Domestic Legal Pluralism and the

International Criminal Court: The Case

of Shari'a Law in Nigeria 1st Edition
Justin Su-Wan Yang
Visit to download the full and correct content document:
https://ebookmeta.com/product/domestic-legal-pluralism-and-the-international-crimina
l-court-the-case-of-sharia-law-in-nigeria-1st-edition-justin-su-wan-yang/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Africa and International Criminal Justice Radical Evils

and the International Criminal Court 1st Edition Fred
Aja Agwu

https://ebookmeta.com/product/africa-and-international-criminal-
justice-radical-evils-and-the-international-criminal-court-1st-
edition-fred-aja-agwu/

The Standing of Victims in the Procedural Design of the

International Criminal Court 1st Edition Tatiana
Bachvarova

https://ebookmeta.com/product/the-standing-of-victims-in-the-
procedural-design-of-the-international-criminal-court-1st-
edition-tatiana-bachvarova/

The International Court of Justice and the

Effectiveness of International Law 1st Edition Philippe
Couvreur

https://ebookmeta.com/product/the-international-court-of-justice-
and-the-effectiveness-of-international-law-1st-edition-philippe-
couvreur/

The Failure of the International Criminal Court in

Africa Decolonising Global Justice 1st Edition Everisto
Benyera

https://ebookmeta.com/product/the-failure-of-the-international-
criminal-court-in-africa-decolonising-global-justice-1st-edition-
everisto-benyera/
Religion Law Politics and the State in Africa Applying
Legal Pluralism in Ghana ICLARS Series on Law and
Religion 1st Edition Seth Tweneboah

https://ebookmeta.com/product/religion-law-politics-and-the-
state-in-africa-applying-legal-pluralism-in-ghana-iclars-series-
on-law-and-religion-1st-edition-seth-tweneboah/

Legal Pluralism in Conflict Coping with Cultural

Diversity in Law 1st Edition Prakash Shah

https://ebookmeta.com/product/legal-pluralism-in-conflict-coping-
with-cultural-diversity-in-law-1st-edition-prakash-shah/

Remedies Against Immunity Reconciling International and

Domestic Law after the Italian Constitutional Court s
Sentenza 238 2014 1st Edition Valentina Volpe

https://ebookmeta.com/product/remedies-against-immunity-
reconciling-international-and-domestic-law-after-the-italian-
constitutional-court-s-sentenza-238-2014-1st-edition-valentina-
volpe/

Conciliation in International Law The OSCE Court of

Conciliation and Arbitration 1st Edition Christian
Tomuschat

https://ebookmeta.com/product/conciliation-in-international-law-
the-osce-court-of-conciliation-and-arbitration-1st-edition-
christian-tomuschat/

The UN Security Council and Domestic Actors Distance in

international law 1st Edition Machiko Kanetake

https://ebookmeta.com/product/the-un-security-council-and-
domestic-actors-distance-in-international-law-1st-edition-
machiko-kanetake/
Domestic Legal Pluralism and
the International Criminal Court

This book explores how the unique historical development of Islamic Shari’a
criminal law alongside English common law in northern Nigeria has created
a hybridised criminal legal system through a pluralist dynamic of mutual
accommodation. It studies how this system may potentially be accommodated by
the International Criminal Court.
The work examines how this could be accommodated through the current
understanding and operation of complementarity, and that it could ultimately
prove to be preferable in encouraging the Shari’a courts to exercise criminal
justice over the radical insurgents in northern Nigeria. These courts would
have the unprecedented ability to combine binding adjudicative judgments
together with religious interpretation and guidance, which can directly combat
the predominantly unchallenged domain of ideology by extremist actors. It is
submitted that these pluralist perspectives are timely and welcome, given the
undeniably Western European foundations of modern international criminal
law. In exploring such potential avenues, our shared understanding of modern
international criminal justice is widened to necessarily include other stakeholders
beyond its Western founders. It is the aim and hope that such interactions and
engagements with non-Western traditions and cultures will lead to a greater
shared ownership of the international criminal justice project, which will only
strengthen the global fight against impunity.
The book will be essential reading for academics, researchers and policy-makers
working in the areas of international criminal law, Legal Pluralism, Islamic Shari’a
Law, Nigeria, and religiously inspired violence.

Dr Justin Su-Wan Yang, King’s College London, barrister.

Domestic Legal Pluralism
and the International
Criminal Court
The Case of Shari’a Law in Nigeria

Dr Justin Su-Wan Yang

First published 2022
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa
business
© 2022 Justin Su-Wan Yang
The right of Justin Su-Wan Yang to be identified as author of this
work has been asserted by him in accordance with sections 77 and 78
of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical,
or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval
system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Yang, Justin Su-Wan, author.
Title: Domestic legal pluralism and the International Criminal Court :
the case of Shari’a law in Nigeria / Justin Su-Wan Yang.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2021. |
Includes bibliographical references and index.
Identifiers: LCCN 2021014639 (print) | LCCN 2021014640
(ebook) | ISBN 9780367767273 (hardback) | ISBN
9780367767310 (paperback) | ISBN 9781003168300 (ebook)
Subjects: LCSH: Legal polycentricity—Nigeria. | Islamic
law—Nigeria. | International and municipal law—Nigeria. |
International criminal courts—Nigeria. | Criminal justice,
Administration of—Nigeria. | Complementarity (International law) |
International criminal law. | Boko Haram. | International Criminal
Court.
Classification: LCC KTA469.5 .Y36 2021 (print) | LCC KTA469.5
(ebook) | DDC 340.5909669—dc23
LC record available at https://lccn.loc.gov/2021014639
LC ebook record available at https://lccn.loc.gov/2021014640
ISBN: 978-0-367-76727-3 (hbk)
ISBN: 978-0-367-76731-0 (pbk)
ISBN: 978-1-003-16830-0 (ebk)
DOI: 10.4324/9781003168300
Typeset in Galliard
by Apex CoVantage, LLC
This book is dedicated to the belief that we are all lost
children, brothers and sisters, forever enjoined in hope
and struggle.
Contents

Acknowledgementsx
List of abbreviationsxi
Glossaryxiii

Introduction 1
Methodology 2
The need for legal pluralism in ICL 2
The current boundaries of legal pluralism in ICL 4
Domestic legal pluralism in Nigeria 5
Dynamics of mutual accommodation 6
Chapter summaries 11

1 Pluralism in international criminal law 18

Paradigmatic shift within ICL – involuntary unilateralism to
voluntary treaty law 20
International military tribunals of Nuremberg and
Tokyo 20
The ad-hoc tribunals of the United Nations 24
The International Criminal Court 27
Current legal pluralism scholarship in international
criminal law 35
Horizontal pluralism 35
Vertical pluralism 37
Third World approaches to international law 42
Conclusion 49
viii Contents
2 Legal pluralism and Shari’a law 51
Classical legal pluralism 52
New legal pluralism 55
The semi-autonomous social field of Shari’a law 60
Islamic Shari’a law ( ‫ )شريعة‬61
The challenges posed by Shari’a law to legal pluralism 62
Sources of Shari’a law 64
Flexibility of the Shari’a 67
Shari’a criminal law 69
Hudud crimes 70
Qisas crimes 74
Ta’zir crimes 77
Shari’a law and the ICC 78
Conclusion 82

3 History of legal pluralism in Nigeria 83

First critical juncture – colonial 85
Second critical juncture – colonial 91
Shari’a civil jurisdiction 94
Third critical juncture – Nigerian Independence 96
Fourth critical juncture – post-colonial 102
Fifth critical juncture – the Fourth Republic 109
Sixth critical juncture – mutual accommodation 115
Common law inactivity 115
Shari’a conformity 120
Potential for the revival of subjugation – fragility 129
Conclusion 131

4 Boko Haram and Shari’a violence in Nigeria 134

Sectarian violence and the dynamics of subjugation and
resistance 135
Boko Haram and the 1999 legislations 144
The continuing dynamics of common law subjugation 150
The Terrorism Prevention Act 155
Conclusion 163

5 The International Criminal Court in Nigeria 165

The ICC situation in Nigeria 167
Conclusion of Preliminary Examinations 177
Complementarity 178
Case: same person/same conduct? 182
 Contents ix
Domestic proceedings in Nigeria 197
Shari’a prosecutions of Islamic terrorism? 206
Shari’a criminal legislations 209
Specific advantages of Shari’a proceedings 215
Challenges 218
Conclusion 221

Conclusion 223
First finding 224
Second finding 226
Third finding 228

References 231
Academic journals 231
Books 237
Book chapters 240
Case law 241
International 241
Nigerian 243
Internet sources 244
Legislation 246
International 246
Nigerian 246
Shari’a Penal Code and Criminal Procedure Code as cited in
Ostien, Philip, Sharia Implementation in Northern Nigeria
1999–2006: A Sourcebook (Spectrum Books Ltd 2007)
chapters 4, 5 247
Magazines/News articles 248
Reports 254

Index257
Acknowledgements

I would like to share some words of gratitude. First, I thank my parents and
family for their patience and support. Their unconditional love and optimism
have allowed me to silence the fears of failure, and pursue this project to its end.
Without them, this book would not have been possible. This family now includes
my partner Giulia, who has kept me sane throughout the process, and encour-
aged me to constantly become a better version of me. I remain grateful to Boalt
Hall School of Law at University of California Berkeley and the Centre of Islamic
Studies at the University of Cambridge for allowing me to undertake my research.
Last, words cannot adequately express my appreciation for Dr Nicola Palmer.
Her insights and comments have significantly shaped this book, and I am forever
grateful for her assistance and time in translating the ideas from my head onto
paper. Thank you all for allowing me the privilege of undertaking this journey.
Abbreviations

AC Appeals Chamber
ACJHR African Court of Justice and Human Rights
APC All Progressives Congress
ASP Assembly of State Parties
AU African Union
Economic and Financial Crime Commission (Establish-
EFCC Act 2004 
ment) Act 2004
FCA Federal Court of Appeal
FSCA Federal Shari’a Court of Appeal
HRW Human Rights Watch
ICC International Criminal Court
ICJ International Court of Justice
ICL International Criminal Law
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ILC International Law Commission
IMT International Military Tribunal
IS Islamic State
ISIS Islamic State of Iraq and Syria
JTF Joint Task Force
NATO North Atlantic Treaty Organization
NMT Nuremberg Military Tribunal
OIC Organisation of Islamic Cooperation
OTP Office of the Prosecutor
P5 Permanent 5 States of the UN Security Council
PDP People’s Democratic Party
PTC Pre-Trial Chamber
RPF Rwanda Patriotic Force
SCA Shari’a Court of Appeals
TMT Tokyo Military Tribunal
TPA 2013 Terrorism (Prevention)(Amendment) Act 2013
TWAIL Third World Approach to International Law
UK United Kingdom
xii Abbreviations
UN United Nations
UNGA United Nations General Assembly
UNSC United Nations Security Council
US United States
USSR Union of Soviet Socialist Republics
WACA West African Court of Appeals
Glossary

Ahl al-Sunna wa Jam’a al-Hijra Group Dedicated to the Prophet’s Teachings

and to Migration
Al-qat’u/Qat’ Amputation
Al-Sunna wa Jam’a Followers of the Prophet
Aqida Bida’a Heretical Innovation
Caliphate State under Islamic leadership
Dawla The State/a state actively enforcing Shari’a
Din Shari’a as a religion
Diyah Blood money/Financial compensation
Dunya Worldly/Materialistic Life/Shari’a as a way of life
Fasad Corruption/Mischief
Fiqh Islamic jurisprudence/human understanding of the divine Shari’a
Gardawa Islamic figures assisting in running and protecting Qur’anic schools
Hadd/Hudud Most serious offences in the Shari’a
Hadith Records of words and actions (including silent approval) of the Prophet
(pbuh)
Haqqul adami Actionable rights owed to men
Haqqullah Actionable rights owed to God
Halal Permissible according to Shari’a
Haram Forbidden according to Shari’a
Hijra Migration
Hirabah Hadd offence of highway robbery
Hisbah Social mobilisation to uphold Islamic values in society
Idi Igi Yoruba practice on intestacy
Ijma Consensus
Ijtihad Independent reasoning to solve legal questions
Istishhad/Shahada Martyrdom/Heroic death
Jama’atu Ahl as-Sunnah li-Da’awati wal-Jihad Group of the Sunni People for
the Calling (of Pilgrimage) and Jihad
Jama’at Izalat al Bid’a wa-Iqamat al-Sunna Society of Removal of Heretical
Innovation and the Re-Establishment of the Sunna
Jawabir Rehabilitative doctrine of punishment
Jihad Concept of personal struggle
xiv Glossary
Kafir Apostate/Infidel
Maddahb Islamic sect
Mahdi Recurring apocalyptic figure prophesied to redeem Islam near ‘the end
of time’
Maslah Concept of public interest
Mujaddid Recurring figure to purify Islam
Nisab Minimum threshold to satisfy hudud offence of theft
Qasama Process of ‘completing’ circumstantial evidence through swearing reli-
gious oaths
Qisas Offences against man trigger right to retaliation/compensation
Qiyas Deductive analogy
Qur’an The Holy book of Islam/Word of God
Rajm Lapidation/Stoning
Salafism An order within Sunni Islam characterised by traditionalism and
conservatism
Salb Crucifixion
Shirk Associating other figures with God; denying his Onenes; Engaging in
Polytheism; or not believing in altogether
Shubha Legal concept of doubt
Sufism Order within Islam characterised by mysticism and spirituality
Sunnah Traditions and practices of the Prophet (pbuh)
Ta’zir Discretionary regime of offences not falling into hudud or qisas categories
Takfir Power to declare other Muslims as apostates or heretics
Taqlid Concept of conformity either through leading or following an example
Ummah Community of Muslims
Ulama Islamic scholars
Wahabbism Neo-conservative Islamic doctrine founded by Nejdi Preacher
Muhammed ibn Abd al-Wahhab, used synonymously with the term Salafism.
An extreme version of Salafism that reserved that exclusive right to ‘True
Islam’ – with all other sects being forms of ‘Kufr’. Encapsulated in ibn Abd
al-Wahhab’s treatise: The Ten Nullifiers of Islam.
Wilayah al-Mazalim An Islamic human rights court
Zawajir Preventative doctrine of punishment
Zina Hadd offence of adultery/unlawful sexual intercourse
Introduction

This book explores whether and how domestic legal pluralism may be accommo-
dated by the International Criminal Court (‘ICC’ or ‘the Court’) within the cur-
rent operation of complementarity. It addresses this question through a detailed
examination of a hypothetical puzzle of admissibility in relation to the Boko
Haram insurgency in Nigeria. This puzzle encompasses three concurrent juris-
dictions over the alleged crimes committed by the extremist Islamic militants.
At the international level, Nigeria is party to the ICC Statute,1 and the
alleged offences are within the Court’s jurisdiction.2 Preliminary Examinations
were made public on 18 November 2010,3 which has to date identified six
cases against Boko Haram and two against the Nigerian security forces.4 On 11
December 2020, ICC Prosecutor Fatou Bensouda concluded the Preliminary
Examinations, and requested authorisation from the Pre-Trial Chamber to open
formal investigations in Nigeria.5 This book is limited to the cases against Boko
Haram; those against the Nigerian security forces are beyond the scope of this
work, as they invite very different sets of considerations. At the domestic level,
the alleged offences are currently being addressed within the framework of Ter-
rorism (Prevention)(Amendment) Act 2013 (‘TPA 2013’).6 This is Nigeria’s first
comprehensive counter-terrorist framework, which assigns exclusive jurisdiction
to federal common law courts in adjudicating Boko Haram insurgents. However,

1 ‘Federal Republic of Nigeria’ (International Criminal Court) <www.icc-cpi.int/nigeria>

accessed 7 August 2018.
2 Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2011’ (ICC, 13
December 2011) para 51.
3 ibid para 50.
4 Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2015’ (ICC, 12
November 2015) paras 195–214.
5 ‘Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary exami-
nation of the situation in Nigeria’ (International Criminal Court) <www.icc-cpi.int/Pages/
item.aspx?name=201211-prosecutor-statement> accessed 23 February 2021.
6 Terrorism (Prevention) Act 2011; Terrorism (Prevention) (Amendment) Act 2013 (‘TPA
2013’).

DOI: 10.4324/9781003168300-1
2 Introduction
at the regional level within 12 northern states,7 which have also been the most
affected by Boko Haram violence, the insurgents could also potentially be pros-
ecuted under the Shari’a Penal Codes within the Shari’a criminal courts.
The central questions that emerge from this puzzle are – could the north-
ern states in Nigeria employing Shari’a criminal law through the Shari’a courts
successfully satisfy the standards of complementarity in the investigation and
prosecution of suspected Boko Haram individuals? Is such a localised approach
desirable in either the development of international criminal law (‘ICL’) or the
domestic management of legal pluralism in Nigeria? Could the adjudication of
Islamic extremists from within the Shari’a system offer new insights and advan-
tages in understanding and engaging religious violence? Contemplating this puz-
zle begins to illuminate some wider issues facing the operation of the Court and
its interactions with pluralist domestic legal orders.

