International Criminal Law―A Counter-Hegemonic Project? 9462655502, 9789462655508

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International Criminal Justice Series

Volume 31

International Criminal Law— A Counter-Hegemonic Project?

Florian Jeßberger Leonie Steinl Kalika Mehta Editors

International Criminal Justice Series Volume 31

Series Editors Gerhard Werle, Berlin, Germany Moritz Vormbaum, Münster, Germany

The International Criminal Justice Series aims to create a platform for publications covering the entire field of international criminal justice. It, therefore, deals with issues relating, among others, to: – – – –

the work of international criminal courts and tribunals; transitional justice approaches in different countries; international anti-corruption and anti-money laundering initiatives; the history of international criminal law.

It is peer-reviewed and seeks to publish high-quality works emanating from excellent scholars. Editorial Office Prof. Dr. Moritz Vormbaum University of Münster Faculty of Law Bispinghof 24-25 48143 Münster, Germany [email protected]

Florian Jeßberger · Leonie Steinl · Kalika Mehta Editors

International Criminal Law—A Counter-Hegemonic Project?

Editors Florian Jeßberger Juristische Fakultät Humboldt-Universität zu Berlin Berlin, Germany

Leonie Steinl Juristische Fakultät Humboldt-Universität zu Berlin Berlin, Germany

Kalika Mehta Juristische Fakultät Humboldt-Universität zu Berlin Berlin, Germany

ISSN 2352-6718 ISSN 2352-6726 (electronic) International Criminal Justice Series ISBN 978-94-6265-550-8 ISBN 978-94-6265-551-5 (eBook) https://doi.org/10.1007/978-94-6265-551-5 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2023 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This t.m.c. asser press imprint is published by the registered company Springer-Verlag GmbH, DE, part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Preface

This volume brings together various perspectives on the counter-hegemonic potential of international criminal justice. It is in part based on a conference which was hosted by Humboldt-Universität zu Berlin’s Franz von Liszt Institute for International Criminal Justice and took place online in June 2021. The contributions to the conference were chosen from an open call for papers. Several of the papers presented at the conference were selected for publication in this edited volume which also contains a number of additional contributions solicited in order to complement the issues addressed in this book. The call for papers particularly encouraged scholars and practitioners from the Global South1 as well as early career scholars to submit an abstract. The collection attempts to highlight these perspectives as well as themes that have thus far received little to no attention in the scholarship on (critical approaches to) international criminal justice. This includes inter alia the engagement with international criminal justice in Ukraine or minorities in South Asia but also the hegemonic tendencies built into the institutional structure of the International Criminal Court. To this extent, this volume also mirrors what scholars, in particular younger scholars as well as practitioners from the Global South, deem topical issues of a critical scholarship in international criminal justice. We express our gratitude to those who have made this volume and the earlier held conference possible. Claudia Cardenas Aravena (Santiago de Chile), Valeria Vegh Weis (Buenos Aires, Konstanz), Stefan Gosepath (Berlin), John-Mark Iyi (Cape 1

We acknowledge that the term Global South in so far as it suggests a geographical North–South binary is problematic. In the call for papers, we, therefore, highlighted that we understood it to also include “spaces in the North that are characterized by exploitation, oppression and neocolonial relations, such as indigenous and black communities (and immigrant communities) in Western societies”, see Sajed A 2020, E-International Relations, From the Third World to the Global South, https://www.e-ir.info/2020/07/27/from-the-third-world-to-the-global-south/. Accessed May 18, 2022. Our selection criteria considered the place of contributor’s first university degree, instead of exclusively relying on their current affiliation, as a key indicator among other factors. However, we do recognize the inherent limitations of such a process and that it is not our place to ascribe the label of “Global South scholar or practitioner” to others. v

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Town), Miles Jackson (Oxford) and Wolfgang Kaleck (Berlin) formed part of a working group which advised us on the shaping of our research agenda and the selection of papers. Claudia and Miles also chaired a session while Valeria and John-Mark contributed chapters to this volume. We are indebted to Luca Hauffe who provided invaluable support in the compilation of this volume and was instrumental in the coordination and organization of the conference. Sarah Imani advised us on issues of Islamic law. Antonia Gillhaus and Antonia Vehrkamp helped with the copy editing of the manuscript. We are also grateful to the Berlin Center for Global Engagement in the Berlin University Alliance, for funding a larger research project, led by Stefan Gosepath and Florian Jeßberger, of which this volume and the aforementioned conference form part. Berlin, Germany January 2022

Florian Jeßberger Leonie Steinl Kalika Mehta

Contents

1

Hegemony and International Criminal Law—An Introduction . . . . Florian Jeßberger, Leonie Steinl and Kalika Mehta

Part I 2

Theoretical Engagements with (Counter-) Hegemonic Perspectives on International Criminal Law

Is International Criminal Justice the Handmaiden of the Contemporary Imperial Project? A TWAIL Perspective on Some Arenas of Contestations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . John-Mark Iyi

3

Violence in International Criminal Law and Beyond . . . . . . . . . . . . . . Anastasiya Kotova

4

A Marxist Analysis of International Criminal Law and Its Potential as a Counter-Hegemonic Project . . . . . . . . . . . . . . . . . . . . . . . Valeria Vegh Weis

Part II

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(Counter-) Hegemonic International Criminal Law in Practice: Case Studies

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Double Whammy: Targeted Minorities in South-Asian States . . . . . Ishita Chakrabarty and Guneet Kaur

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States of Criminality: International (Criminal) Law, Palestine, and the Sovereignty Trap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Michelle Burgis-Kasthala, Nahed Samour and Christine Schwöbel-Patel

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The Counter-Hegemonic Turn to ‘Entrepreneurial Justice’ in International Criminal Investigations and Prosecutions Relating to the Crimes Committed in Syria and Eastern Ukraine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Karolina Aksamitowska vii

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Contents

NGOs and the Legitimacy of International Criminal Justice: The Case of Uganda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Tonny Raymond Kirabira

Part III (Counter-) Hegemony at the International Criminal Court 9

The Global South and the Drafting of the Subject-Matter Jurisdiction of the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 Taxiarchis Fiskatoris

10 The ICC and Traditional Islamic Legal Scholarship: Analysing the War Crimes Against Civilians . . . . . . . . . . . . . . . . . . . . . 191 Fajri Matahati Muhammadin and Ahmad Sadzali 11 The ICC’s Role in Countering Patriarchal Claims in Reproductive Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Angie K. García Atehortúa 12 The Impacts of English-Language Hegemony on the ICC . . . . . . . . . 239 Leigh Swigart 13 Gender Imbalance at the ICC: The Continued Hegemonic Entrenchment of Male Privilege in International Criminal Law . . . 265 Angela Mudukuti

Editors and Contributors

About the Editors Florian Jeßberger is a Professor of Law at Humboldt-Universit¨at zu Berlin, Germany, where he holds the Chair in Criminal Law, Criminal Procedure, International Criminal Law, and Modern Legal History and serves as Director of the Franz von Liszt Institute for International Criminal Justice. His research centers on international and comparative criminal law and modern legal history. Leonie Steinl is a Postdoctoral Researcher and Lecturer in Law at HumboldtUniversit¨at zu Berlin, Germany, and Member of the Franz von Liszt Institute for International Criminal Justice. She holds an LL.M. from Columbia Law School, New York, USA, and a Dr. iur. from Universität Hamburg, Germany. Her research focuses on international and comparative criminal law and legal theory. Kalika Mehta is a Human Rights Lawyer and an Associate Researcher at the Franz von Liszt Institute for International Criminal Justice. She holds a Dr. iur. from Universität Hamburg, Germany, an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland, and a B.A. LL.B (Hons.) from Rajiv Gandhi National University of Law, Punjab, India. Her research centers on theoretical critiques and practice of international criminal law and human rights.

Contributors Karolina Aksamitowska Tallinn University, Tallinn, Estonia Michelle Burgis-Kasthala University of Edinburgh, Edinburgh, UK

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Ishita Chakrabarty Graduate Institute of International and Development Studies, Geneva, Switzerland; Quill Foundation, Delhi, India Taxiarchis Fiskatoris Philipps-Universität Marburg, Marburg, Germany Angie K. García Atehortúa Independent Lawyer, Bogotá, Colombia; International Criminal Court, The Hague, The Netherlands John-Mark Iyi African Centre for Transnational Criminal Justice, Faculty of Law, University of the Western Cape, Bellville, Cape Town, South Africa Guneet Kaur Humboldt-Universität zu Berlin, Berlin, Germany Tonny Raymond Kirabira Law Portsmouth, UK

Department,

University

of

Portsmouth,

Anastasiya Kotova Lund University, Lund, Sweden Angela Mudukuti Harare, Zimbabwe Fajri Matahati Muhammadin Department of International Law, Faculty of Law, Universitas Gadjah Mada, Yogyakarta, Indonesia Ahmad Sadzali Department of Constitutional Law, Faculty of Law, Universitas Islam Indonesia, Yogyakarta, Indonesia Nahed Samour Humboldt-Universität zu Berlin, Berlin, Germany Christine Schwöbel-Patel Warwick Law School, Warwick, UK Leigh Swigart International Center for Ethics, Justice and Public Life, Brandeis University, Waltham, MA, USA Valeria Vegh Weis Universität Konstanz Zukunftskolleg, Konstanz Universität, Konstanz, Germany

Chapter 1

Hegemony and International Criminal Law—An Introduction Florian Jeßberger, Leonie Steinl and Kalika Mehta

Abstract The chapter introduces the concept of the book and the various perspectives presented therein. While situating the notion of hegemony in the context of international criminal law, the chapter lays down the central question that runs as a common thread through all of the contributions and establishes the importance of addressing plural perspectives on hegemonic tendencies and counter-hegemonic capacities of international criminal law and its institutions. Keywords Hegemony · Counter-hegemony · International Criminal Law · ICC · Global Justice · International Criminal Justice ‘International Criminal Law—A Counter-Hegemonic Project?’ The question mark in the title of this book serves a dual function: It is not only the primary research question that each of the individual contributions in this book seeks to address but it also, in many ways, conveys the conclusion this collection seeks to present. The book takes stock of the plurality of claims around the institutions and practice of international criminal law in an attempt to nuance its perception and role in the existing scholarship. The research project that resulted in this collection began with this intentionally vague question: Can international criminal law be viewed as a ‘counter-hegemonic’ project? And if so, under what conditions? The concept of counter-hegemony was deliberately left open to facilitate engagement with multiple, diverging, perhaps even contradictory understandings of (counter-) hegemony and different critiques of international criminal law. ‘To counter’ in its most basic form is to challenge or to oppose. The act of countering, F. Jeßberger (B) · L. Steinl · K. Mehta Franz von Liszt Institute for International Criminal Justice, Humboldt-Universität zu Berlin, Berlin, Germany e-mail: [email protected] L. Steinl e-mail: [email protected] K. Mehta e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_1

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however, is fundamentally determined by that what is being challenged. While asking the question of the potential of international criminal law in countering hegemony, the primary subject of challenge is ‘hegemony’. Thus, the question of counter-hegemony essentially requires identifying ‘the hegemon’ and situating ‘hegemony’. Situating hegemony in a particular state, institution, race, class, or structure came with the risk of prompting and foretelling the discourse of an engagement that was intended to be all-inclusive (to the extent possible). From Antonio Gramsci1 to Balakrishnan Rajagopal,2 the scholarship on the question of hegemony across decades and centuries is marked by the situation of the hegemon predetermining the discourse.3 In trying to account for the success of fascism, Antonio Gramsci situated the hegemon in the Italian bourgeoisie, a social class which according to him could be confronted by an alternative class alliance which challenges the hegemonic class.4 In the more contemporary discourse around hegemony, scholars often locate the hegemon in the economic or political dominance of the United States of America.5 Such framing then leads to a search for another geographical centre to counter the hegemony of a sovereign state. Therefore, the decision of not identifying and situating the hegemon for the purpose of the present edited collection was an act of acknowledgment of the control that comes with the initiation of a dialogue while potentially marking its boundaries before it begins. The fundamental purpose of leaving the question of hegemony in the context of international criminal law unanswered was to highlight that within international criminal justice as a system, there are multiple forms that the hegemon may assume. As the existing scholarship suggests, the subject of criticism may range from ‘the law’ itself to a specified set of actors who yield influence on its practice.6 In that vein, the project remained open to claims of hegemony inherently stemming from the law, the penal elements of it, or the international aspects of the discipline. Alternatively, hegemony could have been situated in the form and language of substantive provisions of the law or the International Criminal Court (ICC) as an institution. Yet another possibility remained to confront the hegemon in economic, racial or gender-based structures that inform the logics of law-making as well as its practice and implementation. None of these questions are novel, in any sense of the word, particularly as it concerns international criminal law. Since its origins, international criminal law has been subject to challenge and critique inter alia on account of its understanding as 1

Gramsci’s fragmented prison notes are considered as the conception of the notion of hegemony. According to him, hegemony is an active process involving the production, reproduction, and mobilization of popular consent, which can be constructed by any ‘dominant group’ that takes hold of it and uses it. See Gramsci 1971. 2 Rajagopal 2003, 2006. 3 Vagts 2001; Alvarez 2003; Koskenniemi 2004. 4 Rajagopal 2006. 5 Byers and Nolte 2003; Cox 2001; Krisch 2005. 6 Schwöbel 2014; Baars 2016; Anghie 2005; Asaala 2017; Chimni 2018; Gathii 1998; Rajagopal 2000; Koskenniemi 2002, 2005; Dugard 2013.

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victor’s justice7 as well as its colonial legacy.8 In recent times, some governments, particularly from the African continent, have challenged international criminal law and in particular the ICC on the grounds of racialised selectivity and the perpetuation of double standards.9 This parallel development of the discipline and its critique can be explained by the manner in which the beginning of this century transformed the application and perception of public international law in general. On the one hand, the adoption of the ICC Statute signalled a reaffirmation of faith in international institutions and international law. On the other hand, the first decade of the century was marked by unilateral military interventions in the wake of the “war on terror” gesturing a defiance of the promises and obligations drawing from international law. Around the same time, some of the most critical schools of thought regarding international law also gained ground. For instance, Third World Approaches to International Law (TWAIL) scholars were locating the power in the hands of former colonial states and viewed international law with scepticism as a new tool in the exercise of imperial power.10 Moreover, Marxist traditions insist on viewing international law as deeply intertwined with the world economic order. They contend that the law is in constant mutual interaction with the economic interests of states and, thus, reflects the economic hierarchy and subordination.11 In both of these cases, it is the international, inter-state aspect of the international criminal justice system which is subject to challenge. A substantial critique also stems from the criminal justice aspect of the discipline, which engages with the shortcomings of the individualistic mode of criminal law when it comes to macro-criminality or the narrow conception of international criminal justice as retributive in nature.12 In addition, traditions of feminist theory and critical race theory highlight the concentration of power in the hands of certain sections of society whose influence within the international criminal justice system merits critique and confrontation. Each of these critiques stands on valid claims and offers crucial insights into international criminal law as a discipline—but what are their implications on international criminal law, its institutions and practice? Does that mean that international criminal justice lacks legitimacy13 and is, hence, pointless?14 Or is there a possibility of considering all these critiques and moving forward in the quest of a comprehensively informed new common ground? These questions form the common thread in the contributions of this collection. The chapters respectively deal with the potential of international criminal law in countering the hegemony of inter alia class, structure, the west, the post-colonial state, or the language. 7

Steinke 2012, pp. 8–37; see also Jeßberger 2022. Pal 1948. 9 Jalloh and Bantekas 2017. 10 Anghie 2005; Chimni 2018; Gathii 2011. 11 Gathii 2006; Marks 2008; Knox 2016. 12 Drumbl 2007, 123 et seq., Drumbl 2010; Nouwen and Werner 2015. 13 Kiyani 2015. 14 Damaska 2008. 8

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These contributions, when read collectively, foreground the dual nature of international criminal law as a double-edged sword, which can be a tool of the hegemon as well as a means to resist power. Given the nature of international criminal law and its purported goals of global justice and peace, those most affected by massive violations of human rights end up placing faith in its emancipatory potential.15 Despite acknowledging the critiques, the potential of the vocabulary of international criminal law in challenging power that enjoys impunity remains an important factor.16 The notions of jus cogens or universal jurisdiction over crimes against humanity are contested for their universalist claims and yet currently, arguments are made for adding new provisions on ecocide17 and colonial crimes18 to capture the nature of violence otherwise ignored or unaddressed. For scholars and practitioners across the geographical and political boundaries of North and South, this duality continues to pose a dilemma. On the one hand, the discipline is viewed as the product of a hegemonic exercise which in direct and indirect ways continues to perpetuate the inegalitarian structures of the legal order. On the other hand, the strategic importance it holds in today’s politics and the additional avenues of redress it offers to those directly affected are seen as evidence of its counter-hegemonic capacities. The diverse perspectives that form this book exemplify this as the central dilemma. The overlapping themes highlight the fact that contradictory claims on the hegemonic structures and counter-hegemonic potential of international criminal law as a project can co-exist without necessarily displacing each other. In that vein, the book intends to serve as a starting point for a discussion on the consequences of such complex critiques of the discipline: on its theory, substance, method, and practice. The selection of contributions was informed by the idea to include voices which remain largely absent from the “mainstream” international criminal law discourse and even the critical discourse. This guided the selection of authors as well as the themes and perspectives included in the book. As a result, the majority of the contributors are scholars and practitioners from the Global South. Further, the collection attempts to highlight themes that have thus far received little to no attention in the scholarship on international criminal justice, such as the engagement with international criminal justice in Ukraine or minorities in South-Asia but also the hegemonic tendencies built into the institutional structure of the ICC. The book is divided into three parts. Part I covers theoretical engagements with (counter-) hegemonic perspectives on international criminal law. In the first contribution (Chap. 2), entitled ‘Is International Criminal Justice the Handmaiden of the Contemporary Imperial Project? A TWAIL Perspective on Some Arenas of Contestations’, John-Mark Iyi further enunciates the claim that international criminal justice remains an essentially imperial ideal intolerant of a plurality

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See the contributions in Part II of this book. Anghie 2005, p. 318. 17 Higgins et al. 2012. 18 Bergsmo et al. 2020. 16

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of visions of justice. He identifies four arenas of contestations—the supposed universality of the legal norms of international criminal justice; the alleged inherent selectivity of international criminal justice in the prosecution of perpetrators; the categories of crimes; and the establishment of its foremost institutions for the enforcement of its norms—to demonstrate that international criminal justice has not shed its historical antecedents. By adopting TWAIL as an analytic framework to expose the manifest contradictions in the construction of international criminal justice, Iyi argues that it remains a tool in the service of hegemonic international law. In Chap. 3, Anastasiya Kotova examines ‘Violence in International Criminal Law and Beyond’. She argues that while violence is a central concept in international criminal law, it is constructed too narrowly when it covers only the direct physical violence. By building on a Gramscian understanding of hegemony and the role of law therein, Kotova suggests that international criminal law advances a certain understanding of violence, that simultaneously obscures and normalises types of violence that are beyond its gaze. The contribution thus examines the role of international criminal law in producing a hegemonic understanding of violence and the consequences of such an understanding. In Chap. 4 on ‘A Marxist Analysis of International Criminal Law and Its Potential as a Counter-Hegemonic Project’, Valeria Vegh Weis employs Marx and Engels’ theoretical and methodological contributions on the evolution of the legal frameworks on international criminal law. She reflects on the debate over its nature as a potential (counter-) hegemonic project by connecting the historical context, dominated by the bourgeois revolutions at the end of the 18th century, with the current status of international criminal law. She unpacks the tension between formal equality and material inequality existing in three layers, being the foundations, the drafting, and the enforcement of the law. The contribution also looks at possible paths to overcome the triple material inequality through a historical materialistic conception that would render the counter-hegemonic project a more plausible goal. Part II analyses what (counter-) hegemonic international criminal law looks like in practice by means of case studies. It begins with Ishita Chakrabarty and Guneet Kaur’s analysis in Chap. 5 entitled ‘Double Whammy: Targeted Minorities in South-Asian States’. They argue that international criminal law and TWAIL fail to address the needs for accountability and remedy of violently targeted minorities in South-Asia. The authors reflect on the selective, political manner of the institutionalization of international criminal law by examining prevalent power dynamics of the global political economy that shields powerful perpetrators in South-Asia. They further argue that second-generation TWAIL scholarship continues to be constricted by the inapt binary of first world versus third world, restricting its lens to interests of third world nation-states rather than the needs of their people, especially minorities. According to Chakrabarty and Kaur, TWAIL’s foundational goals therefore block effective engagement and articulation of minorities’ pleas for accountability and remedy in South-Asian countries, creating its own hegemonic narrative. Chapter 6 is co-authored by Michelle Burgis-Kasthala, Nahed Samour and Christine Schwöbel-Patel, who examine ‘States of Criminality: International (Criminal)

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Law, Palestine, and the Sovereignty Trap’. The authors ask how, and in which form, international law can serve as a tool for realising Palestine’s decolonial equality. They engage with international criminal law as well as public law to highlight the experiences of (denied) statehood in the respective legal frameworks, adopting a methodology of feminist praxis to explore the crucial role of historical factors that persist in shaping Palestine’s limited legal possibilities. While flagging the limits of liberal legalist projects, this contribution seeks to explore potential benefits for Palestinian liberation by adopting the framework of decolonial equality. Chapter 7, authored by Karolina Aksamitowska, is entitled ‘The CounterHegemonic Turn to ‘Entrepreneurial Justice’ in International Criminal Investigations and Prosecutions Relating to the Crimes Committed in Syria and Eastern Ukraine’. Aksamitowska argues that although the closure of the ad hoc tribunals and the inaction of the United Nations Security Council (UNSC) in the context of the atrocities committed in Syria and Eastern Ukraine might suggest an imminent decline of international criminal justice, criminal accountability is actually on the rise. Her contribution seeks to interpret the counter-hegemonic turn in international criminal law through the lens of the hegemony of the UNSC members, particularly Russia. She builds on the idea of ‘entrepreneurial justice’ in private criminal investigations and argues that the inaction of the UNSC has paved the way for new bottom-up accountability initiatives, such as the Commission for International Justice and Accountability (CIJA) and the Coalition for Justice for Peace in Donbas. This has paradoxically led to counter-hegemonic ‘justice ownership’ perceptions in communities in Syria, Ukraine and beyond. In Chap. 8, the last contribution to Part II, Tonny Raymond Kirabira explores whether domestic and international non-governmental organizations (NGOs) contribute to the legitimacy of international criminal justice processes. His chapter, entitled ‘NGOs and the Legitimacy of International Criminal Justice: The Case of Uganda’, centralizes the role of NGOs in Uganda’s contested international criminal justice processes and illustrates how NGOs can perpetuate hegemonic structures of international criminal justice, thereby asserting a form of sociological legitimacy of the courts in the eyes of the affected communities. At the same time, Kirabira also highlights a limited counter-hegemonic role of some domestic NGOs that prioritize domestic accountability mechanisms. His empirical findings point to the increasing role of NGOs as key stakeholders in the future of the international criminal justice project. Part III of the book finally turns towards the International Criminal Court and examines what (counter-) hegemony could imply in this arena. In Chap. 9, Taxiarchis Fiskatoris takes a closer look at ‘The Global South and the Drafting of the Subject-Matter Jurisdiction of the ICC’. He argues that the time between the Nuremberg and Tokyo Trials and the establishment of the ad hoc tribunals, while often considered as an unfortunate discontinuation of the international criminal justice project, actually marked a significant progression by incorporating the views of the enlarged international community that emerged from the decolonization process. The vast majority of states and scholars from the Global South

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fervently promoted the international criminal justice project, believing in the counterhegemonic potential of its subject-matter jurisdiction. The contribution contends that that the limited subject-matter jurisdiction failed to address the concerns of a substantial part of the international community, thereby subverting the counter-hegemonic capacity of the institution and opening the door to potentially competing regional projects. Chapter 10 is entitled ‘The ICC and Traditional Islamic Legal Scholarship: Analysing the War Crimes Against Civilians’. In this chapter, Fajri Matahati Muhammadin and Ahmad Sadzali analyse the congruence between Islamic law and the ICC Statute in light of the critique of eurocentrism in international law generally and international criminal law specifically. Using the fiqh literature of the traditionalist Islamic law scholars, the authors explore the war crimes against civilians in Article 8 of the ICC Statute, highlighting that there is congruence in some rules but not others, posing a challenge for both international and Islamic law scholars. Subsequently, Angie K. García Atehortúa examines ‘The ICC’s Role in Countering Patriarchal Claims in Reproductive Justice’ in Chap. 11. She discusses the impact of the Ongwen case in challenging the patriarchal fear of criminalizing forced pregnancy as means of achieving reproductive autonomy. The author argues that the ICC has a prominent role to address states’ attempts to limit the right to reproductive self-determination as explicitly depicted in its drafting history. The contribution introduces the feminist strategy of norm transfer in order to explore how legal standards created at the level of international criminal law make their way into domestic contexts. In Chap. 12, entitled ‘The Impacts of English-Language Hegemony on the ICC’, Leigh Swigart explores the impact of the uneven status of the Court’s working languages on those who work at and with the ICC, and on what the Court conveys to the world through the communication of its top officials, its judgments, and its outreach activities. Swigart demonstrates that the English language hegemony is not only entrenched but has detrimental effects for the ICC in both practical and symbolic spheres, rendering the Court less efficient while also undermining its mission as a global institution. In the final contribution to this collection, Angela Mudukuti in Chap. 13 reflects on the ‘Gender Imbalance at the ICC: The Continued Hegemonic Entrenchment of Male Privilege in International Criminal Law’. The chapter presents the findings of the Independent Expert Review, which was initiated by states parties and sought to improve the efficiency and effectiveness of the Court. The review revealed a number of concerning issues including sexual harassment which, she argues, is inextricably linked to the chronic staff-related gender imbalance at the ICC, perpetuated by many factors including hiring practices entrenching hegemonic ideas related to male privilege at the expense of women, women of colour, and women from the Global South. The contribution also looks at ways to change the imbalance including better recruitment practices and tenure policies.

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References Alvarez J (2003) Hegemonic International Law Revisited. American Journal of International Law 97 (4): 873– 888 Anghie A (2005) Imperialism, Sovereignty and the Making of International Law. Cambridge University Press, Cambridge Asaala E (2017) Rule of Law or Realpolitik? The Role of the United Nations Security Council in the International Criminal Court Processes in Africa. African Human Rights Law Journal 17 (1): 265– 293 Baars G (2016) “It’s Not Me, It’s the Corporation”: The Value of Corporate Accountability in the Global Political Economy. London Review of International Law 4 (1): 127–163 Bergsmo M, Kaleck W, Yin Hlaing K (eds) (2020) Colonial Wrongs and Access to International Law. Torkel Opsahl Academic E-Publisher, Brussels Byers M, Nolte G (eds) (2003) United States Hegemony and the Foundations of International law. Cambridge University Press, Cambridge Chimni B (2018) Customary International Law: A Third World Perspective. American Journal of International Law 112 (1): 1–46 Cox M (2001) Whatever Happened to American Decline? International Relations and the New United States Hegemony. New Political Economy 6 (3): 311–340 Damaska M (2008) What Is the Point of International Criminal Justice? Chicago-Kent Law Review 83(1): 329–368 Drumbl M (2007) Atrocity, Punishment, and International Law. Cambridge University Press, Cambridge Drumbl M (2010) Accountability for System Criminality. Santa Clara Journal of International Law. 8 (1): 373–384 Dugard J (2013) Palestine and the International Criminal Court. Journal of International Criminal Justice 11 (3): 563–270 Gathii J (1998) International Law and Eurocentricity. European Journal of International Law 9 (1): 184–211 Gathii J (2006) Dispossession Through International Law: Iraq in Historical and Comparative Context. In: Gruffydd Jones B (ed) Decolonizing International Relations. Rowman and Littlefield, Maryland, 131–154 Gathii J (2011) TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography. Trade Law and Development Journal (National Law University, India) 3 (1): 26–64 Gramsci A (1971) Selections from the Prison Notebooks (Hoare Q, Smith GN (translators)) Higgins P, Short D, South N (2012) Protecting the Planet After Rio–The Need for a Crime of Ecocide. Criminal Justice Matters 90 (1): 4–5 Jalloh C, Bantekas I (eds) (2017) The International Criminal Court and Africa. Oxford University Press, Oxford Jeßberger F (2022) Die Krisen des Völkerstrafrechts. Festschrift für Gerhard Werle. Mohr Siebeck, Tübingen Kiyani A (2015) The antinomies of legitimacy: On the (Im-)possibility of a Legitimate International Criminal Court. African Journal of Legal Studies 8 (1–2): 1–32 Knox R (2016) Marxist Approaches to International Law. In: Orford A, Hoffmann F, Clark M (eds) The Oxford Handbook of the Theory of International Law. Oxford University Press, Oxford 306–326 Koskenniemi M (2002) Between Impunity and Show Trials. Max Planck Yearbook of United Nations Law 6: 1–32 Koskenniemi M (2004) International Law and Hegemony: A Reconfiguration. Cambridge Review of International Affairs 17 (2): 197–218 Koskenniemi M (2005) From Apology to Utopia: The Structure of International Legal Argument. Cambridge University Press, Cambridge

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Krisch N (2005) International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order. European Journal of International Law 16 (3): 369–408 Marks S (2008) International Law on the Left: Re-examining Marxist Legacies. Cambridge University Press, Cambridge Nouwen SMH, Werner W (2015) Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity. Journal of International Criminal Justice 13 (1): 157–176 Pal R (Justice) (1948) Dissenting Judgment, International Military Tribunal for the Far East. http:// www.sdh-fact.com/CL02_1/65_S4.pdf. Accessed 17 October 2021 Rajagopal B (2000) From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions. Harvard International Law Journal 41 (2): 529–578 Rajagopal B (2003) International Law from Below: Development, Social Movements and Third World Resistance. Cambridge University Press, Cambridge Rajagopal B (2006) Counter-Hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy. Third World Quarterly 27 (5): 767–783 Sajed (2020) From the Third World to the Global South. https://www.e-ir.info/2020/07/27/fromthe-third-world-to-the-global-south/. Accessed 17 October 2021 Schwöbel C (ed) (2014) Critical Approaches to International Criminal Law: An Introduction. Routledge, London Steinke R (2012) The Politics of International Criminal Justice: German Perspectives from Nuremberg to The Hague. Bloomsbury Publishing, London Vagts D (2001) Hegemonic International Law. American Journal of International Law 95 (4): 843–848

Florian Jeßberger is a Professor of Law at Humboldt-Universität zu Berlin, Germany, where he holds the Chair in Criminal Law, Criminal Procedure, International Criminal Law, and Modern Legal History and serves as the Director of the Franz von Liszt Institute for International Criminal Justice. Leonie Steinl is a Post-Doctoral Researcher and Lecturer in Law at Humboldt-Universität zu Berlin, Germany, and a member of the Franz von Liszt Institute for International Criminal Justice. She holds an LL.M. from Columbia Law School, New York, USA and a Dr. iur. from Universität Hamburg, Germany. Kalika Mehta is a Human Rights Lawyer and an Associate Researcher at the Franz von Liszt Institute for International Criminal Justice. She holds a Dr. iur. from Universität Hamburg, Germany, an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights, Geneva, Switzerland and a B.A. LL.B (Hons.) from Rajiv Gandhi National University of Law, Punjab, India.

Part I

Theoretical Engagements with (Counter-) Hegemonic Perspectives on International Criminal Law

Chapter 2

Is International Criminal Justice the Handmaiden of the Contemporary Imperial Project? A TWAIL Perspective on Some Arenas of Contestations John-Mark Iyi

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 An Overview of TWAIL as an Analytical Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Relevance of TWAIL in Understanding International Criminal Justice: Four Arenas of Contestation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Establishment of Institutions and Enforcement and the ‘Other’ . . . . . . . . . . . . . . 2.3.2 Alleged Selectivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.3 The Supposed Universality of Legal Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.4 Categories of International Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14 16 22 22 25 28 31 34 34

Abstract The construction of contemporary international criminal justice seems to have followed a trajectory defined by the inescapable colonial origin, history and purpose of modern international law. Notwithstanding the professed successes and progress made towards the establishment of a universal standard or notion of justice, Post-World War II international criminal justice remains an essentially imperial ideal intolerant of a plurality of visions of justice and whose resistance and legitimacy in the Global South is often obfuscated by media representation. In this chapter, I identify four arenas of contestations in this regard and examine each of them to demonstrate that international criminal justice has not shed its historical antecedents that characterised its previous manifestations in previous eras. These arenas of contestations—the supposed universality of legal norms of international criminal justice; the alleged inherent selectivity of international criminal justice in the prosecution of perpetrators; the categories of crimes; and the establishment of its foremost institutions for its enforcement. The chapter will adopt TWAIL as an analytical framework J.-M. Iyi (B) African Centre for Transnational Criminal Justice, Faculty of Law, University of the Western Cape, Bellville, Cape Town, South Africa e-mail: [email protected]

© T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_2

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to expose the manifest contradictions in the construction of international criminal justice and some of the legal problems thereby created. I argue that international criminal justice remains a tool in the service of hegemonic international law. Keywords International criminal justice · TWAIL · Africa · Third World · ICC · International law

2.1 Introduction It is evident that, from times past, international law has provided the powerful with a series of instruments by which to exploit and control the weak, and even provided legal cover for colonial rule. With this historical awareness, it is clear that there is no necessary linkage between international law and global justice; indeed, it is more convincing to claim that the historic experience, with some exceptions, most clearly expresses the reinforcing interconnections between law, power and injustice. International criminal law as a branch of public international law has witnessed one of the most significant development since the end of World War II even though much of that evolutionary processes only intensified in the last decade of the 20th century. At both normative and institutional levels, the demands for a mechanism of international criminal justice able to pierce the veil of state sovereignty to attach individual criminal responsibility to those most responsible for the most serious crimes of concern to the international community was elevated to new heights by the mass atrocities of the 1990s in Srebrenica, Rwanda, Liberia, Sierra Leone and so on. This resulted in the establishment of the first two ad hoc international criminal tribunals—the ICTY and the ICTR.1 However, it was the establishment of the ICC on 1 July 2002, as the first permanent international criminal court that marked a watershed in this creation of international criminal justice system. Since then other tribunals have emerged to investigate and prosecute international crimes committed mainly in the Global South. Amongst other concerns, the disproportionate representation of Africa and the Global South in the number of cases at the ICC has thrown the Court into controversies and raised doubts about the entire international criminal justice project.2 Of course, it is also the case that if one takes the fight against impunity seriously, it is arguable that these cases could reflect the prevalence of intra-state conflicts and the concomitant atrocities on the African continent. However, this does not tell the whole story and the debates thus generated between the so-called ‘anti-impunity’ group on the one hand, and the critics of the international criminal justice project on the other hand, (sometimes dubbed ‘anti-judicial imperialism’) is not only far from settled, but has eroded the initial support base the ICC built in Africa in its early days, polarised its

1

Werle and Jessberger 2014, p. 1. For an assessment of the various perspectives to these contestations, see the collection of papers in De Vos et al. 2015; Roach 2009. See also generally Clarke 2009, Clarke 2019.

2

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primary constituency and undermined its legitimacy.3 It is therefore imperative to examine some of the contentious issues at stake particularly as it affects the perception of international criminal justice by the peoples of the Third World.4 To be sure, it is important to clarify from the outset that Third World scholars’ critique of international criminal justice is a systemic engagement broader than the often-narrow Africa-ICC confrontations.5 This is because there is a growing awareness amongst an older and new generation of scholars in the Global South that the construction of contemporary international criminal justice has followed a trajectory defined by the inescapable colonial character of the origin, history and purpose of modern international law. Notwithstanding the oft-self-proclaimed successes and progress made towards the establishment of a universal standard of justice, Post-World War II international criminal justice remains an essentially imperial ideal intolerant of a plurality of visions of justice and whose resistance and legitimacy in the Global South is often obfuscated by media representation. As will be shown in this chapter, the liberal world order vision of international criminal justice is however presented as universal, rooted in universally shared values and common understandings and goals of what justice means and is supposed to symbolise in every society.6 These and similar claims have been and are now being contested and the Third World Approaches to International Law have been quite persistent in highlighting some of these contestations. In this chapter, I identify and examine four arenas of such contestations to demonstrate that international criminal justice has not shed the historical antecedents that characterised its manifestations as a branch of international law in previous eras. These arenas of contestations are the supposed universality of legal norms of international criminal justice; the alleged inherent selectivity of international criminal justice; the categories of international crimes; and the establishment of institutions for the enforcement of international criminal law. The chapter will adopt TWAIL as an analytical framework to expose the biases and injustices inherent in the construction of international criminal justice as currently applied. I intend to demonstrate that international criminal justice remains a tool in the service of hegemonic international law. This chapter is divided into four sections. In Sect. 2.1, I provide a brief introductory background and set out the objectives of the chapter, the main arguments and the outline of the chapter. In Sect. 2.2, I sketch a brief theoretical framework of TWAIL within which the subsequent analysis is situated. In Sect. 2.3, I examine four arenas 3

Hoile 2017, pp. 278–310. The term ‘Third World’ and the ‘Global South’ are used interchangeably in this chapter not in the geographical sense but to refer to peoples (once under colonial domination) wherever located but mostly in Africa, Asia and Latin America, and their continuous struggles in resistance to their oppression. For an explanation of the continued relevance of the term, see Chimni 2006, pp. 4– 7. For an exposition of how the term is frequently used in TWAIL scholarship, see generally Rajagopal 1998–1999, pp. 1–20; Mickelson 1998, pp. 355–362; Baxi 2002, pp. 713–714; Falk 2016, pp. 1943–1945; Anghie 2004, p. xiii; Anghie et al. 2003, vii–viii; Ngugi 2002, pp. 73–106. 5 Reynolds and Xavier 2016, p. 962. 6 Early critics include Rubin 1994, pp. 7–11; Rubin 1997, p. 183; Mutua 1997, p. 167; Morris 2001, pp. 13–66. 4

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of contestations of international criminal justice that arguably reflect a Third World perspective as alternative ways the issues may be understood. In Sect. 2.4, I offer my concluding remarks. The following analysis of TWAIL in reference to public international law more broadly applies to international criminal law as well in so far as it forms part of that broad field.

2.2 An Overview of TWAIL as an Analytical Framework At one level, one can think of TWAIL as the intellectual response of Third World international lawyers and scholars to experiences of Third World peoples in three epochs—slavery and colonisation, decolonisation and the struggle for selfdetermination, neo-colonialism and the various modes of continuities of the colonial project that animate it.7 At another level, one can regard TWAIL as both Third World resistance to Eurocentric narratives of international law—a movement committed to the redemption and transformation of international law’s character and purpose through, among other things, providing alternative histories and visions of international law, and by centring and de-centring the West and the rest, to release the emancipatory potential of a new international law.8 At both levels, TWAIL underscores the ineluctable confrontations between the countries of the Global South and the Global North over the domination and subordination of the latter by the former in legal, cultural, political and economic spheres through the creation and instrumentalization of Eurocentric international law.9 To the extent that international law is partly responsible for creating the conditions for subordination and currently, an enabler of the continued exploitation of the peoples of the Third World, it is perceived as complicit and therefore illegitimate.10 Thus, international legal scholars in the TWAIL tradition have critiqued international law and international legal history from a variety of legal regimes and perspectives—development, economic law, human rights, trade and investment law, environmental law, post-colonial theory, refugee law, international humanitarian law 7

Gathii 2020a, b. TWAIL has been described as consisting of two broad generational eras that are separable but not compartmentalised by a paradigmatic shift from TWAIL I to TWAIL II. The first represents a generation of post-independent international legal scholars and activists from the global South who sought to reform international law from within while the second represents scholars who read the failures of the reform efforts of their forebears as evidence and a call for a ‘systematic process of resistance to the negative aspects of international law [which] must be accompanied with continuous claims for reform. Resistance, not abandonment, becomes a position that fuels their approach to international law and their tool to reform, to reconstruct, the international normative project and the world order.’ See Eslava and Pahuja 2012, p. 209. For a critique of the ‘periodization’ of TWAIL, see Galindo 2016, pp. 39–56. 8 Mutua 2000, p. 32; Gathii 2011, p. 45; Eslava and Pahuja 2012, p. 199. 9 TWAIL was both a response to (the) history of slavery and colonial subjugation and a proposition for the prevailing material conditions in the third world, see Mutua 2000, p. 32. 10 Ibid., p. 31; Anghie 2004, p. 111; Eslava and Pahuja 2012, p. 197.

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and international criminal law.11 Nevertheless, one unifying feature of TWAIL scholarship is the recognition of the colonial character of international legal history and contemporary international law and the need for the historicization of international law from a perspective other than its Eurocentricity.12 Another unifying characteristic is the appreciation of the role of international law as a tool originally designed to facilitate empire and colonial domination and exploitation.13 For our purposes, TWAIL scholars have also focused on how contemporary international law carries forward the project of colonialism and imperialism in new forms including international criminal justice.14 This should not come as a surprise because it is apparently impossible for international criminal law as a branch of international law to escape its colonial origins and its racialised hierarchy of legal norms and power relations that enabled the colonial subjugation of Third World peoples.15 Some TWAIL scholars have examined the ways in which the ICC in particular exacerbates the domination of the peoples of the Third World by the Global North and perpetuate existing inequalities in this regard.16 A recent detailed treatment of the subject is the 2015 Journal of International Criminal Justice Symposium on Third World Approaches to International Criminal Law,17 and the 2016 American Journal of International Law Symposium on TWAIL Perspectives of ICL, IHL, and Intervention.18 This is not only a recognition of the relevance of TWAIL perspectives in international criminal justice discourse but highlights the growing influence of TWAIL’s contribution even by mainstream journals.19 So, what exactly is TWAIL? This question does not lend itself to an easy answer and has been the subject of many critiques and elaboration by TWAIL and mainstream international law scholars trying to describe rather than define TWAIL by identifying its unique intellectual contours and those characteristics that set it apart from other approaches to international law.20 TWAIL has been described as constituting both a theory and methodology for studying international law.21 TWAIL is not a theory in the ordinary sense of that word but it constitutes a theory to the extent though not completely ‘selfconsistent, systematic and formalised’ (just as most theories are not), nonetheless 11

See Mickelson 1998, pp. 353–419; Rajagopal 2002–2003, pp. 145–172; see generally Bedjaoui 1979; the collection of chapters in Anghie et al. 2003; Falk et al. 2008. 12 See generally Anghie 2004. 13 Ibid., p. 144. Chimni has boldly asserted that ‘I believe that modern international law is the instrument of choice for imperialism to intervene in all aspects of local, national and international life’, see Chimni 2012, p. 1168. 14 Reynolds and Xavier 2016, pp. 959–983; Falk et al. 2006, p. 711. 15 Clarke 2019, p. 180. See generally Kiyani 2015a, pp. 129–208. 16 Gathii 2020a, b, p. 15. 17 Kiyani et al. 2016a, b, pp. 915–920. 18 See Journal of International Criminal Justice 2016, Symposium on Third World Approaches to International Criminal Law, pp. 915–1009; AJIL Unbound 2015, Symposium on TWAIL Perspectives on ICL, IHL and Intervention, pp. 252–276; Kiyani 2016a, b, pp. 255–259. 19 Kiyani et al. 2016a, b, p. 920. 20 Mutua 2000, pp. 31–40; Anghie and Chimni 2003, pp. 77–103; Okafor 2008, pp. 371–378. 21 See Okafor 2008, pp. 372 et seqq.

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describes social phenomenon and as a tool, is ‘predictive, logical and testable’.22 As an international law methodology, TWAIL is not a method in the ordinary sense in which we traditionally use that word, i.e. a way of ascertaining the law, TWAIL is however a method in the same way that we think of feminism, Critical Legal Studies and so on as methods of studying law, to the extent that it provides the organisational principles and framework to formulate and articulate concerns and the tools of analysis for thinking about, understanding and explaining international law.23 As Obiora Okafor points out ‘TWAIL is not so much a science of method, as it is a ‘school of thought’ offering a ‘body of methods’ employed in scientific international legal thought and analysis.24 Okafor concludes that when properly understood in this sense, TWAIL qualifies as both a theory and methodology for undertaking the analysis of international law and institutions as well as revealing its hegemonic predispositions as it affects the Third World.25 Apart from these formal characterisations, TWAIL has been cast as representing a ‘dialectic of opposition’, and a resistance and response to hegemonic international law.26 In this sense, it constitutes attempts at both ‘disruption and rupture’ in order to achieve the transformation of international law and its promise of emancipation.27 This call for resistance and reform of international law and its institutions is a defining feature of TWAIL theory and praxis. According to Luis Eslava and Sundhya Pahuja, ‘TWAIL can more accurately be defined as being concerned with the impact of international law on ‘the governed’ no matter where they are spatially located….’28 It is not circumscribed but is ‘a virtual site from which scholars and activists, from the South and the North, can work both to resist and to reform international law.’29 TWAIL scholars come from a wide variety of backgrounds—Marxism, critical race theory, feminist legal theory, post-colonial theory, critical legal studies etc. This plurality of voices and orientation creates room for dynamism and diversity and allows critical self-reflection all organised and made possible by a common purpose of resistance to hegemonic international law’s subjugation and exploitation of the Third World. The TWAIL commitment is a broad intellectual enterprise that brings scholars together under the umbrella of Third World resistance. Bhupinder Chimni captures it succinctly when he states, TWAIL ‘is simply a network of jurists whose works are influenced by their desire to experience a truly universal international law, sympathetic to developing countries’ concerns.’30

22

Ibid., pp. 373, 375. See Anghie and Chimni 2003, p. 77. 24 Okafor 2008, p. 337. 25 Ibid., p. 377. See Hippolyte 2016, p. 39. 26 Mutua 2000, p. 31. 27 See Reynolds and Xavier 2016, p. 978. 28 Eslava and Pahuja 2012, p. 97 29 Ibid., p. 199. 30 Chimni 2006, p. 18. 23

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The question may be asked, what exactly does TWAIL want to achieve? According to Makau Mutua, one of TWAIL’s leading figures, TWAIL scholars have set for themselves three broad agendas: first to […] understand, deconstruct and unpack the uses of international law as a medium for the creation and perpetuation of a racialized hierarchy of international norms and institutions that subordinate non-Europeans to Europeans. It seeks to construct and present an alternative edifice for international governance. Finally, TWAIL seeks through scholarship, policy and politics to eradicate the conditions of underdevelopment in the Third World.31

To achieve these objectives, TWAIL scholars have deployed a range of theoretical framework and methodological approaches as tools of analyses within an overarching commitment to a Third World emancipation intellectual orientation in international legal discourse without necessarily subscribing to one uniformed conceptual code or theorem stricto sensu. TWAIL scholars admit that they do not all subscribe to a single uniform theoretical approach binding them together but posit that they hold a common sensibility and political orientation.32 This lack of disciplinary code coupled with its flexibility and diversity reflects the strength and weakness of TWAIL which sometimes opens it up to critique so much so that until very recently, many in mainstream international legal scholarship did not take TWAIL scholars seriously.33 To them, at worst, TWAIL was more of a political ideology than a methodological approach to studying and understanding a social phenomenon; and at best, TWAIL was no different from other streams of the Critical Legal Studies movement.34 A second critique of TWAIL is its alleged nihilist inclinations in that it seeks to dismantle contemporary international law because of its of international law’s biases and prejudices, but without proposing an alternative system to replace it.35 A third critique sometimes levelled against TWAIL is its supposed overwhelming focus on binaries—‘First Word’ vs ‘Third World’, ‘North vs South’, ‘Developed vs Developing’, ‘European vs Non-Europeans’.36 This, it is argued has made TWAIL exclusively focused on the postcolonial State instead of its peoples and to the exclusion of the rights abuses perpetrated by those postcolonial states against minorities especially in Asia. One of the contributions in this volume echoes these sentiments, that TWAIL has turned a blind eye to the plight of minorities and the conditions of oppressions they face in postcolonial Third World States which has used violence against them as citizens in Third World Asian countries.37 A fourth and perhaps, one of the harshest critique of TWAIL is its alleged lack of conceptual clarity and

31

Mutua 2000, p. 2. Eslava and Pahuja 2011, p. 104. 33 Anghie and Chimni 2003, pp. 77, 87, citing an example of this initial exclusionary tendencies. See also Mutua 2019b; Eslava and Pahuja 2012, p. 200, describing it as a ‘conceptual blackbox’. 34 See Anghie and Chimni 2003, at footnote 22. 35 Roth 2000, p. 2065. 36 D’Souza 2012, p. 414. 37 See Chap. 5 by Ishita Chakrabarty and Guneet Kaur in this volume. 32

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philosophical grounding.38 To these critics, beyond the call to unmask the Eurocentricity of contemporary international law and the myth of the neutrality and universality of international legal norms, TWAIL is theoretically ambiguous, philosophically ambivalent and analytically unsophisticated.39 For example, these critics point out that TWAIL scholars’ undifferentiated adoption of the term ‘Third World’ has obscured the category of referents in TWAIL scholarship because there is much difference and variations among the so-called Third World which TWAIL does not seem to take into account in its uncritical adoption of binary analytical lenses.40 Some of the leading figures in TWAIL have responded to these critiques not by appealing to some internal logic unique to the theory and praxis of TWAIL scholarship, but by locating TWAIL within the paradigm of mainstream international legal scholarship and then examining TWAIL’s claims and its critiques using the same yardsticks employed in the assessment of claims in mainstream international legal scholarship.41 As pointed out above, some TWAIL scholars have demonstrated, how, in more ways than one, TWAIL constitutes both a theory and method of thinking about international law. The critique that TWAIL is merely a political ideology adopting the ‘Third World’ is also unsustainable because though TWAIL scholars already recognise that the Third World is not monolithic and there is as much variation between Third World countries as there are within Third World peoples in those countries; it has to be pointed out that geographical location is not the sense in which TWAILers use this term and would therefore insist that notwithstanding this variety, TWAIL scholars identify with its core objectives nonetheless.42 TWAIL scholars have responded to the same critique by exposing the political character of all laws, no less so, international law and how law legitimised colonisation and advances imperialism today.43 But besides that, the origin of TWAIL—the struggles of the peoples of the Third World—against the shackles of colonial domination, the avowed objective to dismantle, reconstruct and transform international law, makes it inevitable that TWAIL engages with the constitutive political nature and discourse on the international legal order and the political context in which international law operates. This political orientation underscores the essence of TWAIL as a tool for the transformation of international law ‘from a language of oppression to a language of emancipation—a body of rules and practices that acknowledge the struggles and aspirations of Third World peoples and thereby promotes genuine global justice.’44 This transformative orientation also responds to the critique that TWAIL seeks to dismantle international law without proposing an alternative. TWAIL does not call 38

Ibid. For example, D’Souza points out that there is a difference between how Obiora Okafor uses the word ‘Third World’ in his article Newness and Imperialism’. See Okafor 2008, p. 307, and how Mutua 2000 deploys the same term in his article on ‘What is TWAIL’. See D’Souza 2012, p. 425. 40 See generally D’Souza 2012. 41 Okafor 2008, p. 372; Chimni 2017, pp. 14–18. 42 Okafor 2005, p. 176. 43 See generally Anghie 2004; Gathii 2000, p. 2067. 44 Hippolyte 2016, p. 40. 39

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for abandoning international law nor does it merely content itself with the inclusion of international law’s ‘others’ in its universe.45 Without advocating exiting a controlling system like the international legal system, TWAIL concomitantly calls for an engagement that advances its transformative potential for a better world for all. One final comment to be made in this regard relates to the critique of exclusion of minorities by TWAIL. While this critique may be valid in some respects, it is inaccurate to claim that TWAIL’s binary approach has resulted in its exclusion of the conditions of minorities in its analysis. For example, although TWAIL focuses on international law and the State, several TWAIL scholars have critiqued the attitudes of Third World States to their own citizens and the deployment of organised violence by the post-colonial state to repress internal dissent.46 TWAIL scholars do critique the Third World nation-states and employ international human rights law in doing so.47 As Bhupindar Chimni points out: […] while recognizing the fundamental importance of the doctrine of sovereignty for advancing Third World interests and for protecting and preserving Third World states against various forms of intervention, TWAIL II scholars have developed powerful critiques of the Third World nation-state, of the processes of its formation and its resort to violence and authoritarianism. Corresponding with this is a concern to identify and give voice to the people within Third World states-women, peasants, workers, minorities—who had been generally excluded from consideration by TWAIL I scholarship.48

So, while it may be correct that TWAIL primarily focused on the nation-state, this is only accurate to the extent that it applies to TWAIL I rather than the subsequent generation of TWAIL scholars, a distinction apparently not made by these critics. Whatever its weaknesses as a methodological approach, the usefulness of this theory as distinct from other traditions of critical legal theory is that it provides us with the analytical tools to critique international law without the disciplinary constraints imposed by the liberal or mainstream approaches. The theory’s commitments to step back from the mainstream legal scholarship provides TWAIL scholars the opportunity to challenge underlying assumptions and question long-held dominant narratives rooted in colonial history and their contemporary manifestations in the project of imperialism. TWAIL as an analytical framework is used here to expose the manifest contradictions in the construction and operationalisation of international criminal justice in four aspects. It is to this we now turn.

45

Anghie 2004, pp. 4, 56, 201–203. Anghie and Chimni 2003, p. 82. 47 Ibid., p. 803. 48 Ibid. 46

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2.3 The Relevance of TWAIL in Understanding International Criminal Justice: Four Arenas of Contestation 2.3.1 Establishment of Institutions and Enforcement and the ‘Other’ Since its inception, the idea of international criminal justice has been a uniquely Western enterprise.49 In this regard, TWAIL has turned to history in its effort to understand international criminal law and justice and its functions in relation to the material condition of the peoples of the Third World. Its focus is as much on uncovering what is left unsaid in mainstream international criminal law scholarship than what is said. TWAIL argues that dominant narratives of international law, and by extension, international criminal law, hardly tell us about international law’s complicity in various atrocities—from slavery and the slave trade to colonisation which continue to this day in a variety of forms. As is shown below, TWAIL rejects the view that international law’s role was harmless in the process and attempts by mainstream international law scholars to whitewash or completely ignore the role of international law in these atrocities.50 A look at how international criminal justice was constructed not only reveals how its colonial-era historical origin continue to shape its attitude towards the Third World today but also assists us in ‘identifying continuities amidst the discontinuities that we behold.’51 The International Military Tribunal in Nuremberg (IMT) which was established to prosecute the major war criminals of the European Axis after the Second World War is celebrated as the birth place of modern international criminal law and international criminal justice. The celebrated opening remarks of Robert H Jackson that [t]he wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.52

In that speech, Justice Jackson also underscored that the IMT was the first trial in history of perpetrators of crimes against peace.53 A lot has been written on the legacy of Nuremberg as the birth place of modern international criminal law and its successes and failures. For example, the Charter of the IMT innovated to create the new concept of individual criminal responsibility in international law and the 49

Reynolds and Xavier 2016, p. 962. Gathii 2020a, p. 2. 51 Gathii 2020b. 52 Jackson 1945, pp. 98–99. 53 Ibid. 50

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notion of crime against peace, and drew on existing customary international law to establish individual accountability for war crimes.54 However, while applauding the many accomplishments of the IMT in many areas, it is worth reminding ourselves that Third World peoples had a different experience of the birth of international criminal justice at Nuremberg and its legacy. That experience is not one of an institution that symbolized ‘Civilization’s’ abhorrence of the evils of mass atrocities and the birth of international criminal justice in the world as alluded to in Robert Jackson’s statement, but one that, by its design and indifference, legitimised similar crimes committed by European powers in their colonial territories across the Third World, while they sat in judgment over their defeated adversaries at Nuremberg. It was justice for some and not for others. By the logic of what Anghie describes as the ‘dynamic of difference’ European colonisers cast non-Europeans as ‘uncivilized’ and thus rendered them as the ‘other’ who lay outside the realm of civilisation and therefore underserving of the protection of international law, including international criminal law.55 This was supposed to legitimise whatever atrocities perpetrated by the invading colonisers against the colonised. These territorial acquisitions were concretised and carried forward through the League of Nations Trusteeships and Mandate System and these were further continued under the UN System.56 This inherent colonial character not only shaped the development of international law and its institutions but also international criminal law and questions of whether or not to establish institutions of international criminal justice including the IMT to deal with particular atrocities.57 For example, notwithstanding the evidence of mass atrocities by European colonial powers in their colonies such as the Ovaherero and Nama genocides in Namibia, the Benin Massacre in Nigeria etc, there were no calls for accountability.58 Wolfgang Kaleck demonstrates that even discounting earlier periods of colonial crimes when the existence of international criminal law may have been doubtful, the atrocities committed by colonial and imperial powers across the Third World was devastating during wars of independence where there was already clear evidence of the existence of international criminal law.59 As Wolfgang puts it ‘It is telling of the hegemonic character of international criminal justice that not one of the surviving perpetrators, or responsible individuals or governments was called to account.’60

54

Ibid., p. 99; Werle and Jessberger 2014, p. 5. See Article 6(b) of the Charter of the International Military Tribunal, attached to the London Agreement of 8 August 1945, International Military Tribunal, Nuremberg, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945—1 October 1946, Vol. I, p. 10. 55 Anghie 2004, p. 56. 56 See generally Anghie 2004, particularly Chapter 3. 57 Each of the Allied powers appointed a judge to the IMT and it has been argued that rather than an expression of justice administered through the collective will of the international community, the IMT reflected the power relations between the victorious Allied Powers and their vanquished Axis enemies. See Reynolds and Xavier 2016, p. 11. 58 Mutua 2019a, pp. 20–21. 59 Kaleck 2020, pp. 11–12. 60 Ibid., p. 12.

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In the same vein, at the time institutions of international law like the International Law Commission was purportedly developing universal norms of international criminal law and justice at its different sessions eventually leading up to the establishment of the ICTY, ICTR and the ICC, there was no reference to the colonial atrocities committed against the peoples of the Third World in the colonies—their voices marginalised and their sufferings effectively erased. It is no surprise therefore, that developments in different branches of international law—human rights, international humanitarian and international criminal law—and the protections purported introduced by these normative evolutions for the universal good were not extended to colonial peoples especially Africans.61 By burying colonial atrocities without reckoning, the post-war UN system validated colonial practices and entrenched the subjugation of the Third World peoples in the new UN Charter-based Post-War World Order supposedly built on claims of ‘never again’. We also see similar continuities when we examine the UN Security Council and what has been described as the phenomenon of ‘Hague Justice’. One important element of the new system is the international concern with human rights and the powers of the UN Security Council in the maintenance of international peace and security. Both of these developments were to become veritable tools in advancing the imperial project from where colonisation left off. The same logic of international criminal justice that underpinned the establishment of the IMT by what one may call the ‘P4’ was carried forward and is now firmly institutionalised in the role of the P5 in the UN Security Council and its powers in terms of Article 13(b) and 16 of the ICC Statute. Thus, the current ICC framework of international criminal justice mirrors the current global power structures of legalised hegemony whereby 5 permanent members of the UN Security Council (pretty much the same as the Allied Powers that set up the IMT in 1945) determines who gets referred to the ICC—including non-state parties to the ICC Statute. I have explored the legal problems posed by these contradictions and inconsistencies of international criminal law elsewhere but it suffices to say that this anomaly is not a coincidence but shows the ways in which international criminal justice effectively serves as a tool in the repertoire of international law for the imperial project.62 What Article 13(b) and Article 16 of the ICC Statute does is to legitimise and cement in the international criminal justice realm, the racialised 61

Mutua 2019a, p. 20. As Mutua puts it the ‘the devaluation and worthlessness with which the world views black life, and has viewed black life for the past 500 years’ has been made possible because international law has stamped Africa and Africans with a tag of ‘sub-humanity’ for purposes of European exploitation. See for detailed examples of the atrocities committed by colonial authorities in the Third World, Kaleck 2020, pp. 10–15. Professor James Thuo Gathii, in his 2020 Jindal Global Law School Lecture argues that international law as it had crystallised at the beginning of the 20th Century (international human rights law, international humanitarian law and customary international humanitarian law under the League of Nations were such that Great Britain had a carte blanche to carry out mass atrocities in its colonies in Africa (e.g. the Benin Massacre of 1897) two years before the Hague Regulations of 1899; Germany could execute the Herero and Nama Genocides in Namibia in 1904, five years after the Hague Regulations and three years before the 1907 Convention. 62 I have elaborated on the role of the UN Security Council under Article 13(b) of the ICC Statute. See Iyi 2019, pp. 391–417.

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hierarchies of States in the global world order constructed on the UN system in 1945 where Africa is not represented on the UN Security Council on a permanent basis. This has become another site for TWAIL critique of international criminal law and as Makau Mutua puts it, ‘TWAIL opposes Western hegemony, which the UN legitimizes through the cloak of universality. […] A critical perspective reveals how the selective use of UN organs to advance Western foreign policy, stand in direct contradiction to its highsounding morals.’63 This view challenges the assumption that the ICC is a purveyor of international criminal justice rather than a new legitimizing authority for Western hegemony. This argument has even been extended to the rationale behind the location of institutions of international criminal justice and its enforcement mechanisms mainly in major capitals in the global north from where justice is to be dispensed and exported to the ‘dark corners of the world’ however farremoved from the sites of the commission of those atrocities whether geographically or in terms of proximity to the victim communities most affected by those atrocities. This is arguably another form in which contemporary international criminal justice reproduces colonial continuities and carries forward the ‘civilizing mission’ of the imperial project.

