Category Archives: Comparative Criminal Law

The Inherent Pluralism of International Criminal Law

Alexander K. A. Greenawalt is a Professor of Law at the Elisabeth Haub School of Law at Pace University. His research focuses on criminal law, international law, and the laws of war.

I am grateful to James Stewart for inviting me to participate in this symposium on the provocative, deeply researched, and illuminating article that he and Asad Kiyani have authored. I have enjoyed engaging Stewart’s work over the years—including in a recent article on complicity which greatly benefitted from his writings—and I look forward to reading more of Kiyani’s work.

Let me start by identifying some points of agreement. I share the authors’ conviction that it is worth looking for right answers in criminal law, and I agree that those answers can transcend sometimes superficial doctrinal differences among legal systems (indeed, my above-linked article on complicity advances precisely such a claim). I also agree that it is misguided to romanticize difference for the sake of difference and that one must avoid the casual assumption that national criminal laws always have claim to deep cultural authenticity within the societies they regulate.

As Stewart and Kiyani note, I have used the word “pluralism” to defend a particular approach to international criminal law (“ICL”). Stewart and Kiyani are skeptical about pluralist approaches to ICL, but I struggled when reading their article to understand how exactly their position might impact my own, or indeed the actual practice of ICL. In part, this is because I find their account of pluralism somewhat elusive. Sometimes the authors seem to suggest that pluralism means blind deference to every doctrine of domestic criminal law no matter how oppressive. Elsewhere (among other approaches), they associate pluralism with a method by which ICL might arrive at consensus international standards—namely, by embracing rules derived from national criminal law that reflect a “real degree of inclusive, plural, cosmopolitan values” and are “doctrinally plural within a diverse, conflicting, sometimes inter-penetrating system of criminal law.” I am not aware of any scholar who has advanced the first position and the second claim is not one that I would associate with pluralism in the sense that I have used the term, although it does resemble a standard methodology embraced by international criminal tribunals attempting (sometimes misleadingly as the authors observe) to marshal support for universalist claims about the content of ICL.

I am curious, as well, about how exactly Stewart and Kiyani’s broad rejection of pluralism informs the actual practice of international criminal justice institutions. Take, for instance, the International Criminal Court’s (“ICC”) complementarity requirement which sometimes requires the Court to defer its jurisdiction in favor of criminal justice at the national level. Suppose the ICC is pursuing a suspect in the Democratic Republic Congo (“DRC”) who is being investigated at the national level for the same conduct. Do the authors believe that complementarity can or should apply in a case like that, or should the systemic, historically rooted deficiencies they identify in the DRC’s criminal law categorically preclude deference in all cases? Or perhaps complementarity itself should be abandoned because it inherently introduces the problems of pluralism that the authors explore? How then should a global system of ICL proceed if it rejects domestic prosecutions of international crimes?

The most obvious solution I can glean from Stewart and Kiyani’s article is that the world must coalesce around a single, best, cross-cultural and universal approach to all questions of criminal law and procedure, one that is devoid of power politics or cultural bias. If the world can achieve that, then I agree that the normative defense of pluralism becomes quite unconvincing indeed. But if that is the claim, then the authors must establish far more—and overcome far greater hurdles—than they do in this article.

For example, even if the world were to coalesce around the unitary theory of perpetration that the authors advocate (rejecting formally differentiated modes of criminally participation) I don’t see how the general choice of a unitary versus differentiated model is especially important in comparison to the host of other choices affecting guilt, innocence, and degrees of culpability that must be decided upon under either model.

Perhaps, however, one should read Stewart and Kiyani to advance a more modest claim that universalism is something to work for, that some universal answers are accessible, and that the blind embrace of pluralism is both threatening to this project and harmful given the colonial origins and distortions evident in many criminal law systems. If that is the claim, then I agree with the central thrust of the argument, but my own defense of pluralism does not proceed from the assumption that national criminal law demands blind deference or that it necessarily has some claim to deep cultural authenticity. To me, the central question is not one of universalism versus pluralism, but of how to manage the pluralism that unavoidably has accompanied the establishment of ICL. I also believe that my own framework accommodates many of the concerns that the authors raise, and so I will attempt in the remainder of this post to sketch out some of my own thoughts on this issue and attempt to see how they may accommodate at least of some of the concerns raised by Stewart and Kiyani.

I begin with the fact that there is variety in the criminal law. I agree (even outside the colonial context) that variety need not have any deep cultural basis. While differences among states may sometimes reflect important cultural fault lines, they are just as likely to reflect arbitrary, and sometimes pernicious, historical vestiges or the influence of judicial interpretation.

International law, in its current state, is hardly agnostic about this diversity. The body of international law that most broadly regulates these choices is international human rights law (“IHRL”). Many of the examples that Stewart and Kiyani invoke—judicial bias after World War I, restrictions on freedom of association, anti-blasphemy laws—reflect straightforward human rights violations. As a matter of IHRL (as the authors themselves acknowledge), these examples already offend universal values.

ICL, by contrast, presents only a limited intervention by international law into matters of criminal law. ICL evolved, in my view, not to harmonize national approaches to criminal law, or even to define and regulate uniquely “international” offenses in some qualitative sense, but instead to enable institutional interventions that counteract unique obstacles to the prosecution of certain especially grave offenses. The point of prosecuting Holocaust crimes at the International Military Tribunal at Nuremberg, for example, was not to reject German criminal law’s general judgments about how to define and assign liability for murder in ordinary cases. The point was to counteract and ensure accountability for the specific ways in which Nazi Germany had made an exception to those judgments by converting the state into a system of domestically authorized mass extermination. I believe that ICL speaks the most strongly when it works to justify and define the scope of such interventions, and it speaks more tentatively (although not entirely without authority) when it addresses more general questions about what it means to be a criminal.

How does this way of looking at things interact with Stewart and Kiyani’s specific claims? In previous work I have explored the example of the Erdemović case at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) involving a soldier who was forced under threat of death to participate in a firing line that massacred Bosnian Muslim civilians.   The ICTY Appeals Chamber rejected the defense on (I believe unpersuasive) policy grounds, notwithstanding the unresolved nature of the question under international law and the fact that many states, including all the republics of the former Yugoslavia, take a more permissive approach to duress.

I do not know whether Stewart and Kiyani have access to an optimal, universalist approach to duress. My position is that the ICTY should have looked to Bosnian law under the circumstances. In advancing this argument, I do not assume that the Bosnian criminal code reflects a deeply embedded and culturally specific approach to duress. Rather the Bosnian law reflects a fairly standard civil law approach that the state inherited from its prior membership in communist Yugoslavia. I think that the law of duress presents unavoidably hard questions, that all the dominant legal approaches to the issue are problematic in some respects, and that the Bosnian law falls within a range of reasonable disagreement that neither offends core human rights value nor the specific purposes of ICL. In a case like that, I don’t think that ICL has a strong interest in overriding the local law to deprive the accused of a defense which his society affords to other similarly situated persons. But even if one disagrees with that specific conclusion, the same problem arises in other guises. Suppose that the Bosnia’s own courts were prosecuting Erdemović for international crimes. Must those courts also prefer the ICTY’s approach to duress over their own? And what about ordinary domestic prosecutions for non-international crimes? Wherever one draws the line, the basic problem remains: absent universal, global agreement on how to handle duress, some defendants must be treated differently from others based on perhaps arbitrary, non-culpability driven reasons. Similar issues arise with respect to other standards of responsibility, principles of sentencing and so forth. Must ICL take an absolute position on every one of these questions, no matter how tangential the doctrinal issue is to ICL’s core mission?

At the same time, I agree (and have argued) that is desirable to have a single, comprehensive set of ICL rules that are available for use by a global court like the ICC and in other contexts where reliance on domestic legal principles proves problematic or undesirable. There are many reasons to favor this restult, including problems that Stewart and Kiyani explore as well as concerns having to do with clarity and administrability. But I do not think that those reasons exhaust all the procedural contexts in which ICL finds itself enforced. In the end, implementation of ICL involves a number of situation-specific considerations that cannot be resolved by broad appeals to either universalism or pluralism. Instead, there are a balance of factors to consider. Stewart and Kiyani convincingly elucidate some important factors that may sometimes arise. But they do not, in my view, eliminate the need for such balancing.




What Does it Mean for International Criminal Law to Conform to Local Values?

Kevin E. Davis is the Beller Family Professor of Business Law at New York University School of Law. His current research is focused on contract law, anticorruption law, and the general relationship between law and economic development.