Methodology
This book explores these questions through the theoretical application of legal
pluralism, which is supported by a case examination of Nigeria.

The need for legal pluralism in ICL

Through tracing the historical development and practice of modern ICL from
the International Military Tribunals8 to the UN ad-hoc tribunals in the former
Yugoslavia9 and Rwanda,10 this book identifies a particular paradigm of justice
that was constructed upon unilateralism against non-consenting states. This anal-
ysis then notes how the treaty establishment of the ICC has shifted this paradigm
to one around sovereign equality and voluntary state consent. The ICC’s very
existence is made dependant on voluntary state cooperation, which accentuates
the importance of examining how the relationship between the Court and state
parties is regulated. One of the central mechanisms that oversees this is the com-
plementarity regime. This mechanism designates the Court as a complementary
backstop institution of last resort to prevent impunity.11 The ICC Statute enables
the Court to intervene by admitting cases into its dock when states are deemed as
being unwilling or unable to genuinely conduct investigations and/or prosecu-
tions.12 Complementarity is guided by admissibility tests in Article 17 of the ICC

7 Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and
Zamfara state.
8 International Military Tribunal at Nuremberg; International Military Tribunal for the Far
East.
9 UN International Criminal Tribunal for the former Yugoslavia.
10 UN International Criminal Tribunal for Rwanda.
11 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into
force 1 July 2002) 2187 UNTS 90, Preamble (‘ICC Statute’).
12 ICC Statute, Article 17.
 Introduction 3
Statute, which the Court must flexibly interpret in individual evaluations. The
central determinations upholding admissibility are made exclusively by the Court
at its full discretion. While this has potentially insulated the Court from the politi-
cal pressure of powerful states, it has simultaneously made it very difficult for state
parties to challenge the Court’s subsequent decisions. The Court’s jurisprudence
has illustrated how different chambers have exercised their judicial interpretative
freedom to organically cultivate a developing understanding of complementari-
ty.13 This innate flexibility within complementarity may potentially facilitate the
future accommodation of domestic legal pluralism. However, the current trajec-
tory has demonstrated the opposite effect by taking an increasingly restrictive
interpretation of complementarity.14 Examining this trajectory, this book suggests
that, ultimately, if the Court does not look favourably upon domestic proceed-
ings, it will find a way to admit the case.15
The present concern is that given the obscurity and unpredictability surround-
ing the inner workings of complementarity, the Court may seek to admit cases
from genuinely willing and able states on grounds that their domestic processes
do not sufficiently mirror the Court’s mixed foundations in civil law and common
law.16 This paints a dim prospect for non-Western legal systems like Islamic Shari’a
law to satisfy the Court’s ambiguous requirements, and become active partici-
pants in the adjudication of international crimes. This trajectory risks transform-
ing the underlying role of the ICC from a supporting institution to one whose
standards state parties must meet at all costs to avoid admissibility proceedings;
this may directly impact the relationship between the Court and states. It is in this
light that this book explores specific voices in the scholarship like Kevin Heller17

13 This analysis is undertaken by studying the development of the same person/substantially

same conduct requirement within the understanding of a case in Article 17.
14 For example, this is visible in how the Court understands domestic activity within Article
17(1)(a). Rather than an objective existence of an investigation or prosecution that may
then be examined under subsequent tests of genuineness and legitimacy, the Court now
requires the state to demonstrate that the domestic processes, in addition to existing, are also
concrete and progressive. See Prosecutor v Muthaura et al (Judgment on the Appeal of the
Republic of Kenya Against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled
‘Decision on the Application by the Government of Kenya Challenging the Admissibility
of the Case Pursuant to Article 19(2)(b) of the Statute’) ICC-01/09–02/11–274OA (30
August 2011) para 81.
15 This can perhaps be appreciated in how the Court has offered further guidance on what
constitutes substantially same conduct. It has held that this may mean either capturing the
crux of the Prosecutor’s case, or representing the most serious aspects of the case. As such,
for example, the Prosecutor can always submit that the domestic processes do not match
either the crux of its case, which may then support admissibility. See Prosecutor v Saif al-Islam
Gaddafi and Abdullah Al-Senussi (Judgment on the Appeal of Libya Against the Decision
of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the Admissibility of the Case
Against Saif Al-Islam Gaddafi’) ICC-01/11–01/11OA4 (21 May 2014) para 73.
16 For example, this is contemplated through ‘hard mirror’ and ‘soft mirror’ approaches, in
Kevin Heller, ‘A Sentence-Based Theory of Complementarity’ (2012) 53 HILJ 201.
17 Kevin Heller, ‘Radical Complementarity’ (2016) 14 JICJ 637.
4 Introduction
and Nidal Jurdi,18 who advocate a return to what they view as the spirit and role
of complementarity enshrined in the Statute. Empowering and supporting genu-
inely willing and able states to forge their own justice objectives, irrespective of
their domestic legal framework, may not only contribute to a developing under-
standing of international criminal justice in light of the ICC’s treaty-foundations,
but also strengthen the overall network of global enforcement by encouraging
states to take greater ownership of the process. This book builds on this existing
scholarship, and provides the present case study as an example of how it may look
like in practice.

The current boundaries of legal pluralism in ICL

Studying ICL through legal pluralism supports the need to seriously consider
how pluralist inputs to justice may alleviate some of the current tensions sur-
rounding the Court, and enrich the development of ICL. The hypothetical puz-
zle of admissibility in Nigeria presents a real opportunity for the Court to engage
with legal pluralism at the domestic level. State parties to the ICC Statute all have
diverse legal traditions, cultural identities, and unique historical experiences. Yet
the dominant scholarship on pluralism within ICL, as reflected in the work of
Elies van Sliedgret and Sergey Vasiliev,19 falls short of acknowledging this level of
legal pluralism. The current explorations within this scholarship primarily con-
template technical pluralist examples arising from within the Western parameters
of common law and civil law. It scrutinises neither the potential interactions with
non-Western legal systems nor with plural subnational legal orders within a state.
In only considering the official state law as the domestic component of the plu-
ralism, the importance and relevance of other subnational plural legal orders are
lost entirely in the international discourse. This book explores how this fixation
on official state law may not always be the most accurate, desirable, or effective in
addressing situations of international crimes. This need for a deeper engagement
with legal pluralism is given greater context through the scholarship on the Third
World Approaches to International Law (‘TWAIL’).
TWAIL offers an alternative understanding of international law, one which
is shaped by the lasting colonial legacies in international affairs.20 This scholar-
ship illuminates how these undercurrents are inextricable from understanding
the relationship between developing and developed states. It provides insights
on how the treaty-based Court may navigate these tensions, which is explored
in this book through the potential accommodation of domestic legal pluralism.
This perspective begins to frame how and in what way the pre-colonial Islamic

18 Nidal Nabil Jurdi, ‘The Complementarity Regime of the International Criminal Court
in Practice: Is It Truly Serving the Purpose? Some Lessons from Libya’ (2017) 30 LJIL
199, 220.
19 Elies van Sliedregt and Sergey Vasiliev, Pluralism in International Criminal Law (OUP
2014).
20 See for example Makau Mutua, ‘What Is TWAIL’ (2000) 94 ASIL 31.
 Introduction 5
legal system in Nigeria has survived to co-exist with the transplanted colonial
legal framework. Through a detailed case examination, this book shows how this
historical domestic legal pluralism goes to the heart of the dominant schisms in
Nigeria, which extends to the Boko Haram insurgency. This complex history of
legal pluralism is not immediately visible when Nigeria is simply perceived as a
monolithic entity. On the contrary, how Nigeria has managed and balanced her
pluralism has defined her legal, political, cultural, and social identity. Thus, how
the ICC makes sense of this domestic legal pluralism may not only affect the cur-
rent situation involving Boko Haram, but also speak to how the Court engages
with developing states with pluralist identities. How the Court approaches this
hypothetical puzzle of admissibility will also likely have lasting effects on the
future trajectory of legal pluralism in Nigeria.

Domestic legal pluralism in Nigeria

To undertake this deeper engagement with legal pluralism, this book adopts Sally
Falk Moore’s concept of ‘semi-autonomous social fields’.21 Her model allows this
study to look past the traditional law/non-law debates that have inhibited the
pluralist scholarship.22 It enables a closer look at how social fields, like the com-
mon law and Shari’a law, through their semi-autonomy, can at times influence
one another. Of particular interest is how these interactions may lead to specific
distortions and hybridisations. Moore’s focus uniquely explains how non-state
laws may be capable of influencing state laws notwithstanding the colonial hier-
archy. These pluralist interactions are then examined through Kieran McEvoy’s
concept of ‘critical junctures’,23 which explains how power differentials may
result in different degrees of distortions experienced by the social fields. These
concepts are employed in a historical examination of the legal pluralism in Nige-
ria, from the colonial period to the current Fourth Republic. To support this
analysis, this book has compiled the colonial and post-colonial jurisprudence
and legislations within which pluralist interactions were particularly visible.
In employing Moore’s semi-autonomous social fields and McEvoy’s critical
junctures, this book identifies specific pluralist dynamics of common law sub-
jugation and Shari’a resistance that characterised the legal pluralism in Nigeria;
the common law legislators and judiciary would act to subjugate the Shari’a by
increasingly restricting the application of Shari’a law. This encroachment was
resisted by the Shari’a, both within the legal arena, and as explored later, outside.
Pluralist contestations in the law are not removed from social or political life;
rather, these legal battles go to the heart of the dominant schism as they define

21 Sally Falk Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appro-
priate Subject of Study’ (1973) 7 Law & Society Review 719.
22 See for example Sally Merry, ‘Legal Pluralism’ (1998) 22 Law & Society Review 869, 878–879.
23 Kieran McEvoy, ‘What Did the Lawyers Do During the “War”? Neutrality, Conflict and the
Culture of Quietism’ (2011) 74 Modern Law Review 350, 355.
6 Introduction
and redefine the parameters of plural co-existence. This book will demonstrate
that these contestations between the social fields remain very much alive today,
and require careful navigation. Despite the common law being the official state
law of Nigeria, federal leadership has oscillated between common law and Shari’a
interests throughout history. The depth of this pluralism in Nigeria’s legal, social,
and political arena highlights the gross inadequacies in perceiving Nigeria as a
monolithic common law polity.
The dynamics of subjugation and resistance identified in this research illustrate
how the current legal framework of the TPA 2013 is a direct product of the his-
toric legal pluralism in Nigeria. The TPA 2013 dangerously perpetuates the com-
mon law subjugation by directing a monist approach to an essentially pluralist
conflict. The TPA 2013 explicitly and exclusively designates the common law as
the only applicable law to engage terrorism.24 It does not invite Shari’a perspec-
tives or participation in any meaningful way, and overlooks the central relevance
of the Shari’a in understanding the Boko Haram insurgency. It only targets Boko
Haram insurgents while ignoring the alleged crimes of the Nigerian security
forces, which constitute two cases identified in the Preliminary Examinations.25
In failing to navigate the historic dynamics of subjugation and resistance, the
TPA 2013 may in fact contribute to the underlying drivers fuelling the conflict.
This predicament is made more complex as this book explores the links between
the legal pluralism in Nigeria and the emergence of Islamic militant groups like
Boko Haram. Examining historic relationships between the pluralist contesta-
tions in the legal arena and trailing episodes of sectarian violence suggests a nexus
between Shari’a resistance in the law and Shari’a-inspired violence outside the
legal arena. This analysis illustrates how Shari’a-inspired violence was catalysed by
the same dynamics of subjugation and resistance. This longer historical perspec-
tive illuminates how the violence may have responded to the results of the legal
battles. This finding suggests that Boko Haram and its predecessors are intimately
tied to how Nigeria has managed her legal pluralism. This then uncovers the
deeper context and sensitivity underlying the hypothetical puzzle of admissibility.
This book argues that the ICC should be aware of the history of legal plural-
ism and how it has shaped modern day Nigeria. It should understand the specific
role that the TPA 2013 plays within this arena. Simply endorsing this common
law framework for either the familiarity of common law principles or its federal
law status within Nigeria may prove to be ineffective, if not counter-productive,
to actualising justice. Such a move may in fact perpetuate the pluralist drivers
contributing to the same conflict that the Court wishes to adjudicate.

Dynamics of mutual accommodation

Concurrently with the TPA 2013, Shari’a Penal Codes are in operation in 12 north-
ern states. These include states like Borno State, the home state of Boko Haram,

24 TPA 2013 s32.

25 Preliminary Examination Report 2015 para 195.
 Introduction 7
which has also been the most heavily affected by the insurgency.26 The legal sub-
jugation of the Shari’a culminated in the 1999 transition from decades of military
governance to the democratic Fourth Republic. The decision to essentially revive
the 1979 Constitution ignored decades of Shari’a progress, and provided the cata-
lyst for 12 northern states to react unilaterally. These northern states used demo-
cratic platforms in their Muslim-majority states to legislate “wholesale” Shari’a law
based on ambiguous interpretations of specific provisions within the new 1999
Constitution. As a result, Shari’a criminal jurisdiction, reproducing almost entirely
the fixed primary sources of Islamic theology, is now available in these states. How-
ever, viewing this event through the pluralist dynamics makes visible the effects of
historical plural co-existence on the operation of Shari’a law. This book shows how
this Shari’a expansion was distinct from all previous attempts as it was founded
upon the common law Constitution rather than theological supremacy. Elevating
the issue to one of constitutional interpretation procedurally prevented the Federal
Government from swift executive action to dismantle the momentum. Analysing
this seminal time period allows for the identification of a change in the pluralist
dynamics from subjugation and resistance to one of mutual accommodation. The
common law refrained from subjugating the Shari’a, which was met by the Shari’a
exercising self-restraint and conformity to the common law infrastructure. This
finding demonstrates a certain flexibility of Shari’a law as a result of legal pluralism,
which may conform to common law parameters while preserving Islamic principles.
The dynamics of mutual accommodation were particularly visible in Shari’a
criminal law. Shari’a criminal law remains markedly different from Western equiv-
alents within common law and civil law, including, inter alia, the lack of certain
due process requirements, varying evidentiary standards, and the availability of
harsh sentences like amputation, retaliation, crucifixion, and stoning. Analysing
the jurisprudence and the legislation of the Shari’a Penal Codes and Shari’a Crim-
inal Procedure Codes reveals that notwithstanding the theoretical inflexibility
of the Shari’a, the Shari’a law in Nigeria has undergone significant hybridisation
to co-exist with the common law. As such, Shari’a law in these states is uniquely
tailored to the Nigerian experience of legal pluralism. It cannot be said to reflect
Shari’a law in totality or in other geographical areas. Direct legislative changes
were made to the Shari’a Penal Codes, which personify the semi-autonomy of
the Shari’a social field. For example, the capital crime of apostasy was decrimi-
nalised to remain consistent with Nigeria’s constitutional freedom of religion.
More critically, while the Shari’a Penal Codes preserve the Islamic offences and
their corresponding punishments, the Shari’a Criminal Procedure Codes provide
a legal disconnect; Shari’a courts are procedurally barred from passing sentences
of death, amputation, retaliation, or stoning irrespective of the conviction.27 This

