ExcerptThe Pluralism of International Criminal Law 86 Indiana Law Journal 1063 (2011).In this article, I challenge the idea that international criminal law ("ICL") does, or should require, uniformity in all aspects of its doctrine and practice. I argue that the search for consistency and uniformity is misguided, that the law applicable to international crimes should not be the same in all cases, that those culpable of like crimes should not receive like sentences in all cases, and that this result may in fact better serve the core purposes of ICL than the alternative. I argue for a hybrid or "pluralistic" model of ICL that does not assume ICL to be a closed system of criminal law, but that instead takes seriously the domestic laws of the state or states which, under normal circum-stances, would be expected to assert jurisdiction over a case. My argument proceeds from the acknowledgment that ICL operates in an irreducibly pluralistic environment. Its creation inevitably perpetuates or even creates inconsistencies and tensions in the domestic criminal justice systems to which it applies. On the one hand, the drive towards unification and consistency at the international level neces-sarily creates fracture and inconsistency at the domestic level. This is true in the obvious sense that international law is meant to bind states: for example, the international prohibition of genocide necessarily sits in tension with the laws of states that seek to legalize and encourage genocidal practices. That, of course, is the point. But the creation of a comprehensive and unified international legal system also creates other, less obvious, tensions with domestic criminal law. Even if domestic laws do not directly conflict with international criminal prohibitions, the develop-ment of a distinct international criminal law specific to international crimes can threaten the integrity of a state's criminal justice system by causing the state to adopt principles for international crimes that are inconsistent with those otherwise applied. After all, the successful prosecution of an international crime from start to finish necessar-ily involves the application of a variety of legal principles that may bear little relationship to the particular criteria that define a crime as international. These include, for example, the minimum mental element necessary to establish criminal culpability, the proper scope of duress as an excuse to murder, the correct balance between free speech rights and the criminal law, and the appropriate measure of punishment for the crime. These are all matters that also arise outside the area of international criminal law, and their appropriate resolution, at least as a prima facie matter, does not hinge on whether a crime happens to be international. In the context of domestic criminal law, moreover, states can and do take divergent approaches to these matters without violating applicable international obligations, including those imposed by international human rights law. After considering various possible justifications for developing a unitary ICL, I argue that ICL should instead be reconceptualized as a four-tiered body of law embracing four categories of substantive rules: (1) truly universal principles of ICL, (2) tribunal-specific rules, (3) rules constraining the acceptable range of domestic discretion, and (4) default rules. Although I do not attempt a comprehensive application of the model, I provide examples of rules belonging to each category, and I identify several areas-including modes of individual culpability, standards of mens rea, and sentencing practices-where domestic law has a legitimate role to play. Finally, I briefly consider the implications of the framework in three different procedural settings: domestic courts, international tribunals, and hybrid courts.Perspectives Fall 2011 5
Thomas M. McDonnellProfessor of LawBA, Fordham UniversityJD, Fordham University School of LawCo-chair of ASIL Teaching International Law Interest group (2008-2011)Professor Thomas McDonnell's scholarship has long focused on those policies and practices of the United States that violate the letter or spirit of international law. He has been particularly concerned about the counterterrorism policies that the Bush-Cheney Administration adopted after the September 11 attacks and continued by the Obama Administration. Among the actions most troubling to McDonnell are the invasion of Iraq, the harsh treatment of detainees, and the extraordinary rendi-tion of detainees to countries that routinely engage in torture. By refusing to fund the transport of Guantánamo Bay Detainees to the U.S., Congress has also contributed to the use of untested military commissions rather than trial in civilian, article III Federal Courts.McDonnell's book, United States, International Law, and the Struggle Against Terrorism, which was released in paperback this August, discusses critical legal issues raised by the United States' responses to the terrorist threat. It highlights such issues as torture, indefinite detentions, extraordinary rendition, right to trial, military commissions, the death penalty, targeted killing, the right of self-determination, and the invasions of Afghanistan and Iraq. The book examines these issues against the backdrop of terrorist movements that have plagued Britain and Russia, and also discusses the historical roots of modern Islamic terrorism. This work attempts to look beyond U.S. counter-terrorism policy and practice to the challenges all modern democracies face in trying to stop international terrorism.According to McDonnell, when the U.S. engages in counterter-rorism policies that violate international law, we undermine our moral authority, alienate our allies, and strengthen the extremists in Islamic countries. To fight an organization like al-Qaeda and its affiliates, the U.S. needs international cooperation; without people on the ground in Islamic communities around the world, our technology can only take us so far. Moreover, morally ques-tionable actions can be counterproductive: The targeted killing of a religiously motivated terrorist leader may inspire many oth-ers to join or support the terrorist group. Given that al Qaeda and its affiliates have become increasingly unpopular in the Mus-lim world, there is all the more reason to follow international law strictly so as to prevent their resurgence. Tactics like targeted killing should be used as a last resort when an individual poses an imminent threat to the U.S., McDonnell argues.United States, International Law, and the Struggle against Terrorism 6 Pace Law SchoolUsing remotely controlled weaponized drones to kill suspected Islamic terrorists from a hit list raises serious legal, strategic, and moral questions. First, we should not entrust a secret service like the Central Intelligence Agency with such authority (as the Obama Administration as well as the Bush Administration have done), and, second, we should use such an explosive tactic only as a last resort, not as a routine practice as the current administration has adopted.""