’s overly-permissive stance towards violent resource predation “violates rights on a massive scale, and it causes enormous suffering.” Deontologically speaking, Wenar argues that “[r]ewarding violence with rights makes a nonsense of property.” Consequentially, he draws on the resource curse literature to show how resource endowment is negatively correlated with rates of armed violence, severe poverty and all other measures of social dysfunction. Perhaps his farthest-reaching argument, however, is that international law’s perverse embrace of “might makes right” undermines democracy: “[t]he money that goes to these men wins them unaccountable power: power unchecked by law or custom or conscience.” Thus, Wenar sees redressing this dynamic in global resource governance as crucial in promoting democracy.
Wenar finds the norms necessary to achieve the political transformation to global democracy via resource governance in pre-existing international law, echoing the international law scholars who discovered an emerging right to democracy at the close of the Cold War. In particular, he relies on self-determination in human rights instruments and the notion of permanent sovereignty over natural resources to conclude that peoples own natural resources. For the bulk of the remainder of the book, he seeks to establish the circumstances under which state officials cannot act as agents of the people in resource transactions, negatively delineating the circumstances wherein the purported alienation of people’s resources is incapable of passing good title.
On this score, Wenar argues that a people’s consent over the alienation of their natural resources implies four basic principles, namely: (a) information (citizens must be able to find out about the management of their resources); (b) independence (citizens’ approval must not be forced); (c) deliberation (citizens must be able to discuss the management of their resources with each other; and (d) dissent (citizens must be able to dissent from management of their natural resources without risking severe costs). The political ramifications are substantial. As Wenar explains, “[i]n concrete political terms, these conditions require that citizens must have at least bare-bones civil liberties and basic political rights.” Consequently, for Wenar, popular sovereignty over natural resources guarantees some semblance of democracy: “[t]he people cannot possibly control their resources under a highly authoritarian regime: a military junta or a personalistic dictatorship, an autocratic theocracy or a single-party state.”
The book addresses itself to a public audience, presumably because its overall conclusion is that we Western consumers are inextricably bound up in this violence and can do something politically transformative in response to it. To illustrate, at the beginning of the book, Wenar promises to “probe how consumers come to be legally chained to distant warlords. For surely those warlords had no legal right to their plunder?” He goes on to argue that these problems are so ubiquitous that we consumers are all implicated, concluding that “[o]ur moral taint is a certainty… we all own stolen goods.” In calling on us to address this moral taint, Wenar places the issue alongside some of the most infamous historical manifestations of “might makes right” — such as the slave trade, colonialism, apartheid, and territorial conquest — insisting that addressing the theft of natural resources is the boldest yet still realistic global political project our generation might undertake to further this emancipatory moral trajectory.
As will be
apparent from my recitation of the argument, a project of this breadth and
ambition will attract a broad variety of opinion. To foster critical debate on
this topic, I am pleased to have brought together a group of scholars and
practitioners from diverse backgrounds to offer reflections, criticisms and new
vantage points on these issues. As is my normal practice, I have placed the
names and affiliations of commentators on an accompanying page that lists all of
the current and past contributions to this blog (see here). Nevertheless, let me explicitly showcase the
disciplinary diversity they offer. This symposium hosts a leading scholar in
the philosophy of global justice, a prominent international lawyer from Africa,
arguably the leading scholar on resource wars globally and the founders of the
NGO Global Witness. I also contribute a series of reactions based on the
difficulties that have arisen in the theory and practice of attempts to promote
democracy in international law, before inviting Wenar to respond to criticisms.
I hope that the resulting body of thought is stimulating to all those concerned
by the egregious underlying problem.
 Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World xlv (1 edition ed. 2015).
 Id. at xiv.
 Id. at 334.
 Id. at 73.
 Id. at xlviii.
 Wenar, supra note 1 at See Chapter 11 Popular Resource Sovereignty and Chapter 12 The State of the Law.
 Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int. Law 46–91 (1992); Gregory H. Fox & Georg Nolte, Intolerant Democracies, 36 Harv. Int. Law J. 1–70 (1995); Anne-Marie Burley (Slaughter), Toward an Age of Liberal Nations Symposium: Nationalism and Internationalism: Shifting World Spheres, 33 Harv. Int. Law J. 393–406 (1992).
 Id. at 227–228.
 Id. at 228.
 Id. at 229.
 Id. at xlv.
 Id. at xx.
 Id. at 311.
 Id. at 358. Like “the abolition of the slave trade, the liberation of the colonies, the end of white rule, and the many campaigns for human rights,” “[t]he reform of ‘might makes right’ for natural resources will be the next of these movements.”