26 H. Goitom, ‘Nigeria: Boko Haram’ (US Department of Justice, July 2014) <www.justice.
gov/sites/default/files/eoir/legacy/2014/07/28/2014-010945%20NG%20RPT.pdf>
accessed 18 July 2016, 4.
27 Philip Ostien, Sharia Implementation in Northern Nigeria 1999–2006: A Sourcebook (Spec-
trum Books Ltd 2007) ch5 ‘Harmonised Sharia Criminal Procedure Code Annotated’
ss15–16.
8 Introduction
means that while convictions can be reached faithfully following Islamic jurispru-
dence and principles, the corresponding harsh sentences are ultimately substi-
tuted by the Shari’a courts to acceptable forms like imprisonment. In so doing,
this realigns the Shari’a fixed penalties from practical everyday punishments to
rarer and symbolic indicators of societal guidance.28
This period of mutual accommodation was able to explain other developments,
such as the Shari’a courts’ voluntary transfer of serious cases to the common law
courts in recognition of their better infrastructure and process.29 These develop-
ments capture how Shari’a law has struck a delicate balance between the preser-
vation of Islamic law and the political necessity to ensure its survival. Examining
the early criminal cases in the Shari’a courts following 1999 illustrates that the
constitutional ambiguities that have enabled the revival of Shari’a criminal juris-
diction are left intentionally unresolved through a careful use of locus standi rule
in Nigerian law. This has prompted Shari’a stakeholders to proactively maintain
their precarious position, including practicing self-constraint and avoiding unnec-
essary controversies that may lead to once again challenging the entire existence
of Shari’a criminal jurisdiction in Nigeria. This fragility adds greater emphasis
and responsibility for the ICC to carefully navigate this pluralist landscape, as its
actions will likely affect how this balance is maintained.
It is in this pluralist and fragile legal context that the TPA 2013 is beginning
to operate. At the relevant time of legislation, the Federal Government was led
by President Goodluck Jonathan, a common law Christian constituent from the
South. All previous attempts to enact a comprehensive counter-terrorist legisla-
tion were frustrated due to the impasse caused by northern and southern inter-
ests. However, increasing panic from the deteriorating situation caused by Boko
Haram provided a narrow window for the Jonathan Administration to hastily
pass the TPA 2013. As explained, the TPA 2013 ignores the progressive develop-
ments forged within the period of mutual accommodation, as well as the exist-
ence of concurrent Shari’a criminal jurisdiction in the northern states. In this way,
it risks reviving the dangerous dynamics of common law subjugation, which may
catalyse future violent forms of Shari’a resistance. In failing to see these dynam-
ics, the Court may also inadvertently perpetuate the common law subjugation
of the Shari’a. This may practically result from the ICC holding the cases to be
inadmissible, thereby endorsing the domestic trials under the TPA 2013. It may
also occur if the ICC finds the use of Shari’a criminal jurisdiction as constituting
grounds for admitting the cases via complementarity.
Scrutinising the Court’s current involvement in Nigeria elucidates how it has
made sense of the domestic legal pluralism. Until its recent conclusion in Decem-
ber 2020, Preliminary Examinations have analysed issues of complementarity and

28 This is a view that is developed in Chapter 2 from analysing the extraordinary evidentiary
burdens related to hudud offences, read together with various legal mechanisms to avoid the
harsh fixed sentences to the discretionary ta’zir category. See Abdullah Saad Alarefi, ‘Over-
view of Islamic Law’ (2009) 9 International Criminal Law Review 707, 731.
29 See Gunnar Weimann, Islamic Criminal Law in Northern Nigeria: Politics, Religion, Judicial
Practice (AUP 2010) 102, 117 (‘Weimann 2010a’).
 Introduction 9
admissibility.30 Following the conclusion of the Examinations, the ICC Prosecu-
tor has requested the Pre-Trial Chamber to commence investigations as there is
a reasonable basis to proceed under the Statute.31 In reaching this conclusion,
the Prosecutor has evaluated, inter alia, additional information provided from
states.32 A closer look at the annual Preliminary Examinations and the Article 5
Report33 suggests that most of the vital information, if not all, have been gath-
ered with the specific assistance of the Jonathan Administration.34 Perhaps as a
result, this book argues that the Court documents illustrate a worryingly limited
understanding and acknowledgment of the central role of the Shari’a in both the
current conflict and in Nigeria’s identity. For example, Boko Haram is described
simply as an Islamic militant group in northern Nigeria that ‘aims at imposing an
exclusive Islamic system of government in Nigeria’.35 This grossly overlooks the
rich pluralist history of Shari’a law in Nigeria, including the uninterrupted opera-
tion of Shari’a civil jurisdiction since the colonial period as well as the Shari’a
criminal jurisdiction following 1999. Like the TPA 2013, there are no further
inquiries made on Shari’a perspectives or even the role of religion in how the
Court understands the Nigerian situation.
Under the current Buhari Administration, domestic trials have finally com-
menced in October 2017 for Boko Haram suspects under the TPA 2013. These
trials so far have taken place through three batches of short-term proceedings.
They took place in October 2017, February and July 2018. An analysis of these
proceedings demonstrates how Nigeria has prioritised working through the mas-
sive backlog of cases by opting for quick de facto summary trials.36 This strategy
has led to some shortcomings in due process, which may become relevant in
future complementarity evaluations.37 While the first batch in October 2017 was
strictly confidential, the second in February 2018 invited external observers,38
who overall concluded that the trials were fair to the defendants.39 Human Rights
Watch monitored the third round in July 2018.40 It is likely that these proceed-

30 ‘Federal Republic of Nigeria’ (n1).

31 ICC Statute Articles 15, 53.
32 ibid Article 15(2).
33 Office of the Prosecutor, ‘Situation in Nigeria: Article 5 Report’ (ICC, 5 August 2013).
34 Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2012’ (ICC,
November 2012) para 93.
35 Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2013’ (ICC,
November 2013) para 210.
36 Akinbo Adesomoju, ‘Trial of Boko Haram suspects: Lessons for Judiciary’ (Punch NG, 22
February 2018) <www.punchng.com/trial-of-boko-haram-suspects-lessons-for-judiciary>
accessed 18 October 2017.
37 These were identified as, inter alia, long detention periods before trial and the lack of suf-
ficient one-on-one time between the defendants and counsel.
38 Notably, the Nigerian Bar Association, the National Human Rights Commission, and the
Legal Aid Council of Nigeria.
39 Caleb Dajan, quoted in Adesomoju (n36).
40 ‘Nigeria: Flawed Trials of Boko Haram Suspects: Ensure Due Process, Victim Participa-
tion’ (Human Rights Watch, 17 September 2018) <>www.hrw.org/news/2018/09/17/
nigeria-flawed-trials-boko-haram-suspects>.
10 Introduction
ings will continue to make progress through the backlog. The ICC Prosecu-
tor stated in 2017 that she will consider these proceedings in her Preliminary
Examinations.41 In December 2020, Preliminary Examinations concluded, and
the Prosecutor stated that the statutory criteria for opening an investigation has
been met.42 Although it remains to be seen, it is likely that the Pre-Trial Chambers
will authorise the opening of the formal investigations.
The Court may commence formal investigations if it is of the view that the
specific inadequacies of the trials demonstrate Nigeria’s unwillingness or inabil-
ity to genuinely prosecute Boko Haram suspects. The domestic climate, espe-
cially following the inauguration of Muhammadu Buhari, a former general from
the North, strongly suggests that the Federal Government will challenge this
admissibility. A failed admissibility challenge further jeopardises the relationship
between the Court and Nigeria, as well as with other states on the African conti-
nent. However, simply permitting domestic trials under the TPA 2013 plays into
the deep pluralist schisms, which may also prove to be counter-productive by
furthering the damaging dynamics of subjugation. This book then examines how
the Shari’a courts, following their unique hybridisation in Nigeria, may poten-
tially be empowered to prosecute Boko Haram by bringing charges under the
Shari’a Penal Codes rather than the TPA 2013. This book notes how the ICC in
Al-Senussi43 held that states are not obliged to use international charges or labels
in their prosecutions of international crimes. An analysis of the offences in the
Shari’a Penal Codes illustrates that they may be prima facie capable of prosecut-
ing the alleged conduct of Boko Haram insurgents.44 This book then studies how
Shari’a criminal law, following its hybridisation and compliance with the common
law framework, may potentially satisfy the central tests of complementarity in
Article 17 of the ICC Statute. In so doing, it would not only uphold the statutory
standards of complementarity, but also provide an exciting opportunity where
complementarity could be used to support and empower domestic proceedings
using elements of Islamic Shari’a law.
Although this prospect is not without challenges, the book identifies how
prosecuting Shari’a-inspired violence from within the Shari’a system may offer
unique insights and advantages over both the ICC and the common law courts.
Examining the ratio decidendi of the early Shari’a criminal cases in the northern
states demonstrates the courts’ abilities to reinterpret the Shari’a and project it to

41 Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2017’ (ICC, 4

December 2017) para 217.
42 ‘Statement of the Prosecutor, Fatou Bensouda, on the Conclusion of the Preliminary
Examination of the Situation in Nigeria’ (International Criminal Court) <www.icc-cpi.int/
Pages/item.aspx?name=201211-prosecutor-statement> accessed 23 February 2021.
43 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi (Decision on the Admissibil-
ity of the Case against Abdullah Al-Senussi) ICC-01/11–01/11 (11 October 2013) para
66(iii).
44 This is suggested following an analysis of the offences in the Harmonised Shari’a Penal
Codes.
 Introduction 11
the wider Shari’a community. Specific examples within the adultery cases45 high-
lighted how these reinterpretations have further restricted the casual application
of harsh Shari’a punishments, promoting greater co-existence with the common
law. The Shari’a criminal courts are distinct from other religious bodies that may
provide similar guidance. They have an added advantage of supporting their views
with binding judgments and coercive enforcement. This combination of religious
reinterpretation and judicial judgments allows an opportunity for the courts to
challenge and dismantle the extremist ideological narrative of Boko Haram. Such
a localised response will also likely have the greatest impact and significance on
the victim communities in northern Nigeria. This raises additional questions of
how to best engage the desires of victim communities in light of non-Western
legal systems in non-Western societies. Permitting the Shari’a courts to adjudicate
Shari’a-inspired violence builds upon the dynamics of mutual accommodation,
where Nigeria can continue to experiment with her plural social fields develop-
ing harmoniously. At the international level, exploring Shari’a options may pro-
vide new insights for the Court as well as ICL in understanding and engaging
religious crimes, which may be relevant beyond Nigeria. Last, supporting this
employment of Shari’a criminal law in its hybrid form may provide real oppor-
tunities in Nigeria for moderate voices within Islam to adjudicate the extremists
through internal justice mechanisms. This would advance Shari’a perspectives in
participating in the global project of justice, which may promote greater legal
integration and harmonious co-existence.
This approach of legal pluralism is supported by central arguments developed
through five chapters.

Chapter summaries
Chapter 1 illuminates the increasing need for a deeper engagement with legal
pluralism in ICL. It undertakes a historical analysis of the establishment and
development of modern ICL following World War II. It studies the specific rela-
tionship between the founding Western stakeholders and the inceptive interna-
tional tribunals, which enabled the construction of international criminal justice
based upon the Western legal canon. Analysing the first expressions of interna-
tional criminal justice through the International Military Tribunals and later the
UN ad-hoc tribunals for the former Yugoslavia and Rwanda uncovers a particular
paradigm of justice built around unilateralism. While elements of unilateralism
were historically necessary to overcome the traditional limitations of the West-
phalian understanding of international law, it undermined the impartiality and
independence central to the operation of criminal justice. These tribunals were
capable of overruling domestic legal systems, and enforced their claim to justice
upon non-consenting states. This undemocratic unilateralism was empowered by

45 Safiyatu Hussaini v The State, Shari’a SCA Case No. SCA/GW/28/2001; Amina Lawal v
The State, Katsina SCA Case No. KTS/SCA/FT/86/ 2002.
12 Introduction
the powerful rhetoric of internationality; the Nuremberg Tribunal was justified
by the signatory states ‘acting in the interests of all the United Nations’,46 whereas
the UN ad-hoc tribunals were established by UN Security Council (‘UNSC’)
resolutions47 under Chapter VII powers of the UN Charter, which enables the
UNSC to act unilaterally to maintain international peace and security.48 This
chapter then traces how this paradigm of unilateralism has been challenged by
the treaty establishment of the ICC. The incoming paradigm enshrined sover-
eign equality, state consent, voluntary cooperation, and the prerogative of states
to adjudicate international crimes first. The specific challenges encountered in
the establishment of the ICC captured how the legacies of its predecessors have
downplayed the significance of this new paradigm. This has permitted elements
of unilateralism and Western legal exclusivity to survive into the new institu-
tion. These legacies can be perpetuated by the ICC through its interpretation of
the complementarity regime. Simultaneously, the potential flexibility underlying
complementarity signals considerable scope for the potential accommodation of
diverse legal perspectives and situations. This chapter argues that exploring the
potential accommodation of legal pluralism of and within diverse state parties
speaks to the operation of this new paradigm, which may directly alleviate some
of the current tensions surrounding the Court.
This chapter then analyses the current scholarship of legal pluralism within
ICL. The dominant scholarship, as compiled by Van Sliedregt and Vasiliev, illus-
trates the boundaries of the current understanding. Examining the categorisa-
tions of ‘horizontal’ and ‘vertical’ modalities of legal pluralism in ICL reveals an
inadequate focus on the relationship between Western and non-Western legal sys-
tems. Further, there is a lacuna in how international institutions such as the ICC
may engage with plural legal orders within a state. This places greater emphasis
on the expanding frontiers of complementarity, and how the Court may develop
it to understand and perhaps accommodate domestic legal pluralism. In identify-
ing this need for a deeper engagement with legal pluralism with specific refer-
ence to non-Western societies and plural legal orders within a state, this chapter
visits the TWAIL scholarship. TWAIL illuminates the experiences of developing
post-colonial states in the modern international legal order. Analysing the last-
ing legacies of colonialism begins to reveal why and how developing states may
resist unilateral tendencies of the ICC within a treaty framework. These factors

46 The Nuremberg Tribunal was established by the 1945 London Agreement between France,
USSR, UK, and the US; see ‘Charter of the International Military Tribunal – Annex to
the Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis’ (United Nations, 8 August 1945) <www.refworld.org/docid/3ae6b39614.
html> accessed 10 November 2014.
47 The ICTY was established on 25 May 1993 following UNSC Resolution 827; the ICTR on
8 November 1994 following UNSC Resolution 955. See UNSC Res 827 (25 May 1993)
UN Doc S/RES/827; UNSC Res 955 (8 November 1994) UN Doc S/RES/955.
48 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945)
1 UNTS XVI, Chapter VII Article 39.
 Introduction 13
contextualise the current hostile climate surrounding the Court, and how the
accommodation of domestic legal pluralism through complementarity may con-
tribute to its alleviation. TWAIL also traces the plight of indigenous legal systems
through the process of colonisation and de-colonisation. It allows this book to
see how plural legal orders may exist within a seemingly monist state, which
frames the later study of the domestic legal pluralism in Nigeria.
Chapter 2 establishes how this need for a deeper engagement with legal plu-
ralism should be understood. It visits the scholarship on legal pluralism, from
the anthropological studies of ‘classical legal pluralism to the later sociological-
based insights of ‘new legal pluralism’. This review uncovers recurring obstacles
that have inhibited the scholarship; while the distinction between state law and
non-state law can be made, there are no conclusive answers on how non-state
laws are then distinguished from non-state non-laws, such as mere customs and
etiquette. This focus on lawmaking capabilities also notes the central fixation on
the political establishment of the nation state as the point of reference for ‘state
law’. However, the scholarship does not contemplate instances where religious
frameworks like the Shari’a are designed to operate as the primary state law of
Islamic societies. Put differently, the scholarship makes the assumption that secu-
larisation has occurred, limiting religion from state governance. This therefore
suggests two types of state laws – one based in the political entity with legislative
capabilities, and the other based in theological supremacy with religious codes.
These two varying concepts can and do exist concurrently. This chapter adopts
Sally Falk Moore’s concept of semi-autonomous social fields to navigate these
realities. Moore’s concept allows for the identification of social fields, which exist
as the constituent elements of her model. Social fields are capable of creating
some form of regulation for its members. More interestingly, all social fields are
said to have semi-autonomous borders. Interactions with other social fields may
lead to specific distortions in how a social field regulates its members. Moore’s
focus on these complex and organic interactions allow the analysis to circumvent
the quintessential debates around state/non-state laws. Although Moore’s work
does not include theological legal systems, her model does enable a study on
how such systems, including varying concepts of state laws, may interact with
one another. This chapter then introduces Shari’a law as the relevant social field
within the pluralist equation. Analysing the Shari’a framework illustrates the fixed
nature of its primary sources, which are upheld by the various iterations and inter-
pretations throughout the global Muslim community. This multi-faceted nature
prompts the urgent emphasis that this book is focused on the particular Shari’a
law that exists in northern Nigeria. This book notes specific concerns in how the
theoretical inflexibility of the Shari’a may fare in a pluralist environment. With
Moore’s pluralist lens, this chapter then sets the foundations for a detailed look at
the domestic legal pluralism in Nigeria.
Chapter 3 engages in a detailed examination of the historical trajectory of
legal pluralism in Nigeria between the indigenous Shari’a law and the trans-
planted English common law. To conduct this analysis, this book has compiled
the legislations and legal decisions, ranging from the colonial period to modern
14 Introduction
day Nigeria, within which pluralist interactions were particularly visible. This
data is then analysed through Kieran McEvoy’s concept of critical junctures,
which illuminates the consequences of specific power differentials that shaped
the trajectory of the pluralist legal interactions. While Moore largely removes
the significance of state law, McEvoy acknowledges it through discussing the
effects of power differential, which is made apparent in the interactions with
other social fields. Viewing the plural interactions and the resulting distortions
allows for the identification of specific pluralist dynamics that have consistently
characterised the course of the legal contestations. Since the colonial conquest
of the Sokoto Caliphate in the territory that is now northern Nigeria, the com-
mon law has enjoyed the uninterrupted status of official state law. This posi-
tion of power has facilitated the pluralist dynamics of subjugation, where it
attempted to increasingly limit the application of Shari’a law. This was con-
versely met by Shari’a resistance, which was at many points in history under-
mined by its unofficial law status. These dynamics contributed to the dominant
schisms in Nigerian society, and cultivated dangerous polarisations that remain
alive today.
The historical analysis undertaken in this chapter identifies a sudden change
in the pluralist dynamics following the 1999 transition to democratic rule. The
decision to revive the 1979 Constitution was another instance of common law
subjugation; it purposefully ignored the decades of Shari’a liberation that had
occurred since, including draft constitutions which permitted greater scope of
Shari’a law over consenting Muslims. This provided the catalyst for 12 Muslim-
majority states in the North to incorporate Shari’a legal expansion into their dem-
ocratic political platforms. This was purportedly justified by provisions within
the 1999 Constitution, which conferred powers to individual states to legislate
laws for the good governance of the state.49 Elevating the boundaries of Shari’a
law to constitutional interpretation prevented the Federal Government under
the first President Olusegun Obasanjo from clamping down on this movement;
the relevant determination could only come from a court with the appropriate
jurisdiction to review constitutional matters.
This chapter explores how this impasse led to a fundamental shift in the
dynamics from subjugation and resistance to one of mutual accommodation.
The common law refrained from actively subjugating the Shari’a, and the Shari’a
responded by conforming to the common law landscape to ensure the political
survival of its extended jurisdiction. Examining the initial cases of the new Shari’a
criminal courts illustrated how Shari’a criminal law in Nigeria has undergone spe-
cific hybridisation as a result of the legal pluralism; although it substantively draws
on theological sources, its jurisdiction is enabled by the common law Constitu-
tion. Immediate points of inconsistencies, such as the capital crime of apostasy
in Islam, have been decriminalised and removed. Conversely, constitutional safe-
guards such as legal representation have been augmented into the Shari’a practice.
The Shari’a Penal Codes preserve the Islamic offences, together with the fixed

49 1999 Constitution of the Federal Republic of Nigeria s4 (‘1999 Constitution’).