Does international criminal law conform to local values? How can we tell? Why should we care? In their fascinating and illuminating article, The Ahistoricism of Legal Pluralism in International Criminal Law, James Stewart and Asad Kiyani focus on the first of these three questions. Inevitably though they end up addressing the other two questions as well. I say “inevitably” because it would be impossible for them to answer the first question about conformity without answering the methodological question of how to identify it, at least implicitly. And to choose among the variety of ways of assessing conformity they have to determine the purpose of the assessment, again, if only implicitly.

Stewart and Kiyani’s main interest is in debunking the view that doctrines drawn from national criminal laws necessarily conform to local values. The promised payoff is insight into the important issue of whether international criminal law ought to be pluralistic or universal — or as I prefer to put it, should it be uniform or not? They seem to believe that their debunking exercise undermines the case for non-uniform approaches. However, this only follows if a) they have an accurate test for conformity with local values and b), the case for a non-uniform international criminal regime depends in a significant way on the results of that test.

The way that Stewart and Kiyani test for conformity suggests they believe that the main justification for non-uniform approach to international criminal law is political legitimacy. I believe they are mistaken about what political legitimacy demands in this context. I also believe they neglect at least two other plausible justifications for a non-uniform regime: respect for individuals’ rights to be governed by familiar doctrines and effectiveness. For all these reasons I think that Stewart and Kiyani’s historical analysis does less damage to the case for non-uniform international criminal law than they make out. Let me explain.

Political legitimacy

The Ahistoricism of Legal Pluralism in International Criminal Law is organized around a series of case studies that examine whether various criminal law doctrines do or do not conform to local values. In each of the negative cases the reasons for concluding that there is a lack of conformity are slightly different. In the Democratic Republic of Congo the problem is that the colonial doctrine has remained in force without being amended by any local actors. In Pakistan the concern is that local amendments to a colonial doctrine were made by repressive dictators. Etc.

Curiously, nowhere do they test for conformity by referring to direct observations of local values. Stewart and Kiyani could have tried to ascertain the amount of popular support for individual doctrines by examining, say, survey data or commentary in the popular press. It is unclear why they eschew this seemingly obvious approach.

Instead, Stewart and Kiyani focus on assessing the pedigree of the doctrines. When a doctrine is damned it is because: it was originally drafted by a colonial power; if it was revised by local actors they were working at the behest of an un-democratic government or for some other reason failed ensure popular participation in the lawmaking process; or, it has been used, either locally or elsewhere, either as a tool of repression or in a partial fashion.

This is a stringent test, probably too stringent. Given the prevalence of legal transplantation and legislation by non-participatory, un-democratic or repressive regimes, most national criminal law doctrines seem likely to fail. More importantly for their ultimate argument, I believe that even the universalistic doctrines Stewart and Kiyani seem to favor would shrivel under this kind of scrutiny. What international drafting process is likely to ensure participation from all affected people, without intermediation by undemocratic or even repressive governments?

Focusing on whether the formulation of a doctrine involved democratically elected leaders and public participation seems to be a way of determining whether the doctrine in question is politically legitimate. If that is the goal then I think Stewart and Kiyani go astray because they underestimate both the costs of participation and the appeal of an alternative method of taking into account the views of the relevant public, namely, representative government. Drafting legislation from scratch and in full view of the public is a time-consuming exercise whose results may well leave everyone unsatisfied. Participation by all affected individuals is unrealistic, unnecessary and inefficient. Representative government, meaning participation by officials who are accountable to the people, may be sufficient to ensure that the public’s views are respected, and is far less costly.

Civil rights

Another element of Stewart and Kiyani’s test for whether a doctrine conforms to local values is whether it has been used to facilitate repression. That is what I take from their suggestion that the doctrine of association de malfaiteurs fails to conform to local values in France—where it originated—because it has been used repressively against people suspected of terrorism.

By suggesting that even contemporary French criminal law might be a problematic source for international criminal law, Stewart and Kiyani shift the debate away from political legitimacy to a new terrain, individual civil rights. They clearly believe that a test which excludes doctrines that violate civil rights will tend to be biased in favor of universalistic doctrines.

Stewart and Kiyani neglect a countervailing factor though: a non-uniform approach may result in adoption of doctrines that conform to local expectations, assuming that exposure tends to breed familiarity. When it comes to legal doctrine, familiarity is intrinsically desirable, even if, as Stewart and Kiyani might point out, it can also breed contempt. Doctrines that conform 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.


Finally, Stewart and Kiyani neglect another type of justification that might weigh in favor of a non-uniform approach to international criminal law: effectiveness. Suppose the effectiveness of criminal law doctrines varies depending on the circumstances. For example, harsh punishment for inchoate offenses might be reasonable in a society where evidence of completed offences is difficult to obtain, but less reasonable where evidence is more accessible. Similarly, a law against blasphemy might be reasonable in a society riven by religious tensions, but unacceptable in a society where religious toleration is better entrenched. In other words, different doctrines might be optimal in different circumstances. A non-uniform approach to international criminal law can accommodate this kind of diversity. Note that if effectiveness is the primary concern the critical issue will not be whether a given doctrine conforms to local values, but rather whether it fits local conditions, which is a slightly different test.

I develop this argument in favor of non-uniform “contextualist” approaches to lawmaking at greater length elsewhere, including in my writing about transnational – and international – anti-corruption law.[1]


For all these reasons, tracing the tainted history of national criminal law doctrines is an interesting and valuable exercise but does not provide compelling reasons to reject non-uniform approaches to international criminal law.

[1] See Legal Universalism: Persistent Objections, 60 University of Toronto Law Journal 537 (2010) and Between Impunity and Imperialism: Rethinking Transnational Anti-Corruption Law (forthcoming).

Legal Pluralism as a Dynamic Process in a Moving World

Mireille Delmas-Marty is the Professor of Comparative Legal Studies and Internationalisation of Law at the Collége de France. She is the author of Ordering Pluralism, A Conceptual Framework for Understanding the Transnational Legal World (Hart, 2009) and Towards a Truly Common Law – Europe As a Laboratory for Legal Pluralism (CUP, 2002).

I fully agree with the starting point: « International criminal law is legally plural, not a single unified body of norms ». ICL is an excellent example to illustrate what is called “Legal Pluralism” (LP), especially when considering « the complex dance between international law and domestic criminal law ». I also agree with the authors’ insight that this dance “takes place on at least five levels: (1) within national courts, trials involving international crimes often employ their own local criminal law standards rather than the international law equivalent; (2) international courts sometimes follow a particular national system in interpreting ICL rules; (3) international courts often survey then synthesize a wide selection of national rules to demonstrate widespread support for their favored approach; (4) at times, international statutes, treaties and national legislation define the same ICL concept differently and finally (5) judicial bodies that interpret ICL occasionally disagree amongst themselves about the interpretation of the same body of law”.

Before concluding that the dance is “improvised  rather than choreographed”, I propose considering diverse observable dynamics as a “work in progress for a world in process,”[1] leaving the question of “what might count as law” open.  It seems to me that by 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 the rule of law with state law and makes the concept necessarily oxymoronic.  To be “legal”, pluralism must be integrated into a state order which presupposes a structure that is more or less unified and hierarchical (unified because it is hierarchical) whereas pluralism implies (as traditional international law) the plurality of systems of law and their independence; it separates or juxtaposes different systems but does not organize them.

Beginning in the post-war period, globalization has opened a “post-modern” perspective which does not necessarily imply the disappearance of states, stimulating a somewhat paradoxical sovereign withdrawal, but increasing state interdependence. It leads to an unprecedented development of international law at supra and trans-state levels and even more surprisingly at the infra-state level. It has resulted in a whole that is plural, complex and evolving; a true challenge to the notion of the rule of law.  To address such a challenge, the goal of bringing order to pluralism involves a choreography which combines three interacting processes attempting to reconcile universalism and pluralism.

Three interacting processes

One evokes, in increasing order of integration: horizontal coordination, for example, across “circular models” of one legislator to another, or judicial dialogue; harmonization, which brings differences together rather than abolishing them; and lastly unification as a fusion when differences are incompatible.

The process of coordination facilitates spontaneous and horizontal reconciliation of differing systems.  It is without a doubt the most widely practiced process, from unilateral borrowing to cross-exchange, with examples of “cross fertilization”; but it is also the most uncertain since it relies on the good will of state actors.

The process of harmonization is more restrictive because of its reliance on a hierarchy between the national and international levels, which is itself complex because the hierarchy is flexible depending on its origins at the national or international level.