Leora Bilsky has written a very impressive book entitled The Holocaust, Corporations, and the Law: Unfinished Business. The book addresses corporate responsibility for human rights violations, focusing particularly on the Transitional Holocaust Litigation (THL) with Swiss and German companies over the past decades. Necessarily, any serious scholarly treatment of this issue requires considerable intellectual breadth, in large part because the topic sits at the intersection of a broad range of interconnected fields. Bilsky has written what is, in my opinion, of the most sophisticated scholarly treatments of these issues, weaving together an impressive array of insights from different disciplines into a compelling unified whole. She makes a very eloquent, original, and profound contribution to questions of corporate accountability for human rights violations by pointing to the upsides of civil settlements in terms of structural legitimacy, victim participation and historiography. Her beautifully written argument draws upon and makes significant contributions to Harold Koh’s views of transnational litigation, to Susan Strum’s pluralist reformulations of structural reform litigation, and Michael Marrus’s critique of these cases. The final product is by far the most developed and articulate argument for the importance of civil liability as a response to corporate implication in mass violence, and I recommend it very highly to friends and colleagues.
I find Bilsky’s overall thesis very convincing—there are many reasons why settlements based on civil processes are preferable responses to transnational corporate implication in atrocity. If I have any hesitations, they are minor and probably arise from her focus on post WWII accountability for corporations implicated in the Holocaust based on international criminal law (ICL) as espoused in the Nuremberg Charter, as distinct from modern ICL and its potential reach in the contemporary world. The dominant influence on my reactions is, I confess, an extended period of time thinking about the responsibility of businesspeople and their corporations for international crimes from a comparative criminal law perspective, which is an approach Bilsky reasonably finds less attractive. In defending the significance of civil settlement, she argues throughout the book that “criminal trials are poorly suited to addressing corporate accountability,” (p. 15) and that the focus on criminal law “blinded Arendt, Jaspers, and others from considering the possibilities that other areas of law can offer.” (p. 34). I would agree with both of these statements in many instances, but I wonder if they might be overly categorical if interpreted as universal commitments, with respect to Nazi criminality but especially for atrocities elsewhere.
To begin, let me offer three relatively inconsequential areas where I felt Bilsky may have sold contemporary ICL slightly short in her otherwise compelling justification of civil settlements as a form of redress for wrongdoing during the Holocaust. First, her perfectly valid critique of the (in)efficacy of criminal law as a response to corporate implication in the Holocaust is not focused on modern ICL. As a consequence, her recitation of the failures of conspiracy (p. 18) and criminal organizations (p. 20) within the Nuremberg Statute as redress for corporate malfeasance during WWII do not tell us so much about the strengths or weaknesses of current law. Both conspiracy and criminal organizations are something of an historical embarrassment for modern ICL, which has replaced them with a plethora of “modes of liability” that might (and increasingly do) implicate corporations and their representatives. These modern “modes of liability” include everything from co-perpetration to superior responsibility, aiding and abetting, and just plain old perpetration. As a class, the concepts cast a legal net across modern corporate practices that likely transcends the law enshrined in the Nuremberg Charter. This reality seems to limit the extent to which lessons from Bilsky’s well-documented case studies can be transposed from the particular to the general.
In a similar vein, Bilsky appears to see ambiguity in the notion of complicity, which she argues militates against the use of criminal law norms in favour of THL-style processes. For example, after addressing some of the nuanced complexities of corporate collaboration with the Nazi State, she argues that “[w]e would be hard pressed to find consensual norms on the complex issue of the responsibility of economic ‘enablers,’ especially when the responsibility for the firms’ actions is intertwined with political actions of a corrupt state.” (p. 87). This position seems to overlook that other “modes of liability” have major implications for modern business as well as the advent of courts, international and otherwise, applying different iterations of complicity in trials for international crimes over the past twenty years. Focusing just on the latter, it is true that the majority of more recent complicity cases have not involved economic actors, but several have, and I am not aware of any of these cases struggling with locating concrete norms, outside judicial debates about complicity in the ATS context. And yet, I have argued elsewhere that understandings of complicity in ATS litigation were never entirely true to the concept’s various legal meanings in criminal law. Moreover, the most interesting of ICL complicity cases against economic enablers have occurred in domestic courts, where local norms that presumably enjoy strong democratic credentials apply. And finally, complicity is one of the most discussed topics in the theory of criminal law, which speaks to an ever-growing understanding of its normative import, including in difficult cases.
Third, I am not entirely convinced by the argument that the lack of settled legal meaning about corporate responsibility militates against ICL in favour of a negotiated process focused on restitution, engaging victims directly, and enabling historiography by true historians. For Bilsky, attempts to ground the legitimacy of transnational public law litigation in the widespread acceptance of international norms are “unable to address the normative uncertainty characterizing many transnational struggles for justice, in particular the struggle for corporate accountability.” (pp. 84-85). I agree that the advantages of civil settlements that Bilsky presents are marked, and that they warrant real attention in concrete cases outside the THL case-studies she explores, but I am less sure that I see indeterminacy in current ICL as a problem to the same extent. Leaving aside broader jurisprudential disputes about the ability of any normative system to immunise itself from indeterminacy, I worry that Bilsky’s views on the ambiguities of corporate responsibility for international crimes tend to draw exclusively on disputes that were housed within the now (nearly) moribund ATS. Yet, once again, corporate civil responsibility within the ATS appears to have obscured the reality of corporate criminal liability for international crimes in national courts. In some instances, this legal reality is explicit in national law, suggesting that ICL in various national legal systems may sometimes be a viable companion to civil cases, including those that result in settlements. And importantly, debates about the liability of corporations for international crimes cannot obfuscate the ability of criminal courts the world over to try businesspeople as individuals, further undermining recourse to ATS debates about corporate liability as a basis for dispensing with the criminal law tout court.
