Crimes Against Humanity

The Limits of Universal Jurisdiction in the Global South

Nergis Canefe

• Publisher: University of Wales Press
• Year: 2021
• ISBN:
  9781786837042
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This volume considers how, based on the examination of cases pertaining to transitional justice settings that resort to local interpretations of crimes against humanity jurisprudence, fragmentation of international law and circumscribed applications of universal jurisdiction are necessary aspects of the grand enterprise to overcome the impasse of the tainted legacy of international criminal law in the Global South. If we are to proceed with adjudication of the most egregious and heinous crimes involving state criminality without facing the charge of neo-colonialist plotting, then we must reckon with localised and domesticated interpretations of international criminal law, rather than pursuing strict forms of legislative dictation of international criminal law.

1

Topographies of Universal Jurisdiction in International Law, Legal Pluralism and the Curious Case of the International Criminal Court

Introduction

Legal theory has long accentuated the institutional distinctiveness of law from other areas of society, portraying law as discrete, internally coherent and thus self-referential and almost autonomous.¹ In contrast, an immediate way in which law’s multidimensionality, complexity, and lack of unity is easily identified is to look at law beyond state boundaries. In this sense, looking at the contemporary legal landscape at the age of late capitalism and globalization is both challenging and rewarding. Meanwhile, the historical fact of the coexistence of multiple legal orders says nothing about their capacity for delivering justice. Recognition of the complexity and plurality of contemporary legal regimes is only the starting point for a theoretical analysis of international law.

In this opening chapter, I endeavour to answer the question of why we should care about the contemporary multiplicity of legal regimes in the specific context of accountability for state criminality. If state interests and domestic judiciary interpretations of international law are by and large coincident with preferences of national political leadership and local legislative concerns, what would be the point in searching for a theory of international law that is not fixated on the Westphalian order of things? How are we to appreciate the consolidation of customary law and regulatory regimes that go above and beyond the direct mandate of the executive powers of states? State-centric accounts of international law entertain a rather rigid view of the field and of the actors who occupy it. In contradistinction, alternative accounts discussed in this chapter provide a depiction of international law as transnational law and, as a result, present us with a different topography of accountability regimes. In this changed context, international-cum-transnational law is seen as a complex and often conflict-laden deliberative process. Similarly, law is seen as a battleground for multifarious interests and actors, only one of which is the state, each trying to determine legal or semi-legal outcomes and judicial processes to their benefit.² This alternate take on international law acknowledges the inherently plural (though not necessarily pluralist) composition of law, and engages with the multiple processes involved in the making and utilization of it. This determination, in turn, is crucial for fostering a systemic understanding of jurispathic and jurisgenerative dimensions of international law, which could lead to a fruitful expansion of theories of jurisprudence concerning state criminality.³

The key concern that guides this discussion of the fragmented, plural and transnational nature of contemporary international law is whether the nomos (normative universe) of Robert Cover’s jurisprudential account of law, when applied to a global context, is substantively different from what we are accustomed to dealing with in national, domestic contexts. This line of questioning also lends itself to addressing the tension between ideas of monism and pluralism in legal scholarship. Legal monism signifies a pervasive positivist understanding of law as a unified structure of valid rules and principles contained within a solid institutional framework.⁴ Legal pluralism, on the other hand, emphasizes the multiplicity of legal practices and the hybridity of socio-political platforms upon which legal edifices are built in the form of institutions, rule-based structures and regimes. At least for the last two decades, legal pluralism has already become common currency in contemporary debates on law and globalization, its main claim being that a form of global legal pluralism represents both the most accurate description of law vis-à-vis globalization and the best normative option. At the descriptive level, globally applied legal pluralism is considered more reliable than state-based accounts of how international law works. At the normative level, legal pluralism is understood to provide a platform for opening up the legal realm to previously unheard voices.⁵

The conservative take on legal theory insisting on the singularity, uniformity, harmonization and totality of legal systems could be relaxed both empirically and normatively through the ethos of legal pluralism combined with a re-inscription of international law as transnational law.⁶ As such, the study of international law would no longer be circumscribed by inquiries about how to maintain the integrity of it as a system.⁷ Instead, attention should be paid to injustices and discontent as much as to harmonization and consent. Quasi-legal decision-making bodies (such as hybrid courts and regulatory bodies), internal governance systems of large organizations, alternative modes of dispute resolution and arbitration, regulative systems with a global reach, and myriad other forms and settings that produce legal or law-like effects clearly indicate the multiplicity of legal regimes at the transnational level, encompassing the domestic, the regional, the international, and a fourth dimension, the global.⁸ The critical issue is how to read this complexity within a historical context that includes domestic jurisprudence without prioritizing it at the expense of all else.