 Introduction 15
penalties. However, the Shari’a Criminal Procedure Codes prevent the Shari’a
courts from sentencing the specific harsh punishments, including capital punish-
ment, that would antagonise the common law constituents and cause unwanted
controversy. The common law has also experienced distortion in acquiescing to
Shari’a practices that prima facie violate the Constitution, such as the use Shari’a
evidentiary laws in criminal proceedings and the regional mobilisation of hisbah
groups acting as de facto police forces. This analysis showcases how both social
fields have been distorted through plural co-existence, forming a functional yet
complicated balance through the dynamics of mutual accommodation.
This chapter then examines the circumstances surrounding the enactment of
the TPA 2013. In tracing Nigeria’s engagement with the global war on terror,
it notes how all previous attempts at forging a comprehensive counter-terrorist
framework had failed due to the lack of consensus between northern and south-
ern interests. However, the specific atmosphere of panic caused by the failure to
contain Boko Haram provided a brief window for the Jonathan Administration
to enact the TPA 2013. In doing so, this legislation not only produces the specific
points of contention that had frustrated previous attempts, but also revives the
damaging dynamics of common law subjugation. A closer examination also illus-
trates how it targets Boko Haram insurgents in the North using an exclusively
common law approach. It ignores the relevance of Shari’a law to the conflict,
including the existing Shari’a courts, and does not invite Islamic perspectives or
participation in the process. This situates the TPA 2013 firmly within the domes-
tic legal pluralism, which the Court must appreciate in navigating Nigeria. In
simply endorsing the TPA 2013, there is a risk that the Court may inadvertently
map onto pluralist tensions of subjugation and resistance that, as examined in the
next chapter, may have contributed to the Shari’a-inspired violence.
Chapter 4 contextualises both the domestic legal pluralism and the TPA 2013
with the Shari’a-inspired violence of Boko Haram. Examining the historical acts
of Shari’a resistance reveals links between Shari’a resistance in the law and sec-
tarian violence outside the law. Both forms of Shari’a resistance share collective
objectives of Shari’a expansion, although they would later differ on the precise
extent. This analysis also suggests that the Shari’a-inspired violence has been cata-
lysed by the same dynamics of subjugation and resistance, and has mapped onto
the outcomes of the legal battles. This historical study of violent Shari’a resistance
illustrates that Boko Haram is not a unique phenomenon, but rather the lat-
est manifestation of a deeper undercurrent. This insight adds greater challenges
for both the ICC and the Federal Government in engaging the current insur-
gency. This chapter then examines this situation through the pluralist dynamics
to note a specific divergence in the historic alliance between the Shari’a resistance
in the law and Shari’a-inspired violence. This is illustrated through uncovering
how Boko Haram at first flourished in a symbiotic relationship with the northern
regional-state50 governments. These regional-state governments cultivated Boko

50 ‘Regional-state’ will be used to differentiate sub-federal individual states from the national
state unless it is obvious in context.
16 Introduction
Haram for their populist social capital in furthering their Shari’a expansionist
agenda. However, these governments were ultimately unable to fulfil the group’s
demands on implementing a fundamentalist and uncompromising version of the
Shari’a, which led to an unprecedented split between the legal and non-legal
actors of Shari’a resistance. Although Boko Haram follows the Islamic trajectory
of its predecessors, it operates in a fundamentally new landscape; Shari’a criminal
jurisdiction now exists, which is protected by the legislators and politicians who
supported the Shari’a resistance. This reveals a specific opportunity for Shari’a
criminal courts, a product of Shari’a resistance in the law, to adjudicate Shari’a-
inspired violence, another product of Shari’a resistance. This opportunity may
not only adjudicate violent Shari’a resistance, but also legitimise and strengthen
the hybridised interpretation of Shari’a law in Nigeria. This chapter therefore
illuminates the Nigerian legal landscape which the ICC must carefully navigate.
There is a real risk that in failing to see these pluralist dynamics, the Court may
map onto the more destructive pluralist dynamics of common law subjugation
rather than those of mutual accommodation. Not only would this lead to an inac-
curate evaluation of the situation, it will also likely upset the delicate balance that
Nigeria has organically achieved. In doing so, such a misstep may inadvertently
exacerbate the drivers fuelling the conflict.
Chapter 5 then examines the Court’s current engagements with Nigeria’s
complex pluralist landscape. It examines the ICC documents and reports in rela-
tion to Nigeria. This exercise offers two insights. First, the findings of the Office
of the Prosecutor strongly suggest that the Court may already be mapping onto
the existing pluralist tensions in Nigeria. The Preliminary Examinations reveal an
alarmingly low level of consideration for the relevance of Shari’a law in both the
current conflict as well as Nigeria’s identity. Second, this chapter contemplates
the close relationship between the Court and the former Jonathan Administra-
tion, which has fundamentally shifted since the inauguration of President Buhari.
This is suggestive of how the Court may be making sense of the Nigerian situa-
tion, including the current domestic proceedings, and how Nigeria may respond
to potential ICC intervention. In order to prospectively assess the potential
admissibility of the domestic proceedings, this chapter visits the existing case
law and scholarship on complementarity. This enquiry illuminates the poten-
tial flexibility within complementarity, which has been developed organically by
the various chambers of the Court through the case law. While this endows the
Court with considerable interpretative freedom, the practice demonstrates an
increasingly restrictive understanding of complementarity. In so doing, the role
of the Court is said to be shifting from that of the watchdog to a leading prosecu-
torial body.51 Put differently, the rising standards underpinning admissibility may

51 See Padraig McAuliffe, ‘From Watchdog to Workhorse: Explaining the Emergence of the
ICC’s Burden-Sharing Policy as an Example of Creeping Cosmopolitanism’ (2014) 13 CJIL
259, 261.
 Introduction 17
be transforming complementarity to one of primacy.52 This chapter then visits
specific responses within the scholarship. It in particular identifies how Kevin
Heller’s idea of ‘radical complementarity’ and Nidal Jurdi’s proposal for objec-
tive tests of state intent may project an interpretation of complementarity that is
more aligned with the spirit of the ICC Statute.
This chapter applies these views to first evaluate the existing domestic proceed-
ings in Nigeria. This evaluation finds that the Court may seek to admit the cases
based on the specific shortcomings of the current trials under the TPA 2013.
However, the current political climate in Nigeria strongly suggests that the Fed-
eral Government will likely challenge the admissibility. As noted throughout the
book, even if the Court deems the cases to be inadmissible, simply endorsing
the trials under the TPA 2013 risks destabilising the dynamics of mutual accom-
modation in Nigeria and exacerbating the underlying drivers of Boko Haram
violence. This chapter finally evaluates whether and how potential Shari’a crimi-
nal proceedings would satisfy the standards of complementarity. It notes that the
specific hybridisation of Shari’a criminal law in Nigeria may potentially satisfy
current interpretations of complementarity. This analysis then studies the specific
advantages and challenges facing the practical employment of Shari’a criminal
jurisdiction, and what it may mean at the regional, domestic, and international
level.
This introduction has emphasised how a legal pluralist approach identifies key
questions and concerns in ICL. This approach positions the central arguments
in the chapters, and supports the need to undertake a case study to analyse how
seemingly incompatible legal systems may develop to co-exist. The Nigerian
study illuminates the central relevance of legal pluralism in the current conflict,
and suggests how solutions found from within that legal pluralism may be more
desirable and effective in engaging the conflict. It presents an opportunity for the
ICC to engage meaningfully with legal pluralism that encompasses non-Western
legal systems.

52 This is developed further in Heller (n17) 648–649.

1 Pluralism in international
criminal law

This chapter identifies a need for a deeper engagement with legal pluralism within
the current landscape of ICL. It argues that such an engagement is timely and
necessary to the continuing development of the global criminal justice project as
currently led by the ICC. Embracing this deeper legal pluralism may enable the
Court to contextualise the relevance of non-Western legal systems, which may
provide greater insights and strategies when adjudicating international crimes
committed in non-Western situations. Additionally, this may clarify how the
Court interacts with plural legal systems within states, which may not be official
state laws but nonetheless are materially relevant to the international crime.
This chapter builds this argument through three sections. The first section
traces the historical construction of modern ICL to identify an emerging par-
adigm of unilateralism by its Western founders. It contends that international
judicial institutions were arbitrarily established to make exclusive claims to inter-
national justice over non-consenting sovereigns. Their laws were strictly derived
from Western European legal traditions of common law and civil law, with little
scope for domestic input from the less powerful states made subject to them.
Their underlying rhetoric of internationality enabled these international institu-
tions to overrule the domestic laws of these subject states. This chapter explores
how, and in what way, this paradigm has changed with the treaty-formation of the
ICC. The ICC represents an unprecedented experiment within the international
community, where global criminal justice initiatives are tested; it is an evolving
experiment, which may be capable of adapting to the shifting geopolitical land-
scape. The ICC is simultaneously empowered and limited by its treaty framework.
While it acquired independence and impartiality from the traditionally influential
states, its laws were constrained by the limitations of achieving treaty consensus
from the significant number of state parties. As analysed later in the creation of
the ICC Statute, this has predominantly translated to the Western-derived laws
of its predecessors surviving into the ICC, rather than facilitating the introduc-
tion of new international criminal laws. Further, this treaty framework meant that
only states and their official laws could be formally considered in the relationship
between the Court and states. These factors have contributed to the risk that the
Court may fail to see the complex and context-specific circumstances, such as
cultural, religious, social, historical, and ethnic factors, underlying international

DOI: 10.4324/9781003168300-2
 Pluralism in international criminal law 19
situations of large-scale violence. Engaging diverse global situations through the
narrow lens of Western legal traditions has caused specific tensions between the
Court and state parties. The Court has already experienced the first withdrawal
of ICC state party Burundi effected on 27 October 2017.1 On 17 March 2008,
the Philippines lodged their withdrawal from the Rome Statute, which became
effective on 17 March 2009.2 If Pinochet’s arrest in London in 1998 shortly after
the adoption of the ICC Statute provided, as Schabas claims, a ‘great and defin-
ing moment in international justice’,3 this book argues that Burundi’s withdrawal
can be seen as having provided a similarly notable moment.
The second section turns to the existing scholarship to understand the current
boundaries of legal pluralism within ICL. The dominant scholarship, as exempli-
fied in the collection edited by Van Sliedregt and Vasiliev, broadly contemplates
legal pluralism along two orientations – horizontal and vertical.4 Horizontal
pluralism analyses overlaps of distinct legal spaces following the proliferation of
international institutions.5 Vertical pluralism studies sequencing and hierarchy in
the contestations between international and domestic systems. While vertical plu-
ralism relevantly frames the relationship between the Court and states, current
explorations remain limited to technical plurality within Western legal traditions.
This scholarship has yet to contemplate more directly on how the Court may
consider the legal plurality of either non-Western legal systems or plural systems
that may exist below the official state law.
The final section then draws on the TWAIL scholarship, which contextualises
the need for deeper engagements with legal pluralism. It emphasises the impor-
tance and relevance of the diverse experiences of state supporting the ICC. It also
illuminates specific sensitivities and concerns common to many states. It does this
by unpacking the tensions between Western and non-Western societies following
the process of colonialism. This historical perspective illustrates how ICL founda-
tions in Western legal traditions are inextricable from larger geopolitical currents.
It also highlights the inadequacies underlying the current understanding of legal
pluralism in ICL, which is predominantly constrained to Western legal tradi-
tions. The Court must therefore carefully navigate these sensitivities to balance
its treaty-foundations based on voluntary state consent with the need to uphold
impartial international justice globally. The TWAIL analysis on colonialism also
illuminates how legal systems may exist below the official state law; these plu-
ral legal systems may be significantly relevant to understanding and adjudicating
crimes in specific societies. These insights direct this study to a closer examination

1 ‘Burundi Leaves International Criminal Court Amid Row’ (BBC News, 27 October 2017)
<www.bbc.co.uk/news/world-africa-41775951> accessed 23 February 2018.
2 The Philippines, International Criminal Court <www.icc-cpi.int/Philippines> accessed 23
February 2021.
3 William Schabas, ‘The Banality of International Justice’ (2013) 11 JICJ 550, 545.
4 Elies van Sliedgret and Sergey Vasiliev, Pluralism in International Criminal Law (OUP
2014).
5 Elies van Sliedregt, ‘Pluralism in International Criminal Law’ (2012) 25 LJIL 847, 848.
20 Pluralism in international criminal law
in Chapter 2 of how legal pluralism is understood, especially between Western
colonial and non-Western indigenous legal systems.

Paradigmatic shift within ICL – involuntary

unilateralism to voluntary treaty law
A paradigm is defined as a model or a pattern.6 Within ICL prior to the ICC, the
dominant paradigm was characterised by overwhelming elements of unilateralism.
This was necessary to overcome existing conceptual limitations of the traditional
Westphalian understanding of international law. Westphalian international law was
designed to manage interstitial relations among autonomous sovereigns.7 Sov-
ereigns were the primary and sole actors scattered throughout the international
void; the space between them was an anarchic vacuum.8 It was inconceivable for
an institution to exist within this vacuum, never mind have the authority to inter-
fere with domestic affairs of sovereigns. The catastrophes of World War I and II
provided the necessary impetus to invent a system of international order and gov-
ernance within this vacuum. It was first attempted through the League of Nations
following World War I, and later replaced by the United Nations following World
War II. It is in the context of the latter conflict that the first expressions of mod-
ern international criminal justice emerged. The International Military Tribunals
of Nuremberg and Tokyo (‘IMTs’) unprecedently applied their formulation of
international laws without any intercession of domestic systems.9 These tribunals
embodied elements of Allied victors’ unilateralism in adjudicating their conquered
enemies.10 The emergence of this particular paradigm of ICL would develop to
characterise the understanding and operation of international criminal justice.