2.3.2 Alleged Selectivity The post-World War II international criminal law regime and its institutions—IMT, the International Tribunal for the Far East, ICTY, ICTR and the ICC have been criticised for their selectivity and to some extent, critics and defenders seem to agree on this but tend to differ on the justifications for this selectivity. Both sides have often relied on similar methodological approaches and more on political rather than legal arguments.64 This selectivity is historically entrenched in the colonial origins of international criminal justice.65 We have already pointed out above that at the same time international criminal justice was invoked at Nuremberg to hold the Nazis accountable for the Holocaust, Britain, France and the United States carried on official policies of no less egregious crimes and systematic violence against Africans and African Americans in their jurisdictions without reproach from international criminal justice. The only difference was in name and this perception of double standards and selectivity have influenced how many in Africa for example perceive international criminal justice.66 Today, the number of cases from Africa at the ICC and the selective application of universal jurisdiction by individual European states indicate that there is one standard of justice for the West and another for the Third World. Until very recently, the ICC has dragged its feet to open investigations anywhere else other

63

Mutua 2000, p. 42. Kiyani 2015b, p. 6. 65 Reynolds and Xavier 2016, p. 962. 66 See generally Clarke 2019. 64

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than Africa particularly where the high and mighty are involved.67 This selectivity and what often underlies it—a racially and geographically biased regime against citizens of the Third World—and how this fit into the larger scheme of things in the international legal order is part of what TWAIL seeks to uncover.68 One could point to one example in the post-Nuremberg International Criminal Law era and the ICC era. In the aftermath of the Balkan wars, the UN Security Council established the ICTY to investigate and prosecute perpetrators of atrocities during the conflict in the Federal Republic of Yugoslavia. There were persuasive evidence of alleged crimes committed by NATO forces during the conflict but this was not investigated further by the ICTY.69 This pattern continued in 2011 when the UN Security Council authorised intervention during the Libya uprising.70 Once again, there were allegations of international crimes committed by NATO forces in Libya which were not referred to the ICC for further investigation.71 Afghanistan is the latest episode in this list. It is possible that we may yet see some form of accountability for victims in Afghanistan without creating categories of acceptable and unacceptable perpetrators—US/NATO forces or the Taliban/IS. However, the recent pronouncement by the Prosecutor of the ICC to only prioritise investigations of the crimes committed by the Taliban and ISIS-K and not those of other perpetrators confirms concerns long raised by TWAIL scholars but also by anyone who takes international criminal justice seriously.72 In fact, the latest declaration by the ICC prosecutor re-echoes the low ebb of Moreno Ocampo, the first Prosecutor of the ICC, and reminds us of how the ICC and its officials as an institution perpetually operates in the shadows of Western powers and how their officials instrumentalise their office at the behest and to do the bidding of hegemons in the name of international law and

67

For example, the new Prosecutor of the ICC recently announced that the ICC investigations in Afghanistan would only focus on crimes committed by the Taliban and ISIS. In other words, Western forces would most likely be excluded. See (Office of the Prosecutor 2021) the Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan, following the application for an expedited order under article 18(2) seeking authorisation to resume investigations in the Situation in Afghanistan, 27 September 2021, https://www.icc-cpi.int/Pages/item.aspx?name=2021-09-27otp-statement-afghanistan. Accessed 7 October 2021. 68 Statistically, there is a huge difference in the application of universal jurisdiction to prosecute alleged perpetrators from the Global North and the Global South. See Kaleck 2020, p. 13. 69 See the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, https://www.icty.org/en/press/ final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal. Accessed 28 January 2022; see also Amnesty International 2000, Federal Republic of Yugoslavia (FRY) /NATO: “Collateral damage” or unlawful killings? Violations of the Laws of War by NATO during Operation Allied Force, 5 June 2000, https://www.amnesty.org/en/documents/eur70/018/ 2000/en/. Accessed 20 October 2021; see Anghie and Chimni 2003, p. 91. See also Krever 2014, p. 72. 70 UN Security Council 2011, Resolution 1973, S/Res/1973 (2011). 71 Amnesty International 2012b; Amnesty International 2012a. 72 Khan, 27 September 2021, https://www.icc-cpi.int/Pages/item.aspx?name=2021-09-27-otp-sta tement-afghanistan. Accessed 7 October 2021.

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international criminal justice.73 This has led some observers to conclude that the ICC is a political animal and as Tor notes, ‘the International Criminal Court does not, and cannot, exist outside politics and its activities reflect that.’74 A synergic approach to the Third World has now emerged whereby the alliance of imperial forces launch military interventions and thereafter the ICC moves in a sort of military-juridical two-pronged approach to intervention whose purpose masquerades as the protection of civilians and international criminal justice.75 Yet, any criticism of the ICC and the dangerous instrument of post-colonial domination it is fast becoming is often met with the retort ‘what about justice for the victims of atrocities’.76 This enterprise championed by NGOs in the Global North and their hand-picked local subsidiaries in the South conveniently turn a blind eye to centuries of atrocities during colonialism, apartheid, the sub-human conditions and other abuses suffered by minority groups in the Global North, and other forms of structural violence perpetrated by multinational corporations.77 Finally, international criminal justice regime does not address structural violence and socio-economic crimes committed by international financial institutions and the socio-economic conditions they produce in the Global South. This selectivity has sometimes been extended to Global South political elites who have successfully aligned with the dominant global power structure. Thus, TWAIL scholars conclude that international criminal justice suffers from the same disease that 73

Moreno Ocampo was alleged to have been taking orders from Washington on the indictment of Al Bashir. See Krever 2016. At the same time the US has for example adopted the Hague Invasion Act, it made sure that under the same UN Security Council resolution through which Sudan was referred to the ICC, US and US nationals were offered immunity from prosecution for whatever international crimes they might commit. The UK and France may have been less explicit or brazen in their own expositions, but recent developments indicate that the UK in particular has vowed that no UK troops accused of committing international crimes in Iraq, Afghanistan and Syria would appear before the ICC. To be fair, Australia had investigated misconduct by its troops, but those accused would be standing trial in Australia and not the ICC. Why? The ICC operates on the basis of complementarity. 74 Krever 2016. The Court has long been accused of bias against Africans and for unfairly targeting Africa. So much so that the Court was cynically labelled the ‘International Caucasian Court’ by Sheriff Bojang the Information Minister of the Gambia. 75 Krever 2016. 76 Ibid. 77 Clarke 2019, p. 36. Defenders of the ICC point at the composition of the Court to refute allegations of bias and selectivity. But as Tor reminds us, having a black President and Attorney General and judges has not stopped the structural violence and racism against African-Americans that defines the US criminal justice system. While an African Prosecutor or Judge or any other judge at the ICC for that matter may not be overtly targeting Africa and Africans, this does not disprove the existence of institutional racism and systemic and structural violence perpetuated through institutions such as the ICC and which are usually subtle and seldom discernible. The example of Moreno Ocampo and his legacy as Prosecutor of the ICC in relation to the situations investigated in Africa demonstrate (i) the reincarnation of the civilising mission of colonial times, and (ii) how the ICC operates as instrument to carry forward the colonial project and imperialism. It is immaterial that the ICC was initially conceived as a ‘counter-hegemonic’ project by being set up by treaty ratified by States. But by subjecting the ICC to the authority of the UN Security Council through Article 13(b) and 16 of the Rome Statute, the ICC, once again re-enacts Nuremberg—that international criminal justice is essentially an instrument of neo-colonialism and judicial imperialism.

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besets international law more broadly. International criminal justice is therefore, just an additional tool in the repertoire of the modern civilizing mission whose purpose is to humanise the peoples of the Third World and deliver ‘justice’ to the savages by replacing a system inherently incapable of delivery justice to the many victims in the Third World.78 Framed in the language of universal human rights, democracy and the rule of law, the post-colonial state in the Third World is projected has having failed thus, necessitating external military or judicial interventions or both. This then lays the foundation for what follows in the subtle erosion or unmaking of the sovereignties of the Third World—a process to which the international criminal justice has become central. TWAIL is therefore relevant to the ensuing discourse and articulating the concerns of the Global South with international criminal justice and its proximity to hegemonic power relations that forms the focus of this volume. The next of these concerns is the claim to universality of international criminal justice norms and the underlying values.

2.3.3 The Supposed Universality of Legal Norms Another area of concern to the Third World is how the supposed ‘universal’ standards and values are arrived at with little regard for non-Western conceptions of justice. What qualifies as fair trial is measured against the standards contained in the ICC Statute. For example, at the mention of ‘fair trial’, the legal imagination of international criminal justice enthusiasts conjures the picture of a courtroom packed with defence lawyers, prosecutors, judges etc. So, to qualify as fair trial, an international criminal justice process must have these elements and meet this threshold.79 This standard apparent western paradigm held up as ‘universal’ standard does not countenance a process without the presence of a lawyer. In other words, it is the gold standard of what qualifies as ‘fair trial’ in accordance with the ICC Statute. It is true that this is now a part of the criminal justice system in most jurisdictions across the Third World. Hence, this relic of the civilising mission of a colonial heritage is often held up as validating its claim to universality while ignoring the resilient albeit marginalised voices of juridical resistance of African customary law. In this way, international law confers the imprimatur of general principle of law recognised by civilised nations thus making it a valid source of a universal norm of international criminal law. In this way international criminal justice symbolised by the ICC and its founding ICC Statute serve as a mechanism for the continuation of the supplanting and emasculation of indigenous legal systems started during colonisation, this time, in the international criminal justice arena. Both as a source of principles drawn from international law that has historically served and been used for the subjugation of Third World peoples international criminal justice becomes complicit in this imperial project. One can draw some tentative conclusions from the above arguments: first, 78 79

See generally Mutua 2001, pp. 201–245. See Part VI of the ICC Statute dealing with different aspect of the Trial process before the Court.

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that much like international law generally, international criminal justice privileges western legal norms as universal standards. To be considered as valid, non-Western notion of justice have to approximate to Western standards and this is a concern for TWAIL. As Anghie and Chimni argue, the growing regimes of international law ‘directed at bringing about a particular way of being is therefore closely connected to the kind of universality that resides at the core of the international legal project.’80 This is not to reject the universality of certain values but it is to resist the universality of every value whose sole claim to universality is its basis in colonial international law—it is to be alert to what type of universality to embrace and the type to resist.81 Another area in which we see the manifestation of this in the ICC paradigm of international criminal justice is the principle of complementarity which supposedly underpins the ICC system. If a State party that has jurisdiction is ‘unwilling or unable’ to investigate and prosecute the alleged crimes, the ICC can assume jurisdiction.82 The ‘unwilling or unable’ doctrine adopted here represents the continuities of the ‘civilised-uncivilized’ yardsticks that have defined how international law has historically been applied to the Third World.83 It is therefore arguable that the meaning of ‘unwilling or unable’ as contemplated by the ICC Statute implies where the judicial system of a particular State party does not approximate to ICC standards which in this case, suggests a judicial system that does not resemble the Western system which is what is regarded as the universal standard by the ICC Statute. Closely connected to this is the idea that equates ‘justice’ with retributive justice—a standard against which all others must be judged. The problem with the notion of the universality of retributive justice in this sense is that its claim to universality arises from representing the values of certain societies different to its own set of values as particular or relative while asserting itself as the universal.84 Underlying this and similar normative standards in the ICC Statute framework is the assumption that these values are hierarchically superior and universal and non-Western notions of justice that are different do not qualify as ‘justice’ in terms of the ICC Statute. It is this privileging of certain values of certain societies that ignores the reality that some societies do not subscribe to ICC-style retributive justice as an appropriate or adequate response to address mass atrocities.85 To the extent that the ICC framework of international criminal justice does not recognise the plurality of values, it is complicit in entrenching hegemonic international law and promoting the imperial project. For this reason, TWAIL ‘insists on the recognition of cultural and civilizational plurality and diversity’ and TWAIL scholars unmask this and other modes of colonial continuities as arenas for contestations and resistance.86

80

Anghie and Chimni 2003, p. 202. Eslava and Pahuja 2011, p. 108; Mutua 2000 p. 37; Kiyani 2015b, p. 31. 82 See Article 17(1)(a) of the ICC Statute on the question of admissibility of cases before the ICC. 83 Tzouvala 2016, p. 267. 84 Eslava and Pehuja 2012, p. 211. 85 See generally Okafor and Ngwaba 2015, pp. 90–108. 86 Baxi 2002, pp. 713–714. 81

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A final example of these cultural biases and its operations within the ICC framework of retributive justice can be seen in the case of The Prosecutor v. Dominic Ongwen where the Trial Chamber of the ICC rejected the possible impact of the defendant’s cultural beliefs on his criminal conduct.87 In the Court’s attempt to evaluate evidence to arrive at a notion of ‘justice’ determined by alleged universal standards contained in the ICC Statute—retributive justice—the Court had to grapple with the cultural context of the society within which the alleged conduct took place. Space will not permit a detailed critique of this case here but it suffices to state that in the Court’s construction of ‘justice’ it was unable to envision an alternative notion of what constitutes ‘justice’ in a variety of socio-cultural contexts. In the context of the campaign to end impunity, justice for the victims of atrocities is linear and viewed through one dimensional prism—retributive justice culminating in investigation, prosecution, conviction and imprisonment. Societies undergoing transition from violent conflict are faced with a hierarchy of norms with international criminal prosecution and the ICC sitting right at the top. TWAIL contests such hierarchical ordering ‘driven by complexes of superiority.’88 It is no surprise that this ICC style retributive justice has arguably yielded little fruits for transitional justice societies in Africa. For example, the search for justice in Uganda. On the one hand, the selective prosecution of rebel leaders of the Lord’s Resistance Army have been hailed as a victory for the victims and their quest for justice. However, on the ground, if one leaves aside for the moment the NGO-driven media perspective of justice as retribution, the story seems different. The Acholi community and their conception of justice as the restoration of social harmony through participation in propitiatory rituals aimed at reconciliation represents this opposition and marginalised voices in international criminal justice discourse.89 It is viewed as the ‘other’, that in some way suggests it is inferior to the ICC retributive justice. This characterisation not only deprives these victims and their community agency but ensures that they remain the marginalised voices in international criminal justice discourse. The defendant may very well have still been convicted but beyond the obvious fact that this demonstrates the intolerance of the current ICC framework of international criminal justice towards legal pluralism and diversity in international criminal justice, it also shows the ways in which contemporary international criminal justice perpetuates the colonial civilising mission. The language of human rights is often appropriated by the ICC for this purpose. Invariably, the normative claims of universality of human rights, the cultural assumptions that underpin the human rights language by which international criminal justice and the ICC in particular have now been operationalised exposes this new ‘civilizing mission’ behind the international criminal justice project as a mechanism to export civilisation to others.90 This is not to say that human rights is not worth defending, but it is to say that the way concepts, principles, norms, and doctrines of 87

ICC, Situation on Uganda in the Case of The Prosecutor v. Dominic Ongwen, Judgement of 4 February 2021, ICC 02/04-01/15 (TC). 88 Hippolyte 2016, p. 42. 89 Baguma 2012, pp. 31–43 at 37–38, 41; Ingber 2021. 90 Anghie 2004, p. 114.

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international law have historically been produced and understood have been shaped by power imbalance since the colonial era. Contestations of these issues is TWAIL’s contribution to justice in the international legal order.91

2.3.4 Categories of International Crimes There are contestations over many crimes that matter to Africa and whether or not they should form part of the international crimes corpus. For example, Africa has expanded the scope of international crimes to economic crimes and the mode of liability for international crimes to include corporations.92 The inclusion of a set of new crimes in the Malabo Protocol reflects Africa’s concerns in areas neglected by international criminal law, but which are considered to be part of the structural violence that serve as ‘drivers’ of conflicts leading to atrocities in Africa though not address by the ICC.93 The Malabo Protocol which merged and expanded the jurisdiction of the African Court of Justice and Human and Peoples’ Rights (ACJHR) confers jurisdiction on the International Criminal Law Section of the Court to try offences such as mercenarism, corruption; money laundry; illegal exploitation of natural resources, trafficking in hazardous wastes and so on.94 Among other things, the Protocol has been criticised for three main reasons: first, conferring immunity on heads of states; secondly, for conferring an overly broad jurisdiction on the Court which could render the Court ineffective; thirdly, for granting jurisdiction to the ACJHR in respect of crimes over which the ICC already exercise jurisdiction under the ICC Statute.95 The first criticism has always overshadowed the other two mentioned above in the literature and they will not be examined further here. I will instead limit my comments to the jurisdiction over new crimes and the traditional ICC crimes. The main reason for the non-inclusion of the so-called treaty crimes in the ICC Statute was because these crimes did not receive enough support from delegates at the Preparatory Committee of the Establishment of an International Criminal Court.96 The apparent reason for lack of support was because a crime like drug trafficking had the potential to overwhelm the Court by the sheer volume of cases the ICC would have had to deal with, while terrorism was still considered too vague because of the apparent lack of a generally accepted definition.97 Secondly, it was important to consider that for the ICC to enjoy the kind of jurisdiction the ICC Statute would be founded upon, it was necessary that the crimes 91

Eslava and Pahuja 2012, p. 199. See Article 46C of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights adopted in June 2014 (African Union 2014). 93 See Clarke 2019, p. 205. 94 See Article 46C of the Malabo Protocol. 95 See Amnesty International 2017. 96 See Triffterer 1999, pp. 98–99. See also (UN 1997) UN Doc. A/AC.249/1997/L.5, pp. 16–17. 97 Trifterer 1999, p. 98. 92

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should be those that reflect existing customary international law.98 What is however, clear is that whereas the anti-impunity campaign was an overriding consideration for the vast majority of delegates at the conference to establish the ICC including the African bloc, States had different interests and priorities that had to be managed in order to build consensus especially those of the permanent five members of the UN Security Council.99 To the extent that those interests were reflective of how international law was created and continue to be shaped by historical and continuing inequalities and power relations, it was not surprising that the ICC Statute did not some of the important concerns of Africa including corporate criminal liability but made the ICC, a judicial institution, subject to the control of a political organ like the UN Security Council. The crimes included in the Malabo Protocol should then be understood against the backdrop of the African assessment that the continent had ended up with a system different from the counter-hegemonic international criminal justice system it thought it had voted to establish in 1998.100 I have already mentioned above that international criminal justice in dealing with colonial crimes remains a blemish on the system. In addition, the current ICC-crimes do not speak to the structural and the everyday violence in the Third World on the social and economic front that create or exacerbate conditions for mass atrocities.101 So beyond the anti-impunity campaign narrowly focusing on individual criminal responsibility to save the ‘African victim’, it is argued that criminal responsibility for atrocities ought to include the crimes mentioned above. This view is shaped by Africa’s experience with international law. As Clarke puts it ‘[w]hile the making of an African court with criminal jurisdiction is being shaped by a wider institutional campaign around Pan-African histories and struggles, it is also a response to the lack of judicial activity in African jurisdictions for crimes of slavery, imperialism, colonialism, apartheid, and subsequent forms of economic plunder set against the contemporary anti-impunity campaigns that target individual Africans for criminal responsibility for crimes that operate within the afterlife of those spheres of structural inequality.’102 The new crimes included in the Malabo Protocol takes the ACJHR beyond the ICC scope by providing for criminal accountability for crimes excluded in the ICC Statute because they were considered too controversial at the international level. In this sense, the scope of the crimes in the ICC Statute is inadequate to address the nature of violence and atrocities plaguing Africa and the wide variety of actors responsible for those atrocities. Africa’s perception of international criminal justice can therefore be understood not just in terms of whether or not Africa complies with international criminal law dealing with physical violence, but in relation to Africa’s history of colonial domination, current conditions of inequalities, and Africa’s current

98

Ibid., p. 99. See generally Bassiouni 1999, pp. 443–469. 100 Clarke 2019, p. 58. 101 Clarke 2019, pp. 104, 119 et seq. 102 Ibid., p. 184. 99

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position in the world.103 Hence, given what the ICC has become, the Malabo Protocol offers an opportunity to ‘redefine the nature of violence in Africa as embedded in multiple forces of plunder and economic inequalities and multiple actors ranging from individual perpetrators to leaders of multinational corporations and terrorist gang networks.’104 In this contested domain, there is also the likelihood of a clash of jurisdiction between the ACJHR and the ICC over crimes in which both courts can exercise jurisdiction in terms of their founding instruments—war crimes, genocide, crimes against humanity and aggression. Space will not permit a detailed analysis here save to mention that a range of possible obstacles have been identified as confronting the Court when it does come into effect.105 These are valid issues to be considered. However, it is sometimes the case that some of these concerns are raised based on certain underlying assumptions. For example, using the African Human Rights Court system and its jurisprudence, James Gathii has demonstrated how Africa is viewed as second-class in the Global North because institutions from Africa generally are not regarded as epistemic sites of legal knowledge.106 Drawing on Kamari Clarke’s recent work, Gathii exposes how international tribunals also reproduce and entrench the colonial character of international law generating the fear and suspicion that an African Human Rights system exercising independent interpretations to international instruments such as UN treaties could lead to ‘jurisprudential chaos’ in international human rights law.107 Similar tendencies have been extended into the international criminal law regime in attempting to silence the marginalised voices that the Malabo Protocol crimes represents, TWAIL scholars’ views this as a site for contestation. In doing so, TWAIL seeks to go beyond the narrow preoccupation of justice v peace or impunity debates to examine narratives that privilege certain world views that sees ICC legal justice of selective prosecution as the best way to respond to violence and atrocities in societies. Not only does ICC not deal with crimes implicating the interests of powerful transnational actors, it ignores the structural violence in the international legal order.

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Gathii 2020a, b, p. 14; Clarke 2019, pp. 33–34, 58, 60. Clarke 2019, p. 212. 105 The International Criminal Law section of the African Court of Justice and Human Rights (ACJHR), ranging from the ‘flawed process followed in the drafting of the Protocol’ and issues of human and financial capacity and potential delays and their impact on the fair trial process. These will not be unique to the ACJHR as the ICTY and ICTR. Even the experience of the ICC so far does not suggest anything different in terms of incommensurability of resources expended with successful prosecutions. Perhaps the more serious concern is the prospect of overlapping jurisdiction between the ACJHR and the ICC which has been subject to debates with strong opposing views from both sides. 106 Gathii 2020a, b, pp. 2, 14–16. 107 Ibid., p. 6. 104

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2.4 Conclusion In this chapter, I have attempted to present a brief overview of Third World Approaches to International Law and how the framework it provides has been used to examine international criminal justice. Besides the theoretical and methodological prism TWAIL offers for examining international law more broadly, by situating international criminal law in its proper historical context, TWAIL provides an opportunity for gaining insights into the manifestations of the chasm between the promise of international criminal justice as a mechanism for ending impunity and the reality of international criminal justice as a mode of colonial continuity. This continuity is manifested in the ways in which institutions of international criminal justice are established; the selective approach of those institutions to the prosecution of international crimes; the privileging of values from certain societies as universal values; and the kinds of acts or conduct that qualify as international crimes. Across these sites, TWAIL scholars engage in scholarship to reveal how the international criminal justice system as presently constituted is incapable of rendering justice for the multiple injustices the Third Word peoples have suffered and continue to suffer. It is inevitable that Third World scholars with these sensibilities and historical consciousness advance resistance to this type of international criminal justice that perpetuates the subjugation of the Global South whilst seeking opportunity for its reform and transformation.

References African Union (2014) Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights Amnesty International (2012a) Civilian Deaths from NATO Airstrikes must be Properly Investigated. https://www.amnesty.org/en/latest/news/2012a/03/libya-civilian-deaths-nato-airstrikesmust-be-properly-investigated/. Accessed 22 October 2021 Amnesty International (2012b) Libya: The Forgotten Victims of NATO Strikes. https://www.amn esty.org/en/documents/MDE19/003/2012b/en/. Accessed 28 January 2022 Amnesty International (2017) Africa: Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court—Snapshots. https://www.amnesty.org/en/wp-content/upl oads/2021/05/AFR0161372017ENGLISH.pdf. Accessed 28 January 2022 Anghie A (2004) Imperialism, Sovereignty and the Making of International Law, 2nd edn. Cambridge University Press, Cambridge Anghie A, Chimni BS (2003) Third World Approaches to International Law and Individual Responsibility in Internal Conflicts. Chinese Journal of International Law 2: 77–103 Anghie A et al. (eds) (2003) The Third World and International Order: Law, Politics and Globalisation. Brill Nijhoff, Leiden Baguma U (2012) When the Traditional Justice System is the Best Suited Approach to Conflict Management: The Acholi Mato Oput, Joseph Kony, and the Lord’s Resistance Army (LRA) in Uganda. Journal of Global Initiatives: Policy, Pedagogy and Perspective 7:1 pp. 31–43 Bassiouni MC (1999) Negotiating the Treaty of Rome on the Establishment of an International Criminal Court. Cornell International Law Journal 32: 443–469

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Baxi U (2002) What May the ‘Third World’ Expect from International Law? Third World Quarterly 27: 713–725 Bedjaoui M (1979) Towards a New International Economic Order. Holmes & Meier Publishers, New York Chimni BS (2006) Third World Approaches to International Law: A manifesto. International Community Law Review 8: 3–27 Chimni BS (2012) The Self, Modern Civilization, and International Law: Learning from Mohandas Karamchand Gandhi’s Hind Swaraj or Indian Home Rule. European Journal of International Law 23: 1159–1173 Chimni BS (2017) International Law and World Order: A Critique of Contemporary Approaches, 2nd edn. Cambridge University Press, Cambridge Clarke K (2009) Fictions of Justice: the International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa. Cambridge University Press, New York Clarke K (2019) Affective justice: The International Criminal Court and the Pan-Africanist Pushbacks. Duke University Press, Durham D’Souza R (2012) Imperial Agendas, Global Solidarities, and Third World Socio-Legal Studies: Methodological Reflections. Osgoode Hall Law Journal 49: 409–444 De Vos C et al (eds) (2015) Contested Justice: The Politics and Practice of International Criminal Court Interventions. Cambridge University Press, Cambridge Eslava L, Pahuja S (2011) Between Resistance and Reform: TWAIL and the Universality of International Law. Trade, Law and Development 3: 103–129 Eslava L, Pahuja S (2012) Beyond the (Post)Colonial: TWAIL and the Everyday Life of International Law. Law and Politics in Africa, Asia and Latin America 45: 195–221 Falk R (2016) Foreword: Third World Approaches to International Law (TWAIL) special issue. Third World Quarterly 37: 1943–1945 Falk R et al. (2006) Reshaping Justice: International Law and the Third World: An Introduction. Third World Quarterly 27: 711–712 Falk R et al. (2008) International Law and the Third World. Routledge, London Galindo GRB (2016) Splitting TWAIL? 33 Windsor Y B Access Just 39–56. Gathii JT (2000) Rejoinder: Twailing International Law. Michigan Law Review 98: 2066–2071 Gathii JT (2011) TWAIL: A Brief History of its Origins, its Decentralised Networks and a Tentative Bibliography. Trade, Law and Development 3: 26–64 Gathii JT (2020a) The Promise of International Law: A Third World View (25 June 2020). Grotius Lecture Presented at the 2020 Virtual Annual Meeting of the American Society of International Law Gathii JT (2020b) TWAIL and International Legal History. Lecture Delivered at Jindal Global University, 5 October 2020, https://www.youtube.com/watch?v=zdrwEqc3w9wandt= 992s. Accessed 20 June 2021 Hippolyte AR (2016) Correcting TWAIL’s Blind Spots: a Plea for a Pragmatic Approach to International Economic Governance. International Community Law Review 18: 34–52 Hoile D (ed) (2017) Justice denied: The Reality of the International Criminal Court, 2nd edn. African Research Centre, London Ingber M (2021) The Rome Statute and the ‘Interests of Justice’ for Victims of Mass Atrocities: Understanding the Relationship Between Africa’s Colonial Legacy and the ICC’s Legal Framework for Justice. Paper Presented at a Webinar on Africa, International Criminal Justice and Accountability for Colonial Crimes, University of Leicester, United Kingdom Iyi JM (2019) Re-thinking the Authority of the UN Security Council to Refer Nationals of Non-Party States to the ICC. 66 Netherlands International Law Review 66: 391–417 Jackson RH (1945) Opening Statement by Robert H. Jackson at the International Military Tribunal, Nuremberg, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 - 1 October 1946, vol II, (Second Day, 21 November 1945) pp 98–99

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Kaleck W (2020) On Double Standards and Emerging European Custom on Accountability for Colonial Crimes. In: Bergsmo M et al. (eds) Colonial Wrongs and Access to International Law. Torkel Opsahl Academic EPublisher, Brussels, pp 1–40 Kiyani A (2015a) International Crimes and the Politics of Criminal Theory: Voices and Conduct of Exclusion. New York University Journal of International Law and Politics 48: 129–208 Kiyani A (2015b) The Antinomies of Legitimacy: On the (Im)Possibility of a Legitimate International Criminal Court. African Journal of Legal Studies 8: 1–32 Kiyani A (2016a) Symposium on TWAIL Perspectives on ICL, IHL, and Intervention—Third World Approaches to International Criminal Law. AJIL Unbound 109: 255–259 Kiyani A et al. (2016b) Third World Approaches to International Criminal Law—Foreword. Journal of International Criminal Justice 14: 915–920 Krever T (2014) Dispensing Global Justice. New Left Review 85: 67–97 Krever T (2016) Africa in the Dock: On ICC Bias. https://criticallegalthinking.com/2016/10/30/afr ica-in-the-dock-icc-bias/ Accessed 28 January 2022 Mickelson K (1998) Rhetoric and Rage: Third World Voices in International Legal Discourse. Wisconsin International Law Journal 16: 353–419 Morris M (2001) High Crimes and Misconceptions: The ICC and Non-party States. Law and Contemporary Problems 64:13–66 Mutua M (1997) Never Again: Questioning the Yugoslav and Rwanda Tribunals. Temple International and Comparative Law Journal 11: 167–188 Mutua M (2000) What is TWAIL? Proceedings of the ASIL Annual Meeting 94: 31–40 Mutua M (2001) Savages, Victims and Saviours: The Metaphor of Human Rights. Harvard Journal of International Law 42: 201–245 Mutua M (2019a) Reflecting on the Genocide of the Ovaherero and Nama Peoples of Namibia 115 Years Later. In: European Centre for Constitutional and Human Rights (ed) Colonial Repercussions: Namibia. https://www.ecchr.eu/fileadmin/Publikationen/ECCHR_NAMIBIA_DS.pdf. Accessed 28 January 2022 Mutua M (2019b) The Crisis of International Law: Why TWAIL Still Matters. Keynote— Symposium “Post-Colonial Injustice and Legal Interventions” of the “Colonial Repercussions/Koloniales Erbe” Event Series at the Akademie der Künste, Berlin. 26 and 27 January 2018. Available at https://www.youtube.com/watch?v=tHVhvNWk8zI. Accessed 16 February 2022 Ngugi J (2002) Making New Wine for Old Wineskins: Can the Reform of International Law Emancipate the Third World in the Age of Globalization? UC Davis Journal of International Law & Policy 8: 73–106 Office of the Prosecutor (2021) Statement of the Prosecutor of the International Criminal Court, Khan K, Following the Application for an Expedited Order Under Article 18(2) Seeking Authorisation to Resume Investigations in the Situation in Afghanistan, 27 September 2021. https://www. icc-cpi.int/Pages/item.aspx?name=2021-09-27-otp-statement-afghanistan. Accessed 7 October 2021 Okafor OC (2005) Newness, Imperialism, and International Legal Reform in our Time: A TWAIL Perspective. Osgoode Hall Law Journal 43: 171–191 Okafor OC (2008) Critical Third World Approaches to International Law (TWAIL): Theory, Methodology or Both?. International Common Law Review 10: 371–378 Okafor OC, Nngwaba U (2015) The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections. International Journal of Transitional Justice 9: 90–108 Rajagopal B (1998–1999) Locating the Third World in Cultural Geography. Third World Legal Studies 15: 1–20 Rajagopal B (2000) From Resistance to Renewal: The Third World, Social Movements, and the Expansion of International Institutions. Harvard International Law Journal 41: 529–578 Rajagopal B (2002–2003) International Law and Social Movements: Challenges of Theorizing Resistance. Columbia Journal of Transnational Law 41: 397–434

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Reynolds J, Xavier S (2016) ‘The Dark Corners of the World’: TWAIL and International Criminal Justice. Journal of International Criminal Justice 14: 959–983 Roach S (ed) (2009) Governance, Order, and the International Criminal Court: Between Realpolitik and a Cosmopolitan Court. Oxford University Press, Oxford Roth BR (2000) Governmental Illegitimacy and Neocolonialism: Response to Review by James Thuo Gathii. Michigan Law Review 98: 2056–2065 Rubin A (1994) An International Criminal Tribunal for Former Yugoslavia? Pace International Law Review 6: 7–11 Rubin A (1997) Ethics and Authority in International Law. Cambridge University Press, Cambridge Triffterer O (ed) (1999) Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Nomos, Baden-Baden Tzouvala N (2016) TWAIL and the ‘Unwilling or Unable’ Doctrine: Continuities and Ruptures. AJIL Unbound 109: 266–270 UN Preparatory Committee on the Establishment of an International Criminal Court (1997) Decisions taken by the Preparatory Committee at its session held from 11 to 21 February 1997; UN Doc. A/AC.249/1997/L.5 United Nations Security Council (2011) Resolution 1973, S/RES/1973 (2011) Werle G, Jessberger F (2014) Principles of International Criminal Law, 3rd edn. Oxford University Press, Oxford

John-Mark Iyi is an Associate Professor and Director of the African Centre for Transnational Criminal Justice at the University of the Western Cape, Cape Town, South Africa. He received his LL.B. (Hons.) and BL (Hons) from the University of Benin and the Nigerian Law School respectively. He obtained a Certificate in Peace Research from the University of Oslo, Norway, an LL.M. from the University of Ibadan, Nigeria, and a Ph.D. from the University of the Witwatersrand, South Africa. He researches in public international law and international legal theory, international peace and security, African regional organisations and terrorism.

Chapter 3

Violence in International Criminal Law and Beyond Anastasiya Kotova

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 International Criminal Law and Hegemony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 The Role of Law in Hegemony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Hegemonic Potential of International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . 3.3 Violence in International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Violence Beyond International Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 Galtung’s Theory of Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Violence Invisible to, and Made Invisible by, International Criminal Law . . . . . 3.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter examines the increasing potential of international criminal law to advance hegemonic claims over the meaning of concepts relevant beyond its own field. By building on the Gramscian conceptualisation of hegemony and the role of law therein, I suggest that international criminal law advances a certain understanding of violence, that obscures and normalises types of violence that are beyond its gaze. The power of international criminal law to advance strong claims is, in turn, based on its asserted relevance for the causes of global justice, lasting peace and punishing the most serious crimes. Keywords International Criminal Law · Violence · Hegemony · Global Justice · Peace versus Justice · Gravity

A. Kotova (B) Lund University, Lund, Sweden e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_3

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3.1 Introduction ‘[C]riminal law’, at least in some domestic doctrines, ‘is a profoundly moral business’,1 Thomas Weigend suggested in his discussion of the German approach to corporate criminal responsibility in international criminal law. While the extent to which morality has an impact on a criminal justice system varies across the board, the connection between criminal law, on the one hand, and moral views of a given society, on the other, is often asserted.2 One conceptualisation of the relationship between the two was put forth by Émile Durkheim, one of the founders of modern sociology. Durkheim suggested that criminal law proscribed conduct considered to constitute ‘ruling outrages’ and was emblematic of the foundations of moral solidarity of a given society.3 According to him, crimes ‘comprise acts universally condemned by the members of each society’ and ‘[a] crime disturbs those feelings that in any one type of society are to be found in every healthy consciousness’.4 However, the connection between universal condemnation and penal character of a prohibition might not be straightforward: in my view, it is a valid question whether conduct becomes criminal because it is universally condemned or whether criminalisation of a certain conduct leads to its eventual moral condemnation. It can be reasonably argued that criminal law does not merely reflect an abstract set of morals. I suggest that criminal law has a constitutive role in shaping society’s perception of ruling outrages, criminality and, not least, appropriate reactions to it. Notably, international criminal law can be claimed to perform this function with regard to the global community. In this chapter, I examine the role of international criminal law in producing a hegemonic understanding of violence and the consequences of such understanding. My analysis relies on Marxist analysis of law and, in particular, on the insights about hegemony provided by the Italian Marxist philosopher Antonio Gramsci. The chapter is structured into three sections: in Sect. 3.1, I outline what enables international criminal law to produce and reproduce the meaning of concepts central to the discipline—meaning, the relevance of which goes beyond strict disciplinary boundaries. In talking about international criminal law, I focus primarily on the so-called international criminal law stricto sensu,5 i.e., the substantive law of the International Criminal Court and the ad hoc tribunals and particularly the four so-called core crimes: genocide, crimes against humanity, war crimes, and crime of aggression. 1

Weigend 2008, p. 936. Wells 2001, pp. 15–16; Duff 2007, p. 44; deGuzman 2020, p. 31. 3 Rajkovic 2020, p. 65. 4 Ibid., p. 72. 5 I use the term ‘international criminal law stricto sensu’ to refer to the law pertaining to the four core crimes, since the scope of international criminal law is subject to varying interpretations in the scholarship, and I adhere to a broad definition of international criminal law whereby the definition on an international crime is not limited to the core crimes—the term international criminal law stricto sensu, therefore, is helpful in referring to the part of international criminal law related to core crimes. The terms international criminal law stricto sensu and international criminal law largo sensu can be said to correspond conceptually to the two distinct terms in Roman and Germanic languages: ‘droit international pénal’, ‘derecho internacional penal’ and ‘Völkerstrafrecht’ are similar in scope 2

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In Sect. 3.2, I reconstruct the understanding of violence undergirding international criminal law, and in Sect. 3.3, I place this understanding within the conceptual framework of violence suggested by Johan Galtung to identify the types of violence which international criminal law is unable to see and explain why this ‘blindness’ can be problematic; Sect. 3.4 draws a broad conclusion on the consequences of narrow vision of violence in international criminal law against the backdrop of its claim to (counter-)hegemony. As I will argue, defining violence in a particular way attaches reprehension to some conduct, rendering it worthy of remedy, while practices that remain beyond the definition become normalised and naturalised.

3.2 International Criminal Law and Hegemony 3.2.1 The Role of Law in Hegemony Although hegemony is a concept used in multiple ways in international relations and international legal theory,6 I draw on the meaning of the concept elaborated in the Marxist tradition. Legal form as such, for instance, belongs to the base of the production relations,7 together with rules protecting private property, ensuring movement of capital, etc. The substantial ‘remaining’ parts of law belong to the superstructure— social relations not immediately related to production, such as politics, ideology, or religion. The relationship between the base and superstructure, that has been often misread as a quite reductive determination, is a subject of a lively theoretical debate up to this day, whereby Susan Marks suggests ‘most contemporary theorists hold to a

to international criminal law stricto sensu, whereas international criminal law largo sensu, or international criminal law interpreted broadly, corresponds to ‘droit pénal international’, ‘derecho penal internacional’ and ‘Internationales Strafrecht’ respectively—see Werle and Jessberger 2020, p. 35. Many authors, including Werle and Jessberger 2020; Cassese 2008, pp. 3–4; Cryer 2010, p. 5 reserve the term international criminal law to refer to a body of rules concerning the core crimes. The other international crimes, or the so-called treaty crimes (transnational organised crime, terrorist offences, corruption, various trafficking offences, etc.), following this definition of international criminal law, fall into a relatively recent category of transnational criminal law. Scholars, influential in the field of international criminal law prior to this conceptual divergence, most notably M. Cherif Bassiouni, understood international criminal law primarily as international criminal law largo sensu, see Bassiouni 2013, pp. 1–57. For a discussion of the international/transnational criminal law divide and its implications for the discipline, see Guilfoyle 2020; Mégret 2020. For a critique of these varying approaches to international criminal law scope ratione materiae, see Baars 2019, pp. 243–263. 6 Hegemony as an analytic concept is used, in particular, to theorise a dominant position of a state in the international system; it is also understood as a discursive practice. However, it is within Marxist theoretical framework that allows not only to identify hegemony, but also to explain the reasons for its emergence in the particular place and time by analysing the material basis thereof, see Knox 2019. 7 Miéville 2005, p. 88.

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[…] reading, in which the relation between the determining base and the determined superstructure is posed as a question, rather than an explanatory theory’.8 Antonio Gramsci was among the first Marxist thinkers to re-elaborate the account of the relation between base and superstructure and to put forward a nuanced reading thereof. According to Gramsci, the two are in a dialectical relationship,9 and to better understand this relationship he introduces the concept of an ‘historical block’. Historical block embodies ‘the reciprocal and interrelated development of structure and superstructure’10 in space and time. At the same time, Gramsci does not negate the primacy of social relations of production, suggesting that ‘the complex, contradictory and discordant ensemble of the superstructures is the reflection of the social relations of production’.11 An historical block, in turn, emerges when the hegemony of a dominant social group is established. The concept of historical block captures hegemony in the particular constellation of base and various superstructures, including the legal system and morality. Hegemony is ‘a process through which a class or group establishes the conditions necessary to establish control, not just through force, but through ideologically capturing popular support as the articulator of the public interest or common sense’.12 The dominant class is successful in establishing hegemony when its class interests appear as common interests, when it prevails in ‘shaping intersubjective forms of consciousness in civil society’.13 Law can be claimed to have ‘a central role’ in constituting and upholding hegemony, as it is capable of articulating such intersubjective forms of consciousness: legal rules are enacted with the declared purpose of embodying and protecting public interest, while their operation serves primarily the interests of the ruling class, at the same time establishing compliance and consensus of the wider society.14 Law ‘operates […] through processes of naturalisation, rationalisation and universalisation’.15 The specificity of criminal law is in that it ostensibly defines the most serious transgressions of a legal order, violations that should not only be met with the most serious punishment available to the state, but also with moral reproach. Notably, while Durkheim suggests, as mentioned above, that criminal law hinges upon the moral solidarity of a community, the solidarity that he invokes appears ahistorical, and divorced from specific social relations.16 If we, instead, accept the Marxian premise that the prevalent moral orientations are shaped through a dialectic interaction with 8

Marks 2008, p. 2. Cutler 2005, p. 534. 10 Morton 2007, p. 96. 11 Gramsci 2007, p. 340. 12 Cutler 2005, p. 536. 13 Morton 2007, p. 93. 14 Knox 2019, p. 356, emphasis in the original. Nicos Poulantzas has thus argued about the role of law in constructing hegemony: ‘[i]t is exactly as if the abstract, formal and general character of law had rendered it the mechanism most suitable for fulfilling the key function of every dominant ideology: namely, of cementing together the social formation under the aegis of the dominant class’ in Poulantzas 1980, pp. 87–88. 15 Cutler 2005, p. 536. 16 Rajkovic 2020, p. 74. 9

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the production relations (the base-superstructure relation), the moral views of the dominant social group develop in such a way as to justify the existing relations of production, and law becomes instrumental in establishing the hegemony of such views. Criminal law thus designates ‘moral outrages’ as determined by the dominant material conditions, i.e., the relations of production, thereby naturalising a particular, historically specific form of moral solidarity.

3.2.2 Hegemonic Potential of International Criminal Law How do these insights translate into the realm of international criminal law, given that Gramsci’s discussion of hegemony was based primarily on the framework of a nation-state? Firstly, Gramsci mentioned on several occasions that a state as a unit of analysis is a nodal point, rather than a core one, and that societal relations can be analysed from both this nodal point and other points, such as world systems.17 As demonstrated by contributions to international political economy adopting a Gramscian perspective,18 concepts of hegemony and historical block do lend themselves to analysing social relations in the international domain, if one thinks of hegemony in terms of class relations rather than purely interstate relations.19 Despite the absence of a ‘global state’, there is an emerging global civil society that claims to represent a global community, rather than national ones, and that is engaged in constructing a global intersubjective consciousness, referred to, inter alia, as global values.20 The term ‘global civil society’ refers here to a variety of institutions that compose civil society in the Gramscian understanding—non-governmental organisations, religious institutions, intellectuals (as opposed to bureaucrats, state functionaries and the military) that are oriented globally in their operations: perhaps, various international human rights non-governmental organisations are the most apparent component of this global civil society. In fact, when it comes to international criminal law, it appears to make an even stronger claim, compared to domestic law, to embodying and promoting (cosmopolitan) global values, what Frédéric Mégret calls ‘implicit claim to a monopoly of international ethics’.21 Immi Tallgren further notes on the comparison of the hegemonic potential of domestic and international criminal law that in the domestic context, recognition of the criminal justice system as a hegemonic instrument and an arena of power legitimation in the scholarship on criminal law 17

Morton 2007, p. 69. One of the most well-known international relations scholars employing Gramsci’s concept of hegemony and an influential figure in international political economy is Robert Cox, see, e.g., Cox 1981; Cox 1983. 19 The concept of hegemony has been widely used in the international relations literature (particularly in realist accounts) to analyse power relations among states—see Knox 2019, pp. 334–336. I do not engage with the concept of hegemony so understood. 20 deGuzman 2020, pp. 22, 26. 21 Mégret 2014, p. 19. 18

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and criminology is significantly less controversial than a similar claim regarding international criminal law.22 The recourse to international law for the advancement of hegemonic claims, according to Robert Knox, can be explained by the fact that it ‘takes abstract universality as one of its key starting points’.23 Universal values, shared by the entire humanity, are often invoked as the normative basis of international criminal law in general and of the operation of the ICC in particular.24 The language of common humanity and of concern of the international community permeates the preamble of the ICC Statute, although it is rarely explicated what those values entail and what is at the basis of their universality. These invocations of global values and common concern, I argue, work hegemonically to transform the particular interests of powerful states, as well as of practitioners, scholars, and advocates,25 into ‘common interests of humanity’.26 The creation and operation of the ICC have further consolidated the hegemonic operation of international criminal law by institutionalising its practices, and this is why a substantial part of the discussion below concerns the Court specifically. Below I elaborate on three narratives, whose operation, in my view, strengthens the claim of international criminal law to crystallising international morality. The first narrative is what I refer to as the ‘global justice’ narrative, the second one is the ‘contribution to peace’ narrative, and the third is the ‘most serious crimes’ narrative.

3.2.2.1

The ‘Global Justice’ Narrative

In the words of Luis Moreno-Ocampo, the first prosecutor of the ICC, ‘[t]he Rome Statute is more than a Court; it created a global criminal justice system’.27 The invocations of global criminal justice—and even merely global justice—are frequent in

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Tallgren 2014, p. 76. Knox 2019, p. 351. 24 Similarly, it is suggested by Werle and Jessberger that international criminal law draws a special ‘supranational legitimacy’ from the fact that it protects the interests of the international community that are attacked when an international crime is committed, Werle and Jessberger 2020, pp. 38–39. 25 Nouwen 2012, p. 342. 26 The universalisation of norms, values, and other elements of ideology, Knox argues, ‘has a material foundation in the universalizing and abstracting tendencies of capitalism, tendencies reproduced in international law’, Knox 2019, p. 358. 27 Moreno-Ocampo 2007, p. 216. 23

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both the ICC’s parlance28 and in the scholarship.29 Mégret suggests that international criminal justice is conflated with global justice by both its supporters and its opponents,30 while Christine Schwöbel-Patel, in her investigation of marketised global justice, argues that there is, indeed, a competition over the meaning of global justice, and international criminal law ‘has gained a status as the measure for global justice in the dominant institutional framework as well as in the public imagination’.31 Notably, the word ‘justice’, as an abstract concept, has at least two meanings: ‘[t]he quality of being fair and reasonable’ and ‘[t]he administration of the law or authority in maintaining this’.32 In ‘international criminal justice’ the word ‘justice’ appears to embody the second meaning of the word, whereas the meaning of justice in ‘global justice’ is less clear and can refer both to fairness and to the exercise of judicial authority. I argue that the conflation between international criminal justice and global justice is not accidental nor misguided:33 rather, it performs an ideological function of embedding a vision of criminal justice, dispensed by an international tribunal in a limited number of cases, as the image of the global justice. Through such conflation, a process is set in motion whereby the discussion on global justice leaves out fairness and concentrates on law enforcement.34 This process determines both the priorities for action and the end-goals as linked to penal retributivism, while obscuring the conditions of possibility, and alternative visions of justice, that are necessarily political and contested and that go beyond the operation of judiciary.35 Justice as in ‘social justice’—the redistribution of wealth and power—is relegated into obscurity.36 Since, as Steven Ratner suggests, international lawyers

28

Assembly of States Parties of the International Criminal Court, 6th Session, Remarks of the Prosecutor, 30 November 2007, https://asp.icc-cpi.int/iccdocs/asp_docs/library/asp/Statement_Prosec utor_en_30Nov2007.pdf. Accessed 19 January 2022. Assembly of States Parties of the International Criminal Court, 6th Session, Remarks of the Secretary-General of the United Nations, 3 December 2007, https://asp.icc-cpi.int/iccdocs/asp_docs/library/asp/statement_SG_6thasp_3_Dec_2007.pdf. Accessed 17 February 2022. Office of the Prosecutor (2021) ICC Prosecutor, Fatou Bensouda, Meets with the EU Foreign Affairs Ministers: “The ICC Is Central to a More Just and Rules-Based International System”. https://www.icc-cpi.int/Pages/item.aspx?name=pr1569. Accessed 12 May 2021 29 Parmentier 2003, p. 204; deGuzman 2020, pp. 6, 22, 89; Mégret 2015, p. 77; Kendall 2015, p. 113; Nouwen and Werner 2015, p. 157. 30 Mégret 2015, p. 78. 31 Schwöbel-Patel 2021, p. 15. 32 ‘Justice’ in Lexico Dictionaries powered by Oxford https://www.lexico.com/definition/justice. Accessed 12 May 2021. 33 At the same time, I do not necessarily suggest that the use to the term ‘global justice’ by practitioners, scholars, and civil society representatives is consciously aimed at establishing and maintaining hegemony—the operations of ideology are much more complex. 34 Nouwen 2012, p. 343; Nouwen and Werner 2015, p. 163. 35 Krever 2013, p. 703; Kendall 2015, p. 114. 36 I will go back to the concept of social justice and its meaning in the subsequent discussion of violence.

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hardly engage in discussions on justice and its role in the shaping of legal normativity,37 it appears that international criminal law is one of the few fields of international law that explicitly engages with the notion of global justice.38 That is to say, the vision of global justice put forward by international criminal law hardly competes with other legal conceptions thereof. Hence, in the competition with other existing conceptions of global justice, the international criminal law-style version of global justice has a major comparative advantage: it is a legalistic vision of global justice, compatible with ideas of impartiality, respect for human rights, and procedural guarantees—the features, privileged by liberal legalism. It conveniently drops the questions of redistributive justice, which are inherently political. The narrative of global justice, therefore, is instrumental in producing a hegemony that goes beyond the operation of the ICC to condition and circumscribe the political action to achieve a more just world.

3.2.2.2

‘Contribution to Peace’ Narrative

Another red thread that runs through the discourse on international criminal justice is its potential contribution to peace: it is purported that prosecuting individuals responsible for atrocities committed during an armed conflict will contribute to lasting peace and reconciliation,39 and, what is more, that criminal justice is an indispensable component in the post-conflict toolbox.40 The effect of criminal prosecutions on the establishment of peace and reconciliation, in the dearth of empirical data, appears to be more an act of faith than an established causal relation.41 This, however, did not preclude the participants of the Rome Conference from establishing a connection between prosecution of atrocity crimes and peace and security in the preamble of the ICC Statute.42 This connection has been further made explicit, for instance, by the first President of the Court, Judge Philippe Kirsch, according to whom the Court was created to put an end to impunity for the most serious international crimes, to contribute to the prevention of these crimes, to address the threat such crimes pose to peace and security, to bring

37

Ratner 2015, pp. 19–20. While there is by now a vibrant discussion on various moral philosophical and ethical questions pertaining to international criminal law, it is noteworthy that the international criminal law practice and scholarship hardly engage with the philosophical literature on global justice, see Schwöbel-Patel 2021, p. 14. 39 Werle and Jessberger 2020, p. 38; Nouwen 2012, p. 331. 40 Nouwen and Werner 2015, p. 162; McAuliffe and Schwöbel-Patel 2018, pp. 995, 998. 41 Nouwen and Werner 2015, p. 168. 42 Preambular paras 3 and 4 state: ‘Recognizing that such grave crimes threaten the peace, security and well-being of the world, Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation…’, ICC Statute. 38

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justice to victims and to guarantee lasting respect for and the enforcement of international criminal justice.43

The continued insistence on criminal prosecutions being indispensable to the establishment of peace is particularly surprising in the light of the experience of several states, where the peace process was negatively affected by the ICC involvement, particularly Uganda and the Sudan.44 It would be unreasonable to imply that ICC arrest warrants against the high-ranking individuals involved in the armed conflicts in the two states were the principal cause of negotiations being stalled, given the complexity of the situations and the multiplicity of actors involved. It is nevertheless surprising that the then ICC Prosecutor Luis Moreno-Ocampo glossed over concerns from the local communities and other voices questioning the viability and timing of such arrest warrants.45 The two cases were, perhaps, the most acute practical representations of the ‘peace versus justice’ dilemma in the practice of the ICC, with which the fields of transitional justice and peace-building had been grappling for years. The dilemma lies in the fact that criminal prosecutions during an ongoing armed conflict can potentially prolong such conflict and compromise the achievement of peace, and while both bringing perpetrators of atrocity to accountability and ending hostilities are valid and desirable political goals, sometimes a tension emerges in pursuing them simultaneously.46 At the same time, it has been increasingly asserted by numerous voices in advocacy, academia and even in the field that any pathway to peace has to include criminal prosecutions and that impunity will always hang as the sword of Damocles over a fragile peace. However, following the ICC interventions, the peace versus justice debate appears to have withered away—or at least the Court itself acts as though it did, asserting that there can be no peace without justice. As Sarah Nouwen incisively suggests, the notion of peace that the Court adopts is a quite illusive one, oscillating between the so-called positive and negative peace, the absence of hostilities and genuine and lasting reconciliation. At times it insists that the criminal justice element is indispensable to ending hostilities (i.e., negative peace) by incapacitating the key figures in the conflict, but when the ICC’s intervention stands in the way of ending hostilities, positive peace suddenly becomes a priority, and the achievement of reconciliation, again, is only possible if there is no impunity, that is, if criminal justice is pursued.47 By insisting that an international judicial intervention is indispensable to peace, International Criminal Law similarly strengthens its hegemonic potential to shape the intersubjective understanding of other phenomena.

43

Assembly of States Parties of the International Criminal Court, 5th Session. Opening Remarks of the President of the Court, 23 November 2006, https://www.icc-cpi.int/NR/rdonlyres/3EEF266EE4B1-486C-9B05-DD0D87CDBEEB/143883/PK_20061123_en1.pdf, p. 2. Accessed 19 January 2022. 44 Nouwen and Werner 2010; Nielsen 2008, p. 81; Nouwen 2012; Krever 2014a, p. 85. 45 Nouwen 2012, pp. 332, 335. 46 Royer 2017, p. 404. 47 Nouwen 2012, p. 339.

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The ‘Most Serious Crimes’ Narrative

International criminal law stricto sensu as a corpus of norms and the ICC as the institution with jurisdiction for their enforcement rely, for their own legitimacy,48 on the claim that they address the ‘most serious crimes of concern to the international community as a whole’.49 Gravity and seriousness are the central conceptual categories in international criminal law, applied in a variety of contexts, especially in the operation of the ICC. They delimit the prescriptive jurisdiction of international criminal law,50 they guide the choice of situations to be investigated51 and, when an investigation results in a prosecution and a guilty verdict, play a role in sentencing.52 At the same time, the meaning of gravity in international criminal law is notoriously ambiguous and fluid:53 outlining some quantitative and qualitative criteria for the appraisal of gravity, ‘such as nature, scale and manner of commission of the alleged crimes, as well as their impact on victims’54 is the furthest the ICC jurisprudence has come in the establishing of its normative content. When it comes to the material scope of international criminal law and the crystallisation of core crimes, the concept of gravity has been used to justify the emergence of this category. This is a fairly recent development in international criminal law: as a number of commentators suggest, the notion of international crime has not always been synonymous with that of a ‘core crime’ or a crime of most serious concern to humanity.55 The idea that the label ‘international crime’ should be reserved for ‘the most serious of the most serious’ crimes only emerged in the work of the International Law Commission in the late 1980s56 and crystallised as common sense with the creation of the ICC. Thus, not only does the international criminal law have the power ‘to frame certain problems as criminal law problems’,57 it also claims the right to define the gravest crimes for all of the international community. I suggest that this additional discursive power to (implicitly) decide what the most serious crimes are and (explicitly) seek to address them through an ‘international judicial intervention’ that international criminal law has acquired serves to strengthen 48

A detailed investigation of the normative content of the concept of gravity, its use and legitimating role in international criminal law is provided by deGuzman 2020. On the reliance of international criminal law on the concept of gravity, see p. 2. 49 Preamble, ICC Statute. 50 Schabas 2017, pp. 74–75; for an opposite view, see O’Keefe 2015, pp. 57–58, who argues that an idea that gravity can serve as an identifying feature of international crimes is ‘misleading’. 51 Schabas 2017, pp. 182, 186. 52 Ibid., p. 325. 53 Kalpouzos and Mann 2015, pp. 3, 24; deGuzman 2020, p. 61; Rajkovic 2020, p. 84. 54 Situation on Registered Vessels of the Comoros, the Hellenic Republic of Greece and the Kingdom of Cambodia (ICC-01/13), Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, para 21, as quoted in Schabas 2017, p. 186. 55 Schwöbel-Patel 2020, pp. 781–782; Guilfoyle 2020, pp. 791, 794, 799; Mégret 2020, pp. 815–817. 56 deGuzman 2020, p. 47. 57 Mégret 2014, p. 23.

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its hegemonic potential.58 As Tallgren suggests, international criminal law provides a readily available remedy to the sense of urgency that we experience when facing the enormity of atrocious crimes—‘something must be done’, and an answer is suggested immediately: those responsible for the crimes must be punished.59 The danger of the claim of international criminal law to have identified the most serious crimes is that all other crimes are automatically relegated to the status of less important and, as such, are less likely to be considered and addressed.60 The three narratives discussed so far are self-reinforcing: the indispensability of international criminal law in achieving global justice and establishing lasting peace entitles it to pronounce on which crimes are the ‘ruling outrages’ of the global community and, at the same time, ending impunity for these crimes constitutes the contribution of international criminal law to achieving global justice. Cumulatively, they increase the power of international criminal law to influence the content and meaning of other concepts with which it engages. Importantly, these narratives themselves represent victories in hegemonic struggles: as evidenced so far, among the competing understandings and narratives of justice, peace, and gravity, the ones described above have become hegemonic, whether they are simplified and unidimensional as in the case of global justice, or ‘constructively’ vague and oscillating as in the case of positive or negative peace and of gravity.

3.3 Violence in International Criminal Law Violence is a silent presence in both domestic and international criminal law: it is rarely present in legal texts and is not defined by them, but it exerts a profound influence on the content of criminal prohibitions on a conceptual level, as expressions like ‘crime and violence’ or ‘violent crime’ suggest. The understanding of violence underlying criminal law is a relatively thin one: it regards as violent the conduct resulting in direct physical harm, such as paradigmatic criminal offences—murder, battery, rape, etc.61 At the same time, criminalisation attaches the moral reproach of society, ostensibly inherent in a conviction, to such violence. Violent crimes squarely fall under the category of mala in se—offences that are wrong as such, and not because of being legally prohibited, as mala prohibita, mostly regulatory offences. As to international criminal law, it is often deemed to address the consequence of mass atrocity, or mass violence, and three of the four core crimes (genocide, crimes against humanity and war crimes) include a wide catalogue of mala in se acts, such as murder, torture and inhumane treatment, rape, and sexual violence.62 The ad hoc 58

This term was coined by the US representative at the Rome Conference David Scheffer, as quoted in Royer 2017, p. 407. 59 Tallgren 2002, p. 564; see also Kendall 2015, p. 125. 60 Tallgren 2002, p. 595; Schwöbel-Patel 2020, p. 769. 61 Carvalho 2019, p. 9. 62 ICC Statute, Articles 5–8.

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tribunals and the ICC use the term in some instances, such as employing ‘acts of violence’ to refer to individual episodes of crimes investigated.63 What are other characteristics of violence that international criminal law recognises, besides the focus on direct physical harm? Firstly, as suggested above, international criminal law is concerned with mass or large-scale violence. Although it is often asserted that qualifying a crime as international does not rely on a number game,64 the context, necessary for offences to qualify as crimes under the ICC Statute, is that of relatively large-scale violence. For genocide, the Elements of Crimes prescribe that ‘[t]he conduct’, listed in Article 6 paras a–e, must have taken place ‘in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction’.65 While this is not, strictly speaking, a contextual element, for a manifest pattern to be established, the violence perpetrated against a protected group has to result in at least a number of victims. Crimes against humanity, according to Article 7 of the ICC Statute, must be ‘committed as part of a widespread or systematic attack directed against any civilian population’,66 whereas war crimes can only be committed in a context of an armed conflict, which also presupposes a certain level of violence, especially in a non-international armed conflict. While domestic criminal law primarily deals with individual acts of violence, international criminal law is normally concerned with a larger number of victims in a situation of conflict or in the presence of a repressive government, in a state where, moreover, the domestic justice system is often unable to deal with each individual case of violence. Secondly, according to Ioannis Kalpouzos and Itamar Mann, the ICC has so far focused on violence that is ‘spectacular’ and ‘radically evil’.67 What is radically evil for the ICC can be gathered from the long history of the ICC Statute, as going back to the ILC Draft Code of the Crimes against the Peace and Security of Mankind, finalised in 1996. In the 1980s, after decades of work on the Code, the ILC abandoned its inclusive, omnibus approach in favour of a limited catalogue of crimes, affirming instead that [t]he code ought to retain its particularly serious character as an instrument dealing solely with offences distinguished by their especially horrible, cruel, savage and barbarous nature. These are essentially offences which threaten the very foundations of modern civilization and the values it embodies.68

This passage, no doubt interesting in several respects, points out at least two characteristics of the type of violence international criminal law addresses. The spectacular 63

See, e.g., Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the ICC Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09-19 (31 March 2010), para 84. 64 deGuzman 2020, p. 72. 65 ICC 2013, Elements of Crimes, pp. 2–3, https://www.icc-cpi.int/Publications/Elements-of-Cri mes.pdf. Accessed 19 January 2022. 66 ICC Statute, Article 7. 67 Kalpouzos and Mann 2015, pp. 1–5. 68 ILC, Report on the Work of Its Thirty-Sixth Session, 7 May–27 July 1984, UN Doc. A/39/10, para 63, as quoted in deGuzman 2020, p. 48.

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nature of violence, of which Kalpouzos and Mann speak, and which the passage sketches, invokes the aesthetics that international criminal law adopts. Aesthetics in this context refers to the ‘formalization of experience’ through adopting a specific kind of imagery, language, and symbolism: it denotes the historical, visual, emotive associations that a reference to ‘core crimes’ invokes.69 According to SchwöbelPatel, by shining a spotlight on spectacular violence, ‘aesthetical bias’ of international criminal law serves to obscure and marginalise instances of other violence.70 Furthermore, the vision of violence in international criminal law is racialised: the language of savagery and barbarity in international law has been traditionally used to legitimise the mission of civilising a savage and barbarous ‘other’ through international law itself,71 and as Claire Nielsen suggests, international criminal law continues this civilising mission.72 The attention paid to the outrages of some political communities and the oblivion to those of other communities are not new in international law, as Ntina Tzouvala shows using the example of slavery: while slavery on the African continent was used as an indication of the savage nature of the locals and, consequently, of the need to civilise them and of the impossibility of granting the rights enjoyed by civilised nations to them, the use of slave labour in the southern states of the United States was never seen to undermine its status as a civilised nation.73 While contemporary international criminal law purports to be universally applicable and is not as blatantly racialised, it still possesses the features that allow the violence of the states in the Global North to remain largely invisible to the eyes of the international criminal justice system. Tallgren underlines, in this vein, the focus of international criminal law on ‘primitive, low-tech forms’ of violence that serves to ‘direct the scrutiny from the centre to the periphery, [away] from infrastructural, high-tech violence’.74 This allows for the high-tech violence of the ‘civilised states’, such as the NATO bombardment of Kosovo, to remain beyond the gaze of international criminal law,75 while low-tech violence is visible insofar as it begs for the ‘other’ to be ‘civilised’, for an appropriate response—a criminal trial shaped by the Western ideals of individual responsibility—to be given. The differential attention to high-tech and low-tech violence, with the latter seemingly privileged by the ICC Office of the Prosecutor, led, for instance, to the dismissal of the situation in Iraq in 2006, that could have implicated the Allied powers’ military, opting instead for the Security Council-backed investigation in Darfur.76 The alleged genocide in Darfur invokes vivid images of savage intracommunal violence, 69

Schwöbel-Patel 2020, p. 788. Ibid. 71 Anghie and Chimni 2004, p. 193. 72 Nielsen 2008; Schwöbel-Patel 2020, p. 784. 73 Tzouvala 2020, pp. 64–66. 74 In this section I provide some examples of low-tech and high-tech violence. For a further discussion on this point, see Tallgren 2014, p. 74. 75 Nielsen 2008, p. 97; Torrens 2020, p. 76. 76 Krever 2014a, pp. 83–84, 88. 70

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while the democracy-instating intervention of the allied forces in Iraq did not meet the gravity threshold, according to the then Prosecutor. Another gatekeeping mechanism in the ICC system is the principle of complementarity: the ICC will only open an investigation if a state that has jurisdiction is unable or unwilling to prosecute, but since the ability of states parties to prosecute is assessed against the standards of Western criminal law systems, those Western states will hardly ever be claimed to be unable to prosecute. Peripheral states, therefore, will be more prone to allegations that their justice systems cannot cope with an investigation. Finally, international criminal law, created in the image of Western criminal law and the liberal values underlying it, only sees violence attributable to an individual,77 although the paradigm of individual responsibility is far less universal than the global civil society might argue.78 While the critique of individualised criminal responsibility has been successfully advanced in the domestic context, the inadequacy of individual responsibility is especially evident when applied to the context, in which international criminal law operates, i.e., that of mass atrocity, where establishing the requisite actus reus and mens rea is notoriously difficult. International criminal law has come to grapple with the much-discussed tension between the collective nature of mass atrocity and rigorously individualised criminal responsibility it dispenses through the elaboration of modes of responsibility that aim to reflect the varying degrees of individual participation in mass crimes.79 Despite the sizeable effort, undertaken by judges, practitioners, and scholars in developing those modes of responsibility, the tension is still palpable. A discussion on violence that is visible to international criminal law suggests, therefore, that there is also violence that international criminal law does not see, and that violence as a phenomenon is not reducible to the vision of international criminal law. In the next section, I examine types of violence that can be found beyond international criminal law and demonstrate the implications of its invisibility to the discipline.

