Asad Kiyani is an Assistant Professor at Victoria Law School. He is a recipient of the 2017 Antonio Cassese Prize for International Criminal Law Studies for his article Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity.
One of the many pleasures of developing The Ahistoricism of Legal Pluralism in International Criminal Law has been the opportunity to engage with the work of leading scholars in international criminal law, legal pluralism, and comparative law. In an academic environment that increasingly turns on metrics and particular forms of scholarship and productivity, it is incredibly generous of all of the participants in our mini-symposium to share their thoughts. It represents the best of the tradition of academic engagement that they have taken the time to comment (and many have done so on earlier drafts as well). I should also thank James for being such an excellent partner on this project; I have benefited from his advice on my doctoral work, and it was a pleasure to join him as co-author here. It’s fair to say we both learned a terrific amount over the course of this project, and I enjoyed it immensely.
In what follows, I offer three overlapping responses, addressing whether historicism as a concept is relevant to pluralism in ICL today; whether the examples we study overemphasize certain values and under appreciate others; and finally, what direction the study of pluralism in international criminal law might also take us.
The insights graciously offered by Alexander Greenawalt and Paul Berman, who have written extensively and thoughtfully on pluralism in ICL, and pluralism more broadly, overlaps to an extent with Neha Jain’s comments. Put broadly, the three query whether our work impacts pluralist scholarship (Berman wonders whether ahistoricism as an analytic is relevant to the work of contemporary international legal pluralists), and whether there is a more pragmatic justification for pluralism that is important in its own right even if it does not equate to the idea of ‘value pluralism’.
As a starting point, it should be noted that the umbrella-type frameworks of Drumbl, Greenawalt, and van Sliedregt (amongst others) see pluralism as a feature of a legal structure that allows us to add in different laws and norms around the settled ‘core’ of ICL. Where gaps present themselves, we can find our answers in domestic law, either iteratively by reference to specific rules in particular instances, or comprehensively, by developing an international position on the basis of these surveys. But the questions of what is ‘core’ and how it came to be so are as important as the questions about identifying what should be filled in around that core and how. Part of our work then is to explain and critique this development of this ‘core’; that is ahistoricism coming to bear on pluralism.
The main thrust of this commentary is that our critique is overstated not because it misapprehends the work of legal pluralists, but because our focus on critiquing the aspirational ephemerality of ‘pluralism’ overlooks somewhat different rationales for incorporating domestic rules into ICL. In short, those rules offer something other than ‘value pluralism’ that is of importance: rules that have been tested in (and held up in) various legal systems, and thereby demonstrated their durability and relevance for international law. I will deal with this critique further in the next section, but note here that while such functionalism is not inherently flawed, it may also represent a particular vision of pluralism that is shallower and formalist. That vision is susceptible to papering over the underlying histories that may either be constrictive of the development of ICL, or that give lie to the claim of benefit to be derived.
One of the primary ways in which pluralists see benefits deriving from preserving legal diversity is the idea that it allows for multiple possible rules to be tested in multiple possible systems (a point Berman makes in his work on Global Legal Pluralism, and which Greenawalt cites). This is the laboratory idea: that rules can experimented with in the laboratory of global legal systems, and the testing reveals what rules are appropriate either as universal norms or in specific but circumscribed conditions. What the paper contests is not the idea that experimentation is possible, or that diversity is valuable, but that when put into practice the experimentation rationale often exhibits an indifference to sources and an indifference to the context in which these rules are implanted. Exposing the colonial history of so many domestic criminal systems says something about both the context of the law, but even more fundamentally something about the idea that there is meaningful diversity being tested.