International military tribunals of Nuremberg and Tokyo

Following the Allied victory in 1945, the US, the UK, France, and the USSR
established the Nuremberg Military Tribunal (‘NMT’) through the London

6 ‘Paradigm’ (English Oxford Dictionary) <https://en.oxforddictionaries.com/definition/

paradigm> accessed 13 November 2014.
7 Stephen Krasner, Sovereignty: Organised Hypocrisy (PUP 1999) 20.
8 Individual claims could only access the international plane through the medium of state
action; see Anne-Marie Slaughter and William Burke-White, ‘The Future of International
Law Is Domestic (or, The European Way of Law)’ (2016) 47 HILJ 327.
9 Robert Cryer, Prosecuting International Crimes (CUP 2005) 39; however, the idea of inter-
national prosecutions can be traced to the Naples trial of the Duke of Suabia, Conradin von
Hofenstafen, in 1268, by an international tribunal comprising of judges from Alsace, Aus-
tria, Germany, and Switzerland. See Ilias Bantekas and Susan Nash, International Criminal
Law (Hart Publishing 2003) 325.
10 The Moscow Declaration in 1943 affirmed that those responsible for Nazi crimes would be
returned and prosecuted in locus delicti under the laws of the Allied-sponsored governments,
and ‘major criminals whose offences [had] no particular geographical location. . . [were to]
be punished by a joint declaration of the governments of the Allies’. See ‘Moscow Confer-
ence; October 1943’ (Avalon Project, Yale Law School) <http://avalon.law.yale.edu/wwii/
moscow.asp> accessed 19 November 2014.
 Pluralism in international criminal law 21
Agreement.11 These oligarchical foundations were counter-balanced by the rheto-
ric of international justice and the guise of democratic legitimacy of the UN. For
example, the London Agreement stated that the Allies were ‘acting in the interests
of all the United Nations’ in punishing the Nazi criminals.12 Yet all judicial person-
nel were appointed exclusively by the Allies, and the costs were borne entirely by
the Allied Control Council in Germany.13 This begins to suggest the susceptibility
of judicial processes to instrumentalisation by victors in punishing their enemies
rather than forging impartial justice in the interests of the wider UN community.
Later, this discrepancy between factual unilateralism and rhetorical international-
ism would be explicitly discussed in Tadić at the International Criminal Tribunal
for the former Yugoslavia (‘ICTY’); the Trial Chamber took the view that the
NMT was not truly international as its laws ultimately represented a small part
of the world.14 The NMT curiously overlooked the Nazi-Soviet Pact of 1939,
indiscriminate carpet-bombings of German cities by British and American forces,
including Nuremberg itself, and numerous other incriminating behaviour of the
Allies.15 Therefore, as Sellars opines, the normative legitimacy of the NMT was
not rooted in legal positivism or natural justice but rather in the coercive strength
of the victors.16 Little resistance could form against this momentum in the post-
war devastation. Pursuant to treaty law, the London Agreement could have del-
egated some sovereign prerogatives to the NMT as agreed to by its signatories,
but it would have been binding on only those parties.17 It could not have bound
third states like the Axis powers. With the use of international rhetoric and territo-
rial control of Germany, the NMT transcended the traditional boundaries of sov-
ereign equality, and made exclusive claims to the universal application of its laws.
The NMT commenced on 21 November 1945. It criminalised crimes against
peace, war crimes, and crimes against humanity. In drawing up these crimes,
the NMT Charter visited the body of international offences that could incur
individual criminal liability. Each offence had existed to varying degrees of cer-
tainty and legality at the time, but the Charter formally crystallised them. War
crimes, as embodied in Article 6(b), were the least controversial and therefore
the simplest to adopt; they originated from the established Hague and Geneva
Conventions.18 Crimes against humanity were incorporated but reformulated to

11 ‘Charter of the International Military Tribunal – Annex to the Agreement for the Prosecu-
tion and Punishment of the Major War Criminals of the European Axis’ (United Nations, 8
August 1945) <www.refworld.org/docid/3ae6b39614.html> accessed 10 November 2014
(‘London Agreement’ or the ‘Nuremberg Charter’).
12 ibid Preamble.
13 ibid Articles 3, 14, 30.
14 Prosecutor v Tadić (Opinion and Judgment) IT-94–1-T (7 May 1997) para 1.
15 David Bosco, Rough Justice (OUP 2014) 28.
16 Kirsten Sellars, ‘Imperfect Justice at Nuremberg and Tokyo’ (2010) 21 EJIL 1085,
1088–1090.
17 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) UNTS Vol.1155, 331 Article 34 – ‘A treaty does not create obligations or
rights for a third State without its consent.’
18 Nuremberg Charter Article 6(b).
22 Pluralism in international criminal law
encompass both inter-state and intra-state contexts of war.19 This modification
illustrates emerging international governance objectives from traditional West-
phalian parameters. Crimes against humanity originally addressed crimes com-
mitted by a state against civilians of another state. This was unilaterally extended
to include crimes by a sovereign against its own citizens. Prior to this, holding a
sovereign accountable for acts against its own citizens within its territory would
have violated the core Westphalian principle of non-interference. However, this
was necessary in the Nazi context of systematic persecutions of German Jew-
ish and minority groups. The NMT therefore set aside this core principle, and
sought criminal accountability of state leadership for prohibited acts undertaken
against any civilian population. In addition to attaching responsibility over citi-
zens as the price of sovereignty, the NMT explicitly disregarded whether the
crimes in question were in violation of domestic laws. As Bantekas and Nash note,
this was again necessary as Germany had decriminalised Nazi conduct domesti-
cally and abroad.20 This book supports the view that undermining Westphalian
principles of non-interference and overruling domestic legal systems were neces-
sary in this particular context. However, the unilateralism involved in these first
expressions of ICL have symbolically shaped how international criminal justice is
understood. Rather than contemplating how the wealth of local knowledge and
context may provide more accurate and comprehensive evaluations of local situa-
tions, the external adjudicator categorically and actively disregarded these sources
in exacting their own understanding of justice and accountability. In doing so, it
sidestepped deeper questions on how international justice processes may impact
local states recovering from international crimes, including the desires and expec-
tations of victim communities. While appropriate for Nazi Germany, this suprem-
acy of international institutional formed a paradigm, a model or pattern, for the
developing practice of ICL.
Similar desires to punish Japan were declared during the war.21 The Inter-
national Military Tribunal for the Far East, or the Tokyo Military Tribunal
(‘TMT’) was created with even less democratic legitimacy than its counter-
part. TMT was established on 29 April 1946 following a Special Proclamation
of US General Douglas McArthur.22 The tribunal was founded upon McAr-
thur’s mandate to oversee the Japanese surrender, which included establish-
ing a military tribunal. The Japanese Emperor and his family were explicitly
excluded in the official arraignment; as Bix notes, ‘the Truman Administra-
tion and General MacArthur both believed the occupation reforms would be

19 ibid Charter Article 6(c).

20 See Bantekas and Nash (n9) 334.
21 ‘Cairo Conference 1943’ (Avalon Project, Yale Law School) <http://avalon.law.yale.edu/
wwii/cairo.asp> accessed 12 November 2014; ‘Potsdam Declaration 1945’ (National
Diet Library of Japan) <www.ndl.go.jp/constitution/e/etc/c06.html> accessed 29
January 2015.
22 C.D. Sheldon, The Tokyo Judgment: The International Military Tribunal for the Far East
(I.M.T.F.E.), 29 April 1946–12 November 1948 (UPA 1977).
 Pluralism in international criminal law 23
implemented smoothly if they used [Emperor] Hirohito to legitimise their
changes’.23 The IMTs openly displayed again the uncomfortable relationship
between criminal justice and political considerations of powerful states. This
intersection between the necessary impartiality underpinning justice and the
political reality of Western unilateralism was laid bare in the spirited interac-
tions between Judge Pal of India and Judge Jaranilla of the Philippines. In his
dissents, Judge Pal emphasised the central importance of legality. He rejected
the contention that crimes against humanity had formed part of existing inter-
national law by the time of commission by the Japanese accused. Therefore, the
lack of an existing definition meant it was open to ‘interested interpretation’.24
He highlighted the hypocrisy of victors’ justice in constructing the IMTs upon
military conquests, and doubted the fairness of the trials; he cited the long his-
tory of colonialism by the Allies, as well as the unprecedented use of nuclear
arsenal against civilian populations during the war.25 He held that all Japanese
defendants should be acquitted of all charges.26 In contrast, Judge Jaranilla,
whose appointment had been contested as he had personally survived the
Bataan Death March, defended the tribunal’s legitimacy and called for harsher
sentences.27 He claimed that Judge Pal should simply accept the law of the
TMT Charter as setting new precedents and legal foundations, just as they had
both accepted their judicial appointments through the Charter.28 Judge Pal’s
call for total acquittal is difficult to accept in light of the gravity of Japanese
atrocities. However, his argument accurately frames the hypocrisy and unilat-
eralism underlying these first expressions of ICL.
The practice of the IMTs illustrated how foundations in unilateralism under-
mined principles of independence and impartiality central to criminal justice.
Indeed, during the NMT trials, Schwarzenberger noted that until and unless ICL
found a way to circumvent the interests of the powerful states, it would forever
remain an expression of global power politics.29 In a sense, the new ICC paradigm
answers Schwarzenberger’s warnings by protecting independence and impartial-
ity of international justice. However, as explored in Chapter 5, the Court has
demonstrated increasingly unilateral tendencies in requiring states to meet nar-
rowing interpretations of complementarity to avoid admissibility. Analysing the
historical development of ICL begins to identify the potential sources of tensions
surrounding the current operation of the Court. It also emphasises why a turn to

23 Herbert Bix, Hirohito and the Making of Modern Japan (HarperCollins 2001), Author’s
Interview.
24 United states et al v Araki et al (Judgment – Dissenting Opinion of the Member from India)
IMTFE (4 November 1948) 69–153, 227–79 (‘Tokyo Judgment’).
25 ibid 1, 231–235.
26 ibid 226.
27 Tokyo Judgment, Concurring Opinion of the Member from the Philippines 28–35.
28 ibid 23–32; see also Robert Cryer, Prosecuting International Crimes (CUP 2005) 99.
29 George Schwarzenberger, ‘The Problems of an International Criminal Law’ (1950) 3 Cur-
rent Legal Problems 263.
24 Pluralism in international criminal law
legal pluralism is necessary to embrace the significance of the new paradigm based
on sovereign equality and voluntary state consent.

The ad-hoc tribunals of the United Nations

The end of the Cold War restored the political consensus necessary for the
UNSC to fulfil its mandate of preserving international peace and security. The
deteriorating situation in the former Yugoslavia and Rwanda in 1993 and 1994
respectively provided opportunities for the UNSC to exercise this prerogative.
Acting under Chapter VII powers of the UN Charter, the UNSC established
the ICTY30 and the International Criminal Tribunal for Rwanda (‘ICTR’).31
Rather than using treaties between interested and affected states, both tribu-
nals were created ad-hoc under the wide scope of Chapter VII prerogatives.
Chapter VII permits the UNSC, upon determining the existence of any threat
to the peace, breach of the peace, or act of aggression, to restore international
peace and security, which includes deploying armed forces.32 During the draft-
ing of UNSC Resolution 827 establishing the ICTY, both Brazil and China
questioned the UNSC authority to create such tribunals, but ultimately did
not block the motion.33 Concerns about the unilateral creation of Interna-
tional Criminal Tribunals were allayed by their limited conflict-specific jurisdic-
tion.34 However, UN Charter Article 25 requires all UN members ‘to accept
and carry out the decisions of the Security Council in accordance with the
present Charter’.35 In effect, although jurisdiction was clearly demarcated, the
laws and judgments of the tribunals, as well as cooperation requests, were
technically binding on all UN members. This prompted further weariness of
the UNSC’s carte blanche authority, as it demonstrated how future laws may
become universally binding without wider review, accountability, or consent.
As Birdsall argues, while many states recognised the need for international jus-
tice mechanisms in these conflicts, they desired more democratic foundations
than Chapter VII prerogatives.36

30 UNSC, Statute of the International Criminal Tribunal for the Former Yugoslavia (as
amended on 17 May 2002), 25 May 1993 (‘ICTY Statute’).
31 UNSC, Security Council, Statute of the International Criminal Tribunal for Rwanda (as
amended on 13 October 2006), 8 November 1994 (‘ICTR Statute’).
32 UN Charter Chapter VII Article 39.
33 For example, China expressed concern at the UNSC’s power to unilaterally create an inter-
national criminal tribunal. See Virginia Morris and Michael Scharf, ‘An Insider’s Guide to the
International Criminal Court for the Former Yugoslavia’ (1995) 3 AYILO 344; UN SCOR
48th Session 3217th Meeting (1993) UN Doc S/PV/3217 33; Paola Gaeta, The UN Geno-
cide Convention: A Commentary (OUP 2009) 269.
34 Both tribunals were restricted temporally and geographically to their respective conflicts. See
ICTY Statute Article 1; ICTR Statute Article 1.
35 UN Charter Article 25.
36 Andrea Birdsall, ‘The International Criminal Tribunal for the Former Yugoslavia – Towards
a More Just Order?’ (2006) 8 Peace, Conflict & Development 9.
 Pluralism in international criminal law 25
The Chapter VII approach circumvented the need for consent from affected
states. In the ICTY context, Serbia frequently voiced their resistance by deny-
ing former Chief Prosecutor Louise Arbour entry into Kosovo to conduct her
investigations.37 In Rwanda, it was in fact the post-genocide government that had
initially requested the creation of a UN tribunal.38 However, following several
irreconcilable points of contention, Rwanda, as then a non-permanent member
of the UNSC, ultimately voted against the resolution establishing the ICTR. The
Rwandan government sought greater temporal scope than the proposed param-
eters of 1 January 1994 to 31 December 1994. One calendar year was almost
negligently inadequate to engage the historic tensions and crimes leading up to
the genocide. A deeper form of accountability was desired, including the involve-
ment of the previous regime during the civil war period, to accurately capture the
historical narrative and indictable factors contributing to the genocide. Further,
the government remained unconvinced that the proposed number of judicial
personnel would be sufficient to handle the practical volume of suspects. Last,
capital punishment was debated but ultimately excluded from ICTR practice,
which was contrary to the fact that Rwanda, as well as three permanent members
of the UNSC, exercised the death penalty domestically.39 These factors suggest
that the ICTR prioritised developing ICL and its own legacy over forging justice
in Rwanda for Rwandans, which may explain why the ICTR was ultimately estab-
lished in neighbouring Tanzania, rather than Rwanda.40
These ad-hoc tribunals confirmed the trajectory of the unilateralist para-
digm, where international judiciaries pierced sovereign barriers and ignored
domestic systems in the name of international justice. Tadić at the ICTY
argued that the UNSC did not possess the authority under the UN Charter
to establish such a tribunal.41 The ICTY dismissed this by reiterating the non-
exhaustive measures available to the UNSC under Chapter VII prerogatives.42
In Kanyabashi at the ICTR, it was submitted that the Rwandan genocide was
strictly internal and domestic. As such, it could not amount to the required
threat to international peace and security, invalidating the foundations of the
UNSC’s establishment of the tribunal.43 The ICTR similarly dismissed this
challenge by clarifying that the UNSC had supreme authority over all situa-
tions that may entail a threat to international peace and security, and did not

37 ‘History’ (ICTY) <www.icty.org/sid/95> accessed 3 March 2015.

38 The Request of the Government of Rwanda (28 September 1994) UN Doc S/1994/1115.
39 Madeline Morris, ‘The Trials of Concurrent Jurisdiction: The Case of Rwanda’ (1997) 7
DJCIL 349.
40 See Victor Peskin, ‘Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Pro-
gramme’ (2005) 3 JICJ 950.
41 Prosecutor v Tadić (Decision on Interlocutory Appeal on Jurisdiction) IT-94–1-AR72 (2
October 1995) paras 20–22.
42 ibid paras 31–48, with particular reference to UN Charter Articles 40–42.
43 Prosecutor v Kanyabashi (Decision on the Defence Motion on Jurisdiction) ICTR-96–15-T
(18 June 1997) paras 17–32.
26 Pluralism in international criminal law
require a pre-existing international conflict to act.44 It was unsurprising that
these challenges failed, as their successes would have nullified the tribunals.
Nonetheless, these challenges identified a growing weariness of arbitrariness
in international affairs, where the façade of internationality was increasingly
at odds with the specific lack of democratic legitimacy as well as regards for
domestic systems.
This unilateralism was accompanied by the familiar de facto immunity of pow-
erful states. The ICTY Chief Prosecutor Louise Arbour attempted to investigate
the mounting reports of war crimes committed by North Atlantic Treaty Organi-
sation (‘NATO’) forces during its bombing campaigns in Kosovo from March
to June 1999. According to Human Rights Watch, more than 500 civilians were
killed by NATO airstrikes during the campaign.45 By 1999, NATO was undeni-
ably a combatant in the armed conflict on the territory of former Yugoslavia. It
was irrefutable that the ICTY had legitimate jurisdiction to investigate these alle-
gations. After succeeding Arbour as Chief Prosecutor, Carla Del Ponte continued
the inquiry and formally requested NATO’s targeting policies. Her requests were
not formally denied, and no direct pressure was applied to withdraw her inquiries.
Yet no information was made available, ultimately frustrating her investigations.
Simultaneously, the valuable stream of NATO intelligence and cooperation that
had significantly assisted the tribunal had stopped.46 Del Ponte reflected on her
experience as,

over and above this, however, I understood that I had collided with the
edge of the political universe in which the tribunal was allowed to function.
If I went forward with an investigation of NATO, I would not only fail in
this investigative effort, I would render my office incapable of continuing to
investigate and prosecute the crimes committed by the local forces during
the wars of the 1990s.47

Her insights illuminate the unambiguous boundaries and conditions within

which international criminal justice was permitted to operate. Not only were the
tribunals and its personnel chosen by certain Western states, they also influenced
the lines of investigation. The ICTY officially closed the inquiry in July 2000
stating, ‘[a]lthough some mistakes were made by NATO, the Prosecutor is satis-
fied that there was no deliberate targeting of civilians or unlawful military targets
by NATO during the campaign’.48 Scholars like Anghie and Chimni have since

44 ibid para 23.