77

ICC Statute, Articles 25, 28. Nielsen 2008, pp. 98, 106. One of the proofs of the particularity of the Western concept of penal laws—against the purported universality of individual responsibility—is provided by Steven Humphreys, who notes that criminal law was one of the main instruments of the imperialist powers in constructing governable units in their colonial territories, where imprisonment as a form of punishment was virtually unknown until the late 19th century—see Humphreys 2010, p. 117. 79 Werle 2007, p. 957. 78

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3.4 Violence Beyond International Criminal Law 3.4.1 Galtung’s Theory of Violence Life is, of course, larger than law, and most of the legally relevant concepts have a life of their own outside legal normativity. Unsurprisingly, ‘violence’ is no exception. The concept of violence has been discussed in a number of disciplines: from philosophy to anthropology, from public health to literary studies, where its meaning is significantly wider than the meaning relevant to international criminal law discussed above.80 In sociology, an influential conceptualisation of violence was produced by Johan Galtung. It was later employed by Paul Farmer in his ground-breaking work on global public health,81 and inspired Robert Nixon’s analysis of slow violence.82 Galtung, who is today considered to be the founder of the field of peace studies, is interested in violence in connection with peace, and since his understanding of peace is quite broad, his approach to violence is equally broad. As he explains in his landmark article ‘Violence, Peace, and Peace Research’, ‘violence is present when human beings are being influenced so that their actual somatic and mental realizations are below their potential realizations’.83 Crucially, Galtung explicitly rejects an understanding of violence as ‘somatic incapacitation, or deprivation of health, alone […] at the hands of an actor who intends this to be the consequence’—in other words the understanding of violence recognised by international criminal law.84 Galtung acknowledges that the benchmark against which the existence of violence is established—the potential realization—is inevitably unstable and somewhat abstract. Although he does not explicitly state so, the meaning of potential realisation appears to be historically determined. A useful clarification is provided through the idea of evitability: ‘when the potential is higher than the actual is by definition avoidable and when it is avoidable, then violence is present’.85 Therefore, for Galtung a death from a preventable disease is violence, although it is not caused by intentional physical harm.86

80

Violence was investigated, among others, by Jacques Derridà, Walter Benjamin and Michel Foucault. For a brief overview of these thinkers’ takes on violence, see Antiphon 2009. 81 Farmer 2003. 82 Nixon 2011. 83 Galtung 1969, p. 168. It should be noted that, in so far as the main focus of Galtung’s research is peace, and the concept of violence appears to be instrumental to the study of the concept of peace, Galtung does not develop the theory elaborated in this article much in his subsequent work. 84 Galtung 1969, p. 168, emphasis in original. 85 Ibid., p. 169. 86 The violence of preventable deaths or severely compromised life quality is discussed at length by Farmer 2003. Among a variety of case-studies he considers, inter alia, the deaths from antibioticresistant tuberculosis in Russian prisons in the 1990s.

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Providing an extensive definition of violence, Galtung meticulously maps out the concept along a number of axes, such as physical and psychological violence, negative and positive violence, etc. For the purposes of our discussion, one axis is of particular importance. It hinges on the presence of an actor inflicting violence: if violence is committed by an identifiable actor, it is personal or direct violence, and ‘where there is no such actor’, violence is ‘structural or indirect’.87 Structural violence, Galtung continues, ‘shows up as unequal power and consequently as unequal life chances’.88 The distinction between personal and structural violence is so important to his analysis, that it is chosen as the basic distinction in the further discussion of violence and, importantly, peace.89 Since structural violence often assumes a form of unequal power and resource distribution in a society, a synonymous term that is proposed for the concept is ‘social injustice’. Racism and patriarchy are some of Galtung’s examples of structural violence. Furthermore, if peace, according to Galtung’s framework, is the absence of violence, the absence of structural violence illuminates a crucial aspect of peace to be aimed for—social justice, or positive peace.90 I will return to this point later. Interestingly, while avoiding the term ‘exploitation’ in his original work as he claimed it was too ideologically loaded,91 Galtung explicitly refers to exploitation as a sub-type of structural violence in a subsequent piece.92 He thus defines a violent structure: ‘[t]he archetypical violent structure has exploitation as a centre-piece, meaning that some, the topdogs, get much more (here measured in needs currency) out of the interaction in the structure than others, the underdogs’.93 One example of such violent structure he gives is the global division of labour, based on the theory of comparative advantage, although stopping short of a sustained political economic critique.94 It does not seem unreasonable to take this analysis one step further and to suggests that a prime example of a violent structure is the structure of social relations of production under capitalism, based on exploitation of workers. Galtung provides an insight as to reasons behind the de facto lesser visibility of structural violence and the relatively greater concern for personal violence: Personal violence shows. The object of personal violence perceives the violence, usually, and may complain—the object of structural violence may be persuaded not to perceive this at all. Personal violence represents change and dynamism—not only ripples on waves,

87

Galtung 1969, p. 170. Ibid., p. 171. 89 Ibid., p. 173. In subsequent works, Galtung distinguished the third type of violence—cultural violence, that is embodied in language, patterns of reasoning, symbols, etc.—see, e.g., Galtung 2013a. 90 Galtung 1969, pp. 172, 183. 91 Ibid., p. 171. 92 Galtung 2013b, p. 37. 93 Ibid. 94 The outcome of the existing division of labour, he suggests, is ‘[s]tructural violence all over the place; among and within countries’, see Galtung 2013a, p. 55, footnote in the original omitted. 88

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but waves on otherwise tranquil waters. Structural violence is silent, it does not show—it is essentially static, it is tranquil waters.95

It is noteworthy that, to Galtung, the imperceptibility of violence is a matter of persuasion, an instance of conditioning.96 And, while a victim of structural violence might be successfully trained not to perceive it, it will still do its nefarious work: the tranquil waters can be literally poisonous and deadly. Slavoj Žižek notes, in a similar vein, that systemic, or objective violence (Žižek’s equivalent to Galtung’s structural violence) is so ubiquitous in our daily lives that we perceive subjective violence in so far as it deviates from ‘the zero level standard’, standard deeply marked by systemic violence.97 At the same time, Robert Nixon cautions us against thinking about tranquil waters uncritically: he suggests that asserting a static character of structural violence demonstrates a lack of attention to the temporality of violence that can unfold slowly, which makes it even more difficult to notice, conceptualise and link to the causes, divorced in time from deadly effects.98 While division between personal and structural violence has remained fundamental to Galtung’s theorising, he later added a third element to this dyad—cultural violence, which encompasses ‘the symbolic sphere of our existence exemplified by religion and ideology, language and art, empirical science and formal science … that can be used to justify, legitimize direct or structural violence’.99 The various aspects of culture, outlined in the definition, are all based upon what he refers to as ‘deep culture’ or ‘cosmology’, cultural codes that structure our thinking, perception, and, importantly, beliefs around what is ‘normal and natural’.100

3.4.2 Violence Invisible to, and Made Invisible by, International Criminal Law Some of the observations made by Galtung are applicable and significant to my analysis of the notion of violence in international criminal law, as discussed above. The attention towards ‘violence that shows’, which has a perpetrator and which is 95

Galtung 1969, p. 173, emphasis in italics in original, emphasis in bold added. Carvalho suggests, in this regard, that ‘…the same processes that make visible and naturalise the individualised violence of crime also blind us to other, more pervasive—and, one could argue, more dangerous—kinds of violence upon which criminalisation depends. These include the structural violence embedded in contemporary societies, which preserves and promotes structures of inequality that, among many other things, protect patriarchal structures and socio-economic exploitation, and the epistemic violence that makes society see and treat racialised and marginalised populations as dangerous criminals first, and human beings second—if at all’ in Carvalho 2019, p. 12. 97 Žižek 2009, p. 2. 98 Nixon 2011, p. 11. 99 Galtung 2013a, p. 41. 100 Ibid., p. 56. 96

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intentional, reproduces the biases Galtung emphasises. As international criminal law is honed to see primarily personal, intentional, and barbarously spectacular violence, it seems to focus on an almost ‘pure’ case of violence, but as Galtung suggests ‘pure cases are only pure as long as the pre-history of the case or even the structural context are conveniently forgotten’.101 Galtung notes that it is primarily the intentional violence that is acknowledged by the dominant ethical and legal systems, and I contend that this is also the case for personal violence versus structural violence. One might observe that it is rather unsurprising that international criminal law has inherited the biases present in much thinking about violence. It is important, however, to be acutely aware of the consequences of the frames of recognition of violence being reproduced.102 To be addressed, violence first needs to be recognised as such, but only violence that passes through certain pre-existing frames of recognition can be seen and acted upon: in other words, it has to be recognisable as violence. ‘[R]ecognizability’, Judith Butler argues, ‘describes those general conditions on the basis of which recognition can and does take place’,103 the conditions that are ‘historically articulated and enforced’.104 Phenomena that are instances of structural violence—poverty and destitution, marginalisation, racism, and discrimination are not recognised as violence, because they do not fit in the existing frames of recognition, frames that are structured in a way that makes these phenomena appear both natural and inevitable, insofar as they randomly occur. Marks explores the consequences of such lack of recognition, discussing the ‘root causes’ turn in human rights discourse: The systemic context of abuses and vulnerabilities is largely removed from view. Despite or rather, because of attempts to explain them, human rights violations are made to seem random, accidental or arbitrary. And if human rights violations are random, accidental or arbitrary, then the prospects of putting them to an end become as remote as though they belonged to the order of nature. They come to appear necessary, not just in the (false contingency) sense of historical necessity, but in the (false necessity) sense of ‘natural’ necessity.105

Since international criminal law does not see structural violence, it regards the violence visible to it as a ‘pure case’, and that is also how it presents the violence it sees to the world. International criminal law makes structural violence, causing and amplifying violent conflict or repressive state rule, obscure and unrecognisable:106 it further embeds the existing frames of recognition by throwing the weight of its hegemonic potential behind the existing frame. As Gerry Simpson suggests, [b]y emphasizing individual agency, courts reproduce a dominant account of the international system in which its crimes (hundreds of thousands of preventable deaths every month) are understood as accidents or by-products of international political economy or sovereignty or the free trade in machetes, while its accidents (the system occasionally results in periods of 101

Galtung 1969, p. 178. Butler discusses concepts of recognisability and frame of recognition and Butler 2009, pp. 3–7. 103 Ibid., p. 6. 104 Ibid., p. 5. 105 Marks 2011, p. 75, emphasis added. 106 Krever 2014b, pp. 130–131. 102

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madness (Taylor in Liberia)) or singular political acts (the Hariri assassination in Lebanon)) are understood as ‘crimes’.107

Importantly, I do not claim that the solution to the invisibility of structural violence in international criminal law is its criminalization—this would be both implausible and ineffective.108 Instead, I suggest that it is important to regard the invisibility of structural violence in international criminal law within the broader context of international criminal law’s hegemonic operation. Claiming its indispensability to global justice and to lasting peace, International criminal law simultaneously promotes a particular vision of such global justice—a vision, from which social justice, i.e., the absence of structural violence in Galtung’s terms, is absent. That structural violence remains unrecognisable to international criminal law is not, perhaps, the most serious problem: this can be remedied, if there are other frames of recognition where structural violence can fit. A more problematic aspect of international criminal law’s hegemonic operation is precisely its ability to obscure such other frames,109 as it claims to deliver global justice by countering the most serious crimes of concern to humanity. As Tor Krever suggests, ‘[a]t the same time that it establishes criminal responsibility for some forms of violence, the law seems implicitly to sanction other forms’.110 The authoritative character of a legal pronouncement of what is violent (and unacceptable in a given social order) relies on a special faith vested in a legal process.111 Legal proceedings, with their declared impartiality, due process guarantees and respect for the rights of the accused, legitimise the existing social order and structural violence underlying it.112 The legal here is put in opposition to the political, with the former representing order, peace and impartiality, while the latter is imagined as the arena of perpetual—and often violent—conflict of interests, partial in nature and dominated by power.113 An international criminal trial is a productive endeavour: its inevitable by-product, in adjudicating the guilt or innocence of the accused, is a history, or a narrative, of the atrocity.114 Similarly inevitable is the simplification of the complexities of the atrocity in international criminal law’s narrative, the erasure of the context and the history surrounding the mass crimes.115 After all, the purpose of the trial is 107

Simpson 2014, p. 170. As Tallgren suggests, ‘[a]n even more fundamental question is whether criminal law could ever be able to provide closure to large-scale, deep-rooted injustice and suffering, and whether the expectation of finality after a criminal trial has established the truth by identifying the guilty could in fact violently silence other truths, other kinds of responsibilities’, Tallgren 2002, p. 593. 109 McAuliffe and Schwöbel-Patel 2018, p. 1001. 110 Krever 2014b, p. 129. 111 Poulantzas argues that law in the capitalist mode of production assumes a leading role in ideology, the role previously occupied by religion: ‘The centre of legitimacy shifts away from the sacred towards legality… and juridical-political ideology supplants religious ideology as the predominant forum’, in Poulantzas 1980, p. 87. See also Krever 2014b, p. 131. 112 Krever 2014b, p. 131. 113 Ibid., p. 129; Schwöbel-Patel 2021, p. 56. 114 Gevers 2014, p. 231. 115 Krever 2013, p. 720; Burgis-Kasthala 2014, p. 252; Gevers 2014, pp. 232–233. 108

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to adjudicate on individual responsibility,116 hence it zooms in on the individual conduct and contribution, on knowledge and intent, in adherence to liberal legalism. As a result of such simplification, the responsibility for atrocity is placed on selected individuals, and dominant emphasis on intended violence, also noted by Galtung,117 is further cemented in the accounts, produced by international criminal justice, while unintended and structural violence is sidelined. As Esenin elegantly put it, ‘When face to face, / we cannot see the face. / We should step back for better observation’.118 The distraction from forms of violence which are not relevant for international criminal justice is inherent in its marketing practices, Schwöbel-Patel suggests: the institutions of international criminal law, she argues, widely and successfully employ marketing strategies and techniques to promote a certain vision of global justice, and a marketing lens provides numerous insights into how international criminal law operates. International criminal justice institutions and, in particular, the ICC, it is further suggested, apply the familiar marketing techniques, such as branding, advertising, and propaganda, that achieve two interrelated and mutually reinforcing purposes: persuasion and distraction.119 The global justice sector, by means of spectacularising the exercise of international criminal justice, indeed distracts from ‘structural injustice’.120 Since the central focus of Galtung’s research is peace, the resort to the concept of structural violence is, in a sense, instrumental, insofar as it is meant to allow for a more robust and extensive understanding of peace, defined as the ‘absence of violence’.121 In fact, the aforementioned concepts of negative peace and positive peace correspond to the absence of personal violence and the absence of structural violence respectively.122 While international criminal law ostensibly aims at contributing to lasting peace, it becomes increasingly unclear how this goal can be achieved through international criminal law. Since international criminal law does not see nor address structural violence, it cannot be expected, based on Galtung’s framework, to contribute to the absence of structural violence, i.e., to positive peace. International criminal law’s relation to the absence of personal violence is also obscure: it purports to ensure the end of such violence through the incapacitation of individuals indicted and prosecuted but given the selectivity of prosecutions and reliance on states’ cooperation for warrant execution, such peace through incapacitation is tenuous at best. Similarly, international criminal law’s inability to contribute to peace would have been 116

The hard lot of international criminal lawyers has been thus formulated by Werle: ‘the collective nature of crimes under international law does not absolve us of the need to determine individual responsibility’, Werle 2007, p. 953. 117 The distinction between intended and unintended violence is another axis along which Galtung maps violence, which, however, seems closely tied to the distinction between direct and indirect violence: in the absence of a subject exerting violence, there can be no intention in structural violence, see Galtung 1969, p. 171. 118 Esenin undated. 119 Schwöbel-Patel 2021, p. 41. 120 Ibid., p. 59. 121 Galtung 1969, pp. 167–168, 183. 122 Ibid., p. 183.

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less of a problem had it not been widely promoted as an indispensable component of peace. Not only is the insistence on individual prosecutions unlikely to bring us to the sought-after achievement of lasting peace—it also forecloses the exploration of other alternative paths, for instance, addressing the social injustices that cause a conflict through resource and wealth redistribution. The moralising, spectacular practice of international criminal law is a discursive, cultural practice that both relies on and reinforces certain elements of the ‘deep culture’ mentioned by Galtung: it ossifies the perceptions of normal and natural, where structural violence is ubiquitous.123

3.5 Conclusion Hegemonic struggle over the intersubjective meanings of phenomena, concepts, and goals is not a self-indulging exercise. For a ruling class, winning a hegemonic struggle is a crucial instrument in disguising the existing class struggle from the view of the oppressed. The hegemonic operation of international criminal law, as discussed in this chapter, is instrumental, among other things, in reinforcing and embedding a circumscribed vision of violence. By asserting authoritatively what kind of violence needs addressing and through which mechanisms, international criminal law obscures other types of violence, namely structural violence, experienced by the subaltern classes on an everyday basis and in a variety of contexts. Once legalised, the notion of violence becomes non-political and non-contestable, and the attempts to revise the frames of recognition of violence to account for a more pervasive suffering become harder to make: ‘[o]nce you get used to not seeing something, then, slowly, it’s no longer possible to see it’.124

References Anghie A, Chimni BS (2004) Third World Approaches to International Law and Individual Responsibility in Internal Conflict. Studies in Transnational Legal Policy 36: 185–210 Antiphon (2009) Power, Violence, Law. Critical Legal Thinking. https://criticallegalthinking.com/ 2009/04/05/power-violence-law/. Accessed 14 May 2021 Baars G (2019) The Corporation, Law and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy. Brill Nijhoff, Leiden/Boston Bassiouni MC (2013) Introduction to International Criminal Law, 2nd rev. edn. Martinus Nijhoff, Leiden/Boston Burgis-Kasthala M (2014) An Arresting Event: Assassination within the Purview of International Criminal Law. In: Schwöbel C (ed) Critical Approaches to International Criminal Law. Routledge, London/New York, pp 245–263 Butler J (2009) Frames of War: When Is Life Grievable? Verso, London/New York 123

On the interplay of cultural, structural and direct violence, see Galtung 2013a, p. 46; for the discussion of deep culture, see p. 56. 124 Roy 1999, as quoted in Nixon 2011, p. 1.

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Carvalho H (2019) The Violence of Criminalisation. ISRF Bulletin XX: 9–12 Cassese A (2008) International Criminal Law, 2nd edn. Oxford University Press, Oxford/New York Cox RW (1981) Social Forces, States and World Orders: Beyond International Relations Theory. Millennium 10: 126–155 Cox RW (1983) Gramsci, Hegemony and International Relations: An Essay in Method. Millennium 12: 162–175 Cryer R (2010) An Introduction to International Criminal Law and Procedure. Cambridge University Press, Cambridge Cutler AC (2005) Gramsci, Law, and the Culture of Global Capitalism. Critical Review of International Social and Political Philosophy. 8: 527–542 deGuzman MM (2020) Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law. Oxford University Press, Oxford Duff RA (2007) Answering for Crime: Responsibility and Liability in the Criminal Law. Hart, Oxford Esenin S (undated) Letter to a Woman. https://ruverses.com/sergey-esenin/letter-to-a-woman/6693/. Accessed 24 August 2021 Farmer P (2003) Pathologies of Power: Health, Human Rights, and the New War on the Poor. University of California Press, Berkeley Galtung J (1969) Violence, Peace, and Peace Research. Journal of Peace Research 6: 167–191 Galtung J (2013a) Cultural Violence. In: Galtung J, Fischer D (eds) Johan Galtung: Pioneer of Peace Research. Springer, Berlin/Heidelberg, pp 41–58 Galtung J (2013b) Violence: Direct, Structural and Cultural. In: Galtung J, Fischer D (eds) Johan Galtung: Pioneer of Peace Research. Springer, Berlin/Heidelberg, pp 35–40 Gevers C (2014) International Criminal Law and Individualism: An African Perspective. In: Schwöbel C (ed) Critical Approaches to International Criminal Law. Routledge, London/New York, pp 221–245 Gramsci A (2007) Prison Notebooks, Volume 3. Columbia University Press, New York Guilfoyle D (2020) Transnational Crimes. In: Heller K et al. (eds) The Oxford Handbook of International Criminal Law. Oxford University Press, Oxford/New York, pp 791–810 Humphreys S (2010) Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice. Cambridge University Press, Cambridge International Criminal Court (2013) Elements of Crimes. https://www.icc-cpi.int/Publications/Ele ments-of-Crimes.pdf. Accessed 28 August 2021 Kalpouzos I, Mann I (2015) Banal Crimes against Humanity: The Case of Asylum Seekers in Greece. Melbourne Journal of International Law 15: 1–28 Kendall S (2015) Commodifying Global Justice: Economies of Accountability at the International Criminal Court. Journal of International Criminal Justice 13: 113–134 Knox R (2019) Hegemony. In: D’Aspremont J, Singh S (eds) Concepts for International Law: Contributions to Disciplinary Thought. Edward Elgar Publishing, Cheltenham, pp 329–360 Krever T (2013) International Criminal Law: An Ideology Critique. Leiden Journal of International Law 26: 701–723 Krever T (2014a) Dispensing Global Justice. New Left Review 85: 66–97 Krever T (2014b) Unveiling (and Veiling) Politics in International Criminal Trials. In: Schwöbel C (ed) Critical Approaches to International Criminal Law: An Introduction. Routledge, London/New York, pp 117–137 Marks S (2008) Introduction. In: Marks S (ed) International Law on the Left: Re-examining Marxist legacies. Cambridge University Press, Cambridge, pp 1–29 Marks S (2011) Human Rights and Root Causes. Modern Law Review 74: 57–78 McAuliffe P, Schwöbel-Patel C (2018) Disciplinary Matchmaking. Journal of International Criminal Justice 16: 985–1009 Mégret F (2014) Introduction: Situating Critical Approaches to International Criminal Justice. In: Schwöbel C (ed) Critical Approaches to International Criminal Law: An Introduction. Routledge, London/New York, pp 17–53

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Mégret F (2015) What Sort of Global Justice Is “International Criminal Justice”? Journal of International Criminal Justice 13: 77–96 Mégret F (2020) The Unity of International Criminal Law: A Socio-Legal View. In: Heller K et al. (eds) The Oxford Handbook of International Criminal Law. Oxford University Press, Oxford/New York, pp 811–838 Miéville C (2005) Between Equal Rights: A Marxist Theory of International Law. Brill, Leiden Moreno-Ocampo L (2007) International Criminal Court: Seeking Global Justice. Case Western Reserve Journal of International Law 40: 215–226 Morton AD (2007) Unravelling Gramsci: Hegemony and Passive Revolution in the Global Political Economy. Pluto Press, London Nielsen C (2008) From Nuremberg to the Hague: The Civilizing Mission of International Criminal Law. Auckland University Law Review 14: 81–114 Nixon R (2011) Slow Violence and the Environmentalism of the Poor. Harvard University Press, Cambridge/London Nouwen SMH (2012) Justifying Justice. In: Crawford J, Koskenniemi M (eds) The Cambridge Companion to International Law. Cambridge University Press, Cambridge, pp 327–51 Nouwen SMH, Werner WG (2010) Doing Justice to the Political: The International Criminal Court in Uganda and Sudan. European Journal of International Law 21: 941–965 Nouwen SMH, Werner WG (2015) Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity. Journal of International Criminal Justice 13: 157–176 Office of the Prosecutor (2021) ICC Prosecutor, Fatou Bensouda, Meets with the EU Foreign Affairs Ministers: “The ICC Is Central to a More Just and Rules-Based International System”. https:// www.icc-cpi.int/Pages/item.aspx?name=pr1569. Accessed 12 May 2021 O’Keefe R (2015) International Criminal Law, 1st edn. Oxford University Press, Oxford Parmentier S (2003) Global Justice in the Aftermath of Mass Violence. The Role of the International Criminal Court in Dealing with Political Crimes. International Annals of Criminology 41: 203– 224 Poulantzas N (1980) State, Power, Socialism. Verso, London Rajkovic NM (2020) What Is a “Grave” International Crime? The Rome Statute, Durkheim and the Sociology of Ruling Outrages. Loyola University Chicago International Law Review 16: 65–86 Ratner SR (2015) The Thin Justice of International Law: A Moral Reckoning of the Law of Nations. Oxford University Press, Oxford Roy A (1999) The Cost of Living. Modern Library, New York Royer C (2017) International Criminal Justice Between Scylla and Charybdis—the “Peace Versus Justice” Dilemma Analysed Through the Lenses of Judith Shklar’s and Hannah Arendt’s Legal and Political Theories. Human Rights Review 18: 395–416 Schabas W (2017) An Introduction to the International Criminal Court, 5th edn. Cambridge University Press, Cambridge Schwöbel-Patel C (2020) The Core Crimes of International Criminal Law. In: Heller K et al. (eds) The Oxford Handbook of International Criminal Law. Oxford University Press, Oxford/New York, pp 768–790 Schwöbel-Patel C (2021) Marketing Global Justice: The Political Economy of International Criminal Law. Cambridge University Press, Cambridge Simpson G (2014) Linear Law: The History of International Criminal Law. In: Schwöbel C (ed) Critical Approaches to International Criminal Law: An Introduction. Routledge, London/New York, pp 159–179 Tallgren I (2002) The Sensibility and Sense of International Criminal Law. European Journal of International Law 13: 561–595 Tallgren I (2014) Who Are “We” in International Criminal Law? On Critics and Membership. In: Schwöbel C (ed) Critical Approaches to International Criminal Law: An Introduction. Routledge, London/New York, pp 71–95

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Torrens SM (2020) The Politics of International Criminal Justice: Hegemony and Humanity at the International Criminal Tribunal for the Former Yugoslavia. In: Cullen H et al. (eds) The Politics of International Criminal Law. Brill Nijhoff, Leiden/Boston, pp 56–84 Tzouvala N (2020) Capitalism as Civilisation: A History of International Law. Cambridge University Press, Cambridge Weigend T (2008) Societas Delinquere Non Potest? A German Perspective. Journal of International Criminal Justice 6: 927–945 Wells C (2001) Corporations and Criminal Responsibility, 2nd edn. Oxford University Press, Oxford Werle G (2007) Individual Criminal Responsibility in Article 25 ICC Statute. Journal of International Criminal Justice 5: 953–975 Werle G, Jessberger F (2020) Principles of International Criminal Law, 4th edn. Oxford University Press, Oxford Žižek S (2009) Violence: Six Sideways Reflections. Profile Books, London

Anastasiya Kotova is a Ph.D. Candidate at Lund University, Sweden. She holds a B.A. in International Law and an M.A. in International Human Rights Protection from Taras Shevchenko National University of Kyiv, Ukraine. She also obtained an M.A. in International Relations from the University of Bologna, Italy. Her research interests comprise international criminal law, corporations in international law, and Marxist approaches to international law.

Chapter 4

A Marxist Analysis of International Criminal Law and Its Potential as a Counter-Hegemonic Project Valeria Vegh Weis

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Formal Equality Versus Triple Material Inequality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Material Inequality in (Domestic and International) Law . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 In the Law’s Foundations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 In the Law’s Drafting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 In the Law’s Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 De-construction of Triple Material Inequality Within International Criminal Law and Its Reframing from a Counter-Hegemonic Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter employs Marx and Engels’ theoretical and methodological contributions on the evolution of legal frameworks throughout modern history to allow for a better contextualization and constructive critique of international criminal law and the debate over its nature as a potential (counter-)hegemonic project. A line is drawn between the historical context dominated by bourgeois revolutions at the end of the 18th century and the current status of international criminal law. To do so, the tension between formal equality and material inequality is unpacked over three layers: the foundations, the drafting and the enforcement of the law. The chapter also looks at possible paths to overcome the triple material inequality through a historical materialistic conception that would make the counter-hegemonic project a more plausible goal. Keywords Marxism · Marx · Engels · International criminal law · Modern law · Inequality

This chapter is based on two of my prior works: Vegh Weis 2017/2018, and Vegh Weis 2020, pp 63–83 V. Vegh Weis (B) Universität Konstanz Zukunftskolleg, Konstanz Universität, Konstanz, Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_4

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4.1 Introduction This chapter proposes employing Marx and Engels’ theoretical and methodological contributions on the evolution of legal frameworks throughout modern history to allow for a better contextualization and constructive critique of international criminal law and the debate over its nature as a potential (counter-)hegemonic project. The contribution relies on a hermeneutical methodology that facilitates the screening of Marx and Engels’ scattered passages addressing justice-related topics. Additionally, the chapter utilises historical materialism, the methodological approach they proposed, allowing for the analysis of the socio-economic structures that conditions legal evolution. Therefore, a Marxist theory of law is not only a reiteration of the theorist’s exact thoughts on these topics, instead it assembles a unique and critical discourse surrounding the role of law in our society, just as that regarding political economy in Capital.1 In particular, Marx and Engels’ contributions help us embrace a normative perspective that not only explains reality but also tries to provide proposals for how the world could and should be improved.2 The chapter draws a line connecting the historical context, dominated by the bourgeois revolutions at the end of the 18th century, with the current status of international criminal law. Three centuries ago, as the new ruling class, the bourgeoisie established regulations to ensure formal equality within Western nation-states, but these claims contrasted with what could be referred as a triple material inequality. In the era of international criminal law, the tension between the formal law and triple material inequality takes place at a global level. The chapter will first dig into this tension between formal equality and material inequality, drawing parallels between modern law, which first emerged in the 18th century, and the current features of international criminal law. The following section is divided according to the three layers of inequality, consisting of the foundations of the law (Sect. 4.3.1), the drafting of the law (Sect. 4.3.2) and the enforcement of the law (Sect. 4.3.3). Section 4.4 will look at possible paths to overcoming triple material inequality through a historical materialistic conception that would make the counter-hegemonic project a more plausible goal.

4.2 Formal Equality Versus Triple Material Inequality Up until the end of the 18th century, existing regulations explicitly established unequal legal treatment, imposing different punishments according to the social status of the offender. Even when nobles and peasants committed the same crime, the consequences they faced were different. Generally, those of the upper classes were imprisoned or fined while the lower classes received corporal punishments.3 1

Cerroni 1965. Cudd 2005. 3 Zambrana Moral 2005. 2

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The bourgeois revolutions ushered in a new legal framework. Comprehensive regulation of rights and freedoms ended differentiation according to individual’s social status. The law began to ensure the (formal) equal treatment of all citizens—a category which however continued to exclude entire subsets in terms of race, gender and age. An ‘idyllic justice’ based on consensual social values (liberty, equality, fraternity) gave the appearance (at least formally) of non-selectivity. All citizens became formal carriers of uniform rights, regardless of their material conditions or social status. This legislation helped to distinguish the ‘civilized’ bourgeois legal order from that of the ‘barbaric’ and ‘irrational’ feudal period. The Enlightenment positioned the ideals of ‘reason’ and ‘light’ against ‘despotism’ and ‘obscurantism’, commonly attributed to the previous era: Every form of society and government then existing, every old traditional notion was flung into the lumber-room as irrational; the world had hitherto allowed itself to be led solely by prejudices; everything in the past deserved only pity and contempt. Now, for the first time, appeared the light of day, henceforth superstition, injustice, privilege, oppression, were to be superseded by eternal truth, eternal Right, equality based on nature and the inalienable rights of man [emphasis added].4

In particular, the bourgeois legal bureaucratic structure—with its stable criminal justice system—was a key instrument in distancing itself from the ‘disorganized’ feudal remnants: The centralized State power, with its ubiquitous organs of standing army, police, bureaucracy, clergy, and judicature – organs wrought after the plan of a systematic and hierarchic division of labor – originates from the days of absolute monarchy, serving nascent middle-class society as a mighty weapon in its struggles against feudalism.5

The most striking aspect of this legal transformation was that the formal rights and freedoms accompanied the obligation to abide by the norms contained in the new legal system. Therefore, all citizens became subjected to increasing regulation, even those who, in practice, could not enforce their formal rights and freedoms. In short, formal treatment under the law contrasted with the inequality in the enforcement of the law that preserved the selective patterns of the feudal past, while social control was ensured by merely proclaiming the impoverished as formal right-holders. The continuity of the working classes’ dispossession was now hidden behind legislation that ensured formal but not material equality. While the law was mostly established on the nation-state level in the 18th century, the current historical period shows an increasingly globalized agenda, also comprising regulations settled at a supra-national level6 such as international criminal law.7 However, the pattern that first emerged more than two centuries ago seems to have persisted to the present through global rules that embrace an ‘idyllic justice’ despite resting on a parallel triple material inequality. This pattern may be identified 4

Engels 1878, p. 2. Marx 1871/1977, p. 66. 6 Davis et al. 2015; Von Bogdandy et al. 2016; Duve 2017. 7 See Chap. 1 by Jeßberger et al. in this volume. 5

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over three different layers. The first can be seen in the denial of unequal material conditions in the foundations of the law through its ahistorical and abstract characterization. Second, this denial in the drafting of the law can be perceived in a formal understanding of individuals and member states as equals and holders of common interests. Finally, this denial in the application of the law is carried out by rendering criminal selectivity invisible at the domestic and international dimensions.

4.3 Material Inequality in (Domestic and International) Law 4.3.1 In the Law’s Foundations In the 18th century, social contract theory—whether the one posited by Hobbes, Locke or Rousseau—laid the foundations of modern law. In order to introduce this legal framework as fair and inclusive, the structural material inequality underlying the emergence of this new normative needed to be concealed. Modern law omitted the events leading to the population’s uneven material conditions through the establishment of an ahistorical and abstract characterization of the emerging law. To achieve this, the social contract was presented as the result of a mythical and undated foundational moment when all citizens willingly accepted giving away part of their freedom to ensure social order. This explanation describes the origins of bourgeois law as peaceful and consensual, hiding the actual power struggles that preceded the establishment of the new legal framework and the prior uneven distribution of resources, including mass expropriations, colonization and forced labour. In short, the historical struggles underlying the creation of modern law were concealed. Additionally, legal regulations were presented as responding both to the conditions of the social contract and to the aligned decisions of the central power charged with enforcing it (the small government in Lockean terms, the strong Leviathan in Hobbesian theory or a more democratic one according to Rousseau’s position). This means that, under an abstract conception of justice, the law was conceived as the direct result of the ‘value-free’ decisions of the powerholders. The law was then presented as detached from socio-economic conditioning processes.8 Instead, as they stated, it is not the Leviathan or central power which fundamentally shapes regulatory bodies, but the mode of production and its reciprocal conditioning of social relations.9 To illustrate their point, they criticized contemporary claims that King Frederick William IV’s sanction of a marriage law responded exclusively to his will, noting that this ignored the underlying social processes that enabled the emergence of that legislation. To the contrary, they showed that if the productive structure does not develop sufficiently to render competition unnecessary, the ruling 8 9

Marx and Engels 1845; Marx 1993. Marx and Engels 1845.

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classes will be unable to propose a law to abolish competition, even if they have the will to do so.10 As Marx summarized, rights ‘can never be superior to the economic development and the stage of civilization conditioned thereby’.11 Arguing that the will of man is enough foundation of the law is to make the structural link between political economy and law invisible, and a false promise. Are these features, which shaped the creation of modern domestic legislation (ahistorical and abstract, with reference to a mythical social contract), also present in international criminal law? While it does have a more historically traceable origin, it is still pertinent to inquire if all countries had an equal standing at the moment the basis of this global social contract was set. Indeed, is international criminal law a project presented under the veil of global consensus while actually having been designed in the global North with a belated invitation to ‘peripheral’ countries? Furthermore, it is should be examined if the geopolitical interests of global powerholders (at the expense of others) are explicit in the foundation and organization of international criminal law, while being presented as the result of a value-free customary law based on humankind? Hiding actual geopolitical interests has problematically led to the understanding that member states’ willingness to abide by the ‘neutral’ rule of law is considered enough to improve the global order, while ignoring the reality of conflicting groups and countries with different interests. Based on this reasoning, Pashukanis referred to a ‘social order’ rather than society (or nations) as ‘[s]ociety as a whole exists only in the imagination of … jurists. In fact, we are faced with classes with contradictory, conflicting interests. Every historical system of punitive policy bear the imprint of the class interest of that class which realized it’.12 Meanwhile, the dismissal of the conflictive nature of social groups reflects the ahistorical understanding of justice. In this vein, international criminal law aims at confronting current massive crimes while remaining silent about the structural historical injustices that form the basis of global inequalities.13 By approaching future international crimes detached from history, major processes such as colonialism are hidden, distorting the socio-economic transformations needed to foster real change. Is it truly possible to understand ongoing ethnic clashes in certain African countries without considering the Berlin Conference and the artificial division of a whole continent by European superpowers in without regard to the populations’ actual sociodemographics? By omitting history, international criminal law fails to acknowledge many current international crimes’ direct connection to ongoing struggles that began with the arbitrary demarcation of former colonial territories, the dispossession of their natural resources and the enslavement of their people. Moreover, this ahistorical perspective conceals colonialism’s actual continuity in exploitive practices in the low-income world that ultimately serve to increase

10

Ibid. Marx 1875/2001, p. 31. 12 Pashukanis 1924, p. 149. 13 See Chap. 3 by Kotova in this volume. 11

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inequalities and reinforce its labelling as ‘underdeveloped’ or ‘third world’.14 Can we explain civil conflict in the Middle East without considering Western geopolitical interests in the region and economic concern for oil and natural resources? In other words, the lack of historical background also contributes to overlooking the conditions of the present, including the imposed neoliberal agendas reproducing and intensifying inequality on the largest scale in modern history.15 In a vicious circle, this silence facilitates calls for additional international regulation and for more power to international courts located in the global North, who are hardly likely to deal with historical injustices.

4.3.2 In the Law’s Drafting The 18th-century legal order was unequal in terms of its drafting because it treated as equal those who faced different material conditions (1) and because it presented the interests of the ruling class as if they were a common interest among all sectors of society (2). Concerning the first feature, the exploited and the exploiters were regarded on the same basis. This model of a ‘legal subject’ was based on a bourgeois man and did not take into consideration the uneven material situation of real people. In other words, this neglected that the vast majority of the population did not fit into that formal standard. This means that the bourgeois law was (and remains) classist, even when it does not formally treat the dominant class better than individuals facing disadvantageous (material) conditions.16 A race in which an award-winning athlete and a person with physical disabilities are treated ‘equally’ but face the same starting line might help us visualize this process. As a result, a law cannot be considered class- or colour-blind if class and racial inequalities in life’s material conditions are not acknowledged and compensated for in regulations. In short, as Marx illustrates in Critique of the Gotha Program,17 treating the impoverished and the well-off equally is unjust. In particular, the domestic criminal justice originated in the 18th century was the result of an arguably agreed-upon contract. Therefore, it formally obliged individuals to abide by the covenant regardless of personal circumstances. Under this reasoning, the regulations overlooked the socio-economic features of the individuals and reduced them to ‘legal subjects’ with a duty to respect the law above everything. Disobedience transformed the legal subjects into criminals without analysing the specific reasons that may have influenced the lack of compliance (e.g., expropriation, famine). This means that the criminal was approached as a free and unconditioned

14

Amin 2011; Harvey 2005; see Chap. 5 by Chakrabarty and Kaur in this volume. Piketty 2014. 16 Cerroni 1965. 17 Marx 1875/2001. 15

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rational person that willingly decided to break the social contract, instead of understanding the political, economic, social or psychological motives and vulnerabilities that might have driven the person to commit a ‘crime’. Under this abstract framework, bourgeois criminal law ignored that such an offense might be nothing but the struggle of the isolated individual against prevailing conditions.18 In relation to the second feature (presenting ruling class interest as traversal), the 18th-century legal order was also unequal because it tended to favour the class that promoted and sanctioned the law while presenting it as representing the shared interest of the community.19 To exemplify, the regulations of the 18th century did not concentrate on the defence of communal property for agricultural production, which was in the interest of impoverished peasants. Contrariwise, these new laws enforced the protection of private property and the clearing of fields in the UK to devote them to wool production, which was the main concern of the bourgeoisie.20 This decision about what to criminalize responded to a class interest but it was presented as a necessary step toward development for all. (Veiled) class interest had a direct impact on criminal regulations as only those crimes that harmed the interests of the ruling class were included in nascent legislation. Foucault argues in this regard that rather than a means toward fairness, the origin of domestic criminal law shows that it was ‘a mechanism intended to administer illegalities differentially’.21 Indeed, certain behaviours such as slavery or enclosures of peasant’s land were not considered crimes and were even encouraged by the law despite the social harm they produced.22 Contrariwise, petty offenses such as collecting wood from private lands, which did not cause relevant social harm but did affect the economic interests of the ruling class, were heavily criminalized.23 Under this idyllic conception of the law as a shared value, the ruling class ‘chose’ what was worthy of being considered a criminal offence. Marx notes in The Class Struggles in France that this discretion was what really constitutes a ‘crime’.24 Presenting the law as representative of a ‘general interest’ becomes then a falsehood, a breach of the rules and a tool to legitimize law’s selective application. Equally, laws are the result of inherent conflicts within social sectors.25 The law mediates class relations to ultimately confirm and consolidate the power of the ruling class while also giving an appearance of fairness to this power distribution.26 When looking at international criminal law, does it then treat all countries as equals regardless real material conditions? Does it also criminalize those behaviours that are a concern for the global powerholders rather than those are a threat to all 18

Marx and Engels 1845. Ibid. 20 Campagne 2005. 21 Foucault 1975, p. 89. 22 Campagne 2005. 23 Marx 1842. 24 Marx 1850/2001, p. 64. 25 Chambliss 1975; Michalowski 1977; Poulantzas 2008. 26 Thompson 1975. 19

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humankind? Addressing the first question, it has been pointed out that even when the international criminal legal order involves all nations, the regional and supranational organizations that design it depend on the support of the leading nations. Thus, Krasner states that ‘as long as international decision making is based on executive multilateralism and the consent principle, international institutions do certainly reflect power inequalities in terms of the content of the rules and informal rules of decision making’.27 Therefore, less powerful countries do not have a strong voice in the global decision-making process but must comply with the agreed regulations because they are dependent on funding, investment and recognition. This means that weaker countries are subject to the soft power of the strongest members of the networks and even training, information and assistance are likely to push them toward convergence with the substance and style of more developed countries. The concept of ‘empire’ outlines the ‘features of a system which pretends to guarantee a global order while oppressing, in reality, cultural pluralism and the just interests of the weak’.28 Overall, less powerful countries are probably more compelled to redefine and reform their legal structures according to international standards settled without their involvement. Furthermore, this reasoning is valid not only concerning South–North relations, but also concerning international financial institutions, corporations and NGOs, which are in a more powerful position than many less-developed countries but who are not the focus of international criminal law. Moreover, unequal starting points are not addressed within each country. International criminal law refers to the population in general without acknowledging that more efforts should be made by the well-off sectors of each country. However, the most vulnerable in terms of economics, race, ethnicity, gender or psychophysical status should be subject to positive discrimination in order to overturn the power imbalances that make massive crimes possible. As Marx suggested nearly 150 years ago, the only path towards material equality while the reality is unequal is for ‘the law not be equal for all, but unequal’.29 In terms of what ‘is allowed’ to be criminalized, the normative global order follows historical patterns by often protecting the global North’s interests while presenting them as shared. In this vein, the international criminal legal framework continues with the line of ‘administering illegalities differentially’ rather than setting a fair basis for what is to be targeted by criminalization. Once again, colonialism, neo-colonialism, external debt, ecocide, cultural genocide, corporate crime, drastic welfare cuts and monopolization of the economy are among the many extremely socially harmful behaviours ignored by the criminal global norms. Even amid a pandemic, an urgent global call to address the effects of such behaviour on the

27

Krasner 1993, p. 235. Slaughter 2011, p. 758. 29 Marx 1875/2001, p. 26. 28

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environment remains lacking.30 In its place, coarse crimes, perpetrated in a rudimentary manner and without much planning by less central nations, are at the core of international criminal law.31 A main area of international criminal regulation illustrating this point is compliance with the Western securitization narrative. The so-called ‘transnational security regimes’ comprise a variety of diverse and asymmetric national and international actors and spaces that produce transnational criminal ‘soft law’ and regulations to respond to the invoked threats.32 Throughout the beginning of the 21st century, transnational security regimes particular focus is on preventing and persecuting terrorism. Related conventions, guidelines and recommendations are discussed by Western powers and imposed worldwide, even in countries where terrorism is not a real concern. Although there is not even an international consensus on the definition of terrorism itself,33 countries have been compelled, particularly since 2001 with the US ‘war on terror’, to pass counter-terrorist legislation. To exemplify, Security Council Resolution 1373 (2001) did not offer a definition of the term, but it did require states to criminalize terrorism. The Council later offered a working definition in Resolution 1566 (2004), but it did not require member states to adapt their domestic laws to conform to it.34 Resolutions 1456 (2003), 1566 (2004) and 1624 (2005) also demand action by way of criminal law.35 These resolutions engaged the Council as a world legislator that creates binding duties to criminalize certain acts for all UN member states.36 Additionally, these regulations are later translated into domestic national criminal law. Far from a freely made choice, domestic compliance is used to prove a nationstate’s willingness to take part in the existing global legal order.37 Therefore, ‘national politics are found to be bound by a multiplicity of legal and factual constraints originating from outside the nation-state’.38 Democratic and legitimacy problems arose from this process as, by adopting international regulations, individuals are affected by the decisions adopted by foreign powers. Particularly difficult in democratic and legitimate terms are obligations emanating from ‘G8, OECD and similar institutions operating without legally binding instruments’.39 These executive bodies, and international organizations such as the UN, ILO and OAS, have taken on functions previously performed by governments, particularly since 1989.40 In Walker’s words,

30

Vegh Weis and Magnin 2021. See Chap. 2 by Iyi in this volume. 32 Härter 2013. 33 Hoffman 2006. 34 Saul 2012. 35 Walker 2012. 36 Szasz 2002. 37 Davis 2012a, b. 38 Von Bogdandy and Dellavalle 2011, p. 740. 39 Ibid., p. 746. 40 Brunkhorst 2014. 31

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‘criminal law is experiencing the pressures of late modernity’.41 The particularity of compelling states to pass national counter-terrorist criminal legislation is that this likely involves the flexibilization of the rule of law, affecting the targeted populations domestically.42 Indeed, traditional criminal law frameworks are weakened for those accused of committing or supporting acts of terrorism, under such ‘law[s] of the enemy’43 they are referred to as ‘enemy combatants’.44 In short, differences among member states are dismissed under a veil of formal equality. The agenda is mostly set by the North, and the South is compelled to follow the international criminal model proposed by the former, ignoring the historical experiences that demonstrate how this model is not aimed at defending the latter’s interests.

4.3.3 In the Law’s Enforcement Beside the problematic aspects of the social contract theory (hiding the historical and material conditionings of law), of the concept of formal equal treatment of all (despite their material inequality) and of the idea of a general interest (disregarding the criminalization of actions based on the interest of the ruling class), inequality has been reinforced through the unequal application of the (already formally unequal) law. This means that even already problematically enunciated rights and obligations are not evenly implemented. Marx shows that bourgeois encodings find their foundation in the split between a ‘generic’ and a ‘concrete person’.45 The former is the citizen, who is a right-holder (the ideal face of the law). The latter are the ones in real life, who are conditioned by the socio-economic context that may inhibit them from the enforcement of proclaimed rights (the material face of the law). The bourgeois law is valid only for the generic person, but it cannot be implemented at the level of everyday life for the concrete one. Marx explains that, as Christianity does, the state requires people to lead a double life. Christianity promises a full life in the kingdom of heaven that justifies earthly hardships of the poor. The bourgeois state establishes an ideal man with full rights in the political community, while the concrete man is subjugated in civil society. Exemplifying, there is a formal freedom to work, but the market imposes its strictures; there is formally free speech and freedom of association but to exercise them, people need appropriate means which are not at their disposal. In terms of criminal law, as said, 18th-century codification linked crimes with certain punishments regardless of the socio-economic status of the offender. Thus, inequality is no longer evident at the primary criminalization (i.e., in the primary 41

Walker 2012, p. 144. Ibid. 43 Jakobs and Cancio Meliá 2003. 44 Galli 2012. 45 Marx 1844. 42

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filtering process where only certain types of harmful behaviour are legislated), but particularly appears in the everyday enforcement of those laws in distinctive social sectors. Crime control, presented under the veil of an idyllic equal standard, works ambivalently in its application over-criminalizing the acts perpetrated by those who moved away from the social contract at the expense of private property and bourgeois domain and under-criminalizing activities carried out by the bourgeoisie.46 Recalling Don Quixote, Marx and Engels note that when Sancho Panza exhorts the thief to be ashamed of what he had done and to repent-abiding jailers, the robber interrupts him with a lesson on the unequal application of the law: ‘What a credulity of yours, good man! Our jailers commit crimes at every step, steal and embezzle the money from the boxes and give themselves up to all kinds of profanations!’47 The difference between jailers and the thief is not about committing or not committing crimes, but about the different application of criminal law in one case or the other. When analysing present-day enforcement of international criminal law, this third layer is revealed in how the law disregards the social, economic, political, religious and financial constrains within the global South, whose countries are considered, instead, to share a non-existing equality. The situation of different parts of the globe is thus reduced to the abstract and imagined equal notion of ‘member-countries’. As a result, international criminal law indeed preserves formal equality and requires all nations to comply with the global normative order even when the needs of each member-country are different, and the efforts demanded to achieve stipulated aims are drastically dissimilar. Rarely does international criminal law address structural inequalities between the global South and North by requiring more efforts by the latter in order to foster even outcomes. This is mirrored in the fact that the normative order calls for nations to respect the rule of law but provides no indication of how this can be done. Just as the features that conditioned individual crime in the 18th century were ignored by abstract laws, international criminal law today ignores the socio-economic factors that ailment, for example, that international crimes are a permanent feature in nations traversed by conflicts originated or enhanced by global powerholders, as the case of Syria illustrates.48 Furthermore, in relation to the securitization agenda and the core role of counterterrorism in international criminal law, the domestication of this legislation carries with it several problems at the moment of the enforcement. According to such legislation, individuals can not only be punished as a result of past wrongdoing but can also be pre-emptively punished, expanding the scope and arbitrary powers of policing forces.49 This means that the enhanced treatment of those deemed ‘terrorists’ not only consists of the enlargement of criminal legislation (primary over-criminalization) discussed in the previous section, but also of an over-dimensioned enforcement

46

Vegh Weis 2017/2018. Marx 1845/1976, p. 408. 48 See Chap. 7 by Aksamitowska in this volume. 49 Galli 2012. 47

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of that legislation by increasingly militarized policing activity (secondary overcriminalization).50 This process is legitimated by describing ‘terrorists’ as a different type of individual, chaotic, violent, disorderly and irrational, in contrast to the ‘normal’ represented and protected by Western legal frameworks. Moreover, even though the violence exercised in the name of counter-terrorism is many times more severe than that of terrorism,51 the former is generally under-criminalized, with almost no conviction of law enforcement agents exercising excessive use of force. Furthermore, the powers given to law enforcement agencies at the domestic level ‘have a tendency to be applied beyond their original scope’.52 The most well-known cases involve Muslim communities intensively stopped and frisked by police acting under the counter-terrorism agenda, particularly in the USA and the UK. In the latter, government ministers stated that Muslims should bear the brunt of counter-terrorism control because it reflects the ‘reality of the situation’.53 As a result, empirical studies show that although such searches resulted in less than one percent of arrests, even fewer charges and not a single successful conviction, Muslims reported that they were being stopped disproportionately. In the USA, and just to name a few effects of the counter-terrorism framework, Air Force Research Laboratory papers stated that wearing hijabs was enough evidence for police intervention54 and the New York City Police Department established a secret surveillance program that mapped, monitored and analysed Muslim-American daily life without achieving a single criminal lead.55 Besides the particular harassment of Muslim communities, police acting under the veil of the counter-terrorism discourse also affects indigenous groups contesting corporate expansion into their ancestral territories, from the Dakota peoples in the United States56 to the Mapuche in Argentina. Nation-states deploy the counterterrorism discourse to legitimize the historical continuation of this double burden at the domestic level. In the Argentinean case, the notion of criminal selectivity sheds light on how the harmful actions committed by the gendarmerie when suppressing Indigenous social protest largely undergo secondarily under-criminalization while the indigenous groups exercising their right to protest largely undergo secondarily over-criminalization.57 Going back to the international level, transnational bodies also engage in selective enforcement of international criminal law, as witnessed in the role of the ICC (see Chap. 2 by Iyi on ICC selectivity, and Chap. 5 by Chakrabarty and Kaur on the particular situation in South Asia, and Chap. 10 by Muhammadin and Sadzali on Iraq, all of them in this volume). It is possible to add another dimension to this differential enforcement of international criminal law by paying close attention to 50

Vegh Weis 2019. Young 2007. 52 Galli 2012, p. 156. 53 Pantazis and Pemberton 2009. 54 Buncombe 2016; Wonders 2007. 55 Shamas and Arastu 2014. 56 Horn 2018. 57 Vegh Weis 2019. 51

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measurement. Indeed, ‘the burgeoning production and use of indicators in global governance have the potential to alter the forms, the exercise, and perhaps even the distributions of power in certain spheres of global governance’.58 First, the mere process of naming an indicator asserts a claim that there is such a phenomenon and that the numerical representation measures it’.59 In international criminal law, key indicators include ‘human rights’, ‘rule of law’, ‘institutional strength’ and ‘accountability’, among many others. Second, indicators rank collected information in order to make comparison available and suggest that this process is built on ‘hard facts’ and as produced in a purely ‘scientific’ endeavour, hiding the fact that this step involves a high level of discretion and power struggles over how measurement is undertaken. Third, indicators over-simplify the complex social phenomena under analysis by reducing them to numbers. This process makes the collected information appear more vigorous than it actually is ‘with the consequence that decisions seem more obvious than they might otherwise have been’.60 Fourth, indicators operate as tools for the evaluation of countries’ performances without spelling out the ideas, policies, theories and methodologies that sustain their measure. In sum, international criminal law follows historical patterns of selectivity in which the most vulnerable populations of each nation are targeted by the domestication of international criminal law. Furthermore, at the global level, unequal application of international criminal law can be seen in the fact that less powerful countries are mostly seated in the perpetrator’s chair within international criminal law bodies. Finally, and more broadly, these countries are also targeted by a more omnipresent system of evaluation in which they are often deemed as unreliable in relation to the indicators and standards coined, designed and operationalized by the global North.

4.4 De-construction of Triple Material Inequality Within International Criminal Law and Its Reframing from a Counter-Hegemonic Perspective How is that, despite the clear power imbalances at the three described layers, equality has been repeatedly claimed from the 18th century domestic legal framework up to 21st century international criminal law? Marx explains that the social order has always had to do a ‘detour’ or ‘rodeo’ to treat uneven humans as equals.61 Only through this rodeo could it be possible to defend the existence of a ‘society of equals’. In feudalism, since material and physical differences were evident in terms of clothes, physical appearance and geographical location,62 feudal lords resorted to the figure of God to link people and place them in a relationship of union and likeness (all 58

Davis et al. 2012a, b, p. 72. Ibid., p. 75. 60 Ibid., p. 77. 61 Marx 1844. 62 Härter 2017. 59

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people were ‘children’ of God). In the 18th century, in the bourgeois order, this symbolic ‘rodeo’ took place through the state: the law became the tool to proclaim that all citizens were equal at some (ahistorical and mythical) point, despite persisting material differences. Today, international criminal law sustains this rodeo at the global level by maintaining that countries are seated equally because they are all part of a shared world, thus hiding the fact that member states are in radical dissimilar situations. Marx inquires further: if we are arguably all equal, how are material differences explained? He shows that the bourgeoisie explicated the uneven material situation as the fair outcome of dissimilar efforts.63 While, according to the mythical agreement, the bourgeoisie had worked hard to achieve their privileged position, the impoverished were lazy. Thus, it would not be fair to introduce compensation measures to improve the situation of the disadvantaged. Through this mythological and misleading explanation, a class-blind equal formal law was legitimized.64 This same argument is sustained today within international criminal law. To avoid challenging the structural patterns of capitalism, the South is depicted as ahistorical, backward and primitive.65 Less-developed countries and populations are characterized as lazy, corrupt, violent, religiously biased and, therefore, responsible for their own human rights violations, and the North as ‘superior’.66 The logic is that as they did not work sufficiently to achieve a positive outcome, it is not fair to use regulations to compensate for their current unfortunate status. Only by sustaining an abstract and ahistorical international criminal law complemented by formal equality and silence about the unequal application of the global proclaims is it possible to overlook the underlying imbalanced relations or, in short, to avoid discussing power. As a result, neither the position of Northern countries nor of international financial institutions, transnational corporations or even INGOs are the target of the international criminal justice system. Overlooking the triple material inequality not only obstructs the concrete realization of the international rule of law but it might even reinforce inequality, by fostering the implementation of idealized standards that ignore the selective characteristics of the foundation, the design and the enforcement of international criminal law. Instead, a material analysis puts into question whether fostering more criminal law can indeed bring about a positive outcome. Since the appearance of the labelling approach theory in the 1960s67 and the critical criminology theories that followed,68 research has recurrently proved that criminal justice systems have been systematically unfair worldwide, as they tend to criminalize the poor and minorities. Therefore, only by claiming an abstract, ahistorical and formal justice, it is possible to ignore the systematic unfair patterns persistent throughout modern history. Conversely, if 63

Marx 1844. Marx 1909. 65 McEwan 2001. 66 Peterson 2005. 67 See Becker 1966. 68 Taylor et al. 1973; Zaffaroni 1982 and Zaffaroni 1988. 64

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we acknowledge the selective features of crime control, it is possible to observe that strengthening criminal justice systems might deepen the over-criminalization of the most vulnerable sectors and the under-criminalization of those in advantageous positions.69 In short, should we aim at strengthening biased institutions or changing them? From a materialistic perspective, it is necessary to overcome ‘the illusion that the struggle for social change would fall under the ‘struggle for a new law’; instead of trying to mutate the socio-political relations’.70 In the words of Marx: ‘Sovereigns in all ages have been subject to economic conditions, but they have never dictated laws to them. Legislation, whether political or civil, never does more than proclaim, express in words, the will of economic relations’.71 Thus, Marx and Engels warn us that only a social organization built on new bases can exempt us from a violent social reality and an equally violent and selective system of justice.72 This does not imply, however, that the only possible option is radical social change. Contrariwise, it is possible to carry out partial transformations to advance the rights claimed by the most disadvantaged. Indeed, in the text On the Jewish Question73 the concrete struggle of the Jews to obtain equal civil and political rights demands acknowledging the progressive role that law can play. In the text, Marx recognizes that separating public law from religion in order to grant those of all faiths equal rights is certainly a great progress. It is not, in truth, the last form of human emancipation, but it is the last form of human emancipation in the world order matured until now. Marx and Engels also recognized the relevance of pushing forward progressive legal reforms in terms of expanding press freedom,74 the Ten Hour’s Act expansion of workers’ rights (Opening Manifesto of the Association Workers International), the later demand for eight-hour workdays75 and political rights through ending the censorship of communist parties.76 In short, the classist society that generates social disorganization also generates a partial remedy: legal institutions contain achievements and concessions gained by the bourgeoisie. However, it is also important to consider that, as Marx explains in the Critique of the Gotha Program,77 only under the material conditions of an entirely new society might the limited, narrow achievements of the bourgeois be exceeded. It is thus essential to state that rights must not be considered as an ideal because they can only respond to the material possibilities of the social reality that circumscribes them.