Thus, I read Bilsky’s very insightful work as adding a new layer to a broader set of transnational accountability options to be deployed pragmatically, not as an argument for the ascendance of civil redress and/or settlement over and above other regulatory possibilities as a blanket rule. In line with this thinking, I’ve used philosophical pragmatism as a frame in other work to plot the relationship between different forms of accountability in corporate contexts, in ways that may be helpful in charting a contingent view of Bilsky’s important contribution.
In particular, because the literature inadequately attends to the transnational dynamics Bilsky takes so seriously, I have criticised all sides of the debates about the following three questions: first, whether there is a basic conceptual justification for using a system of criminal justice constructed for individuals against inanimate entities like corporations; second, what value corporate criminal liability could have given co-existent possibilities of civil redress against them; and third, whether corporate criminal liability has any added value over and above individual criminal responsibility of corporate officers. In my view, debates about these issues reveal a recurrent tendency to presuppose what I call the perfect single jurisdiction in a way that overlooks globalization, the blind projection of local theories of corporate accountability onto global corporate practices, and a perspective that sometimes seems insensitive to the reality of corporate crimes in the Third World. By adopting a pragmatic frame, however, I doubt that any of these questions can be answered in categorical terms that are divorced from context.
As part of this approach, I hope that a consideration of the countervailing upsides of a criminal law framing will complement Bilsky’s valuable criticisms of it in the THL context. While my earlier work explored these questions in greater detail than I can replicate here, I pause to offer two sets of conceptual arguments that may favour the deployment of criminal law over and above civil remedies in certain circumstances.
First, criminal law is often likely to be a preferable vehicle for communicating moral blame for corporate participation in atrocity. In a section of earlier work entitled “Is Civil Liability Sufficient for Atrocities,” I inquired whether, for all its obvious benefits, civil liability is a sufficient response to what Raphael Lemkin once called “barbarous practices reminiscent of the darkest pages of history.” Criminal law theorists argue that the criminal law serves a particular function that is not reducible to civil restitution. Doug Husak, for instance, asserts the autonomous value of criminal responsibility outside its intersection with tort liability by arguing that the criminal law “has an expressive function.” In doing so, he asks how “could mere compensation possibly convey the stigma inherent in criminal punishment? If the state has a substantial interest in expressing condemnation, it is hard to see how a non-punitive response to core criminality could be adequate.” Similarly minded, George Fletcher argues that “economic analysis misleads us by reducing punishment to the prices that actors pay for engaging in their preferred conduct.” Thus, scholars like Dan Kahan argue that in the corporate context, “substituting civil liability for criminal might be expressively irrational.” In certain especially egregious circumstances, these arguments might serve as a basis for prioritizing criminal not civil redress.
Second, a unique focus on civil liability risks allowing companies to absorb the cost of responsibility for international crimes as an incidental part of normal business by passing this expense on to consumers, who pay incrementally more for weaponry, games consoles, cellphones and engagement rings. In other words, civil liability might allow corporations to purchase massive human rights violations, or equally seriously, shield culpable businesspeople from serious criminal accountability. To address these concerns, many scholars argue, first, that the dividing line between corporate criminal and tortious accountability should be demarcated along essentially moral lines, based on whether the conduct in question was sufficiently grave to warrant outright prohibition or whether it should be priced, and second, that corporate accountability must go hand in hand with individual responsibility. Whether or not these ideas were practically germane in the THL context, I believe that they retain relevance alongside civil settlement as possible responses to transnational corporate implication in atrocity. Much depends on context.
Thus, I am left at the end of Bilsky’s important book wondering about ways of generating synergies between different forms of corporate accountability, including the settlements that she has so ably placed within the scholarly imagination as an important option. There is much interesting literature exploring possibilities of synergistic accountability, although to the best of my knowledge, these arguments are yet to be extrapolated into a transnational context. As an example, Samuel Buell supports the continued availability of corporate criminal liability as the “sharp point” of a pyramid, which includes the full range of civil remedies including those enforced by public administrative agencies. Similarly, Harry Ball and Lawrence Friedman have argued that corporate criminal liability is useful as it allows prosecutors to threaten “the full treatment,” a term that denotes cumulative accountability, including responsibility of individual businesspeople. Finally, Mariano-Florentino Cuéllar has argued that “some will recognize how the presence of overlapping criminal and civil jurisdiction can facilitate the imposition of more severe civil penalties.” In particular, Cuéllar suggests that acquisition of evidence from one legal process might feed into the other, meaning that the two operating in tandem create results unachievable by one alone.