From the national level to the international level, an upward dynamic of reconciling differences demonstrates the importance of history and memory in illuminating comparative law.  We can only understand it when using critiques of “ahistoricism of legal pluralism” from preceding authors as a starting point.  Neglecting the historical dimension may have the effect of “condoning illegitimate or dysfunctional law”.  But it is also necessary to take into account the ambivalence of comparative law, in the sense that it can be invoked equally to resist as to reconcile differences.  As such, the example provided by the authors of Argentinian criminal procedure as being the “exception which confirms the rule” can also be understood as a reflection of this ambivalence.

It is also crucial to consider the downward dynamic that is at work from the international level to the national level. As discussed, international law is no longer simply inter-state and takes a supra-state status in its universal calling, but pluralism may reappear across diverse international law techniques allowing for “contextualising” the universal.  From this point of view, international criminal law is particularly interesting. Even to demonstrate the notion of a unified principle such as crime “against humanity”, the requirement of “complementarity” can be reintroduced at the national level.  We know that the International Criminal Court can only function competently in contexts where states in question lack the willingness or capacity to judge themselves. To exercise their competence, they must transpose international criminal law to domestic law and this transposition does not exclude a certain margin of national interpretation.

In noting that in both cases, whether ascendant or descendant, harmonization calls for “fuzzy logic”, cleaning up national margins precisely by replacing a requirement of conformity with one of compatibility.  This softening is not always possible.

Whereas the third process, that of unification, solidifies the hierarchy of norms by imposing a single norm, but risks abolishing any hope of pluralism.  Barring the renunciation of the unilateral process of transplantation – the pernicious effects of which have been demonstrated in colonialism –, the benefit of introducing a process of hybridization, which is multilateral and reciprocal.  In fact, it is rare to see such a practice across all scales on the planet.  Even at the level of the ICC, decisions that surround defining attempt, complicity and criminal procedure are informed directly by Western culture.  As such, hybridization is often limited in procedure to combining accusatory and inquisitory models.  On the other hand, crimes against humanity are broadened by notions such as apartheid, and criminal procedure can be enriched with alternative such as truth and reconciliation commissions.  Even more broadly, international law can contribute to the duty of remembrance by creating a duty to anticipate the intentions of future generations (for example, by creating, across cultures, a crime of ecocide).

Reconciling universalism and pluralism 

In a time when globalization reinforces interdependence from one end of the earth to the other, we must discuss the UNESCO Declaration of Cultural Diversity (Nov. 2001).  This declaration (extended through a 2005 convention) made clear the tension between two apparently contradictory principles of international law: on one hand, the universality of values proclaimed by the “Universal” Declaration of the Rights of Man of 1948; and on the other, the principle of diversity of culture and religions, thus of pluralism, making up a “common heritage of humanity” per the UNESCO declaration.  It is not an accident that this principle was posed in the days following September 11th 2001, which is sometimes characterized as a collision of cultures.

Some have interpreted the principle of diversity of “setting the fox among the chickens”.  But neither the human rights, nor international sanctions against the most serious crimes are comparable to a chicken coup; rather to a winding and unpaved road at risk of becoming an impasse if it leads to a complete relativism where all values ​​are equal. The 2005 Convention does not assert that all values are equal.  It poses the principle of “equal dignity and respect of all cultures” but attempts to push back at the risk of relativism by affirming as a first principle the respect of the rights of man “as set out by the universal declaration or guaranteed by international law”.

While this objective is set out, neither the Universal Declaration of Human Rights nor the UNESCO convention provide a method for reconcile pluralism and universalism.  Our hypothesis is that by rationalizing processes of coordination, harmonization and reciprocal hybridization, it is possible to put a coherent and diversified dynamic in place.  In a moving world, this dynamic must serve not only to construct a “truly common law of humanity”[2] based on the model of the rule of law, but also to avoid the pluralism which divides and universalism which leads to uniformity. We aim to create a path which can be called “ordering pluralism” or “contextualized universalism”, somewhere between the relative and the universal.



[1] See M. Delmas-Marty, « The ICC: a Work in Progress for a World in Process », in M. M. de Guzman and D. M. Amann, Arcs of Global Justice: Essays in Honour of William A. Schabas, Oxford University Press, 2018.

[2] M. Delmas-Marty, Towards a Truly Common Law – Europe As a Laboratory for Legal Pluralism, CUP, 2002. See also her current research project “Vers un jus commune universalisable?”:

Understanding Global Legal Pluralism and International Criminal Law

Paul Schiff Berman is the Walter S. Cox Professor of Law at the George Washington University Law School. He is the author of Global Legal Pluralism (CUP, 2012)

James G. Stewart & Asad Kiyani argue that the core human rights norms embodied in international criminal law (ICL) should not be lightly pushed aside in the name of cultural diversity or purported deference to the criminal law norms of the local communities where crimes might have occurred. First, they suggest, whatever these local norms might be, they might not actually be embodied in the communities’ formal criminal law doctrine because official that  doctrine may instead reflect historical contingency or may be the product of hierarchy. Second, they contend, even if domestic criminal law doctrine does sometimes accurately reflect local norms, we might nevertheless choose to ignore those local norms and insist on the primacy of ICL norms in order to make sure that those who commit heinous crimes are sufficiently punished.

I do not disagree with either of these points, but I confess that I am a bit mystified that the authors think that by embracing these arguments they are somehow challenging theories of Global Legal Pluralism or revealing the “ahistoricism” of such theories. I readily admit that I am not an ICL expert, so perhaps there are scholars who invoke legal pluralism to reject the imposition of international norms in all circumstances or who celebrate the “local” even when what is truly local is itself contested and is perhaps the product of hierarchy. I am not aware of such scholars, but if they exist then Stewart & Kiyani are right to offer their critique.[1]

But given that the authors name me in their introduction as one of the scholars of Global Legal Pluralism to whom they are responding, I think it is necessary to point out that nothing in my approach contradicts the arguments Stewart & Kiyani make. In this brief response, I will try to explain.

To begin, it is important to recognize that the focus in my book Global Legal Pluralism: A Jurisprudence of Law Beyond Borders was not on the substantive norms embodied in legal doctrine at all and certainly not substantive criminal law norms. Instead, I argued for procedural mechanisms, institutional designs and discursive practices that might take into account the multiple communities that might have a stake in a given decision and therefore better manage the inevitability of legal pluralism. Accordingly, to the extent I discussed ICL at all, I focused on the design of criminal law institutions and procedures, not the content of criminal law doctrine or norms. For example, I discussed the possibility that hybrid tribunals comprising both domestic and international actors might sometimes be preferable to either a fully international tribunal, on the one hand, or a fully domestic one, on the other. But I never addressed the content of the norms that might be applied by such tribunals. And I certainly never argued that the ICL norms regarding, for example, genocide, war crimes, or crimes against humanity should be jettisoned in favor of “local” criminal law.

This distinction between substantive doctrine and procedure seems crucial in considering the points Stewart & Kiyani make. For example, the authors rightly note that we might not want to defer to the substantive law of communities that themselves received their substantive law through colonial imposition. That seems perfectly correct. But even so, we might still choose a hybrid court—with both local and international judges and local and international prosecutors—in order to maximize local participation while still protecting against the possibility of local capture. Or we might choose a trial process that incorporates certain local forms of testimony or practice within it, regardless of the derivation of those practices.

More broadly, my version of Global Legal Pluralism is emphatically not a celebration of the local in all circumstances and under all conditions. Instead, I staked out a position that was both cosmopolitan and pluralist and argued for procedures that would strike a middle ground between universalism on the one hand and localism on the other. As such, far from rejecting all international norms, I provided numerous examples of so-called “local” actors using international norms to gain leverage within their own domestic legal or political systems that they would not otherwise have had. Further, I made clear that even if pluralism is a potential value to be considered in designing institutions, procedures, and practices, it is certainly not the only potentially relevant value. Thus, I wrote that whatever value there might be in trying to defer to a norm of a community, that value must be weighed against competing values, for example the values embodied in universal human rights. Accordingly, I made clear that a procedural mechanism that gave voice to pluralism might still be rejected on other grounds. My point was only that the value of pluralism should always be factored into the institutional design decision, not that it should always win.

So how might my approach translate into ICL during a period of transitional justice after mass atrocities? First, as mentioned above, I believe it is useful to consider multiple kinds of procedures and institutions and think about which sorts of procedures and institutions might best generate buy-in from among the many communities that might have a stake in the new society being formed. Second, I believe it is also at least worth thinking about how one might incorporate local norms and procedures into any given transitional justice mechanism to the extent possible, while still remaining faithful to the other core substantive values embodied in ICL.

