The Ahistoricism of Legal Pluralism in International Criminal Law†

Abstract

International criminal law (ICL) is legally plural, and not a single, unified body of norms. 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 that has major implications for their theory—the law’s history. Neglecting the historical context of the international and national criminal laws that have informed and continue to inform ICL leads to the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural, and political values. This is often a false equation that results 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. 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 to a more normative managerialism risks condoning illegitimate 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, at least in certain circumstances, a universal ICL that is actually more plural in terms of values and interests than doctrinal pluralism. At another, it suggests that institutions capable of trying international crimes need to do far more to step away from the ugly legal history they have inherited.