This brings me back to Bilsky’s focus on the Holocaust cases, and a question that has troubled me since it arose in a very interesting conversation with Franziska Oehm some years ago. Over the past decade, German prosecutors have tried a series of former Nazis for their complicity in the Holocaust, from a camp guard who assisted without directly participating in murder, to the accountant at Auschwitz. These men are in their nineties now, raising intriguing theoretical problems about the justification for punishment of defendants that have so little of their lives left to live for events that took place so long ago. Based on preliminary reflections, I am tempted to think that these cases are both defensible and important. Nonetheless, I wonder if there is not something slightly bizarre, perhaps backwards, in the spectacle of prosecuting individual former Nazis as accomplices in the Holocaust for making what are, relative to corporations and their representatives, causally minor contributions. In fact, when I first saw the subtitle to Bilsky’s great book—Unfinished Business—I anticipated that she was referencing exactly this curious anomaly. So despite the important shortcomings of criminal trials Bilsky very fairly points to, I wonder if jarring incongruities of this sort also militate against washing one’s hands of criminal accountability entirely, even within the harrowing set of cases she focuses on.
Overall, I was excited by Bilsky’s occasional use of pragmatism within the book, as well as her lengthy discussion of transitional justice, which I read as adopting philosophical pragmatism as its core ethos. Obviously, any discussion of ideal types in discussions about corporate accountability will need to be highly sensitive to the political realities that ensnare these cases everywhere, and recognize that disaffected communities in Africa, say, are often likely to view any avenue for meaningful redress as an unexpected luxury. Nevertheless, I’m adamant that the enormous insights Bilsky’s excellent book offers are of vital importance in designing accountability mechanisms that fit local contexts as part of transitional justice initiatives, and potentially, in augmenting whatever possibility exists for simultaneously seeking restitution together with moral condemnation. I wholeheartedly recommend this important book to all who are interested in the relationship between commerce, atrocity and accountability, and thank Leora Bilsky for participating in this scholarly exchange.
 See section entitled Doctrinal Infidelity, in The Turn to Corporate Responsibility for International Crimes: Transcending the Alien Tort Statute.
 See, for example, The Historical Significance of the Kouwenhoven Trial.
 I wrote a short, non-opinionated overview of this theory in Complicity. See also the series of criminal law theorists discussing the interpretation of complicity in the ICC Statute in Complicity in the ICC Statute.
 See section entitled From Custom to Legislation, in The Turn to Corporate Responsibility for International Crimes: Transcending the Alien Tort Statute.
 James G. Stewart, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, 47 N. Y. Univ. J. Int. Law Polit. 121–206, 179 (2014).
 Douglas N. Husak, Over Criminalization 186 (2008).
 George Fletcher, The Grammar of Criminal Law 61 (2007).
 Dan M Kahan, Social Meaning and the Economic Analysis of Crime, 27 J. Legal Stud. 609, 619 (1998) (criticizing economic analyses of corporate criminal liability as inappropriately leaving out the social meaning of punishment).
 Coffee, John C., Jr, Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B. U. L. REV. 193–246, 230 (1991); Gerard E. Lynch, The Role of Criminal Law in Policing Corporate Misconduct, 60 Law and Contemp. Probs. 23.
 One of the concerns is that focusing on just corporations would allow individuals to use corporations as disposable shells that inhibit individual responsibility, whereas focusing on individuals alone could lead corporations to scapegoat dispensable representatives. See, A Pragmatic Critique of Corporate Criminal Theory: Lessons from the Extremity.
 Samuel W. Buell, Potentially Perverse Effects of Corporate Civil Liability, in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, supra note 88, at 87, 88.
 Harry V. Ball & Lawrence M. Friedman, The Use of Criminal Sanctions in the Enforcement of Economic Legislation: A Sociological View, 17 Stanford Law Review 197, 215 (1965).
 Mariano-Florentino Cuéllar, The Institutional Logic of Preventive Crime, in Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct, at 143.
 See, for example, Trial of Reinhold Hanning, Ex-Auschwitz Guard, Opens in Germany, online, February 11, 2016, http://www.nytimes.com/2016/02/12/world/europe/reinhold-hanning-trial-auschwitz.html?_r=0; Kate Connolly & Reuters, Former Auschwitz guard Oskar Gröning jailed over mass murder, The Guardian, July 15, 2015, https://www.theguardian.com/world/2015/jul/15/auschwitz-guard-oskar-groening-jailed-over-mass-murder (last visited Jan 28, 2019).
 The most striking of these cases involves prosecuting an alleged accomplice in Nazi crimes in youth court even though he is now 94 years old. See Reuters, Nazi war crimes suspect, 94, faces German youth court trial, The Guardian, September 21, 2018, https://www.theguardian.com/world/2018/sep/21/nazi-war-crimes-suspect-faces-trial-german-youth-court (last visited Jan 28, 2019).
I’m very excited to host a discussion of Leora Bilsky’s outstanding book entitled The Holocaust, Corporations, and the Law: Unfinished Business (Michigan, 2017). As per usual, I will avoid an extensive introduction to the book, especially because the text contains a very helpful synopsis that I paste below. I’m also thrilled to host an excellent array of scholars (see a list here), who all work on these issues from different vantage points, in the hope of stimulating helpful creative reflections on this important new text.