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Vegh Weis 2017/2018. Cerroni 1974, p. 5. 71 Marx 1847. 72 Marx and Engels 1845. 73 Marx 1844. 74 Marx 1843; Hirst 1975. 75 Kohen 1972. 76 Engels 1884. 77 Marx 1875/2001. 70

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To overcome the first layer of material inequality (ahistorical and abstract foundations), international criminal law should explicitly address the historical conditions that shaped current inequalities by asking why and how present unfairness and violence arose. This approach requires awareness of the enduring domination of the global North over the South. In particular, international criminal law should recognize the history of colonialism and its effects on the current socioeconomic features of the South. It also demands acknowledging the current state of modern international relations, which have not abandoned colonialist logic and are still largely produced by and for the North.78 Last, it is not only necessary to be aware of the historical roots of current international inequalities but to also introduce positive regulations to overturn them by strengthening the South and marginalized subsets within each country (including the North). Moreover, a materialistic approach (in contrast to an abstract and ahistorical one) can shed light on how criminal justice systems have been systematically unfair since their foundation79 . When understanding this, we see how current unfairness of the criminal justice systems are not only a distortion of the present but a lasting and intrinsic pattern. This reflection allows us to face the fact that the structure making crimes possible will not be dissolved through normative initiatives, technical assistance or good government programs. In other words, international criminal law shall recognize that equality cannot be achieved by legal reforms alone because the law is conditioned by economic, political and social dimensions. ‘You can’t solve the problem of poverty without challenging the pathologies of accumulation’.80 As Marx wrote in the article ‘From Population, Crime and Pauperism’, ‘there must be something rotten in the core of a social system that increases its wealth, without diminishing their misery, and increases in crimes even more quickly’.81 Marx thus points out that it is necessary to go deeper into the analysis and focus on the socioeconomic mechanisms that create misery, oppression and international crimes under capitalism.82 To exemplify, regarding gender, passing regulations on equality will not change unfair gender conditions if the patriarchal, racial and economic power structures that, both in the public and private domain, allow for women and LGBTQI+ discrimination are not challenged.83 A critical and historically grounded perspective might push international criminal law to withdraw from the goal of seeking an idyllic justice that never existed and instead devise concrete material steps alongside the normative to overcome the intrinsic biases that have dominated criminal justice systems. To overturn the second layer of material inequality (drafting of the law), the international criminal framework should acknowledge that fair legal treatment demands treating unevenly those that are in unequal positions. This requires accepting that 78

Acharya and Buzan 2007. Vegh Weis 2017/2018. 80 Hickel 2015, n/p. 81 Marx 1993, n/p. 82 Taylor and Walton 1975; Vegh Weis 2017/2018. 83 Ravazi 2016. 79

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it is not possible to improve the situation of the disadvantaged without affecting the privileged position of those currently in power. On a different note, empowering perspectives should acknowledge that nations in disadvantaged positions are not intrinsically vulnerable, but rather trapped in concomitant and changeable disadvantaged and unequal power relations. Therefore, attention should then not only focus on immediate problems or specific individuals or states but on transforming power relations.84 In short, true empowerment can only be achieved when unequal power relations are challenged.85 This task involves challenging the apolitical use of the notion of empowerment used by donors and investors reluctant to warrant the transformation of the existing power structures responsible for exclusion, poverty and disenfranchisement. Furthermore, this involves addressing the experiences of vulnerable populations and countries to make them visible but also to provide space that they become decisive actors in decision-making processes, recognizing their agency and choice-making capacity.86 Moreover, overturning inequality in the letter of international criminal law also calls for the establishment of a system that focuses on the most damaging social harms (particularly those related to the ecosystem) rather than on crimes which do not [directly] threaten the existing capitalist economic order. This is linked with the systematic under-criminalization of the harmful behaviours of the powerful (nations and corporations), against which a material perspective would reveal that ‘any attempt to seriously confront this activity requires a preparedness to acknowledge their class foundations’.87 Finally, to overcome the third layer of material inequality (enforcement of the law), staffing the courts with those from the global South and from vulnerable populations following an intersectional spirit might help overcome implicit and explicit biases.88 Attention to the prosecution of crimes perpetrated by the North, including states but also corporations, is crucial to a truly international justice framework. When dealing with more traditional conflicts in the South (but in a strategy that can also enlighten the North), decentralization and preventive and restorative measures should go beyond existing courts in order to refocus on providing necessary funding and logistics assistance to foster the involvement of grassroots organizations of affected populations. This means that a counter-hegemonic project working against selective practices might find a path in preventive and restorative bottom-up practices rather than retributive, post-facto and centralized top-down justice. In this regard, it is important that global meetings organized to re-envisions the enforcement of international criminal law do not exclusively take place in the main capitals of the global North. Working with affected populations in their own communities would be a better path than dismissing them or requiring them to attend gatherings in strange

84

Stuart and Woodroffe 2016. Esquivel 2016. 86 Chandler 2013. 87 Lasslett and MacManus 2018, 642. 88 See Chap. 13 by Mudukuti in this volume. 85

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and hostile non-places. Furthermore, a variety of languages should be considered— including local dialects—instead of preserving English as the only working means of communication, which forces the subaltern to adopt the language of the dominant power.89

4.5 Conclusions This chapter examined the theoretical contributions of Marx and Engels as a framework for analysing the historical evolution of international criminal law. It discussed what can be referred to as a triple inequality that emerged at the end of the eighteenth century in a historical context dominated by bourgeois revolutions. The new ruling class relied on a legal-philosophical discourse to promote a drastic legal transformation: the equal treatment for all citizens under the law. This marked the beginning of a period of ‘idyllic justice’ grounded in consensual social values that gave the appearance, at least formally, of non-selectivity. Despite these promises, the emergent formal treatment under the law contrasted with the inequality of the law in practice. The continuity of the vulnerable sectors’ dispossession—an inherent element of the development of capitalism—was then masked behind three modes of inequality: inequality in the foundations of international criminal law, inequality in the drafting of this normative framework and inequality in the enforcement of the international law. The chapter also embraces the possibility of developing a counter-hegemonic project to overturn these layers of inequality. This can be done by acknowledging the selective features of crime control and by carrying out partial transformations to advance the rights claimed by the most disadvantaged. Specifically, in order to overturn inequality in the foundations of international criminal law, it is possible to explicitly address the historical conditions that shaped current inequalities and introduce positive regulations to overturn them by strengthening the South and marginalized subsets within each country. To overturn inequality in the drafting of international criminal law it is possible to treat unevenly those that are in unequal positions, transforming power relations and fostering a legal framework that focuses on the most damaging social harms, despite the consequences for capitalist accumulation. In terms of inequality at the level of the enforcement of the law, it is feasible to include the global South and vulnerable populations in international organizations enforcing the law, as a path to change existing selective practices. Overall, bottom-up transformative experiences90 that build upon an intersectional prism91 can shed light on grassroots counter-hegemonic deployments of international criminal law that can make a categorical break with centuries of unfairness.

89

See Chap. 12 by Swigart on language disparities in this volume. See Chap. 7 by Aksamitowska on Syria and Ukraine in this volume. 91 See Chap. 11 by García Atehortúa on gender justice in this volume. 90

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Other Documents U.N. Special Tribunal for Lebanon (Appeals Chamber) Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/1, 16 February 2011

Valeria Vegh Weis holds an LL.M. from New York University, USA, and a Ph.D. from Buenos Aires University, Argentina and teaches criminology and transitional justice at Buenos Aires University and National Quilmes University, Argentina. She is currently a Research Fellow at Universität Konstanz Zukunftskolleg and an Associate Researcher at the Max Planck Institute for European Legal History, Germany. She has held different fellowships including a Fulbright and an Alexander von Humboldt-Foundation scholarship. Her first book, Marxism and Criminology: A History of Criminal Selectivity, was awarded the Choice Award by the American Library Association and the Outstanding Book Award by the Academy of Criminal Justice Sciences. She is also the author of Bienvenidos al Lawfare and Criminalization of Activism. She was recently awarded the American Society of Criminology DCCSJ Critical Criminology of the Year Award (2021).

Part II

(Counter-) Hegemonic International Criminal Law in Practice: Case Studies

Chapter 5

Double Whammy: Targeted Minorities in South-Asian States Ishita Chakrabarty and Guneet Kaur

Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Mass Atrocities and Minorities in South-Asian States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Fault Lines of History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Postcolonial National Identity and Construction of the ‘Other’ . . . . . . . . . . . . . . 5.2.3 Marginalisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 Targeted Violence Against Minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.5 Extra-territoriality and Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Scope of Accountability in South-Asia Through the International Criminal Law Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 The Failure of Local Alternatives to International Criminal Law . . . . . . . . . . . . . 5.3.2 Why Do South-Asian Minorities Turn to International Criminal Law? . . . . . . . . 5.3.3 Divided by Borders, United by Opposition to the ICC Statute . . . . . . . . . . . . . . . 5.3.4 The Politics of International Criminal Justice and Gridlocked Remedy . . . . . . . 5.4 TWAIL’s Burden of Binaries and Missing Minority Intersectionality . . . . . . . . . . . . . . . . 5.4.1 Bandung’s Distressing Inheritance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 TWAIL’s Exclusionary Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.3 Failure to Hold Postcolonial States Accountable . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter explores ways in which both international criminal law and TWAIL fail to address the needs of accountability and remedy for violently targeted minorities in South-Asia. It will bring forth the selective, political manner of the institutionalisation of international criminal law by examining the prevalent power dynamics of the global political economy that shield powerful perpetrators, particularly in South-Asia. Majoritarian consolidation ensures the appearance of electoral I. Chakrabarty (B) Graduate Institute of International and Development Studies, Geneva, Switzerland e-mail: [email protected] Quill Foundation, Delhi, India G. Kaur Humboldt-Universität zu Berlin, Berlin, Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_5

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democracy in these countries despite widespread crimes against minorities. Western states have a critical interest in protecting allied regimes in South-Asia due to their strategic geopolitical location and symbolic democratic appearance that provide ideological alternatives vis-à-vis China. Large population sizes in some of these countries also provide vital markets for western business interests. These factors often protect powerful perpetrators from any international scrutiny for mass crimes. The nationstate-building goals of the non-aligned post-colonies shaped TWAIL’s origin. The process of nation-building for postcolonial South-Asian states has often involved fortifying national borders that were arbitrarily and rashly drawn by former imperial powers in the first place. Such fortification involved silencing dissenting minorities through targeted state violence. Likewise, second-generation TWAIL scholarship continues to be constricted by the inapt binary of First World versus Third World. This narrow contextualisation of TWAIL scholarship restricts its lens to interests of Third World nation-states rather than the needs of their people, especially minorities. TWAIL’s foundational goals block effective engagement and articulation of the minorities’ pleas for accountability and remedy in South-Asian countries, creating its own hegemonic narrative. Keywords Mass atrocities · Minorities · South-Asia · TWAIL · International criminal justice · Accountability · Remedy

5.1 Introduction South-Asia is one of the most violent regions in the world.1 The history of postcolonial South-Asia is one of its minorities2 bearing, witnessing, and some surviving several direct or indirect violent attacks from South-Asian states.3 Majoritarian and class consolidation under democratic regimes or military oligarchies has contributed to the legal, structural, and institutional othering of minorities in all South-Asian states, including in their constitutional frameworks.4 Institutional and civil society responses to mass crimes against these minority communities, dominant legal histories, and mainstream scholarship are often written from the perspective of the majoritarian consolidations that control power in these nation-states rather than the lived experiences of those on the receiving end of the exercise of such power. Political 1

Baqai 2004, pp. 57–68; Minority Rights Group International 2020, pp. 10–13. The words ‘minorities’ is broadly used to include ethnic, linguistic, religious, caste and racial minorities in these nation-states. Considering time and word limitations, the chapter does not delve into sexual minorities. 3 Original Nation Approaches to ‘Inter-National’ Law (ONAIL) creates a distinction between the nation and the state and argues that the Euro-centric view privileges the state over the nation as state borders continue to divide and occupy different nations. It defines ‘nation’ as culturally bound peoples and ‘state’ as a legal construction in which people are held together using centralised institutions and legal mechanisms. See Fukurai 2019, pp. 202, 207. Applying this framework, we will be using the term ‘states’, instead of ‘nation-states’. 4 Khan and Rahman 2011, pp. 372–384. 2

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scientist Ali Riaz notes that there is this tendency to approach violence with a state-centred lens, where analysts view the state as a monolithic entity under attack, without examining the state’s actions that engendered such reactions from its civilian population in the first place.5 On the one hand, this chapter attempts to highlight the inaccessibility of international criminal justice responses to mass atrocities against minorities in South-Asian states. On the other hand, this chapter will try to disentangle the inherent hegemonic interests in TWAIL’s critiques of evolving international law frameworks for accountability and ending impunity. It is our argument that the two phenomena are not mutually exclusive. The operational framework of the former and the conceptual framework of the latter impose intersecting hegemonies that inhibit access to meaningful dialogue around accountability and remedy for minorities in South-Asia. The chapter begins with the history of marginalisation and the flow from dehumanisation to mass crimes against minorities in South-Asian states. It subsequently looks into the unavailability of international criminal justice mechanisms for targeted minorities. In doing so, it also extrapolates some of the existing critiques of international criminal justice structures from the African context to a South-Asian geopolitical and economic context. Finally, the chapter argues that TWAIL, while providing a critical reorientation to international law, suffers from conceptual limitations that fail to centre the needs of minorities in the Third World, thereby failing to provide an effective scholarship framework for violently targeted minorities in South-Asia.

5.2 Mass Atrocities and Minorities in South-Asian States 5.2.1 Fault Lines of History It is critical to acknowledge that some of the fault lines and power hegemonies that trigger and sustain violence in South-Asia predate the arrival of European colonizers. However, European colonizers, especially the British Empire, widened the pre-existing fault lines and re-entrenched some of the hegemonies further.6 They imposed territorial administrative units according to their political and administrative needs without taking into account the linguistic, cultural, religious or ethnic compositions and needs of the demographic in these territories.7 As they hastily exited the sub-continent, the British divided historically cohesive ethnic groups across arbitrarily drawn state borders, in connivance with local power brokers.8 The process of drawing these national borders was completed in less than two months by an inexperienced British officer without any attempt to understand local needs, much less 5

Riaz 2019, pp. 18–19. Khan and Rahman 2011, pp. 367–368. 7 Mishra 2016, pp. 12–13. 8 Guha 2011, pp. 13–14; Hasan 2002, pp. 26–27; ‘ethnic groups transcend six of the seven borders of South Asian states.’ Baqai 2004, p. 57. 6

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involving those who were going to be permanently uprooted and whose lives and those of their future generations were going to be changed forever.9 The partition was accompanied by a violent civil war killing millions and is the largest mass exodus in history.10 These fractured identities continue to be manipulated by political elites using internal and external imageries—that one set of individuals belong while the others don’t.11 In the years that followed, an elite impatience to execute their long-held visions of building the state ousted the needs of partition survivors for conversations centring accountability and remedy for the wrongs that they witnessed and survived. For instance, there was an absence of truth, reconciliatory or remedial dialogues to address the violence of partition in the much-celebrated Indian constitution-making process.12

5.2.2 Postcolonial National Identity and Construction of the ‘Other’ Mohammad Shahabuddin argues that national elites in postcolonial states use the postcolonial nation-state as an ideology to counter the ‘minority problem’.13 A key component of such ideology is the process of manufacturing a national identity. South-Asian states appended state-building to the production of a unified national identity in response to the incoherence in national borders vis-à-vis the constituent demographic 14 South-Asian states have oscillated between a secular or assimilated identity with majoritarian leanings and a visibly majoritarian identity.15 In states like Maldives, Pakistan, and Afghanistan, the national identity is officially tied to the majority Islamic religious identity. In others like India and Nepal, the formal use of the word ‘secularism’ in their constitutions did not imply automatic protection of minorities and recognition of their identity differences with the dominant identity. The newly constituted states demanded absolute loyalty to this unified

9

Hay 2006, pp. 74–79; Chatterji 1999, pp. 186–187, 192–194; Kaur 2019, pp. 116–118. Talbot and Singh 2009, pp. 67–89; Guha 2011, pp. 15–16; for an account of gender based violence and gendered implications of the partition of the subcontinent, see Butalia 1994, pp. 36–42. 11 Riaz 2019, p. 2. 12 Samaddar 2019, p. 10. 13 Shahabuddin, Minorities and the Making of Postcolonial States in International Law, https:// twailr.com/minorities-and-the-making-of-postcolonial-states-in-international-law/. Accessed 26 January 2022. 14 Phadnis and Ganguly 2001, p. 13. 15 For example, Bangladeshi liberation struggle was fought under an assimilative ‘Bangla/Bengali’ identity which was substituted by a ‘Bangladeshi identity’ as the army took over in 1976, see Khan and Hossain 2006, pp. 324–339. The army carried out a massive resettlement plan to settle Bengalis in Chittagong Hill Tracts, imposing assimilation on the non-Bengali speaking, non-Muslim indigenous communities there, see Shahabuddin 2013, p. 92. 10

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identity defined by majoritarian dictates. Those willing to assimilate, or alternatively could be assimilated over commonalities were absorbed, leaving behind those who retained their differences and were thus seen as threats to the national unity or the ‘other’. For instance, in the Indian imagination, these commonalities involved a shared territory in the likeness of ‘Bharat’. While anything that was non-Indic16 automatically became the ‘other’, as in this case, all Abrahamic faiths (Islam, Christianity), other religions whose origins could be traced back to the subcontinent, were brought under the wider Hindu majoritarian order.17 Rights such as those of citizenship within states inevitably result in othering by privileging a certain identity ascribed to the state and foreclosing others.18 These ‘others’ do not and cannot claim equal access to rights.19 On the contrary, any assistance to them becomes synonymous with appeasement.

5.2.3 Marginalisation As Donald Horowitz puts it, identities are not mere terms, and they serve to claim entitlements, including citizenship, access to electoral systems, designation of official languages and religion, etc.20 Claiming rights is a complex process in states with fractured identities, where even the slightest human rights violations are usually addressed through solidarity movements built over similar identities.21 When confronted with institutional violence, minorities are inherently disadvantaged because of their marginalised identities within populist spaces. This conflation of civic and political identities in South-Asian states pushes minorities to the periphery to the point where formal rights to equality offer no assistance, since they mask inequalities without confronting them.22 Eventually, marginalisation in one area percolates into the other, until it becomes multi-dimensional and self-enforcing. In India, the Sachar Committee Report of 2006 concluded that the lack of Muslim political representation also emboldened arbitrary actions on the part of state agencies against the Muslim community, including by law enforcement and the judiciary.23 Sri Lanka passed the 1948 Citizenship Act, immediately following the end 16

Indic used to refer to religions that are thought of as having been conceived on the Indian subcontinent, or having their places of worship there. See for e.g. this argument (and use of the term Indic/non-India) used by Nageswara Rao in his article in trying to justify the CAA, https://www.outlookindia.com/website/story/opinion-civilisational-responsibility-limitsindian-citizenship-to-persecuted-adherents-of-indic-religions-only/339876. Accessed 26 January 2022. 17 Fazal 2015, pp. 5–10, 18–19. 18 Roy 2010, pp. 5–6. 19 Roy 2010, p. 11. 20 Tambiah 1996, p. 22. 21 Grugel et al. 2017, pp. 2–3. 22 Roy 2010, pp. 10–11. 23 Kannabiran 2012, p. 282.

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of British colonial rule. This Act helped consolidate an initial Sinhalese majority in the parliament and eventually institutionalised it. In the next few years, the same Parliament would introduce discriminatory constitutional amendments, legislations, and policy measures against the Tamil minority in various fields like employment and education.24

5.2.4 Targeted Violence Against Minorities The intensity, frequency, and long-standing nature of violence from both state actors and non-state actors who receive the imprimatur of state organs25 show that SouthAsia has remained immune to any mediatory efforts between the dominant and minority groups. In his analysis of political violence within South-Asia, Riaz identifies at least six different types of violence—institutional, ethnic, sectarian, religious, separatist and ideological.26 Eventually, sustained dehumanising propaganda, and the constant infliction and justification of violence on minorities desensitise the majority population for all that is to come.27 For instance, Muslims within India have been subjected to speech acts that not only violate their rights to dignity and security but in several instances have also been followed by targeted attacks in their immediate aftermath.28 Ethnonationalism is not a purely western construct.29 Despite all the colonial bashing, South-Asian states have continued to use colonial tools—legal frameworks and institutions—to oppress minorities. For instance, the terms ‘riots’, ‘internal disturbances’, and ‘terrorism’ have been used to classify all acts of targeted violence against minorities as spontaneous, assume greater executive powers to themselves, by imposing lockdowns or ordering security forces to use the maximum permissible force, and to categorise the minority group as a ‘mob’, that is, as irrational actors.30 Alongside such othering, targeted violence is trivialised as episodic, rather than viewing them within the larger context of ongoing insurgencies, civil wars, ethnic conflicts, and political movements.31

24

Noronha Dos Santos 2007, pp. 45–46. Tambiah 1996, pp. 3–4. 26 Riaz 2019, pp. 21–22. 27 Fein 2007, p. 15. 28 See for example Delhi Minority Commission 2020, pp. 99–103. 29 Tambiah 1996, p. 12. 30 Ibid., p. 25. 31 Ibid. 25

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5.2.5 Extra-territoriality and Violence The arbitrary state borders have divided ethnic groups across borders in South Asia.32 For example, the Tamils live in India and Sri Lanka, Punjabis live in India and Pakistan, Madheshis in Nepal have an ethnic affinity to India, folks of Bangla ethnicity live in India and Bangladesh, indigenous communities like the Santhals live in India and Bangladesh and the Lhotshampa from Bhutan were driven out to Nepal as refugees. Dominance of kinship and other primitive ties in these societies result in a situation where the majority group in one state is influenced by another state’s treatment of its own minority groups, with whom the former shares real or imagined ties.33 For instance, after years of gradual expulsion of the ethnic Tamil community in Sri Lanka through disenfranchisement, statelessness, explicit discrimination and denial of autonomy, when the Jayawardhane-led government finally resorted to military offensives, the Tamil community in India rose to the occasion to ‘save the Tamils in Sri Lanka’. India assisted in the propping up of the Tamil secessionist movement as a form of ‘humanitarian intervention’, believing that they had to ‘respect the sentiments of the 50 million Tamil citizens of India’.34 While South-Asian states insist on keeping matters of targeted violence against minorities ‘internal’ to the state, such a territorially linked framework often fails to adequately respond to the complexity of such violence. Solutions for mass atrocities within South Asian states must lie within the international or sub-continental domain.

5.3 Scope of Accountability in South-Asia Through the International Criminal Law Process The individual criminal responsibility based international criminal law regime is one of the available modes of seeking accountability for mass atrocities in the larger transitional justice space. The other modes include mechanisms for truth-finding and truth-telling, memorialisation, lustration or vetting, and reparations.35 Communities seeking justice for mass atrocities have their own motivations, objectives, and reasons for choosing one mechanism over the other. The other transitional justice modes are not fundamentally opposed to criminal justice mechanisms.

32

Baqai 2004, p. 57. Riaz et al. 2019, p. 2; Tambiah 1996, pp. 3–4. 34 Noronha Dos Santos 2007, pp. 54, 63. 35 Arthur 2010, p. 271. 33

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5.3.1 The Failure of Local Alternatives to International Criminal Law It is usually argued that since the local accountability mechanisms are situated closer to the community, they aid in visibility, and indirectly, in delivery of justice.36 Likewise, they often address the root political, social and economic causes that are essential to preventative efforts and state-building. However, for survivors of mass atrocities in South-Asian states, remedy is often elusive through locally administered mechanisms due to the state or majoritarian group influence and control of such mechanisms. South-Asia has a long history of truth-finding mechanisms or truth commissions. Some of these, like the Truth and Reconciliation Commission in Nepal and the Lessons Learnt and Reconciliation Commission in Sri Lanka, were established under the respective national governments after considerable international pressure. Pakistan established a Commission of Inquiry on Enforced Disappearances in 2011 after a large number of cases pertaining to missing persons were filed in its Supreme Court.37 Others like the several commissions of inquiry after anti-minority pogroms in India were the result of internal pressures from local civil society and had a restricted scope of inquiry.38 However, commissions of inquiry or truth and reconciliation commissions in South-Asian states have often failed to deliver truth or justice to victims of mass atrocities. Commission members are often biased towards majoritarian or national security narratives or suffer from state apathy, like in the case of Truth and Reconciliation Commission for enforced disappearances during the civil war in Nepal.39 Memorialisation efforts in South-Asia are led mainly by members of the harmed minority groups and often face active obstruction from governments.40 Vetting or lustration against government officials responsible for direct abuse is a rarely-heard of phenomenon in South-Asian states where official impunity from prosecutorial action is often legislatively guaranteed.41 The framework of reparations that acknowledges state harm is seldom heard of in the South-Asian context. The term ‘compensation’ is more commonly used for monetary awards made after mass atrocities.42 Semantically, this conveys an act of state benevolence for an inadvertent disaster instead of the state’s acknowledgement of and restitution for its

36

Bekou 2015, pp. 134–135. Amnesty International 2011. 38 Begum 2018, pp. 72–75. 39 Rai 2016. 40 For example, the Tamil Sri Lankan community has time and again spoken about the destruction of remembrance memorials by Sri Lankan state authorities. See Srinivasan 2021; BBC 2021. 41 For example, see the Armed Forces Special Powers Act in India. S.4 of the act empowered security forces to shoot to kill suspects. S. 7 of the act gave prosecutorial immunity for any actions taken pursuant to the respective acts. 42 For examples, see Reuters Staff 2007; India Today 1996. 37

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targeted mass atrocities. Most South-Asian states do not have the normative framework for prosecuting mass atrocities. In the context of the 1984 Sikh Genocide,43 the Delhi High Court lamented this lack of normative framework to prosecute what it concluded were crimes against humanity perpetrated by the then government in power against the Sikh community.44 In 2014, the Pakistan Supreme Court acknowledged that enforced disappearances constituted a crime against humanity, and were violative of their constitutional provision on protection from arrest and detention, notwithstanding Pakistan’s non-ratification of the Convention on Enforced Disappearances.45 Despite this, both the courts as well as the Commission of Inquiry set up in 2011 have failed in ascribing responsibility to officials, limiting themselves only to establishing the victims’ whereabouts.46 Bangladesh’s prosecution of its own nationals for war crimes was an exception built on their national experience and popular support.47 Even then, the trial was suspended for over 40 years, and the prosecutions ran into several controversies, including for the reason that they granted full immunity to perceived nationalists or ‘freedom fighters’, overlooking the fact that several Urdu-Biharis who supported Pakistan were also targeted, although Bengalis and Bengali Hindus comprised the majority of casualties.48 Further, the alleged infraction of several fair trial rights, reduced the legitimacy of these trials to an act of ‘political vendetta’.49

5.3.2 Why Do South-Asian Minorities Turn to International Criminal Law? In this background of failure of alternative remedy mechanisms, affected minority communities in South-Asia often seek international criminal justice mechanisms to remedy the harms done to them. In 2017, the Northern Provincial Council representatives resisted the UN Human Rights Council Resolution 30/1 recommendation to Sri Lanka, to initiate domestic prosecutions led by foreign judges into allegations of crimes committed in the last phases of the conflict. Their argument stood on the ground that the repressive policy of successive governments, constituted the act of the state, which did not inspire any confidence, and further called on the Human Rights

43

For more information on the 1984 anti-Sikh Genocide, resources are available at https://www. sikhcoalition.org/blog/2021/remembering-1984-2/. Accessed 26 January 2022. 44 State and Others v. Sajjan Kumar and Others, 2019 IAD (Delhi) 1, paras 136–150, 282–296, 368 (xii). 45 Amnesty International 2020, pp. 1–2. 46 Ibid., p. 6. 47 Mollah 2019, pp. 654–659. 48 Haque 2018, pp. 247–248. 49 Ibid., pp. 246, 256–257.

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Council to recommend the situation to the UN Security Council and consequently, the ICC.50 However, most international engagements by minority groups from the region are limited to UN treaty bodies and special procedures. The levels of engagement with international criminal justice depend on the extent of barriers propped by the respective states. For instance, activists and human rights defenders in Pakistan, have limited access to ‘security areas’ such as Gilgit-Baltistan, Balochistan, and the Federally Administered and Tribal Areas, making it difficult to document abuses in the first place. Those trying to access international justice mechanisms are targeted by the state.51 The Ahmadiyya minority in Pakistan, despite being recognised as one of the most persecuted communities,52 has been unable to approach international criminal forums.53 Sri Lanka put individuals who sought an international accountability mechanism, under increased surveillance.54 In 2016, India put a travel ban on Kashmiri human rights defender and documenter, Khurram Parvez, to stop him from attending a Human Rights Council session and in 2021 arrested him under a draconian special security legislation.55 John Reynolds and Sujith Xavier believe that the reasons for choosing to engage with international criminal justice for minority self-determination groups vary from deterrence and prevention of recurrence of such atrocities in future to retribution against the colonising state, and a need for their harms to be acknowledged internationally.56 Mass atrocity media narratives are often rigged with victim-blaming and majoritarian national security rhetoric, and judicial response is apathetic to minority plight. In such a scenario, for survivors and their larger communities, sometimes an international sanction or condemnation is often the only place where their truth is acknowledged. The possibility of loss of impunity of powerful perpetrators has a huge symbolic lure for those from South-Asian minority communities, where powerful perpetrators keep returning to power due to majoritarian consolidation of votes for a majoritarian agenda. For example, India’s current Prime Minister Narendra Modi has won repeated elections despite very serious allegations by survivors about his role as a commander during the 2002 anti-Muslim pogrom in Gujarat.57 Investigating teams and government commissions of inquiry have so far failed to hold him accountable for his role in the pogrom.58 Similarly, Mahinda Rajapaksa, along with other members of his family, has continued to consolidate and retain power on a Sinhala majoritarian agenda despite the mass atrocities by the Sri Lankan army under his presidency. Amendments to the constitution in 2020 marked a departure from an 50

Association Tamil Uzhagam 2017; Together Against Genocide 2017. For example, see Forum Asia 2018, pp. 232–234. 52 FIDH 2015; Human Rights Watch 2017. 53 Amnesty International 2018. 54 Forum Asia 2018, pp. 251–252. 55 Al Jazeera 2016. 56 Reynolds and Xavier 2016, p. 976. 57 Nair 2014, pp. 13–15. 58 BBC 2012; News18 2019. 51

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attempt at democracy and found overwhelming support from the Sinhalese-Buddhist community over security-related apprehensions.59

5.3.3 Divided by Borders, United by Opposition to the ICC Statute International criminal law has remained largely impenetrable in South-Asia. We say ‘largely’ because, to be fair, a few states have made efforts to engage with the criminal justice mechanisms. When the ICC Statute was put to the vote, only Afghanistan and Bangladesh signed and subsequently ratified the treaty. While Afghanistan was prompted by the prospects of putting the Taliban and members of the NATO forces to trial, Bangladesh found within the ICC Statute, support for its own national mechanisms that were conceived as early as in 1973, to try war crimes perpetrators, but were heavily criticised by the opposition as being an act of ‘political vendetta’.60 India and Sri Lanka abstained from voting, arguing that crimes such as ‘terrorism’ were not in the list of core crimes. Pakistan subsequently decided not to ratify the treaty.61 India and Pakistan did not support the inclusion of crimes committed in the course of internal armed conflicts.62 Additionally, Pakistan objected to the inclusion of aggression under the list and what they perceived as a derogation of the principle of immunity enjoyed by heads of states under international law.63 These stances are governed by state interests. Ratification of the treaty would have had direct implications for the conflicts in Kashmir, the naxal-belt and the north-east, in India, Balochistan and Khyber Pakhtunwa provinces in Pakistan, and the Eelam movement in Sri Lanka, which these states either classify as internal disturbances or acts of terrorism. In fact, the Permanent Representative of Sri Lanka to the UN, John D. Saram, admitted that the ICC could be used to bring those who perpetrated the war in the North and North-East regions of Sri Lanka to account. In the final stages alone, the military offensive under President Rajapaksa killed up to 40,000 people.64 The ICC cannot initiate investigations on its own for states which are not party to the ICC Statute. In such a scenario, where most South-Asian states are not members of the ICC Statute, the only way for victims to access the ICC criminal justice system is if they get the support of the UN Security Council.

59

Gomez 2021. Gomez states that after the defeat of the Liberation Tigers of Tamil Eelam (LTTE) in 2009, power-sharing discussions completely slipped off the table and this positioning had the support of the Sinhala-Buddhist majority who were not willing to concede political powers. 60 Jha 2018, p. 304. 61 Ibid. 62 Hall and Jeffery 2021, p. 670; Dawn 2003. 63 Jha 2018, pp. 301–303. 64 Ibid., p. 305.

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5.3.4 The Politics of International Criminal Justice and Gridlocked Remedy Outside of self-referrals and ICC’s proprio motu (on its own) investigations into crimes linked to member states, the ways for triggering international criminal justice processes are through UN Security Council referrals to either the ICC or setting up an ad-hoc criminal justice mechanism, or through a universal jurisdiction-based prosecution in other countries. Both these methods are deeply political in nature and depend on the interest of powerful western states. Due to their own interests, western states have been mostly deferential towards South-Asian states, and in some instances have even supported South-Asian regimes in executing mass atrocities against their minorities. For one, South-Asian states such as India and Sri Lanka are more or less perceived as democratic. In an extension of this argument, South-Asia’s extensive participation since the initial phases of the UN’s founding and subsequently as a part of major multilateral institutions, has also somewhat infused a sense of their commitment to the new order and the important roles they play within it.65 But in the western state’s obsession with their idea of democracy, it is conveniently forgotten that democratic processes have been no better than authoritarian mechanisms—as discussed before, electoral dominance has been used as a tool to unleash and intensify ethnic conflicts. Additionally, it ignores that paying lip service to institutional mechanisms66 hardly translates into real commitments back home. Secondly, western states have their own vested interests—whether corporatist or geostrategic—to stick to non-intervention as a matter of practice. For instance, post economic liberalisation, US foreign policy towards India transitioned from a hard-line stance to relative accommodation and even coaxing, after realising the high growth potential and consumer markets.67 Strategic geopolitical interests in the Indian Ocean have also determined the international political manoeuvring around accountability for grave human rights violations against Tamil minorities in Sri Lanka and against minorities in India. Sri Lanka’s location near the East-West route, which 65

Kaul and Jha 2018, pp. 2–3. The authors discuss how South-Asian states such as India (then comprising the current landmass that now is Pakistan, and Bangladesh) participated during the drafting of the UN Charter, suggested universal membership, and later advocated for a greater representation of smaller states. They have also formally engaged with mechanisms such as the predecessor to the current Human Rights Council, since their inception. India was also offered a permanent UN membership to the UN Security Council, twice, in 1950 and 1955, and India’s bid since then to secure a seat has been supported by its regional allies, Nepal, the Maldives, Bangladesh. See ibid., pp. 16, 19. 66 Ibid., p. 20. India was the first country that brought up the issue of racial discrimination in South Africa, before the UN GA in 1946. It has been significantly involved in peacekeeping operations, supported bans on nuclear tests, brought together developing countries within the New International Economic Order and along principles of non-alignment. 67 Cohen 2000; see also Lundseger 2011, discussing how the US has made a case for expanding Asian representation within the IMF, entered into agreements such as the Transpacific Partnership, that will ultimately lead to reducing trade barriers between the countries for facilitating exports.

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is a crucial trading route for global oil supplies, as well as its location, which is of military interest to both US and China, has embroiled the needs of the Tamil minority community in a perpetual geopolitical chess game.68 Similar geostrategic interests and machinations also govern international responses to grave human rights violations against minorities in Nepal. At the same time, the US continued to engage and direct substantial financial and diplomatic capital towards Pakistan in an attempt to gain ground over the Afghanistan situation.69 Likewise, in the US’ fervent attempts to eliminate ‘radicalisation’ overseas, it has often offered assistance to Bangladesh to tackle counter-terrorism— despite acknowledging the state’s record for decades, in attacking political dissidents under the guise of counter-terrorism.70 Michaelsen observes how the UN Security Council officially sanctioned the US initiated ‘global war on terror’ by introducing resolutions exhorting states to adopt measures including domestic legislations against the financing, planning, preparation and participation in terrorism offences, without further regard for human rights.71 This externality allowed states to target those they perceived as their opponents, under the bogey of a ‘terrorist’ threat, notwithstanding the fact that the definition of a terrorist was inherently a political one.72 There are also other direct and devious interests, such as ongoing conflicts in South-Asian states that provide weapons markets for western states, who may want to hide their own role in helping South-Asian states execute mass atrocities. For example, recently declassified documents in the UK disclose how the British government gave strategic support to the Indian government to execute the operations that killed so many Sikh minority civilians because India was its biggest purchaser of military equipment between 1981 and 1990.73 For affected minorities, access to international criminal justice remedy mechanisms is often gridlocked in competing interests of powerful states and the majoritarian elite in their governing state. A rare intersection of the need for accountability with vested interests of a Western power is the case of sanctions imposed on the Sri Lankan Army Chief, and former commander of the division accused of extrajudicial killings, Shavendra Silva, under the US’s universal jurisdiction-based sanctions regime.74 Although, far from any real remedy or accountability, this is the only action so far against a powerful perpetrator despite pursuing years of domestic accountability processes.

68

Jha et al. 2018, p. 20; Kugelman 2016; Ramachandran 2019. Kugelman 2016. 70 Ibid. 71 Michaelsen 2012, p. 287. 72 Held 2004, p. 63. 73 Kaur 2014; Doward 2017. 74 Borger 2020. 69

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5.4 TWAIL’s Burden of Binaries and Missing Minority Intersectionality TWAIL aims to analyse international law from the ‘Third World’ perspective. The conception of the Third World is subjective to the TWAIL scholar’s identification with the ‘Third World’ or their interpretation of this term.75 D’Souza holds that ‘the object of knowledge for TWAIL scholars is international law, not the Third World.’76 It is viewed both as a methodology77 and as a political orientation.78 TWAIL is conceptually fenced by political binaries such as North versus South, First World versus Third World, which can be problematic for scholars who want to go beyond binaries.79 TWAIL critiques of emerging legal frameworks for mass crimes accountability and remedy, including international criminal justice and transitional justice, are often defined by the political goals of TWAIL rather than the needs of affected communities.80 TWAIL scholars from affected communities struggle to create consonance between political needs of their community and political orientation of TWAIL scholarship.81 In terms of methodological frameworks, TWAIL scholarship has failed to move beyond critiques of such emerging frameworks to build strategies that responds to the needs of minorities affected by mass atrocities. Much of TWAIL scholarship around international criminal justice is contextualised within the African continent and often, fails to provide a decolonizing accountability and remedy strategies. This section of the chapter does not directly engage with TWAIL scholarship on international criminal justice. Instead, this section explores the more general conceptual and structural limitations of TWAIL scholarship that inhibit it from honestly and constructively responding to the needs of minorities affected by state atrocities in South-Asia. TWAIL reorients international law but such a 180 degree flip of international law shuts out the intersectional lived reality of minorities in the postcolonial world. Many TWAIL scholars, like R. P. Anand, C. G. Weeramantry, B. S. Chimni, Vasuki Nesiah, Usha Natarajan, Sandhya Pahuja, Sujith Xavier, Balakrishnan Rajagopal, are (were) from South-Asia or belong to the larger South-Asian diaspora. TWAIL scholarship has a certain hold on the ways in which South-Asian scholars, including those from minorities in South-Asian states, unpack international law’s emancipatory potential. Therefore, it is important to understand the inherent limitations, biases and blind spots of TWAIL scholarship in the search for accountability and remedy frameworks for minorities in South-Asian states. 75

D’Souza 2012, pp. 425–426. Ibid., p. 426. 77 Ibid., p. 409. 78 Eslava and Pahuja 2012, p. 195. 79 D’Souza 2012, p. 413. 80 Anghie and Chimni 2003; Nesiah 2016, 2019. 81 Reynolds and Xavier 2016, p. 976. 76

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5.4.1 Bandung’s Distressing Inheritance One of the key features of TWAIL scholarship is that it takes a critical history lens to highlight the inherent oppressions in the evolution of international law.82 History helps locate and understand TWAIL’s own political motivations, as well. While TWAIL got a formal shape in 1997,83 most TWAIL scholars agree that it is a legacy of the 1955 Bandung Conference.84 TWAIL inherited its binary conceptual framework from the Bandung political project. Even though Bandung included a heavy rhetoric against colonisation, however, as B. S. Chimni puts it, ‘the spirit of Westphalia had already begun to work its magic among newly independent states.’85 The participation in Bandung was restricted to state delegations.86 Power in many of the participating states was controlled by feudal elites since pre-colonial times.87 The final communique that underlines the principles of territorial integrity, sovereignty, and non-interference was an affirmative stamp of acceptance of the colonial idea of a state.88 The principles of the Bandung final communique have been used by leaders of participating states to shrug off international criticism of mass atrocities against minorities in their states.89 While reflecting on the mass atrocities by Pakistani Army against the people of Bangladesh (then East Pakistan), Cyra Akhila Choudhury highlights how the ideas of territorial integrity, sovereignty and non-interference from Bandung armoured Pakistan’s brutal repression of the Bangladeshi’s people’s movement for self-determination in 1971.90 Choudhury observes that when the question of mass atrocities in East Pakistan came up for discussion in the United Nations General Assembly, the principle of territorial integrity trumped questions of self-determination and human rights for most participating Bandung states.91 Bandung’s colonisation lens was restricted to European colonists with no reflection about the ways in which participating political elites from these newly decolonised states were repressing minorities in their own countries.92 For example, one of the key faces associated with both Bandung and the vision for TWAIL was the then Indian Prime Minister Jawaharlal Nehru.93 In 1953, the Indian government under Nehru had dismissed a popular, democratically elected Head of the then independent state of Kashmir—Sheikh Abdullah and incarcerated him for almost 82

See for example Anghie 2005. Gathii 2011, p. 30. 84 Natarajan et al. 2016, pp. 1946–1956. 85 Chimney 2017, p. 35. 86 Esmeir 2017, p. 93. 87 Choudhury 2017, p. 323. 88 Khan 2017, p. 116. 89 Choudhury 2017, pp. 324, 334. 90 Ibid., pp. 322–324, 331. 91 Ibid., p. 334. 92 Dirar 2017, pp. 355–357. 93 Anand 2002, pp. 5–29; Pahuja 2017, pp. 552–573. 83

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11 years.94 As history will show, this will turn out to be a key step in India’s attempts to violently repress the aspiration for self-determination of the people of Kashmir and the gradual colonisation of Kashmir by India.95 Despite long histories of colonial violence, which included grave crimes and mass atrocities, there was no conversation about ways to remedy such wrongs, hold perpetrators accountable and prevent their non-repetition in their own countries. In fact, most postcolonial states adopted colonial tools of repression, to throttle and criminalise dissenting minorities and marginalised groups within their own borders.96 This is the political legacy that gave birth to TWAIL. Second generation TWAIL scholars claim that they’ve made significant changes.97 The following section contextualises these changes to the minorities’ experience in South-Asian states.

5.4.2 TWAIL’s Exclusionary Perspective With its inherent fixation on western colonisation, TWAIL scholars unintentionally end up shadowboxing concerns of minority communities by conflating specific concerns of subjugation by postcolonial states with generic critiques of neocolonialism. TWAIL forces homogenised narratives on minorities to develop an analogous agenda against First World hegemony.98 Such a uni-dimensional agenda fails to adequately elaborate and centre the concerns of minorities in the Third World, specifically in South-Asian states.99 Legal scholars writing from an Indigenous People’s perspective like Valerie Phillips and Hiroshi Fukurai have argued that the failure of TWAIL to detach from International Law’s primacy to states harms groups like indigenous peoples and self-determination seeking ethnic minorities.100 South-Asian states are run by majoritarian nation-cores that devise the cultural and political identity framework of these states.101 When ethnic minorities refuse to allow the exploitation of their resources by the nation-core or give up their language or culture for the national identity, the dominant national identity is imposed on them through use of narrative propaganda, national security and anti-terror normative frameworks, making ethnic minorities vulnerable to mass atrocities. TWAIL scholarship emerges from similar assimilationist goals of social movements and elites in ‘decolonised’ states102 that can often exclude those who are unwilling to assimilate in the nation-core. 94

Para 2019, pp. 207–210. Ibid. 96 Kalhan et al. 2006. 97 Anghie and Chimni 2003, pp. 79, 82. 98 Fukurai 2019, p. 241. 99 Ibid., p. 240. 100 Valerie 2007, pp. 319–323; Fukurai 2019, p. 241. 101 For a further explanation of nation-core, see Fukurai 2019, p. 206. 102 Valerie 2007, p. 322. 95

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TWAIL pins the responsibility for all forms of subjugation on colonisation, while reproducing colonial patterns of domination in postcolonial states.103 Burra explains that this West-centred conception of domination and wrong in TWAIL scholarship invariably excludes other forms of wrongs and discriminations that cannot be covered by this conceptual framework.104 Certain hegemonies and patterns of discrimination in South-Asian states predate the colonial encounters including caste-based discrimination in India, Pakistan, Nepal, Bangladesh, and Sri Lanka. Further, historically, and even now, many have converted to other religions like Islam, Sikhism, Christianity and Buddhism to escape the oppression of the Brahminical caste system within Hinduism.105 Even if colonial encounters accentuated the fault lines between the Hindu majority and religious minorities in India, these fault lines too originate from the precolonial structural division of society along caste lines, rather than just colonial machinations. TWAIL fixation with western colonisation erases these histories of minority subjugation and wrongfully reduces them to creations of colonial policies. Such erasure, along with the heavy dose of colonial victimisation that is inherent to TWAIL, creates misconceived notions of pre-colonial utopia and power-feeding militant nationalist ideologies.106 Majoritarian nationalism is used to forcefully assimilate minorities in South-Asian states, creating conditions for the othering and marginalisation of minorities. Such othering then provides the basis for targeted state or statebacked violence against minorities for their assertion of a distinct identity. In the case of the Christian minorities in India, Pakistan and Bangladesh, the TWAIL anti-West conceptual framework can reinforce dehumanising narratives against them.107

5.4.3 Failure to Hold Postcolonial States Accountable Since TWAIL scholarship inherently tends to project ultimate culpability for all wrongs in global governance towards the west led by the US Empire or western liberal traditions or historically emanating from the colonial encounter, this results in the erasure of the role of Third World states in the birth of unjust international normative structures. In her observations about the advisory opinion of the International Court of Justice in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Nesiah argues that the court relied on the international legal doctrine of self-determination because self-determination discourse 103

Burra 2016, p. 113. Ibid., p. 126. 105 Teltumbde 2020. 106 For example, Ratna Kapur traces the origin of the rise of Hindu Right in India to the Bandung anti-colonial, anti-western framing. See Kapur 2017, pp. 311–321. 107 For example, dog whistles insinuating western linkages to Christianity were the precursor to the Anti-Christian Kandhamal pogrom in India in 2008, National People’s Tribunal on Kandhamal 2010, p. 4. 104

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has lost its earlier relevance as a credible political resistance tactic.108 The political charge of self-determination is diffused by the counter charge of ‘war on terror’ pushed by the Empire in the post-9/11 scenario.109 Nesiah refers to this as a shift from the Westphalian model of international law based on national sovereignty to an imperial model of justice.110 This simplistic summarisation of contemporary international law history fails to underscore that states like India and Sri Lanka started using the anti-terror normative structure to criminalise and repress self-determination movements almost two decades before the PATRIOT Act on global ‘war on terror’. India passed the Terrorist and Disruptive Activities (Prevention) Act in 1985 to criminalise the Sikh community’s struggle for greater autonomy (and later, self-determination), creating conditions that legalised the torture, killings and enforced disappearances of thousands of Sikh dissenters by police and security services in India.111 Sri Lanka passed its Prevention of Terror Act in 1979, and the Proscription of the Liberation Tigers of Tamil Eelam and Similar Organisations Law in 1978 to use the normative structures of anti-terrorism to criminalise the aspirations and dissent of the minority Tamil community and provide legal cover for gruesome mass atrocities of its forces against Tamils.112 Equating self-determination assertions with terrorism is a fundamental aspect of postcolonial constitutional exceptionalism in countries like India and Sri Lanka. Due to the West-centred critique, scholars fail to document the key role of countries like India and Sri Lanka in making the doctrine of self-determination irrelevant. While the majoritarian elite in these countries were the primary benefactors of the doctrine of self-determination using it to assert their legal right to self-rule, they refused to acknowledge the existence of this legal right for ethnic minorities caught within their arbitrary postcolonial borders, leading to the slow passing of this right in international law. To simply project culpability towards the west, exonerates responsibility of Third World states in laying the groundwork for the so-called ‘imperial model of justice’. It also covers up how such normative frameworks were used by these South-Asian states to commit mass atrocities against minorities.

5.5 Conclusion South-Asia has remained a hotbed of violence and mass atrocities owing to the diverse nature of almost all the states herein that intersect across religious, ethnic, sectarian, political and other composite lines combined with the states’ need to assimilate. International criminal justice emerged with the hope that no state actor using the 108

Nesiah 2006, p. 916. Ibid. 110 Ibid., pp. 916–917. 111 Kumar et al. 2003, p. 84; Human Rights Watch and Ensaaf 2007, pp. 12–14. 112 Manoharan 2006, p. 2. 109

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instrumentality of a state113 could be immune for mass atrocities. The non-ratification of the ICC Statute by most South-Asian states and the politics of operationalising international criminal justice otherwise, have blocked access to international criminal justice for minorities in South-Asian states. With the smoking gun of colonial history and South-Asian positioning, the former found themselves in a conundrum. SouthAsian scholars mostly from majoritarian elite backgrounds further consolidated to come out with a stronger positioning over a TWAIL proposition. While TWAIL shifts the vantage point of international law towards the Third World, in doing so it fails to change the conceptual frames of international law such as ‘national sovereignty’. It fails to adequately elaborate the implications of projecting such conceptual frameworks upon minorities of the Third World. Critically analysing the history of Bandung is essential in order to locate TWAIL scholarship and its motivations when participating in conversations around accountability and remedy frameworks, especially for minorities in South-Asian states. While some of the assumptions of early TWAIL scholarship, now often referred to as TWAIL I, were critiqued by the ‘second generation’ TWAIL scholars, Bandung’s political vision continues to influence TWAIL scholarship. The mushrooming and highlighting of TWAIL’s conceptual framework grounded in binaries often tends to erase the history of mass atrocities against minorities in South-Asian states. Understanding the conceptual limitations of TWAIL and operational limits of international criminal justice is important for any conversation around remedy and accountability for minorities impacted by mass atrocities in South-Asia.

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International criminal justice does not contemplate simple errors in decision-making processes over prosecution of criminal actors. Rather, according to Professor Bassiouni, these crimes come from the state’s wilful intention and premeditation, since if it did not have the requisite intention, one would have expected it to stop its own organs from committing the acts. See Kuwali 2010, p. 28.

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Anghie A, Chimni BS (2003) TWAIL and Individual Responsibility in Internal Conflicts. Chinese Journal of International Law 2: 77–103 Arthur P (ed) (2010) Identities in Transition: Challenges for Transitional Justice in Divided Societies. Cambridge University Press, Cambridge Association Tamil Uzhagam (2017) UPR Submission: Sri Lanka: 2017. https://www.ohchr.org/EN/ HRBodies/UPR/Pages/UPRSriLankaStakeholdersInfoS28.aspx. Accessed 5 October 2021 Baqai H (2004) Role of Ethnicity in the Conflict Spectrum of South Asia. Pakistan Horizon 57 (4): 57–68 BBC (2012) India Gujarat Chief Minister Narendra Modi Cleared in Riots Case. https://www.bbc. com/news/world-asia-india-17664751. Accessed 16 May 2021 BBC (2021) Sri Lanka: Tamil War Monument to be Rebuilt After Hunger Strike. https://www.bbc. com/news/world-asia-55620079. Accessed 12 May 2021 Begum AA (2018) People’s Conversation on Truth, Justice and Reparation. In: Oinam B, Sadokpam DA (eds) North-east India: A Reader. Routledge, London Bekou O (2015) Building National Capacity for the International Criminal Court: Prospects and Challenges. In: Mariniello T (ed) The International Criminal Court in Search of Its Purpose and Identity. Routledge, London, pp 133–146 Borger (2020) US Imposes Sanctions on Sri Lankan Army Chief Over War Crimes. https://www.the guardian.com/world/2020/feb/14/us-sanctions-sri-lanka-army-chief-shavendra-silva. Accessed 20 May 2021 Brass RP (2003) The Production of Hindu Muslim Violence in Contemporary India. University of Washington Press, Seattle Broomhall B (2004) State Actors in an International Definition of Terrorism from a Human Rights Perspective. Case Western Reserve Journal of International Law 36: 421–441 Burra S (2016) TWAIL’s Others: A Caste Critique of TWAILers and Their Field of Analysis. Windsor Yearbook of Access to Justice 33: 111–128 Butalia U (1994) Community, State and Gender: Some Reflections on the Partition of India. Oxford Literary Review 16 (1): 33–67 Chatterji J (1999) The Fashioning of a Frontier: The Radcliffe Line and Bengal’s Border Landscape, 1947–52. Modern Asian Studies 33 (1): 185–242 Chimney BS (2017) Anti-Imperialism: Then and Now. In: Eslava L et al. (eds) Bandung, Global History, and International Law: Critical Pasts and Pending Futures. Cambridge University Press, Cambridge, pp 35–48 Choudhury CA (2017) From Bandung 1955 to Bangladesh 1971: Postcolonial Self-Determination and Third World Failures in South Asia. In: Eslava L et al. (eds) Bandung, Global History, and International Law: Critical Pasts and Pending Futures. Cambridge University Press, Cambridge, pp 322–336 Cohen PS (2000) The Economic and Geostrategic Stakes in South Asia. Brookings. https://www.bro okings.edu/articles/the-economic-and-geostrategic-stakes-in-south-asia/. Accessed 5 May 2021 Dawn (2003) Pakistan Unlikely to Ink Rome Statute of ICC. https://www.dawn.com/news/117634/ pakistan-unlikely-to-ink-rome-statute-of-icc. Accessed 20 November 2021 Delhi Minority Commission (2020) Report of the Fact-Finding Committee on North-East Delhi Riots of February 2020. https://ia801906.us.archive.org/11/items/dmc-delhi-riot-fact-rep ort-2020/-Delhi-riots-Fact-Finding-2020.pdf. Accessed 1 May 2021 Dirar L (2017) Rethinking the Concept of Colonialism in Bandung and Its African Union Aftermath. In: Eslava L et al. (eds) Bandung, Global History, and International Law: Critical Pasts and Pending Futures. Cambridge University Press, Cambridge, pp 355–366 Doward J (2017) British Government ‘Covered Up’ Its Role in Amritsar Massacre in India. https://www.theguardian.com/world/2017/oct/29/british-government-cover-up-amritsarmassacre-golden-temple-sas-india. Accessed 20 May 2021 D’Souza R (2012) Imperial Agendas, Global Solidarities, and Third World Socio-Legal Studies: Methodological Reflections. Osgoode Hall Law Journal 49: 409–444

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Kannabiran K (2012) Tools of Justice: Non-Discrimination and the Indian Constitution. Routledge, London Kapur R (2017) The Colonial Debris of Bandung: Equality and Facilitating the Rise of the Hindu Right in India, In: Eslava L et al. (eds) Bandung, Global History, and International Law: Critical Pasts and Pending Futures. Cambridge University Press, Cambridge, pp 311–320 Kaul J, Jha A (2018) Changing Horizons of International Law: A South Asian Perspective. In: Kaul J, Jha A (eds) Shifting Horizons of Public International Law. Springer, New Delhi, pp 1–13 Kaur M (2014) Ten Thousand Pairs of Shoes. https://www.guernicamag.com/mallika-kaur-ten-tho usand-pairs-of-shoes/. Accessed 20 May 2021 Kaur M (2019) Faith, Gender, and Activism in the Punjab Conflict. Palgrave Macmillan, Basingstoke Kaur M, Chatterji AP, Buluswar S (eds) (2016) Conflicted Democracies and Gendered Violence: Internal Conflict and Social Upheaval. Inkworks Press, Berkeley Khan AH (2017) Ghostly Visitations: ‘Questioning Heirs’ and the Tragic Tasks of Narrating Bandung Futures. In: Eslava L et al. (eds) Bandung, Global History, and International Law: Critical Pasts and Pending Futures. Cambridge University Press, Cambridge, pp 108–125 Khan BU, Rahman MM (2011) Freedom of Religion in South Asia: Implications for Minorities. European Yearbook of Minority Issues Online 8 (1): 367–386 Khan MH, Hossain I (2006) The Rift Within an Imagined Community: Understanding Nationalism(s) in Bangladesh. Asian Journal of Social Science 34 (2): 324–339 Kugelman M (2016) US Policy in South Asia: Imperatives and Challenges. Wilson Centre. https:// www.wilsoncenter.org/article/us-policy-south-asia-imperatives-and-challenges. Accessed 5 May 2021 Kumar RN, Singh A, Agrwaal A, Kaur J (2003) Reduced to Ashes. Jagadamba Press, Lalitpur Kuwali D (2010) Old Crimes, New Paradigm: Preventing Mass Atrocity Crimes. In: Rotberg RI (ed) Mass Atrocity Crimes – Preventing Future Outrages. World Peace Foundation, Cambridge, MA, pp 25–54 Lundseger M (2011) US Success in Asia Depends on Innovation and Integration, Not Isolation. In: Goto S (ed) Committed: US Foreign Policy in Asia and Completing the Rebalance. Wilson Centre. https://www.wilsoncenter.org/sites/default/files/media/documents/publication/ asia_160824_committed_us_foreign_policy_in_asia_and_completing_the_rebalance_web.pdf. Accessed 10 May 2021 Manoharan N (2006) Counterterrorism Legislation in Sri Lanka: Evaluating Efficacy. https:// www.eastwestcenter.org/system/tdf/private/PS028.pdf?file=1&type=node&id=32164. Accessed 26 May 2021 Michaelsen C (2012) Permanent Legal Emergencies and the Derogation Clause in International Human Rights Treaties: A Contradiction? In: Masferrer A (ed) Post 9/11 and the State of Permanent Legal Emergency. Springer, pp 287–314 Minority Rights Group International (2020) Peoples Under Threat. https://minorityrights.org/wpcontent/uploads/2020/06/MRG_Brief_PUT2020.pdf. Accessed 6 May 2021 Mishra SK (2016) The Colonial Origins of Territorial Disputes in South Asia. The Journal of Territorial and Maritime Studies 3 (1): 5–23 Mollah AH (2019) War Crimes Trial in Bangladesh: Justice or Politics? Journal of Asian and African Studies 55: 652–665 Nair R (2014) The Ehsan Jafri Case: Modi’s Banquo Ghost. Economic and Political Weekly 14:13– 15 Natarajan U, Reynolds J, Bhatia A, Xavier S (2016) Introduction: TWAIL-On Praxis and the Intellectual. Third World Quarterly 37: 1946–1956 National People’s Tribunal on Kandhamal (2010) Final Report. https://www.sabrang.com/cc/arc hive/2012/jan2012/citizens%20tribunal%20Kandhamal%20Report%20Full.pdf. Accessed 20 May 2021 Nesiah V (2006) Resistance in the Age of Empire: Occupied Discourse Pending Investigation. Third World Quarterly 27(5): 903–922

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Nesiah V (2016) Theories of Transitional Justice: Cashing in the Blue Chips. In: Orford A, Hoffman F (eds) The Oxford Handbook of Theories of International Law. Oxford University Press, Oxford Nesiah V (2019) Crimes Against Humanity: Racialized Subjects and Deracialized Histories. In: Tallgren I, Skouteris T (eds) The New Histories of International Criminal Law: Retrials. Oxford University Press, Oxford News18 (2019) ‘Not Organised’: Narendra Modi-Led Gujarat Govt Gets Nanavati Commission’s Clean Chit in 2002 Riots Case. https://www.news18.com/news/india/narendra-modi-led-gujaratgovt-gets-clean-chit-in-2002-riots-case-2420031.html. Accessed 18 May 2021 Noronha Dos Santos A (2007) Military Intervention and Secession in South Asia: The Cases of Bangladesh, Sri Lanka, Kashmir, and Punjab. Praeger Security International, Westport, CT Pahuja S (2017) Letters from Bandung: Encounters with Another International Law. In: Eslava L et al. (eds) Bandung, Global History, and International Law: Critical Pasts and Pending Futures. Cambridge University Press, Cambridge, pp 552–573 Para A (2019) The Making of Modern Kashmir: Sheikh Abdullah and the Politics of the Day. Routledge, New York Phadnis U, Ganguly R (2001) Ethnicity and Nation-Building in South Asia. Sage, New Delhi Rai D (2016) ‘Govt Apathy’ Leaves TRC in a Quandary. https://kathmandupost.com/miscellan eous/2016/11/14/govt-apathy-leaves-trc-in-a-quandary. Accessed 22 May 2021 Ramachandran S (2019) Sri Lankans Up in Arms Over US Military Pacts. https://thediplomat.com/ 2019/08/sri-lankans-up-in-arms-over-us-military-pacts/. Accessed 16 May 2021 Reuters Staff (2007) Nepal Court Orders Compensation for Missing People. https://www.reuters. com/article/idINIndia-30112420070602. Accessed 16 May 2021 Reynolds J, Xavier S (2016) ‘The Dark Corners of the World’: TWAIL and International Criminal Justice. Journal of International Criminal Justice 14: 959–983 Riaz A (2019) A Taxonomy of Political Violence in South Asia. In: Riaz A et al. (eds) Political Violence in South Asia. Routledge, Taylor & Francis Group, pp 13–25 Riaz A et al. (2019) Introduction: Perspectives on Political Violence in South Asia. In: Riaz A et al. (eds) Political Violence in South Asia. Routledge, London, pp 1–12 Roy A (2010) Mapping Citizenship in India. Oxford University Press, Oxford Samaddar R (2019) Borderlands of Independent India: Transition, Violence, and Justice. In: Canefe N (ed) Transitional Justice and Forced Migration: Critical Perspectives from the Global South. Cambridge University Press, Cambridge, pp 9–32 Shahabuddin M (2013) Liberal Self-Determination, Postcolonial Statehood, and Minorities: The Chittagong Hill Tracts in Context. Jahangirnagar University Journal of Law 1:77–96 Srinivasan M (2021) Tamils’ War Memorial in Sri Lanka’s Mullaitivu Found Vandalised. https:// www.thehindu.com/news/international/tamils-war-memorial-in-sri-lankas-mullaitivu-foundvandalised/article34552421.ece. Accessed 10 May 2021 Talbot I, Singh G (2009) The Partition of India. Cambridge University Press, Cambridge Tambiah SJ (1996) Leveling Crowds: Ethnonationalist Conflicts and Collective Violence in South Asia. University of California Press, Berkeley Teltumbde A (2020) Introduction to the Revised Edition. In: Teltumbde A (ed) Hindutva and Dalits: Perspectives for Understanding Communla Practice, rev. edn. Sage, New Delhi, pp xiii–lx Together Against Genocide (2017) Addressing Sri Lanka’s Retreat on Justice Third Cycle, TwentyEighth Session. https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=4481&file=Eng lishTranslation. Accessed 5 October 2021 Valerie P (2007) Indigenous Peoples and the Role of the Nation-State. Proceedings of the Annual Meeting (American Society of International Law) 101: 319–323

Ishita Chakrabarty is a Hans Wilsdorf scholar and a Master in International Law Candidate at the Graduate Institute of International and Development Studies, Geneva, Switzerland. She holds a B.A. LL.B (Hons.) degree from Hidayatullah National Law University, India. Her primary

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research interests include matters relating to citizenship and migration, counter-terror legislations, and state persecution of minorities. Guneet Kaur is a Doctoral Candidate at the Law and Society Institute, Humboldt-Universität zu Berlin, Germany. She holds a B.A. LL.B. (Hons.) from Hidayatullah National Law University, India, and finished her LL.M. from the University of California, Berkeley, USA, with a specialisation in international law. Her research focuses on remedial mechanisms and accountability processes for state criminality in South-Asia.

