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 that official 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.