The Pluralism of International Criminal Law
66 Pages Posted: 8 Mar 2010 Last revised: 25 Sep 2011
Date Written: April 7, 2011
This Article develops a pluralist account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case.
After briefly surveying historical complexities concerning the definition and scope of ICL, the Article focuses on standard justifications for the existence of ICL. It looks in particular to justifications rooted in international relations, gravity considerations, and enforcement concerns. While each account provides powerful reasons for seeking uniformity with respect to some components of ICL, neither in isolation nor in combination do these rationales demand uniformity with respect to the entire content of ICL. In particular, these standard theories have difficulty explaining why ICL should seek to monopolize those aspects of criminal responsibility that speak more to the general nature of criminality than to any specific goal of ICL. A review of general rule-of-law values - including the values of consistency, legality, administration, normative development, and avoiding jurisdictional chaos - yields similar results, affirming that contingent domestic law has a vital role to play in ICL prosecutions.
The Article next undertakes a case study of the Erdemović decision, in which the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) announced a new rule of ICL rejecting duress as a complete defense to murder. A close reading of the tribunal’s reasoning reveals that the ICTY would have done better to apply Bosnian law considering the Court’s inability to articulate why the special context or purpose of ICL requires a specific result, the normative shortcomings of both the majority and dissent’s positions, and the availability of a suitable approach under domestic law. The Article then elaborates upon this analysis to set forth a four-tiered model of substantive ICL comprising: (1) truly universal principles of ICL, (2) tribunal-specific rules, (3) rules constraining the acceptable range of domestic discretion, and (4) default rules. While this model has powerful normative force, it also provides a coherent and superior framework for understanding the actual content of ICL in its current state of development.
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