Chapter 6

States of Criminality: International (Criminal) Law, Palestine, and the Sovereignty Trap Michelle Burgis-Kasthala, Nahed Samour and Christine Schwöbel-Patel

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Internationalism Through Feminist Praxis Beyond Statehood . . . . . . . . . . . . . . . . . . . . . . 6.3 Palestine at the League of Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Palestine at the General Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Palestine at the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract In this chapter we ask how and in which form international law can serve as a tool for realising Palestine’s decolonial equality. We do this by placing international criminal law and public international law in conversation to highlight what experiences of (denied) statehood are included and excluded from these legal regimes. We adopt a methodology of feminist praxis to explore the crucial role of historical factors that persist in shaping Palestine’s limited legal possibilities. Whilst this chapter sounds a note of caution about the scope for radical change from the pursuit of liberal legalist projects, it nevertheless seeks to explore the gains that could be made for Palestinian liberation by adopting the framework of decolonial equality. Keywords International criminal justice · Public international law · Palestine · Feminist praxis · Decolonial equality · Sovereignty trap

M. Burgis-Kasthala (B) University of Edinburgh, Edinburgh, UK e-mail: [email protected] N. Samour Humboldt-Universität zu Berlin, Berlin, Germany e-mail: [email protected] C. Schwöbel-Patel Warwick Law School, Warwick, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_6

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6.1 Introduction After years of delay and indecision, the Prosecutor of the ICC announced in March 2021 the opening of an investigation into alleged war crimes and crimes against humanity in Palestine.1 The ICC’s investigation of the Situation in the State of Palestine begins against the background of a century long dynamic of settler colonialism, dispossession, and displacement, and a resurgence of violence between Israel and Palestine, with Palestinian lives being disproportionately targeted (and lost). The question of international law’s relationship to anti-imperial struggle has once again become urgent. It is in this context that we centre the work of three women and their work on statehood, criminality, and internationalism. In this chapter, we bring into conversation Rosa Luxemburg on the question of national self-determination and anti-imperialism,2 Noura Erakat on Palestine, International Law and the ‘sovereignty trap’,3 and Priyamvada Gopal on decoloniality and its relationship to land claims.4 Of central concern in the Palestinian case before the ICC is the Court’s invocations of statehood. We will show how the three scholars help shed light on the ICC’s stance towards Palestinian statehood and its implications for the Palestinian struggle. This requires spotlighting statehood within the discipline of international criminal law, i.e. a transgressing of its disciplinary boundaries by considering some key features of public international law. The focus on statehood highlights the place of the ICC in a longer history; a history in which the terms of self-determination and emancipation have repeatedly been set by a hegemonic system infused by racialisation. Great expectations are placed in the investigations by the ICC’s Office of the Prosecutor into the Situation in the State of Palestine, and even greater expectations are placed in the Court’s judges potentially finding individuals accountable for international crimes. After all, two important events coincided, seemingly paving the path towards accountability. First, the ICC recognised its jurisdiction over Palestinian territories occupied by Israel, despite longstanding discussions about Palestine’s alleged lack of statehood foreclosing jurisdiction.5 Second, a recent report by Human Rights Watch described Israeli practices towards Palestinians as ‘crimes against humanity of apartheid and persecution’, giving further fuel to the debate on individual criminal accountability.6 Crystallising out of these debates is a question 1

ICC, State of Palestine – Situation in the State of Palestine – ICC 01/18, https://www.icc-cpi.int/ palestine. Accessed 26 January 2022. 2 Luxemburg 1913/2003. 3 Erakat, in Sterio 2019. 4 Gopal 2021. 5 Pre-Trial Chamber I ruling of 5 February 2021 recognised that the ICC has jurisdiction over the territories occupied by Israel since 1967, ICC Press Release: 5 February 2021, https://www.icccpi.int/Pages/item.aspx?name=pr1566. Accessed 26 January 2022. Discussed in a brief reflection in Schwöbel-Patel 2021. 6 This report follows two earlier reports by Israeli-based non-governmental organisations also characterising the nature of Israeli rule over the occupied territories (B’Tselem) or all of historic Palestine (Yesh Din) as amounting to apartheid. Amnesty International is currently completing its own report into apartheid as well. The reports echo previous findings of Palestinian human rights organisations,

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of charging Israeli individuals with a number of violations, including apartheid as a crime against humanity, and various war crimes stemming from repeated Israeli assaults on Gaza along with its widespread settlement construction throughout the West Bank including East Jerusalem. Conversely, the invocation of the ICC’s jurisdiction also opens up Palestinians themselves to prosecution for alleged war crimes. The possibility of redressing such widespread and as-yet unaddressed crimes falls seductively into now-familiar narratives of international criminal law as a discipline of progress.7 Individual criminal accountability is seen as progressive due to its expressive and pedagogical potential (highlighting otherwise obscured crimes),8 and due to its historicisation and memorialisation, and sometimes even deterrence, of mass atrocity.9 Such liberal legal narratives are further bolstered in the face of some of the ICC’s detractors, who seek to undermine Palestine’s quest for legal redress as hopelessly political and partisan.10 The criticism provides renewed vigour for retreating to law: the ICC can demonstrate how it robustly negates political pressures and instead ensconces itself in carefully crafted justifications grounded firmly in the ICC Statute. In this chapter, we acknowledge the legal tactics of a case before the ICC as a real moment of possibility in which injustice can be highlighted, and in which oppressed voices can change legal analysis and action. We also want to place this in a context that requires a voice of caution in relation to international organisations and legal principles as mechanisms to fight oppression from the point of view of a critical historical evaluation of the progressive potential of legalism. We recall that in the history of twentieth and twenty-first centuries internationalism, oppression can often be attributed to liberal legalism, although this is often unacknowledged.11 Law’s contribution to oppression often appears prima facie as progress. On deeper analysis, and against the background of longer histories of oppression, this progress is often illusory, particularly when it comes to questions of statehood. We analyse how in confirming the possibility of jurisdiction over Palestine, the ICC requires submission to its distinct approach to statehood, particularly its narrow reading of statehood as coterminous with member states of its founding text the ICC Statute— what Gina Heathcote refers to as ‘static, closed and bounded’.12 For the purposes of the ICC Statute, the only legally significant distinction is that between member states and non-member states, foreclosing other relationships of domination such as those found in settler colonies or self-determination units denied the realisation of from Al Haq, to Mezan, Addameer—Prisoners Support and Human Rights Organization, and the Palestinian Center for Human Rights. See also Milanovic 2021. 7 Skouteris 2010, ch 4. 8 Sander 2019, pp. 851–872. 9 For a good overview of standard International Criminal Law aims, see Damaška 2008, pp. 329–368. 10 See The Guardian 2021. 11 On the limitations of liberal legalism for Palestinian activism, especially see Allen 2021, pp. 15– 26. 12 Heathcote 2019, p. 129.

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statehood. Any scope for imagining relationships through political registers other than statehood is radically truncated so that the possibility of thinking of Palestine as a political community able to thrive after colonialism and after occupation becomes more remote. This extends beyond the relationship between Israel and Palestine. We include in our analysis the position of the German state vis-à-vis Palestine, international organisations, and anti-imperial struggle. The German state interests us for several reasons: we presented the paper that preceded this chapter in Germany (albeit virtually); the German state positions itself as liberal bastion, ‘leader in the fight against impunity’,13 and has been described as a nascent legal hegemon;14 and, despite its otherwise ‘staunch’ support for the ICC,15 in the case of the Situation in the State of Palestine, it has declared the ICC as ‘ill-suited’ for determining the question of Palestinian statehood.16 Although we may come to the same conclusion, namely that the ICC is ‘ill-suited’, the present chapter is intended as a means for arguing that how one comes to this conclusion matters, and for what purpose—whether to maintain the status quo, or whether in support of an anti-imperial and anti-colonial internationalism, as laid out by Luxemburg below. This will require a spatial and temporal narrative that can manoeuvre between colonial power and colonised resistance to this power. More specifically, in terms of methodology, we come to this chapter with a determination to bring our collective knowledge from TWAIL, Critical Race Theory (CRT) and decolonial feminism in conversation, thus aiming to combine theory with praxis. Our feminist praxis of co-authorship, which brings our different experiences and expertise into a trialogue, also extends the conversation to three female thinkers of imperialism, the Palestinian struggle, decoloniality and the role of the law: Rosa Luxemburg, Noura Erakat and Priyamvada Gopal. In our narrative, we begin chronologically at a time when the Palestinians first directly encountered the force of the international legal community and its endorsement of settler colonialism through the League of Nations and the Mandate system. We suggest that starting here (rather than the ICC’s 2014 jurisdictional date or a plethora of other possible dates)17 provides a framework for understanding the limited 13

‘Application for leave to file written observations by the Federal Republic of Germany’, ICC, Situation in the State of Palestine, ICC-01/18, para 16, https://www.icc-cpi.int/CourtRecords/CR2 020_00610.PDF. Accessed 26 January 2022. 14 Von Bogdandy 2020, concluding an international debate on German legal hegemony. See also the aim of ‘transnational capability to communicate’ (transnationale Dialogfähigkeit), Herdegen et al. 2021, para 1, notes 7 et seq. 15 Ibid., para 1, note 13. 16 Ibid., para 9. 17 Obscuring the settler colonial dimension to contemporary realities silences structural and historic injustices. It is typical to begin a narrative about the Palestine/Israel ‘conflict’ by invoking the latest round of fighting or the latest (failed) ‘peace’ initiative. For international law, typically 1967 starts the story as it provides the legal framework of international humanitarian law that arose in the wake of Israel’s occupation of the West Bank, Gaza Strip and East Jerusalem (along with the Golan Heights and the Sinai Peninsula). Earlier instances of violent conquest (by the British after the First World War) and then the Nakba in 1948 can remain off the page altogether. For a reappraisal of time and the question of Palestine, see Seikaly 2019.

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and limiting horizons for legal change and liberation today whether through the ICC or other liberal legalist avenues. Our account then moves to the early 1970s, a time during which solidarity movements around anti-imperialism allowed Palestine to gain both allies and legal momentum at the United Nations (UN) General Assembly. This era marks one of possibility through international law. The dismantling of SouthSouth solidarity in the following years, no doubt also brought on through new neoliberal institutions,18 had an impact on Palestine as well. Finally, and taking insights from these past episodes into the present, we consider the Situation in the State of Palestine at the ICC.19 Some important consequences arise from this account for the hope or caution placed in the ICC’s investigations into the situation in Palestine. First, the dominant international criminal law and ICC ‘origin story’ at the Nuremberg trials is disrupted. The ICC’s investigations must take longer histories of oppression into account, whereby genocide against the Jews was not an exceptional event, but one indicative of historical lineages of oppression within and beyond Europe.20 With this frame, it is possible to understand both Jews as experiencing the violence of states of criminality (in the mid twentieth century in particular), as well as the Palestinians since the early twentieth century. This has particular purchase for our focus on Germany, where a heated debate is ongoing about longer imperial histories and their potential for distraction from the Shoah.21 Second, the assumption of the necessity of statehood as constituting the backbone of international law whilst leaving all other entities as unknowns (the elusive ‘non-state actor’) is unsettled. As the debates on self-determination in the early twentieth century demonstrate, and the episode of the Palestinian Liberation Organisation (PLO) at the UN General Assembly further illustrates, the question of selfdetermination as liberation through statehood has not always been fixed. These questions introduce what is traditionally known as ‘public international law’ into the debate on Palestine at the ICC. Indeed, it once more raises the question of state crime and accountability rather than an exclusive focus on individual crimes and

18

There is a rich literature on the neoliberal dynamics of Palestinian domination, especially since the Oslo Accords of 1993. See, for example, Haddad 2016. 19 ICC, State of Palestine – Situation in the State of Palestine – ICC 01/18, https://www.icc-cpi.int/ palestine. Accessed 26 January 2022. 20 For example, although typically we tend to set the origins of international criminal law as coterminous with the fallout of the genocide against the Jews in Europe, we want to note the earlier genocide of the Armenians in the midst of a collapsing empire on the eve of the Mandate era to complicate narratives about states of criminality. The Armenian presence within the newly emerging ‘nation’state of Turkey problematised claims about ethnic Turkish purity. Such demographic considerations would also come to haunt the Yishuv (the Jewish community in Mandate Palestine) and is an important factor in accounting for the widespread ethnic cleansing of Palestinians in 1948 and afterwards. 21 Public debate has concerned arguments around continuities from German colonialism to the Holocaust, recently set out in Zimmerer 2021; Moses 2021; see also Zimmerer and Zeller 2003; Zimmerer 2004, pp. 49–76.

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accountability.22 With the unsettling of these assumptions around both the ICC and Palestine, and in recognition of moments of possibility, we shift the question to one of decolonial equality.23 Rather than asking whether the ICC can serve as a site for redressing settler colonial practises of extermination or even statehood, we ask whether Palestine’s case at the ICC constitutes a step towards decolonial equality as a form of self-determination for all those inhabitants living in the territory stretching from the river to the sea.

6.2 Internationalism Through Feminist Praxis Beyond Statehood In considering the relationship between Palestine, international (criminal) law, and anti-imperial struggle, our trialogue led us to reflect on whose knowledge we were engaging with during our conversations. Whilst we are indebted to a range of scholars and activists for their inspiration and insights, this chapter seeks to highlight how placing the contributions of three women from different disciplines, contexts and times together is both disruptive and productive for our (re)reading of Palestine and international law. Setting up this two-layered collaborative conversation between ourselves and our feminist fellow travellers seeks to question and dismantle scholarly conventions around individualism, hierarchy,24 disciplinarity and defined methodologies. Here, we carry on Hillary Charlesworth’s important work on feminist methods in international law, which ‘emphasize[s] conversations and dialogue rather than the production of a single, triumphant truth.’ 25 Furthermore, Charlesworth implores us to step beyond the strictures of ‘accepted scholarly traditions’26 which, for example, would tend to look down upon an analysis about Palestine at the ICC that begins with questions of public international law a century ago. Rather than start in 2014 with international criminal law as the lens through which to understand Palestine’s moment at the ICC, a disruptive feminist praxis pushes us to think past the comfort of confined international criminal law scholarly inquiry.27 Thus in thinking through this case as international lawyers, we can also question the boundaries between public international law and international criminal law and demonstrate their porosity, if not their redundancy, by linking questions of self-determination, statehood, apartheid, settler colonialism, and jurisdiction.

22

Bonafe 2009; see also the International State Crime Initiative, http://statecrime.org/. Accessed 26 January 2022. 23 For a representative example of the decolonial field of inquiry, see Mignolo 2009. 24 On these two points and how they can be overcome through feminist collaboration, see Hodson 2018, pp. 1229–1230. 25 Charlesworth 1999, p. 379. On this same point as recently considered, see Heathcote 2019, p. 1. 26 Charlesworth 1999, p. 380. 27 Schwöbel 2013, pp. 169–191.

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Gina Heathcote has theorised these multiplicities in statehood and sovereignty, of fracturing and connecting, as ‘split statehood’. In her words, state sovereignty should be: […] reconceived as created via a splitting from a prior entity and the focus is on the potential for further splitting, for the need for relationships and connections, as well as development of autonomy and a sense of self-identity. State sovereignty is understood as analogous to individual sovereignty in the sense that legal subjects are never whole, closed, or unified; instead they are diverse, fractured, connected, singular, and fluid all at once. This opens international law and legal analysis to a politics of potential rather than a model that continually reasserts its static, closed, and bounded nature […].28

An historical lens further enriches such a reading, demonstrating that questions of self-determination were not always on an inevitable trajectory towards a static, closed, and bounded nature of sovereignty and statehood. Rosa Luxemburg’s work serves as an example of questioning nationhood as (the assumed and only means of) emancipation from an oppressive power, offering important nuances and provocations for an understanding of internationalism and solidarity. Luxemburg was a prominent revolutionary in the early twentieth century, as well as a leading thinker of political economy. Born into a Jewish family in Poland, she experienced discrimination on the grounds of gender, race, nationality, and disability.29 Her political life took place mostly in Germany, where she became involved in party politics most notably opposing her party’s support of the First World War—a debate that arose regarding parliamentary support of war financing. Luxemburg’s opposition to war financing, and therefore her opposition to key figures in the social democratic party, prompted the splintering of the party. Luxemburg understood the war as part of what we today would refer to as the military-industrial complex—part of the accumulation of capital that disrupted workers’ solidarity across borders. It was this class solidarity across borders that defined her internationalism. In her work, she conceptualised imperialism as the violent struggle of capital against any form of resistance, in particular as exercised by the capitalist metropole in the periphery (colonies).30 The First World War, she argued, was a tool for ‘a competitive struggle amongst fully mature capitalisms for world domination, for the exploitation of the remaining zones of the world not yet capitalistic’. She called this ‘a brutal victory parade’.31 At the time of her early writing on imperialism and nationhood in the early nineteenth century, Germany was an imperial and colonial power. While Germany had already lost some of its colonies in the early period of the First World War, German South West Africa, Cameroon, and German East Africa remained under its domination.32 This legacy needs to be reviewed to understand the ‘split statehood’ that has 28

Heathcote 2019, pp. 128–129. Mills 2020. 30 In particular through her conception of primitive accumulation, Luxemburg 1913/2003, pp. 349– 350. 31 Luxemburg 1915. 32 German South West Africa, today’s Namibia, became known for the brutal Herero and Nama genocides of 1904 and 1908, referred to in Luxemburg’s writing as the ‘cruel destruction of ten thousand Herero tribesmen’, ibid. 29

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left today’s nation-states not as ‘whole, closed, or unified; instead they are diverse, fractured, connected, singular, and fluid all at once’.33

6.3 Palestine at the League of Nations Starting our account in the context of the First World War is instructive for a number of reasons. Whilst Palestine’s fortunes have been redrawn in the wake of every military confrontation for the last century, the First World War was perhaps the most significant for laying the groundwork for dynamics that have persisted into the present. In particular, it was the international legal regime overseen by the League of Nations Mandate system that established the framework of rule over Palestine that helped shape communal, regional, and international dynamics of domination ever since. While British oversight of this settler colonial model radically restricted the possibilities for other political projects, it is important to explore how this period could have fostered a range of alternative governance models.34 Some of these arose within the metropole, such as democratic workers struggled to end empire and domination,35 while others played out in various registers across the colonised world. While international law was largely used as a hegemonic tool to crush such movements, it also nursed some counter-hegemonic flashes of resistance. This is perhaps what continues to inspire Palestinians today in their reliance on the ICC.36 As in the case of Palestinians petitioning the Mandate Commission in the 1920s and 1930s,37 the scope for radical reappraisal might appear limited, but for many, it is a struggle against foreign domination that is worth pursuing whether under the banner of ‘self-determination’, ‘liberation’38 or individual criminal responsibility. While World War I did result in the end of some European empires, including the German Empire,39 and the resulting international institutions such as the League of Nations and the International Labour Organisation claimed to serve anti-imperial interests, recent critical historical work points to imperial continuities rather than ruptures during the interwar period.40 By the early twentieth century, the Ottoman Empire’s grip on many of its Arab territories was beginning to give way while other Arab territories beyond its control altogether were already familiar with European

33

Heathcote 2019, pp. 128–129. For example, see Whitehall 2016. 35 Mitchell 2011, p. 79. 36 Reynolds and Xavier 2016, pp. 959–983. 37 Especially see Wheatley 2015, pp. 205–248. 38 Joseph Massad explores the European and Arabic etymology of ‘self-determination’, ‘liberation’ and ‘freedom’ in Massad 2018, pp. 161–191. 39 As well as the Ottoman Empire, which was deeply entangled in European statehood. 40 For example see Anghie 2005, ch 3. 34

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colonial machinations, particularly in its seemingly more palatable form of ‘protectorates’.41 According to Timothy Mitchell, this model was especially appealing to the British as it provided privileged access to foreign markets through the ‘consent’ of local rulers. This idea of consent to be governed had first appeared at the Conference of Berlin in 1885,42 which parcelled out European interests in the African continent through local rulers agreeing to dispose of themselves.43 When the local ruler was no longer available to agree to this, as was the case for Egypt in 1914, Britain could instead claim to be protecting the Egyptian inhabitants directly until they were capable of governing themselves.44 A range of competing ideas and interests during the War saw European imperial powers espousing contradictory policies and practices in relation to the scope for independence after hostilities ended. Perhaps most infamous were the secret agreements carving up Ottoman and German holdings, particularly those in the Middle East, such as the Sykes-Picot Agreement.45 Lenin’s publication of these agreements as well as sustained democratising pressures from workers’ organisations across Europe called for a new approach to empire. Most famous were Wilson’s Fourteen Points and their later association with self-determination.46 A range of recent work, however, has highlighted how ‘self-determination’ as independence was only available to certain European minorities while non-European counterparts would find themselves under new forms of colonial rule. Rather than speak to a broader notion of national liberation then, self-determination was increasingly championed by (victorious) European powers as a way to deflect more radical visions of independence beyond Europe.47 Luxemburg had anticipated the limited use of self-determination as a generalisable form of radical independence even before the outbreak of the First World War. In her work on ‘The National Question’ written in 1908,48 Luxemburg was acutely aware of the potential pitfalls of nationalism, particularly as regards the danger of nationalism disrupting solidarity. As already mentioned, she voiced this same concern about war. 41

See discussion on the different types of protectorates in Burgis 2009, pp. 106–108. General Act of the Conference of the Plenipotentiaries of Austria-Hungary, Belgium, Denmark, France, Germany, Great Britain, Italy, the Netherlands, Portugal, Russia, Spain, Sweden-Norway, Turkey, the United States respecting the Congo, 26 February 1885, 165 CTS 485. 43 Mitchell 2011, p. 80. 44 Ibid., p. 91. At this time, Germany also used the term ‘protectorate’ (Schutzgebiete) for its colonies, although notably to indicate them as protecting the rights of Germans within their territorial boundaries. 45 Exchange of Letters between France and Great Britain respecting the Recognition and Protection of an Arab State in Syria, 9/16 May 1916, 221 CTS 323. 46 Sherene Seikaly reminds us of the powerful mythmaking effects around Wilson’s Fourteen Points and how they are (erroneously) remembered as promising self-determination in general. This is simply not the case and so she urges us to (re)visit foundational historical texts such as this so that we can write counter-narratives about the scope for anti-imperial struggle at this time. See her discussion on this point in the following webinar (21 June 2021): https://www.youtube.com/watch? v=fwtNSIid1Ww&t=1446s. Accessed 26 January 2022. 47 Especially see Massad 2018. 48 Luxemburg 1909. 42

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She emphasises that to misunderstand the right to self-determination as a ‘right of nations’ provides no ‘practical guidelines for the day-to-day politics of the proletariat’, and no guidelines to fighting oppression. Resisting national oppression, she states, does not arise ‘from any special ‘right of nations”, but instead from general opposition to ‘social inequality and social domination’.49 Luxemburg argues therefore that ‘the right of nations to ‘self-determination’ is essentially not a political guideline in the nationality question, but a means of avoiding that question.’50 One might say that for Luxemburg, efforts should be directed towards revolution in the service of internationalism rather than in the service of nationalism. Luxemburg’s observations ring particularly true in relation to the continued fixation by some states, including Germany of course, on the ‘two state solution’ as an ahistorical ideal of nation state parity between Israel and Palestine. This fixation, according to Luxemburg, ends up avoiding the question of decolonial equality while at the same time seemingly arguing for equality through legalism. Self-determination as a ‘right of nations’ that enabled foreign oppression to persist is well-illustrated across the Arab World, which tried to emerge from Ottoman rule free from European oversight. It was only through sustained and brutal military occupation, the co-optation of some local rulers as well as settler colonial policies that saw off this threat to European strategic interests. The ‘compromise’ model then to emerge, the Mandate system, was built on earlier experiences of protectorates and their racist notions of non-European incapacity for self-rule, but added a new layer of internationalised legitimacy through the League of Nations imprimatur. It was not possible then for France or Britain to go about ruling their subject populations wholly undisturbed. The idea of ‘self-determination’ required a degree of deference to forms of ‘self-rule’ even if this did not amount to full-blown political independence. In the case of the Palestine Mandate, this resulted in a radically unequal bifurcation of selfrule on the part of European-Jewish newcomers and the multi-faith indigenous Arab population. While the former population was encouraged to build a representative political and economic structure that could accommodate large numbers of newly emigrated European Jews, any robust political system for Arabs remained outside the scope of the Mandate terms.51 Thus, even before its official inception as a Mandate in 1922, Palestine was established as a rather unusual settler colonial model—unusual in that the colonial overlord did not simply transplant its own nationals52 —that built on earlier experiences, particularly in South Africa.53 Through the promise of a ‘national home’,54 European Jews would take up the ‘burden’ of civilising a territory whose indigenous inhabitants

49

Ibid. Ibid., emphasis in original. 51 For an overview of the Palestine Mandate context and its terms, see Burgis 2011, pp. 873–897. 52 Fieldhouse 2006, p. 117. 53 Mitchell 2011, pp. 70–72. 54 As first iterated in the Balfour Declaration 1917. 50

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were still seen as ill-equipped for independence.55 Brenna Bhandar has explained the profound significance of cultivation and improvement for early Zionists—a form of cultivation that mimicked European (and American) agricultural practices. The ideology of improvement in the context of Israel/Palestine, she argues, was constituted through Lockean notions of wasteland (the propertisation of land that was in a settler colonial context often considered as terra nullius) as well as ‘a German idealism that posited a connection to the soil as the organic foundation of a people’s nationalism.’56 Despite the limited scope available to Palestinian Arabs in trying to realise their own destiny during this period, it is important not to discount wholesale the sustained efforts undertaken by many Palestinians to seek greater autonomy and national respect through the League of Nations Mandate petition system.57 Here, we see a genuine engagement with the promise of liberal legalism as a way to question and undermine the radically unequal terms of the Mandate regime. Although these efforts ultimately failed, they do point towards the possibilities of imagining a different form of rule over the territory as well as the beguiling promise of redress through international law. It also highlights how from the moment Palestine fell from Ottoman control, that its fate would be shaped by the particular dynamics of European colonial interests and international law as they played out within the forum of the League of Nations’ Mandate Commission.58 Thus, we see here the beginning of the state/non-state binary, which has been at the centre of liberal legal struggles for self-determination. Prevailing preferences that were instituted and sustained by the Mandate meant that the promise of separate development and ‘self-determination’ for the Palestinian Arab majority became more rather than less restrictive over time. Tensions reached boiling point by the late 1930s, which saw first the eruption of a general Palestinian strike in 1936 followed by a revolt, which for a time was able to withstand the might of the British forces. For Rashid Khalidi, the ‘spectacle of a few thousand poorly armed Palestinian peasants successfully resisting the might of the British Empire for such a lengthy time … had an impact on Arab and Islamic opinion and on the colonized world generally … and [it] infuriated British politicians, officials, and military officers.’59 The strike itself ‘was the longest anticolonial strike of its kind

55

Whilst the Mandate text clearly posits European Jews as the civilisational force in Palestine, this is not to say that Zionism itself is committed to a continued Palestinian presence on the land. The Yishuv (the Jewish community of the Mandate) increasingly eschewed cheaper Palestinian labour in the knowledge that they were building a nation separate from others. From the early 1940s, Zionism was committed to a Jewish majority on the land of Palestine. Demography has remained a key challenge for Zionism and policy responses have adapted depending on the extent to which a Jewish majority is challenged. These policies include ethnic cleansing as killing or expulsion or divided and racialised rule over conquered lands. See Zreik 2020, pp. 8–50. 56 Bhandar 2018, p. 147. 57 Wheatley 2015. 58 Pedersen 2015, p. 392. 59 Khalidi 2006, p. 107.

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until that point in history’60 and such tactics would be taken up across Palestine once Israeli settler colonial rule replaced the British mandate partly in 1948 and then completely by 1967.61 Britain only managed to claw back control of Palestine by arming European Jewish militias who would later channel this experience and expertise in fighting their war of independence as well as the Palestinian Nakba in the late 1940s. The Revolt and the later outbreak of the Second World War demonstrated to Britain that any long-term presence in the territory was simply not worth the effort. It was hardly surprising then at the end of the Second World War through the newly established UN, that the earlier Mandate model of divided rule would be transformed into the 1947 Partition Plan, which endorsed a majority of the territory for the minority European Jewish population.62 Although this model was never implemented due to the war between European Jewish forces and regional Arab states and the resulting creation of the state of Israel in 1948, it is instructive that even in this new era of ‘selfdetermination’ under UN auspices, international law offered Palestinians radically truncated possibilities for independence in their native lands as a result of racialised readings of self-rule.63

6.4 Palestine at the General Assembly A further moment of real possibility that was at the same time eliminated through the ties of liberal legalism was the passage of General Assembly Resolution 3236 of 22 November 1974 on the ‘Question of Palestine’, which followed an invitation to the Palestinian Liberation Organisation to appear before the General Assembly.64 This was a time of great efforts of international law-making from the Global South as well as significant change for Palestinians in the wake of the 1967 and 1973 wars. Israel now controlled all of the territory of Mandate Palestine and the Palestinian Liberation Organisation was forced to move its base from Jordan (which had controlled the West Bank) to Lebanon. Recently independent states as well as movements struggling for liberation were uniting on questions of anti-imperial struggle in its many forms. According to Noura Erakat, the invitation extended to the Palestinian Liberation Organisation to speak at the General Assembly in 1974 ‘demonstrated the potential of the Global South as a united voting bloc and thus as a source of international lawmaking’.65 The invitation was unprecedented as only nation-states had until then been permitted to speak at the United Nations.66 This Southern ‘voting bloc’ was 60

Ibid., p. 106. Most significantly, the intifadas that erupted in 1987 and 2000. 62 UN General Assembly 1947, Resolution 181 (II) (A+B). 63 Kattan 2009, ch 6. 64 UN General Assembly 1974, A/RES/3236. 65 Erakat 2019, p. 98. 66 It is noteworthy too that coterminously, the International Court of Justice (ICJ) was considering the question of self-determination for Western Sahara. In the proceedings, the Saharawi people 61

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also mobilised for the economic programme of South-South trade envisioned as a means to withstand continued economic colonisation by former colonial powers under the name of the New International Economic Order.67 Its programme of action was declared through a series of General Assembly Resolutions in the same year as General Assembly Resolution 3236.68 The collective efforts of the so-called Non-Aligned Movement (aligned neither with Soviet Russia—although anti-imperial sympathies existed—nor the imperial West) enabled a declaration of solidarity to be passed. United Nations General Assembly Resolution 3236 not only recognises the entitlement of the Palestinian people to self-determination; the Resolution also includes a ‘right of return’ for the Palestinian people who had been displaced and uprooted.69 It also includes recognition of ‘the right of Palestinian people to regain its rights by all means’. This strategic effort, according to Erakat, to ‘inscribe juridical status of the Palestinian people in international legal instruments and institutions’, presented significant risks.70 Whilst on the one hand the value of Palestine being presented as possessing international legal personality presented significant gains in recognition by the ‘international club’, it also arguably compromised its political position vis-à-vis territorial demands, and effected a submission to the law of imperial states. In the words once more of Erakat: ‘By articulating its demands for peoplehood in the framework of international law and pursuing this goal at the United Nations, the [Palestinian Liberation Organisation] drew upon the same legal and institutional norms that legitimated Israel’s establishment, naturalized its existence, and protected its territorial and political sovereignty.’71

6.5 Palestine at the ICC Self-determination has found its way to the ICC. In a long and protracted journey beginning after the Israeli attacks on Gaza in 2008/2009, with an initial request for the

were not permitted to represent themselves. Instead, they had to rely on the eloquence of Algeria’s representative (key architect of the new international economic order (below) and later ICJ President) Mohammed Bedjaoui. By 2003 when the ICJ deliberated on its Wall Advisory Opinion, the Palestinian Authority was permitted to speak directly to the experiences of a people denied the realisation of self-determination. 67 Especially see Bedjaoui 1979 and a recent appraisal of his legacy, Özsu 2015, pp. 129–143. 68 Declaration on the Establishment of a New International Economic Order, UN General Assembly Resolution 3201 (S-VI), 1 May 1974; Programme of Action on the Establishment of a New International Economic Order, UN General Assembly Resolution 3202 (S-VI), 1 May 1974; and Charter of Economic Rights and Duties of States, UN General Assembly Resolution 3281 (XXIX), 12 December 1974. 69 UN General Assembly 1974, A/Res/3236 1974. 70 Erakat 2019, p. 98. 71 Ibid., p. 99.

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ICC to investigate the situation in Palestine in 2009,72 Palestinians have finally won the ICC’s attention, seemingly against such powerful states defending the ‘liberal rule of law’ as Germany, the United Kingdom and Australia.73 The focus had been on war crimes committed during the Israeli attack on Gaza in 2014 as well as settlement construction and the transfer of Israeli civilians to these settlements across the West Bank, including East Jerusalem. In December 2019, ICC Prosecutor Fatou Bensouda concluded a nearly five-year preliminary inquiry into the Palestine situation and determined that ‘all the statutory criteria’ to proceed with a formal investigation of alleged serious crimes by Israelis and Palestinians had been met. The Prosecutor found a ‘reasonable basis’ to believe that war crimes had been committed by Israeli and Palestinian authorities, without any reference to crimes against humanity.74 Prior to issuing charges, however, the question of jurisdiction needed to be settled. As only states are permitted to become members of the ICC Statute, once Palestine’s accession passed and it became a member of the Court, the Prosecutor decided that it would be necessary for the Court to determine the territorial scope of Palestinian statehood only insofar as this would ground the Court’s jurisdiction.75 Public international law questions about territorial statehood thus came before the Pre-Trial Chamber in its quest to establish jurisdiction to initiate international criminal law proceedings. Here, we see how public international law and international criminal law concerns overlap and intersect at the ICC through the prism of jurisdiction. Although the Prosecutor did not require formal judicial authorisation to move forward with a formal investigation, she nonetheless sought a ruling from the Court’s judges on the ICC’s territorial jurisdiction before proceeding.76 In February 2021, the Court ruled that it had jurisdiction over crimes committed in the Occupied Palestinian Territories, including East Jerusalem, confirming Palestine’s status as a State Party to the ICC Statute.77 This jurisdiction would include the ability to prosecute not only war crimes, but also the crimes against humanity of apartheid and of persecution. In March 2021, the Office of the Prosecutor announced the opening of a formal investigation into the situation in Palestine.78 Building on Luxemburg’s concern about an abstract right to self-determination as a distraction from the national question, we can elaborate on what Erakat has called the ‘sovereignty trap’. Erakat argues in her book Justice for Some: Law and the Question of Palestine that sovereignty is limited when it is a ‘political arrangement of derivative sovereignty featuring native collaboration with settler-colonial and imperial powers, 72

Kearney and Reynolds 2013, pp. 407–433. See e.g. Explanation of Positions on the ‘State of Palestine’ submitted by Germany, Australia, Canada and Netherlands at the Meeting of the States Parties to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction on 3 December 2018, APLC/MSP.17/2018/MISC.2, cited also in Germany’s position to the ICC. 74 ICC, Pre-Trial Chamber I 2021, paras 94–96. 75 For a very helpful overview on this point, see Qafisheh 2020. 76 ICC, Office of the Prosecutor 2019. 77 ICC, Pre-Trial Chamber I 2021. 78 ICC, Office of the Prosecutor 2021. 73

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whereby good native behavior is rewarded with limited autonomy and perpetual subjugation.’79 For Erakat, mobilising the public international law concept of the state can be a trap because it will not undo systems of domination. In other words, if sovereignty is granted on the territorialised and racialised terms of the status quo, it will not bring about decolonial equality.80 The ICC’s terms for opening investigations into the situation in Palestine are that Palestine must adhere to the ICC’s notion of sovereignty as static, closed and bounded. Palestine must act as though it had equal status to Israel, thereby erasing the very domination that has given rise to the case. For the purpose of seeking redress at the ICC, Palestine has to play by the legal fiction of being a state, in sole sovereign control of its territory, people and boundaries, while in fact it is governed by Israel’s military occupation and creeping annexation. Liberal legalism opens no pathway to redress and reparation here unless there is scope for engaging with an historicised account of structural inequality and repression as witnessed across the history the history of international law and the territory of historic Palestine since 1922. The sovereignty trap of liberal legalism has meant that after Palestinians initiated their request at the ICC in 2008, it took the ICC thirteen years to rule that it had jurisdiction over crimes committed in the Occupied Palestinian Territories, occupied since 1967 including East Jerusalem, confirming Palestine’s status as a State Party to the ICC Statute.81 The ICC has recognised Palestine’s sovereignty over these areas, in a lengthy engagement with public international law, from engaging with the Permanent Court of International Justice, to the Vienna Convention on the Law of Treaties, the practice of the United Nations General Assembly as well as official statements of the United Nations Secretary-General. Germany’s position embodies the sovereignty trap as it has argued that ‘the Palestinian Territories are currently lacking statehood and therefore the Court does not have jurisdiction in the specific situation.’82 This view laid before the ICC was repeated in various international fora, especially those of public international law,83 and is now re-emerging as arguments in the sphere of international criminal law. This stance is an act of non-recognition that entails a dismissal of Palestinian legal grievances altogether. Rather than resort to the international criminal law idiom of individual criminal responsibility before the ICC, the German nation-state instead professes its ‘long-standing and consistent position to support a negotiated two-state solution and hence the goal of an independent, democratic, sovereign and viable State of Palestine.’84 In its support of this seemingly classic public international law 79

Interview with Professor Noura Erakat, Intlawgrrls, https://ilg2.org/2019/05/01/interview-withprofessor-noura-erakat/. Accessed 1 May 2019. See also TWAILR 2019; Erakat 2019, p. 229. 80 Tatour 2021. 81 ICC, Pre-Trial Chamber I 2021. 82 ICC, Pre-Trial Chamber I 2020. 83 See e.g. Explanation of Positions on the ‘State of Palestine’ submitted by Germany, Australia, Canada and Netherlands at the Meeting of the States Parties to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction on 3 December 2018, APLC/MSP.17/2018/MISC.2, cited also in Germany’s position to the ICC. 84 ICC, Pre-Trial Chamber I 2020, p. 6.

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concern, Germany claims that it is committed to preserving those conditions generative of a two-state solution. With this, Germany is putting both Palestine and the ICC in a bind. Even if this position is taken at face value, Germany addresses the Palestinian nation-state and claims to be supporting it while refusing to countenance the possibility of challenging fragmentation/territorial separation, racialisation and supremacy at the ICC or elsewhere, conditions which make the realisation of Palestinian statehood impossible.85 Germany sees its role as being the generous donor both to the ICC in general as well as the nascent Palestinian (non)state: ‘Germany is one of the most important donors to the Palestinian Authority, linking development cooperation and stabilization funds to the build-up of state institutions.’86 With this, Germany’s attempt to strengthen its commitment to the ICC by also being amongst the biggest donors to the ICC87 stands in contrast to its opposition to the ICC in investigating the ‘situation in Palestine’. How can Germany fund both Palestinian ‘statehood’ as well as the ICC so generously whilst blocking any serious examination as to how such ‘statehood’ is stillborn? Yet, this is not mentioned to highlight a story of German hypocrisy in supporting international criminal law (‘from Nuremberg to Rome’). Instead, it is meant to note how the nation-state must come before the ICC—in the form of the sovereignty trap—particularly at a time when the two state solution is moribund both locally and internationally, not least due to extensive Israeli illegal settlement building, territorial confiscation and annexation.88 The claim of a First World state telling a Third World community that it is ‘not there yet’, i.e. not sufficiently ‘state-like’ or developed enough, is a recurrent trope in colonial language.89 This perpetuates the Mandate model of bifurcated rule, which had favoured European Jewish civilisational claims to statehood over indigenous rights to independence. It has been noted elsewhere

85

For example, Germany did not effectively act upon the 2004 ICJ Advisory Opinion on the Wall that requested UN members not to recognise or assist the illegitimate occupation infrastructure. ‘As regards the legal consequences for States other than Israel, it was contended before the Court that al1 States are under an obligation not to recognise the illegal situation arising from the construction of the wall, not to render aid or assistance in maintaining that situation and to co-operate with a view to putting an end to the alleged violations and to ensuring that reparation will be made therefor’, see ICJ Advisory Opinion 2004, para 146. Accessed 26 January 2022. Germany is, however, deeply concerned about further settlement expansion, see Auswärtiges Amt 2020. 86 Ibid. The Oslo Accords between Israel and the Palestinians in 1993 and 1995 seemingly ushered in a new framework based on the two sides working towards peace and Palestinian statehood. In fact, the framework facilitated unprecedented Israeli settlement construction across the West Bank, Gaza’s near total closure and the creation of the Palestinian Authority funded by massive foreign— including German—donor monies that allowed Israel to withdraw from the quotidian burdens of occupation whilst maintaining full control over the territories, see Burgis-Kasthala 2020. 87 According to the German Foreign Office in 2014, ‘Germany is the ICC’s largest contributor after Japan and also contributes voluntary payments to the Court’s Trust Fund for Victims’, see Auswärtiges Amt 2014. Accessed 26 January 2022. See also Deutscher Bundestag 2018. Accessed 26 January 2022. 88 For a more developed discussion, see Muasher and Brown, in Djerejian et al. 2018; Lustick 2019. 89 Anghie 2001–2002.

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that Germany’s relation to Israel is indeed connected to questions of colonialism.90 Germany’s ‘solidarity and admiration for Israel were less an expression of atonement for National Socialists crimes than a form of a German redemptive proxy colonialism that was part of the German cultural and physical rebuilding process.’91 In fact, the nation-state question before the ICC is taking on a new momentum. It is amidst the one-state reality in Palestine/Israel that the use of the apartheid framework is increasingly applied. Rather than nation states leading the charge, it is ordinary Palestinians and Israelis as well as international human rights organisations that regard the Israeli state as meeting the definition of apartheid under international law.92 Apartheid, once associated almost exclusively with South Africa, is a legally sanctioned crime enshrined in the ICC Statute, article 7(2)(h) which states: ‘The crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.’93 The apartheid framework recognises that Israel is the effective governing power between the river and the sea, where it enacts a racialised regime of divided rule. While there is no reason to expect the ICC to be an exemplary site of decolonial justice, Palestine has the symbolic power to stabilise or destabilise the ICC through the demand to investigate apartheid. It might show the ICC struggling with its own Statute and mandate to try crimes against humanity whilst seeking the political acceptance of its biggest donors that can guarantee its functional survival. In fact, Human Rights Watch has recommended the ICC Office of the Prosecutor ‘investigate and prosecute individuals credibly implicated in the crimes against humanity of apartheid and persecution.’94 Noura Erakat and John Reynolds, while aware of the very limitations of the ICC and the political pressures awaiting it, see the potential in apartheid being investigated and tried at the ICC. Apartheid could be ‘linking together the hot violence of Israel’s war crimes with the cold violence of its legal structures of dispossession, exclusion and persecution; reconnecting the partitioned but shared realities of occupied, exiled and (second-class) citizened Palestinians under Israel’s constitutional order; and mapping the trail from individual responsibility for crimes of apartheid to state responsibility and sanctions for maintaining an apartheid regime.’95 Examining apartheid would indicate a decisive shift away from a ‘negotiated peace process, leading to a two state solution’ and would instead recognise the de/colonial and antiracial potential of international criminal law.

90

Anonymous 2020, pp. 374–382. Braach-Maksvytis 2011, p. 295, emphasis in the original. 92 Tilley 2009. 93 On the definition of apartheid in the ICC Statute, see Mettraux 2020, pp. 740–745. See also du Plessis 2011, pp. 417–428; Clark 2008, pp. 599–620. 94 Human Rights Watch Report 2021, p. 207. 95 Erakat and Reynolds 2021. The title of the article echoes the ‘We Charge Genocide’-petition submitted by the Civil Rights Congress to the UN in 1951. 91

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Structural questions underlying the situation in Palestine would need to be discussed, that of legal, political, and economic supremacy, made possible not least through public international law. The quest would be one to turn to the structures of international law that have allowed for the ‘situation in Palestine’ to manifest itself as it does today. For this, we turn to the challenge of decolonising public international law together with international criminal law. A decolonial idea of self-determination, exemplified by the Situation of the State of Palestine at the ICC can give rise to larger questions of reparations for structural violence on decolonisation as a structural, material concern, Priyamvada Gopal reminds us of the meaning of decolonisation: Decolonisation is rendered a meaningless piety without an extensive enactment of material reparations – indeed restitution – to people, communities, and countries that still struggle with the consequences of very material losses. In the case of settler colonialism, the repatriation of land, and not just in symbolic ways, is a sine qua non of decolonisation. Decolonisation is, above all, a difficult process and no academic engagement with it should be soothing or, worse, imagine itself adequately reparative.96

Gopal stresses the very materiality of both colonialisation and decolonisation, and the centrality of land as a non-negotiable necessity of the latter. Declaring its materiality negotiable, as many nation-states who hold on to the notion of a (pending) negotiated two-state solution, such as Germany, thus underscores a position of coloniality. With this, Gopal echoes Luxemburg and Erakat who suggest that rather than building on the resources, aims and the solidary of the nation-state, it is the resources and solidarities of the oppressed (as ‘non-state actors’) that need to be mobilised. It is in this context, that we adopt Gopal’s manifesto for decolonising the university and apply it to the question of international criminal law scholarship vis-à-vis PalestineIsrael: (1) Acknowledging how the loss, mutilation and marginalisation of bodies of knowledge and ideas as ‘European support for settler sovereignty’ became (and, in many ways, remains) the primary arbiter of what was worth knowing and how it is known.97 (2) Undoing the ‘bundles of silences’ [M.-R. Trouillout] such that the history of settler sovereignty is ‘retold in ways that bring forward the perspective of the world’.98 As legal educators, we can resist Europe’s continued support for settler colonialism as an obstacle to a decolonised public international law as well as a decolonised international criminal law. This requires us to make visible the relevant connections between settler colonialism and the legal fields, norms, and doctrines that have enabled and continue to enable the settler colony to thrive whether in Palestine or elsewhere. Substantive linkages, procedural barriers and opportunities, and 96

Gopal 2021, p. 12. Ibid., p. 20. 98 Ibid. 97

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systemic conflicts and synergies between the legacy and the present of public international law and international criminal law are one way to highlight the colonial presence, and not compartmentalise them either to a field or to a chapter of history altogether.

6.6 Conclusion Could this be the moment of decolonising the ICC to demonstrate its counterhegemonic potential? It is unlikely that this will happen. We want to remain mindful of the impossibilities of pursuing radical political claims at the ICC. Any gains through ICC investigations will be liberal legal gains. This could include the recognition of the ‘State of Palestine’, without touching on any of the central questions that allow for fragmentation/territorial separation, racialisation and supremacy. While we seek to complicate the public international law paradigm of the sovereign nation-state, in line with Rosa Luxemburg, Noura Erakat and Priyamvada Gopal, we suggest that the international criminal law concept of crimes against humanity, including apartheid needs to be revisited as well. For even in relation to the claim of apartheid, Lana Tatour cautions against a ‘liberal reading of Israeli apartheid’, and urges us to use apartheid to supplement our understanding of settler colonialism, rather than come at its expense. ‘The erasure of settler-colonialism in the conversation on Israeli apartheid risks displacing decolonisation in favour of liberal projects of equality [within a nation-state, the authors]. It configures Palestine as a liberal question, rather than a colonial one.’99 Our trialogue of feminist praxis therefore returns to the question of who sets the terms of emancipation from domination. Does hope or caution prevail? If the ICC is setting the terms through its idea of statehood and formal sovereign equality, that is, what Heathcote suggests is the static, closed and bonded conception predominant within public international law, then it is caution that prevails. Through placing Luxemburg, Erakat, and Gopal into conversation, we have demonstrated that the question of statehood before the ICC puts Palestine in ‘the sovereignty trap’, which means that it must act as though it were equal and thereby erasing the very basis of its domination. Decolonial equality would instead seek the recognition of selfdetermination as separated from the strictures of statehood, as well as demand reparation for its past violation. In a continued regime of domination of states of criminality, little hope can be gained from a regime of individual criminality. Acknowledgements Many thanks to Swann Jin for her research assistance.

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Tatour 2021.

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Michelle Burgis-Kasthala is a Senior Lecturer at the University of Edinburgh, United Kingdom. She holds a Ph.D. from Australian National University, Australia. Before joining the University of Edinburgh, Michelle was a lecturer in International Law and Middle East Studies for five years in the School of International Relations at the University of St Andrews, United Kingdom. Her research centres on the operation of and contestation over international law across the Arab World. Nahed Samour is a Post-Doctoral Fellow at the Law and Society Institute at HumboldtUniversität zu Berlin, Germany. She has studied law and Islamic studies at the universities of Bonn, Birzeit/Ramallah, London (SOAS), Berlin (HU), Harvard and Damascus. She was a Doctoral Fellow at the Max Planck Institute for European Legal History in Frankfurt/Main, Germany, clerked at the Court of Appeals in Berlin, held a post-doctoral position at the Eric Castrén Institute of International Law and Human Rights, Helsinki University, Finland and was Early Career Fellow at the Lichtenberg-Kolleg, Göttingen Institute for Advance Study, Germany. She has taught as Junior Faculty at Harvard Law School Institute for Global Law and Policy, USA, from 2014 to 2018. Her research focuses on the history of public international law, Islamic law and constitutional law. Christine Schwöbel-Patel is a Reader at Warwick Law School, United Kingdom where she is the Co-Director of the Centre for Critical Legal Studies. She obtained her legal education in Heidelberg, Germany, at City University, London, United Kingdom (LL.M. with specialisation in Human Rights), and at King’s College London, United Kingdom (Ph.D.). In her research, she adopts a critical approach to the dominant framing of mass atrocity, humanitarianism, and legal institutions through the lens of political economy and aesthetics.

Chapter 7

The Counter-Hegemonic Turn to ‘Entrepreneurial Justice’ in International Criminal Investigations and Prosecutions Relating to the Crimes Committed in Syria and Eastern Ukraine Karolina Aksamitowska

Contents 7.1 7.2 7.3 7.4

Hegemonic International Law and the Paralysis of International Criminal Justice . . . . . Justice Ownership or Reclaiming the Narrative? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The ‘Quiet Expansion’ of Private Criminal Investigations . . . . . . . . . . . . . . . . . . . . . . . . . The Role of Civil Society Actors in Advancing Accountability Efforts for Core International Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 The Role of Ukrainian Civil Society in the Documentation of Atrocities . . . . . . 7.4.2 The Commission for International Justice and Accountability (CIJA) and the New Model of Private Criminal Investigations . . . . . . . . . . . . . . . . . . . . . 7.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Although the closure of the ad hoc tribunals and the inaction of the United Nations Security Council (UNSC) in the context of atrocities committed in contemporary armed conflicts might suggest an imminent decline of international criminal justice, or at least its multilateral component, this chapter suggests a contrary view. The wide ratification of the ICC Statute together with the domestic implementation of international criminal law and international humanitarian law, as well as the establishment of war crimes units pursuant to legislation at times allowing for universal jurisdiction can attest to the success of the complementarity system. In fact, the atrocities committed in the last decade during armed conflicts in Syria, Iraq, and Ukraine are at the centre of domestic accountability efforts that can meaningfully contribute towards the dynamic development of international criminal law, or—in the words of the Presiding Judge in a Syrian case before the Higher Regional Court of Stuttgart, Germany—‘help the law, including international criminal law, achieve a breakthrough’ (OLG Stuttgart, 5—2 StE 5/17-4). This chapter will attempt an interpretation of the counter-hegemonic turn in international criminal law through the K. Aksamitowska (B) Tallinn University, Tallinn, Estonia e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_7

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lens of the hegemony of the United Nations Security Council members, particularly Russia. Although Russia’s involvement in both Syrian and Ukrainian conflicts is significant, there has been little scholarly attention to date focusing on the Russian approaches towards the evolution of international criminal law in these contexts. The cognizance by the local populations that the UN-affiliated institutions cannot intervene in conflicts such as Syria or Eastern Ukraine, had an impact on the proliferation of grassroots documentation initiatives. These initiatives, broadly described as ‘Entrepreneurial Justice’ coordinated by civil society actors, continue to provide professional assistance to prosecution authorities which has paradoxically led to ‘justice ownership’ by the communities in Syria, Ukraine and beyond, thus pointing towards a breakthrough in the development of international criminal law. Keywords Universal jurisdiction · International criminal investigations · Syria · Ukraine · Commission for International Justice and Accountability · Private criminal investigations · Civil society organisations · Entrepreneurial Justice

7.1 Hegemonic International Law and the Paralysis of International Criminal Justice At the end of 2013, the Russian President Vladimir V. Putin expressed a ‘plea for caution’ to the American people in relation to the escalating situation in Syria in his historic op-ed for the New York Times.1 He emphasised the crucial role of the United Nations Security Council (UNSC) in preventing World War II-scale atrocities from ever happening again. He criticised the practice of the use of force while bypassing the UNSC and warned that such action might lead to ‘throwing the entire system of international law and order out of balance’. He writes: We are not protecting the Syrian government, but international law. We need to use the United Nations Security Council and believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not. Under current international law, force is permitted only in self-defense or by the decision of the Security Council. Anything else is unacceptable under the United Nations Charter and would constitute an act of aggression.

However, behind such strong emphasis on the premise that ‘the law is the law’ there may be hidden another assertion—‘the law is the law, and the law preserves our hegemony’. ‘Our’ meaning powerful states with strong economies and large military expenditure. Ironically, the Russian President was warning against committing the crime of aggression, the charge that has been the central focus of investigations and accountability efforts in Ukraine since Russia’s annexation of Crimea, the outbreak of the

1

Putin 2013.

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conflict in Eastern Ukraine in 2014 and the subsequent full-scale Russian invasion of the entire territory of Ukraine in February 2022.2 However, as rightly noted by Lauri Mälksoo, ‘sometimes on purpose and sometimes unconsciously, [the Russian] representatives mean different things by the same words as used in the West’.3 Essentially, ‘beyond being violations of international law for the majority of states, Russia is pursuing a strategy of regional, hegemonic international law. Under this vision of international law, Russia possesses a special, historically-justified right to intervene in post-Soviet States and to re-allocate their territories’.4 In this sense, an alleged act of aggression by Russia against a post-Soviet state, such as Ukraine, is justified and hence does not constitute an international crime. Russia is one of the hegemonic powers that, in their role as Permanent Members of the UNSC, could traditionally decide whether allegations of violations of core international crimes may be investigated and prosecuted, either through UNSC resolutions establishing ad hoc international criminal tribunals, or through a referral to the ICC. Together with China, Russia vetoed proposed UNSC Resolutions to refer the Syrian situation to the ICC. In this way, ‘substantive international disagreements about the resolution of the conflict resulted in the paralysis of the international criminal justice system’.5 These developments are an illustration that the multilateral model of accountability for core international crimes is no longer viable. Instead, new grassroots accountability initiatives have taken the place of declining multilateral UN-affiliated institutions. These initiatives, although often also funded by Western hegemonic powers, represent a new form of accountability initiatives described as ‘Entrepreneurial Justice’—a response to the paralysed criminal justice efforts at the UNSC.6 This has paradoxically led to counter-hegemonic ‘justice ownership’ perceptions in communities in Syria, Ukraine and beyond. In this context, the following questions will be discussed in this chapter: Is ‘justice ownership’ achievable in the circumstances of a paralysed international criminal justice system? Or can justice ownership in the context of armed conflicts in Syria and Ukraine be classified as truly counter-hegemonic? What is the role of civil society actors in advancing accountability efforts for core international crimes? To what extent ‘Entrepreneurial Justice’ is a solution to the decline of international criminal law and how does it challenge the ways in which evidence is collected, the law is used and power (within and outside of the UN) exercised? This chapter discusses the evolving role of civil society organisations in advancing accountability for core international crimes in European courts. Among them, the Commission for International Justice and Accountability (CIJA) and the Coalition 2

The bulk of this chapter was finalised before the full-scale Russian invasion of Ukraine in 2022, therefore it does not contain information about accountability initiatives that were launched after 24 February 2022. For a background of both armed conflicts discussed in this chapter, including international law perspectives, see: Sayapin and Tsybulenko 2018; Moodrick-Even Khen et al. 2019. 3 Mälksoo 2015, p. 6. 4 Mälksoo 2021, p. 822. 5 Herremans and Destrooper 2021, p. 9. 6 See Burgis-Kasthala 2020.

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‘Justice for Peace in Donbas’, among others, serve as examples of non-governmental organisations continuing to provide valuable assistance to prosecution authorities in Europe and beyond.

7.2 Justice Ownership or Reclaiming the Narrative? In post-conflict contexts, where the power and legitimacy of the state has been directly and violently challenged, the impetus towards a firm reassertion of the state’s monopoly over justice is arguably all the more powerful.7

In the classical sense, it is the state that has the capacity to deliver justice to the victims of conflict-related atrocities or facilitate multilateral responses to international crimes taking place outside of its borders. In the past, international criminal tribunals were established through consensus with the aim of prosecuting the alleged perpetrators of core international crimes. However, recent years have shown that in the contemporary geopolitical landscape such consensus is no longer viable, especially when one or more UNSC permanent members has a direct, economic or other, interest in the region in question. In this way, the victims of core international crimes committed in Syria, where the regime managed to hold on to power with Russia’s assistance, have been let down by the international criminal justice system. Other countries directly affected by armed conflicts, or the ones that managed to overthrow an authoritarian regime, such as Ukraine or Georgia, have embarked on a strenuous journey of legal warfare or ‘lawfare’ targeting the actions of the occupying power by all legal means and in all jurisdictions, including before the European Court of Human Rights, the ICC, and the International Court of Justice.8 Whilst these initiatives have a potential of achieving a certain substantive legal and political outcome, the question that remains to be answered is whether they can lead towards ‘justice ownership’ by the wider community. Can state-coordinated accountability initiatives lead to ‘justice ownership’ or is it the nature of state involvement that makes community-based programmes lose their focus?9 As observed by Beth van Schaack in the Syrian context, ‘the imperative of Syrian ownership in determining transitional justice issues emerged as a frequent refrain in international discussions about the crisis’,10 however, the international community actors did not have a sufficient understanding of the needs and the capacity of the local community to advance the accountability processes.11 It seems that the awareness about the importance of ‘justice ownership’ for pre-transition or transitional justice (TJ) in Syria has been 7

Eriksson and McEvoy 2006, p. 6. See Marchuk 2019, p. 217. 9 See Eriksson and McEvoy 2006, p. 7. 10 van Schaack 2020, p. 254; UNGA Resolution 66/253 (2012) on the situation in the Syrian Arab Republic, 21 February 2012, A/RES/66/253; UNSC Resolution 2268 (2016) on the situation in the Middle East (Syria), 26 February 2016, S/RES/2268. 11 van Schaack 2020, p. 254. 8

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an element of laying the foundations for any kind of future accountability in the earlier years of the Syrian conflict.12 With time, both in the case of Ukraine and Syria, it became apparent that the prospect of trials at the ICC, or another international tribunal, is becoming unrealistic. The domestic war crimes investigations and prosecutions in Ukraine in relation to the crimes committed in Donbas, as well as in various European states in relation to the crimes committed in Syria and Iraq, have finally paved the way for some form of criminal accountability. On the one hand, domestic core international crimes trials may offer victims a space for ‘preserving, expressing and reclaiming their narratives’,13 which might play an important role in the ‘narrative warfare’ in the context of the Syrian and Ukrainian conflicts, and particularly the disinformation campaigns that were launched by Russia and Syria with the aim of undermining the German universal jurisdiction trials.14 In fact, ‘many victims also see U[niversal] J[urisdiction] trials as a means of narrative resistance’,15 in this way arguably contributing towards increased ‘justice ownership’. On the other hand, the victims’ evolving understanding of ‘justice ownership’ or ‘reclaiming narratives’ is as complex a phenomenon as the identity of the victims’ groups as such. As will be illustrated in this chapter, in local settings human rights organisations members might be affected by the atrocities themselves, in this way becoming both victims and actors advancing accountability efforts. Moreover, ‘power differentials exist between victims and TJ entrepreneurs, but also between and within victim groups, where some are ‘in a better position to pressure for and take advantage of TJ mechanisms”.16 In fact, civil society organisations with advocacy experience will turn into ‘TJ Entrepreneurs’,17 and then will be able to take advantage of the available TJ mechanisms in a better way than victims who never had the experience with advocacy or trial monitoring. Although their actions might seem ‘entrepreneurial’ in the way that civil society organisations often compete for funding or cases to submit to domestic or international courts, this should not deprive the wider community of ‘justice ownership’. The following sections will explore the phenomenon of private criminal investigations and their increasing role in counter-hegemonic accountability settings.

12

Ibid. Herremans and Destrooper 2021, p. 11. 14 Reuter and Schmid 2021; Kennedy 2021; Beaumont and Graham-Harrison 2021. 15 Herremans and Destrooper 2021, p. 11. 16 Evrard et al. 2021, p. 11; Rudling 2019, p. 465. 17 See Madlingozi 2010, p. 210. 13

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7.3 The ‘Quiet Expansion’ of Private Criminal Investigations18 In his article in Zeitschrift für Internationale Strafrechtsdogmatik, Alexander Heinze recalls the significance of the initial investigations conducted by non-governmental organisations for the benefit of the cases before the ICTY and the ICTR. Both the ICTY and ICTR relied heavily on materials obtained by civil society organisations. The author argues that: considering the current political landscape of anti-multilateralism and the politically impotent UNSC, it was long overdue that the international community becomes more creative in its fight against impunity. The IIIMs [International, Impartial and Independent Mechanisms] in both Syria and Myanmar are a first step, CIJA is another (…). Private investigations are without an alternative, so to say, and there is nothing wrong with that.19

As Melinda Rankin rightly elucidated, private criminal investigators challenge traditional notions of the state, in three ways: ‘First, how CIJA’s material is collected to date challenges traditional concepts of war in Syria, particularly those framed by the Syrian and Russian governments, amongst others, as fought solely in ‘classical’ terms; second, CIJA’s approach challenges traditional notions of the law. As non-state actors, CIJA challenges top-down hierarchical models of ‘state-law’, as well as who is authorised or willing to use the law and lastly, CIJA challenges the relationship between power and the law in the UN’.20 CIJA, although supported by the UN and EU Member States, operates outside of the UN system and largely relies on local investigators. In the Ukrainian context, local activists, researchers and academics are involved in international criminal investigations as a part of the larger civil society. It is suggested that justice developments that we are witnessing in relation to international crimes committed in Syria and Eastern Ukraine, and the central role of the civil society therein, are going beyond the old dichotomy of civil society as ‘subject’ versus ‘object’ narrative,21 but rather what can be observed in these contexts is that the civil society is revolutionising international criminal investigations and the understanding of what it means to bring justice to victims of atrocities. In the following section we take a closer look at the accountability initiatives of the civil society organisations in the Ukrainian context since 2014.

18

Borrowing from the title of the article by Langer and Eason 2019. Heinze 2019, p. 181. 20 Rankin 2017, p. 399. 21 Haslam 2011, p. 221. 19

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7.4 The Role of Civil Society Actors in Advancing Accountability Efforts for Core International Crimes In the next section, we take a closer look at the initiatives by the Ukrainian nongovernmental organisations that have been documenting war crimes since 2014. Many of the human rights defenders and local investigators come from the conflictaffected regions or are survivors of atrocities themselves. Since the outbreak of the hostilities in Donbas, they have engaged in a legal warfare or ‘lawfare’ with the aim of advancing accountability efforts for core international crimes both domestically and in international courts and tribunals.