Here then, is the publisher’s summation of Bilsky’s argument:
The Holocaust, Corporations, and the Law explores the challenge posed by the Holocaust to legal and political thought by examining the multiple issues raised by the restitution class actions brought against Swiss banks and German corporations before American federal courts in the 1990s. Prior to these lawsuits, the legal treatment of the Holocaust had been dominated by criminal law and its individualistic assumptions and had consistently failed to relate to the structural aspects of Nazi crimes, which relied on a modern bureaucratic apparatus and the cooperation of the private sector. Although the class action suits of the 1990s were settled for unprecedented amounts of money, the defendants did not formally assume any legal responsibility. Thus the lawsuits were bitterly criticized by lawyers for betraying justice and by historians for distorting history.
Leora Bilsky argues that class action litigation and settlement offer a mode of accountability that is well-suited to addressing the bureaucratic nature of business involvement in atrocities. Engaging critically with contemporary debates about corporate responsibility for human rights violations and assumptions about what constitutes “law,” she argues for the need to design processes that would make multinational corporations accountable in the era of globalization. She examines the implications of this new legal constellation for transitional justice and the relationship between law and history, as well as for community and representation in a postnational world. In this way, her novel interpretation of the restitution lawsuits not only adds an important dimension to the study of Holocaust trials, but also makes an innovative contribution to broader and pressing contemporary legal and political debates. In an era when corporations are ever more powerful (and international in their reach), Bilsky’s arguments will attract attention beyond those interested in the Holocaust and its long shadow.
Leora Bilsky is professor of law and director of the Minerva Center for Human Rights at Tel Aviv University.
I am four-fold excited to introduce this new mini-symposium featuring John Tasioulas’ groundbreaking work on “minimum core obligations” in Economic, Social and Cultural Rights.
First, I’m excited to debate Tasioulas’ two important new reports for the World Bank:
Both are important contributions to the human rights field. In the former report, Tasioulas provides a sophisticated but accessible philosophical exploration of minimum core obligations, arguing that they represent a sub-set of Economic, Social and Cultural Rights that must be complied with immediately, thereby bypassing the doctrine of “progressive realization” that is a particular hallmark of the Convention on Economic, Social and Cultural Rights. In the latter report, he applies insights drawn from his initial conceptual work to the human right to health. In applying theory to this right, he synthesizes law and practice from international and regional systems, undertakes a comparative analysis of national law from seven states, then folds these principles into ideas about sustainable development goals and indicators constructed to measure their realization. For more detailed overviews, I direct readers to the Executive Summary and Introduction sections of each report.
Second, I am especially excited to host this symposium because it brings together some of the leading theorists and practitioners in the world. All of the eight commentators who have kindly agreed to respond to Tasioulas’ reports are eminent experts in different fields. All approach the problem from various disciplinary vantage points, providing us with a rich tapestry of perspectives on what is undoubtedly a central problem for modern conceptions of global justice. Although I will not provide more information about all the commentators for this symposium here, I do want to single out two, who I am especially honored to host. Martha Nussbaum’s work, first on the capabilities approach then on the relationship between emotions and justice, is a major influence on my thinking. I attempted to entice her to participate in an earlier symposium, to which she politely told me that she does not write for blogs, so I am especially privileged to host her in this instance. Similarly, Michael Kirby enjoys a reputation for being one of Australia’s leading judges ever and his work in human rights was a powerful inspiration to me when I first became interested in this area. I’m thrilled to host these and all the other outstanding commentators.
Third, I am particularly enthusiastic about the symbiosis between theory and practice this symposium promotes. In the blog’s manifesto, I set out how “although the blog will seek to engage with theoretical questions, it will also continuously attempt to create symbiosis with practice in an attempt to ensure that practice is defensible and theory is informed.” The aspiration is evident at multiple levels in this symposium. It is reflected, for instance, in the contributions of leading philosophers and a highly-regarded judge, by the transition from philosophy to application in the two reports, and in the practical orientation of the conceptual work for the World Bank. The symbiosis is also enabled by the multi-disciplinary perspective of the various commentators. The outstanding cast of scholars who offer criticisms of the work come from philosophy, law, medicine and international relations. I remain excited by the underlying method as well as the constructive disagreement it has generated, so hope that this type of exchange stimulates others substantively as well as methodologically.
Fourth, I am pleased that this debate contributes, perhaps implicitly, to wider discussions about the adequacy of human rights as responses to massive contemporary problems. For the longest time, human rights projected an image of political agnosticism, promising to act as a thin set of standards that preserved human dignity while allowing diverse forms of culture, religion, and political organisation to flourish around them. Increasingly, that image is disputed, in large part because human rights are perceived as inadequate responses to global inequality. If human rights did unintentionally become part of the problem in global injustice, however, this reality was likely at least partially the product of an over-emphasis on Civil and Political Rights. So, a stronger engagement with the often-times overshadowed Economic, Social and Cultural variants of international human rights promises to inform wider scholarly debates about the salience of the paradigm.
