The Peter A. Allard School of Law Allard Research Commons Faculty Publications Allard Faculty Publications 2017 The Ahistoricism of Legal Pluralism in International Criminal Law James G. Stewart Allard School of Law at the University of British Columbia, [email protected] Asad Kiyani Follow this and additional works at: https://commons.allard.ubc.ca/fac_pubs Part of the Criminal Law Commons, International Law Commons, Legal History Commons, and the Transnational Law Commons Citation Details James G Stewart & Asad Kiyani, "The Ahistoricism of Legal Pluralism in International Criminal Law" (2017) Am J Comp L 1-83. This Article is brought to you for free and open access by the Allard Faculty Publications at Allard Research Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Allard Research Commons. * LONGER VERSION THE AHISTORICISM OF LEGAL PLURALISM IN INTERNATIONAL CRIMINAL LAW James G. Stewart & Asad Kiyani** ABSTRACT 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 * This version of the article is longer than the shorter version we have published with the American Journal of Comparative Law. This longer version includes a fourth part focused on criminal law procedure. In this additional part, we set out the eclectic nature of Argentine criminal procedure as a null hypothesis, since it shows evidence of a congruence between criminal law doctrine and surrounding social values that acts as an exception to the trend we identify in our other examples. We then qualify this Argentine counterexample by discussing the history of employing divergent criminal procedure in post-WWI trials to show instances when ICL must adopt a unified standard for functional reasons. In this longer version, we also weave the insights from these two examples of criminal procedure throughout the remainder of the piece. ** Dr James G. Stewart, Associate Professor, Allard School of Law, University of British Columbia. JSD Columbia Law School. Formerly, Associate-in-Law, Columbia Law School and Appeals Counsel, International Criminal Tribunal for the former Yugoslavia. Asad Kiyani, PhD Candidate, Allard School of Law, University of British Columbia. LLM (Distinction) Cambridge. Vanier Scholar, Canadian Social Sciences and Humanities Research Council. Both authors played an equal role in all aspects of planning, researching, drafting and editing this piece. We are grateful for helpful comments from participants at Columbia Law School’s colloquium on international criminal law and UBC Law Faculty Colloquium, the American Society of Comparative Law’s annual workshop at UCLA, and the American Society of International Law’s Annual Workshop on International Criminal Law at Temple Law School. Our kind thanks to José Alvarez, Antony Anghie, Mark Drumbl, Markus Dubber, Peter Fitzpatrick, Charles Jalloh, Maximo Langer, Frédéric Mégret, Jaqueline Ross, Kim Scheppele, Brian Tamanaha, and James Whitman for comments on an earlier draft. For an online mini-symposium about the piece, featuring criticisms from Paul Schiff Berman, Mireille Delmas-Marty, Kevin E. Davis, Neha Jain and Markus Dubber plus our replies to them, see https://wp.me/p5gUnO-hg. 2017] THE AHISTORICISM OF LEGAL PLURALISM 2 that has major implications for their theory – the law’s history. Neglecting the historical context of the international and national criminal laws that inform ICL leads to (a) the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural and political values; and (b) in the limited instances where criminal law doctrine does reflect underlying societal values, an overly general assumption that respecting the various embodiments of this law is best for ICL. These oversights result in important normative distortions, with major implications for the field’s self-image, function and legitimacy. In particular, scholars and courts overlook that much criminal law doctrine globally is the result of either a colonial imposition or an “unsuccessful” legal transplant, as well as historical examples where respecting pre-existing doctrinal arrangements undermined the value of postwar trials on any semi-defensible measure. In this Article, we revisit a cross-section of this missing history to contribute to both Legal Pluralism and ICL. For the former, we demonstrate that there is nothing inherently good about Legal Pluralism, and that in some instances, a shift from its descriptive origins into a more prescriptive form risks condoning illegitimate or dysfunctional law. For ICL, our historiography shows how partiality is embedded in the very substance of ICL doctrine, beyond just the politics of its enforcement. At one level, this realization opens up the possibility of renegotiating a universal ICL that, at least in certain circumstances, is actually more plural in terms of values and interests than doctrinal pluralism although the dangers of power masquerading as universalism are also profound. At another, it suggests that institutions capable of trying international crimes need to do far more to step away from the ugly legal histories they have inherited. 2017] THE AHISTORICISM OF LEGAL PLURALISM 3 TABLE OF CONTENTS I. Introduction ........................................................................................... 4 II. Procedure ............................................................................................ 16 A. Procedural Eclecticism in Argentina .................................................................. 16 B. Procedural Conflict in War Crimes Trials After WWI ................................. 23 III. Inchoate Crimes ................................................................................ 32 A. Association de Malfaiteurs as Repression in the Congo .............................. 33 B. The Repressive Aspects of Conspiracy at the Nuremberg and Tokyo Tribunals ...................................................................................................................... 42 IV. Modes of Attribution ........................................................................ 50 A. German Modes of Attribution in Japan ............................................................. 52 B. Double-Counting Joint Criminal Enterprise in Ad Hoc International Tribunals ...................................................................................................................... 58 V. Criminal Offenses .............................................................................. 67 A. Blasphemy as a “Legal Irritant” in Pakistan .................................................... 68 B. Colonialism and Apartheid in the ICC Statute ................................................ 74 VI. Conclusion ......................................................................................... 81 2017] THE AHISTORICISM OF LEGAL PLURALISM 4 “[T]here is nothing inherently good, progressive, or emancipatory about legal pluralism.” Boaventura de Sousa Santos1 I. INTRODUCTION International criminal law (“ICL”) is legally plural, not a single unified body of norms. Trials for international crimes, like aggression, genocide, crimes against humanity and war crimes, take place in international and domestic courts alike, and frequently involve a complex interplay between international and domestic criminal law. This interplay, which is largely improvised rather than choreographed, 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 (2) international courts sometimes follow a particular national system in interpreting ICL rules;3 (3) international courts often survey then synthesize a wide selection of national rules to demonstrate widespread support for their favored approach;4 (4) at times, 1 BOAVENTURA DE SOUSA SANTOS, TOWARD A NEW LEGAL COMMON SENSE: LAW, GLOBALIZATION, AND EMANCIPATION 89 (2002). 2 Rb.’s-Gravenhage 23 december 2005, LJN: AX6406, Docket no. 09/751003-04 (Van Anraat), ¶¶ 6.5.1–6.6 (Neth.) (intriguingly, applying the standard of complicity in customary international law but that contained in Dutch criminal law for war crimes). For commentary on the case, see Harmen van der Wilt, Genocide v. War Crimes in the Van Anraat Appeal, 6 J. INT’L CRIM. JUST. 557 (2008). Sometimes, of course, the international aspects of ICL operate to preclude the application of national criminal law to war crimes. See in this regard, the decision of the U.S. Supreme Court in Hamdan to effectively strike down conspiracy as a war crime because it was not adequately recognized in the history of ICL. Hamdan v Rumsfeld, 548 U.S. 577, 46 (2006) (concluding that “international sources confirm that the crime charged here is not a recognized violation of the law of war”). 3 The most conspicuous example of this phenomenon is probably the uptake of German criminal law principles of attribution in the International Criminal Court (“ICC”), in sharp contrast with their explicit rejection at ad hoc tribunals beforehand. For a helpful