7.4.1 The Role of Ukrainian Civil Society in the Documentation of Atrocities Truth Hounds is a non-governmental human rights organisation that has been working on documenting war crimes and crimes against humanity since 2014. The objective of the organisation is to fight ‘against the impunity of perpetrators of international crimes and grave human rights violations through investigation, documentation and monitoring, advocacy, problem solving for vulnerable groups’.22 Since 2014, the Truth Hounds team has conducted more than 100 field missions to document war crimes in Eastern Ukraine and Crimea and visited more than 70 settlements among the contact line in Eastern Ukraine and the Crimean Peninsula, spending more than a year in total documenting in the conflict zones. In addition, Truth Hounds prepared three submissions to the Office of the Prosecutor of the ICC and assisted domestic prosecutors in Ukraine.23 They also continue to be actively involved in international criminal investigations related to the February 2022 full-scale Russian invasion of the entire territory of Ukraine. Previously, some of the Truth Hounds experts have gained experience in documenting international crimes committed during the Russian-Georgian armed conflict in 2008. In addition, they operate a Shelter City Project in Tbilisi, where they support human rights defenders in need. Their documentation work involves recording eyewitness testimony, photographing the crime scenes, taking measurements and collecting evidence in accordance with international standards as well as using geolocation to mark the places where the evidence was found.24 Recently, Truth Hounds have been increasingly relying on open-source intelligence (OSINT) in their investigations, which has been a general trend observed in international criminal investigations.25 22

Truth Hounds Website. https://truth-hounds.org/en/about-us/. Accessed 15 November 2021. Truth Hounds 2019a. 24 Truth Hounds 2017, p. 23. 25 See Aksamitowska 2021, p. 192. 23

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The experience that the Truth Hounds experts have gained from submitting communications to international tribunals was transposed into the local field of justice and professionalised the interactions with domestic authorities. However, Truth Hounds is not the only local civil society organisation involved in human rights documentation. Moreover, the highly professionalised Ukrainian civil society is contributing towards accountability in various ways, including law reform, advocacy and victim support. The Center of Civil Liberties (CCL) was founded in Kyiv in 2007 to promote and implement human rights standards in Ukraine.26 It is a member of the International Federation for Human Rights (FIDH) and its main objectives include: campaigning for democratic reforms, including for instance the reform of the Ukrainian Criminal Code to implement international humanitarian and international criminal law, as well as campaigns for the ratification of the ICC Statute; monitoring the compliance of law enforcement organs and local governmental institutions with human rights standards; documentation of international crimes and other violations (including political persecution); human rights education; and international cooperation and solidarity campaigns. Together with other NGOs in Ukraine, the CCL participates in parliamentary consultations and working groups’ discussions focusing on the relevance of the implementation of international criminal and humanitarian law into Ukraine’s Criminal Code.27 For instance, in November 2019 the CCL participated in expert discussions on international criminal law implementation convened by the Parliamentarians for Global Action (PGA) at the Foreign Policy Committee of the Verkhovna Rada of Ukraine.28 Other participants included legal experts, civil society actors, and victims’ representatives. Ultimately, as a result of the tireless advocacy of victims’ rights groups and the civil society organisations, including the CCL, on 20 May 2021 the Verkhovna Rada adopted Law No. 2689 ‘On amendments to certain legislative acts on the Enforcement of International Criminal and Humanitarian Law’.29 The adoption of the Bill, largely mirroring the legal definitions contained in the ICC Statute, represents a historical development equipping the newly created Ukrainian war crimes unit with more legal tools to prosecute core international crimes committed in Eastern Ukraine and the occupied territory of Crimea in the context of the ongoing armed conflict.30 This means that future charges may reflect the full scope of the conduct of the accused, encompassing both crimes definitions contained in the general national criminal code, as well as international crimes, including those related to conflict-related sexual violence as a crime against humanity.

26

Center for Civil Liberties Website. https://ccl.org.ua/en/about-the-ccl/. Accessed 15 November 2021. 27 Committees round-up: Daily Information Department of the Verkhovna Rada of Ukraine (2020). https://www.rada.gov.ua/en/news/News/188602.html. Accessed 15 November 2021. 28 Parliamentarians for Global Action 2021. 29 Human Rights Watch 2021. 30 Parliamentarians for Global Action 2021.

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The Coalition ‘Justice for Peace in Donbas’ was created as an informal union of 17 human rights organisations. The Coalition members have combined efforts to conduct coordinated documenting of core international crimes committed during the armed conflict in Donbas with the aim of ending impunity as a prerequisite for the restoration of peace and reconciliation in Eastern Ukraine.31 The activities of the Coalition include creating a database, improving access to justice for survivors of torture and conflict-related sexual violence in detention in Eastern Ukraine.32 They provide vital support to internally displaced persons (IDPs) and people released in prisoner exchanges. However, the domestic access to justice in the Ukrainian courts is not the only avenue where the NGOs pursue justice for the victims. There has also been an ‘unprecedented level of cooperation’ between the civil society actors and the Ukrainian national authorities in connection with the preparation of joint communications to the ICC under Article 15 of the ICC Statute.33 Prior to the outbreak of the conflict in Donbas, the Eastern-Ukrainian Center for Civic Initiatives (EUCCI) based in Luhansk was focusing on anti-corruption work and general human rights advocacy.34 After the outbreak of the hostilities in the Luhansk region, the EUCCI was forced to move to Kyiv and some of its members became IDPs themselves.35 Following the events in Eastern Ukraine, the EUCCI’s focus shifted to helping other IDPs, assisting victims and increasingly documenting human rights violations. Combining the experience of displacement, with newly gained knowledge about the scale of atrocities and the possible accountability responses, the EUCCI developed their own methodology and created a unique database documenting international crimes committed in Eastern Ukraine, including information about illegal arrest and detention; torture; using child soldiers and conflict-related sexual violence.36 The EUCCI’s team corroborates information from witness testimonies using open source information and user-generated content after it has been verified and corroborated by at least three different pieces of evidence,37 in this way ensuring the highest probative value of evidence that can be used in court proceedings and lead to successful convictions. The highly professionalised and inter-connected civil society in Ukraine plays an important role in the documentation of violations of international humanitarian law, but also in advancing the knowledge about international law. This can be illustrated by the immediate response to the full-scale Russian aggression on Ukraine on 24 February 2022, where within hours of the invasion the “Ukraine 5 AM Coalition” 31

Coalition Justice for Peace in Donbas. https://jfp.org.ua/coalition/pro-koalitsiiu. Accessed 15 November 2021. 32 Eastern-Ukrainian Center for Civic Initiatives 2017. 33 Marchuk and Wanigasuriya 2021, p. 764. 34 European Research Centre for Anti-Corruption and State-building Website. https://www.aga instcorruption.eu/organizations/eastern-ukrainian-center-for-civic-initiatives-eucci/. Accessed 15 November 2021. 35 See van Metre et al. 2017, p. 6. 36 Eastern-Ukrainian Center for Civic Initiatives. Documenting Violations of Human Rights Website. https://totalaction.org.ua/en/work/2. Accessed 15 November 2021. 37 Ibid.

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of civil society actors was formed with the aim of documenting international crimes committed by Russia. Civil society actors that have previously gained expertise in documenting war crimes in Eastern Ukraine and Crimea (since 2014), have joined forces once again to document the Russian aggression on the entire territory of Ukraine. In this way, it challenges the presumption that only state authorities know the law. Civil society actors conduct open source investigations, interview witnesses, corroborate user-generated data and assist victims released from captivity. The domestic prosecution authorities in Ukraine, and the recently established specialised Department for Supervision of Crimes in the Situation of Armed Conflict within the Office of the Prosecutor General of Ukraine increasingly cooperate with the civil society organisations. Furthermore, recent domestic legislative initiatives to implement international criminal and humanitarian into Ukrainian national legislation, have the potential of further strengthening the role of civil society actors in advancing accountability efforts for core international crimes. The future possibility to prosecute conflict-related sexual violence as crimes against humanity in Ukraine should also have an impact on the creation of new outreach campaigns and advocacy initiatives aimed at ensuring that charges reflect the full scope of the conduct of the accused, encompassing crimes listed in the general domestic criminal code, as well as international crimes.38 The fact that the ICC has not initiated a full-scale investigation into atrocities committed in Eastern Ukraine during the conflict in Donbas did not discourage domestic accountability initiatives. Conversely, in the current international justice ecosystem, where the ICC (or the UN Security Council) cannot intervene, the civil society has facilitated and actively supported domestic investigations and prosecutions. The next section focuses on accountability efforts in relation to the atrocities committed in Syria. It illustrates how the Russian approach towards international law—requiring the interlink between the hegemonic power and the law in the UN— has been defied by the survivors’ courage and the willingness to tell their story about the atrocities through their pursuit of accountability outside of the UN system with the assistance of civil society organisations.

38

See initiatives by civil society in Germany to include conflict-related sexual violence as a crime against humanity in criminal indictments; ECCHR 2021.

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7.4.2 The Commission for International Justice and Accountability (CIJA) and the New Model of Private Criminal Investigations Without the courage and determination of those victims who act as complainants or witnesses, many [international crimes] cases would never reach trial. As such, States at the forefront of investigating and prosecuting international crimes at the domestic level are increasingly recognising that supporting, protecting and empowering victims is crucial to building strong cases.39

The role of victims in German core international crimes trials relating to crimes committed in Syria cannot be overstated. In their testimony in the Anwar R. trial in the Koblenz Higher Regional Court, they have painted a picture of state-coordinated mass scale atrocities and defied the state-sponsored disinformation campaigns.40 In this way, they have also confronted the hegemonic understanding of international law advanced by Russia through exposing the wide scale of human suffering in Syria. Moreover, victims’ rights groups cooperate with civil society organisations involved in evidence collection and processing, further strengthening the counter-hegemonic power of domestic war crimes prosecutions. CIJA was created directly in response to the lack of international accountability for crimes committed during the Syrian uprising.41 CIJA’s investigative work has already led to a number of convictions in European courts. They continue supporting over 30 law enforcement agencies in 13 countries (including police, prosecution services and immigration authorities) in their investigative work regarding the crimes committed by the Syrian regime and Islamic State (IS) perpetrators having answered over 500 requests for assistance pertaining to 1000 persons of interest in the last five years.42 CIJA’s model relies on training local Syrian and Iraqi human rights activists and investigators to gather evidence that complies with the highest international criminal

39

Joint NGO Letter to the Core Group and Co-Sponsoring States to the initiative for the creation of a new multilateral treaty for the domestic prosecution of the most serious international crimes, also known as the ‘Mutual Legal Assistance (MLA) Initiative’ in response to The Draft Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity and War Crimes and in advance of the Second Preparatory Conference of the MLA initiative 2019. www.fidh.org/en/issues/international-justice/ngos-call-for-the-inclusion-ofvictims-rights-into-the-mutual-legal. Accessed 27 January 2022. 40 Syria Justice and Accountability Centre. Archive: Trial Monitoring (2020). https://syriaaccount ability.org/topic/trial-monitoring/updates/. Accessed 15 November 2021. 41 Burgis-Kasthala 2020, p. 1167. 42 Commission for International Justice and Accountability (2020) CIJA Testifies in Case of Anwar Raslan. https://cijaonline.org/news/2020/11/19/cija-testifies-in-case-of-anwar-ruslan. Accessed 15 November 2021.

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investigations’ standards.43 They began conducting investigations into the enslavement of women and children by IS in late 2015. Evidence gathered by CIJA’s Daesh Crimes Investigation Unit led to the conclusion that IS operated a highly ‘organised, well-regulated slave trade in which thousands of captured women and children were bought, sold, given and traded among its members throughout Islamic State-held territory from August 2014 until at least October 2017’.44 CIJA’s IS investigation was completed in August 2018, however remained ‘a living case-file’ including evidence of war crimes, crimes against humanity and genocide and identifying slave traders from Syria, Germany, Tunisia, Iraq, the United States, Chechnya, Canada, Australia, France, the Emirates, Bahrain, Saudi Arabia and Turkey.45 The aim of the local CIJA investigators, based on the ground in the conflictaffected areas, is to collect evidence and material that ‘follows a chain of custody, that will be admissible in any future court’.46 Later, CIJA analysts prepare evidence and case briefs, and respond to any requests for assistance from state authorities engaged in prosecutions of core international crimes.47 CIJA began to engage with domestic prosecution authorities in 2015 and created a special Requests Unit ‘to dedicate an increasing number of personnel that was soon dealing with a dozen requests for assistance (RFAs) per month’.48 In addition to responding to requests for assistance, CIJA also submits proactive reports when it believes it has ‘critically important, credible and reliable information that could lead to a vital investigative opportunity’.49 As alluded to by Melinda Rankin, if CIJA has developed a number of case briefs to an industry standard without the support of the UNSC, ‘this would serve to challenge top-down approaches to investigating crimes against humanity in new wars, and, in doing so, our understanding of the concept of law, and how we govern international criminal law in the international system’.50 Similarly in the case of Ukraine, the civil society organisations have professionalised their system of documentation, and their efforts are becoming increasingly instructive in domestic core international crimes investigations and prosecutions.51 In comparison to bureaucratic UN bodies, or government agencies, CIJA takes pride in its flexibility and risk tolerance and the unique ability to operate on short notice: 43

Rankin 2018, 2019, p. 407; Burgis-Kasthala 2020; Commission for International Justice and Accountability (CIJA) Annual Report 2019–2020. https://static1.squarespace.com/static/567 06cbb841aba81145cadea/t/5f5baf02a871f324968f4daa/1599844159116/CIJA+Annual+Report+ 2019-2020.pdf. Accessed 27 January 2022. 44 Barbour 2020, p. 406. 45 Ibid. 46 Rankin 2017, p. 401. 47 Ibid. 48 Barbour 2020, p. 420. 49 Ibid. 50 Rankin 2017, p. 415. 51 Truth Hounds 2019b.

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We can fly on half a day’s notice, if I get a call now, that says go to the airport, I can do that, which bureaucratic organizations cannot do. Lessons learned for sure, all the advantages of less, we are also much, much cheaper, I mean just look at the numbers.52

However, instead of challenging the UN-affiliated institutions such as the ad hoc tribunals, the IIIM or the ICC, CIJA staff regard their individual efforts through the ‘CIJA model as a radical, complementary tool in realising anti-impunity through criminal trials’.53 Scholars who have conducted extensive qualitative research pertaining to CIJA, have suggested that its presence within the international criminal law field is a necessary one and that it has already started to have effects within Syria and beyond.54 Importantly, the work of private investigators has had a major impact on the paradigm shift in international criminal investigations. Essentially, more and more civil society actors from countries originally under strong economic and political influence of UNSC Members realise that they do not need to rely on the UNSC and the ICC, but rather that they can collect evidence or investigate core international crimes using all the tools that are at their disposal domestically thereby reclaiming the ‘justice ownership’ from international institutions.55 Moreover, they have devised their own evidence selection and case building strategies, further contributing to the realisation of the ‘justice ownership’ within both the legal practice and the local community. This is potentially a dangerous phenomenon for the hegemonic UNSC Members that would prefer to block certain international criminal justice initiatives that affect their own economic or political interests. Now that we know that the evidence collected by CIJA has been used in successful prosecutions in German and Dutch courts,56 it further undermines the top-down approaches to investigating crimes. Paradoxically, this can have further impact on ‘justice ownership’ in transitional societies such as Ukraine or, in the future, in Belarus. It requires mentioning that CIJA has now transferred vast amounts of its evidence to IIIM, which could suggest the emergence of a new collaborative international criminal justice order, and in the future Ukraine might increasingly cooperate with the ICC.57 Nonetheless, these developments increasingly prove that in the new international criminal justice ecosystem, the UNSC-dependent institutions remain at the periphery of accountability initiatives, whereas domestic jurisdictions emerged as key accountability avenues.

52

Burgis-Kasthala 2020, p. 1182. Ibid., p. 1183. 54 Ibid. 55 This can also be illustrated by accountability initiatives related to the atrocities committed in Myanmar. 56 For example, in the cases of Oussama A. in The Hague District Court (2019) and Eyad A. in the Koblenz Higher Regional Court in 2021. 57 Office of the Prosecutor 2020. 53

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7.5 Conclusion The experiences of the civil society-led accountability initiatives in Syria and Ukraine illustrate the counter-hegemonic potential of grassroots approaches towards international criminal justice. They challenge the notions of how evidence is collected and preserved, ‘models of state-law, as well as who is authorised or willing to use the law and lastly, the relationship between power and the law in the United Nations’.58 In a field that for decades has been dominated by the hegemony of states—that decided who could be prosecuted and who could enjoy lasting impunity—the rise of ‘Entrepreneurial Justice’ offers a counter-hegemonic twist. Locally embedded initiatives, such as CIJA and the Coalition ‘Justice for Peace in Donbas’, have managed to meaningfully contribute towards the enforcement of international humanitarian law and international criminal law on the ground. Moreover, as a direct response to the full-scale Russian invasion of the entire territory of Ukraine on 24 February 2022, new civil society documentation initiatives have been launched that are largely benefitting from structures and procedures that have been successfully developed to document international crimes taking place in Donbas and Crimea since 2014. With the diminishing role of the ICC as a law-making institution—but its increasing potential as a capacity building (and best practice generating) institution in the new international justice ecosystem—the civil society organisations have pragmatically cultivated and advanced their skills, cooperation networks and channels with the aim of ending impunity and reclaiming ‘justice ownership’. CIJA’s efforts lead to accountability initiatives in the domestic jurisdictions of Germany, the Netherlands, France and others that are involved in trials concerning crimes under international law committed in Syria. In German trials, the victims’ testimonies and the survivors’ courage in telling the truth about the atrocities defies the Russian approach towards international law, which requires an interlink between the hegemonic power and the law at the UN. In the case of Ukraine, civil society organisations have established working relationships with domestic authorities and international partners. In this way, without completely ignoring the UN system, but working with it in the settings where it is realistic to hold trials, the civil society organisations advance accountability for core international crimes. The technological advancement, and with it, the rise of digital evidence and open source information has further strengthened the role of civil society actors in international criminal investigations. The databases they have compiled will serve as evidence in future prosecutions, whereas the expertise they have gained will assist the courts in processing and interpreting open source evidence. The highly professionalised and inter-connected civil society in Ukraine plays an important role in documentation of violations of international humanitarian law, but also in advancing the knowledge about international criminal and humanitarian law. In this way, they are challenging the presumption that only state authorities know the law. Undoubtedly, the civil society actors, some of whom are survivors and IDPs themselves,59 have 58 59

Rankin 2017, p. 399. van Metre et al. 2017, p. 6.

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created their own sense of ‘justice ownership’. One of its foundations is the proactive attitude in searching for the best accountability forum and an in-depth knowledge of the intricacies of international law, which makes them less susceptible to alternative (hegemonic) interpretations of international law such as those advanced by Russia. Nevertheless, the long-term impact of the ‘Entrepreneurial Justice’ on the wider community and the perception of ‘justice ownership’ among the civilian population remains to be assessed in post-conflict contexts. The assistance that the civil society organisations have received from international legal experts and foreign institutions, most often from the West, might suggest that the counter-hegemonic character of their investigations is limited. Arguably, the Western donors do not intervene directly in domestic criminal proceedings but rather oversee that international standards are upheld. Nonetheless, the disinformation campaigns aimed at undermining the universal jurisdiction trials and setbacks at the state or interstate levels attest to the unlikely balance that has been achieved between advancing a Western form of justice, and the Russian understanding of international law. Whether in these circumstances it can be stated that justice can be truly ‘owned’ by anyone, or whether it is an elusive concept used by the ‘TJ entrepreneurs’ for the purposes of keeping international criminal justice afloat in whatever form in the future, remains to be seen. It is clear that in these settings, the ICC is no longer perceived as ‘The Court’, but rather as an instrument of disseminating best practices and investigative standards that can be shared and transplanted into domestic jurisdictions. In the future, it might further evolve in that direction, becoming an institution involved in largescale capacity building. The increasing focus on domestic forms of accountability and shifting away from international criminal tribunals might be perceived as another ‘Nuremberg moment’ for international criminal justice, where once again the conduct of one of the hegemonic powers (in Nuremberg it was arguably the Soviet Union,60 and nowadays it is Russia) became sidelined in the accountability efforts, whilst again being at the very centre of military campaigns giving rise to the criminal complaints and trials.

References Aciru M (2017) Rethinking Post-Truth Commissions: Empowering Local Capacities to Shape the Post-Truth Commission Discourse. Hum Rts & Int’l Legal Discourse 1:71–82 Aksamitowska K (2021) Digital Evidence in Domestic Core International Crimes Prosecutions – Lessons Learned from Germany, Sweden, Finland and the Netherlands. Journal of International Criminal Justice 19:189–211 Allison R (2020) Russian Revisionism, Legal Discourse and the ‘Rules-Based’ International Order. Europe-Asia Studies 72(6):976–995 Barbour S (2020) Supporting Accountability for Sexual Violence in the Syria and Iraq Conflicts Innovations, Good Practices, and Lessons Learned Through Private Criminal Investigations. Journal of International Criminal Justice 18(2):397–423 60

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Beaumont P, Graham-Harrison E (2021) The UK Professor, a Fake Russian Spy and the Undercover Syria Sting. The Guardian. 28 March. https://www.theguardian.com/law/2021/mar/28/the-uk-pro fessor-a-fake-russian-spy-and-the-undercover-syria-sting. Accessed 27 January 2022 Burgis-Kasthala M (2020) Entrepreneurial Justice: Syria, the Commission for International Justice and Accountability and the Renewal of International Criminal Justice. Eur J Int Law 30(4):1165– 1185 Eastern-Ukrainian Center for Civic Initiatives (2017) Unspoken Pain. Gender-Based Violence in the Conflict Zone of Eastern Ukraine. https://jfp.org.ua/system/reports/files/92/en/Unspoken-Painweb.pdf. Accessed 27 January 2022 ECCHR (2021) Al-Khatib Trial in Koblenz: Sexual Violence Now Indicted as Crimes Against Humanity. https://www.ecchr.eu/en/press-release/syrien-prozess-in-koblenz/. Accessed 27 January 2022 Eriksson A, McEvoy K (2006) Restorative Justice in Transition: Ownership, Leadership, and ‘Bottom-Up’ Human Rights. In: Sullivan D, Tifft L (eds) Handbook of Restorative Justice. Routledge, London/New York, pp 321–335 Evrard E et al. (2021) The Meaning of Participation in Transitional Justice: A Conceptual Proposal for Empirical Analysis. International J of Transitional Justice 15(2):428–447 Haslam E (2011) Subjects and Objects: International Criminal Law and the Institutionalization of Civil Society. International Journal of Transitional Justice 5:221–240 Heinze A (2019) Private International Criminal Investigations. 2 Zeitschrift für Internationale Strafrechtsdogmatik 2:169–181 Herremans B, Destrooper T (2021) Stirring the Justice Imagination: Countering the Invisibilization and Erasure of Syrian Victims’ Justice Narratives. International Journal of Transitional Justice 00:1–20 Hirsch F (2020) Soviet Judgment at Nuremberg – A New History of the International Military Tribunal After World War II. Oxford University Press, Oxford Human Rights Watch (2021) Ukraine: International Crimes Bill Adopted. Law Could Strengthen Effective Prosecution of War Crimes. https://www.hrw.org/news/2021/05/21/ukraine-internati onal-crimes-bill-adopted. Accessed 27 January 2022 Kennedy D (2021) Edinburgh Professor Gave Names to Fake Russia Spy. The Times. 26 March. https://www.thetimes.co.uk/article/edinburgh-professor-gave-names-to-fake-russia-spy68n2n3bzj. Accessed 27 January 2022 Langer M, Eason M (2019) The Quiet Expansion of Universal Jurisdiction. Eur J of Inter Law 30:779–817 Ling CW (2005) Forgiveness and Punishment in Post-Conflict Timor. UCLA J Int’l L & Foreign Aff 10(2):297–359 Madlingozi T (2010) On Transitional Justice Entrepreneurs and the Production of Victims. Journal of Human Rights Practice 2(2):208–228 Mälksoo L (2015) Russian Approaches to International Law. Oxford University Press, Oxford Mälksoo L (2021) Post-Soviet Eurasia, Uti Possidetis and the Clash Between Universal and RussianLed Regional Understandings of International Law. New York University Journal of International Law and Politics 63(3):787–822 Marchuk I (2019) From Warfare to ‘Lawfare’: Increased Litigation and Rise of Parallel Proceedings in International Courts: A Case Study of Ukraine’s and Georgia’s Action Against the Russian Federation. In: Kent A et al. (eds) The Future of International Courts: Regional, Institutional and Procedural Challenges. Routledge, London/New York, pp 217–234 Marchuk I, Wanigasuriya A (2021) Venturing East: The Involvement of the International Criminal Court in Post-Soviet Countries and Its Impact on Domestic Processes. Fordham Int’l L.J. 44(3):735–770 McEvoy K (2007) Beyond Legalism: Towards a Thicker Understanding of Transitional Justice. JL & Soc’y 34(4):411–440

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Menzel A (2020) The Pressures of Getting It Right: Expertise and Victims’ Voices in the Work of the Sierra Leone Truth and Reconciliation Commission (TRC). International J of Transitional Justice 14:300–319 Moodrick-Even Khen H et al. (2019) The Syrian War - Between Justice and Political Reality. Cambridge University Press, Cambridge Office of the Prosecutor (2020) Statement of the Prosecutor, Fatou Bensouda, on the Conclusion of the Preliminary Examination in the Situation in Ukraine. https://www.icc-cpi.int/Pages/item. aspx?name=201211-otp-statement-ukraine. Accessed 27 January 2022 OLG Stuttgart (2020) Urteil des OLG Stuttgart gegen vier Angeklagte u. a. wegen Mitgliedschaft in einer ausländischen terroristischen Vereinigung, Kriegsverbrechen und Mord in Syrien, Akz.: 5 – 2 StE 5/17-4. https://oberlandesgericht-stuttgart.justiz-bw.de/pb/,Lde/Startseite/Medien/Urt eil+des+OLG+Stuttgart+gegen+vier+Angeklagte+u_+a_+wegen+Mitgliedschaft+in+einer+ auslaendischen+terroristischen+Vereinigung_+Kriegsverbrechen+und+Mord+in+Syrien/?LIS TPAGE=1178276. Accessed 15 November 2021 Parliamentarians for Global Action (2021) Parliament of Ukraine Adopts Bill to Implement International Criminal and Humanitarian Law. https://www.pgaction.org/news/ukraine-bill-2689.html. Accessed 27 January 2022 Putin V (2013) A Plea for Caution from Russia. The New York Times. 11 September. https://www. nytimes.com/2013/09/12/opinion/putin-plea-for-caution-from-russia-on-syria.html. Accessed 27 January 2022 Rankin M (2017) Investigating Crimes Against Humanity in Syria and Iraq: The Commission for International Justice and Accountability. Global Responsibility to Protect 9:395–421 Rankin M (2018) The Future of International Criminal Evidence in New Wars? The Evolution of the Commission for International Justice and Accountability (CIJA). Journal of Genocide Research 20(3):392–411 Rankin M (2019) The ‘Responsibility to Prosecute’ Core International Crimes? The Case of German Universal Jurisdiction and the Syrian Government. Global Responsibility to Protect 11(4):394– 410 Reuter C, Schmid F (2021) To Russia with Love. Propaganda unter dem Mantel der Wissenschaft. Der Spiegel. 26 March. https://www.spiegel.de/ausland/propaganda-in-russlands-sinn-desinf ormationskampagne-unter-dem-deckmantel-der-wissenschaft-a-f98fc622-76f8-405c-9194-043 f48f7f99d. Accessed 27 January 2022 Rudling A (2019) What’s Inside the Box? Mapping Agency and Conflict Within Victims’ Organizations. International Journal of Transitional Justice 13(3):458–477 Sayapin S, Tsybulenko E (2018) The Use of Force Against Ukraine and International Law Jus Ad Bellum, Jus In Bello, Jus Post Bellum. T.M.C. Asser Press, The Hague Sharp DN (2013) Interrogating the Peripheries: The Preoccupations of Fourth Generation Transitional Justice. Harv Hum Rts J 26:149–178 Sooka Y (2006) Dealing with the Past and Transitional Justice: Building Peace Through Accountability. Int’l Rev Red Cross 88(862):311–325 Truth Hounds (2017) Attacks on Civilians and Civilian Infrastructure in Eastern Ukraine. https:// truth-hounds.org/wp-content/uploads/2018/02/ICC-UA-15.02-with-NED.compressed.pdf/. Accessed 27 January 2022 Truth Hounds (2019a) Cooperation with State Authorities Got a New Impetus. https://truth-hounds. org/en/gpu_workshops_en/. Accessed 27 January 2022 Truth Hounds (2019b) We Open a New Page of Cooperation with State Authorities. https://truthhounds.org/en/memorandum-en/. Accessed 27 January 2022

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van Metre L et al. (2017) Ukraine’s Internally Displaced Persons Hold a Key to Peace. Atlantic Council. https://www.atlanticcouncil.org/wp-content/uploads/2015/05/Ukraines_Intern ally_Displaced_Persons_Hold_a_Key_to_Peace_web_1003.pdf. Accessed 27 January 2022 van Schaack B (2020) Transitional Justice Without Transition. In: Moodrick-Even Khen H et al. (eds) The Syrian War: Between Justice and Political Reality. Cambridge University Press, Cambridge, pp 243–267 Voyger M (2018) Russian Lawfare – Russia’s Weaponisation of International and Domestic Law: Implications for the Region and Policy Recommendations. Journal on Baltic Security 4(2):35–45

Karolina Aksamitowska is a Lecturer in Law at Tallinn University in Estonia. Her Ph.D. research at Swansea University focused on structural investigations and domestic prosecutions of core international crimes in the context of armed conflicts in Syria/Iraq and Eastern Ukraine. Her recent report titled ‘War Crimes Units: Legislative, Organisational and Technical Lessons’ written for the T.M.C. Asser Institute/Global Rights Compliance MATRA project on ‘Strengthening Ukraine’s Capacity to Investigate and Prosecute International Crimes’ provides an overview of best practices drawn from domestic war crimes units. She has published on a variety of international criminal and humanitarian law topics, including in the Journal of International Criminal Justice, the Journal of International Humanitarian Legal Studies, Annotated Leading Cases of International Criminal Tribunals (ALC) and the Oxford Reports on International Law.

Chapter 8

NGOs and the Legitimacy of International Criminal Justice: The Case of Uganda Tonny Raymond Kirabira

Contents 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Setting the Scene: NGOs as Critical Actors in International Criminal Justice . . . . . . . . . 8.3 (De)Legitimising International Criminal Justice in Contested Spaces of Uganda . . . . . . 8.3.1 Legitimising International Criminal Justice (1): Local NGOs Work on and with Victims and Affected Communities . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.2 Legitimising International Criminal Justice (2): NGO Networking and Joining Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.3 Legitimising International Criminal Justice (3): NGOs’ Involvement in Domestic Proceedings Reflecting Complementarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.4 Delegitimising International Criminal Justice: NGOs and Alternative Forms of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract In recent years, there have been significant debates about the legitimacy of the ICC, in particular in countries which are, as ‘situation countries’, subject to investigative or prosecutorial activities of the Court. Perspectives from the Global South are critical against the hegemonic elements of this regime, perceived as an instrumentalisation of global human rights norms and Western imperialism. Yet, current debates about the legitimacy of international criminal justice have tended to neglect the hegemonic and counter-hegemonic capacities of non-state actors in affected communities. This chapter inquires into the role of non-governmental organisations (NGOs) in Uganda’s contested criminal justice processes. The chapter draws on semi-structured interviews with both domestic and international NGO staff, lawyers and victim representatives, as well as secondary sources. It also benefits from reflections based on the author’s experience as a legal practitioner in Uganda. Drawing on the theory of legitimacy, it illustrates how NGOs may perpetuate hegemonic structures of international criminal justice through the approaches that they take regarding

T. R. Kirabira (B) Law Department, University of Portsmouth, Portsmouth, UK e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_8

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the prosecution of international crimes at the ICC and the International Crimes Division (ICD) of Uganda. In turn, this asserts a form of sociological legitimacy of the courts in the eyes of the affected communities. On the other hand, the chapter also highlights a limited counter-hegemonic role of some domestic NGOs that prioritize domestic accountability mechanisms over international avenues. Ultimately, attention to NGOs as critical actors is essential if we are to sustain the counter-hegemonic debates in international criminal justice. The findings point to the increasing role of NGOs as key stakeholders in the future of the international criminal justice project. Keywords International criminal justice · ICC · International crimes · Uganda · Non-governmental organisations · Legitimacy

8.1 Introduction This chapter explores the role of non-governmental organisations (NGOs) in the contested spaces of justice at both domestic and global levels. Within the context of international criminal law, the term hegemony is used to describe the relationship between structure and agency in international criminal justice, where institutions are perceived as imperialist from the Global South point of view.1 This perspective holds that states in the Global South are increasingly becoming objects of international norms and standards of accountability under the imperial dominance of Western states.2 For example, the issuance of warrants of arrests against sitting heads of states in Africa by the ICC—also viewed as a form of ‘judicial neo-colonialism’—elicited strong criticism from the African Union.3 In a pluralistic international legal framework, international criminal justice is bound to raise questions of authority about its constituents. Key questions include who speaks for victims and the other key actors within and around international criminal justice institutions in general.4 This chapter thus seeks to examine these questions with a critical focus on NGOs as key actors in the international criminal justice system. Besides the hegemonic structures reflected in global NGO networking and victim-oriented work in international criminal law, the discussions also explore ways in which NGOs counter the hegemonic institutions.5 In practice, the counterhegemonic angle can be examined by analysing how local NGOs advocate for pluralist approaches in post conflict contexts. Crucially, it is also vital to evaluate the counter-hegemonic potential of NGOs in domestic contexts. Based on their central role in the promotion of international criminal justice,6 this chapter seeks to evaluate how NGOs enhance or undermine the legitimacy of 1

Klamberg 2020, p. 641. Ibid., p. 643. 3 Ibid., p. 646; Kirabira 2021, p. 24. 4 See Heller et al. 2020, p. 2. 5 Buckel and Fischer-Lescano 2009, pp. 451–452. 6 See, for instance, Nouwen and Werner 2015; Christensen 2020. 2

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international criminal justice institutions. Using the context of the ICTY, Carsten Stahn argues that NGOs have ‘become important advocates and voices of judicial action’.7 Notable avenues for NGOs include reporting and documentation of information on international crimes, the filing of amicus curiae briefs, and representations in reparations proceedings before international criminal tribunals.8 Another critical aspect relates to the emerging position of NGO intermediaries in international criminal law. Leila Ullrich’s empirical work reveals the ICC’s dependence upon intermediaries to mitigate the challenges that come with lack of proximity with the affected communities.9 As she points out, they also help to legitimise the Court within these pluralist spaces of justice.10 In 2014, the ICC published guidelines to formalise and synergise its intermediary relationships.11 While Leila Ullrich’s primary concern relates to the vagueness on the question of their implementation,12 Emily Haslam and Rod Edmunds are sceptical about this ‘professionalization’ as it ‘creates obstacles for the involvement of counter-hegemonic voices in international criminal law.’13 Against this background, this chapter examines how NGOs (de)legitimise international criminal justice. The term (de)legitimise is used to embrace opposing concepts: legitimisation and delegitimisation. Using Uganda as a case study, the chapter critically interrogates the position of both domestic and international NGOs in relation to the international criminal justice interventions. This may be interesting also due to the fusion of both domestic and international justice mechanisms dealing with crimes under international law. Northern Uganda has been at the centre of both domestic and international debates on accountability, since the start of the Lord’s Resistance Army (LRA) war against the government in 1987. It was characterised by a series of gross violations of human rights like massacres, mutilations, massive abductions of people and child soldiering. In 2005, the ICC issued warrants of arrest for LRA leader Joseph Kony and his top commanders. Dominic Ongwen, one of commanders was subsequently charged at the ICC, and convicted for crimes against humanity and war crimes on 4 February 2021.14 His prosecution elicited mixed responses on the role of international criminal justice within the broader context, considering the fact that Ongwen was both a victim of the brutality—abducted as a child by the LRA—as well as a perpetrator of gross crimes as the leader of the same group.15

7

Stahn 2018, p. 282. Brimelow et al. 2016, p. 2. 9 Ullrich 2016, p. 543. 10 Ibid., p. 568. 11 See ICC 2014. 12 Ullrich 2016, p. 522. 13 Haslam and Edmunds 2013, p. 49. 14 See ICC 2021. 15 See, more elaborately, Branch 2017, p. 38; Baines 2009, p. 168. 8

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Scholars, practitioners, and experts have told and retold different accounts of the international criminal justice framework in Uganda.16 However, the role of NGOs in international criminal justice is underexplored, even when they have been key stakeholders in this often contested processes.17 This chapter departs from the existing scholarship that centres on state actors and the politics of the ICC intervention in Northern Uganda and focuses on the work of NGOs as key actors. While Lohne explores the role of NGOs in international criminal justice and the Ugandan context, she uses sociology of punishment as a theoretical orientation.18 This is also the key theoretical point of departure for this chapter, as it is concerned with hegemonic structures in international criminal justice. This chapter partly builds on Ullrich and Lohne’s approaches, but extends the analysis to the domestic prosecution at the International Crimes Division (ICD) of the high court in Uganda. Clark’s empirical engagement with NGOs in Uganda’s transitional justice was done five years before the adoption of Uganda’s National Transitional Justice Policy.19 Methodologically, the examination of current transitional justice initiatives is an analytical shift from the existing scholarship that was done before the adoption of the current policy framework. The chapter builds on scholarly work that uses legitimacy as a framework for assessing the work of international courts.20 It is important to distinguish between two forms of legitimacy. While normative legitimacy relates to institutions and court’s moral authority to exercise legal functions over a particular case, sociological legitimacy relates to the acceptance of their political authority within the affected societies.21 This could be interpreted as also ‘based on the transnational regulation being perceived as legitimate by actors in the field’.22 This chapter applies a theory of sociological legitimacy that relates to the ‘acceptance of the authority of the messages and narratives constructed within international criminal courts amongst different audiences’23 including those most directly affected. It is argued in this chapter that NGOs (de)legitimise international criminal justice in Uganda in four ways: First, the narratives, adopted and shaped by local NGOs, legitimise the ICC as a form of transitional justice. Second, domestic NGOs adopt and implement international criminal justice through networks and coalitions. Third, NGOs legitimise international criminal justice through the complementarity framework. Finally, the work of local NGOs in relation to alternative justice mechanisms delegitimises international criminal justice. How does legitimacy connect with hegemony? This question invites a broader range of arguments, depending on the actors involved. As the evidence will suggest, 16

Roach 2013, p. 13; Branch 2017; Cody 2017. See, more elaborately, Brankovic and van der Merwe 2018; Noortmann 2019; Schimmel 2019. 18 Lohne 2019. 19 See generally Clark 2015. 20 See generally Stahn 2012; de Hoon 2017. 21 Glasius and Meijers 2012, pp. 231–232. 22 Munkholm et al. 2019, p. 241. 23 Sander 2019, p. 857. 17

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one could argue that by legitimising international criminal justice mechanisms, NGOs articulate a liberal culture of Western hegemony. Similarly, it can be argued that by centralising the subject of victims, NGOs seek to counter the hegemonic structures or perceptions. Methodologically, the chapter takes an empirical legal research approach, using a combination of methods. This data rests primarily on qualitative interviews with a range of actors in Ugandan transitional justice process—NGO representatives, victim representatives, prosecutors, judges, academics and a defence lawyer. The primary goal was to understand how NGO policies and interventions feed into the work of the international criminal justice processes. It also aimed to identify the common themes that pervade NGO work. The semi-structured elite interviews were conducted through a mixture of telephone and online via video technology. Salmon’s Qualitative e-Research framework was used as a tool for organising and designing the interviews.24 The University of Portsmouth’s ethical guidelines and usual ethical principles guiding socio-legal research applied during the entire process. This was vital in order to have verifiable research participants, and have them provide informed consent before participating in the online interviews.25 The chapter also relies on an extensive review of secondary sources regarding the transitional justice process. I also draw on my observations at the ICC in The Hague, during my work as a visiting professional between March and August 2020. In addition, I add reflections based on my experience as a legal practitioner in waraffected communities in Uganda. The findings were analysed systematically, using the CDA method, to identify the discursive elements that relate to international criminal justice. The rationale is that narratives play a crucial role in the interpretation of international law and other norms of global governance.26 Narratives can also be suitable tools for empirical examination on how international criminal justice processes are legitimised. The chapter is organised into four main sections. Following the introduction, Sect. 8.2 sets the scene by situating NGO work within the field of international criminal justice. Next, Sect. 8.3 turns to the case study of Northern Uganda, giving empirical perspectives of NGO work in international criminal justice. It assesses the various strategies NGOs adopt to legitimise the international criminal justice mechanisms at both domestic and international levels. The section will also show how some local NGOs delegitimised the ICC intervention with preferences for alternative dispute resolution. Finally, in Sect. 8.4, the chapter will conclude with recommendations on the legitimacy of international criminal justice.

24

Salmons 2016. Salmons 2012, p. 8. 26 Otten 2016, p. 187. 25

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8.2 Setting the Scene: NGOs as Critical Actors in International Criminal Justice In recent years, NGO work has expanded rapidly within the field of international criminal justice. The term NGOs is synonymous with civil society organisations operating separately from the state and political parties.27 This section explores the work of NGOs in international criminal justice, using the theoretical framework of legitimacy. According to an ICC judge, ‘NGOs may be the principal force in pushing for universal jurisdiction’,28 which in itself serves to enhance the legitimacy of the ICC. From a regional perspective, NGOs have been influential in the work of specialised criminal tribunals. The Special Court for Sierra Leone (SCSL) had a very good relationship with NGOs and needed their support, particularly the Office of the Prosecutor.29 NGOs were influential in the interpretation of the Special Court Agreement (Ratification) Act 2002, with regard to the contested legal relationship between the Tribunal and the Truth and Reconciliation.30 This interpretative role can be regarded as a form of legitimisation of the tribunals, since it sets a new normative foundation for international criminal justice. However, Schabas is critical of the legal interpretations given by the UN and NGOs like the International Crisis Group, Human Rights Watch and No Peace Without Justice, in what he terms as ‘intellectual and political energy’.31 Ultimately, in situations where there are competing alternatives to international criminal justice, NGOs might get drawn into the domestic legal dilemmas. Kendall’s study further illustrates the implications of extensive involvement of non-state actors like donors in global justice, using the case of the SCSL.32 Such top-down approaches have the effect of obscuring the voices of the victims and affected communities in whose name NGOs and international criminal justice systems claim to operate. The criticism also illustrates that NGOs have become critical actors in the international justice work, in what Stahn regards as ‘advocates and voices of judicial action’.33 A coalition of 138 NGOs were also involved in the drafting and eventual adoption of the ICC Statute of the ICC in 1998.34 A transnational coalition of 300 NGOs lobbied Nigeria to arrest Charles Taylor and surrender him for trial at the SCSL in what is referred to as the ‘Justice Cascade’,35 while creating narratives

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Krut 1997, pp. 11–12. Interview with ICC judge, 4 March 2021. 29 Interview with David M. Crane, Founding Chief Prosecutor of the SCSL, 1 March 2021. 30 Schabas 2004, p. 173. 31 Ibid. 32 Kendall 2011, p. 587. 33 Stahn 2018, p. 282. 34 Brett and Gissel 2018, p. 206; Rodman 2015, p. 51. 35 Rodman 2015, p. 51. 28

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against amnesties.36 To David Crane, the founding Chief Prosecutor of the SCSL, the rise of grassroots efforts by NGOs is a key element in the age of accountability.37 Besides Sierra Leone, the impact of NGOs in international criminal justice is also observed in the contexts of Kenya and Sri Lanka, where they used different strategies to (de)legitimise accountability mechanisms under international law.38 In Kenya, there was a split, as NGOs strategised around competing transitional justice mechanisms in the form of truth commissions and criminal prosecution by the ICC.39 In South Africa, NGOs played a crucial role in shaping the idea of ‘transformative constitutionalism’ as a mechanism of transitional justice, triggering innovative legal remedies in relation to socio-economic rights of victims.40 This work shows how NGOs, in contrast to international criminal law institutions, can be invested in multiple transitional justice projects. NGO discourses in Kenya were also observed to have undermined the potential impact of the Truth, Justice and Reconciliation Commission (TJRC), favouring criminal prosecutions.41 Lydiah Kemunto Bosire and Gabrielle Lynch’s empirical findings illustrate how NGO discourse shapes public perceptions, noting, ‘As a result of mixed messages from CSOs [civil society organisations], together with limited government interest, donor support and media coverage, most ordinary Kenyans knew very little about the Commission [TJRC] beyond the headlines about its chairman.’42 Nonetheless, NGOs helped in documentation of crimes and victims, and created public deliberations on the ICC intervention.43 More generally, NGO roles in Kenya’s transitional justice process were largely influenced by local political actors and international pressure.44 The Kenyan case shows that NGO coalitions have a big potential to influence public perceptions in transitional justice and the legitimacy of international justice mechanisms before the affected community. However, some African scholars are cautious about the legitimacy of some domestic NGOs, suggesting that they may not reflect the popular views of the affected communities in transitional justice contexts like Kenya.45 Transnational networks of NGOs had a significant influence in the prosecution of former Chadian President Hissène Habré before the Extraordinary African Chambers in Senegal.46 In what he calls ‘networked justice’, Sperfeldt argues that the NGO networks intended to use the Habré trial as legal precedent to advance universal

36

Ibid., p. 40. Interview with David M. Crane, Founding Chief Prosecutor of the SCSL, 1 March 2021. 38 See Hansen and Sriram 2015. See also Jayasinghe and Birkett 2014. 39 Slye 2018, p. 243. 40 Bilchitz 2020, pp. 210–235. 41 Bosire and Lynch 2014, pp. 256–258. 42 Ibid., p. 275. 43 Ibid., p. 276. 44 Hansen and Sriram 2015. 45 Okafor and Ngwaba 2015, p. 102. 46 See Brody 2015. See also Human Rights Watch 2006. 37

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jurisdiction.47 Similarly, domestic NGOs often have to implement the mandates of their international partners.48 This challenge raises a need for empirical assessment of NGO roles in international criminal justice, as one of the ways in which to understand hegemonic structures. Finally, the positive complementarity agenda presents another ground for NGOs to legitimise their work. For example, the involvement of the ICC in Colombia indicates a more formal and practical relationship between the court and NGOs.49 Specifically, NGOs play a pivotal role in monitoring Colombia’s compliance with its obligations under the ICC Statute.50 Nonetheless, Marina Aksenova is also concerned about the potential for different local actors to use international criminal justice to further their agendas against the peace process in Colombia.51 This concern raises a need to analyse how NGOs engage with the ICC’s complementarity regime. Against the background of the criticisms against NGOs, crucial questions arise concerning their impact on the legitimacy of international criminal justice mechanisms. The next section will make a qualitative analysis of the situation in Uganda, to identify the constructive role that NGOs play in the (de)legitimisation of international criminal justice.

8.3 (De)Legitimising International Criminal Justice in Contested Spaces of Uganda This section will show how domestic NGOs (de)legitimise international criminal justice in Uganda in four ways: First, it will show local NGO discourses legitimised the ICC intervention as a form of transitional justice. Second, it will reveal how domestic NGOs adopted and implemented international criminal justice through networks and coalitions. Third, it will show how domestic NGOs legitimise international criminal justice through the complementarity framework. Finally, the section will show how NGOs delegitimise international criminal justice, in the discussions on alternative dispute resolution mechanisms. More broadly, the analysis will make a connection to the broader articulation of hegemony and counter-hegemonic structures in international criminal justice.

47

Sperfeldt 2017. van der Merwe and Brankovic 2016, p. 230. 49 Ainley 2015, p. 49. 50 Aksenova 2018, pp. 264–265. 51 Ibid., pp. 267–268. 48

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8.3.1 Legitimising International Criminal Justice (1): Local NGOs Work on and with Victims and Affected Communities As discussed in the introductory section of this chapter, the ICC intervention in Uganda and subsequent prosecution of Dominic Ongwen elicited mixed views in Northern Uganda, as some people considered him as a victim of the LRA.52 As a result, the ICC intervention had to be justified as a viable form of justice for the victims and affected communities. Besides the local outreach staff, the ICC worked through intermediaries like local NGOs, community leaders and victims’ representatives.53 Organisations such as the Justice and Reconciliation Project (JRP) and the Refugee Law Project (RLP) worked directly with the affected communities. JRP was particularly involved in the understanding of traditional justice processes, but also engaged extensively in the documentation of atrocities and re-integrating former LRA combatants within the societies in Northern Uganda.54 It can be argued that the outreach work of the domestic NGOs contributed to the legitimacy of the ICC. As one local leader noted: Other NGOs like the DRC, Refugee Law project and others that I cannot remember now came to us and trained us on our human rights and also the different processes that take place in a court hearing. They also told us that if Ongwen is found guilty then we will be compensated.55

Another issue that required NGO intervention related to the ‘Peace versus Justice’ debate, which also created dilemmas for local NGOs that depended on donor funding for their activities. These dilemmas are revealed through an intriguing set of NGO discourses. Initially, there were strong voices of dissent arising from local NGOs against the ICC intervention in Uganda. This created an intimidating environment for domestic NGOs, as ICC proponents and some INGOs were critical of the local peace initiatives. As observed from discussions during the Review Conference of the ICC Statute in 2010, the Peace versus Justice debate polarised the engagements among the different stakeholders in the transitional justice process.56 One NGO staff described the tensions this way: ‘Many NGOs found themselves in a position where they didn’t have a concrete position.’57 Another local NGO representative recalled the tense environment, noting: ‘some of us were accused of

52

See Branch 2017; Baines 2009. See Ullrich 2016, p. 544. 54 See JRP’s website: https://www.justiceandreconciliation.org/. Accessed 11 April 2021. 55 Interview with local leader, 26 March 2021. 56 See Hovil 2010, p. 2. 57 Interview with NGO founder, 26 February 2021. 53

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undermining ICC work.’58 This affirms similar observations made by Clark, that noted a gradual change of approach among local NGOs, aligned towards the ICC.59 The fact that the ICC intervention was based on a self-referral by the Ugandan government also presents a need to analyse the court’s legitimacy before the affected communities. As recalled by one NGO staff, ‘when the ICC centered their work around the president, this undermined their legitimacy in Northern Uganda.’60 The local NGOs stood as the voice of the affected people. Therefore, despite the selfreferral by Ugandan government, the Court had to engage more with the affected communities to enhance its legitimacy. It has been noted that ‘NGO criticisms strengthened the way the ICC approached it [the situation in Uganda] …’.61 As the ICC case against Dominic Ongwen progressed, NGOs kept the affected communities and victims updated about the progress of the trial. According to a local leader: They [NGOs] supported them [victims] to participate in the process because the Ugandan government alone would not be able to support the whole community to be part of the process. Some even supported them to go to the Hague to give their views on the case.62

The above findings are also affirmed in the response of an NGO representative, who noted that, ‘If Ongwen is convicted, people expect compensation from the ICC. That has built improper narratives from people and witnesses …’.63 In theory, local NGOs also supported the ICC with an expectation that it would offer financial assistance through reparations. Against the background of these experiences, it can be argued that NGOs complemented the ICC’s work in the contested spaces of justice in Northern Uganda, where the government’s priorities had shifted from prosecution towards peace processes. Local NGO discourses and work on the ICC enhanced the sociological legitimacy of the court before the affected communities. For instance, the Uganda Victims’ Foundation (UVF) worked directly with victims of the LRA in Northern Uganda. While some NGO reports stressed the need for victims’ reparations,64 others advocated for more outreach and victim participation activities in the trials.65 As observed in Cambodia, NGO discourses and victimoriented work in transitional justice processes create key entry points for international criminal justice.66 Nonetheless, it is important that the courts engage directly with the victims. An ICC staff member noted, ‘I can see many NGOs speaking on behalf of victims, but it is important to hear the voices of the victims themselves.’67 58

Interview with NGO Representative, 26 February 2021. Clark 2015, p. 8. 60 Interview with NGO founder, 26 February 2021. 61 Interview with NGO founder, 26 February 2021. 62 Interview with local leader, 2 April 2021. 63 Interview with NGO Representative, 26 February 2021. 64 See, for example, Kasozi 2021; see also Kihika and Kallweit 2020. 65 See Human Rights Watch 2017. 66 Elander 2020, p. 130; Killean 2018, pp. 282–284. 67 Interview with ICC staff, 29 April 2021. 59

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Another important legitimisation paradigm can be illustrated from the operations of the ICC’s Trust Fund for Victims (TFV) in Northern Uganda. The fund has an office in Uganda where they implement their assistance mandate. Since the start of its Uganda operations in 2008, the TFV has more than 25 domestic NGOs as implementing partners, whose work has benefited more than 56,000 people across Northern Uganda.68 The fund also created an opportunity for domestic NGOs to engage in victims’ support. According to an NGO representative, ‘NGOs had to strategise their work and work around the ICC.’69 Besides the direct assistance to victims, the findings show that NGO discourses helped to situate the potential reparative remedies from the ICC within the aspirations of the victims. Crucially, it can be argued that the victim-oriented work and discourses constituted an intricate link between the ongoing transitional justice process and the enterprise of international criminal justice. The conviction of Ongwen in February 2021 opens avenues for further examination of the legitimacy of the ICC in Uganda. It will be interesting to explore how local NGO articulate victims’ interests following the ICC’s reparations order. The TFV’s reparations mandate will be an important avenue for local NGOs to engage in the implementation of awards for reparations. Whilst it is practically impossible for all victims to receive individual reparations, the implementation of collective awards would have an effect of legitimising the ICC intervention and subsequent trial of Ongwen. Generally speaking, for as long as the victims and war-affected communities continue to be involved in the subsequent ICC and TFV work, international criminal justice will remain a central element of post-war transitional justice in Northern Uganda.

8.3.2 Legitimising International Criminal Justice (2): NGO Networking and Joining Forces Another approach for the legitimisation of the ICC’s work is highlighted in the work of both domestic and transnational NGO Coalitions. At the domestic level, the Northern Ugandan Transitional Justice Working Group (NUTJWG) is a collation of over sixty NGOs formed in 2008 to engage with transitional justice mechanisms.70 Workshops convened under the auspices of NUTJWG aimed at ‘building consensus among civil society in northern Uganda to promote collective and collaborative engagement on issues of transitional justice’.71 68

Interview with TFV Programme Manager for Uganda, 23 March 2021; see also the TFV website: https://www.trustfundforvictims.org/en/locations/northern-uganda#:~:text=The% 20TFV%20has%20been%20implementing,6%2C006%20direct%20beneficiaries%20in%202018. Accessed 13 April 2021. 69 Interview with NGO Representative, 26 February 2021. 70 See Justice and Reconciliation Project 2009, p. 7. 71 Ibid., p. 9.

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What do we make of these NGO coalitions within the prism of international criminal justice? In Northern Uganda, the coalitions hosted consultative dialogues within the affected communities to reflect on indicted Ongwen’s ‘Justice Dilemma’, emphasising the importance of both the ICC and domestic justice mechanisms.72 NUTJWG’s work diminished significantly as the ICC case progressed.73 One possible reason for the redundancy of the coalition can be attributed to shifting donor and international NGO priorities in the preceding years, as revealed earlier from Macdonald’s empirical work in Northern Uganda.74 Key priorities among NGO networks are reflected in the victims’ participation process at the ICC. As one local leader and NGO represented noted: Many of the international partners wanted the victim’s voices to be heard and some of them even facilitated the victims to go to the Hague so that they can be part of the process. They also wanted the court to put in consideration of the victim’s feelings. Some victims were also facilitated by the court so that they can watch the trial and be a part of it.75

NGO representatives from UVF participated in meetings of the Assembly of States Parties (ASP) to the ICC.76 The UVF facilitates dialogues and ‘Victim Empowerment Training’.77 It is important to note that due to the sensitivity about the ICC intervention, UVF operated under a broad coalition of NGOs named Uganda Victims’ Rights Working Group (U-VRWG). A founding member of UVF noted, ‘There were fears of retaliation when talking about the ICC in the North.’78 On a global level, the victims work was part of a wider Victims’ Rights Working Group (VRWG) hosted by REDRESS in London. Crucially, the issue of victims’ rights and justice remained central within the discourses and work of NGO networks. The Ugandan Coalition for the International Criminal Court (UCICC) was formed in 2004 and hosted by the Human Rights Network-Uganda (HURINET–U). It was envisioned as a broad network ‘to bring together key players in civil society, government and the international community to pursue criminal accountability for the victims in Northern Uganda, as well as endorse a strategy to be employed in the campaign for the ICC in Uganda.’79 There were contestations among local NGOs regarding who should host the UCICC.80 Another critical observation regards the work of the coalition as the ICC case progressed. According to one of its former coordinators, ‘the coalition was just implementing activities, yet it was supposed to be synergising NGO efforts.’81 This 72

See IFAIR 2015. Interview with NGO representative, 2 March 2021. 74 Macdonald 2019, p. 233. 75 Interview with local leader and NGO representative, 6 March 2021. 76 Interview with a Legal Representative for Victims in the Dominic Ongwen case, 12 April 2021. 77 TrustAfrica 2019. 78 Interview with founding member of UVF, 12 March 2021. 79 See UCICC statement, https://asp.icc-cpi.int/iccdocs/asp_docs/ASP15/GenDeba/ICC-ASP15GenDeba-NGO-UCICC-ENG.pdf. Accessed 26 August 2021. 80 Interview with a former Coordinator of the UCICC, 2 March 2021. 81 Ibid. 73

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line of work suggests an implicit legitimisation strategy for the ICC intervention amidst contested spaces. It also opens up space for closer analysis of the interaction between NGO networks and international criminal justice. During the Review Conference of the ICC Statute that took place in 2010 in Uganda, the UCICC directly engaged with both ICC staff and delegations. Among other goals, they aimed ‘to bring ICC closer to the people affected’.82 In addition, local events debunked the perception of the ICC as biased against African countries.83 One interesting aspect relates to the membership of the UCICC.84 From a normative perspective, the UCICC was instrumental in the ratification and domestic implementation of the ICC Statute in Uganda.85 At the time of writing this chapter, the UCICC was technically not in operation. Two reasons are provided for this situation: First, its operations were largely carried out by one NGO, HURINET– U, which created conflicts among member NGOs.86 The other critical aspect relates to the funding. As explained by a former Coordinator, ‘The priorities of donors changed along the way … There were some serious challenges.’87 This is akin to Kendall’s observation regarding the SCSL, in what she terms ‘donors’ justice.88 The shifting of local NGO priorities in line with external donor preferences has implications on the mode of justice. One can thus argue that NGO networks are implicitly tied to the same hegemonic structures that promote international criminal justice as a standard form of accountability. The International Center for Transitional Justice (ICTJ) has operated in the country since 2005, mainly offering technical support and capacity building.89 Similarly, Avocats Sans Frontiers (ASF) works in the thematic areas of victims and reparations under the transitional justice process.90 Besides the technical capacity building, some international NGO initiatives are akin to the donor–beneficiary relationships. In 2012, Invisible Children, an international NGO based in the United States, launched a global video campaign named Kony 2012, calling for international intervention in the Northern Ugandan situation. One might argue that such campaigns amplify the voices of the victims.91 However, we can also draw critical observations in relation to the ICC agenda, as the Kony 2012 campaign was launched around the 82

See the Coalition for the International Criminal Court website: https://www.coalitionfortheicc. org/country/uganda. Accessed 12 April 2021. 83 Coalition for the International Criminal Court 2017. 84 Interview with a former Coordinator of the UCICC, 2 March 2021. 85 Interview with a former Coordinator of the UCICC, 12 March 2021. The country adopted the International Criminal Court Act (ICC Act 2010) in June 2010. 86 Interview with a former Coordinator of the UCICC, 2 March 2021. 87 Interview with a former Coordinator of the UCICC, 12 March 2021. 88 Kendall 2011, p. 587. 89 See ICTJ-Uganda website: https://www.ictj.org/our-work/regions-and-countries/uganda. Accessed 10 April 2021. 90 See the ASF website: https://www.asf.be/blog/category/country/ouganda/. Accessed 10 April 2021. See also ASF Policy Brief 2019, pp. 3–4. 91 One common theme in the interviews with local NGOs and victim representatives was that NGOs raised the hopes for victims to achieve justice at the ICC.

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time of the referral of the Ugandan situation to the ICC. As has been revealed by other scholars, the campaign sought to enhance the ICC agenda in Uganda, promoting a globalised justice.92 As the Dominic Ongwen case progressed, international NGOs further engaged in support for international criminal justice-oriented elements of transitional justice. For REDRESS, important aspects relate to the issue of reparations for victims. REDRESS works with local intermediaries to build capacity in the domestic accountability for international crimes.93 This intervention somewhat overlaps with that of ASF and ICTJ. Benjamin Gumpert, the lead prosecutor in the trial of Ongwen gives a mixed reaction regarding the role of NGOs during investigations and trial: The experience was mixed. Some NGOs were supportive and prepared to provide information and assistance, since they believed this would be for the benefit of their clients. Others were defensive and uncooperative. They did not always give reasons. My feeling was that it depended very much upon the pre-formed attitudes of influential NGO staff to the ICC and its work in Uganda.94

Crucially, we see a central role of NGOs in relation to the ICC situation in Uganda. One can thus argue that the NGO networks implicitly enhance the legitimacy of international criminal justice. The limited proximity and distance between the ICC and the affected communities open channels for a host of international NGOs to intervene in the situations. By serving as intermediaries of victims, NGO networks also enhance the legitimacy of the ICC, as a plausible site for justice.

8.3.3 Legitimising International Criminal Justice (3): NGOs’ Involvement in Domestic Proceedings Reflecting Complementarity Another way in which we can view the legitimisation of international criminal justice relates to the discourses and practices under the ICC’s complementarity approach. The ICC implements a positive complementarity approach, where it complements and supports domestic prosecutions, instead of serving as the primary option for justice.95 Within the complementarity framework, Uganda domesticated the ICC Statute into its legal regime, by enacting the International Criminal Court Act of 2010 (ICC Act). This development also lead to the creation of a hybrid court in form of the 92

For a more elaborate analysis, see Schwöbel-Patel 2021, pp. 151–178; Ten Kate and Nouwen 2018, pp. 46–62. 93 REDRESS 2020. 94 Interview with Benjamin Gumpert, Senior Trial Lawyer of the ICC Office of the Prosecutor, 6 May 2021. 95 See Burke-White 2008, pp. 54–57.

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International Crimes Division (ICD) in 2008.96 It is also important to note that the creation of a specialised court to try war crimes was initially proposed during the failed peace talks between the Ugandan government and the LRA in 2008. The ICC complementarity regime only served as a formal legal framework in which the proposal would be implemented. According to Oola: From the beginning, the success of the talks and the highly wrought contents of the agreements attracted pro-ICC funders to pour money into Uganda, seeing a potential case study for positive complementarity between the ICC and domestic peace processes.97

The ICD is, thus, perceived by many people in Northern Uganda as an extension of the ICC. As noted by a local journalist, ‘the ICD is the smaller version of the ICC which is done here in Uganda. They both try the same crimes but at different levels.’98 The complementarity regime and the new court thus presented a ground for NGO involvement in the domestic prosecution of international crimes. Just like the case of Dominic Ongwen, the trial of Thomas Kwoyelo before the ICD is an important marker in Uganda’s transitional justice process. Kwoyelo was a commander under the LRA who was arrested and prosecuted at the ICD for atrocities he committed in Northern Uganda. His trial was also seen as an implementation of the ICC complementarity regime.99 Since the start of the Kwoyelo trial in 2011, there have been multiple delays, mainly due to the Ugandan government’s lack of interest in criminal prosecution as a transitional justice approach, but also the lack of a relevant legal framework.100 The court was also perceived as an international court meriting special support, unlike other courts in Uganda. A prosecutor working within the Department of International Crimes in the office of the Director of Public Prosecutions (DPP) is critical about the allocation of huge financial resources towards one case.101 Similarly, the Registrar of the ICD noted how ‘some people argue that the ICD is just a Division of the High Court like any other Division and not an international ‘Court’.102 The above concerns were raised during a conference organised by ASF and UCICC in 2012. Since Uganda follows a common law legal tradition, a trial based on international standards would require the adoption of new rules and procedures, especially in relation to victims’ participation. The limited domestic capacity thus created a need for external interventions in order to pursue justice for victims. So, what do we make of NGO work within the prism of this complementarity framework? Both domestic and international NGOs play a critical role in both the operations of the ICD and the prosecution of Kwoyelo. International organisations such as ASF 96

See the High Court (International Crimes Division) Practice Direction, Legal Notice No. 10 of 2011, Section 6(1). 97 Oola 2010, p. 9. 98 Interview with a journalist based in Uganda, 8 April 2021. 99 Moffett 2016, p. 521; Macdonald and Porter 2016, p. 711. 100 Interview with criminal lawyer, 3 March 2021. 101 Interview with lawyer, 3 March 2021. 102 Tadeo 2012, pp. 8–9.