But under no circumstances would my vision of Global Legal Pluralism so reify the “local” that it would require international norms to give way to local norms just because those norms were local. After all, Global Legal Pluralism not only recognizes that the content of norms is always contested by multiple communities; it also recognizes that the international community is one of those communities participating in the contestation. Moreover, pluralists of all people recognize that there is no single “local” norm anyway and that multiple local actors have a wide variety of interests and are therefore always contesting the content of local norms. In addition, as Stewart & Kiyani rightly point out, the “local” can be as much the product of hierarchy (or colonialism) as the international. So there is nothing inherently good about the local or evil about the international. Nor should we assume that the value of giving voice to plural voices always trumps every other possible value. After all, a lynch mob may be an expression of local norms, but it need not be celebrated or deferred to for that reason.

So, in the end, from my perspective Stewart & Kiyani end up arguing against a caricatured portrait of Global Legal Pluralism that I for one have never embraced and certainly have no wish to defend. To the contrary, if the focus shifts from doctrine to procedure, then I think my vision of Global Legal Pluralism actually comes out pretty close to where Stewart & Kiyani do: emphasizing diversities of values rather than doctrines in designing international criminal law mechanisms. But a pluralist approach would be sure also to include the value of broad-based participation by multiple communities and to think carefully about how best to foster such participation in all its forms.

If Stewart & Kiyani want to argue that local participation and buy-in is completely irrelevant to ICL, then I think we can have a legitimate debate. But I don’t see them to be arguing that point. If instead they simply want to make sure we don’t treat the codified criminal law of a community as an automatic proxy for the actual norms of that community, one would think they should get no argument from pluralists, who after all have always started from the premise that formal codified law is not the only relevant determinant of community norms. Alternatively, if Stewart & Kiyani want to argue that we shouldn’t always reject international norms in favor of local ones, again it seems hard to imagine they will get much argument from those who espouse Global Legal Pluralism. Global Legal Pluralism recognizes that what is local and what is global tend to be mutually constitutive anyway, as norms seep back and forth from local to global and vice-versa, multiple actors import and export norms for strategic purposes, and international law becomes “vernacularized” and transformed in local settings.

In short, Stewart & Kiyani have done wonderful research and have provided important insights regarding ICL. But it is not at all clear that their work has much to say about Global Legal Pluralism, at least not the Global Legal Pluralism with which I am familiar and to which I subscribe. Thus, it seems to me that the article would be better framed simply as a contribution to a discussion about the normative content of ICL, rather than as a response to Global Legal Pluralism. Re-framed in that way, I suspect that it is an important contribution to the theory of ICL and can be celebrated on its own terms. And as a pluralist, I would be happy to join in that celebration.

[1] I note that my reading of the scholars cited by Stewart & Kiyani in their introduction do not suggest that those scholars make the sort of broad ahistorical claims Stewart & Kiyani are criticizing either. For example, Alexander Greenawalt does not argue that ICL must always give way to local domestic law norms, only that such deference may sometimes be appropriate. Likewise, Elies van Sliedregt actually argues for maintaining a universalist core to ICL even while trying to accommodate some pluralism in application. Thus, it is difficult to see which pluralists Stewart & Kiyani are criticizing.

A Comparatist View on Doctrinal Diversity in International Criminal Law

Professor Neha Jain is an Associate Professor of Law and a McKnight Land-Grant Professor (2016-18) at the University of Minnesota Law School. Her scholarship focuses on public international law, criminal law, and comparative law.

In their provocative article on The Ahistoricism of Legal Pluralism in International Criminal Law, James Stewart and Asad Kiyani challenge the increasingly popular view that legal pluralism, as reflected in doctrinal diversity, is a value that ICL should strive towards. For Stewart and Kiyani, in embracing doctrinal heterogeneity as a marker of cultural cosmopolitanism, ICL scholars, practitioners, and courts, have been barking up the wrong tree and have ignored the socio-historical context of criminal law doctrines in both domestic and international law. Instead, universal norms that represent a multitude of cultural values and political interests might be better vehicles for ICL to become a genuinely value plural enterprise.

Stewart and Kiyani assemble an arsenal of theoretical arguments and case studies to demonstrate their thesis. One of the main strengths of the article is the astonishing variety and depth of national and international doctrines relied on to illustrate the perils of using doctrinal diversity as a proxy for cultural pluralism. Moreover, in a refreshing departure from the bulk of ICL and comparative criminal law scholarship, several of their national examples, such as blasphemy laws in Pakistan, are from typically unrepresented regions of the world and are analysed with rigour and sophistication.

A work of such sweeping knowledge and bold assertions nonetheless comes with its own set of challenges, some of which I can only address in broad strokes in this short commentary. First, Stewart and Kiyani’s main focus, as they acknowledge, is on state law. More specifically, the primary target of their criticism is doctrinal state law and the borrowing of this law by international criminal law actors without regard to its history and context. This analysis could have benefited from more engagement with comparatist scholarship. A vast and, by now, fairly standard, body of comparatist scholarship is dedicated to the need to move beyond doctrine. Indeed, much of the literature of legal traditions, legal formants, and variants thereof, has repeatedly emphasized the limitations of doctrine in ways that are entirely compatible with  Stewart and Kiyani’s thesis. This leads to a question – given that almost no serious comparatist today would adopt such a narrow approach to legal systems, who exactly is championing such a blinkered vision of “diversity” in ICL?  ICL scholars, as Stewart and Kiyani point out, are usually “more considered in their pluralism”.

Are the true culprits then international tribunals? The authors discuss, for example, the adoption of conspiracy as an inchoate mode of liability at the Nuremberg and Tokyo trials. However, the only reference to municipal legal surveys comes in the form of the document prepared by the American Chief Prosecutor at Tokyo to refute the argument that the conspiracy doctrine was unique to Anglo-American law. The authors do not dispute that the Prosecutor was correct in his geneaology of the national laws he cited on conspiracy – their objection is to his omission of their violent history in some jurisdictions. This is an entirely sympathetic position, but it does not serve to further the thesis of the paper. Whether introduced through consent, indifference, or violence, a rule or doctrine that forms part of the criminal law of a legal system can hardly be said to be completely unknown to it. Neither do Stewart and Kiyani claim that the Tokyo tribunal ultimately went on to rely on this survey to make the further leap that conspiracy therefore embodied value pluralism. Instead, they rightly criticize the way in which the court applied the doctrine to the facts of the case, which had little to do with whether or not conspiracy was a culturally cosmopolitan legal construct.

Moreover, even if international courts are conducting national surveys of criminal law doctrine in order to formulate ICL principles, are they truly doing so in the name of cultural pluralism, or simply because national doctrine is an easily accessible source of legal concepts and ideas that can be plugged into an international criminal law regime ridden with gaps and contradictions? In Stewart and Kiyani’s analysis of the ICTY’s jurisprudence on Joint Criminal Enterprise, there are a few references to the reasoning adopted by the Appeals Chamber in the Tadić case that would support the former position. However, this remains a mostly isolated example in an extensive article that is premised on the argument that ICL practitioners treat doctrinal diversity as a substitute for legal pluralism.  In other words, while the authors draw on numerous instances where ICL practitioners rely on domestic legislation and case law to formulate ICL principles, it is far from clear that the practitioners themselves look upon this exercise as furthering value pluralism or justify it in those terms.

Relatedly, at the outset of the article, Stewart and Kiyani recognize “the inevitability of the reliance on foreign domestic criminal law by international lawyers and institutions.” However, since their underlying assumption is that foreign national doctrine is being misappropriated by international criminal law institutions to tout ostensibly pluralistic values, they fail to distinguish this superficial transplantation of domestic criminal law into the international realm, from potentially legitimate and useful reliance on national doctrines. Yet again, comparative and international criminal law scholarship could have provided a rich source material to explore this possibility. ICL scholars have, for example, criticized the practice of international criminal tribunals whereby courts conduct cursory surveys of domestic criminal laws to propose “general principles of law”. However, this does not have to entail a complete abandonment of references to domestic legal rules found in statutes and case law. These formal sources of law may still be useful for an international court, not as embodiments of cultural pluralism, but as models of legal principles that have been tested in the laboratory of domestic legal systems, and that can serve as an inspiration for rules and principles that are tailored to the requirements of the international criminal law regime.