As Jain points out, the literature on legal transplants is already highly sensitive to the context in which facially similar rules are applied and develop over time, in ways that might serve to reflect local needs and perhaps even local values. From our point of view, this sensitivity to context and history is often absent when engaging in such exercises in ICL. There, the determinative factor often seems to be whether the rule is present, without regard to how it is embedded, even though it is the system along with the rule itself that conditions the outcome of the experimentation. For all the talk of laboratory testing, very little attention is paid to the experiment itself: how the law was designed, what it was designed to do, and what effect it has had. Instead, when the ‘experimentation’ rationale is put into practice, the Darwinian persistence of a law is taken as proof of its success and therefore relevance to international tribunals. To the extent that these concepts of a legal core and legal experimentation are central to explanations of pluralism in ICL, then ahistoricism is also relevant.
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While Berman wonders if our historical enquiries are relevant to the present, it is also suggested that perhaps we take our historical analysis too far. For example, what of complementarity, Greenawalt asks? Should DRC’s legal history disqualify it from accessing complementarity at the ICC? There is no absolute answer to be offered he says, and is wary that we might propose such (presumably in part because this would be what Kevin Davis describes as a pedigree-based distinction). His concern is further important to us because of the danger that our historical analysis will be used to justify the accessibility of complementarity procedures (and therefore an affirmation of sovereignty) to only Western states whose domestic systems procedurally and substantively replicate international ones. This marginalization of Third World states and their legal agency would seem to run against what Jain rightly identifies as our concern with ICL’s continuing exclusion of the Global South as a norm-generator.
We are not of the view that we have fully resolved the balancing exercise Greenawalt rightly says needs to be engaged when decisions are being made about whether to permit or utilize domestic laws instead of international ones. However, that balancing exercise needs to be more attendant to the experimentation that elsewhere seems to justify greater pluralism. When that experimentation process — i.e. the practice of the domestic law — reveals extensive state-sourced violence (say through association de malfeiteurs in DRC), those factors ought to be considered.
Is this too obvious? Are the examples we rely upon extreme because they express concern about the remote possibility that obvious rights violations might somehow be tolerated in ICL under the guise of pluralism (recast here as an extreme relativism)? Greenawalt suggests that the examples we focus on shed little light because they clearly offend universal values. Davis takes a different tack, suggesting in his intriguing commentary that our suspicion of local law that is based on the substantive values they (fail to) uphold ignores extremely important factors. We overemphasize the values these local laws offend he says, rather than appreciate the principles they support, and in particular we overlook core rule of law precepts.
Davis suggests our pessimism leads to an assessment of national laws that is overly onerous, and queries whether any national law would pass muster from our view. He is concerned with our focus on doctrinal pedigree, which leads to national laws being suspect on their origin (often colonial), evolution (often undemocratic), or application (repressive). This, he says, “is a stringent test, probably too stringent.”
This is a problem in particular because in his view we overlook the rule of law values that accrue when the law is predictable and stable. Disrupting local norms on the basis of international standards represents its own form of imperialism we would do well to shy away from. He suggests that in critiquing contemporary international lawmaking, we bypass a more obvious answer – representative democracy – that might assuage our concerns about the legitimacy of local laws and, by extension, pluralist methodology. We share some of the concerns raised by Davis, but for slightly different reasons which leads to important and different conclusions.
First, as important as predictability and stability may be, international tribunals arguably have a special obligation to not validate illiberal laws under the umbrella of pluralism, complementarity or some other diversity-based argument given the centrality of international human rights norms to their functioning. It is worth noting then, in response to the suggestion of several of our helpful interlocutors that ICL would not tolerate such obvious rights violations and that we are building a case against a problem that does not exist, that the intersection of competing visions of fundamental rights remains unresolved in both national and international criminal contexts.
Whether it be association de malfeiteurs, the conditions of detention of international criminals (including the estimated 10,000 who died while awaiting trial in Rwanda), the culpability of child soldiers, the difference in punishment that may attach to those tried in the Hague versus their collaborators tried in national courts, or how the Akayesu definition of sexual violence was later constricted by the ICTY’s use of comparative analyses of national law, it remains the case that international criminal law struggles to respond to the thorny questions that arise in defining human rights norms.
