Seeking Inconsistency: Advancing Pluralism in International Criminal Sentencing

Abstract

Debates about pluralism are all the rage in international criminal scholarship. Whereas a mere twenty-five years ago, crimes such as genocide, war crimes, and crimes against humanity were greeted with impunity, now the international landscape is dotted with criminal courts and tribunals established to prosecute those who commit such offenses. At the same time that international criminal courts have proliferated, domestic courts have also begun prosecuting international crimes, and the dramatic diversity of international criminal justice has become apparent. That diversity extends both to substance and procedure, and it gives rise to startlingly different rules and results, depending on which international or domestic court is doing the prosecuting. Plainly said, although the moniker "international criminal law" implicitly suggests a unified body of norms, no such universal norms exist. Sometimes, international courts apply international laws. But sometimes they apply domestic laws. When applying domestic laws, international courts sometimes apply the laws of a particular domestic jurisdiction, but at other times they apply laws that are a synthesis of a number of domestic jurisdictions. When international courts apply domestic laws, it is sometimes pursuant to express instructions in their statutes, but it is sometimes not. When international courts apply international rules, they sometimes apply the same rules that other international tribunals apply (even though their statutes might differ on the point in question), and at other times they apply different rules (even though their statutes might be the same on the point in question). Finally, domestic courts that prosecute international crimes typically apply their own laws, but because such prosecutions are so rare, domestic courts frequently borrow from the international tribunals and the sometimes-richer jurisprudence to be found there.