Finally, while Stewart and Kiyani are clearly in their element in highlighting and exploring case studies from different domestic jurisdictions and international courts, at times, the link between their abstract thesis and the case study is quite tenuous. For instance, the authors claim that the failure of the domestic German war crimes trials after World War I can be explained in part by their adoption of a German criminal procedure that was in accord with native German values, but alien to other legal systems and to foreign audiences. The experience of the Leipzig war crimes trials is adduced to demonstrate that “[e]ven when criminal doctrine is a safe proxy for social and cultural values within the community it governs… this fact alone is not a sufficient condition for privileging it in a contest between normative orders.” This is a perfectly reasonable proposition except that on the authors’ own account, it is difficult to say that the criminal procedural innovations that were controversial at Leipzig should in fact be regarded as a proxy for German social and cultural values. The two specific procedural rules that Stewart and Kiyani cite were both introduced as deviations from normal German criminal procedure in 1920 and 1921. Given the care that the authors otherwise take to refrain from equating the acceptance of every single doctrinal rule with a country’s culture, it is a stretch to then argue that a recent procedural amendment introduced in the wake of a devastating war loss, and in circumstances of exceptional political tension, was reflective of German community values more broadly. Equally, with the intense resentment caused by German actions in World War I, not least in France and Belgium, it is quite likely that that no matter what procedural model had been adopted at Leipzig, acquittals in large numbers, especially of high profile defendants, would have been unlikely to secure their approbation.

None of these critical questions, however, should be taken to undermine the importance and urgency of Stewart and Kiyani’s central claim: an ICL that continues to be biased, discriminatory, and myopic will have little claim to global legitimacy and the burden of rectifying the many parochialisms of ICL is a task that falls upon all of us who care about and practice this enterprise. The article is a welcome and impressive contribution to this vital conversation.

New Symposium: The Ahistoricism of Legal Pluralism in International Criminal Justice

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 ICLThese 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. 

An Open Invitation to Further Debate (Instead of an Amicus Brief)

In organizing this mini-symposium, I sought to engage expert reactions to my paper from a range of legal systems that have not featured in debates about forms of attribution in ICL. When international courts and tribunals construct(ed) these forms of attribution, they initially drew heavily on Anglo-American jurisdictions, adopting concepts like superior responsibility and joint criminal enterprise from them. Then, judges at the ICC announced a major swing towards notions of criminal responsibility derived from German criminal law, including co-perpetration, theories of control to distinguish perpetration from complicity, indirect co-perpetration and even perpetration through an organization to treat those doing the bloodletting and their masterminds as perpetrators. Throughout this process, nobody appears to have asked experts in systems that adopt a unitary theory of perpetration, which dispenses with all these doctrines, to reflect on the law within their own countries and its potential as a solution to recurrent problems with blame attribution in ICL. This silence has been quite strange, especially when the Nuremberg Tribunal applied a unitary theory of perpetration and several modern ICL judges have argued that the current complexity is unnecessary.

This mini-symposium has broken new ground in this regard, in ways that I hope sets the scene for further scholarly research and debate. I was especially grateful that a range of criminal law theorists from each of the countries I write about in the paper agreed to criticize the paper, and that some very prominent practitioners joined the fray to offer their reflections too. As is evident from this blog’s manifesto, I deliberately seek to create dialogue between theorists and practitioners, so I am thrilled that this discussion has involved members of both groups. Some of the feedback I received was striking—during the course of this online symposium, a senior prosecutor at one international court and a defense counsel for a well-known defendant at another emailed me saying they wholeheartedly agree with the need for a unitary theory. The latter even suggested that I file an amicus brief calling on one particular tribunal to revert to the unitary theory of perpetration adopted at Nuremberg. I politely declined, but decided to open up this final post to whomever wanted to share an opinion one way or the other, provided that it respected the strictures of the blog’s manifesto.

Instead of defending the unitary theory of perpetration or either of the article’s I’ve written about it (see here and here) in this post, I use this opportunity to set the scene for an open online discussion at the base of this post by reiterating what a unitary theory is and by summarizing the excellent posts that appeared in this symposium.

To begin, let me again highlight the three main variations of the unitary theory of perpetration to avoid commentators speaking past one another. The unitary theory of perpetration comes in three principal varieties, although some might contest whether the third species really fits within the genus. The first, known as a pure unitary theory, treats a causal contribution to a crime coupled with the requisite blameworthy moral choice announced in the criminal offence charges as necessary and sufficient elements of responsibility (excuses and justifications aside). On this view, the various forms of participation that exist in current ICL (aiding and abetting, JCE, co-perpetration etc.) are stripped of their autonomous existence and folded into a more capacious single notion of attribution. So, instead of attempting to manufacture fine-tuned rules that define JCE, aiding or any other form of participation in such and such a manner, a unitary theory of perpetration places them all in a big pot, then boils them all down to their shared normative essence. Through this distillation, blame attribution involves deciding whether accused X is responsible for crime Y based on settled core principles that pay no regard to the form participation takes, leaving their moral significance to be assessed post hoc by judges at the sentencing phase of a trial.

The second variant provides more detail without compromising the unitary theory’s core commitments. Known as a functional unitary theory, this iteration provides more guidance while insisting that causation and the mental elements announced within the criminal offense charged are necessary and sufficient bases for establishing wrongdoing across all forms of participation. To ensure that would-be criminals are sufficiently forewarned of their exposure to criminal law penalties, a number of states adopt this variant of a unitary concept—the general part of a criminal code or legislation articulates the different forms of causal connections that might apply within a unitary framework. In this sense, responsibility might involve carrying out the offence personally, instructing others to do so, providing necessary assistance, or furnishing assistance that is readily available elsewhere. Each of these forms of causation is announced within the law so as to inform the public of how they might attract criminal responsibility, but the underlying objective and subjective elements beneath these descriptions remain the same.

Third, some argue that subjecting accomplices to the same range of punishment as perpetrators also constitutes a weak type of unitary theory. In Germany (and the many jurisdictions that follow its example), aiders and abettors are sentenced to a maximum of three quarters of the penalty for the offense they facilitate, whereas the sentence for instigators is taken from the same sentencing range as principals. To a large extent, this discrepancy in maximum sentence drives the need for differentiating between perpetrators and accomplices, even if, as Markus Dubber has observed, “[r]emarkably little effort is spent on justifying this differentiation”.[1] Nonetheless, this differentiated approach, whose purpose is partly to determine the applicable range of sentencing, generates a tendency to look upon systems that formally equate sentencing ranges for perpetrators and accomplices as soft iterations of the unitary theory. France and England, for instance, do just this. For my purposes, though, I do not consider this an example of the unitary theory because it places no restriction on the substantive elements of forms of attribution, whereas truly unitary theories do.

With the stage set, I next situate the various expert responses to this mini-symposium, grouping them into those who also advocated for a unitary theory in ICL, those who were more ambivalent about whether their national experience served as much of a template for ICL, and one who was positively unconvinced.

In the first of these categories, Judge Baragwanath’s excellent post reminded us that there are actually many jurisdictions that fit within variants two and three, even if they might not describe themselves as unitary theories of perpetration. My own country of origin, New Zealand, begins the provision governing parties to offences by stipulating that “[e]very one is a party to and guilty of an offence who,” before articulating different forms of participating in a consummated offence. Judge Baragwanath’s post is so useful because it not only highlights that New Zealand’s criminal law is, in important aspects, unitary, but it also shows how a series of cases in England, Australia and Hong Kong have been struggling with whether to tie mental elements in forms of participation to those in the offense announced in ways that mimic the unitary theory. Despite backsliding in some courts, there is a discernable modern trend in this direction. His post reminds me that the States of New York and California have an even more intense unitary theory of perpetration. In any event, in describing “modes of liability” as “unnecessary,” Judge Baragwanath argues that “international criminal procedure, already complex and expensive, adds to those problems by forcing itself to leap over self-created non-existent hurdles.”

Filippo de Minicis’ post is similarly minded. Filippo is a presently Legal Officer in the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia, but he was originally trained in Italian criminal law, which as I show in the article, also discarded a differentiated system of blame attribution in favor of a unitary alternative almost a century ago. Filippo argues that when looking at standards of attribution before ad hoc international criminal tribunals (i.e. in customary international law), there is “little difference in the required actus reus,” and “a sufficient homogeneity on the mens rea side.” Filippo concludes after a decade working with these standards that a unitary theory is both viable and preferable, but he is also circumspect about whether any theory is perfect and, as was the case with New Zealand, shows how Italy’s commitment to the unitary theory is not absolute since Italy too appends a type of common purpose doctrine that approximates to JCE. Reality, it turns out, is complicated. Despite this, Filippo joins Judge Baragwanath as an advocate for the adoption of the unitary theory in ICL.