In all these respects, I am particularly excited to host what I believe is an important contribution to the field.
This symposium has embodied everything I sought to promote in establishing this blog. First and foremost, it has housed frank but respectful criticism. In our piece The Ahistoricism of Legal Pluralism in International Criminal Law, we saw an implicit deference to extant law in prescriptive accounts of Global Legal Pluralism that we did not think could be justified normatively. In pointing this out, we spent much time discussing how to frame the argument so as to communicate respect for a set of excellent scholars who had done so much to inform our thinking about these problems, then sought out their criticism once our piece was finally complete as a mark of this respect. In turn, they have offered equally courteous and frank responses to our arguments. In all, I am so pleased that the exercise has conveyed a commitment to the primacy of ideas, a recognition of the great intellectual value of critique, and an inclination on all our parts to metabolize whatever impersonal emotions arise from scrutiny. I hope this reply registers in that spirit and promotes that scholarly culture.
I begin by offering a set of clarifications, which I suspect the piece itself should have made clearer. Ours was never a total assault on Legal Pluralism. I continue to believe that it plays a crucial role in a number of areas, in particular through its ability to undermine what James Sákéj Youngblood Henderson calls “the colonial contrived superiority of European law.” Anyone with even the most rudimentary understanding of law’s role in colonialism will know that withholding recognition of other pre-existing normative systems was a key element in this contrived superiority. In this light, Legal Pluralism is particularly important because it reasserts the authority of jurisgenerative communities other than the colonizing state while undermining rigid, hegemonic conceptions of what it means to have law. In many respects, this point explains our focus on state-made criminal law, even though this is deliberately a caricature of Legal Pluralism, as Paul Berman correctly points out. Nonetheless, as I will explain, our caricature eschews even more difficult problems for Global Legal Pluralism in an attempt to focus on a core of state law that Global Legal Pluralism’s deference to the legal requires it to embrace.
Reduced to its essence, our article was largely an attack on law as a necessary repository of moral, political, epistemic or cultural variation a cosmopolitan vision of global justice might seek to promote. Thus, we argued that Legal Pluralism’s method did not count against universal norms in the ways it claimed, in large part because it overvalued law. This point warrants emphasis. We do not argue that universal norms always solve the problems we point to across the board, which would be patently absurd. Instead, we mean to reverse the argumentative onus and place the burden onto the prescriptive account of Global Legal Pluralism, insisting that just managing whatever we consider to be law globally seems overly deferential to law. Our brief histories were, in the grand scheme of things, relatively superficial attempts to “scratch the surface” to see what lies beneath law. Having peered below the surface very briefly, we sought to point out how Legal Pluralism was not necessarily counter-hegemonic, since for a large set of what would constitute law, the hegemon had beat Legal Pluralism to the punch by imposing the law in the first place. Consequently, our aim was to warn that in prescriptive guise, the concept risked entrenching unjust norms.
We were, of course, conscious that history would never be able to “distinguish this superficial transplantation of domestic criminal law into the international realm, from potentially legitimate and useful reliance on national doctrines,” as Neha Jain rightly points out. Instead, we argued that the history of much of the world’s criminal law doctrine, both national and international, should undermine confidence that Legal Pluralism was necessarily respectful of genuine cultural variation, such that it could ground some concept of justice. Our first example of Argentine criminal law procedure operated as a null hypothesis where, by “scratching the surface,” we quickly found evidence of autonomous domestic ownership of and influence over criminal law doctrine. But in all our other examples, we found nothing similar. Far from stating that there was no congruence between local values and criminal law doctrine in any of these states, our argument was merely that these histories suggest real reason for caution against an idea that Legal Pluralism is, without more, worthy of veneration. We also felt that generic attempts to circumscribe Legal Pluralism’s over-enthusiasm for law, perhaps by citing human rights as an exception, came too late in the day because too much was already smuggled in through the initial deference to whatever law might be at the descriptive stage.
To develop this point, let me begin by recounting the descriptive and prescriptive variants of Legal Pluralism, since Global Legal Pluralism depends on both. Initially, Legal Pluralism was purely descriptive, tracing its origins to anthropological inquiries into the interactions between displaced social orders and formal colonial law. To the extent that the field drew on normative ideas within this descriptive mode, the need for this engagement largely grew out of challenges to methodology; i.e. objections to what should figure as “law” within the wider sociological inquiry. I circle back to this difficulty with defining law momentarily, since I have come to believe that it must be most acute in international criminal justice. For now, I again point to a major prescriptive shift for Legal Pluralism, where many scholars have begun to argue that diversity of social phenomena we are prepared to call law is not only empirically observable, but that this state of affairs is normatively desirable for the world. Global Legal Pluralism necessarily adopts both elements, first accepting a wide array of norms as constituting law, then recommending various institutional and procedural mechanisms for managing their interface. The caricature of Legal Pluralism the article offers was an attempt to hive off some of the most difficult problems at the descriptive stage, to highlight conceptual concerns with the transition from a descriptive to a prescriptive mode.