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and the ICTJ helped in the drafting of the court’s rules of procedure and technical capacity building by training judges and lawyers. Justice Rapid Response (JRR) provided direct technical support to the prosecutors,103 while REDRESS supported the victims’ lawyers to collect additional evidence.104 This work was implemented through its local intermediaries Emerging Solutions Africa (ESA) and the UVF. An NGO representative pointed out that, ‘at times, we help the court to do the outreach …’. It is important to note that when Kwoyelo’s trial commenced, there were no rules to govern how victims would participate in the case. Against this background, ASF, together with ICTJ and Victim Support Initiative (VSI) developed a criterion on who would be considered a victim in 2018.105 Nonetheless, court outreach and engagement with victims enhances the sociological legitimacy of the court in the affected communities, as also observed in Sierra Leone.106 In sum, the close relationships between domestic and international NGOs are observed to enhance international criminal justice, in contested spaces of justice. The findings affirm what Schwöbel-Patel terms ‘marketised global justice’,107 as NGOs set out to promote specific mechanisms to counter impunity and mass atrocities. The section has revealed that NGO interventions in the Ugandan context embody a legitimisation of the authority of international criminal justice. The way in which NGOs engage with the ICC and domestic prosecution is shaped by their relations with donors and networks. As NGOs articulate victims’ interests, they enhance the legitimacy of the institutions as tenable forums for post-conflict justice.

8.3.4 Delegitimising International Criminal Justice: NGOs and Alternative Forms of Justice The key question relates to how alternative dispute resolution in terms of traditional justice and reconciliation undermines the legitimacy of the ICC in Uganda. A central feature of conflict resolution among the Acholi community is the element of reconciliation between the perpetrators and affected communities, with elements of compensation for harm done through the Mato Oput ritual.108 Similarly, the Langi communities practice Kayo Cuk, with a central goal of reconciliation. JRP and the Institute for Justice and Reconciliation (IJR) were pivotal in engaging victims of the LRA, on the relevance of traditional justice mechanisms.109 According to Boniface Ojok, a co-founder of JRP, it was vital to mobilise local actors to debate about the prevailing justice systems, with the use of traditional justice as 103

Justice Rapid Response 2019. Interview with NGO Representative, 26 March 2021. 105 Interview with NGO Representative, 20 March 2021. 106 Interview with David M. Crane, Founding Chief Prosecutor, 1 March 2021. 107 See generally Schwöbel-Patel 2021. 108 Branch 2014, p. 618. 109 See the JRP’s website: https://www.justiceandreconciliation.org/. Accessed 11 April 2021. 104

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a starting point.110 In fact, JRP published the very first report on Dominic Ongwen’s double victimhood in 2008, which also raised questions regarding the effectiveness of individual criminal responsibility mechanisms within the context of collective victimisation.111 As the ICC had issued arrest warrants for Ongwen in 2005, such questions and reports revealed the limitations of international criminal justice as a response to the LRA atrocities. By articulating traditional practices as viable modes of transitional justice, one can argue that NGOs delegitimised the ICC intervention in Northern Uganda. Generally speaking, The Hague based justice system of the ICC is incomparable with alternative dispute resolution in the form of traditional justice and reconciliation. Another delegitimisation angle is observed in the work of the Coalition for Reconciliation in Uganda (CORU), which emphasised reconciliation and healing. CORU was established by NGOs, academics, religious leaders and other actors in 2006, as a forum to build reconciliation in Northern Uganda.112 The NGOs proposed a National Reconciliation Bill, while maintaining strong discourses against the ICC intervention. Oola highlights that, ‘It was clear to many CSOs at this stage that formal trials would not address the full extent of impunity in Uganda.’113 However, just like the NUTJWG, CORU became redundant following the shifting of many donors towards the domestic prosecution. As one local leader revealed: The availability of resources makes certain modes of justice be preferred like for example the traditional leaders don’t even have facilities to conduct their local reconciliation processes and yet the court process have very many parties willing to support[them] making it [international criminal justice] more preferred than the traditional ones.114

The failure of such NGOs is one way to illustrate why it is important to build strong NGO networks in the counter-hegemonic structures. The element of traditional justice was subdued by dominant international NGO discourses on accountability through international criminal justice. The central focus on criminal accountability has been criticised by scholars, suggesting the need for legal pluralism within contexts like Northern Uganda.115 In the opinion of the author, traditional forms of justice are crucial in the restoration of broken post-war communities, unlike retributive criminal justice. Against this background, it is imperative to acknowledge the work of NGOs in the articulation of traditional justice within the affected communities. In the same way, NGO networks have the potential to contribute to counter-hegemony strategies against the dominant international criminal justice where there are alternative modes of justice. In sum, the analysis in this section has shown instances when NGOs enhance the legitimacy of international criminal justice, by evaluating their work around the ICC 110

Interview with a co-founder of JRP, Boniface Ojok, 2 March 2021. Justice and Reconciliation Project 2008. 112 Oola 2010, p. 5. 113 Ibid., p. 6. 114 Interview with local leader, 4 April 2021. 115 Lubaale 2020, p. 20. 111

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and domestic accountability mechanisms. The section has also shown ways in which local NGOs delegitimise or limit the legitimacy of international criminal justice, by advocating for traditional justice and reconciliation. This distinction between the NGO work is helpful in order to highlight counter-hegemonic strategies. In any case, we can also argue that NGOs, themselves, cannot enjoy legitimacy, as they are dependent on fundraising for most of their work in transitional justice. One takeaway is that NGO work has the potential to both enhance as well as undermine the legitimacy of international criminal justice depending on their strategies.

8.4 Conclusion The chapter has evaluated the role of NGOs in international criminal justice. The empirical analysis has revealed that the role of NGOs regarding the legitimacy of international criminal law and the ICC in particular is ambiguous: NGOs (de)legitimised international criminal justice in Uganda in four ways: First, local NGO discourses and interaction with affected communities legitimised the ICC intervention as a form of transitional justice. Second, the analysis has shown that domestic NGOs adopted and implemented international criminal justice through networks and coalitions. Third, we have seen that NGOs legitimise international criminal justice through the complementarity framework. Finally, and pointing in a different direction, the chapter has also revealed that NGOs delegitimise international criminal justice, in particular in the discussions on alternative dispute resolution mechanisms. The implementation of the ICC’s complementarity framework also means that counter-hegemonic voices—of those opposed to the dominant Western-centric global governance—are less likely to have an impact in international criminal justice. As has been revealed in the chapter, domestic NGO work is subjected to global governance forces, thus shifting priorities where there are contestations between criminal justice and other forms of transitional justice. Ultimately, the chapter has argued that the sociological legitimacy of international criminal justice mechanisms is dependent on NGO discourses with the affected communities. We have seen that there are mixed debates regarding the role of the ICC and ICD in the Ugandan transitional justice context. Both institutions represent a dominant international criminal justice enterprise, associated with lengthy trials and victims’ rights discourses. However, traditional justice and reconciliation still occupy a central place within the affected post-war communities, as observed from local NGO discourses. What we can gain from the debates is that legal pluralism is vital within contested spaces of justice.

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References Ainley K (2015) The Responsibility to Protect and the International Criminal Court: Counteracting the Crisis. Int Affairs 91:37–54 Aksenova M (2018) The ICC Involvement in Colombia: Walking the Fine Line Between Peace and Justice. In: Bergsmo M, Stahn C (eds) Quality Control in Preliminary Examination, Volume 1. Torkel Opsahl Academic EPublisher, Brussels, pp 257–282 Avocats Sans Frontières (2019) Reflections on Victim Participation Before the International Crimes Division in Uganda. Policy Brief, Avocats Sans Frontières, Brussels Baines EK (2009) Complex Political Perpetrators: Reflections on Dominic Ongwen. The J Mod African Studies 47:163–191 Bilchitz D (2020) Socio-Economic Rights and Expanding Access to Justice in South Africa: What Can Be Done? In: Dann P et al. (eds) The Global South and Comparative Constitutional Law. Oxford University Press, Oxford, pp 210–235 Bosire L, Lynch G (2014) Kenya’s Search for Truth and Justice: The Role of Civil Society. Int J Transitional Justice 8:256–276 Branch A (2014) The Violence of Peace: Ethnojustice in Northern Uganda. Development and Change 45:608–630 Branch A (2017) Dominic Ongwen on Trial: The ICC’s African Dilemmas. Int J Transitional Justice 11:30–49 Brankovic J, van der Merwe H (eds) (2018) Advocating Transitional Justice in Africa: The Role of Civil Society. Springer, Cham, pp 1–226 Brett P, Gissel L (2018) Explaining African Participation in International Courts. African Affairs 117:195–216 Brimelow K et al. (2016) Shaping the Law: Civil Society Influence at International Criminal Courts. International Law Programme Meeting Summary, Chatham House, London, pp 1– 8. https://www.chathamhouse.org/sites/default/files/events/160125-meeting-summary-shapinglaw-civil-society-influence-international-criminal-courts.pdf. Accessed 12 August 2021 Brody R (2015) Bringing a Dictator to Justice: The Case of Hissène Habré. J Int Crim Justice 13:209–217 Buckel S, Fischer-Lescano A (2009) Gramsci Reconsidered: Hegemony in Global Law. Leiden J Int Law 22:437–454 Burke-White W (2008) Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice. Harvard Int Law J 49:53–108 Christensen MJ (2020) The Creation of an Ad Hoc Elite and the Value of International Criminal Law Expertise on a Global Market. In: Heller KJ et al. (eds) The Oxford Handbook of International Criminal Law. Oxford University Press, Oxford, pp 89–105 Clark P (2015) ‘All These Outsiders Shouted Louder Than Us’: Civil Society Engagement with Transitional Justice in Uganda. Working Paper SiT/WP/03/15 Security in Transition: 1–15 Coalition for the International Criminal Court (2017) ICC Challenges: Perspectives from Uganda’s, Student Community. https://www.coalitionfortheicc.org/news/20170927/icc-challenges-perspe ctives-ugandas-student-community. Accessed 12 April 2021 Cody S (2017) Procedural Justice, Legitimacy, and Victim Participation in Uganda. In: Hayashi N, Bailliet CM (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press, Cambridge, pp 376–398 de Hoon M (2017) The Future of the International Criminal Court. On Critique, Legalism and Strengthening the ICC’s Legitimacy. Int Crim Law Rev 17:591–614 Elander M (2020) Visualizing Law and Justice at the Extraordinary Chambers in the Courts of Cambodia. American Society of Int Law Unbound 14:128–132 Glasius M, Meijers T (2012) Constructions of Legitimacy: The Charles Taylor Trial. Int J Transitional Justice 6:229–252 Hansen TO, Sriram CL (2015) Fighting for Justice (and Survival): Kenyan Civil Society Accountability Strategies and Their Enemies. Int J Transitional Justice 9:407–427

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Haslam E, Edmunds R (2013) Managing a New ‘Partnership’: ‘Professionalization’, Intermediaries and the International Criminal Court. Crim Law Forum 24:49–85 Heller KJ et al. (2020) Introduction. In: Heller KJ et al. (eds) The Oxford Handbook of International Criminal Law. Oxford University Press, Oxford Hovil L (2010) The ICC’s Engagement in Uganda from a Local NGO Perspective. International Refugee Rights Initiative, Kampala Human Rights Watch (2006) A.U. Summit: African NGOs Urge Justice in Habré Case: African Union Must Send Chadian Ex-Dictator to Trial. Human Rights Watch, New York. https://www. hrw.org/news/2006/01/17/au-summit-african-ngos-urge-justice-habre-case. Accessed 12 May 2021 Human Rights Watch (2017) Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ongwen Case and Beyond. Human Rights Watch, New York. https://www.hrw.org/report/2017/ 08/30/who-will-stand-us/victims-legal-representation-icc-ongwen-case-and-beyond. Accessed 13 April 2021 ICC (2014) Guidelines Governing the Relations Between the Court and Intermediaries for the Organs and Units of the Court and Counsel Working with Intermediaries. ICC, The Hague. https://www.icc-cpi.int/iccdocs/lt/GRCI-eng.pdf. Accessed 5 May 2021 ICC (2021) Dominic Ongwen Declared Guilty of War Crimes and Crimes Against Humanity Committed in Uganda. ICC, The Hague. https://www.icc-cpi.int/Pages/item.aspx?name=pr1564. Accessed 5 April 2021 IFAIR (2015) Ongwen’s Justice Dilemma. IFAIR, Berlin. https://ifair.eu/2015/03/18/ongwens-jus tice-dilemma/. Accessed 12 April 2021 Jayasinghe N, Birkett D (2014) A War Crimes Tribunal for Sri Lanka?: Examining the Options Under International Law. Case W Reserve J Int Law 46:567–587 Justice and Reconciliation Project (2008) Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen. Justice and Reconciliation Project (JRP) Field Note 7, Gulu Justice and Reconciliation Project (2009) Gulu NGO Forum Annual Report. http://justiceandre conciliation.com/wp-content/uploads/2009/01/JRP_AnnualReport_2009-SM.pdf. Accessed 11 April 2021 Justice Rapid Response (2019) Uganda: Victims Are Central to Prosecuting Mass Atrocity Crimes’ Justice Rapid Response, Geneva. https://www.justicerapidresponse.org/uganda-victims-are-cen tral-to-prosecuting-mass-atrocity-crimes/. Accessed 13 April 2021 Kasozi OB (2021) Does the International Criminal Court’s Verdict Offer Psychological Relief for Dominic Ongwen’s Victims in Northern Uganda. Refugee Law Project, Kampala. https:// refugeelawproject.org/index.php?option=com_content&view=category&id=27&Itemid=101. Accessed 13 April 2021 Kendall S (2011) Donors’ Justice: Recasting International Criminal Accountability. Leiden J Int Law 24:585–606 Kihika S, Kallweit E (2020) Building Blocks for Reparations: Providing Interim Relief to Victims Through Targeted Development Assistance. International Center for Transitional Justice, New York. https://www.ictj.org/sites/default/files/ICTJ_Report_Uganda_Interi mRelief_Web.pdf. Accessed 21 July 2021 Killean R (2018) Constructing Victimhood at the Khmer Rouge Tribunal: Visibility, Selectivity and Participation. Int Rev Victimology 24:273–296 Kirabira TR (2021) Surrender of Ali Kushayb and Paul Gicheru: New Perspectives in Africa’s Relationship with the ICC. NYU J Int Law & Politics 54:23–32 Klamberg M (2020) Rebels, the Vanquished, Rogue States and Scapegoats in the Crosshairs: Hegemony in International Criminal Justice. In: Bergsmo M et al. (eds) Power in International Criminal Justice. Torkel Opsahl Academic EPublisher, Brussels, pp 623–649 Krut R (1997) Globalization and Civil Society: NGO Influence in International Decision-Making. United Nations Research Institute for Social Development, Discussion Paper No. 83: 1–50 Lohne K (2019) Advocates of Humanity: Human Rights NGOs in International Criminal Justice. Oxford University Press, Oxford

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Lubaale E (2020) Legal Pluralism as a Lens through Which to Appreciate the Role and Place of Traditional Justice in International Criminal Justice. J Legal Pluralism and Unofficial Law 52:180–202 Macdonald A (2019) ‘Somehow This Whole Process Became so Artificial’: Exploring the Transitional Justice Implementation Gap in Uganda. Int J Transitional Justice 13:225–248 Macdonald A, Porter H (2016) The Trial of Thomas Kwoyelo: Opportunity of Spectre? Reflections from the Ground on the First LRA Prosecution. Africa 86: 698–722 Moffett L (2016) Complementarity’s Monopoly on Justice in Uganda: The International Criminal Court, Victims and Thomas Kwoyelo. Int Crim Law Rev 16:503–524 Munkholm L et al. (2019) Conclusion: Transnationalisation and Legal Actors: Legitimacy in Question. In: Kristiansen BL et al. (eds) Transnationalisation and Legal Actors: Legitimacy in Question. Routledge, Abingdon, pp 230–245 Noortmann M (2019) NGOs in International Law: Reconsidering Personality and Participation (Again). In: Davies T (ed) Routledge Handbook of NGOs and International Relations, 1st edn. Routledge, Abingdon, pp 179–192 Nouwen S, Werner W (2015) Monopolizing Global Justice. J Int Crim Justice 13:157–176 Okafor O, Ngwaba U (2015) The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections. Int J Transitional Justice 9:90–108 Oola S (2010) The Coalition for Reconciliation in Uganda (CORU): Important Lessons for Proactive Civil Society Engagement in Catalyzing Transitional Justice Discourse. Peace Insight. https://peaceinsight.s3.amazonaws.com/media/images/wp-content/uploads/2010/09/Ste phen-Oola_TJ-Advocacy-in-Uganda.pdf. Accessed 13 May 2021 Otten J (2016) Narratives in International Law. KritV, CritQ, RCrit. Kritische Vierteljahresschrift Für Gesetzgebung Und Rechtswissenschaft / Critical Quarterly for Legislation and Law / Revue Critique Trimestrielle De Jurisprudence Et De Législation 99:187–216 REDRESS (2020) Not with Us: Strengthening Victim Participation in Transitional Justice Processes in Uganda. REDRESS, London. https://redress.org/wp-content/uploads/2020/07/Not-WithoutUs-Report-for-Web.pdf. Accessed 27 August 2020 Roach SC (2013) Multilayered Justice in Northern Uganda: ICC Intervention and Local Procedures of Accountability. Int Crim Law Review 13:249–268 Rodman K (2015) Intervention and the ‘Justice Cascade’: Lessons from the Special Court for Sierra Leone on Prosecution and Civil War. Human Rights Rev 16:39–58 Salmons J (2012) Designing and Conducting Research with Online Interviews. In: Salmons J (ed) Cases in Online Interview Research. SAGE Publications, London Salmons J (2016) Doing Qualitative Research Online. SAGE Publications, London Sander B (2019) The Expressive Turn of International Criminal Justice: A Field in Search of Meaning. Leiden J Int Law 32:851–872 Schabas W (2004) Internationalized Courts and Their Relationship with Alternative Accountability Mechanisms: The Case of Sierra Leone. In: Romano C et al. (eds) Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia. Oxford University Press, Oxford, pp 157–180 Schimmel N (2019) International Human Rights Law Responsibilities of Non-Governmental Organizations: Respecting and Fulfilling the Right to Reparative Justice in Rwanda and Beyond. Cambridge Int Law J 8:104–130 Schwöbel-Patel C (2021) Marketing Global Justice: The Political Economy of International Criminal Law. Cambridge University Press, Cambridge Slye R (2018) The Kenyan TJRC: An Outsider’s View from the Inside. Cambridge University Press, Cambridge Sperfeldt C (2017) The Trial Against Hissène Habré: Networked Justice and Reparations at the Extraordinary African Chambers. The Int J Human Rights 21:1243–1260 Stahn C (2012) Editorial: Between ‘Faith’ and ‘Facts’: By What Standards Should We Assess International Criminal Justice? Leiden J Int Law 25:251–282

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Stahn C (2018) Legacy in International Criminal Justice. In deGuzman M, Amann DM (eds) Arcs of Global Justice: Essays in Honour of William A. Schabas. Oxford University Press, Oxford, pp 271–287 Tadeo A (2012) Effecting Complementarity: Challenges and Opportunities: A Case Study of the International Crimes Division of Uganda. Avocats Sans Frontières, Brussels Ten Kate W, Nouwen S (2018) The Globalisation of Justice: Amplifying and Silencing Voices at the ICC. In: Handmaker J, Arts K (eds) Mobilising International Law for ‘Global Justice’. Cambridge University Press, Cambridge, pp. 46–62 TrustAfrica (2019) Strengthening Victim Participation in Accountability Processes: Learning from the Experiences of the Victim Support Initiative (VSI). TrustAfrica, Dakar. https://www.trusta frica.org/en/resource/news/item/3435-strengthening-victim-participation-in-accountability-pro cesses-learning-from-the-experiences-of-the-victim-support-initiative-vsi. Accessed 12 April 2021 Ullrich L (2016) Beyond the ‘Global–Local Divide’: Local Intermediaries, Victims and the Justice Contestations of the International Criminal Court. J Int Crim Justice 14:543–568 van der Merwe H, Brankovic J (2016) The Role of African Civil Society in Shaping National Transitional Justice Agendas and Policies. Acta Juridica 1:225–243

Tonny Raymond Kirabira is a Ph.D. researcher at the University of Portsmouth, United Kingdom. He holds an LL.M. in International Human Rights Law from the University of Notre Dame, USA, and a Bachelor of Laws degree from the Uganda Christian University, Mukono. Besides his legal practice in international law, his research focuses on transitional justice and international criminal prosecution.

Part III

(Counter-) Hegemony at the International Criminal Court

Chapter 9

The Global South and the Drafting of the Subject-Matter Jurisdiction of the ICC Taxiarchis Fiskatoris

Contents 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 International Criminal Justice as a Global South-Sponsored Counter-Hegemonic Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.1 The 1973 Apartheid Convention, and the 1989 Trinidad and Tobago Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.2 The Draft Code of Crimes Against the Peace and Security of Mankind . . . . . . . 9.3 The Travaux Préparatoires of the ICC Statute and the Marginalisation of the Global South . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The time between the Nuremberg and Tokyo Trials and the establishment of the ad hoc Tribunals for the former Yugoslavia and Rwanda is often considered as an unfortunate discontinuation of the international criminal justice project. Contrary to such perspective, this chapter shows that the above period marked a significant progression of international criminal law and justice, which had the opportunity to incorporate the views, concerns and needs of the enlarged international community that emerged from the decolonisation process. The majority of States and scholars from the Global South fervently promoted the international criminal justice project, believing in the counter-hegemonic potential of its subject-matter jurisdiction. The chapter argues that the limited subject-matter jurisdiction of the International Criminal Court failed to address the concerns of a substantial part of the international community, in the name of which the Court operates. In doing so, the drafters of the ICC Statute subverted the counter-hegemonic capacity of the institution and opened the door to potentially competing regional projects. Keywords ICC · Travaux Préparatoires · International crimes · Global South · Colonialism · Apartheid T. Fiskatoris (B) Philipps-Universität Marburg, Marburg, Germany e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_9

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9.1 Introduction The mainstream international criminal law scholarship approaches the subject-matter jurisdiction of the ICC as a straight line from Nuremberg to Rome via the ad hoc criminal Tribunals for the former Yugoslavia and Rwanda. The time in-between is often considered a hiatus, attributed to the rigidities of the Cold War.1 In reality though, the above period marked a significant progression of international criminal law and justice, which generated the opportunity to incorporate the views, concerns and needs of the enlarged international community that emerged from the decolonisation process. Yet, this opportunity was missed. The limited counter-hegemonic capacity of the Court’s jurisdiction ratione materiae readily becomes evident when the spotlight shines down on facts and events that disconnect the ‘unquestioned continuities’ of the mainstream narrative.2 In the first section, this chapter deals with three such discontinuities in the traditional narrative; namely the promotion of the idea of an international criminal court through the 1973 Apartheid Convention, the 1989 Trinidad and Tobago proposal for an international penal jurisdiction against trafficking in narcotic drugs, and the Global South sponsored review of the draft code of offences against the peace and security of mankind within the International Law Commission (ILC). Particular emphasis is laid on the views of States from the Global South, as documented in their comments about the draft code, and the opinions of ILC members from the Global South, as indicative of the opinions of ‘the most highly qualified publicists’ from the Global South. All of the above reveals that a significant part of the Global South has not considered international criminal justice as an imperialist project all along. On the contrary, it were States from the Global South that kept the project alive, when the Global North and mostly Western States were kicking the can down the road. One of the main reasons behind the support of the Global South to the international criminal justice project was its faith in the counter-hegemonic potential of its subject-matter jurisdiction. In the second section, the chapter will expose how the procedure followed at the final phase of the drafting history of the ICC Statute put delegations from the Global South in disadvantage and enabled the Global North to own back a project that had in the meantime acquired its own progressive dynamic. The concluding section argues that the limited subject-matter jurisdiction of the ICC failed to address the concerns of a substantial part of the international community, in the name of which the Court operates. In doing so, the drafters of the ICC Statute subverted the counter-hegemonic capacity of the institution and opened the door to potentially competing regional projects.

1 2

Cf. Schwöbel-Patel 2020, p. 770. Ibid.

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9.2 International Criminal Justice as a Global South-Sponsored Counter-Hegemonic Project 9.2.1 The 1973 Apartheid Convention, and the 1989 Trinidad and Tobago Proposal As soon as the judgement of the major war criminals was passed at Nuremberg, the United Nations General Assembly undertook the task to develop a code of offences against the peace and security of mankind, and examine the question of an international penal jurisdiction. The ILC elaborated in the 1950s a draft code that supplemented a concurrently elaborated by an ad hoc political body draft statute for an international criminal tribunal.3 The two projects were inextricably interconnected, with the former delimiting the subject-matter jurisdiction of the proposed tribunal. That did not stray too far from the catalogue of Nuremberg crimes. Nevertheless, despite strong opposition by renowned ILC members, such as Hersch Lauterpacht, the Cuban Francisco Garcia-Amador accomplished the addition of the offence of political or economic intervention in the internal or external affairs of a State by another State. On the pretext of the unresolved issue of the definition of aggression, both the draft code and the draft statute were very soon shelved. The road to Rome did not reopen in 1993, as it is often insinuated, but twenty years earlier, thanks to the faith of the Global South in the counter-hegemonic potential of an international penal jurisdiction. Between the last ILC draft and the adoption of the Apartheid Convention in 1973, the United Nations (UN) had welcomed over seventy new members, most of which former African colonies.4 Already since 1965, the changed voting balance within the United Nations had enabled the General Assembly to condemn in numerous resolutions the policies of racial discrimination and segregation as a crime against humanity. The recognition of apartheid as a crime against humanity was reaffirmed in the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.5 However, the Apartheid Convention went a step further. Echoing the similar dormant provision of the Genocide Convention, Article V stated that persons charged with the crime of apartheid ‘may be tried by a competent tribunal of any State Party to the Convention which may acquire jurisdiction over the person of the accused or by an international penal tribunal having jurisdiction with respect to those States Parties which shall have accepted its jurisdiction’.6 3

Draft Code of Offences against the Peace and Security of Mankind. In: ILC ‘Report of the International Law Commission on the Work of its Sixth Session’ (3 June–28 July 1954) UN Doc A/2693. 4 United Nations 2020, pp. 32–35. 5 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (adopted 26 November 1968, entered into force 11 November 1970) 754 UNTS 73. 6 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entered into force 18 July 1976) 1015 UNTS 243.

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The United Nations Commission on Human Rights swiftly advanced the project of a tribunal with the assistance of the Egyptian-American Professor Cherif Bassiouni. Bassiouni submitted by the end of 1980 a report suggesting the conclusion of a supplementary ‘Convention on the Establishment of an International Penal Tribunal for the Suppression and Punishment of the Crime of Apartheid and Other International Crimes’.7 The latter contemplated an international criminal court, vested with jurisdiction over ‘grave breaches’ of article II of the Apartheid Convention, but also over [a]ny other act or conduct deemed an international crime by virtue of a multilateral convention in force which declares that act or conduct to be an international crime or which requires its contracting parties to criminalize it under their national laws and to prosecute or extradite its perpetrators, provided that any party hereto who wishes the Tribunal to exercise such jurisdiction does so by virtue of a Supplemental Agreement to this Convention.8

The United Nations, including of course the members of the Global South, failed to grasp this opportunity. Nonetheless, the civil society kept the project alive, offering regularly amended versions of draft statutes. One of the non-governmental organisations that made it their goal to promote the idea was the Foundation for the Establishment of an International Criminal Court. It had been founded by Robert Kurt Woetzel and directed by his close friend Arthur Robinson.9 In 1989, in his capacity as Prime Minister of Trinidad and Tobago, Robinson formally requested the General Assembly to consider the establishment of an international criminal court with jurisdiction over transboundary trafficking in narcotic drugs and other offences.10 Trinidad and Tobago’s proposal gave renewed impetus to the project of an international criminal court. The proposal had nothing to do with the coincidence of the fall of the Berlin Wall, although the euphoria that accompanied the termination of the East-West divide multiplied its dynamic. The idea was thoroughly counter-hegemonic, the pragmatic reason behind it being a situation in which the Caribbean States had to succumb either to drug cartels or to powerful States. Their sovereignty was at risk not only by the violent and corrupting cartel activities, but also by a few States which, especially in the framework of the US-sponsored ‘war on drugs’, either ‘obliged them to extradite offenders and provide legal assistance or effective took control of domestic suppression of these crimes’.11 Throughout the legislative history of the ICC, and 7

See Bassiouni and Derby 1981, p. 523. Article IV, ‘Draft Convention on the Establishment of an International Penal Tribunal for the Suppression and Punishment of the Crime of Apartheid and Other International Crimes’. See Bassiouni and Derby 1981, p. 548. 9 See Glasius 2006, p. 10. 10 UNGA ‘Request for the Inclusion of a Supplementary Item in the Agenda of the Forty-fourth Session, International Criminal Responsibility of Individuals and Entities Engaged in Illicit Trafficking in Narcotic Drugs across National Frontiers and Other Transnational Criminal Activities: Establishment of an International Criminal Court with Jurisdiction over Such Crimes, Later dated 21 August 1989 from the Permanent Representative of Trinidad and Tobago to the United Nations addressed to the Secretary-General’ (21 August 1989) UN Doc A/44/195. 11 Boister 2009, p. 343. 8

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indeed after its operation, several States and scholars have suggested that ‘transnational crimes’ in the like of drug trafficking should better be addressed by domestic jurisdictions through an enhancement of international cooperation, dissembling the shortcomings of the indirect enforcement system, which largely privileges powerful States.12 The Trinidad and Tobago’s proposal was a clear manifestation of the Global South’s vision of international criminal justice as a system of solidarity towards the ‘unable’, when States from the Global North seem to give precedence to its function as an enforcement system upon the ‘unwilling’. The proposal signalled the home stretch of a decades long aspiration. The Sixth Committee adopted without a vote a draft resolution sponsored by seventeen States, nine of which Caribbean (Antigua and Barbuda, Bahamas, Barbados, Grenada, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago), four Central and South American (Belize, Costa Rica, Guyana, Suriname) two African (Comoros, Libyan Arab Jamahiriya) and two Pacific (Papua New Guinea, Vanuatu). In its Resolution 44/39 of 4 December 1989, the General Assembly requested the ILC to address within the topic of the draft code of crimes against the peace and security of mankind ‘the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes which may be covered under such a code, including persons engaged in illicit trafficking in narcotic drugs across national frontiers’.13

9.2.2 The Draft Code of Crimes Against the Peace and Security of Mankind The return of the draft code of crimes against the peace and security of mankind on the agenda of the ILC was equally a product of the commitment of the Global South to a project with a genuine counter-hegemonic potential. The formal request to the General Assembly, submitted in 1977, was sponsored by a Caribbean (Barbados), a Pacific (Fiji), an African (Nigeria), a Southeast Asian (the Philippines), a Middle Eastern (Syrian Arab Republic), and two Central American (Mexico and Panama) States. The General Assembly called for the comments of the UN Member States and organs. The West was in general unsupportive of the idea, insisting that the rationale behind the definition of aggression in Resolution 3314 was different from the Code’s purpose. Nevertheless, the Global South and Eastern Europe enthusiastically backed the initiative, proceeding to concrete proposals.

12

See Boister 1998, p. 36. UNGA ‘International Criminal Responsibility of Individuals and Entities engaged in Illicit Trafficking in Narcotic Drugs across National Frontiers and other Transnational Criminal Activities: Establishment of an International Criminal Court with Jurisdiction over such Crimes’ (4 December 1989) UN Doc A/Res/44/39.

13

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In written replies, as well as orally during the thirty-fifth and thirty-sixth sessions of the UNGA Legal Committee, many States from the Global South supported that colonialism and generally violations of the principle of self-determination should come within the ambit of the project. A significant part of the Global South and Eastern Europe further promoted the recognition, among others, of apartheid, racism, economic intervention and environmental destruction as acts falling into the scope of the code. Algeria, Afghanistan, Egypt, India, Senegal, and Yemen endorsed in return the Eastern European demand for the criminalisation of nuclear weapons and other violations of arms control treaties. Madagascar stressed that a code which did not include mercenarism ‘would lose all credibility in the eyes of the vast majority of the peoples of the third world’.14 The Philippines proposed the addition of economic crimes which ‘destabilize the economic viability and security of States, particularly those of the developing States’.15 In light of the received comments, the General Assembly, by Resolution 36/106 of 10 December 1981, decided to invite the ILC ‘to resume its work with a view to elaborating the draft Code of Offences against the Peace and Security of Mankind and to examine it with the required priority in order to review it, taking duly into account the results achieved by the process of the progressive development of international law’.16 The following year, the Commission appointed the Senegalese diplomat Doudou Thiam as Special Rapporteur for the subject. It took another year for the Special Rapporteur to present his first from a total of thirteen annual reports. According to the report, the purpose of the code should be ‘crimes that assail sacred values or principles of civilization’, such as human rights, the peaceful coexistence of nations, and the common heritage of mankind.17 In the view of the Special Rapporteur, aggression, slavery, colonialism, apartheid, and environmental crimes fulfilled the criteria and belonged to the code. In his second report Thiam provided a list of offences ‘recognized by the international community since 1954’, which he believed should complement the early draft.18 These were colonialism, apartheid, the taking of hostages, mercenarism, the threat or use of violence against internationally protected persons, serious disturbance of the public order of the receiving country by a diplomat or an internationally protected person, the taking of hostages organised or encouraged by a State, and acts causing serious damage to the environment. The Special Rapporteur regarded though the inclusion of economic aggression and the use of nuclear weapons quite unrealistic. In addition, during the discussion of the report, the advocates of the need for 14

UNGA Sixth Committee (35th Session, 10th Meeting) ‘Draft Code of Offences against the Peace and Security of Mankind’ (13 October 1980) UN Doc A/C.6/35/SR.10, para 17. 15 UNGA ‘Draft Code against the Peace and Security of Mankind. Report of the Secretary-General’ (22 September 1981) UN Doc A/36/416. 16 UNGA ‘Draft Code of Offences against the Peace and Security of Mankind’ (10 December 1981) UN Doc A/Res/36/106. 17 Thiam D, ‘First Report on the Draft Code of Offences against the Peace and Security of Mankind’ (1983) UN Doc A/CN.4/364. 18 Thiam D, ‘Second Report on the Draft Code of Offences against the Peace and Security of Mankind’ (1984) UN Doc A/CN.4/377.

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international criminalisation of the forcible establishment or maintenance of colonial domination found themselves arguing against those who claimed that colonialism belonged to the past. In his subsequent reports, the Special Rapporteur presented a first set of proposed draft articles that accommodated the views of Commissioners and States from the Global South. In 1989, the Commission provisionally adopted a draft article on ‘intervention in the internal or external affairs of a State by fomenting [armed] subversive or terrorist activities or by organizing, assisting or financing such activities, or supplying arms for the purpose of such activities, thereby [seriously] undermining the free exercise by that State of its sovereign rights’.19 The question whether forms of economic intervention should also be covered remained though unresolved, with proponents arguing that ‘that form of intervention was the one most frequently used because it was less visible and less spectacular, though often more effective, especially in relations between States of unequal power’.20 Furthermore, the Commission provisionally adopted a draft article determining that the ‘establishment or maintenance by force of colonial domination or any other form of alien domination contrary to the right of peoples to self-determination as enshrined in the Charter of the United Nations’ was a crime against peace.21 The article clearly went beyond traditional colonialism, covering new forms of subjugation and exploitation. The Commission also managed to provisionally adopt under the heading of crimes against peace an article criminalising ‘[t]he recruitment, use, financing or training of mercenaries by agents or representatives of a State for activities directed against another State or for the purpose of opposing the legitimate exercise of the inalienable right of peoples to self-determination as recognized under international law’.22 The provision did not recognise though mercenarism itself as a crime against peace, as many African States had asked in the Sixth Committee. In 1991, the ILC adopted on first reading the Draft Code of Crimes against the Peace and Security of Mankind as a whole. Because of the difficulties that the partition in crimes against peace, war crimes, and crimes against humanity posed to its mandate to extend the code’s scope taking into account the development of international criminal law since the 1950s, the Commission dared to abandon the Nuremberg model. It drafted instead separate articles for twelve distinct crimes against the peace and security of mankind: threat of aggression; intervention; colonial domination and other forms of alien domination; genocide; apartheid; systematic or mass violations of human rights; exceptionally serious war crimes; recruitment, use, financing and

19

Article 14, ‘Text of Draft Articles 13, 14 and 15, with Commentaries Thereto, Provisionally Adopted by the Commission at its Forty-first Session’. In: ILC ‘Report of the International Law Commission on the Work of its Forty-first Session’ (2 May–21 July 1989) UN Doc. A/44/10. 20 Ibid., Comment 6 to Article 14. 21 Ibid., Article 15. 22 Article 18, ‘Texts of Draft Articles 16, 18 and X, with Commentaries Thereto, Provisionally Adopted by the Commission at its Forty-second Session’. In: ILC ‘Report of the International Law Commission on the Work of its Forty-second Session’ (1 May–20 July 1990) UN Doc. A/45/10.

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training of mercenaries; international terrorism; illicit traffic in narcotic drugs; and wilful and severe damage to the environment.23 The creation by the UN Security Council of two ad hoc criminal Tribunals with limited subject-matter jurisdiction had an adverse effect on the contents of the draft code. More importantly, the detachment of the project on the establishment of an international criminal jurisdiction from the code led the Commission to follow the political considerations of the newly founded Ad hoc Committee, instead of serving its role as a forum of international legal experts entrusted with both the codification and progressive development of international law. In his thirteenth and last report, Doudou Thiam proposed the deletion of six of the twelve crimes included on first reading, namely the threat of aggression, intervention, colonial domination and other forms of alien domination, apartheid, the recruitment, use, financing and training of mercenaries, and the wilful and severe damage to the environment. In explaining the shrinkage of the list, the Special Rapporteur had to concede that ‘[o]ther factors, notably technical and political ones, [were] involved in the drafting and adoption of a Code of Crimes against the Peace and Security of Mankind’.24 He explained that many States had objected to the addition of those offences, but remarked that ‘third world countries had generally not expressed their views’.25 Some members of the Commission argued that the silence of the third world obviously meant the acceptance of the code as adopted on first reading. After all, it was highly unlikely that States of the Global South had consented to the obliteration of offences like apartheid, colonial domination, intervention, and mercenarism. Indeed, in the discussions held at the Sixth Committee, a clear majority of States representing the Global South and taking a position on the matter seemed disgruntled. Nonetheless, the Global South did not raise a concerted voice. Actually, a small part of it, driven by practical considerations or the hope that the list would expand in the future, backed the restrictive approach forwarded by a marginal majority of Northern States. Within the ILC, the Mexican Alberto Székely took a more robust position. He talked about a ‘mutilation’ of the Code and found that ‘[t]here was somewhat of a contradiction in the statement that, for an internationally wrongful act to become a crime under the Code, it was … necessary for the international community to decide that it was so, and then to allow a small number of States to take that decision’.26 However, most of the Commission’s members did not raise serious objections to the removal of individual crimes. The exclusion of the threat of aggression and intervention met with the least opposition, as those two were deemed blurry concepts. Apart from the alleged lack of a clear definition, apartheid and colonialism faced the 23

‘Text of the Draft Articles Provisionally Adopted by the Commission on First Reading’. In ILC ‘Report of the International Law Commission on the Work of its Forty-third Session’ (29 April–19 July 1991) UN Doc. A/46/10. 24 Thiam D, ‘Thirteenth Report on the Draft Code of Crimes against the Peace and Security of Mankind’ (1995) UN Doc A/CN.4/466, para 4. 25 ILC ‘Summary Records of the Meetings of the Forty-seventh Session, 2 May–21 July 1995’ (1997) 1 YILC 1995, p. 3, para 1. 26 ILC ‘Summary Records of the Meetings of the Forty-seventh Session, 2 May–21 July 1995’ (1997) 1 YILC 1995, p. 18, para 34.

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argument of obsolescence. Advocates of their inclusion doubted the disappearance or improbability of recurrence of every form of colonial or neo-colonial domination and of any system of institutionalised discrimination. These members underscored the draft code’s symbolic nature and deterrent potential. As for the deletion of the wilful and severe damage to the environment, as a stand-alone offence with application in both war and peace time, Salifou Fomba from Mali and Edilbert Razafindralambo from Madagascar stressed the special concern of the African countries and took the view that ‘[t]he issue was part of the power relationship between the countries of the North and the countries of the South’.27 Amidst the above controversy, the members of the Commission lent a sympathetic ear to the proposal of the Chilean Edmundo Vargas Carreñon for a particular reference to enforced disappearances under the rubric of crimes against humanity, a development that had already taken place in inter-American instruments. The decision of the Commission though to satisfy at the last minute the American proposal for the inclusion of crimes against United Nations and associated personnel exasperated the Southern members, who gave notice of their intention to reopen the consideration of omitted offences. The Commission finally adopted on second reading the Draft Code of Crimes against the Peace and Security of Mankind with a mention to the regret of some members in relation to ‘the reduced scope of coverage of the Code’, and the understanding that ‘the inclusion of certain crimes in the Code does not affect the status of other crimes under international law, and that the adoption of the Code does not in any way preclude the further development of this important area of law’.28 The outcome was welcomed by two-thirds of the States that expressed their mind at the Sixth Committee. Those principally represented the Global North and a significant part of South America. Only a dozen States from the Global South openly criticised the draft code for having yielded to political expediency, and having failed to meet the expectations of the whole international community.

9.3 The Travaux Préparatoires of the ICC Statute and the Marginalisation of the Global South As mentioned earlier, the General Assembly invited the ILC to deal in the framework of the item of the draft code with the Trinidad and Tobago’s proposal for an international criminal tribunal.29 A Working Group of the Commission, chaired by Abdul Koroma from Sierra Leone, recommended in 1992, when the code still contained 27

ILC ‘Summary Records of the Meetings of the Forty-eighth Session, 6 May–26 July 1996’ (1998) 1 YILC 1996, p. 11, para 41. 28 ILC ‘Report of the International Law Commission on the Work of its Forty-eighth Session’ (6 May–26 July 1996) UN Doc. A/51/10, para 46. 29 See UNGA ‘International Criminal Responsibility of Individuals and Entities engaged in Illicit Trafficking in Narcotic Drugs across National Frontiers and other Transnational Criminal Activities: Establishment of an International Criminal Court with Jurisdiction over such Crimes’ (4 December 1989) UN Doc A/Res/44/39.

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twelve offences, that ‘[t]he court’s jurisdiction should be limited to crimes of an international character defined in specified international treaties in force’, including those defined in the draft code upon its entry into force.30 Such an arrangement was ideal in the eyes of those States that wished to see an international court adjudicating cases of activities and policies that had not yet acquired the status of international crimes under positive international law. ‘Crimes against general international law’ were intentionally left out.31 The inclusion of customary international crimes would be possible only through adopting the draft code in which they would have been defined. However, after the restriction of the code’s scope, the Commission re-established the Working Group on a Draft Statute for an International Criminal Court, this time with the Australian James Crawford at its head. The Working Group drafted a catalogue of nine categories of ‘crimes pursuant to treaties’, and an exhaustive list of four ‘crimes under general international law’, namely genocide, aggression, serious violations of the laws and customs applicable in armed conflict, and crimes against humanity.32 The relegation of apartheid to the class of treaty crimes met with incisive criticism. The Working Group justified its selectivity with reference to Nuremberg and the Tribunal for the former Yugoslavia, and to ‘a common core of agreement’. It is in this sense that the notion of ‘core crimes’, which has served well the mainstream narrative, emerged. The ILC adopted a Draft Statute in 1994, thus completing its mandate on the question of an international criminal jurisdiction. Nevertheless, the General Assembly decided that a political organ should review the ILC Draft before convening an international conference. The Chair of the so-called Ad Hoc Committee, Adriaan Bos, noted that ‘[a] clear trend emerged in favour of limiting the jurisdiction of the Court to the core crimes’.33 Nonetheless, it is controvertible whether that corresponded to a genuine tendency within the international community, insofar as the number of States from the Global South that were absent exceeded the number of all participating States together. The difficulty of many financially less developed countries to afford to send to New York envoys for two separate sessions taking place months apart was so evident that a Special Fund was organised to stimulate participation in the future preparatory works. Nevertheless, in the words of Adriaan Bos, ‘[a]fter the first session [of the Ad Hoc Committee], the groundwork for the establishment of the Court was … already laid with regard to the scope of the Court’s jurisdiction ratione materiae’.34 The participation of the Global South was still weak at the subsequent Preparatory Committee, that held six sessions between 1996 and 1998. 30

‘Report of the Working Group on the Question of an International Criminal Jurisdiction’. Annex to ILC ‘Report of the International Law Commission on the Work of its Forty-third Session’ (4 May–24 July 1992) UN Doc. A/47/10. 31 See Schabas 2010, p. 103. 32 ‘Draft Statute for an International Criminal Court’. In: ILC ‘Report of the International Law Commission on the Work of its Forty-sixth Session’ (2 May–22 July 1994) UN Doc. A/49/10, para 42. 33 Bos 2002, p. 41. 34 Ibid., pp. 43–44.

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The United Nations Diplomatic Conference on the Establishment of an International Criminal Court convened in the Italian capital from 15 June to 17 July 1998. It was open to all Member States of the United Nations, and with the help of a Trust Fund, one hundred and sixty States were able to participate. The Bureau of the Conference decided to divide the workload to formal or informal working groups. The insider’s view of Professor Bassiouni was that, although this method expedited the negotiations, ‘[t]he formation of smaller working groups and the extensive work schedule weighed most heavily on the smaller delegations, some of which consisted of only two or three delegates and who consequently could not attend all these concurrent meetings’.35 Nevertheless, ‘a North-South divide was virtually absent at the ICC negotiations’.36 This was largely due to the fact that several States of the Global South had decided to join the informal ‘like-minded group’. On the one hand, the group allowed its members a certain degree of flexibility to pursue their own goals beyond the cornerstone objective of an independent court with automatic jurisdiction.37 On the other hand, it is possible that some developing countries were attracted by the economic incentives that often accompany a demonstrable commitment to the rule of law and good governance through international membership.38 More than 60 from a total of 160 States present at the Rome Conference had adhered to the ‘like-minded group’.39 Apart from the fervent proponents of the inclusion of drug trafficking and terrorism, such as the fourteen members of the Caribbean Community (CARICOM) and India, only a handful of States sought to expand the debate on the court’s subjectmatter jurisdiction beyond the four Nuremberg crimes. Libya stated that ‘it was not acceptable that the Court’s jurisdiction should be confined to matters of interest to some States while ignoring different issues of concern to others’.40 Libya joined forces with Iran, and Cuba, all subjected to international economic embargos, in order to campaign for the addition of such practices to the catalogue of crimes against humanity.41 Comoros and Madagascar submitted a formal proposal for the inclusion of ‘acts committed by mercenaries’.42 None of the above proposals attracted the attention of the conference. 35

Bassiouni 1999, pp. 449–450. Glasius 2006, p. 24. 37 See Kirsch and Robinson 2002, p. 70. 38 Cf. Clarke 2016, pp. 331–332. 39 See Schabas 2017, p. 19. 40 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court ‘Official Records Vol II: Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole’ (2002) UN Doc A/CONF.183/13 (Vol II), p. 102, para 82. 41 See ‘Cuba: proposal regarding article 5’ (23 June 1998) UN Doc A/CONF.183/C.1/L.17. In: UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court ‘Official Records Vol III: Reports and Other Documents’ (2002) UN Doc A/CONF.183/13 (Vol III) p. 240. 42 See Zimmermann 2008, p. 132. 36

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One of the achievements of the Global South with regard to the Court’s subjectmatter jurisdiction was the restoration of the crime of apartheid from a footnote in the Draft Consolidated Text of the Preparatory Committee to a distinct underlying crime against humanity. Another welcomed development was the retention of enforced disappearances in the category of crimes against humanity. A promise for the consideration of drug trafficking and terrorism in a future review of the Statute was inserted in the Final Act of the Conference.

9.4 Concluding Remarks From the above it has become clear that the major part of Global South has consistently promoted the advancement of international criminal justice. Although it did not question, as a matter of rule, the significance of the three Nuremberg crimes and genocide, it has envisioned a penal mechanism with far broader counter-hegemonic potential in terms of subject-matter jurisdiction. The faith in the international criminal justice project stemmed on the one hand from the experiences of colonialism, which lead States and scholars from the Global South to seek primarily for the criminalisation and prosecution at the international level of apartheid, colonialism in all its forms and manifestations, external intervention to the internal affairs of States, including economic intervention, mercenarism, and the exploitation of natural resources and of the environment. On the other hand, it stemmed from the shortcomings of the indirect enforcement system (extradition system), which overtly benefits powerful States, and the sovereignty intrusive politics of the powerful, whenever States from the Global South were unable to deal with organised criminality within their borders. Moreover, States from the Global South show in the draft code of crimes against the peace and security of mankind the opportunity to overcome the silence of international criminal law in relation to some of their major concerns, and approached the desired outcome with the adoption of the Draft Code on first reading in 1991. However, through and after the establishment of the ad hoc criminal Tribunals for the former Yugoslavia and Rwanda in the early 1990s, the Global North successfully took back ownership of the project, thwarting the progressive development of substantive law by way of a controlled drafting. The curtailment of the Draft Code on second reading, and the subsequent disassociation from it on the question of the international criminal court stripped the Global South of all hope for a genuinely counter-hegemonic project. The final stage of the drafting history of the ICC Statute reveals a possibly intentional marginalisation of the Global South. In any case, hidden behind an extradition system that favours them, behind debatable arguments about the distinctive legal features of the self-proclaimed ‘core crimes’, and behind false promises of universal acceptance, automatic jurisdiction and future review, powerful States ensured that even serious internationally proscribed offences remained outside the ambit of the Court. Assertions of a lack of consensus around everything else beyond the Nuremberg crimes masterfully concealed the fact that the origin of disagreement had always been the Global North.

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Notwithstanding, the success of an institution that operates in the name of the international community as a whole is far from guaranteed when it fails to address the concerns of a substantial part of that community; alas, when it systematically targets that segment of the international community. It is a matter of time for the crestfallen States to retract their allegiance to the ICC, investing in competing regional projects more relevant to their needs. The African Union has already proceeded to the adoption of the so-called Malabo Protocol, vesting the African Court of Justice and Human Rights with criminal jurisdiction over several serious offences of particular concern to the African continent.43 A similar project has been contemplated in South America.44 The incompatibility of some of the offences of the Malabo Protocol with the prevailing doctrinal theories of international criminalisation should not be overemphasised.45 After all, ‘[a]n international criminal court, like any international court, exercises only the subject-matter jurisdiction accorded it by its constituent instrument, and this instrument can vest the court with jurisdiction over whichever offences the states establishing the court so wish’.46 Neither should the absence of any ratification so far be overestimated, but perhaps indeed appreciated as a second chance for reflection. Unfortunately, the increase in counter-hegemonic capacity of the ‘African Criminal Court’ thanks to its broad jurisdiction ratione materiae, is counterbalanced by its provision on the immunity of heads of States.47 Is this a risk that the international community is willing to take?

References Bassiouni MC (1999) Negotiating the Treaty of Rome on the Establishment of an International Criminal Court. Cornell International Law Journal 32: 443–469 Bassiouni MC, Derby D (1981) Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant Instruments. Hofstra Law Review 9: 523–592 Boister N (1998) The Exclusion of Treaty Crimes from the Jurisdiction of the Proposed International Criminal Court. Law, Pragmatism, Politics. Journal of Armed Conflict Law 3: 27–43 Boister N (2009) Treaty Crimes, International Criminal Court? New Criminal Law Review 12: 341–365 Bos A (2002) From the International Law Commission to the Rome Conference (1994–1998). In: Cassese A et al. (eds) The Rome Statute of the International Criminal Court. A Commentary, Volume I. Oxford University Press, Oxford, pp 35–66 Clarke KM (2016) Why Africa? In: Steinberg R (ed) Contemporary Issues Facing the International Criminal Court. Brill/Nijhoff, Leiden/Boston, pp 326–337 Currie RJ, Leon J (2019) COPLA. A Transnational Criminal Court for Latin America and the Caribbean. Nordic Journal of International Law 88: 587–613 43

See Werle and Vormbaum 2017. See Currie and Leon 2019. 45 See Jalloh 2017. 46 O’Keefe 2015, p. 54. 47 Tladi 2016. 44

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Glasius M (2006) The International Criminal Court. A Global Civil Society Achievement. Routledge, London/New York Jalloh C (2017) The Distinction Between ‘International’ and ‘Transnational’ Crimes in the African Criminal Court. In: Van der Wilt H, Paulussen C (eds) Legal Responses to Transnational and International Crimes: Towards an Integrative Approach. Edward Elgar Publishing, Cheltenham/Northampton (MA), pp 272–302 Kirsch P, Robinson D (2002) Reaching Agreement at the Rome Conference. In: Cassese A et al. (eds) The Rome Statute of the International Criminal Court. A Commentary, Volume I. Oxford University Press, Oxford, pp 67–91 O’Keefe R (2015) International Criminal Law. Oxford University Press, Oxford Schabas W (2010) The International Criminal Court. A Commentary on the Rome Statute. Oxford University Press, Oxford Schabas W (2017) An Introduction to the International Criminal Court, 5th edn. Cambridge University Press, Cambridge Schwöbel-Patel C (2020) The Core Crimes of International Criminal Law. In: Heller KJ et al. (eds) The Oxford Handbook of International Criminal Law. Oxford University Press, Oxford, pp 768–790 Tladi D (2016) Immunities (Article 46Abis). In: Werle G, Vormbaum M (eds) The African Criminal Court. A Commentary to the Malabo Protocol. T.M.C. Asser Press, The Hague, pp 203–218 United Nations (2020) Achieving Our Common Humanity. Celebrating Global Cooperation Through the United Nations. United Nations Publications, New York Werle G, Vormbaum M (eds) (2017) The African Criminal Court. A Commentary to the Malabo Protocol. T.M.C. Asser Press, The Hague Zimmermann A (2008) Article 5. Crimes Within the Jurisdiction of the Court. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article, 2nd edn. Beck/Hart/Nomos, Munich/Oxford/Baden-Baden, pp 129–142

Taxiarchis Fiskatoris is an Adjunct Lecturer at the law school of the Philipps-Universität in Marburg, Germany and a Research Fellow with the African Centre for Transnational Criminal Justice at the University of the Western Cape, South Africa. He holds a Ph.D. in Law from Middlesex University London, United Kingdom. His primary academic interests lie at the intersection of international law, politics and history.

Chapter 10

The ICC and Traditional Islamic Legal Scholarship: Analysing the War Crimes Against Civilians Fajri Matahati Muhammadin and Ahmad Sadzali

Contents 10.1 10.2 10.3 10.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Islamic Law and Traditional Scholarship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Islamic Criminal Law and International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A Critical Juxtaposition: War Crimes and Jinayat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.1 Deliberately Harming Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.2 Excessive Collateral Civilian Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.3 Inhumane or Torturous Harm Towards Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.4 Confining, Deporting/Transferring/Displacing Civilians . . . . . . . . . . . . . . . . . . . . 10.5 Complementarity and Ne Bis In Idem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.6 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract In recent decades, numerous criticisms have been directed at Eurocentrism in international law generally and international criminal law specifically. These critics demand international law to be more inclusive towards non-European knowledge, inter alia Islamic law. Some scholars have argued that it is essential for the ICC to refer to Islamic law, not only to counter Eurocentrism in general but also because of the growing number of cases involving Muslims. Other scholars have suggested that there is some congruence between Islamic law and international criminal law in some general principles. However, so far there is very little comprehensive analysis on the compatibility of the two. It must be noted that if Islamic law has prescribed criminalization for international crimes up to a standard which is at least on par with what international law requires, this would mean at least that (a) there would be no F. M. Muhammadin (B) Department of International Law, Faculty of Law, Universitas Gadjah Mada, Yogyakarta, Indonesia e-mail: [email protected] A. Sadzali Department of Constitutional Law, Faculty of Law, Universitas Islam Indonesia, Yogyakarta, Indonesia e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_10

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reason for the ICC to not refer to Islamic law resources, and (b) Muslim states/groups who implement it would not need to refer cases to the ICC due to the complementarity principle. This research comparatively analyses Islamic Law and the ICC Statute. For the former, this research uses the fiqh literature of the traditionalist Islamic law scholars. Further, this research limits itself to war crimes included in Article 8 of the ICC Statute, specifically crimes against civilians. The hypothesis is that there is congruence in some but not in all rules, which is a challenge for international law and Islamic law scholars likewise. Keywords Islam · International law · Siyar · ICC Statute · Jinayat · International criminal law · TWAIL

10.1 Introduction For quite some time, international law has been criticized for Eurocentrism. Among those sidelined is the Islamic civilization, once very dominant and influential in the world1 but now thrown out into the periphery.2 Hence, there have been numerous scholars such as Al-Khasawneh and Weeramantry voicing the need to include more Islamic law in the development of international law.3 This critic extends to subregimes, including international criminal law. Especially discussing the ICC, Juliette R. Tiedrez has an interesting proposition: why not have an Islamic law scholar (in her words: a faqih) as an ICC judge? She noted that it is important to do this not only to be more inclusive towards Islam which is one among the biggest legal families in the world, but also since there are currently a lot of cases involving Muslims at the ICC.4 Nonetheless, the Muslim states during the drafting of the ICC Statute seemed to be more interested in raising their concern about the possible interference towards their governments rather than bringing up issues of Islamic law and international criminal law.5 Therefore, the role of Islamic law in international criminal law seemed rather dim until very recently when the ICC Office of the Prosecutor decided to appoint a special advisor on Islamic law.6 Responding to Tiedrez, Fajri wrote that there are prospects and challenges in doing so. Among them, a comprehensive comparative analysis would be required, to see the extent to which Islamic law and international could adopt from each other.7 Indeed, there are some scholars like Badar and Fraser suggesting that there are some shared general principles between Islamic law and international criminal law at the 1

See inter alia: Bashir 2018; Boisard 1980. See Farrar 2014. 3 See inter alia: Al-Khasawneh 2013; Weeramantry 1988. 4 Tiedrez 2020. 5 Some did, however, mention the need to explore ‘non-Western legal traditions’ but, still, said nothing about Islamic law in particular. See: Ali and Heer 2018. 6 ICC 2021. 7 Muhammadin 2020a. 2

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Table 10.1 Types of war crimes (i) Deliberately harming civilians

(ii) Excessive collateral civilian losses

(iii) Deliberate inhumane or torturous harm towards civilians

(iv) Confining, deporting/transferring/displacing civilians

Article 8(2)(a)(i) Article 8(2)(a)(v) Article 8(2)(a)(viii) Article 8(2)(b)(i) Article 8(2)(b)(xv) Article 8(2)(b)(xxv) Article 8(2)(b)(xxvi) Article 8(2)(c)(i) Article 8(2)(c)(iii) Article 8(2)(c)(iv) Article 8(2)(e)(vii)

Article 8(2)(b)(iv) Article 8(2)(b)(ix) Article 8(2)(b)(xxiii) Article 8(2)(e)(iv)

Article 8(2)(a)(ii) Article 8(2)(a)(iii) Article 8(2)(b)(x) Article 8(2)(b)(xxi) Article 8(2)(b)(xxii) Article 8(2)(c)(i) Article 8(2)(c)(ii) Article 8(2)(e)(vi)

Article 8(2)(a)(vii) Article 8(2)(e)(viii)

Source The authors

ICC, such as the principles of legality, non-retroactivity, and the presumption of innocence.8 However, as the saying goes, ‘the devil is in the details’. As we have written elsewhere, beneath the congruence between Islamic law and international law, there are numerous details where there are discrepancies.9 Our research therefore explores this issue in greater detail by conducting an indepth comparative analysis between Islamic law and international criminal law. We examine the extent to which the material law, particularly criminal charges at the ICC coincide with Islamic law, limiting this task to war crimes against civilian persons as the most vulnerable party in war (representing 25 out of 53 war crimes). Analysing each of these war crime types would be quite difficult with the limitation of space. In addition, some of these war crimes are quite identical except for minor items, such as their common elements like the nexus to armed conflict for example.10 Therefore, similar war crimes can be grouped into four types: (i) deliberately harming civilians, (ii) excessive collateral civilian losses, (iii) inhumane or torturous harm towards civilians, and (iv) confining, deporting/transferring/displacing civilians, as shown in Table 10.1. With regards to the Islamic law perspective, this research uses the methodology of the ‘traditionalist’ fuqaha as classified by Yusri Mohamad. This means, we follow the methodology of scholars who follow the Shar¯ı‘ah through the tradition of the fuqaha throughout the ages through the madh¯ahib who ‘… view the build-up of the fiqh legacy over the centuries as a natural and inspired process and therefore would rather continue and perpetuate it rather than deconstruct it’.11 Therefore, we 8

Badar 2011, pp. 423–426. See also: Fraser 2020. See Muhammadin and Wahab 2018. 10 Compare Articles 8(2)(b)(i) and 8(2)(e)(i), both stipulating ‘Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities’. The former applies to international armed conflict, the latter applies to non-international armed conflicts. 11 Mohamad 2016, pp. 54–55. 9

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do not discard the classical works of the fuqaha but rather continue their tradition and holistically contextualize it in the modern day. Having said that, this chapter explores the literature of Islamic law, particularly criminal law. We examine the extent to which traditional scholarship would find congruence with the international criminal law in terms of how the lawful conduct of war is regulated and its breach criminalized. The larger the congruence, the stronger the basis for a better dialogue between the ICC and the Islamic world.

