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Published online by Cambridge University Press: 20 October 2020
1 Second Day, Wednesday, 11/21/1945, Part 04, in Trial of the Major War Criminals Before the International Military Tribunal, Vol. II, Proceedings: 11/14/1945–11/30/1945, 1947 IMT 98 (official text in the English language), available at https://perma.cc/9KEM-8UBF.
2 See, e.g., David Luban, Legal Modernism 336–62 (1994).
3 The ICC defines the “crime of aggression” as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” Rome Statute of the International Criminal Court, Art. 8bis(1), July 18, 1998, UN Doc. A/CONF.183/9*. The “act of aggression” is defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.” Id. Art. 8bis(2). For the jurisdictional provisions regarding its application, see id., Arts. 15bis, 15ter.
4 Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017); see also Bradley, Anna Sprain, Book Review, The Internationalists: How a Radical Plan to Outlaw War Remade the World, 112 AJIL 330 (2018)Google Scholar.
5 For another excellent account of the Kampala negotiations, see Van Schaack, Beth, Negotiating at the Interface of Power and Law: The Crime of Aggression, 49 Colum. J. Transnat'l L. 505 (2011)Google Scholar.
6 See, e.g., Louis Henkin, How Nations Behave 47 (2d ed. 1979).
7 See, e.g., Jack L. Goldsmith & Eric A. Posner, The Limits of International Law 23–43 (2005).
8 See, e.g., Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (2012). For a comprehensive collection of essays, see The Oxford Handbook of Global Legal Pluralism (Paul Schiff Berman ed., 2020) (hereinafter Oxford Handbook).
9 See, e.g., Merry, Sally Engle, Legal Pluralism, 22 L. & Soc'y Rev. 869, 869–75 (1988)CrossRefGoogle Scholar.
10 See generally, e.g., Legal Pluralism and Empires 1500–1850 (Lauren A. Benton & Richard J. Ross eds., 2013).
11 See, e.g., Oxford Handbook, supra note 8 (collecting essays).
12 See, e.g., id.; see also Dickinson, Laura A., Regulating the Privatized Security Industry: The Promise of Public/Private Governance, 63 Emory L.J. 417 (2013)Google Scholar.
13 See, e.g., Berman, Paul Schiff, Seeing Beyond the Limits of International Law, 84 Tex. L. Rev. 1265 (2006)Google Scholar (reviewing Goldsmith & Posner, supra note 7).
14 For further discussion of the concept of legal consciousness, see Patricia Ewick & Susan S. Silbey, The Common Place of Law: Stories from Everyday Life 45–47 (1998).
15 See, e.g., Gordon, Robert W., Critical Legal Histories, 36 Stan. L. Rev. 57, 109 (1984)CrossRefGoogle Scholar (“[T]he power exerted by a legal regime consists less in the force that it can bring to bear against violators of its rules than in its capacity to persuade people that the world described in its images and categories is the only attainable world in which a sane person would want to live.”).
16 See, e.g., Martha Finnemore, National Interests in International Society (1996).
17 See generally Laura A. Dickinson, The Dance of Complementarity: Relationships Among Domestic, International, and Transnational Accountability Mechanisms in East Timor and Indonesia, in Accountability For Atrocities: National and International Responses 319, 358–61 (Jane Stromseth ed., 2003) (discussing ways in which international pressure on Indonesia in the period just after East Timor gained its independence strengthened the hand of reformers within the Indonesian government to push for robust domestic accountability mechanisms for atrocities committed during the period leading up to the independence vote).
18 See Paul Schiff Berman, Global Legal Pluralism as a Normative Project, 8 U.C. Irvine L. Rev. 149 (2018); Monica Hakimi, The Integrative Effects of Global Legal Pluralism, in Oxford Handbook, supra note 8, at 557.
19 See, e.g., Cover, Robert, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22 Wm. & Mary L. Rev. 639, 682 (1981)Google Scholar (arguing that, although it might seem perverse “to seek out a messy and indeterminate end to conflicts which may be tied neatly together by a single authoritative verdict,” we should “embrace” a system “that permits the tensions and conflicts of the social order” to be played out in the jurisdictional structure of the system); see also Erin Ryan, Federalism as Legal Pluralism, in Oxford Handbook, supra note 8, at 491.
20 See, e.g., Berman, supra note 18, at 170–71; Frédéric Mégret, International Law as a System of Legal Pluralism, in Oxford Handbook, supra note 8, at 533, 544–46.
21 See, e.g., Elies van Sliedregt & Sergey Vasiliev, Pluralism: A New Framework for International Criminal Justice, in Pluralism in International Criminal Law 3 (Elies van Sliedregt & Sergey Vasiliev eds., 2014); Elies van Sliedregt, International Criminal Law and Legal Pluralism, in Oxford Handbook, supra note 8, at 575, 577–86.
22 See, e.g., Dickinson, supra note 17, at 358–61.
23 See, e.g., Hakimi, supra note 18, at 562–67.
24 See, e.g., Dickinson, Laura, The Promise of Hybrid Courts, 97 AJIL 295, 306 (2003)CrossRefGoogle Scholar; see also Elena Baylis, Cosmopolitan Pluralist Hybrid Tribunals, in Oxford Handbook, supra note 8, at 595.
25 Berman, supra note 8, at 230–35 (describing various people's tribunals).
26 See Sergey Sayapi, The Crime of Aggression in the African Court of Justice and Human and Peoples’ Rights, in The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges 314–35 (Charles C. Jalloh, Kamari M. Clarke & Vincent O. Nmehielle eds., 2019).
27 Reuters, Trump Authorizes Sanctions Over ICC Afghanistan War Crimes Case, N.Y. Times (June 11, 2020), at https://perma.cc/Q4RD-PME9.