45 William Arkin, ‘Civilian Deaths in the NATO Air Campaign’ (HRW, February 2000) 5
<www.hrw.org/sites/default/files/reports/natbm002.pdf> accessed 12 March 2015.
46 Bosco (n15) 65.
47 Carla Del Ponte, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and
the Culture of Impunity: A Memoir (Other Press 2009) 60.
48 UNSC 4150th Meeting (2 June 2000) UN Doc S/PV/4150 3; see also ‘Press Release, Pros-
ecutor’s Report on the NATO Bombing Campaign’ (ICTY, 13 June 2000) <www.icty.org/
sid/7846> accessed 16 February 2015.
 Pluralism in international criminal law 27
noted how this decision had raised ‘disturbing questions about the neutrality and
objectivity of this Tribunal’.49
Similarly in Rwanda, Chief Prosecutor Louise Arbour’s investigations included
allegations against members within the Rwanda Patriotic Front (‘RPF’), the
Tutsi-backed party that formed the post-conflict government after stopping the
predominantly Hutu genocidaires. Several RPF members allegedly participated
in the reprisal killings of up to 60,000 Hutu civilians during and after the geno-
cide.50 Prosecutor Del Ponte continued this investigation upon her succession,
even preparing several indictments of RPF officials. Relations with the Rwan-
dan government were already strained following the establishment of the ICTR
against the explicit wishes of Rwanda. It was difficult to accept that mechanisms
of international criminal justice would not only exclude the state within which
the domestic conflict wholly occurred, but then also seek to prosecute the sur-
viving government that had not only succeeded in ending the conflict, but also
sought international judicial assistance in the first place. Cooperation was repeat-
edly denied, which bitterly culminated in the Prosecutor lodging a formal com-
plaint against Rwanda to the UNSC.51 The Prosecutor’s efforts at impartiality
were perceived as damaging the objectives of restoration and rehabilitation in
Rwanda. Rather than contemplating the deeper questions related to this predica-
ment, the Prosecutor was simply relieved of her office at the ICTR.52
These post-Cold War expressions of international criminal justice demon-
strated how the paradigm of unilateralism was now deeply embedded within the
architectural foundations of ICL. Not only did these tribunals exclude the crucial
participation of subject states, its relationship to the wider political interests of the
UNSC were made explicit.

The International Criminal Court

The treaty establishment of the ICC has introduced a new paradigm underpin-
ning ICL. This view is contrary to that of scholars like Kaul who perceive the
ICC to be ‘the direct heir’ of the IMTs.53 The new ICC paradigm has existed

49 Antony Anghie and Bhupinder Chimni, ‘Third World Approaches to International Law and
Individual Responsibility in International Conflicts’ (2003) 2 CJIL 77, 91–92.
50 Alison Des Forges, Leave None to Tell the Story (Human Rights Watch 1999) 16; see also
Bosco (n15) 75.
51 Letter dated 26 July 2002 from the President of the International Criminal Tribunal for the
Prosecution of Persons Responsible for Genocide and Other Serious Violations of Interna-
tional Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations Committed in the Territory of Neigh-
bouring States Between 1 January and 31 December 1994 addressed to the President of the
Security Council (29 July 2002) UN Doc S/2002/847.
52 Bosco (n15) 76.
53 Hans-Peter Kaul, ‘Human Rights and the International Criminal Court’ (ICC, 21
­January 2011) <www.icc-cpi.int/NR/rdonlyres/2C496E38-8E14-4ECD-9CC9-5E0D2A0
B3FA2/282947/FINAL_Speech_Panel1_HumanRightsandtheInternational.pdf> accessed
13 January 2015.
28 Pluralism in international criminal law
concurrently with the ad-hoc tribunals under the wider shared ambit of ICL,
which has obscured the significance of their ontological differences. The ICC is
unprecedented in being a general and permanent court; it is not fixed to a specific
conflict, and is designed to engage all present and future situations throughout
the globe. However, this wider mandate and scope are immediately at odds with
its limited legal foundations inherited from its predecessors. However, as analysed
later, its unique complementarity regime may potentially allow for new modes of
interactions between international criminal institutions and domestic states.
In discussing paradigms, Trachtman notes that paradigms may lose their rel-
evance when they are ‘increasingly unable to explain what we do, or give us the
tools to devise solutions to our problems’.54 As a paradigm loses its effectiveness,
or rather accuracy in reflecting reality, it is replaced by a new paradigm that better
captures the developing state of affairs. Kuhn contributes that where an existing
paradigm can no longer make sense of the current landscape, ‘[t]he decision to
reject one paradigm is always simultaneously the decision to accept another’.55
This book suggests that within ICL, following the establishment of the ICC
and the winding down of the ad-hoc tribunals, the old paradigm of unilateralism
is replaced with the new paradigm of sovereignty and state consent, or rather,
multilateralism. This paradigmatic shift captures the struggling evolution of ICL
from its post-war foundations to the democratic and communitarian spirit of
the ICC Statute. Mégret emphasises its significance as being perhaps the closest
attempt at overturning the Westphalian system; consenting sovereigns have col-
lectively established a stateless court capable of adjudicating through sovereign
barriers, and have agreed to accept its jurisdiction.56 Slaughter and Burke-White
poignantly capture this moment as the Treaty of Westphalia giving way to the
Treaty of Rome.57 The ICC is further distinguished by its unique timeline. In
Bosco’s view, the ICC project was attempted and perhaps could only have been
actualised in the specific period between the fall of the Soviet Union in 1991 and
September 11 attacks in 2001. He explains: ‘for that brief period, the security and
sovereignty concerns of certain major powers were reduced enough for several of
them to acquiesce to the court’.58 The Court, according to Schiff, is essentially an
‘amalgamation of normative commitments, legal understandings, political inter-
ests, diplomatic bargains, and organisation dynamics’.59 In these ways, it is clear to
see its ontological differences from its predecessors; the ICC is at its heart multi-
lateral, and its operation is made entirely dependent on voluntary state consent.
Yet, the significance of this paradigmatic shift has largely been ignored for
the conceptual continuation of global criminal justice initiatives originating from

54 Joel Trachtman, ‘The Crisis of International Law’ (2011) 44 Case W Res J Int’l L 407, 408.
55 Thomas Kuhn, Structure of Scientific Revolutions (UCP 1996) 77.
56 Frederic Mégret, ‘Three Dangers for the International Criminal Court: A Critical Look at a
Consensual Project’ (2001) FYIL 193.
57 Slaughter and Burke-White (n8) 331.
58 Bosco (n15) 72.
59 Benjamin Schiff, Building the International Criminal Court (CUP 2008) 3.
 Pluralism in international criminal law 29
Nuremberg. This thinking has facilitated many trappings of the old paradigm
spilling into the new, which has created specific difficulties for the ICC. The
powerful rhetoric of fighting impunity internationally continues to obfuscate the
fact that ICL still reflects only the legal and cultural heritage of the West. In
a related commentary about international criminal procedures, Fry notes that
while they were predominantly grounded in common and civil law, they have
since transformed into a sui generis system.60 This is an interesting perspective
because accepting ICL as a sui generis body of law stifles necessary questions on
the significance and consequences of its historically limited origins. Viewing ICL
in this way does not, and should not, take concerns away from its exclusively
Western foundations from the unilateral projects of military victors.
This new paradigm of multilateralism was not without resistance. It faced sig-
nificant backlash from powerful states who wished to maintain the status quo.
In 1989, 16 Caribbean and Latin American states represented by Trinidad and
Tobago requested the UN Secretary-General to consider establishing an inter-
national court that could address drug trafficking concerns in the region.61
International judicial solutions were sought to tackle transnational crimes that
could not be adequately addressed by individual domestic measures. The wide
range of what could constitute an international crime, when compared to the
limited scope of the finalised ICC Statute, underlined the concessions necessary
to achieve consensus within a treaty framework. The United Nations General
Assembly (‘UNGA’) discussed the potential establishment of an international
court that not only adjudicate crimes ex post facto, but also deter future crimes
with its permanent existence.62 There were clear desires to construct a system of
global criminal justice without relying on the political calculations and retroactiv-
ity of the UNSC. The concept of a permanent international judiciary, however,
conflicted with the supreme authority of the UNSC.
The entire ICC project could have been borne from within the existing UNSC
framework, but the irreconcilable issue was that unlike other institutions, inde-
pendence, impartiality, and democratic legitimacy were central to this court’s
identity. Although its predecessors would have made similar claims, these core
concepts were unyieldingly demanded by the large number of states involved in
the creation of the ICC. Subjecting the Court to control, influence, or power
privileges would have defeated the purpose of enshrining those tenets in a general
and permanent international criminal court. This independence and autonomy
directly undermined the de facto immunity and control traditionally enjoyed by

60 Elinor Fry, The Nature of International Crimes and Evidentiary Challenges: Preserving
Quality While Managing Quality’ in Van Sliedregt and Vasiliev (n4) 251; see also John Jack-
son and Sarah Summers, The Internationalisation of Criminal Evidence: Beyond the Common
Law and Civil Law Traditions (CUP 2012).
61 To further enforce laws based on the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances (adopted 20 December 1988, entered into
force 11 November 1990) 1019 UNTS 175.
62 UNGA Res 44/39 (4 December 1989) UN Doc A/RES/44/39.
30 Pluralism in international criminal law
the permanent members of the UNSC. This new oversight would jeopardise their
international activities; the US attempted to absorb this movement by empha-
sising the thinly veiled necessity to operate within ‘political realities’ to avoid
becoming ineffective and irrelevant.63 Political realities alluded to the UN inter-
national legal order in general, and the unilateral dynamics of the old paradigm in
specific. Put differently, international adjudicatory mechanisms had to be associ-
ated with and sanctioned by the UNSC in some form. This was visible in how
the Clinton Administration of the US called for ‘nations around the world who
value freedom and tolerance [to] establish a permanent international court to
prosecute, with the support of the United Nations Security Council, serious viola-
tions of international law’.64
This confrontation between the necessary deference to the international legal
order and the equally necessary preservation of institutional independence and
impartiality formed the central lines of contention at the ICC negotiations in
Rome. A draft statute was prepared by the International Law Commission (‘ILC’)
in 1994, which was later presented at the Rome Conference in July 1998.65
Negotiations debated the specific language, nuance, and connotations over
1,700 varying brackets and phrasing. The ‘like-minded’ group of medium-sized
states emerged to adamantly resist any delegation of power to the permanent five
members of the UNSC (‘P5’).66 New Zealand diplomat Roger Clark recalled the
atmosphere in Rome as:

although nobody ever articulated it, it was that there was a bit of a re-run of
the 1945 negotiations in San Francisco [on the creation of the UNSC] . . .
and the feeling was that the large guys weren’t going to get away with it this
time. The smaller people had a better bargaining position at this state and the
numbers were much bigger and there were people with more clout.67

The P5 had repeatedly demanded privileges like greater control of proceedings

and prosecutorial selectivity as the price of successfully operating within the mod-
ern geopolitical landscape. The Court was to seek preliminary UNSC approval
before acting, effectively transforming it as the judicial arm of the UNSC. Both
direct and indirect demands were rejected, as there were no desires to recon-
stitute the ad-hoc tribunals on a permanent basis.68 According to Voeten, the