On that point, it is worth raising the question of universality again (and repeating a reply in a slightly different register): that the examples we attend to are clearly infringements of universal values, and thus we are arguing against no one in particular. Left unaddressed here though is that the sense of what is a universal norm to be protected remains deeply contested, as we show through our analysis of the Draft Code of Crimes Against Peace and Security of Mankind, and with the Apartheid Convention and indeed in the important regional variation between human rights regimes. Contestation remains on fundamental issues, and the history of human rights doctrine in the post-war era resists the triumphalism often associated with human rights. There is an inextricable historical link to power associated with the concept of universality, and pluralist schemas that seek to declare and then build around those universals must reckon with those histories and dynamics as well.
Second, as suggested earlier, local correspondence — whether it be to cultural values or the expectations of a polity — necessarily says nothing about the supposed twin pragmatic benefits of pluralism that concern themselves with whether local law is suitable as part of international law. The first of these is the idea that thorny questions of international criminal law may be resolved through experimentation with a variety of different possible solutions that are offered by diverse local legal regimes; the second is that we can develop universalist international law by surveying national regimes and identifying nodes of commonality the diverse legal cultures have independently struck upon. Our position is that even where these regimes correspond with local values or expectations, the underlying justificatory factor of diversity may be absent simply because the vectors of history and legal imperialism are such that these various national regimes are largely duplicative of one another and their Angle-European origins. Thus both experimentation and justification on the basis of independent agreement lose resonance given the erasure of diversity that predates contemporary pluralist moves.
Davis further suggests that a consequence of our stringent test is that it leads inexorably towards a demand for international drafting from first principles, which is a process that is likely to be deeply unsatisfactory to all. We agree that such a process would be imperfect, and recognize in particular the inherent imbalances in negotiation and drafting that often replicate international power imbalances . However, without abandoning the possibility of an inclusive, equal negotiating process, we note that there are other possible approaches.
One episode that is missing from our published article in the American Journal of Comparative Law, but included in the longer draft available on SSRN (which was shared with all our invited commentators), is the development of more liberal criminal procedure code in Argentina over an extended period of time. That federal code borrowed from multiple legal systems, including a quite important influence from the criminal procedure code of Cordoba province. Conscious efforts to liberalize Argentine procedure involved legislators setting an agenda and legal experts providing advice as to how to reshape the federal code, and the eventual dispersion of this code as a model for other Latin American countries who similarly sought to liberalize their criminal procedure. This fusion of legal principles, and deliberate consideration and adoption, neither demands rewriting the law from scratch (as Davis suggests is a necessary corollary of our approach) nor does it forgo the important principles Davis articulates in his reflection: that there is value in a law that is stable but not ossified, and which adheres to the expectations of those it binds. In this respect, we find common ground with Davis and so many of our other thoughtful and generous interlocutors from which to argue for a more inclusive pluralism.
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Where then does the study of pluralism in ICL take us? For Dubber, studying pluralism is in part a way to reflect on the legitimacy of ICL: “Pluralistic international criminal law thus become international criminal law kind and gentle enough to mollify its protagonists’ latent concerns about its apparent lack of legitimacy.” Similarly, Mireille Delmas-Marty’s typically profound reflections highlight the ambivalence of pluralist approaches as both resistance and reconciliation.
The propriety of the concern arises first with the very real problem that, per Dubber, ICL purports to judge individuals based on the questionable premise that it is only “their capacity for autonomy, or self-government” that is relevant, “rather than their place on some status hierarchy”. It is compounded by a second insight, that ICL is not law per se, but really a system of policing in the sense of coercive and discretionary governance that adjudicates over and punishes the morally inferior (if not evil) wrongdoers who commit international crimes. The turn to pluralism, Dubber suggests, recognizes and is primarily a mode for managing this legitimacy deficit by softening the Western imperialist legacy of ICL by infusing it with local, values.
