Criminal Law

Thus, situating myself within a cosmopolitan polycentricity, I discern two salient interpretive strategies purporting to ascribe meaning to what is apprehended as “law”—neither of them ever appearing in pure guise, both of them always formulated as narrative predilections (or valorizations).

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The first approach discounts the singularity of law. Underlying this management-driven, productivity-oriented response to law-texts is the decision to instrumentalize law—that is, to press law into service in support of an agenda diversely introduced as “harmonization,” “integration,” “uniformization,” “unification,” or “globalization.” This program of rationalization’s principal discursive configurations are law-as-meta-law and meta-law-as-law. The initial variation on the theme of trans-legality concerns the move from localism to transcendentalism. Assumptions informing the prescriptive case for law-as-meta-law include the idea that law’s facticity must be regarded as the largely obsolete remnant of an early-modern worldview mired in diverse brands of stultifying nationalism; the related idea that as long as law’s particularism continues to abide, not enough has been done to move beyond the post-feudal shackles of melancholic parochialism; and the further idea that meta-law is worthy of high estimation as a progressive political, economic, or social weapon. For the partisans of law-as-meta-law, the responsible thing to do in the face of obstinate traces of stupefied localism is to surpass them, that is, to foster an emancipatory project of liberation from prejudice that moves beyond/beneath any culturality/traditionality of law. Unsurprisingly, advocates of this position, possibly taking the view that law-texts are striving for self-realization through assimilation into a totality and for reconciliation inter se within the totality, find law inherently repeatable and indeed incessantly repeated. Almost inevitably envisaging law as consisting of basic units somehow unconnected in any meaningful way to any local network of intelligibility, which they proceed to make isomorphically homogeneous across borders, the partisans of law-as-meta-law readily refer to the transportability of law and, indeed, to the obviousness of the transportability of law.

The other main variation on the theme of transcendentalization involves meta-law-as-law—that is, supranational regulatory or conflict-resolution regimes operating, often outside the realm of governmental law-making or international treaties and within self-established procedural frameworks, as issuers and enforcers of sometimes highly specialized rules. Whether one has in mind the Apparel Industry Partnership, the WTO Appellate Panel, the International Federation of Consulting Engineers Model Contract, the lex mercatoria, the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”), or the World Heritage Convention, “global” rules of governance are understood as functioning in a standard manner showing no meaningful deviation from one locus to the next—that is, as being implemented “irrespective of the legal traditions and the economic and political conditions of the countries in which they are to be applied.” Again, law is found to be inherently repeatable and indeed incessantly repeated. Even within the European Community, where the Treaty of Rome’s preoccupation is with the harmonization of laws (i.e., not with uniformity, equivalence, or convergence) and where all directives concede a national margin of appreciation to Member States, designations like “European Contract Law,” “European Tort Law,” “European Private Law,” “European Administrative Law,” “European Public Law” (dereferentialized labels all), to confine myself to the smallest number of illustrations culled from the plethoric references to “one law,” point to the view that “[u]niformity, in an ideal [European Community] would be both substantive and procedural. Not only would black-letter law be the same in all Member States, as if diligently copied or faithfully translated from a single private law code, but judicial remedies would reflect an identical sense of procedural justice as well.”

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The doctrine of Joint Criminal Enterprise (“JCE”) has become an essential tool of international criminal prosecution, but a recent trial judgment by the ad hoc International Criminal Tribunal for the former Yugoslavia (“ICTY”) jeopardizes its future. JCE developed within international criminal law to address the challenge of attaching liability to individuals who helped perpetrate or further mass crimes or atrocities, which often involve numerous perpetrators performing discrete, interrelated pieces of the larger crime. Responding to concerns about JCE’s broad scope, the ICTY Trial Chamber in Prosecutor v. Brđanin reversed the trend toward interpreting JCE broadly and narrowed JCE to resemble traditional criminal conspiracy. This undermined JCE’s unique ability to describe criminal arrangements too complex to at within traditional theories of criminal liability.

Part I of this Recent Development describes JCE’s origins and elements, providing the background necessary to understand Brđanin. Part II discusses Brđanin and explains the Chamber’s controversial position regarding JCE. Part III criticizes the Brđanin approach and offers an alternative that would address Brđanin’s concerns about JCE’s potentially broad application without sacriacing the unique ability of JCE to describe mass criminal activity.

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Abstract:

How are we to understand the relationship between international law and imperialism? What bearing might that have on how we see contemporary international law? According to one view, international law is simply a “cloak of legality” thrown over the subjugation of colonized peoples by the imperial powers in a distortion of international law’s true spirit. According to this understanding, the contemporary task is to rid international law of the vestiges of that misappropriation. We must accept decolonization at face value and continue to broaden the scope and content of international law in a culturally sensitive way. Meeting the Symposium’s stated goal of “envisioning new orders” would therefore require the rescue of international law from the corruption of power to make good international law’s explicit promise of universality and sovereign equality.

At the other end of the spectrum is the belief that international law has always been encompassed by and in the service to empire. At this pole, the very doctrines and institutions of international law are understood to have been molded by the powerful in order to serve their interests. Those who hold power in the contemporary setting maintain the capacity to create and deploy international law, in turn facilitating practices of (neo)colonialism.

However, most scholars engaged with the “postcolonial” in some form or other would hesitate to embrace either of these two polar positions. On the one hand, the perception of international law as an innocent victim waiting to be rescued from the corruptions of imperialism is untenable. On the other hand, the view that international law abjectly serves empire is equally unpopular with those so engaged. They are generally unwilling to accept such an encompassing frame and its attendant demand to abandon international law as a site of contestation, both historically and now. And thus there is an irresolution that disrupts any attempt to characterize international law neatly as either on the side of the angels or in devilish league with imperialism.

Rather than simply attributing this to the indeterminacy of language or to the formal nature of law, it is important to inquire into the quality of this irresolution and to ask whether it is itself significant. Arguably there is something distinctive about the relation implied in the “postcolonial”—both a break from and a continuity with past forms of domination—and something particular about the capacity of law to be both appropriated to imperial ends and used as a force for liberation.

I argue that the quality of this irresolution suggests that international law is itself already postcolonial in that it both sustains and contains within it what we might call the condition of the postcolonial. Succinctly stated, this can be understood not only as the circular self-constitution of self and Other, but also as the paradoxical inclusion of the excluded necessitated by the claim to universality of this constitution. This dynamic accounts for both international law’s imperializing effect and its anti-imperial tendency. Crucially, whether or not this dynamic is in some way addressed would seem to indicate whether an approach to international law is likely to have any critical purchase or will instead be drawn back into the reproduction of colonial relations of power.

In the rest of this Article, I will outline the dimensions of this postcoloniality and its implications with reference to two examples. The first is the universalization of international law through decolonization, and the second is the limited success of recent attempts to “decolonize” human rights by refounding them on more “truly” universal grounds.