There is a persistent focus on the singularity of legal discourse as an internally coherent system and on the institutional qualities of legal regimes, including the more recent debate on novel forms of constitutionalism.⁹ State law continues to be paraded as a superior enterprise, characterized by its coherence and internal consistency, and by its presumed autonomy from other normative domains. In this context, the first question I will attempt to answer is whether legal pluralism, when applied to international law, could produce the desired change of optics and allow for a genuine discussion on multiplicity, diversity and conflict.¹⁰ The next question is to what extent a legal pluralistic frame of reference would enhance our understanding of the inner dynamics of fragmented and sometimes overlapping accountability regimes in international law, particularly in relation to state criminality.

I. Applications of Legal Pluralism in International Law

There has long been a tenuous relationship between international law and theories of jurisprudence. At the very least, international law was posited as lacking the second order rules and regulations defined by H. L. A. Hart and thus devoid of substantive tenets of a genuine legal system.¹¹ In the nexus of international law and international politics, on the other hand, this relationship appears to be somewhat less troublesome. International relations scholars look for three elements in order to determine the existence of a legal system: a legal concept, a structure or framework capable of supporting its operationalization as law, and the political consensus to legitimize and recognize it as law.¹² This mode of thinking promises to look beyond the debate over ‘legal norm creation’ in international law. Rather, it dwells on international law’s effectiveness and target constituencies. From this perspective, international law is not seen as a coherent collection of rules, prescriptions and aspirations governing the conduct of states and other international actors through legal processes and jurisdictional negotiations; it is described as a complex structure composed of norms, actors, processes and institutions. Interventions by international relations scholarship has also cut short the somewhat stale conversation on treaty implementation and compliance. In its place, their work invites us to turn our attention to institutional and system-wide normative characteristics of international law, as well as to the authority and governance structures endemic to its operations.

In order to achieve such an insight from within legal scholarship, and not only with reference to international relations theories pertaining to international law, a broader frame of analysis is needed concerning the nature of law and its internal and external meanings. In the following, I will provide a brief account of select debates in legal pluralist scholarship and their applications to international law to this end. I will then proceed with a specific branch of international law scholarship, TWAIL (Third World Approaches to International Law) and its effects on our thinking in terms of contextualizing international law. I will conclude with contemporary interjections made by legal theorists who strive to bridge the gap between jurisprudential scholarship and studies of international law from a radical, reflexive and critical legal pluralist perspective, otherwise known as third-generation legal pluralist scholarship. Although this very modest attempt at creating a map of critical approaches to international law could no doubt include the rich and layered debates exemplified by the work of critical legal studies scholars, feminist legal theorists, critical race theorists, post-colonial debates on justice, and other very important schools of thought, these are not explicitly included here. This is due to the limitations posed by my choice of focus, what legal pluralism can and cannot offer for rethinking accountability regimes in international law.

Until recently, legal pluralist scholarship was divided into two main debates. ‘Classical’ legal pluralism refers to anthropological and socio-historical analyses of legal systems of ex-colonial or post-colonial societies. These had dual or multiple legal systems derived from indigenous pre-colonial folk, communal or customary law on the one hand and imperial law on the other. In contrast, ‘second wave’ legal pluralism entertained the insight that all societies, formerly colonized or not, are composed of multiple ‘semi-autonomous’ fields of normative control and legal discourse. This later position purported the coexistence of many forms of law, the majority of which are non-territorial, non-state, local, or international, and horizontal rather than hierarchical. Both schools of legal pluralism concentrate on legal plurality, and challenge the presumption that state law is singular or indeed a superior source for legal meaning or conduct. However, scant attention was paid to the jurisprudential characteristics of the plurality of legal discourses, except in the debate initiated by the work of Robert Cover and continued by Gunther Teubner and David Trubek.¹³ I will call this the ‘third wave’ of legal pluralism, whereby legal scholarship developed a rich analytical approach for the study of different modes of law and the struggle amongst them within a dynamic normative landscape embodying imminent tensions. In this context, the work of contemporary legal scholars such as Ruth Buchanan, Martti Koskenniemi, Rajagopal Balakrishnan and Issa Shivji, among others, sufficiently attends to the conundrums of the multiplicity of meanings in international law. This latest wave of scholarship does not assume that pluralism in law is merely exhibited in a multiplicity of ‘semi-autonomous’ systems separated by territory, culture or history. Rather, an attempt is made to theorize law as a process in which legal actors, legal subjects and legal norms are interdependent and effected by power and politics at large. They took the legal pluralist premise that law cannot be defined according to a fixed set of criteria one step further, and began to ask what ‘other’ criteria are to be used for the identification of different forms of law and legal regimes, distinct from those espoused by canonized theories of jurisprudence. As legal pluralism began to be reframed by critical international law scholarship from within the Global South exemplified by TWAIL, the establishment of a theoretical nexus between a plural view of law and the various manifestations of socio-economic and political power became increasingly manifest.¹⁴

