PLURALISM IN INTERNATIONAL CRIMINAL LAW Pluralism in International Criminal Law Edited by ELIES van SLIEDREGT and SERGEY VASILIEV 1 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2014 The moral rights of the authors have been asserted First Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization. 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Acknowledgements This volume is a collection of papers presented at the conference ‘Pluralism v Harmonization: National Adjudication of International Crimes’ that was held in June 2012 in Amsterdam. The publication would have been impossible without support from a number of organizations and individuals. First of all, we warmly thank the authors of the chapters featured in this book for their considered and thought-provoking contributions to the debate on plural- ism in international criminal law, for their willingness to challenge the assump- tions and boundaries of mainstream discourse, and, last but not least, for their patience with the editors. We gratefully acknowledge the financial support of the Dutch Royal Academy of Sciences (KNAW), which provided generous funding for the organiza- tion of the conference. Further, we would like to thank the Dutch Scientific Organization (NWO) for sponsoring the VIDI research programme ‘Dealing with Divergence: National Adjudication of International Crimes’. The editing work on this book was carried out at the Faculty of Law of the Vrije Universiteit Amsterdam. We are indebted to our colleagues at the Faculty and especially at its Department of Criminal Law and Criminology for their support and for the inspiring and vibrant working environment. Jan Galdiga was an indis- pensable part of the editorial team. We are grateful to him for all his assistance in bringing this project to fruition. The painting used as the artwork on the book cover is by Moscow-based artist Vasiliy Tsabadze, whom we thank for the permission to use his work. We felt that it captures well the idea of the many faces of pluralism. Finally, many thanks to the international law team at Oxford University Press for their guidance throughout the process of preparing this book for publication. We hope that this volume will spark a broader interest in the pluralistic nature of international criminal law and procedure. We are looking forward to the future debates. March 2014 EvS, SV Table of Contents Table of Cases xi Table of Instruments xxv List of Abbreviations xxxi Frequently Abbreviated Sources xxxiii List of Contributors xxxvii I. PLURALISM: CONCEPTUAL PERSPECTIVES 1. Pluralism: A New Framework for International Criminal Justice 3 Elies van Sliedregt and Sergey Vasiliev 1. Capturing Complexity and Mapping Diversity 3 2. ‘Pluralism’ and its Relevance to ICL 7 3. Pluralist Perspectives on ICL 17 4. Approach and Structure 34 2. Legal Transplants or Legal Patchworking? The Creation of International Criminal Law as a Pluralistic Body of Law 39 Cassandra Steer 1. Introduction 39 2. Legal Transplants as Formants of Law 42 3. Legal Patchworking and Legal Pluralism in ICL 54 4. Harmonization and Pluralism 60 5. What Can Be Learned from the Scholarship on Legal Pluralism? 63 6. Conclusions: How Can Comparative Law Scholarship Benefit ICL? 64 3. The Curious Criminality of Mass Atrocity: Diverse Actors, Multiple Truths, and Plural Responses 68 Mark A. Drumbl 1. Introduction 68 2. Ndahimana and the Nyange Parish Massacre: Background 70 3. Trial Judgment: Guilty, Not Guilty, and Why 73 4. Sentence 88 5. An Interrogative Bent: Insights For and From Pluralism 95 6. Conclusion 102 II. HORIZONTAL PLURALISM 4. Organizational Criminality 107 Jens David Ohlin 1. Introduction 107 viii Table of Contents 2. The Common Law Pole 107 3. The Civil Law Response 112 4. Collectivism as a Third Way 116 5. Collective Attribution 122 6. Conclusion 126 5. Pluralism in Theories of Liability: Joint Criminal Enterprise versus Joint Perpetration 128 Marjolein Cupido 1. Introduction 128 2. The Debate on JCE and Joint Perpetration 130 3. JCE and the ‘Common Plan’ Element 134 4. Joint Perpetration and the ‘Common Plan’ Element 143 5. Implications of the Case Law Analysis 150 6. Reconsidering the Nature of JCE and Joint Perpetration 152 7. Conclusion 158 6. Fragmentation and Harmonization in the Development of Evidentiary Practices in International Criminal Tribunals 159 John D. Jackson and Yassin M. Brunger 1. Introduction 159 2. Procedural Convergence 162 3. The Diversity of Practice and the Challenge of Harmonization 166 4. Conclusion: The Limits to Harmonization 183 7. Consistency and Pluralism of International Sentencing: An Empirical Assessment of the ICTY and ICTR Practice 187 Barbora Holá 1. Introduction 187 2. Sentencing in Positive Law of the ICTY and ICTR 189 3. Consistency and Pluralism of International Sentencing at the ICTY and ICTR 190 4. Evaluation of the ICTY and ICTR Sentencing Practice 194 5. Lessons Learned—the Need for International Sentencing Guidelines 203 6. Conclusion 206 III. VERTICAL PLURALISM 8. National Adjudication of International Crimes: A Dutch Approach 211 Ruth A. Kok 1. Introduction 211 2. Extraterritorial International Crimes 211 3. Authorities Concerned with International Crimes 213 4. Legal Framework on International Crimes 216 Table of Contents ix 5. Interpretation of International Crimes by Dutch Judges 218 6. Decision by the Supreme Court in the Case of Abdullah F 219 7. Concluding Observations 223 9. Pluralism and the Rights of the Accused in International Criminal Proceedings 225 Alexander Zahar 1. Introduction 225 2. Rights Pluralism 226 3. Damaška and the Contextualized Standard of Fairness 227 4. Refutability of Charges at the International Tribunals 231 5. Sheer Volume of Evidence 233 6. Indeterminate Quality and Accuracy of Proof 238 7. The Logic of Joint Criminal Enterprise 242 8. A Judiciary Overwhelmed 244 9. Conclusion: Affection for Justice 247 10. The Nature of International Crimes and Evidentiary Challenges: Preserving Quality While Managing Quantity 251 Elinor Fry 1. Introduction 251 2. The Nature of International Crimes: Differentiating Factors 253 3. Quantity Affects Quality 266 4. Conclusion 271 11. Evidentiary Challenges for the Defence: Domestic and International Prosecutions of International Crimes 273 Wayne Jordash QC and Matthew R. Crowe 1. Introduction 273 2. Uniformity of Evidentiary Challenges 276 3. Evidentiary Challenges of the Future: The Need for a Harmonized Approach 289 4. Conclusion 295 IV. HARMONIZATION, UNIFORMITY, OR HEGEMONY? 12. Establishing Degrees of Responsibility: Modes of Participation in Article 25 of the ICC Statute 301 Gerhard Werle and Boris Burghardt 1. Introduction 301 2. General Observations on the Role of Modes of Participation 302 3. Modes of Participation in the ICC Statute 306 4. Article 25(3)(a)–(d)—A Differentiation Model Distinguishing Four Levels of Responsibility 315 5. Conclusion 318