Other commentators are more ambivalent. Professor Carlos Eduardo A. Japiassú, for instance, highlights how Brazil’s unitary theory has slowly changed over time, shifting from a pure version to a functional one (which he calls “mixed”). While Professor Japiassú also speaks of a certain legal conservativism in Brazil, which I take to imply a lack of desire to shift back to a differentiated system that employs different substantive tests for different stand-alone forms of participation, he ends by concluding that “it remains unclear whether a pure rendition of this theory or a mixed variant like that now applicable in Brazilian Penal Law is a good alternative for International Criminal Law or International Criminal Courts.” Similarly, Professors Iryna Marchuk and Jørn Jacobsen discuss important scholarly criticism of the unitary theory in Denmark and Norway respectively as well as partial retreats from it in recent doctrine, before also questioning their system’s value as an exemplar for ICL.

Finally, in the third category, Judge Albin Eser’s masterful critique exemplifies disagreement with the unitary theory. In many respects, his is a brilliantly concise defense of the structure of blame attribution currently in place in ICL and a deft rebuttal of the arguments in the paper. The series of questions he poses are skillfully listed as issues he would need to be convinced of to accept that a unitary theory is optimal. These start with the argument that different forms of participation actually better track real life, move to the idea that a unitary theory cannot justify why they are addressed at sentencing along, then shows how unitary theorist essentially overlook that these questions will arise at sentencing anyhow. Then, he argues that “the only practical advantage the unitary theory so far seems to offer is a procedural one,” but he sees no procedural advantage here either. Ultimately, he concludes by correctly pointing out that even if we do have a differentiated system of blame attribution in ICL because powerful western states forced it on others, this says nothing about the theory’s conceptual integrity. A unitary theorist would, of course, contest each of these steps, but Eser’s brilliant critique is a wonderful counterpoint.

So, instead of labouring my own perspective any further here, I make space for other scholars, experts and practitioners to weigh in on these debates, which strikes me as a better idea than filing an amicus brief. I have therefore opened this post to comments, and anyone can post their views directly. In order to help ICL practitioners share their views (I recall many hours debating these questions with colleagues in war crimes tribunals), I’d like to offer a procedure through which you can legitimately (I hope) bypass the need for institutional approval to publish. If your institution is agreeable, I will post thoughts and reflections from practitioners anonymously. I would not normally do this through the post, so if want to remain anonymous, please send me your comments by email at Your email message to me should include your title and the institution you work for, but I undertake to keep this information entirely confidential, posting only your thoughts and reactions on this topic. For the rest of you, the post is open.

[1] Markus D. Dubber, ‘Criminalizing Complicity: A Comparative Analysis’, (2007) 5 Journal Int Criminal Justice 984 ff.

Questions From the Unconvinced

Albin Eser is Director Emeritus and Professor Emeritus of Criminal Law, Criminal Procedure, and Comparative Criminal Law with the Law Faculty of the University of Freiburg.  He was formerly a Judge at the International Criminal Tribunal for the former Yugoslavia.

To be satisfied with the unitary theory, you must be content with the most simple solution. In my view this is not the best approach to cope with the variety of social and criminal life. As soon, however, as you wish to pay attention to the varieties of the performances of crimes, you must be prepared to make differentiations – and this may unavoidably be a source for different demarcations. But even if this entails controversies, can this be a reason to sacrifice individual justice (by distinguishing between perpetration and participation) on the altar of (unitary) simplicity?

To become convinced of the latter alternative, I would like to have these questions answered:

  • Regarding the argument that the differentiation models would not correspond to real life, is this more the case if causation is considered the only basis of imputation, thereby ignoring any differences in the manner in which, and in the weight by which, a contribution is made to the performance of a crime?
  • And if there is a factual and social difference, as can hardly be denied if the view is not normatively and holistically preprogrammed, should this difference be paid attention to only at the sentencing stage or should it rather be expressed already in the guilty verdict?
  • And if only on the sentencing level, how and according to which criteria should this be done? This is a question, by the way, which is neither dealt with in your article nor are any suggestions by your proponents of the unitary theory visible.
  • If indeed, however, even the unitary theory cannot avoid taking notice of different types and manners in which a person can be involved in the performance of a crime, why couldn’t and shouldn’t this be made public in the verdict?
  • So the only practical advantage the unitary theory seems to offer so far is a procedural one: that the problem of recharacterization may be avoided. Yet, is this really the case if even according to the unitary theory differences in the crime performance are (to be) made at the sentencing stage? In a murder case, for instance, what could a defendant do if he had defended himself by merely involuntary having told where the victim might be met but finds himself sentenced to life imprisonment because of being proven to have been on the scene and directly involved in the killing? Could his appeal be rejected by simply referring to his causal contribution, thus rendering any differential circumstances irrelevant? Or shouldn’t it rather be in the interest of individual justice to assess the penalty according to the type and weight of his contribution? However, if he thus succeeded in getting his sentence adjusted to his minor contribution, as I think he should, could this be done without differentiations and recharacterizations? So what, in the end, is finally left of assumed procedural advantages of the unitary theory?
  • Regarding your references to political and ideological superpowers smaller countries were able to free themselves from by introducing the unitary theory, should such sovereignty aspects indeed play a role as to whether criminal theory is good or bad?

A Unitary Theory is Both Viable and Preferable

Filippo de Minicis works as a Legal Officer in the Office of the Co-Investigating Judges in the Extraordinary Chambers in the Courts of Cambodia. After graduating in law in 2004, he practiced criminal law in Italy. From 2006 to 2013, he worked first as a defence consultant and then as a Legal Officer in Chambers at the International Criminal Tribunal for the former Yugoslavia.

I agree with Professor Stewart’s proposition that a unitary model of blame attribution would be a viable and preferable option for ICL. This opinion is inevitably rooted, at least in part, in my Italian legal training. It is, however, also based on my ten years’ experience as a practitioner in ICL. Because my professional experience is limited to Italy, the ICTY, and the ECCC, my focus will be on participation as applied in those fora.[1] My observations will cover three areas: 1) the issue of the Fascist origin of the Italian Penal Code; 2) the reasons why I favour a unitary system to the current model; and 3) one aspect of the Italian system that Professor Stewart will probably not like.

 1.  Codice Rocco – An essentially liberal code in Fascist attire

Professor Stewart notes that the Fascist origins of the Italian Penal Code (known as Codice Rocco) have led some to dismiss it as a possible model for a unitary theory of participation. Stewart rejects this criticism. I do too. The Codice Rocco is divided in two parts: a general part, which contains the general principles of criminal law, such as causation, culpability, and participation; and a special part, which defines crimes and prescribes penalties. It is in the latter that the Fascist footprint is most evident, both for the nature of certain crimes (e.g. article 265 of the Code prohibits “political defeatism”) and for the order in which they appear, which echoes the hierarchy of values of the Fascist regime. The general part, however, opens by introducing the principle of legality, the prohibition of retroactive application criminal law, and the prohibition on recourse to analogy as fundamental principles of criminal law. These are principles that predate the Fascist ideology and which were part of the legal education of those who drafted the code. They stand in stark contrast to the general principles governing German criminal law during the National Socialist rule, which in substance left to the judge the freedom to incriminate whoever exhibited a behaviour that appeared to conflict with the interests of the National Socialist Party. The Codice Rocco is thus essentially a sufficiently liberal and still modern code, and while there are some articles of the general part which were influenced by the Fascist ideology, the unitary system is not one of them.

2.  A unitary model is possible and may have practical advantages

Italian law does not distinguish between principal perpetrators and accomplices. By contrast, both the ICTY and the ECCC adopt such a distinction. As an Italian lawyer trained to examine criminal liability through a monistic lens, I see the modes of liability applied by the ad hoc tribunals as an unnecessarily prescriptive characterization of different ways of participating in a crime. I hold this view because:

  • Apart from superior responsibility,[2] all modes require that the accused, by ordering, instigating, planning, or aiding and abetting,[3] substantially contributed to a crime, or that her conduct had a substantial effect on its commission.
  • Similarly, for Joint Criminal Enterprise (JCE), the law requires that the accused made a significant contribution to the common criminal plan.
  • With respect to the subjective element, they require that the accused made this contribution with the intent that the crime be perpetrated, or with the awareness of the substantial likelihood that a crime would be committed as a consequence of her conduct.
  • For aiding and abetting, the required mens rea is knowledge that the aider’s conduct will substantially contribute to the commission of the crime.
  • There is thus little difference in the required actus reus,[4] and a sufficient homogeneity on the mens rea side (knowledge, in my view, would also be a sufficient standard to attribute liability through a unitary model – see the next paragraph).