Theoretically speaking, understanding legal plurality is conditional upon the recognition of irreducibly different accounts and experiences of law at a global scale. In this sense, there is a need for the legal pluralism debate to move beyond empirical descriptions of different legal regimes as straightforward socio-legal facts. Precisely in such a spirit, the third wave of legal pluralism attends to the conceptual complexities inherent in the production and maintenance of legal regimes in a world-historical context. This genre of thinking about law and legality is capable of attending to the ways normative systems are construed as discursive practices rather than as mere products of institutions. In addition, the ideals of closure and order are coupled with an appetite for understanding disorder, chaos, change and exceptionalities. In this sense, as Brian Tamanaha redefines it, the central question of legal pluralism can no longer be the different forms that ‘law’ takes, but what law is in its multifarious manifestations (Tamanaha, 2000).¹⁵ Appreciation of incommensurably different conceptualizations of law also leads to a reflective analysis of the historical specificity of mainstream Western definitions of law, as seen in TWAIL scholarship (Zumbansen, 2010).¹⁶ By moving beyond descriptive recognition of the multitude of legal or law-like normative systems, a critically oriented pluralism could allow for the discussion of plural sources, plural modes of reasoning, and complex forms of interaction between different legal regimes.

Finally, in terms of jurisprudential debates, law is incapable of grounding itself, and its conceptual foundations rest on other elements that are traditionally regarded as outside law. These elements also provide the contextual meaning of law in socio-political terms. Acceptance of the necessary relationship between internal and external elements of law is a foundational premise of legal pluralism.¹⁷ Indeed, critiques of the autonomy of law begin with questioning the internal coherence of law.¹⁸ In this sense, the third wave of legal pluralism is of direct use for the study of international law in a global context, and more specifically for attending to what emerged as transnational law in the age of late capitalism and neocolonialism.¹⁹

A. The Legacy of the New Haven School

During the roughly four decades in which the concept legal pluralism has been used in legal scholarship, it has become the subject of many a politically charged debate. Starting with Brian Tamanaha’s article on the ‘folly of legal pluralism’ (1993), attention was drawn to the ‘legal pluralist movement’ associated with the Commission on Folk Law and Legal Pluralism and the Journal of Legal Pluralism. Tamanaha posited that equalizing normative orders that are fundamentally different from each other and calling them all ‘law’ was a questionable practice. The response from legal pluralist scholars was unequivocal: reserving the concept of law for only state-made law leads to an essentialist and ahistorical conception of law. Legal pluralism was guilty as charged for being the first one pointing to the elephant in the room (Teubner, 1991).²⁰

In legal scholarship, thinking about law above and beyond the state, both domestically and globally, constitutes a methodological challenge. According to the critical understanding of law developed by legal pluralism, the two frames of local and global inform each other. This debate refers to what is now known as transnational law. The subject matter of this work is universal jurisdiction and accountability regimes pertaining to state criminality as exemplified by crimes against humanity. In this specific context, the most recent wave of legal pluralist scholarship engaged in transnational law provides a direct entry to the discussion on the relationship between globalization of law, and, local interpretations and interventions. The scope of analysis and conceptual aspirations delivered by the term transnational law are categorically different from what pertains to traditional depictions of international law. As marked by the canonized Yale lectures of Philip Jessup, transnational law undoes the frame of thinking that long characterized international law, and supplements it with a framework that allows for grasping the plurality of interactions among state and non-state actors as well as between states.²¹

Yet, whether transcendence of national frontiers is the main criteria for deeming forms of law and practices of regulation ‘transnational’ and, if so, whether this is enough to require a significant change of focus in legal scholarship remains open to debate. Other such queries include whether the observable increase in the multitude of norm-producing institutions and actors constitutes a good enough reason for coming up with a different term for the legal universe that lies beyond the nationstate. Or, what is the main impetus behind the uprooting of ‘dearly-held convictions of jurisdictional boundaries and competences’?²² Would it not be better to refer to the phenomena under discussion as the ‘law of globalization’ rather than transnational law?

These questions are not new in the realm of legal scholarship and, what is more, they are not unique to the area of international law. As the debates examined in this section will reveal, discussions concerning the role of law across dispersed and fragmented spaces of norm production were held since the early days of legal pluralism and critical legal studies.²³ What is perhaps novel is the thorough consideration of the effects related to power and legitimacy of law at a global scale.²⁴ This shift in focus constitutes a significant challenge to the state-centred view of not only international law, but also constitutional and regulatory law. Furthermore, the recognition of private actors’ and organized interests’ growing relevance for law and legal regimes allows for a much more nuanced and dynamic understanding of the relationship between state and non-state actors, among states, and, between various legal actors and institutions in general. The growing complexity of de-centred or multicentric socio-legal and political discourses addressing transnational activities requires an equally diverse and flexible frame of reference. The term ‘transnational’, conjoined with pluralism, is supposed to be that very frame.²⁵ ...