To explain this, let me start by agreeing wholeheartedly with Mireille Delmas-Marty’s eloquent statement that “choosing an exclusively state-centric perspective while the world is moving, the authors risk confining themselves to a state-centric, modern representation of LP which identifies with the rights of the state and makes the concept necessarily oxymoronic.” A theory of Legal Pluralism focused on state law alone would be oxymoronic. As our essay highlighted, “an over-emphasis on domestic criminal doctrine is anathema to true pluralism, whose very program involves looking beyond positivistic state-centered law.” Nevertheless, focusing on a segment of a field to elucidate conceptual concerns strikes me as entirely defensible. In our piece, we focused our analysis on state-centered criminal law in an attempt to avoid the wider jurisprudential problem involved in deciding what constitutes law at all. As Brian Tamanaha and many others have pointed out, that problem is a perennial thorn in Legal Pluralism’s side, so we sought to bypass the conceptual impasse by criticizing a segment of the legal we believed was unambiguously so. I have since come to think that the positivistic assumption that informed this method was unjustifiable on our part, but in ways that radically strengthen our argument not detract from it.
Understandably, the rules crafted to bring about the atrocities international criminal justice seeks to address are the very subject matter legal theorists use to debate the nature of law. Since completing the paper, it has dawned on me that whether Nazi law was law at all is the paradigmatic debate for a large segment of jurisprudence; indeed the question goes to the heart of the relationship between law and morality and therefore operates as something of an acid test for so many aspects of legal theory. To cite what is probably the most celebrated example (in the Anglophone tradition), the Hart/Fuller debate is a long and in places heated dispute between the positivist tradition that would see law as identified through social facts quite apart from its moral value, and a natural law tradition that was shocked by the positivists’ willingness to confer normativity on a set of legislative enactments in Nazi Germany that were clearly morally perverse. In many respects, the histories we discuss in the paper replicate these dilemmas. It stands to reason, therefore, that much of what we treat as law in the article might not be at all. This thought strikes me as very significant: it suggests that international criminal justice is not just a pleasant illustration of the normative interactions Global Legal Pluralism seeks to understand and manage. The field is at the heart of what Global Legal Pluralism means.
So, let me circle back to our caricature, showing how the natural law critique of our positivistic assumption only magnifies the concerns we raise. In our example of the inchoate crime of association de malfaiteurs in the Democratic Republic of Congo (see here, pp 33-41), we sought out a modern illustration of abhorrent criminal law doctrine in national systems comparable to the law “that allowed Joseph Stalin to sign 3,167 judicially-imposed death sentences in a single day, and Adolf Hitler to make being Jewish a criminal offence.” Our assumption, which I now think is highly disputable, was that this forcibly imposed inchoate crime of French then Belgian origins was unequivocally law; it survived the sieving off of law from religious, moral and social norms on the one hand, while distinguishing itself from the full range of non-obligatory propositions on the other. Once parsed out in this way, association de malfaiteurs was a law that both descriptive and descriptive theories of Legal Pluralism had to take seriously. Our project was to question whether Legal Pluralism should take it seriously at all, based only on its ability to pass this formalistic test. We used the apparent misalignment between local values and legal doctrine as our foil.
But Fuller, I suspect, would have doubted that association de malfaiteurs was law at all, then rebuked our positivistic attempt to avoid thorny jurisprudential problems as failed. But if our caricature fails for these reasons, it does so in ways that only galvanize our deeper point, namely, that “doctrinal pluralism is unsafe as a measure of diverse values and interests in the international community”. Perhaps Legal Pluralism is only about managing just law, such that the concept is instantly insulated from our criticism, but I see no evidence of this position in the literature with which I am familiar, and it would mark a sea-change for thinking about these problems. Then, to follow this jurisprudential line one step further in abstraction, the question becomes what the relationship is between Legal Pluralism and Justice. And here too, I now see this theme as a central but tacit pre-occupation in our paper as well as the literature more broadly. It is this unstated concern for justice, for instance, that leads scholars like Martti Koskenniemi to warn that Legal Pluralism “ceases to pose demands on the world;” and Boaventura de Sousa Santos to assert that “there is nothing inherently good, progressive, or emancipatory about Legal Pluralism.”
Justice is also useful in responding to criticisms based on the Rule of Law. In employing a Rule of Law frame, Kevin Davis’ excellent and thought-provoking critique of our article argues that “[d]octrines that confirm to people’s expectations are desirable, all else being equal, because they contribute to legal certainty and avoid situations that are tantamount to ex post facto lawmaking.” While there is certainly weight to this criticism, I am not sure how it squares with other principles espoused in the Rule of Law. As Waldron points out, avoiding contradictions in the law is also one of Fuller’s eight elements in the internal morality of law, and others like Dicey viewed legal equality as indispensable too. Universality appears better able to achieve these competing values. But more fundamentally, as critical traditions from Feminisim to Marxism teach us, Rule of Law arguments are all vulnerable to deeper normative commitments that take some notion(s) of justice as the paramount goal. To offer an illustration from our paper, even if we do assign legal certainty primacy as an Rule of Law value, I am doubtful that it could ever ground a norm like association de malfaiteurs in the Congo. I hold this view since a norm imposed by force as part of a brutal campaign of subjugation and plunder, which operates to inhibit political participation and freedom of expression now, seems plainly unjust.