63 ‘US Mission to the UN: Agenda Item 142: Establishment of an International Criminal
Court’ (News Release 182, 1 November 1995) <www.state.gov/documents/organiza
tion/65827.pdf> accessed 30 February 2015.
64 David Scheffer, All the Missing Souls (PUP 2013) 177–178 (emphasis added).
65 ‘Draft Statute for An International Criminal Court’ (ILC, 1994), http://legal.un.org/ilc/
texts/instruments/english/draft%20articles/7_4_1994.pdf> accessed 1 March 2015.
66 Bosco (n15) 45.
67 ibid Author interview with R. Clark, 41.
68 World Federalist Movement, ‘Views of the World Federalist Movement on the Establish-
ment of a Permanent International Criminal Court’ (News Release, 25 March 1996) <www.
iccnow.org/documents/1PrepCmtViewsonICCWFM.pdf> accessed 1 March 2015.
Another random document with
no related content on Scribd:
 “Besides,” he was saying, “she hasn’t proper respect for me ... her father.
Sometimes I think it’s the ideas she got from you and from going abroad to
school.”
“What a nasty thing to say! But if you want the truth, I think it’s because
you’ve never been a very good father. Sometimes I’ve thought you never
wanted children. You’ve never paid much attention to them ... not even to
Jack ... while he was alive. It wasn’t ever as if they were our children.
You’ve always left them to me ... alone.”
The thin neck stiffened a little and he said, “There are reasons for that.
I’m a busy man.... I’ve given most of my time, not to making money, but to
doing things to better the world in some way. If I’ve neglected my children
it’s been for a good reason ... few men have as much on their minds. And
there’s been the book to take all my energies. You’re being unjust, Olivia.
You never could see me as I am.”
“Perhaps,” said Olivia. (She wanted to say, “What difference does the
book make to any one in the world? Who cares whether it is written or
not?”) She knew that she must keep up her deceit, so she said, “You needn’t
worry, because Sabine is going away to-morrow and Jean will go with her.”
She sighed. “After that your life won’t be disturbed any longer. Nothing in
the least unusual is likely to happen.”
“And there’s this other thing,” he said, “this disloyalty of yours to me
and to all the family.”
Stiffening slightly, she asked, “What can you mean by that?”
“You know what I mean.”
She saw that he was putting himself in the position of a wronged
husband, assuming a martyrdom of the sort which Aunt Cassie practised so
effectively. He meant to be a patient, well-meaning husband and to place
her in the position of a shameful woman; and slowly, with a slow, heavy
anger, she resolved to circumvent his trick.
“I think, Anson, that you’re talking nonsense. I haven’t been disloyal to
any one. Your father will tell you that.”
“My father was always weak where women are concerned, and now he’s
beginning to grow childish. He’s so old that he’s beginning to forgive and
condone anything.” And then after a silence he said, “This O’Hara. I’m not
such a fool as you think, Olivia.”
 For a long time neither of them said anything, and in the end it was
Olivia who spoke, striking straight into the heart of the question. She said,
“Anson, would you consider letting me divorce you?”
The effect upon him was alarming. His face turned gray, and the long,
thin, oversensitive hands began to tremble. She saw that she had touched
him on the rawest of places, upon his immense sense of pride and dignity. It
would be unbearable for him to believe that she would want to be rid of him
in order to go to another man, especially to a man whom he professed to
hold in contempt, a man who had the qualities which he himself did not
possess. He could only see the request as a humiliation of his own precious
dignity.
He managed to grin, trying to turn the request to mockery, and said,
“Have you lost your mind?”
“No, Anson, not for a moment. What I ask is a simple thing. It has been
done before.”
He did not answer her at once, and began to move about the room in the
deepest agitation, a strange figure curiously out of place in the midst of
Horace Pentland’s exotic, beautiful pictures and chairs and bibelots—as
wrong in such a setting as he had been right a month or two earlier among
the museum of Pentland family relics.
“No,” he said again and again. “What you ask is preposterous! To-
morrow when you are less tired you will see how ridiculous it is. No ... I
couldn’t think of such a thing!”
She made an effort to speak quietly. “Is it because you don’t want to put
yourself in such a position?”
“It has nothing to do with that. Why should you want a divorce? We are
well off, content, comfortable, happy....”
She interrupted him, asking, “Are we?”
“What is it you expect, Olivia ... to live always in a sort of romantic
glow? We’re happier than most.”
“No,” she said slowly. “I don’t think happiness has ever meant much to
you, Anson. Perhaps you’re above such things as happiness and
unhappiness. Perhaps you’re more fortunate than most of us. I doubt if you
have ever known happiness or unhappiness, for that matter. You’ve been
uncomfortable when people annoyed you and got in your way, but ... that’s
all. Nothing more than that. Happiness ... I mean it in the sensible way ...
has sometimes to do with delight in living, and I don’t think you’ve ever
known that, even for a moment.”
He turned toward her saying, “I’ve been an honest, God-fearing,
conscientious man, and I think you’re talking nonsense!”
“No, not for a moment.... Heaven knows I ought to know the truth of
what I’ve been saying.”
Again they reached an impasse in the conversation and again they both
remained silent, disturbed perhaps and uneasy in the consciousness that
between them they had destroyed something which could never be restored;
and yet with Olivia there was a cold, sustained sense of balance which came
to her miraculously at such times. She felt, too, that she stood with her back
against a wall, fighting. At last she said, “I would even let you divorce me
—if that would be easier for you. I don’t mind putting myself in the
wrong.”
Again he began to tremble. “Are you trying to tell me that....”
“I’m not telling you anything. There hasn’t been anything at all ... but ...
but I would give you grounds if you would agree.”
He turned away from her in disgust. “That is even more impossible.... A
gentleman never divorces his wife.”
“Let’s leave the gentlemen out of it, Anson,” she said. “I’m weary of
hearing what gentlemen do and do not do. I want you to act as yourself, as
Anson Pentland, and not as you think you ought to act. Let’s be honest. You
know you married me only because you had to marry some one ... and I ... I
wasn’t actually disreputable, even, as you remind me, if my father was
shanty Irish. And ... let’s be just too. I married you because I was alone and
frightened and wanted to escape a horrible life with Aunt Alice.... I wanted
a home. That was it, wasn’t it? We are both guilty, but that doesn’t change
the reality in the least. No, I fancy you practised loving me through a sense
of duty. You tried it as long as you could and you hated it always. Oh, I’ve
known what was going on. I’ve been learning ever since I came to
Pentlands for the first time.”
He was regarding her now with a fixed expression of horrid fascination;
he was perhaps even dazed at the sound of her voice, slowly, resolutely,
tearing aside all the veils of pretense which had made their life possible for
so long. He kept mumbling, “How can you talk this way? How can you say
such things?”
Slowly, terribly, she went on and on: “We’re both guilty ... and it’s been
a failure, from the very start. I’ve tried to do my best and perhaps
sometimes I’ve failed. I’ve tried to be a good mother ... and now that Sybil
is grown and Jack ... is dead, I want a chance at freedom. I’m still young
enough to want to live a little before it is too late.”
Between his teeth he said, “Don’t be a fool, Olivia.... You’re forty years
old....”
“You needn’t remind me of that. To-morrow I shall be forty. I know it ...
bitterly. But my being forty makes no difference to you. To you it would be
all the same if I were seventy. But to me it makes a difference ... a great
difference.” She waited a moment, and then said, “That’s the truth, Anson;
and it’s the truth that interests me to-night. Let me be free, Anson.... Let me
go while being free still means something.”
Perhaps if she had thrown herself at his feet in the attitude of a wretched,
shameful woman, if she had made him feel strong and noble and heroic, she
would have won; but it was a thing she could not do. She could only go on
being coldly reasonable.
“And you would give up all this?” he was saying. “You’d leave
Pentlands and all it stands for to marry this cheap Irishman ... a nobody, the
son perhaps of an immigrant dock-laborer.”
“He is the son of a dock-laborer,” she answered quietly. “And his mother
was a housemaid. He’s told me so himself. And as to all this.... Why,
Anson, it doesn’t mean anything to me ... nothing at all that I can’t give up,
nothing which means very much. I’m fond of your father, Anson, and I’m
fond of you when you are yourself and not talking about what a gentleman
would do. But I’d give it all up ... everything ... for the sake of this other
thing.”
For a moment his lips moved silently and in agitation, as if it were
impossible for him to answer things so preposterous as those his wife had
just spoken. At last he was able to say, “I think you must have lost your
mind, Olivia ... to even think of asking such a thing of me. You’ve lived
here long enough to know how impossible it is. Some of us must make a
stand in a community. There has never been a scandal, or even a divorce, in
the Pentland family ... never. We’ve come to stand for something. Three
hundred years of clean, moral living can’t be dashed aside so easily....
We’re in a position where others look up to us. Can’t you see that? Can’t
you understand such a responsibility?”
For a moment she had a terrible, dizzy, intoxicating sense of power, of
knowing that she held the means of destroying him and all this whited
structure of pride and respectability. She had only to begin by saying,
“There was Savina Pentland and her lover....” The moment passed quickly
and at once she knew that it was a thing she could not do. Instead, she
murmured, “Ah, Anson, do you think the world really looks at us at all? Do
you think it really cares what we do or don’t do? You can’t be as blind as
that.”
“I’m not blind ... only there’s such a thing as honor and tradition. We
stand for something....”
She interrupted him. “For what?”
“For decency, for a glorious past, for stability ... for endless things ... all
the things which count in a civilized community.”
He really believed what he was saying; she knew that he must have
believed it to have written all those thousands of dull, laborious words in
glorification of the past.
He went on. “No, what you ask is impossible. You knew it before you
asked.... And it would be a kindness to me if you never mentioned it again.”
He was still pale, but he had gained control of himself and his hands no
longer trembled; as he talked, as his sense of virtue mounted, he even grew
eloquent, and his voice took on a shade of that unction which had always
colored the voice of the Apostle to the Genteel and made of him a
celebrated and fashionable cleric. Perhaps for the first time since his
childhood, since the days when the red-haired little Sabine had mocked his
curls and velvet suits, he felt himself a strong and powerful person. There
was a kind of fierce intoxication in the knowledge of his power over Olivia.
In his virtuous ardor he seemed for a moment to become a positive, almost
admirable person.
At length she said quietly, “And what if I should simply go away ...
without bothering about a divorce?”
The remark shattered all his confidence once more; and she knew that
she had struck at the weakest point in all his defense—the fear of a scandal.
“You wouldn’t do that!” he cried. “You couldn’t—you couldn’t behave like
a common prostitute!”
“Loving one man is not behaving like a common prostitute.... I never
loved any other.”
“You couldn’t bring such a disgrace on Sybil, even if you don’t care for
the rest of us.”
(“He knew, then, that I couldn’t do such a thing, that I haven’t the
courage. He knows that I’ve lived too long in this world.”) Aloud she said,
“You don’t know me, Anson.... In all these years you’ve never known me at
all.”
“Besides,” he added quickly, “he wouldn’t do such a thing. Such a
climber isn’t likely to throw over his whole career by running away with a
woman. You’d find out if you asked him.”
“But he is willing. He’s already told me so. Perhaps you can’t understand
such a thing.” When he did not answer, she said ironically, “Besides, I don’t
think a gentleman would talk as you are talking. No, Anson.... I don’t think
you know what the world is. You’ve lived here always, shut up in your own
little corner.” Rising, she sighed and murmured, “But there’s no use in talk.
I am going to bed.... I suppose we must struggle on as best we can ... but
there are times ... times like to-night when you make it hard for me to bear
it. Some day ... who knows ... there’s nothing any longer to keep me....”
She went away without troubling to finish what she had meant to say,
lost again in an overwhelming sense of the futility of everything. She felt,
she thought, like an idiot standing in the middle of an empty field, making
gestures.
 CHAPTER X

Toward morning the still, breathless heat broke without warning into a
fantastic storm which filled all the sky with blinding light and enveloped
the whole countryside in a wild uproar of wind and thunder, leaving the
dawn to reveal fields torn and ravaged and strewn with broken branches,
and the bright garden bruised and battered by hail.
At breakfast Anson appeared neat and shaven and smooth, as though
there had been no struggle a few hours before in the drawing-room, as if the
thing had made no impression upon the smooth surface which he turned
toward the world. Olivia poured his coffee quietly and permitted him to kiss
her as he had done every day for twenty years—a strange, cold, absent-
minded kiss—and stood in the doorway to watch him drive off to the train.
Nothing had changed; it seemed to her that life at Pentlands had become
incapable of any change.
And as she turned from the door Peters summoned her to the telephone
to receive the telegram from Jean and Sybil; they had been married at seven
in Hartford.
She set out at once to find John Pentland and after a search she came
upon him in the stable-yard talking with Higgins. The strange pair stood by
the side of the red mare, who watched them with her small, vicious red
eyes; they were talking in that curious intimate way which descended upon
them at the mention of horses, and as she approached she was struck, as she
always was, by the fiery beauty of the animal, the pride of her lean head,
the trembling of the fine nostrils as she breathed, the savagery of her eye.
She was a strange, half-evil, beautiful beast. Olivia heard Higgins saying
that it was no use trying to breed her ... an animal like that, who kicked and
screamed and bit at the very sight of another horse....
Higgins saw her first and, touching his cap, bade her good-morning, and
as the old man turned, she said, “I’ve news for you, Mr. Pentland.”
A shrewd, queer look came into his eyes and he asked, “Is it about
Sybil?”
 “Yes.... It’s done.”
She saw that Higgins was mystified, and she was moved by a desire to
tell him. Higgins ought to know certainly among the first. And she added,
“It’s about Miss Sybil. She married young Mr. de Cyon this morning in
Hartford.”
The news had a magical effect on the little groom; his ugly, shriveled
face expanded into a broad grin and he slapped his thigh in his enthusiasm.
“That’s grand, Ma’am.... I don’t mind telling you I was for it all along. She
couldn’t have done better ... nor him either.”
Again moved by impulse, she said, “So you think it’s a good thing?”
“It’s grand, Ma’am. He’s one in a million. He’s the only one I know who
was good enough. I was afraid she was going to throw herself away on Mr.
O’Hara.... But she ought to have a younger man.”
She turned away from him, pleased and relieved from the anxiety which
had never really left her since the moment they drove off into the darkness.
She kept thinking, “Higgins is always right about people. He has a second
sight.” Somehow, of them all, she trusted him most as a judge.
John Pentland led her away, out of range of Higgins’ curiosity, along the
hedge that bordered the gardens. The news seemed to affect him strangely,
for he had turned pale, and for a long time he simply stood looking over the
hedge in silence. At last he asked, “When did they do it?”
“Last night.... She went for a drive with him and they didn’t come back.”
“I hope we’ve been right ...” he said. “I hope we haven’t connived at a
foolish thing.”
“No.... I’m sure we haven’t.”
Something in the brilliance of the sunlight, in the certainty of Sybil’s
escape and happiness, in the freshness of the air touched after the storm by
the first faint feel of autumn, filled her with a sense of giddiness, so that she
forgot her own troubles; she forgot, even, that this was her fortieth birthday.
“Did they go in Sabine’s motor?” he asked.
“Yes.”
Grinning suddenly, he said, “She thought perhaps that she was doing us
a bad turn.”
“No, she knew that I approved. She did think of it first. She did propose
it....”
 When he spoke again there was a faint hint of bitterness in his voice.
“I’m sure she did. I only hope she’ll stop her mischief with this. In any
case, she’s had a victory over Cassie ... and that’s what she wanted, more
than anything....” He turned toward her sharply, with an air of anxiety. “I
suppose he’ll take her away with him?”
“Yes. They’re going to Paris first and then to the Argentine.”
Suddenly he touched her shoulder with the odd, shy gesture of affection.
“It’ll be hard for you, Olivia dear ... without her.”
The sudden action brought a lump into her throat, and yet she did not
want to be pitied. She hated pity, because it implied weakness on her part.
“Oh,” she said quickly, “they’ll come back from time to time.... I think
that some day they may come back here to live.”
“Yes.... Pentlands will belong to them one day.”
And then for the first time she remembered that there was something
which she had to tell him, something which had come to seem almost a
confession. She must tell him now, especially since Jean would one day
own all of Pentlands and all the fortune.
“There’s something I didn’t tell you before,” she began. “It’s something
which I kept to myself because I wanted Sybil to have her happiness ... in
spite of everything.”
He interrupted her, saying, “I know what it is.”
“You couldn’t know what I mean.”
“Yes; the boy told me himself. I went to him to talk about Sybil because
I wanted to make sure of him ... and after a time he told me. It was an
honorable thing for him to have done. He needn’t have told. Sabine would
never have told us ... never until it was too late.”
The speech left her feeling weak and disconcerted, for she had expected
anger from him and disapproval. She had been fearful that he might treat
her silence as a disloyalty to him, that it might in the end shatter the long,
trusting relationship between them.
“The boy couldn’t help it,” he was saying. “It’s a thing one can’t
properly explain. But he’s a nice boy ... and Sybil was so set on him. I think
she has a good, sensible head on her young shoulders.” Sighing and turning
toward her again, he added, “I wouldn’t speak of it to the others ... not even
to Anson. They may never know, and if they don’t what they don’t know
won’t hurt them.”
The mystery of him, it seemed, grew deeper and deeper each time they
talked thus, intimately, perhaps because there were in the old man depths
which she had never believed possible. Perhaps, deep down beneath all the
fierce reticence of his nature, there lay a humanity far greater than any she
had ever encountered. She thought, “And I have always believed him hard
and cold and disapproving.” She was beginning to fathom the great strength
that lay in his fierce isolation, the strength of a man who had always been
alone.
“And you, Olivia?” he asked presently. “Are you happy?”
“Yes.... At least, I’m happy this morning ... on account of Sybil and
Jean.”
“That’s right,” he said with a gentle sadness. “That’s right. They’ve done
what you and I were never able to do, Olivia. They’ll have what we’ve
never had and never can have because it’s too late. And we’ve helped them
to gain it.... That’s something. I merely wanted you to know that I
understood.” And then, “We’d better go and tell the others. The devil will
be to pay when they hear.”
She would have gone away then, but an odd thought occurred to her, a
hope, feeble enough, but one which might give him a little pleasure. She
was struck again by his way of speaking, as if he were very near to death or
already dead. He had the air of a very old and weary man.
She said, “There’s one thing I’ve wanted to ask you for a long time.” She
hesitated and then plunged. “It was about Savina Pentland. Did she ever
have more than one child?”
He looked at her sharply out of the bright black eyes and asked, “Why
do you want to know that?”
She tried to deceive him by shrugging her shoulders and saying casually,
“I don’t know ... I’ve become interested lately, perhaps on account of
Anson’s book.”
“You ... interested in the past, Olivia?”
“Yes.”
“Yes, she only had one child ... and then she was drowned when he was
only a year old. He was my grandfather.” Again he looked at her sharply.
“Olivia, you must tell me the truth. Why did you ask me that question?”
Again she hesitated, saying, “I don’t know ... it seemed to me....”
“Did you find something? Did she,” he asked, making the gesture toward
the north wing, “did she tell you anything?”
She understood then that he, marvelous old man, must even know about
the letters. “Yes,” she said in a low voice, “I found something ... in the
attic.”
He sighed and looked away again, across the wet meadows. “So you
know, too.... She found them first, and hid them away again. She wouldn’t
give them to me because she hated me ... from our wedding-night. I’ve told
you about that. And then she couldn’t remember where she’d hid them ...
poor thing. But she told me about them. At times she used to taunt me by
saying that I wasn’t a Pentland at all. I think the thing made her mind darker
than it was before. She had some terrible idea about the sin in my family for
which she must atone....”
“It’s true,” said Olivia softly. “There’s no doubt of it. It was written by
Toby Cane himself ... in his own handwriting. I’ve compared it with the
letters Anson has of his.” After a moment she asked, “And you ... you’ve
known it always?”
“Always,” he said sadly. “It explains many things.... Sometimes I think
that those of us who have lived since have had to atone for their sin. It’s all
worked out in a harsh way, when you come to think of it....”
She guessed what it was he meant. She saw again that he believed in
such a thing as sin, that the belief in it was rooted deeply in his whole
being.
“Have you got the letters, Olivia?” he asked.
“No ... I burned them ... last night ... because I was afraid of them. I was
afraid that I might do something shameful with them. And if they were
burned, no one would believe such a preposterous story and there wouldn’t
be any proof. I was afraid, too,” she added softly, “of what was in them ...
not what was written there, so much as the way it was written.”
He took her hand and with the oddest, most awkward gesture, kissed it
gently. “You were right, Olivia dear,” he said. “It’s all they have ... the
others ... that belief in the past. We daren’t take that from them. The strong
daren’t oppress the weak. It would have been too cruel. It would have
destroyed the one thing into which Anson poured his whole life. You see,
Olivia, there are people ... people like you ... who have to be strong enough
to look out for the others. It’s a hard task ... and sometimes a cruel one. If it
weren’t for such people the world would fall apart and we’d see it for the
cruel, unbearable place it is. That’s why I’ve trusted everything to you.
That’s what I was trying to tell you the other night. You see, Olivia, I know
you ... I know there are things which people like us can’t do.... Perhaps it’s
because we’re weak or foolish—who knows? But it’s true. I knew that you
were the sort who would do just such a thing.”
Listening to him, she again felt all her determination slipping from her. It
was a strange sensation, as if he took possession of her, leaving her
powerless to act, prisoning her again in that terrible wall of rightness in
which he believed. The familiar sense of his strength frightened her,
because it seemed a force so irresistible. It was the strength of one who was
more than right; it was the strength of one who believed.
She had a fierce impulse to turn from him and to run swiftly, recklessly,
across the wet meadows toward Michael, leaving forever behind her the
placid, beautiful old house beneath the elms.
“There are some things,” he was saying, “which it is impossible to do ...
for people like us, Olivia. They are impossible because the mere act of
doing them would ruin us forever. They aren’t things which we can do
gracefully.”
And she knew again what it was that he meant, as she had known
vaguely while she stood alone in the darkness before the figures of Higgins
and Miss Egan emerged from the mist of the marshes.
“You had better go now and telephone to Anson. I fancy he’ll be badly
upset, but I shall put an end to that ... and Cassie, too. She had it all planned
for the Mannering boy.”
2