Of great interest here is that central debates about how to manage pluralism and complementarity and related diversity-focused concepts only sharpen the hegemonic origins of much of international criminal law. It is only when there is a question of incorporating the law of a non-Western state that the issue becomes particularly thorny, given that first there is a clear familiarity between Western domestic and international law, and that most of the attention of international criminal tribunals is directed at non-Western states.
But we do not need pluralism to tell us that the practice of international criminal law seems imbalanced in the legitimacy-threatening sense that Dubber describes; that story can be told through critical reflections that focus on the hypocrisy of international criminal practice. That being said, understanding ICL as a system of coercive discretionary governance may help us recognize the limits of pluralism in ICL, where the idea of ‘legal’ pluralism seemingly presupposes a structure of largely unified and hierarchical formal law of the state or of international tribunals. What this concept of legal pluralism leads to – and I do not claim that Delmas-Marty endorses this outcome – is the exclusion of non-state legal orders from the realm of possible responses to international crime. She rightly warns that our historical analysis risks suggesting that legal pluralism must be state-centric.
One of the concerns with our paper, and with other approaches to legal pluralism in ICL, is the difficulty with finding spaces for non-state law. Though criminal law is often conceptualized as necessarily state-sourced, the context of transitional justice suggests that some flexibility may be needed: it is not necessarily the case that the law to be applied in respect of international crime be ‘criminal law’ per se. I do not propose to carve out that space at this juncture, but only to note that we are alive to those concerns. When we refer to legal pluralism’s descriptive origins (in contrast to more prescriptive contemporary modes), it is precisely that history of legal pluralism to which we refer: the history of Sally Engle Merry and John Griffiths and the classical sense of legal pluralism as identifying and describing non-state normative orders as ‘legal’.
Rather than carve out that space, let me take what space remains and sketch out what I argue in a work-in-progress is a fundamental limit on the possibility of non-state law becoming part of pluralism in ICL. I have argued elsewhere that the selectivity problem of international criminal tribunals is most acute in respect of the partiality shown within conflicts, where only certain political actors are prosecuted, and not others, even though multiple parties are responsible for comparably grave crimes. This political-prosecutorial alignment is a function of the gatekeeper role played by local political authorities in respect of international criminal prosecutions: state authorities control access to witnesses and evidence, and can thus force tribunals to make compromises on which cases to pursue.
In so far as the legal norms to be applied are part of the tacit arrangement that permits international tribunal involvement without threatening the current arrangements of domestic political power, non-state law finds itself on the outside looking in. In several of the conflicts that international criminal tribunals seek to exercise jurisdiction, part of what is at stake is the modes by which competing parties are to be governed. Should the state be built in the Western, liberal, enlightenment model that Dubber suggests attends to international criminal law? Or should there be a prioritizing of customary non-state legal orders and traditions? For state authorities to defer to non-state legal orders as a means of response to international crimes would arguably translate into a recognition that its political opponents have some political legitimacy. If international criminal law is not the end of political conflict, but only its continuation in a slightly more decorous forum, then such concessions in the legal sphere may well amount to concessions in (and inflammations of) the underlying conflict as well.
In this light, accepting pluralism in its classical sense, as recognizing non-state legal orders as valid normative structures that have salience in contemporary states, requires not that scholars be willing to challenge the histories of international law, but that states themselves be willing to challenge their own histories – to move beyond the ahistorical narratives of conflict that they often promote – in order to give effect to the aspirational qualities that animate international criminal law and practice. Ahistoricism remains germane.
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I thank again James for his collaboration on this extensive project over the last several years, and our extremely insightful commentators – Mireille Delmas-Marty, Paul Berman, Neha Jain, Alexander Greenawalt, Markus Dubber and Kevin Davis — whose analyses have provoked much reflection. It has been a privilege to engage with all of their ideas.