Last week I was privileged to attend a conference arranged by the Center for International Criminal Justice at the University of Amsterdam entitled ‘Pluralist Approaches to International Criminal Justice’. The conference proved to be a fascinating and inspiring experience. As its title indicates, the concern of the conference was legal pluralism, a notion that lies at the centre of many of the key debates taking place within international criminal justice (ICJ) today.
There were six panels in all, spread over one and a half days. The first panel explored the interfaces between international criminal law (ICL) and different theories of pluralism. James Stewart presented a new paper, co-authored with Asad Kiyani, entitled ‘The Ahistoricism of Legal Pluralism in International Criminal Law’. He discussed the implications that can arise in ICL when the historical reality of the international or national criminal laws that inform ICL – which have often been created by colonial imposition or by way of an ‘unsuccessful’ legal transplant- is neglected. Cassandra Steer asked what we mean by legal pluralism. She distinguished between strong pluralism, which challenges the notion of the state being the sole lawmaker, and weak pluralism, that accepts that law can have multiple sources. ICL is formed by a patchwork of different traditions and there is a tendency to pluck notions that fit within one’s own legal tradition, when a better approach would be to seek the most appropriate solution for a particular context. Sergey Vasiliev concluded the panel by discussing different types of legal pluralism and explaining why this is a worthwhile project and the value of this discussion in ICL.
The second panel considered the institutional aspects of pluralism in ICL. Alex Whiting asked whether the ICC is threatened by a proliferation of criminal courts, focusing particularly on the pros and cons of an ad hoc court for Syria. Robert Cryer discussed whether complementarity is working; reaching the very lawyerly conclusion that the answer depends upon what one is looking for in the first place. Phil Clark then sought to debunk some assumptions made of complementarity by focusing on the reality of complementarity in Central Africa.
The third panel discussed ICL as a legal-cultural hybrid. Megan Fairlie discussed how the ICC Prosecutor’s obligation under the ICC Statute to ‘establish the truth’ and ‘investigate incriminating and exonerating circumstances equally’ has been fulfilled in practice. Her research shows that the tendency of the OTP has been towards adversality rather than impartiality, rendering imperative the accused’s ability to wage a vigorous defence at trial. Elinor Fry then explored indictments in ICL. She explained that while international criminal courts and tribunals have developed relatively sound pleading principles, they have ignored evidentiary precision in the sense of distinguishing between different types of evidence and facts.
Panel four examined the multiple identities ICJ claims and how ‘normative pluralism’ translates into ideological tensions at the heart of ICL. Darryl Robinson began by asking the audience for help in addressing two troublesome questions: where should he look to find the parameters of the fundamental principles of legality and culpability; and what can be done to counter the objection that these principles are ‘Western’? Carsten Stahn addressed the normative identities of the ICC, discussing different paradigms of post-colonial discourse, such as elitism, whereby ICJ becomes the preserve of a few; social engineering, whereby ICJ is viewed as patronising; and orientalisation, for example in the way in which ICJ creates social categories, such as child soldiers. Emily Haslam then discussed victim representation at the ICC and how victims are portrayed by different legal ‘tribes’- different institutional or non-institutional actors who claim, whether explicitly or implicitly, to act in their name. This pluralism can lead to tensions and challenges for the implementation of victim representation at the ICC.
The penultimate panel explored the role of courts in furthering the convergence (or fragmentation) of ICL. Marjolein Cupido suggested that the use of the casuistic method- which provides that the law is not controlled by abstract rules alone, and that attention should be paid to how judges apply these rules to the facts of individual cases- should be used by scholars in ICL to develop a more complete understanding of international crimes and liability theories. Lachezar Yanev discussed judicial dialogue in ICL, focusing on the ‘common plan or agreement’ element in competing theories of co-perpetration. Finally, Harmen van der Wilt addressed legal reactions to terrorism- whether rules of criminal law enforcement or the law of war should apply, and whether international courts and tribunals can assist states in formulating a coherent approach.
The final panel focused on the challenges to ICL’s hegemonic claims and the resistance faced by ICJ when seeking to order and impact equally on incommensurable socio-cultural environments. Nicola Palmer discussed Rwanda and the intermix between international, national and local responses to justice. She suggested that the conflicts between these three different regimes are more subtle than we imagine, and that pluralism could provide a useful method to show when ICJ is justified and when it should be limited. Sarah Nouwen explored pluralism as both a justification and limit for ICJ, arguing that ICL has become so successful that it has marginalised other alternative conceptions of justice and risks becoming a threat to justice itself. Finally, Asad Kiyani outlined four challenges for pluralists in ICL- firstly, the hegemony of colonial criminal law; secondly, the hegemony of sources- that turning to national laws enforces the predominance of European law; thirdly, the hegemony of state law, that excludes recourse to non-state legal ordering; and finally, the hegemony of ICL- that the ICC model of ICJ prevents alternative modes of response being used.
Each of the panels culminated in fascinating Q and A sessions, with the panellists responding to insightful questions from an engaged and well-informed audience. The conference’s principal organisers, Elies van Sliedregt and Sergey Vasiliev, are to be congratulated on having arranged such a successful, informative and timely event.