Markus Dubber’s response takes us down a slightly different track on this justice path, where he argues that “[p]luralistic international criminal law thus becomes international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy”, and then later that, “[i]ncapable of facing its legitimacy challenge head-on, international criminal law instead makes do with professions of concern about ‘pluralism’.” These types of normative concerns are slightly different to those that animated our paper, but they also play off the relationship between law and a conception of justice. So, while I view Legal Pluralism as a helpful concept to ward off “the colonial contrived superiority of European law” and agree with Sasha Greenawalt that, descriptively speaking, Legal Pluralism is inherent, I remain convinced that history is a useful mechanism to illustrate the concept’s shortcomings as a guarantor of justice. I have also become convinced that, far from raising questions that are peripheral to Global Legal Pluralism, international criminal justice poses problems at the concept’s very heart.
I am so thankful for all of the excellent criticism we have received, which has enriched my thinking considerably. I hope that some of the foregoing is useful to others as they grapple with problems of law in the global order.
 James (Sákéj) Youngblood Henderson, Postcolonial Indigenous Legal Consciousness, 1 Indig. Law J., 2 (2002), http://jps.library.utoronto.ca/index.php/ilj/article/download/27710 (last visited Apr 19, 2018).
 Brian Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney L. Rev. 375, 375 (2008).
 H. L. A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. Law Rev. 593–629 (1958); Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. Law Rev. 630–672 (1958).
 Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Mod. L. Rev. 1, 23 (2007).
 Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation 89 (2002).
 Jeremy Waldron, Legal Pluralism and the Contrast Between Hart’s Jurisprudence and Fuller’s, in The Hart-Fuller Debate in the Twenty-First Century (Peter Cane ed., 2010).
I am very pleased to host a new mini-symposium on a long article I co-authored with Asad Kiyani, entitled the Ahistoricism of Legal Pluralism in International Criminal Justice. Because of length constraints, the American Journal of Comparative Law could only publish a shorter version of the piece, so with their blessing, Asad and I have decided to publish the longer version online and invite a series of excellent scholars to debate this longer version as part of this blog’s commitment to curating respectful critique of new scholarship. The longer version we discuss here contains a fourth part focused on criminal law procedure in Argentina and post WWI trials in Europe. In this additional part, we use these two illustrations, first as a counterexample that acts as a null hypothesis for the remainder of our piece, then as a qualification of this initial counterexample. We are thrilled to have an eclectic group of scholars who work on these issues from different disciplinary backgrounds criticize the piece, and hope that the dialogue spawns further debate within legal pluralism as well as international criminal justice. The article’s abstract follows:
International criminal law (“ICL”) is legally plural, not a single unified body of norms. As a whole, trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of Legal Pluralism. To our minds, these scholars omit a piece of the puzzle that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal laws that inform ICL leads to (a) the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural and political values; and (b) in the limited instances where criminal law doctrine does reflect underlying societal values, an overly general assumption that respecting the various embodiments of this law is best for ICL. These oversights result in important normative distortions, with major implications for the field’s self-image, function and legitimacy. In particular, scholars and courts overlook that much criminal law doctrine globally is the result of either a colonial imposition or an “unsuccessful” legal transplant, as well as historical examples where respecting pre-existing doctrinal arrangements undermined the value of postwar trials on any semi-defensible measure. In this Article, we revisit a cross-section of this missing history to contribute to both Legal Pluralism and ICL. For the former, we demonstrate that there is nothing inherently good about Legal Pluralism, and that in some instances, a shift from its descriptive origins into a more prescriptive form risks condoning illegitimate or dysfunctional law. For ICL, our historiography shows how partiality is embedded in the very substance of ICL doctrine, beyond just the politics of its enforcement. At one level, this realization opens up the possibility of renegotiating a universal ICL that, at least in certain circumstances, is actually more plural in terms of values and interests than doctrinal pluralism (although the dangers of power masquerading as universalism are also profound). At another, it suggests that institutions capable of trying international crimes need to do far more to step away from the ugly legal histories they have inherited.
Before we begin the mini-symposium, a word from behind the scenes. First, this piece resulted from an excellent collaboration between Asad and I. As the article attests, Asad and I were very equally involved in all facets of its production, including design, research, (re)writing, editing and workshopping. The collaboration was a great pleasure, from which I learned a lot. In terms of process, this project consumed a tremendous amount of energy. On more than one occasion, we concluded that we had to rewrite large sections. The history of the criminal law in entire regions of the world was excised with the stroke of a pen, entire subject-areas were calved off after more than one person said we had two papers here not one, and several times, we concluded that despite already having spent years on it, we had to begin new research on different periods and legal systems. I think I speak for Asad as well when I say that we learned a great deal through this project and are very pleased to see it completed and debated by so many outstanding scholars whose work we admire.