These all appear to be good reasons to consider whether the existence of a variety of modes of liability with an identical or sufficiently similar mens rea requirement is necessary. While some differences, especially if we consider the ICC Statute, do remain in the current universe of modes of liability internationally, they are of a nature that they can be reconciled in a unitary model, especially with appropriate adjustments in the sentencing law and practice. The means with which a person causes or contributes to a crime are not generally determinative of criminal liability strictu sensu. At most, they may be factors relevant for sentencing.

A word about the knowledge standard for aiding and abetting. Leaving aside Professor Stewart’s correct observations that some judgments of the ad hoc tribunals actually require a recklessness standard for aiding and abetting (i.e. knowledge of the probability that her conduct will assist the commission of the crime),[5] the knowledge standard as interpreted by the ad hoc tribunals would suffice, in Italy, to convict an accused for an intentional crime, i.e. one requiring dolus. By way of example, if I want to kill my business associate, and I ask a friend of mine to lend me his gun informing him that I need it to perpetrate the murder, if eventually I commit the murder both my friend and I will answer for it as perpetrators. I see no dogmatic problem with this approach: knowing that our conduct will cause or is likely to cause certain consequences, and still engaging in such conduct, essentially amounts to an intentional act, irrespective of whether those consequences were also desired.

In my experience, it is often practically difficult to distinguish whether a person contributed to a crime with knowledge (in the sense of awareness that one’s conduct will (likely) produce certain consequences) or intent (in the sense of knowledge with the added element of the desire to achieve certain consequences).[6] This, in turn, renders it problematic to legally characterize one’s responsibility as commission through a JCE or as aiding and abetting.[7] Let’s take the example of an alleged JCE the criminal objective of which is the deportation of an ethnic minority. To establish liability through JCE, the prosecution will need to prove that the accused, in concert with others, significantly contributed to the deportation with the intent to commit that crime. In practice, however, it may be difficult (or even impossible) to distinguish this situation from that of someone whose conduct (e.g. the provision of buses to deport the minority) substantially contributed to the deportation with knowledge that the provision of those means would assist that crime, but without the desire to achieve that result: in this scenario, the accused would incur liability via aiding and abetting. In ICL cases, there is seldom a “smoking gun” that allows a simple determination of one’s state of mind and, especially in JCE cases, intent is often inferred from a combination of knowledge and continued participation. This system, however, is far from infallible. Personally, I am not convinced that it is always (or even often) possible to distinguish if a person acted with mere knowledge or intent. Consequently, the law of the ad hoc tribunals features a theoretical distinction that the judges may not be able to apply – beyond reasonable doubt – to the facts under their scrutiny.

Thus, considering that all modes of liability (apart from – to some extent – superior responsibility which I will discuss below) can be distilled as intentional conduct causally linked to the crime, and in consideration of the mens rea issue in relation to JCE/aiding and abetting, I believe that a shift to a unitary model would be both possible and desirable. The superior who orders the pillaging of a village, the officer who plans it, the corporal who incites her troops to carry it out, the mayor of a nearby town who provide trucks to transport the loot, and the foot soldiers who remove valuables from civilian houses all contribute to the loss of property of the villagers. They are all to blame, and their responsibility can be assessed by examining whether they contributed to this loss with the required mens rea. The different degrees of responsibility of all these participants in the crime can be taken into account in sentencing, and, as Professor Stewart has argued, a summary of each convicted person’s criminal conduct could be included in the judgment’s disposition. On a more practical side, this system would also save considerable time in the drafting of international criminal judgments, where addressing multiple modes of liability requires considerable time and human resources. Since the costs of ICL are a constant concern across the international courts, together with the length of some proceedings, this practical advantage should be given just consideration.

A unitary model would not, in my view, affect an accused’s right to know the nature and cause of the charges against her, and consequently her ability to defend herself. While it is certainly indispensable – in fact, it is a fundamental right – for the accused to be informed of how she is alleged to have participated in a crime, international indictments often use rather general formulas such as “by way of her position, the accused ordered, instigated, planned, or otherwise aided and abetted…”. This practice, which very often includes charging suspects with all the available modes of liability, and then adjusting their aim during trial depending on the evidence, offers little information to the accused with respect to the actual nature of her causal contribution to the alleged crimes. On the other hand, it requires a diligent defence counsel to prepare for and address all the alleged modes. Moving away from modes of liability could require prosecutors to draft indictments which describe more precisely the accused’s alleged criminal conduct. It would also put an end to the practice of charging all modes of liability statutorily available, which in turn would allow the defence and the chambers to better focus their work and possibly shorten the duration of the proceedings.

Regarding superior responsibility, I see merits in the suggested separation of the failure to prevent from the failure to punish, treating the former as a form of participation and the latter as a separate crime. Failure to prevent crimes of subordinates which contributed, at least at the level of facilitating, the commission of the subordinates’ crimes may, if the accused acted with the required mens rea, amount to aiding and abetting by omission. In a unitary system, therefore, failure to prevent could be subsumed under a monistic model of participation which makes anyone who contributed to that crime with knowledge or intent responsible for it. As for failure to punish, the creation of a specific offence based on the commander’s dereliction of duty seems a preferable solution. First, it would avoid the theoretical difficulties encountered by judges and scholars when trying to introduce a causal nexus in this mode of liability. Second, on the front of general prevention, superiors would still be incentivized to properly exercise control and call to task criminal subordinates to avoid criminal sanctions, as well as administrative and disciplinary ones which may be imposed as accessory penalties for this type of offence. Finally, considering failure to punish as a discrete crime would be more respectful of general principles of culpability, which are violated when we convict a superior who negligently failed to punish the murder committed by his subordinate for murder (this violation is even more egregious if the superior did not have actual knowledge of the crime, but only “had reason to know” or, even worse, “should have known”).

Eliminating modes of liability, however, would certainly not be a panacea for blame attribution in ICL. In Italy, where there is a unitary system of participation, there have been long, vibrant, and often unresolved debates on different theories of causation and on the system’s adherence to the principle of culpability enshrined in the Constitution. Thus, the adoption of a unitary system in ICL would also presumably shift the debate and practical problems from modes of liability to the main pillars of blame attribution: causation and culpability. This shift would, I suspect, also be a healthy one for international criminal justice.

3.  Culpability distortions in the Italian system

With respect to culpability, Professor Stewart is perhaps too benevolent about the Italian unitary system’s ability to “avoid modes of liabilities acting as a prism that distorts responsibility, instead of assigning it in line with the culpability announced in the crime”.[8]

In Italy, the rules governing participation of a plurality of persons in the commission of a crime are set forth in articles 110 to 119 of the Penal Code. Article 110 essentially states that when a plurality of persons contribute to/participate in the commission of a crime, each of them is responsible for the sanction prescribed for that crime. The judge may then impose different sentences based on the intensity of their contribution and mens rea. To incur liability through article 110, a person must have at least “facilitated” the commission of the crime. As for the subjective element, article 110 requires either dolus or dolus eventualis (the appropriate definition of the latter is probably one of the most debated issues in Italian criminal law but, it suffices to say, dolus eventualis is generally interpreted as a higher standard than the foreseeability one in JCE III).