Anson was not to be reached all the morning at the office; he had gone,
so his secretary said, to a meeting of the Society of Guardians of Young
Working Girls without Homes and left express word that he was not to be
disturbed. But Aunt Cassie heard the news when she arrived on her morning
call at Pentlands. Olivia broke it to her as gently as possible, but as soon as
the old lady understood what had happened, she went to pieces badly. Her
eyes grew wild; she wept, and her hair became all disheveled. She took the
attitude that Sybil had been seduced and was now a woman lost beyond all
hope. She kept repeating between punctuations of profound sympathy for
Olivia in the hour of her trial, that such a thing had never happened in the
Pentland family; until Olivia, enveloped in the old, perilous calm, reminded
her of the elopement of Jared Pentland and Savina Dalgedo and bade her
abruptly to stop talking nonsense.
And then Aunt Cassie was deeply hurt by her tone, and Peters had to be
sent away for smelling-salts at the very moment that Sabine arrived,
grinning and triumphant. It was Sabine who helped administer the smelling-
salts with the grim air of administering burning coals. When the old lady
grew a little more calm she fell again to saying over and over again, “Poor
Sybil.... My poor, innocent little Sybil ... that this should have happened to
her!”
To which Olivia replied at last, “Jean is a fine young man. I’m sure she
couldn’t have done better.” And then, to soften a little Aunt Cassie’s
anguish, she said, “And he’s very rich, Aunt Cassie ... a great deal richer
than many a husband she might have found here.”
The information had an even better effect than the smelling-salts, so that
the old lady became calm enough to take an interest in the details and asked
where they had found a motor to go away in.
“It was mine,” said Sabine dryly. “I loaned it to them.”
The result of this statement was all that Sabine could have desired. The
old lady sat bolt upright, all bristling, and cried, with an air of suffocation,
“Oh, you viper! Why God should have sent me such a trial, I don’t know.
You’ve always wished us evil and now I suppose you’re content! May God
have mercy on your malicious soul!” And breaking into fresh sobs, she
began all over again, “My poor, innocent little Sybil.... What will people
say? What will they think has been going on!”
“Don’t be evil-minded, Aunt Cassie,” said Sabine sharply; and then in a
calmer voice, “It will be hard on me.... I won’t be able to go to Newport
until they come back with the motor.”
“You!... You!...” began Aunt Cassie, and then fell back, a broken
woman.
“I suppose,” continued Sabine ruthlessly, “that we ought to tell the
Mannering boy.”
 “Yes,” cried Aunt Cassie, reviving again, “Yes! There’s the boy she
ought to have married....”
“And Mrs. Soames,” said Sabine. “She’ll be pleased at the news.”
Olivia spoke for the first time in nearly half an hour. “It’s no use. Mr.
Pentland has been over to see her, but she didn’t understand what it was he
wanted to tell her. She was in a daze ... only half-conscious ... and they
think she may not recover this time.”
In a whisper, lost in the greater agitation of Aunt Cassie’s sobs, she said
to Sabine, “It’s like the end of everything for him. I don’t know what he’ll
do.”

The confusion of the day seemed to increase rather than to die away.
Aunt Cassie was asked to stay to lunch, but she said it was impossible to
consider swallowing even a crust of bread. “It would choke me!” she cried
melodramatically.
“It is an excellent lunch,” urged Olivia.
“No ... no ... don’t ask me!”
But, unwilling to quit the scene of action, she lay on Horace Pentland’s
Regence sofa and regained her strength a little by taking a nap while the
others ate.
At last Anson called, and when the news was told him, the telephone
echoed with his threats. He would, he said, hire a motor (an extravagance
by which to gage the profundity of his agitation) and come down at once.
And then, almost immediately, Michael telephoned. “I have just come
down,” he said, and asked Olivia to come riding with him. “I must talk to
you at once.”
She refused to ride, but consented to meet him half-way, at the pine
thicket where Higgins had discovered the foxcubs. “I can’t leave just now,”
she told him, “and I don’t think it’s best for you to come here at the
moment.”
For some reason, perhaps vaguely because she thought he might use the
knowledge as a weapon to break down her will, she said nothing of the
elopement. For in the confusion of the day, beneath all the uproar of scenes,
emotions and telephone-calls, she had been thinking, thinking, thinking, so
that in the end the uproar had made little impression upon her. She had
come to understand that John Pentland must have lived thus, year after year,
moving always in a secret life of his own, and presently she had come to the
conclusion that she must send Michael away once and for all.
As she moved across the meadow she noticed that the birches had begun
to turn yellow and that in the low ground along the river the meadows were
already painted gold and purple by masses of goldenrod and ironweed. With
each step she seemed to grow weaker and weaker, and as she drew near the
blue-black wall of pines she was seized by a violent trembling, as if the
sense of his presence were able somehow to reach out and engulf her even
before she saw him. She kept trying to think of the old man as he stood
beside her at the hedge, but something stronger than her will made her see
only Michael’s curly black head and blue eyes. She began even to pray ...
she (Olivia) who never prayed because the piety of Aunt Cassie and Anson
and the Apostle to the Genteel stood always in her way.
And then, looking up, she saw him standing half-hidden among the
lower pines, watching her. She began to run toward him, in terror lest her
knees should give way and let her fall before she reached the shelter of the
trees.
In the darkness of the thicket where the sun seldom penetrated, he put
his arms about her and kissed her in a way he had never done before, and
the action only increased her terror. She said nothing; she only wept quietly;
and at last, when she had gained control of herself, she struggled free and
said, “Don’t, Michael ... please don’t ... please.”
They sat on a fallen log and, still holding her hand, he asked, “What is
it? What has happened?”
“Nothing.... I’m just tired.”
“Are you willing to come away with me? Now?” And in a low, warm
voice, he added, “I’ll never let you be tired again ... never.”
She did not answer him, because it seemed to her that what she had to
tell him made all her actions in the past seem inexplicable and cheap. She
was filled with shame, and tried to put off the moment when she must
speak.
“I haven’t been down in three days,” he was saying, “because there’s
been trouble in Boston which made it impossible. I’ve only slept an hour or
two a night. They’ve been trying to do me in ... some of the men I always
trusted. They’ve been double-crossing me all along and I had to stay to
fight them.”
He told her a long and complicated story of treachery, of money having
been passed among men whom he had known and trusted always. He was
sad and yet defiant, too, and filled with a desire to fight the thing to an end.
She failed to understand the story; indeed she did not even hear much of it:
she only knew that he was telling her everything, pouring out all his sadness
and trouble to her as if she were the one person in all the world to whom he
could tell such things.
And when he had finished he waited for a moment and then said, “And
now I’m willing to chuck the whole dirty business and quit ... to tell them
all to go to hell.”
Quickly she answered, “No, you mustn’t do that. You can’t do that. A
man like you, Michael, daren’t do such a thing....” For she knew that
without a battle life would mean nothing to him.
“No ... I mean it. I’m ready to quit. I want you to go with me.”
She thought, “He says this ... and yet he stayed three days and nights in
Boston to fight!” She saw that he was not looking at her, but sitting with his
head in his hands; there was something broken, almost pitiful, in his
manner, and it occurred to her that perhaps for the first time he found all his
life in a hopeless tangle. She thought, “If I had never known him, this might
not have happened. He would have been able to fight without even thinking
of me.”
Aloud she said, “I can’t do it, Michael.... It’s no use. I can’t.”
He looked up quickly, but before he could speak she placed her hand
over his lips, saying, “Wait, Michael, let me talk first. Let me say what I’ve
wanted to say for so long.... I’ve thought.... I’ve done nothing else but think
day and night for the past three days. And it’s no good, Michael.... It’s no
good. I’m forty years old to-day, and what can I give you that will make up
for all you will lose? Why should you give up everything for me? No, I’ve
nothing to offer. You can go back and fight and win. It’s what you like more
than anything in the world ... more than any woman ... even me.”
Again he tried to speak, but she silenced him. “Oh, I know it’s true ...
what I say. And if I had you at such a price, you’d only hate me in the end. I
couldn’t do it, Michael, because ... because in the end, with men like you
it’s work, it’s a career, which is first.... You couldn’t bear giving up. You
couldn’t bear failure.... And in the end that’s right, as it should be. It’s what
keeps the world going.”
He was watching her with a look of fascination in his eyes, and she knew
—she was certain of it—that he had never been so much in love with her
before; but she knew, too, from the shadow which crossed his face (it
seemed to her that he almost winced) and because she knew him so well,
that he recognized the truth of what she had said.
“It’s not true, Olivia.... You can’t go back on me now ... just when I need
you most.”
“I’d be betraying you, Michael, if I did the other thing. It’s not me you
need half so much as the other thing. Oh, I know that I’m right. What you
should have in the end is a young woman ... a woman who will help you. It
doesn’t matter very much whether you’re terribly in love with her or not ...
but a woman who can be your wife and bear your children and give dinner
parties and help make of you the famous man you’ve always meant to be.
You need some one who will help you to found a family, to fill your new
house with children ... some one who’ll help you and your children to take
the place of families like ours who are at the end of things. No, Michael ...
I’m right.... Look at me,” she commanded suddenly. “Look at me and you’ll
know that it’s not because I don’t love you.”
He was on his knees now, on the carpet of scented pine-needles, his arms
about her while she stroked the thick black hair with a kind of hysterical
intensity.
“You don’t know what you’re saying, Olivia. It’s not true! It’s not true!
I’d give up everything.... I don’t want the other thing. I’ll sell my farm and
go away from here forever with you.”
“Yes, Michael, you think that to-day, just now ... and to-morrow
everything will be changed. That’s one of the mean tricks Nature plays us.
It’s not so simple as that. We’re not like Higgins and ... the kitchen-maid ...
at least not in some ways.”
“Olivia ... Olivia, do you love me enough to....”
She knew what he meant to ask. She thought, “What does it matter?
Why should I not, when I love him so? I should be harming no one ... no
one but myself.”
And then, abruptly, through the mist of tears she saw through an opening
in the thicket a little procession crossing the meadows toward the big house
at Pentlands. She saw it with a terrible, intense clarity ... a little procession
of the gardener and his helper carrying between them on a shutter a figure
that lay limp and still, and following them came Higgins on foot, leading
his horse and moving with the awkward rolling gait which afflicted him
when his feet were on the ground. She knew who the still figure was. It was
John Pentland. The red mare had killed him at last. And she heard him
saying, “There are some things which people like us, Olivia, can’t do.”

What happened immediately afterward she was never able to remember

very clearly. She found herself joining the little procession; she knew that
Michael was with her, and that there could be no doubt of the tragedy....
John Pentland was dead, with his neck broken. He lay on the shutter, still
and peaceful, the bitter lines all melted from the grim, stern face, as he had
been when she came upon him in the library smelling of dogs and
woodsmoke and whisky. Only this time he had escaped for good....
And afterward she remembered telling Michael, as they stood alone in
the big white hall, that Sybil and Jean were married, and dismissing him by
saying, “Now, Michael, it is impossible. While he was living I might have
done it.... I might have gone away. But now it’s impossible. Don’t ask me.
Please leave me in peace.”
Standing there under the wanton gaze of Savina Pentland, she watched
him go away, quietly, perhaps because he understood that all she had said
was true.
3

In the tragedy the elopement became lost and forgotten. Doctors came
and went; even reporters put in an awkward appearance, eager for details of
the death and the marriage in the Pentland family, and somehow the
confusion brought peace to Olivia. They forgot her, save as one who
managed everything quietly; for they had need just then of some one who
did not break into wild spasms of grief or wander about helplessly. In the
presence of death, Anson forgot even his anger over the elopement, and late
in the afternoon Olivia saw him for the first time when he came to her
helplessly to ask, “The men have come to photograph the portraits. What
shall we do?”
 And she answered, “Send them away. We can photograph ancestors any
time. They’ll always be with us.”
Sabine volunteered to send word to Sybil and Jean. At such times all her
cold-blooded detachment made of her a person of great value, and Olivia
knew that she could be trusted to find them because she wanted her motor
again desperately. Remembering her promise to the old man, she went
across to see Mrs. Soames, but nothing came of it, for the old lady had
fallen into a state of complete unconsciousness. She would, they told
Olivia, probably die without ever knowing that John Pentland had gone
before her.
Aunt Cassie took up her throne in the darkened drawing-room and there,
amid the acrid smell of the first chrysanthemums of the autumn, she held a
red-eyed, snuffling court to receive the calls of all the countryside. Again
she seemed to rise for a time triumphant and strong, even overcoming her
weakness enough to go and come from the gazeboed house on foot, arriving
early and returning late. She insisted upon summoning Bishop Smallwood
to conduct the services, and discovered after much trouble that he was
attending a church conference in the West. In reply to her telegram she
received only an answer that it was impossible for him to return, even if
they delayed the funeral ... that in the rôle of prominent defender of the
Virgin Birth he could not leave the field at a moment when the power of his
party was threatened.
It seemed for a time that, as Sabine had hoped, the whole structure of the
family was falling about them in ruins.
As for Olivia, she would have been at peace save that three times within
two days notes came to her from Michael—notes which she sent back
unopened because she was afraid to read them; until at last she wrote on the
back of one, “There is nothing more to say. Leave me in peace.” And after
that there was only silence, which in a strange way seemed to her more
unbearable than the sight of his writing. She discovered that two persons
had witnessed the tragedy—Higgins, who had been riding with the old man,
and Sabine, who had been walking the river path—walking only because
Jean and Sybil had her motor. Higgins knew only that the mare had run off
and killed his master; but Sabine had a strangely different version, which
she recounted to Olivia as they sat in her room, the day after.
 “I saw them,” she said, “coming across the meadow.... Cousin John, with
Higgins following. And then, all at once, the mare seemed to be frightened
by something and began to run ... straight in a line for the gravel-pit. It was
a fascinating sight ... a horrible sight ... because I knew—I was certain—
what was going to happen. For a moment Cousin John seemed to fight with
her, and then all at once he leaned forward on her neck and let her go.
Higgins went after him; but it was no use trying to catch her.... One might
as well have tried to overtake a whirlwind. They seemed to fly across the
fields straight for the line of elders that hid the pit, and I knew all the while
that there was no saving them unless the mare turned. At the bushes the
mare jumped ... the prettiest jump I’ve ever seen a horse make, straight
above the bushes into the open air....”
For a moment Sabine’s face was lighted by a macabre enthusiasm. Her
voice wavered a little. “It was a horrible, beautiful sight. For a moment they
seemed almost to rise in the air as if the mare were flying, and then all at
once they fell ... into the bottom of the pit.”
Olivia was silent, and presently, as if she had been waiting for the
courage, Sabine continued in a low voice, “But there’s one thing I saw
beyond any doubt. At the edge of the pit the mare tried to turn. She would
have turned away, but Cousin John raised his crop and struck her savagely.
There was no doubt of it. He forced her over the elders....” Again after a
pause, “Higgins must have seen it, too. He followed them to the very edge
of the pit. I shall always see him there, sitting on his horse outlined against
the sky. He was looking down into the pit and for a moment the horse and
man together looked exactly like a centaur.... It was an extraordinary
impression.”
She remembered him thus, but she remembered him, too, as she had seen
him on the night of the ball, slipping away through the lilacs like a shadow.
Rising, she said, “Jean and Sybil will be back to-morrow, and then I’ll be
off for Newport. I thought you might want to know what Higgins and I
knew, Olivia.” For a moment she hesitated, looking out of the window
toward the sea. And at last she said, “He was a queer man. He was the last
of the great Puritans. There aren’t any more. None of the rest of us believe
anything. We only pretend....”
But Olivia scarcely heard her. She understood now why it was that the
old man had talked to her as if he were very near to death, and she thought,