Conference Prospectus — ICL as Cultural Hybrid

What follows is a conference announcement by my friend Mark Osiel.  He welcomes — indeed wants — feedback.  I hope to attend and discuss the ICC Pre-Trial Chamber’s indefensible dilution of Article 30’s default knowledge mens rea to include dolus eventualis.

Common Civility:  International Criminal Law as Cultural Hybrid

Here’s a prospectus for a conference I’m trying to organize with two other professors of international criminal law, Kai Ambos (Göttingen) and Elies van Sliedregt (Free Univ., Amsterdam).  The idea grew out of several conversations during the year I recently spent in The Hague, as a co-director of the T.M.C. Asser Institute.  We have some money from the Dutch government and Asser, but will need more.

If you pass any time around the international criminal tribunals, you quickly face the fact that the key disagreements about what approach this new field should take to myriad doctrinal questions tend to plays out as a conflict between lawyers from the “common law” and “civil law” world.  This is initially surprising, since one of the first thing one learns in law school is that this historical distinction is supposed to have broken down over time, to be grossly oversimplistic in ignoring the many overlaps and cross-influences across these two, once-insulated legal “traditions.”

So we wonder: What have been the respective contributions of civil law versus common law (and attorneys from each legal culture) to the recent development of international criminal law? We anticipate bringing together legal scholars from both sides of the pond to discuss such questions as:

Why have international criminal courts and drafters of the Rome Statute of the International Criminal Court chosen to adopt common law approaches to certain issues (e.g., direct witness examination) but civil law ones on other matters (e.g., acceptance of hearsay evidence)?  In each such instance, can the decision to follow one legal tradition’s approach rather than the other’s be ascribed to anything more rational than the fortuity of which lawyers from which cultural background happened to be assigned a given case?  “No” is the near-consensus answer among most people we know.

Why did the current competition over whose law would be incorporated into ICL come to be so widely understood and constructed as one between common and civil lawyers, rather than say North versus South (as would surely have occurred in the 1960s and 70s), French versus German, formal versus customary, or any number of other possible axes of contention? And are those who start their careers as criminal lawyers in their respective countries –- frequent among the earliest ICTY prosecutors, for instance – less receptive to “foreign” approaches from elsewhere than those who begin as international lawyers, increasingly the background of more recent hires?

How do lawyers initially trained in one legal culture respond to the challenges of workplace environments at international and hybrid tribunals, where they must collaborate professionally with lawyers trained in the other legal culture?  How have such encounters – with their attendant miscommunications and sometimes-heated disagreements – shaped the intellectual development of this burgeoning new field?

What are the implications for coherence and workability of the resulting cultural hybrid that the field is thereby coming to embody? Within each legal culture, after all, the effect of a given legal rule is often limited by another rule.  A legal system resembles an ecosystem, in this respect: there is usually a predator to keep the population of prey from growing too large. What happens, then, when international justice plucks a particular rule or rule-fragment from one legal culture without the “exception” or opposing rule that normally accompanies and balances it? Does the prey threaten to become the new predator, once no longer constrained by its usual counter-weight? Or are such metaphors entirely misplaced?

Do recent anthropological theories of cultural hybridity shed light on such questions? In the 1960s through the 80s, anthropologists bemoaned the loss of “cultural integrity” as indigenous societies came into contact with, and were seen to be “corrupted” by Western modernity.  For the last generation, however, anthropology has come largely to accept, even endorse the myriad ways in which people throughout the world borrow, and develop ingeniously novel uses for, the images and artifacts of other societies. What used to be dismissed as mongrelized mishmash is now celebrated as creative, semiotic bricolage.

Should we feel the same about international law? After all, in its approach to crime, to what extent is either legal tradition — civil or common — really all that coherent in the first place, given the idiosyncratic contingencies of their historical development and the major national variations within each? Today, countries also borrow legal rules from one another all the time, scarcely interested in whether these reflect a pedigree of common or civil law. On the other hand, as law’s guardians, do we perhaps rightly yearn for principled coherence of a more defensible sort than those claiming to defend the purity of a local or national culture, whether Amazonian or German?

We welcome your thoughts.

Mark Osiel