Article 116 of the Penal Code, however, states that when more people participate in the commission of a crime (for instance a bank robbery), if a different crime is committed by some of the participants (for instance murder), and this crime was not intended by the others, even those who did not intend the different crime will be punished for it, provided there exists a causal nexus between their conduct and the crime. If the crime not intended by some of the participants is graver than that agreed by them, the judge must take it into account at the sentencing stage. In spite of this mitigating factor, this is essentially a form of strict liability which violates the principle of culpability enshrined in the Italian Constitution.[9] The Constitutional Court partly corrected this state of affairs in 1965, stating that for a participant to incur liability for a crime different from the one she intended, the different crime must have been one that was at least a logically foreseeable development of the intended actions, according to common diligence and considering all the circumstances of the case. Thus, article 116 essentially allows a judge to convict someone for a crime requiring intent even when the evidence only establishes a much less culpable state of mind. This is one of the criticisms put forward by many scholars, including Professor Stewart, to JCE III. Those who defend article 116 might do so for reasons similar to those expressed by Professor Damaška in The Shadow Side of Command Responsibility (2001), where he stated that the persons to whom the graver crime is attributed through such system had already consciously decided to participate in a dangerous criminal activity, thus creating a “less dramatic shift in the register of culpability.”[10]

In sum, while I believe that a shift to a unitary model would be possible and could potentially have practical advantages for ICL, I am also aware that in the delicate field of criminal law there is no perfect system of blame attribution. Individual criminal responsibility is a fascinating but complex subject, and this comment of mine, based on years of practice may seem cursory from a scholarly perspective. I am aware that I have, in a non-scientific fashion, taken a position on issues which are the subject of vibrant academic debates, of long hours of legal research, and of thorough academic articles. Mine is the opinion of an Italian practitioner of international criminal justice, who in the past ten years has had the opportunity to test the advantages and limits of the pluralistic model of participation. I thank Professor Stewart for inviting me to share this practical perspective as part of this symposium.





[1] The views expressed in this comment are exclusively mine, and do not necessarily reflect the views of my present or former employers.

[2] While the jurisprudence of the ad hoc tribunals does not require a causal nexus between a commander failure to prevent and/or punish the crimes and their commission, I am aware that this position is criticized by scholars as non-reflective of customary international law. At the ICC, proof of a causal link is required, in terms of an increased risk, in relation to failure to prevent only, although some scholars and judges have expressed the view that causation is also required with regard to failure to punish.

[3] While ICTY jurisprudence cited by Professor Stewart in The End of Modes of Liability (p. 48) stated explicitly that proof of causal-effect relationship between the conduct of the aider and abettor and the commission of the crime is not necessary, it is possible that this was not meant to signify that no causal link at all is required between the acts of the aider and the crime. First, as noted by Stewart, the conduct of the aider or abettor needs to have a substantial effect on the commission of the crime. As a practitioner, I find it difficult to distinguish this requirement from causation. I am of the view that the Blaškić Chamber actually meant that the contribution of the aider or abettor need not be a conditio sine qua non. In the Applicable Law Section of the judgment in the case of Popović et al., in fact, paragraph 1018 first prescribes that the aider and abettor’s conduct must have had a substantial effect on the crime, and then clarifies that it is not necessary, however, to prove that the crime would not have been committed absent contribution of the aider and abettor.

[4] While significant is a lesser standard of contribution than substantive, I doubt that a review of the jurisprudence of the ad hoc tribunals would reveal a consistent and coherent practice in characterising the facts emerged from the evidence as a significant or substantive contribution.

[5] The End of Modes of Liability, pp. 38-39.

[6] To incur in JCE liability, a person must, inter alia, intend to further the common criminal plan.

[7] This problem is also noted by Matteo Costi in Introduzione al Diritto Penale Internazionale (terza edizione), Milano, Giuffrè, p. 117.

[8] The Strangely Familiar History of the Unitary Theory of Perpetration, p. 22.

[9] The Italian Constitution was issued in 1948, so when the Codice Rocco was issued in 1930 there was no constitutional impediment to article 116.

[10] In his article, Professor Damaška took as an example the felony murder rule in American law. It seems to me that the situation I described in the example features substantive similarity with this type of common law felony.

Norway: Three Codes, Three (Somewhat) Different Solutions

Jørn Jacobsen is a Professor in the Faculty of Law at the University of Bergen.

James G. Stewart’s argument for a unitary theory to replace the modes of liability in international criminal law is of particular interest from the point of view of Norwegian criminal law theory. Here, one of the most prominent contributors to the discipline, Bernhard Getz, made a similar claim in the latter half of the 19th century. Getz’ famous work on a unitary theory from 1875 is often hailed as a masterpiece (published in 1876 as Om den saakaldte Delagtighed i Forbrydelser – en strafferetlig Undersøkelse: Prøveforelæsning over selvvalgt Thema ved Concurrence om en Professorpost i Lovkyndighed). For good reasons too: he wrote it at only 25 years of age, and it certainly demonstrated a theoretical maturity that was a great surprise to Norway ‘s then fledgling criminal law discipline. After all, one counts Schweigaard’s commentaries from the 1840’s as the starting point for this discipline, and Getz’s work was the first significant theoretical contribution to it.

Getz became a professor the year after he published his book, and went on to have a huge impact on the formation of modern Norwegian criminal law. Getz and his close companion, Francis Hagerup, exhibited their impressive ambitions for criminal law in other manners too. They had international ambitions, and were both active in the AIDP (Association International de Droit Penal – International Association of Penal Law). Even more importantly from a Norwegian point of view, they filled key positions within the Norwegian political and legal order. Professor Hagerup served two separate terms as Prime Minister. Getz, for his part, held key positions in forming Norwegian legislation on criminal law and criminal procedure. He led both the commission preparing the Criminal Procedure Code of 1887 and the Criminal Code of 1902. He then became the first Director of Public Prosecutions in order to implement the Criminal Procedure Code of 1887. Certainly, this was the golden age for Norwegian criminal law – likely the first and only time when a criminal law professor held such prestigious positions in Norwegian society and with regard to the Norwegian criminal code, which was hailed as landmark legislation by central Continental criminal law scholars.

What then about Getz’s unitary theory? In itself, it was a critique of the then existing criminal code, the Criminal code of 1842. Norway’s first criminal code after independence was achieved in 1814. The code was itself a result of constitutionalization, as the Constitution of 1814 sect 94 required a criminal code to be enacted. This criminal code was imprinted by the Continental ideals at that time. The models used were the Code Penal (1810) and in particular the Code of Hannover (1840), which was itself inspired by Feuerbach’s Bavarian criminal code of 1813. Not surprisingly, this code differentiated between contributors to crime. In the code, a separate chapter was dedicated to ‘Participation’ (chp. 5), which was understood as something different from the ‘Perpetrator’. Here, the code had separate provisions for several different forms of participation, such as instigation of crime.

Starting from a concept of causation, Getz heavily criticized the 1842 Code. As there were no conceptual differences between the participator and the perpetrator, there was no reason to differentiate between them – thus the title ‘On so-called Participation in Crime’. The unitary theory was also the starting point for Getz when he embarked on the task of drafting the new Penal Code of 1902, which was celebrated throughout Europe. Here, in line with Getz’s program, there was no separate chapter on participation. In regard to sentencing, however, a section of the code in keeping with Stewart’s approach, assigned differences between different contributors’ importance. Getz clearly aimed at putting his theoretical enterprise into practice. However, the code of 1902 still included complicity as additional elements in a number of specific offenses. The additions do not appear to be consistently included in the code. This also left it for court practice to decide in regard to a number of offences whether complicity gave rise to criminal responsibility. In regard to several offences, the Supreme Court concluded that it did. Complicity therefore remained a central concept in Norwegian criminal law theory and practice even after Getz’s own code.

The lack of complete coherence between Getz theoretical project and his solution as a drafter of the code has often been emphasized in later literature. Unfortunately, Getz passed away at young age in 1901 – a year before his criminal code was enacted. As a consequence, we do not know how he would have responded to this criticism. Moreover, it is a point of intrigue for the current debate that later Norwegian scholars have not followed Getz’s approach on these questions. In particular, G. Astrup Hoel (1941) and Erling Johannes Husabø (1999) have criticized it. Husabø’s critique of Getz, in the most recent and extensive investigation into complicity in Norway, starts out from a different concept of causation and also offers conceptual arguments concerning the relation between ‘Perpetrator’ and ‘Participator’.

In 2015, the Norwegian code of 1902 was replaced by the Penal Code of 2005. At least in part, this legislative shift can be described as return to the original code of 1842. In the code of 2005, there is a general section on participation (sect. 15), which makes participation in crime in general subject to criminal responsibility unless otherwise stated in the offense. This new code does thereby not adopt the opposite solution to Getz’s code of 1902. In the preparatory works, there is no discussion of a unitary theory. Instead, treating complicity as a separate subject seems now to be taken for granted.

Lessons learned? There are two ways to see the rise and fall of the unitary theory in Norwegian criminal law. One way to see it is as an unfulfilled promise, one that was hindered by Getz’s early death, legal culture and other obstacles. The other way to see the Norwegian story is that the theory was flawed in the first place. There is not room for a detailed discussion of the subject here, nor on the particularities of international criminal law and the distinct challenges to modes of liability that this field of law faces. It seems clear, however, that the history of Norwegian criminal law at least is not a particularly strong argument for the potential of a unitary theory internationally.