10.2 Islamic Law and Traditional Scholarship Traditional Islamic legal scholarship considers that one of the basic tenets of faith is to place the Qur’an and Sunnah as the only true source of law,12 from where the ‘ulama (scholars) derive legal rulings through a process we refer to as ijtihad.13 As result, we find various rulings of fiqh or Islamic law covering a great variety of topics from ritual worship matters to public and international law.14 ‘Traditionalist scholarship’ utilizes this rich body of scholarship and sees it as strong authority. A traditionalist scholar sees that, while on one hand the scholars are ‘merely’ interpreting the primary sources, on the other hand only specially qualified scholars are competent to make this interpretation.15 Usually, traditionalist scholars are also described as the madhhab-ists or those following a particular school of Islamic jurisprudence (mainly the Hanafi, Maliki, Shafi‘i, or Hanbali school). Following Yusri Mohamad’s categorization, we chose the traditionalist scholarship point of view for this chapter. In our view, to refer to those who are sometimes referred to as ‘reformists’, would defeat the purpose of countering Eurocentrism. Like Ebrahim Afsah and Abdullahi An-Na’im, they propose secularism to ‘reform’ Islam so that it could submit to what modernity brings.16 Not only that this approach has been strongly criticized for contradicting major tenets of the Islamic faith by scholars like Sapiudin, Bashir, and Muhammadin.17 But, most importantly, secularism as an epistemology is a Western product,18 and the hegemony imposed by the West through colonialism resulted inter alia in the forced penetration of secular

12

Muhammadin 2021, pp. 7–9. Nyazee 2003, p. 128. 14 There are numerous literatures of fiqh covering all of these topics in multi-volume books written throughout the ages of Islamic intellectual history up to this date. See inter alia: Al-Maqd¯ıs¯ı n.d. (10 vols); Al-Sarakhs¯ı 1409 H (30 vols); Al-Maws¯u‘ah Al-Fiqhiyyah 1410 H (45 vols); Al-Zuh.ayl¯ı 2011 (10 vols), and many others. 15 Even the Salafi school agrees with this. See: Brown 2015. 16 See: Afsah 2008; An-Na’im 1996. 17 See inter alia Muhammadin and Mohd Kamal 2019, pp. 187–192; Bashir 2018, pp. 8–13; Saipudin 2016. 18 See: Al-Attas 1993. 13

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epistemology into Islamic (and most other non-Western) sciences.19 How ironic is it to solve Eurocentrism by further enforcing Eurocentrism? Some may mistakenly think ‘traditionalism’ as absolute rigidness in using classical texts. This might be exacerbated by the sight of classical works dominating the footnotes of contemporary traditionalist scholars. However, traditionalist scholars throughout the ages have made ijtihad to adjust fiqh rulings to their times in subjects open to ijtihad within these traditional frameworks of the madh¯ahib.20 For example, the eminent Syrian Sheikhs Musthafa Al-Khin and Musthafa Dib Al-Bugha did not abandon the Shafi‘i school texts when mentioning the ruling towards war captives where the leaders may, inter alia, decide to enslave them if there is mas.lah.at (exigency).21 Nonetheless, they also pointed out that such mas.lah.at, present in the past, no longer persists today thus, despite the text, captives should not be enslaved in the current day.22 This is in accordance with the legal maxim ‘law changes in time’,23 as understood in the traditionalist corridor. As Khalif Muammar explains, the traditionalist scholarship follows the legacy and authority of scholarly tradition and is essential in facing the challenges brought about by modernity within a well-established corridor provided in Islam.24

10.3 Islamic Criminal Law and International Law Fiqh al-jinayat, or Islamic criminal law, refers to the Islamic laws to prosecute and punish perpetrators of acts violating the true religion (i.e. Islam), the body, wealth, intellect, and honor.25 There are three types of crimes in Islamic criminal law. The first is the h.ud¯ud, the second is qis.a¯ s., and the third is ta’zir. H . ud¯ud are specific crimes which, with their punishments, are explicitly set in the Qur’an and Sunnah as the Rights of Allah.26 H . ud¯ud crimes include illicit sexual intercourse (fornication and adultery), false testimony against adultery or fornication, being intoxicated, drinking intoxicants, apostasy, theft, robbery, and rebellion.27 The

19

Wan Daud 2013, pp. 6–7; Al-Attas 1993. See also: Salim 2010; Husaini 2005. It is a well-established principle that ijtihad is only made when there is no clear text from the Qur’an, Sunnah, or ijma‘ on the particular matter. See: Mohamad 2016, p. 67. Hence, this opens much room for different ijtihad in different eras regarding such matters. 21 Al-Khin and Al-Bugha 2014, p. 48. 22 Ibid. 23 Al-Da’as 1989, p. 56; Al-Burnu 2003, p. 1100. 24 Harris 2012. 25 Al-L¯ ah.im 2011, p. 21. 26 ‘Awdah 2003, p. 127. 27 There are some differences of opinion in a few among them. See: Al-Maws¯ u‘ah al-Fiqhiyyah 2003, vol. 17, p. 131; Al-Shabrawi 2010, vol. 21, pp. 5–361. 20

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types of punishment could be execution, stoning, exile, lashing, or ‘crucifixion’28 depending on which h.ud¯ud crime was committed. Qis.a¯ s., or ‘retaliation’, is also prescribed in the Qur’an and Sunnah.29 With regard to this type of crime, the damage inflicted on the perpetrator will generally correspond with what the perpetrator inflicted upon others. If the perpetrator injured someone, then he will be injured equally. If he murdered someone, he will be executed.30 In some cases, perpetrators will have to pay either blood money (diyat) to the victim’s heirs (if they forgive the perpetrator from execution) or kafarat (fine).31 The third category, ta’zir, are crimes and punishments not determined specifically in the Qur’an and Sunnah. Rather, they are prescribed under the discretion of the judge or government based on mas.lah.at (exigency).32 Unlike the h.ud¯ud which are prescribed specifically to punish evil deeds, ta’zir crimes may or may not be evil as the basis to prescribe them purely rests on exigency.33 Additionally, the ‘ulama have different opinions regarding what the maximum ta’zir punishments can be. The Maliki school says that ta’zir punishments may reach death penalty while the Hanafi and Shafi‘i schools say that no ta’zir punishment may exceed the lowest h.ud¯ud punishment (i.e. forty lashes).34 The ‘ulama differ on whether ta’zir must be implemented. The Shafi‘i school says that it is up to the government whether to implement or not, while the other main schools (the Hanafis, Malikis, and Hanbalis) detail the case further. If the ta’zir is related to the Rights of Allah, then it must be implemented except if the government finds exigency to forgive the perpetrator. They further explain that the implementation of ta’zir towards crimes with victims must also be implemented except if forgiven by the victim or if it is victimless.35 International law becomes relevant when we try to explore how all these principles would interact with the ICC. Unlike the ‘reformists’ position who call for reform towards anything not in conformity with modernity (and international law often used to represent that, as are the positions of Afsah and An-Na’im), traditionalists do not provide room to cease the implementation of h.ud¯ud and qis.a¯ s.. Traditionalists submit that the Islamic government must enforce the penalizing of these two types of crimes towards all relevant cases, except for crimes with victims36 where punishment can 28

‘Crucifixion’ in this context is not like the typical Western notion. In the Islamic notion, the perpetrator is tied up on a plank in public view at the crime scene. The ‘ulama differ on whether to execute the perpetrator before or shortly after tying them up, and a small minority of ‘ulama say that the perpetrator is tied up and starved to death. See: Ibn Rushd 2000, vol. 2, pp. 548–549. 29 Which is why some ‘ulama classify qisa . ¯ s. as among the h.ud¯ud. See: Al-Zuh.ayl¯ı 1428 H, vol. 6, p. 13. 30 Al-Maws¯ u‘ah al-Fiqhiyyah 2003, vol. 33, p. 259; Al-Juzayri 2003, vol. 5, p. 181. 31 Al-L¯ ah.im 2011, vol. 2, p. 7. 32 Al-Maws¯ u‘ah al-Fiqhiyyah 2003, vol. 12, p. 254; Al-Mawardi 2006, p. 344. 33 Al-Zuhayl¯ı 1428 H, vol. 6, p. 20; Al-Sh¯ır¯ az¯ı n.d., vol. 3, p. 373. . 34 Al-Zuhayl¯ı 1428 H, vol. 6, p. 19; Al-Shabrawi 2010, vol. 21, p. 395. . 35 Al-Zuhayl¯ı 1428 H, vol. 6, pp. 18–22; Al-Shabrawi 2010, vol. 21, p. 395. . 36 As explained earlier, some of the hud¯ . ud are victimless, such as intoxication.

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be averted if the victims (or all heirs, in case of murder) forgive the perpetrator.37 As explained earlier, the implementation of h.ud¯ud and qis.a¯ s. are generally seen as the rights of Allah, although the victims (or their heirs) are given rights to forgive the perpetrator in case of qis.a¯ s. and absolve them from punishment. Ta’zir, however, has some doors open. To understand this, we must explore a bit how Islamic law interacts with international law. One of the sub-fields of Islamic law is fiqh al-siyar, known today as Islamic international law. Fiqh al-Siyar regulates the conduct of international relations between the Muslims and: non-Muslims (whether living in their own lands as belligerents or under peace treaties with the Muslims, or as residents of the Islamic state known as dhimmis), or apostates and rebels.38 The Muslims, in traditional scholarship, refer to those who reside in the ‘Land of Islam’ (Dar al-Islam), while the rest of the world is called the ‘Land of Disbelief’ (Dar al-Kufr).39 Some ‘ulama add a third category, i.e. ‘Land of Treaty’ (Dar al-‘Ahd),40 for non-Muslim lands under peace agreement with the Muslims. The classical ‘ulama mention that the peace agreements that Dar al-‘Ahd have with the Muslims are not merely peace agreements, but also that the Dar al-‘Ahd pay Kharaj (land tax) to the Muslims.41 Contemporary works, however, do not seem to require the payment of kharaj for non-Muslims lands to fall under Dar al-‘Ahd,42 making most (if not all) non-Muslim nations in the world falling under this category. Fiqh al-siyar covers various subjects relevant to international relations, including war and peace, and despite having some rules clearly set by the Qur’an and Sunnah but a large bulk of detailed rulings are mainly governed by maslahat (exigency).43 As part of mas.lah.at, fiqh al-siyar must also consider treaties and customary international law if they do not contradict the primary sources and if there is mas.lah.at.44 Until this age, Islamic scholars have attempted to develop classical fiqh al-siyar into today’s context, such as Ali Ali Mansur and Muhammad Hamidullah.45 However, Mansur and Hamidullah’s works seem to only consider international law as far as it regulates friendly and hostile relations between states. They do not yet touch on how contemporary international law begins to regulate the domestic affairs of states (such as international human rights law).46

37

Al-Zuh.ayl¯ı 1428 H, vol. 6, p. 20; Al-Sh¯ır¯az¯ı n.d., vol. 3, p. 197. Al-Sarakhs¯ı 1409 H, vol. 10, p. 5. 39 Haykal 1996, p. 660. 40 Some scholars use Dar al-‘Ahd and ‘Land of Peace’ (Dar al-Sulh) interchangeably. See: Anshor 2013, pp. 53–68. 41 Al-Mawardi 1996, p. 202. 42 Anshor 2013, pp. 58–59. 43 See inter alia Al-Sarakhs¯ı 1971; Al-Faz¯ ar¯ı 1408 H. 44 Muhammadin 2021, pp. 14–17. For classical sources, see: Al-Sarakhs¯ı 1971; Al-Faz¯ ar¯ı 1408 H. 45 See: Mansur 1973; Hamidullah 2011. 46 Shaw 2017, pp. 213–215. 38

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The intervention of international law in domestic law necessitates a more comprehensive study towards law-making treaties and customary international law, specifically the extent to which the norms brought in could be acceptable in Islamic law. For example, when Islamic law generally commands Muslims to eat well and maintain sanitary, the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures (which refers to the Codex Alimentarius) can be used to further detail that in today’s context.47 Our research here is aimed to contribute to such a purpose, particularly in an area where criminal law is affected. Having said that, the potential relationship between ta’zir and international law can be established. If ta’zir is applied based on mas.lah.at, while international law can be adopted also based on mas.lah.at, then ta’zir can be influenced or based on international law. It must be noted, however, that mas.lah.at as a legal notion is determined and guided by (and therefore may not contradict) Islamic teachings.48 Mas.lah.at is primarily designed to regulate worldly affairs to be steppingstones to achieve paradise in the hereafter.49 Therefore, mas.lah.at as a notion of exigency cannot be divorced from its Islamic-religious worldview.50 Therefore, non-Islamic notions of exigency, for example, Bentham’s secular-materialistic utilitarianism, cannot be used as tool here.51

10.4 A Critical Juxtaposition: War Crimes and Jinayat This section critically explores how traditionalist scholarship would perceive and follow up the perpetration of acts labelled as war crimes against civilians by the ICC Statute, based on the groupings already made earlier: (i) deliberately harming civilians, (ii) excessive collateral civilian losses, (iii) inhumane or torturous harm towards civilians, and (iv) capturing and deporting/transferring civilians.

10.4.1 Deliberately Harming Civilians Almost all literature on the laws of jihad emphasize the prohibition to kill noncombatants. Classical scholarship usually mentions specific types of persons as being illegal to be harmed during war, such as: women, children, the mentally insane, isolated hermits, hired serfs, etc.52 Nonetheless, the silver lining is that those not 47

Muhammadin 2021, p. 20. Jad 2010, p. 174. 49 Al-Jawziyah 2010, p. 264; Abu Zahrah n.d., p. 277. 50 See: Al-Sh¯ at.ib¯ı 1997, vol. 2, p. 17; Al-Ghaz¯al¯ı 1971, pp. 159–161. 51 Setia 2016; Crimmins 1986. 52 See inter alia: Al-Sarakhs¯ı 1971, para 2741; Ibn Rushd 2000, vol. 1, pp. 458–460; Al-Zuhayl¯ı . 1419 H, pp. 494–495. 48

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actively participating in the hostilities must not be killed.53 Many contemporary scholars were quick to celebrate this, although some noted potential for discourse in the details (such as the status of the police force).54 Additionally, civilians in particular have been labelled as ‘protected persons’ in modern International Humanitarian Law (IHL) instruments.55 It can be argued that a Muslim state ratifying relevant treaties or approving (or acquiescing) relevant customary international law norms would be equivalent to the granting of aman (safe conduct) to civilians. Persons granted aman, usually referred to as musta’min, must not be harmed.56 Additionally, non-Muslims who live within the territory of an Islamic state, referred to as dhimmis have similar protected status and the ‘ulama usually discuss their protected status together with that of the musta’min. What usually escapes discussion is the criminal law dimension of this. Just because an act is prohibited, it does not automatically mean that a criminal sanction is present. In this issue, there are multiple scenarios to be considered. If the murdered civilian was a Muslim, then general criminal law would apply which is qis.a¯ s. where the perpetrator would be executed according to some scholars or pay diyat instead according to the others.57 Meanwhile, if the civilian was a nonMuslim, the majority of classical scholars say that the murderer must repent to Allah as he/she has violated Islamic law but qis.a¯ s., diyah, or kafarat cannot be imposed.58 A minority, the Shafi‘is, rule that the murderer of women and children (belonging to the enemy non-Muslims) must pay compensation to the Muslim ruler because they would have otherwise become ghanimah (spoils of war).59 Considering civilians as musta’min as a consequence of accepting modern IHL can be a bit tricky. Scholars disagree on the maximum period of aman, but they agree that this period should be finite.60 If this proposition is accepted, the Muslim who murders a musta’min is punishable by diyat according to some opinions, while other opinions suggest the perpetrator should only be imprisoned until she/he has repented.61 In context of ta’zir, punishment can still be imposed towards the perpetrator. There are clear grounds for it, considering the act of killing civilians not participating actively in the hostilities has been established to be clearly a violation of Islamic law. As explained earlier, scholars differ whether ta’zir generally can be imposed in form of death penalty. There is also disagreement on whether a Muslim can be executed due

53

Ibn Rushd 2000, vol. 1, p. 459; Al-Dawoody 2011, pp. 112–114; Al-Qardhawi 2010, pp. 291–296; Azzam 1993, pp. 24, 30. 54 Al-Dawoody 2019, p. 37. 55 Henckaerts and Doswald-Beck 2005, see Chapters 1–2. 56 Al-Zuhayl¯ı 2011, p. 33; Al-Sharb¯ın¯ı 2006, p. 54. . 57 Al-Shawk¯ an¯ı 2007, vol. 4, p. 350; Al-Maws¯u‘ah al-Fiqhiyyah 2003, vol. 37, pp. 190–191. 58 Al-Maws¯ u‘ah al-Fiqhiyyah 2003, vol. 16, p. 150; Ibn H.azm n.d., vol. 7, p. 296. 59 Al-B¯ aj¯ur¯ı 2016, p. 240. 60 Al-Dawoody 2011, p. 134; Al-Zuhayl¯ı 2011, vol. 8, p. 47. . 61 Compare: Al-Fawz¯ an 2005, vol. 1, p. 552; Ibn H.azm n.d., vol. 10, p. 347.

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to the murder of a non-Muslim in context of qis.a¯ s.,62 and at heart of the disagreement is Prophet Muhammad ’s explicit statement that a Muslim cannot be killed for the murder of a non-Muslim63 which may suggest that killing by ta’zir falls under this prohibition. Nonetheless, execution can still be prescribed on the basis of ta’zir not due to the killing per se but for other circumstances surrounding the act. For example, if the killing was committed treacherously, the perpetrator can be executed for it.64 It can be argued that, considering how serious the international community is towards the protection of civilians in war, there is greater mas.lah.at in preserving the lives of these civilians (including non-Muslims) during war. Additionally, if the earlier aman analogy is accepted, there is even more interests at stake when civilians are killed. Further, considering how the ICC usually focuses on crimes committed on a large scale and gravity,65 such a circumstance would definitely warrant even more concern from the Islamic government. These aggravating factors can therefore justify ta’zir by execution beyond the act of murder itself. However, in case of hostage taking of civilians who do not end up being killed, perhaps the ta’zir punishment might be lower because less damage is caused but such act is still a form of harm towards civilians. However, if following the opinion of scholars not allowing execution for ta’zir in general, other forms of punishments are available such as lashing (up to forty lashes) and imprisonment.66

10.4.2 Excessive Collateral Civilian Losses The issue of collateral damage is something that the international community always regrets, but it somehow does not receive the much needed attention in contemporary fiqh al-jihad literature. From a modern IHL perspective, the issue of collateral damage is related to the principle of proportionality which seeks to limit the nonintended damage caused by military operations towards legitimate targets.67 These non-intended damages (towards non-combatants and civilian objects) would be a war crime if they were excessive in relation to the expected military advantage, as suggested by the wording of the relevant war crime types under this group. ‘Proportionality’ is the basis of mas.lah.at, and Islamic teachings explicitly command it both generally in life as well as in war specifically.68 When discussing 62

Ibn Rushd n.d., vol. 2, p. 299; Ibn H.azm n.d., vol. 10, p. 347. Al-Tirmidh¯ı 2007, vol. 3, hadith no. 1412. 64 Al-‘Ayn¯ı n.d., vol. 15, p. 94. 65 See inter alia Articles 8(1), 17(1)(d), and 53(1)(c) of the ICC Statute. 66 Al-Zuhayl¯ı 1428 H, vol. 6, p. 198. . 67 Kilcup 2016, p. 248. 68 See inter alia the Qur’an in Surah Al-Ma‘idah (5) verse 77 and Surah Al-Baqarah (2) verse 190 respectively. 63

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methods of warfare potentially affecting non-combatants, the classical scholars have always emphasized the need to ensure that the military advantage anticipated outweighs the potential harm to the non-combatants.69 To ensure that such potential harm to non-combatants should not be higher than the benefit anticipated is a principle shared with modern IHL. Another aspect of the issue must be considered. In modern IHL, not only must the destruction be justified by necessity, but there should also be precautionary measures implemented to minimize these collateral civilian losses as much as possible. Modern IHL prescribes quite a comprehensive list of necessary precautionary steps to minimize such losses, mainly listed in Articles 57 and 68 of the Additional Protocol II to the Geneva Conventions (1977), added by a large bulk of customary international law.70 This is where current scholarship has some problems. The scholars only mention or imply that the civilians should not be intentionally targeted.71 Some specify that the civilians should not be aimed at. While the idea seems to be good, one would be reasonably uncomfortable for the lack of details. Hundreds of years ago, accidental damage caused by swords and arrows might have been regretted. However, the scale of such damages are so exponentially greater and perhaps unimaginable. The number of deaths caused by war within the past century alone has far exceeded the total war deaths in the preceding 49 centuries combined, and this data does not include post-1990 wars.72 More destructive weapons and methods of attack, especially aerial bombardment, are responsible for this.73 Surely ‘don’t intend to attack civilians’ should be supplemented by a comprehensive set of precautionary measures worthy of an army truly intending to minimize such avoidable losses. The principle and general rule are there, just not the details. However, this could be largely supplemented by the adoption of the IHL precautionary measures into the corpus of Islamic law as an imperative addition to fulfil the Islamic obligations better.74 Otherwise, the collateral civilian losses would not be accidental but caused by recklessness. Therefore, it would be prohibited to recklessly inflict collateral civilian losses that are excessive in relation to the anticipated mas.lah.at. If the civilians killed under this manner are Muslims, the persons responsible must pay diyat and kafarat if the perpetrator was aware that the victim was Muslim, or just kafarat if the perpetrators were not aware.75 In addition, if the scale of the reckless damage caused may justify the imposition of ta’zir. The discussion of ta’zir would be similar to the case of intentional damage towards civilians in the previous subsection. If civilians are used as human shields, meaning that there is strong deliberate intention to victimize said civilians although

69

See inter alia: Al-Sh¯ır¯az¯ı n.d., vol. 3, p. 278; Al-Maqd¯ıs¯ı 2004, vol. 4, p. 126. See the whole of Chapters 3, 4, 5 and 6: Henckaerts and Doswald-Beck 2005, vol. 1. 71 Al-Zuhayl¯ı 1419 H, pp. 506–507. . 72 Eckhardt 1989, 1991. 73 Gardam 1993, pp. 399–402. 74 Muhammadin 2020b, pp. 71–127. 75 Al-Mawardi 2006, p. 78. 70

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not directly committing the killing, then a stronger aggravating factor is present to justify higher punishment.

10.4.3 Inhumane or Torturous Harm Towards Civilians Under this category are more numerous types of war crimes, such as: torture and causing suffering, rape, sexual slavery, forced pregnancy and sterilization. The first sub-group to be discussed is torture, suffering, and sterilization. The reason is that, in Islamic criminal law, these acts are basically an infliction of injury (and aggravated forms of them), and the legal consequences are similar to each other. A wellestablished principle of Islamic law states ‘harm may neither be inflicted nor reciprocated’.76 Even more so, the act of causing torturous harm is generally condemned, inter alia the prohibition against torture towards persons77 and the prohibition of killing with fire.78 In general, the infliction of injury is punished by obliging the perpetrator to pay diyat to the victim. Other than diyat in terms of blood money for murder, diyat must also be paid to compensate for: organ damage, loss of function of certain organs, wounds, and fractures.79 On top of that, extraordinary cruelness in the infliction of these injuries, perhaps can be exacerbated by the scale of its commission in times of war, could warrant an additional ta’zir punishment as the Muslim leader sees fit. The second sub-group is outrages towards personal dignity, including degrading and humiliating treatments. Even to insult and slander a person is enough to cause the perpetrator to be given ta’zir.80 Surely, the more inhumane and insulting the act is, it would warrant heavier ta’zir as per the discretion of the judge or Muslim leader. The third sub-group is rape, sexual slavery, and forced pregnancy, due to the sexual nature of the crime which has special discussion under Islamic law. There are a few angles to approach the crimes in this group. In general, the act of illicit sexual intercourse (zina) between a man and a woman will mostly depend on which evidentiary threshold is satisfied. If four direct witnesses of the intercourse can be presented, or alternatively with confession, then the perpetrator is stoned to death if the perpetrator is married, or lashed one hundred times then exiled if the perpetrator is unmarried. In this case, the perpetrator will be punished for zina if the evidentiary threshold is satisfied, while the victim will be exempted as he/she was coerced and will receive compensation.81 76

Al-Suy¯ut.¯ı 2011, p. 210. Al-Q¯ar¯ı 1422 H, vol. 7, p. 76. 78 Al-Shawk¯ an¯ı 1412 H, vol. 7, p. 253; Al-Qardhawi 2010, p. 496; Al-Maws¯u‘ah al-Fiqhiyyah 2003, vol. 16, p. 496. 79 Al-Fawz¯ an 2005, vol. 1, pp. 563–570; Qol‘ahji 2001, vol. 2, p. 680; Al-Shabrawi 2010, vol. 19, p. 395. 80 Al-Margh¯ın¯ an¯ı 1971, vol. 2, pp. 116–117. See also: Çi˘gdem 2008. 81 Al-Sharb¯ın¯ı 2006, pp. 435, 437. 77

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Alternatively, if the evidence does not amount to four direct witnesses but the judge finds sufficient evidence to establish that rape has been committed, including if the rape was not in form of male genitalia entering the female genitalia, ta’zir can be implemented.82 It must be noted that there is a penalty towards those who accuse someone of committing zina but failing to provide sufficient witness (qadhf ), but this does not apply to those who are victims of rape as per consensus of the ‘ulama (ijma‘).83 In addition to that, aggravated cases of rape (for example, due to the use of weapons or widespread perpetration) could be given additional punishment including execution even if the perpetrator is unmarried.84 Forced pregnancy and rape (as traditionally understood) would generally fall under this category, and additional injury caused must also be compensated as per the earlier discussion of diyat. Further discussion is needed for other acts of sexual nature. If the rape involves two persons with the same sex, scholars differ whether h.ud¯ud or ta’zir is applied. They also differ with regards to the punishment, where some scholars say the perpetrator must be executed, others say the penalty for zina should apply by analogy (stoning to death if married, lashing if unmarried), others say ta’zir.85 Meanwhile, other acts of sexual crimes are punishable by ta’zir. Sexual slavery is a difficult case as it may be related to enslavement which has its Islamic equivalence. With respect to war captives, the Muslim leader may, on the basis of mas.lah.at, decide to either execute (for men only), free gratuitously, free with ransom, or to enslave.86 It is important to realize that there are major differences between the Islamic concept of enslavement and the stereotypical image of slavery in the Western mind. For example, Prophet Muhammad clearly instructs that slaves must be fed and clothed at least at the same level of the master, must not be overburdened or insulted, and must not be hit or else the master will be punished to free the slave.87 There are so many incentives for the master to free slaves, as it is generally seen as a good deed88 and it is often a penalty to expiate certain sins,89 and the slave can have rights to even purchase her/his own freedom in instalments and at the same time receive ‘pocket money’.90 82

Al-Shabrawi 2010, vol. 21, p. 395. See also: Al-Maws¯u‘ah al-Fiqhiyyah 2003, vol. 12, p. 276. It must be noted that there is no high threshold to prove the existence of coercion in this case, unlike the act of zina itself that requires four witnesses. Ibn ‘Abd Al-Barr 1993, vol. 22, p. 125; Al-Luhaydan 2004, p. 191. 84 Al-Sharb¯ın¯ı 2006, vol. 5, pp. 435, 437. See also: Ibn Al-‘Arab¯ı 1424 H, vol. 2, p. 95. 85 Al-Zuhayl¯ı 1428 H, vol. 6, p. 66. . 86 Ibn Rushd 2000, vol. 1, pp. 456–457; Al-Zuhayl¯ı 2011, vol. 8, pp. 84–86. . 87 Al-Nays¯ ab¯ur¯ı 2007, vol. 4, hadiths no. 4298–4310; Al-Bukh¯ar¯ı 1997, vol. 1, hadith no. 30. 88 See for example Surah Al-Balad (90) verses 12–13 and onwards to see other righteous deeds sampled together with the freeing of slaves. 89 For example, the primary penalty for having sexual intercourse while fasting is to free a slave. If they cannot afford a slave, or no slaves are around to be freed anymore, other penalties will be imposed such as fasting for two months (commencing on sunrise and breaking at sunset, that is), then feeding the poor. See: Al-Zuh.ayl¯ı 2011, vol. 3, pp. 126–127. 90 Scholars differ whether the master is legally obliged to grant the slave’s request. See: Ibn Rushd n.d., vol. 2, pp. 274–280. 83

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Be that as it may, slaves in Islamic law nonetheless share similar elements of the war crimes of sexual slavery according to the ICC Statute as they share attributes of rights of ownership (can be sold, bought, etc.) and it is permissible for men to have sexual intercourse with their female slaves. It is therefore clear that we have found a clear incompatibility between Islamic law and the ICC (and international law generally). The case does not end here, though. There is a discussion among contemporary scholars whether the slavery still exists. Some say that it no longer exists because there is a consensus (ijma‘) of Muslims today.91 However, this is incorrect because some authoritative scholars still hold that the option of enslavement is open, such as the members of the Al-Lajnah al-D¯a’imah.92 It is of course possible to debate the merits of these scholars’ opinions, but at least the claim of consensus is not true and this is important because consensus (ijma‘) is a solid and binding source of Islamic law which must not be rejected.93 Nonetheless, there is no disagreement that Muslim leader discretion (based on mas.lah.at) is the sole basis to enslave a captive. It has been explained earlier how Al-Bugha and Al-Khin do not reject the rule but have submitted that the mas.lah.at to enslave no longer exists. Even the famed jihadist Abdullah Azzam, founder of Maktab Al-Khidamat together with Osama bin Laden (which then evolved into AlQaeda), agrees there is no mas.lah.at to enslave the enemy women (in context of the Soviet-Afghanistan war).94 On top of this, it also means that Muslim leaders may decide to close the option of enslavement, whether to prohibit it in their national laws or even to ratify relevant international treaties (such as the Slavery Convention, 1926), as most if not all have already done today.95 Additionally, the prohibition against slavery is recognized as customary international law,96 which is a source of fiqh al-siyar as far as it does not contradict Islamic law. Having that said, there are multiple scenarios related to sexual slavery. The first scenario is if the Muslim leader does not even prohibit slavery to begin with, and this is a case of inevitable incompatibility. In absence of specific treaty obligation of a particular Muslim state or group prohibiting enslavement, mas.lah.at is a matter of ijtihad which may or may not be correct but the legal maxim ‘an ijtihad does not annul another ijtihad.’97 Likewise, the customary international law prohibition against slavery might be seen as prohibiting something permissible in Islamic law, hence in turn contradicting Islamic law.98 Even in this scenario, though, there may be 91

See point 12: Open Letter to Dr. Ibrahim Awwad Al-Badri, alias ‘Abu Bakr Al-Baghdadi 2014. http://www.lettertobaghdadi.com/. Accessed 7 October 2017. 92 See: Al-Duwaysh 2003, vol. 16, pp. 570–573. 93 Hasan 1415 H, pp. 149–150. . 94 ‘Azz¯ am n.d., p. 56. 95 Many Muslim states are also parties to the ICC Statute, making relevant war crimes even more applicable. 96 See inter alia: Sellers and Kestenbaum 2020; Rassam 1998, p. 303. 97 Al-Suy¯ ut.¯ı 2011, p. 241. 98 It is our position that such customary international law does not contradict Islamic teaching, which neither commands nor gives special virtue in taking slaves (while there are endless virtues

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punishments imposed to the perpetrators. The scholars agree that slaves are legally owned by the master only after the Muslim leader distributes the captives as war spoils.99 If any Muslim does in fact have sexual intercourse (in a slavery-like context or not) with the captive before distributed by the Muslim leader, then it is unlawful intercourse or zina punishable as h.ud¯ud (stoning if perpetrator is married, lashing if not). If the intercourse involves violence, it is punishable by additional ta’zir and diyat 100 as explained earlier, with the addition of freeing the slave if such violence occurs towards slaves after the Muslim leader has legally distributed them. The second scenario is if the Muslim leader has prohibited enslavement. Here, any case of practice of enslavement-like situation would be unlawful and any sexual intercourse committed in that would also be unlawful. The base punishments would be the same as the previous scenario, and it is also possible to add ta’zir punishments for disobeying the Muslim ruler.

10.4.4 Confining, Deporting/Transferring/Displacing Civilians In the ICC, the war crime of confining and deporting or transferring civilians are basically necessity based. Confining civilians is a war crime unless the civilians in question might be a security threat to the army. Even after a possible security reason is present to confine, the captor must without undue delay examine the merits and, if the civilian is proven not to be a security threat, they must be released.101 As for deporting or transferring (to a location within the army’s territory or outside of it), also including displacement, is a war crime as well unless it is to protect the civilian population or for imperative military reasons as per Article 49 of the 4th Geneva Convention 1949.102 From an Islamic law perspective, the issue of confining civilians is firstly related to the law of war captives. In general, persons belonging to the (defeated) enemy can be brought into captivity except those under peace treaties with the Muslims.103 However, the ‘ulama differ on whether it is permissible to capture persons who are not considered to present any security concern. The Hanafis and Hanbalis explain that there is no benefit in detaining those who do not pose any threats.104 The Malikis in releasing slaves). As mentioned above, leaders can just decide to not take slaves so if adopting treaties or policies prohibiting enslavement is not against Islamic law, then neither is a customary international law with the same effect. See: Muhammadin 2021, p. 55. However, again, this is ijtihad which cannot annul each other. 99 Al-Maws¯ u‘ah al-Fiqhiyyah 2003, vol. 4, p. 200; Al-Shabrawi 2010, vol. 19, p. 395. 100 Diyat is lower for slaves than for free persons. See: Al-Sharb¯ın¯ı 2006, vol. 5, pp. 435, 437. 101 See: Articles 42–43 of the 4th Geneva Convention 1949. See: Dormann et al. 2004, pp. 114–118. 102 Ibid., pp. 108–109. 103 Al-Maws¯ u‘ah al-Fiqhiyyah 2003, vol. 4, p. 152; Al-Sharb¯ın¯ı 2006, vol. 6, p. 39. 104 Al-Maqd¯ıs¯ı n.d., vol. 10, pp. 404, 409.

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say that anyone not executed can be detained, except isolated hermits,105 while the Shafi‘is say that anyone can be detained.106 Despite the differences, we can see that they are all in agreement that the basis of detainment or confinement is a necessity of security. A second way to see confining civilians is from a law enforcement perspective. An Islamic government can have police forces which, like any other police force, detain anyone who threats public security.107 This is of course outside of an armed conflict discussion, but similar logic surely applies as well as similar necessity is present. Muslims who detain civilians without proper justification would therefore either act against mas.lah.at (from a law of war captive perspective) or abuse their position (from a law enforcement perspective). It is clear that an abuse of office position to commit injustice could be punishable by ta’zir.108 As for the committing an act against mas.lah.at (i.e. inflicting mudarat) can be punishable by ta’zir. As for the issue of deportation or transfer, the discussion usually surrounds exile and harm towards property. To banish a person into exile, perhaps the closest to displacement,109 is usually a criminal punishment which can be imposed inter alia for unlawful sexual intercourse for an unmarried person (on top of lashing) as explained earlier and, even then, it is temporary. Punishments may only be imposed towards those proven to be criminals. Naturally, imposing it towards undeserving persons would be a violation of Islamic law.110 Harm towards property is relevant because deportation or transfer would usually involve the force abandonment of property, especially houses. The scholars seem to agree that houses and buildings belonging to non-Muslims of the enemy must not be harmed except if there are direct military necessity.111 Additionally, if the deportation or transfer is conducted with force, then this is also generally impermissible considering the prohibition to harm non-combatants as explained earlier. If there is urgent necessity to force civilians to leave their homes, for example if there is actual well-founded fear for the civilian safety if they remain in the area, then on the basis of darurat they may be asked or even forced to leave.112 If there are imperative military necessities to use certain houses owned by civilians, it is possible to take analogy from the permissibility of a government to take lands for public use if there is necessity and it must be followed with fair compensation.113 Such ruling of land-taking applies within the Islamic territory and in peacetime which is different 105

Al-Dasuqi n.d., vol. 2, p. 177. Al-Ramli 1357 H, vol. 8, p. 61. 107 Al-Zuhayl¯ı 2011, vol. 8, p. 465. . 108 Al-Mawardi 2006, p. 86. 109 Since it focuses more on expelling a person from a location but without any designated destination, unlike transfers or deportations. 110 Al-Suy¯ ut.¯ı 2011, p. 155. 111 Ibn Rushd n.d., vol. 1, p. 152; Al-Shawk¯ an¯ı 1412 H, vol. 7, p. 253. 112 Al-Suy¯ ut.¯ı 2011, p. 218. 113 Al-Zarqa 1967, vol. 1, p. 248. 106

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from war situation outside the Islamic territory, but perhaps similar principles can be taken as application of the general principle that the sanctity of wealth should be protected and harming the property of both a Muslim and dhimmis is a crime.114 Having said all that, if civilians are unlawfully deported or transferred, there are two consequences. First, restitution shall be made for the damage inflicted, be it safe return and/or compensation towards other losses of property. Second, the perpetrator could be punished with ta’zir. Especially if the Muslim states have agreed to relevant IHL instruments, they would be legally obliged to implement sufficient punishments.

10.5 Complementarity and Ne Bis In Idem To see whether traditional Islamic scholarship criminalization for war crimes against civilians could complement the ICC, it may be insufficient to only prove that similar acts are punishable in both laws. Rather, reading together Articles 17(1)(c) and 20(2– 3) of the ICC Statute, the laws punishing the similar acts in the ‘domestic’ systems may or may not be acceptable if they are classified merely as ‘ordinary crimes’ in the domestic law.115 The main concern regarding the classification of ‘extraordinary crimes’ in international law as ‘ordinary’ crimes in domestic law is that it may result in sham proceedings made to shield perpetrators, demean the gravity of the extraordinary crime committed, and even if convicted will only result in inadequate punishments.116 In a section titled ‘Process and Not Outcome’, Jo Stigen mentions in his book that the issue here is whether the domestic prosecution was ‘genuine’ and other aspects of the criminalization (including severity of punishment, or lack thereof) is used to indicate genuineness.117 A large part of this matter is therefore related to criminal procedural law, which is mostly beyond the scope of this research. As far as the substantive law goes, especially in terms of delict formulation, it is good news that ta’zir is the most common channel to criminalize the vast majority of acts constituted as war crimes against civilians by the ICC Statute. As explained earlier, ta’zir in traditionalist jurisprudence is very often non-specific and leaves a large amount of discretion for the Muslim rulers to impose punishments based on mas.lah.at. This means that the Muslim rulers can elaborate the crimes in question based on the elements provided by the ICC Statute and modern IHL. As additional indication, one may also consider the level of punishment. Various war crimes discussed earlier, such as murder and rape, can be punishable by death 114

See the Qur’an in Surah Al-Baqarah (2) verse 188. Also: Al-L¯ah.im 2011, vol. 2, p. 29; AlMaws¯u‘ah al-Fiqhiyyah 2003, vol. 36, p. 40. 115 International criminal law scholars seem to have various opinions on this matter. El-Zeidy 2008, pp. 307–308. 116 Schabas 2004, p. 88; El-Zeidy 2008, pp. 73, 307. 117 Stigen uses the term ‘genuine’ to indicate ‘willingness’ or ‘ability’ (as opposed to ‘unwilling’ or ‘unable’) as per Article 17 of the ICC Statute. See: Stigen 2008, pp. 216–217.

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under Islamic law. In many cases, certain aggravating factors (such as the number of civilians unjustly killed or violence involved in the rape) due to their nature committed in war are taken into account so they are classified as ‘extraordinary’. Nonetheless, if the punishment is death, it can hardly be seen as shielding the perpetrator, or at least there is nothing the ICC can do about the particular perpetrator anymore. There could be a difficult discussion regarding lashing that could be imposed either by h.ud¯ud (such as for unlawful sexual intercourse by an unmarried person) or by ta’zir. On one hand, lashing might (in laymen eyes) be seen as a tiny punishment unworthy of a serious crime, especially if the number of lashes is low, as a judge can technically impose as few as one lash. On the other hand, the gravity of crimes mentioned here would necessitate proportionally higher (as opposed to lower) amounts of lashes, especially unlawful sexual intercourse by an unmarried person (i.e. one hundred lashes). Most importantly, most international soft law has classified lashing as torture and inhumane treatment.118 Surely, international law cannot claim that lashing is torturous and inhumane and, at the same time, an insufficient punishment for an extraordinary crime.119 An issue that would require further discussion in this matter would be how the Islamic sanctions themselves would be considered as lawful under international law. The most obvious examples of such sanctions discussed in this chapter are lashing and stoning which are considered to violate international human rights law. As mentioned much earlier, some academics suggest that there should be a reform in Islamic law to conform to modern standards, such as Afsah and An-Na’im. Naturally, by their logic, these kinds of ‘inhumane’ penalties should simply be abolished. A strictly traditionalist view, however, would not agree with that. Methods to ‘reform’ Islam by using contemporary hermeneutical readings and interpretations have been heavily criticized by traditionalist scholars.120 This would perhaps be another point where Islamic law is incompatible with international law. In the case of stoning, while it will apparently remain incompatible with international law, scholars have pointed out how the evidentiary threshold appears to be impossibly high so that the chance of it being implemented is very low.121 In case of sex-related crimes discussed in this chapter, it is therefore unlikely that stoning will be applied and ta’zir will more likely be the dominant form of punishment. As for lashing in the case of hudud for zina, that will remain as a point incompatible with international law, but the likeliness of its implementation is low for the same reason as stoning. In the context of ta’zir, in theory the Islamic governments can choose to imprison instead but it appears that there is nothing Islamically wrong to 118

See inter alia: Report of the Special Rapporteur on the question of torture, Manfred Nowak, UN. Doc E/CN.4/2006/6; Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (No. A/60/316); and Committee Against Torture Doc. No. CAT/C/CR/28/5, 2002. 119 In this respect, international criminal law seems to usually direct much more attention to try prevent international crime perpetrators from being punished less than what they deserve. See inter alia: Schabas 2004, p. 88; El-Zeidy 2008, pp. 73, 307. 120 See inter alia: Al-B¯ ut.¯ı 1973; Setia 2016; Salim 2010; Husaini and Al-Baghdadi 2007. 121 Brown 2017, pp. 12–14.

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implement lashing if the government sees that it helps bring mas.lah.at. This too is a point of incompatibility with international law, except if the mainstream human rights discourse becomes more open to see the different opinions on this issue.122 As Ali and Heer noted, these issues of penalties ‘… are areas for serious and honest debate across the religious, political and cultural divides.’123 Regarding punishment by diyat and other compensations, there are two issues to mention here. First, most if not all cases of these are topped by ta’zir which could provide punishments worthy of the crime in question. Second, most importantly, diyat and compensations would complement a restorative justice function for the victims which, within what the ICC Statute can reach, would otherwise seem to only extend to victim participation in the trials.124

10.6 Conclusions The previous sections have shown that there are major compatibilities between Islamic traditional legal scholarship and relevant international criminal law concerning war crimes against civilians, at least in general principles. Islamic law generally agrees that the Muslim army should not engage in (i) deliberately harming civilians, (ii) excessive collateral civilian losses, (iii) inhumane or torturous harm towards civilians, and (iv) confining, deporting/transferring/displacing civilians. The immediate challenge of this research was to bridge between the ‘language’ spoken by Islamic criminal law and the ICC Statute, as similar problems can be expressed differently in the respective legal systems. As part of this challenge, the current Islamic traditional legal scholarship has yet to elaborate various details of rulings relevant to contemporary international law and especially concerning the practice of warfare. Such a lack of detailed elaboration by the ‘ulama results in what appears to be a discrepancy with contemporary IHL, despite shared general principles. It was essential to address these potential differences in a way that would be acceptable within the frameworks of both Islamic and international law. Having that in mind, so many doors turned out to be open to reconcile the apparent discrepancies, at least as far as the scope of this research is concerned.125 As found in most issues, a traditionalist method would develop Islamic criminal law to meet the new challenges in modern warfare in a way that allows or even necessitates the adoption of international criminal law. For example, nothing in the existing traditional legal scholarship 122

There is some criticism regarding whether lashing really constitutes torture and inhumane treatment: Muhammadin et al. 2019. Nonetheless, this is against the mainstream position on the issue. 123 Ali and Heer 2018, p. 198. 124 See inter alia: Garbett 2017, pp. 198–220; Pena and Carayon 2013. 125 This is unlike the general debate on Islam and human rights where there are extremely difficult areas to reconcile. See inter alia: Muhammadin and Mohd Kamal 2019; Khan 2016.

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seems to mention anything specific on forced deportation during warfare, but there are strong general principles necessitating its prohibition. Nonetheless, there are some discrepancies that still cannot be reconciled, such as sexual slavery in some very specific contexts. Further research needs to be done in this area. Other types of war crimes specifically and international crimes generally should also be assessed. Details of procedural law (including especially the decision to not prosecute a case) are an essential part of complementarity and thus begs to be explored. This genuine and open dialogue must go on, while we figure out what to do when we meet what is perhaps the last challenge: what do we do when we meet differences we cannot reconcile? Would we turn to a new Eurocentrism-like oppressor we initially sought to destroy?

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Boisard MA (1980) On the Probable Influence of Islam on Western Public and International Law. Int J Middle East Stud 11:429–450 Brown JAC (2015) Is Islam Easy to Understand or Not?: Salafis, the Democratization of Interpretation and the Need for the Ulema. J Islam Stud 26:117–144 Brown JAC (2017) Stoning and Hand Cutting: Understanding the Hudud and the Shariah in Islam. Yaqeen Institute for Islamic Research, Irving (TX) Çi˘gdem R (2008) Crimes Against Honour in Islamic/Ottoman Law: A Study of Qadhf/Slander in Comparative Perspective. Selçuk Üniversitesi Hukuk Fakültesi Derg 16:45–62 Crimmins JE (1986) Bentham on Religion: Atheism and the Secular Society. J Hist Ideas 47:95–110 Daud WMNW (2013) Islamization of Contemporary Knowledge and the Role of the University in the Context of De-Westernization and Decolonialization. UTM Press, Johor Baru Dormann K, Doswald-Beck L, Kolb R (2004) Elements of War Crimes Under the Rome Statute of the International Criminal Court. Cambridge University Press, Cambridge Eckhardt W (1989) Civilian Deaths in Wartime. Bull Peace Propos 20:89–98. Eckhardt W (1991) War-Related Deaths Since 3000 BC. Bull Peace Propos 22:437–443. El-Zeidy M (2008) The Principle of Complementarity in International Criminal Law: Origin, Development, and Practice. Brill/Nijhoff, Leiden Farrar S (2014) The Organisation of Islamic Cooperation: Forever on the Periphery of Public International Law? Chinese J Int Law 13:787–817. Fraser J (2020) Exploring Legal Compatibilities and Pursuing Cultural Legitimacy: Islamic Law and the International Criminal Court. In: Fraser J, Leyh BM (eds) Intersections of Law and Culture at the International Criminal Court. Edward Elgar Publishing, Cheltenham, pp 378–396 Garbett C (2017) The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice. Restor Justice 5:198–220. Gardam JG (1993) Proportionality and Force in International Law. Am J Int Law 87:391–413. Hamidullah M (2011) Muslim Conduct of State. Sh. Muhammad Ashraf, Lahore Harris KMA (2012) Pandangan Islam Terhadap Tradisi dan Kemodenan. J Hadhari 4:23–48. H.asan ‘U bin ‘A (1415 H) Manhaj Al-Istidlal ‘Al¯a Al-I‘tiq¯ad ‘Inda Ahl al-Sunnah Wa al-Jam¯a‘ah. Maktabah Ar-Rushd, al-Riy¯ad. Haykal MK (1996) Al-Jih¯ad wa al-Qit¯al f¯ı al-Siy¯asah al-Shar‘iyyah, 2 Vols. Dar al-Bayariq, Beirut Henckaerts J-M, Doswald-Beck L (2005) Customary International Humanitarian Law, 2 Vols. Cambridge University Press, Cambridge Husaini A (2005) Wajah Peradaban Barat: Dari Hegemoni Kristen Ke Dominasi Sekular-Liberal. Gema Insani Press, Jakarta Husaini A, Al-Baghdadi A (2007) Hermeneutika & Tafsir Al-Qur’an. Gema Insani Press, Jakarta Ibn ‘Abd Al-Barr YI ‘Abd A (1993) Al-Istidhk¯ar, 30 vols. Dar al-Wa’yi, Cairo ¯ ar, 11 vols. Idarah Al-Tiba’ah AlIbn H.azm ‘Al¯ı ibn Ah.mad ibn Sa‘¯ıd (n.d.) Al-Muhall¯a bil-Ath¯ Muniriyyah, Egypt Ibn Rushd M ibn A (2000) The Distinguished Jurist’s Primer, 2 Vols. Garnet Publishing, Reading Ibn Rushd M ibn A (n.d.) Bid¯ayat al-Mujtahid wa Nihayat al-Muqtas.id, 2 Vols. Dar al-Fikr, Beirut ICC (2021) ICC Prosecutor Mr Karim A.A. Khan QC Appoints Seventeen Special Advisers. https:// www.icc-cpi.int/Pages/item.aspx?name=pr1611. Accessed 26 November 2021 Jad YR (2010) Fi Fiqhi Al-Ijtihad wa Al-Tajdid. Darussalam, Cairo Khan Z (2016) Refractions Through the Secular: Islam, Human Rights, and Universality (Ph.D Dissertation). The City University of New York, New York Kilcup J (2016) Proportionality in Customary International Law: An Argument Against Aspirational Laws of War. Chic J Int Law 17:244 Mansur AA (1973) Syari’at Islam dan Hukum Internasional Umum. Penerbit Bulan Bintang, Jakarta Mohamad Y (2016) Contemporary Ijtihad: An Analysis of Individual and Collective Approaches. Islamic and Strategic Studies Institute, Kuala Lumpur

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Muhammadin FM (2020a) An Islamic Legal Scholar as Judge at the ICC: In Conformity with Islamic Law? https://voelkerrechtsblog.org/an-islamic-legal-scholar-as-judge-at-the-icc-in-con formity-with-islamic-law/?fbclid=IwAR0a1f90yRpJiLWg0wp9-CD8w5-69UzSj6NkePz7K0 tXRw5DnDEJB82jvVQ. Accessed 14 March 2021 Muhammadin FM (2020b) Fiqh Al-Jih¯ad in the Contemporary World: Addressing the Gaps in the Regulations on the Means and Methods of Warfare (Ph.D Thesis). International Islamic University of Malaysia, Selangor Darul Ehsan Muhammadin FM (2021) Mukadimah Fikih Siyar: Pokok-Pokok Hukum Internasional Islam Kontemporer. Bentala Tamadun Nusantara, Yogyakarta Muhammadin FM, Mohd Kamal MH (2019) The Western Universalism v. Cultural Relativism Debate on Human Rights and Islam: An ‘Aq¯ıdah-Based Approach. Afkar J ’Aqidah Islam Thought 21:175–216 Muhammadin FM, Wahab TK (2018) Fiqh al-Jih¯ad in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law. IIUM Law J 26:241–274 Muhammadin FM et al. (2019) Lashing in Qanun Aceh and the Convention Against Torture. Malaysian J Syariah Law 7:11–24 Nyazee IAK (2003) Islamic Jurisprudence. The Other Press, Selangor Pena M, Carayon G (2013) Is the ICC Making the Most of Victim Participation? Int J Transit Justice 7:518–535 Qol‘ahji MR (2001) Maws¯u‘ah Fiqh Ibn Taymiyyah. Dar al-Nafas, Lebanon Rassam AY (1998) Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International Law. Va J Int’l L 39:303 Saipudin (2016) Kritik Atas Pemikiran Abdullahi Ahmed An-Na’im tentang Distorsi Syariat terhadap HAM. Ahkam 16:31–40 Salim F (2010) Kritik Terhadap Studi Al-Qur’an Kaum Liberal. Perspektif, Jakarta Schabas WA (2004) An Introduction to the International Criminal Court. Cambridge University Press, Cambridge Sellers PV, Kestenbaum JG (2020) ‘Sexualized Slavery’ and Customary International Law. In: Weill S et al. (eds) The President on Trial: Prosecuting Hissène Habré. Oxford University Press, Oxford, pp 366–360 Setia A (2016) Freeing Maq¯as.id and Mas.lah.ah from Surreptitious Utilitarianism. Islam Sci 14:127– 157 Shaw MN (2017) International Law, 8th edn. Cambridge University Press, Cambridge Stigen J (2008) The Relationship Between the International Criminal Court and National Jurisdictions: The Principle of Complementarity. Martinus Nijhoff, Leiden/Boston Tiedrez JR (2020) Time for an Islamic Legal Scholar at the ICC? https://voelkerrechtsblog.org/ time-for-an-islamic-legal-scholar-at-the-icc/. Accessed 14 March 2021 Weeramantry CG (1988) Islamic Jurisprudence: An International Perspective. Palgrave Macmillan, New York

Fajri Matahati Muhammadin is an Assistant Professor at the Department of International Law, Faculty of Law, Universitas Gadjah Mada, Indonesia. He received his Sarjana Hukum from the Faculty of Law, Universitas Gadjah Mada, Indonesia. His LL.M. was obtained from the University of Edinburgh, United Kingdom, and his Ph.D. from the Ahmad Ibrahim Kuliyyah of Laws, International Islamic University Malaysia (AIKOL IIUM). His research interest revolves around the intersection between public international law and the Islamic sciences. Ahmad Sadzali is an Assistant Professor in the Department of Constitutional Law of the Universitas Islam, Indonesia. He received his License from the Faculty of Shari‘ah and Laws, Al-Azhar University, Cairo, Egypt, and obtained his LL.M. at the Universitas Islam, Indonesia. His expertise and research area is Islamic constitutional law.

Chapter 11

The ICC’s Role in Countering Patriarchal Claims in Reproductive Justice Angie K. García Atehortúa

Contents 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 From Rape Towards Reproductive Justice: The Crime of Forced Pregnancy . . . . . . . . . . 11.3 Forced Pregnancy in the Negotiations of the Rome Statute and the Elements of the Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Dealing with the Narrow Definition of Forced Pregnancy . . . . . . . . . . . . . . . . . . . . . . . . . 11.5 Specialization of the ICC’s Jurisprudence: The Ongwen Case . . . . . . . . . . . . . . . . . . . . . 11.6 The Role of the ICC in Reproductive Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7 Norm Transfer in Reproductive Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter discusses the impact of the Ongwen case in changing the patriarchal fear of criminalising forced pregnancy as a means of achieving reproductive autonomy. On 4 February 2021, the ICC’s Trial Chamber IX pioneered international criminal jurisprudence by convicting a defendant, for the first time with charges of forced marriage as an inhumane act and forced pregnancy. Although the crime of forced pregnancy is explicitly listed in the ICC Statute, its narrow definition is the reflection of the patriarchal fear of its criminalization as a means of interfering with national laws on abortion. The chapter analyses the negotiations of the Elements of Crimes, the ICC Statute provisions and other related discussions on the gendered nature of this crime, and the intersecting grounds that motivate its commission. The author argues that the ICC has a prominent role in addressing states’ attempts to limit the right to reproductive autonomy as explicitly depicted in its drafting history. In doing so, the chapter introduces the feminist strategy of norm transfer in order to explore how legal standards created at the level of international criminal law make their way into domestic contexts. Finally, the chapter evaluates the effect that the Ongwen judgement can have on domestic reproductive justice. A. K. García Atehortúa (B) Independent Lawyer, Bogotá, Colombia e-mail: [email protected] International Criminal Court, The Hague, The Netherlands © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_11

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Keywords Forced pregnancy · Reproductive justice · ICC · Ongwen case · Norm transfer · Patriarchal claims · Abortion

11.1 Introduction On 4 February 2021, the ICC’s Trial Chamber IX found Dominic Ongwen, a former commander in the Lord’s Resistance Army (LRA), guilty of 61 counts of war crimes and crimes against humanity, including 19 counts specific to 11 charges of sexual and gender-based crimes. Unlike previous cases at the ICC, the Ongwen case is the first to charge the reproductive crime of forced pregnancy as a crime against humanity and a war crime.1 While international criminal law has not completely overlooked the issue of reproductive violence, the concept was not clearly articulated and not all forms of reproductive violence were explicitly recognised.2 Prior to the establishment of the ICC, reproductive violence and in particular forced pregnancy was seldom considered as a crime under international law, except when used as a tool of genocide or ‘ethnic cleansing’.3 The ICC Statute is the first international instrument that lists and defines the crime of forced pregnancy opening the door to advance reproductive justice. However, its codification comes after a contentious process of negotiation. Some delegations opposed to criminalize forced pregnancy arguing that it may have the potential to interfere with national laws criminalizing abortions.4 As a result, the ICC Statute set a high threshold which limits the circumstances expected to be covered by the crime. The crime of forced pregnancy requires two material elements of unlawful confinement and forcible impregnation; and the mens rea requirement of ‘affecting the ethnic composition of any population or carrying out other grave violations of international law’.5 This formulation is puzzling considering delegates could have relied on a more progressive view of forced pregnancy.6 Despite the shortcomings of this definition, its inclusion in the ICC Statute is a notable achievement to ensure the prosecution of forced pregnancy as an independent category of crime. The Ongwen judgement demonstrates its ground breaking nature

1

ICC press release, 4 February 2021, Dominic Ongwen declared guilty of war crimes and crimes against humanity committed in Uganda. ICC-CPI-20210204-PR1564, https://www.icc-cpi. int/Pages/item.aspx?name=pr1564. Accessed 2 February 2022. 2 Altunjan 2021, p. 2. 3 Markovic 2008, p. 443. 4 Ibid. 5 ICC Statute Article 7(2)(f) defines forced pregnancy as ‘the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other violations of international law’. 6 Amnesty International 2020, p. 23.

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because, along with the conviction for forced pregnancy, it recognises that the value protected by this crime is primarily reproductive autonomy.7 This chapter seeks to analyse the role of the ICC to address states’ attempts to limit the right to reproductive autonomy. It examines the influence that the Ongwen case may have in changing local patriarchal discourses perpetuating reproductive violence. In doing so, the analysis is framed in the feminist strategy of norm transfer. In situating this strategy within the complementarity regime of the ICC, it argues that the ICC jurisprudence and codification of the crime provide a platform to achieve normative change in the domestic level and encourage further discussions in contentions aspects of sexual and reproductive violence.8 In this sense, positive complementarity is directed to trigger domestic reform of norms on sexual and gender-based crimes. Therefore, the effects of the conviction of Dominic Ongwen can go beyond securing the investigation and conviction of forced pregnancy, to be extended to concrete developments into domestic settings. To frame this discussion, the first section examines the evolution in the characterisation of sexual and reproductive violence from a historical perspective, particularly through international instruments and courts preceding the creation of the ICC. By considering forced pregnancy in the context of the ICC negotiations, this chapter also aims to draw attention to the underlying reasons limiting the scope of international crimes. The critical analysis focuses on the domestic patriarchal structures countering reproductive justice demands and their influence in the drafting of the definition of forced pregnancy. The following section reviews the ICC’s jurisprudence in prosecuting reproductive violence, up to and including the Ongwen case. The final section of this chapter explores the role that the ICC is called to play to broaden the scope of its jurisprudence on reproductive violence. In doing so, it examines the possible effect that the Ongwen case may have to dismantle power structures and domestic patriarchal narratives hindering the exercise of reproductive rights. The chapter focuses on the analysis of forced pregnancy since it is the most relevant aspect of the decision in regard to reproductive violence. For the purpose of the analysis, reproductive violence is defined as the type of ‘violence which involves a violation of reproductive autonomy or which is directed at people because of their reproductive capacity’.9 This chapter recognizes the need to have a critical approach to the idea that sex is biologically determined, and pregnancy is exclusively female. Despite the fact that this chapter generally refers to women as victims of the crime of forced pregnancy, pregnant men, trans and non-binary individuals can also be potential victims of this crime.10 Considering the multiple edges of the Ongwen 7

ICC, Trial Chamber IX, The Prosecutor v. Dominic Ongwen, 4 February 2021, ICC-02/04-01/15, para 2717. 8 Dowds 2019, p. 57. 9 Grey 2017, p. 906. 10 Through a critical approach to the discursive construction of sex and gender, it is possible to ensure that trans individuals are not denied their reproductive rights. In order to challenge the traditional reliance on gender and sexuality hierarchies based on biology, victims of the crime of forced pregnancy should include all parents no matter what their biological sex, gender identity or sexual orientation is. For further discussion, see Karaian 2013; Sørlie 2018; Rosenblum et al. 2010.

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judgement, the exclusive reference to aspects related to the crime of forced pregnancy does not ignore the relevance of the criminalization of other aspects of reproductive violence.

11.2 From Rape Towards Reproductive Justice: The Crime of Forced Pregnancy Prior to the criminalization of rape through international conventions, rape and other forms of sexual violence were viewed as a socially acceptable practice in war and tolerated as a means of propaganda, humiliation and terror.11 Sexual violence was then depicted as violations of the victim’s honor. In the Geneva Conventions12 and their 1977 Additional Protocols,13 sexual violence is depicted in terms of chastity and modesty of women.14 For instance, Article 27 of Geneva Convention IV states that ‘women shall be especially protected against any attack on their honour […]’.15 The honour-based interpretation of sexual violence was to some extent overcome through the development of international criminal law.16 The statutes of the ICTY17 and the ICTR18 explicitly criminalise rape. The ICTR statute also explicitly listed rape as an outrage upon personal dignity which constitutes a violation of Article 3 common to the Geneva Conventions and to Additional Protocol II. With the criminalization of enslavement,19 torture,20 other inhumane acts,21 wilfully causing great suffering22 11

Baumeister 2018. International Committee of the Red Cross, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31 (Geneva Convention I); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85 (Geneva Convention II); Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (Geneva Convention III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (Geneva Convention IV). 13 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 (Protocol I), and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NonInternational Armed Conflicts, 8 June 1977 (Protocol II). 14 Gardam and Jarvis 2001, pp. 96–97. 15 IV Geneva Convention, Article 27. 16 O’Byrne 2011, p. 499. 17 Statute of the International Criminal Tribunal for the former Yugoslavia, S/Res/827, UN SCOR 48th session, 3217th meeting (1993). 18 Statute of the International Criminal Tribunal for Rwanda, S/Res/955, UN SCOR 49th session, 3453rd meeting (1994). 19 ICTY Statute, Article 5(c); ICTR Statute, Article 3(c). 20 ICTY Statute, Article 5(f); ICTR Statute, Article 3(f). 21 ICTY Statute, Article 5(i); ICTR Statute, Article 3(i). 22 ICTY Statute, Article 2(c); ICTR Statute, Article 4(c). 12

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and outrages on human dignity,23 the ICTY and the ICTR Statutes implicitly opened the possibility to prosecute a broad spectrum of gender-based crimes. Additional progress has been made with the recognition of rape as a war crime and an act of genocide in the jurisprudence of the ICTY and ICTR.24 Some of the decisions adopted by these international tribunals outlined the seriousness of sexual violence arguing that rape and other forms of sexual violence constitute torture and a violation of ‘the inherent dignity and the right to physical integrity of the human being’.25 Despite the increased attention to rape, some forms of gender-based violence such as reproductive crimes were not expressly recognised in the practice of international tribunals. Like sexualised violence, reproductive violence served as an instrument of war. Sexual and reproductive crimes were perpetrated on a massive scale during the conflicts in the former Yugoslavia, Rwanda and Kosovo in the 1990s.26 Reports and expert findings demonstrated that mass rape and forced pregnancy of women were used as a strategy to destroy culture and life as well as a method of ethnic cleansing and genocide.27 However, international criminal tribunals dismissed the idea of reproductive violence as a violation of victims’ bodily security and autonomy.28 The focus on reproductive crimes, particularly forced pregnancy, emphasised the intent to destroy the ethnic composition of the group to which the victim belongs.29 This approach was reinforced in the jurisprudence of the ad hoc tribunals. For instance, the Karadži´c and Mladic cases, recognised the commission of massive rape and confinement with the aim of forcing the birth of Serbian children.30 Yet, reproductive violence was somehow addressed under other charges, there were not specific charges for forced pregnancy.31 Notably, in the Akayesu decision, the ICTR recognised the imposition of birth-prevention measures such as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages.32 Although the ICTR reviewed cases where a woman was impregnated by a man of another group, with the intent that the child belongs to the father’s group, there were no charges of forced pregnancy and those cases were covered under the crime of rape.33 23

ICTR Statute, Article 4(h). Brady 2012, p. 75. 25 ICTY Trial Judgement, Prosecutor v. Delali´ c et al., 16 November 1998, IT-96-21-T. 26 Boon 2001, p. 628. 27 UN Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of the UN Security Council Resolution 808 (1993), 3 May 1993, UN Doc. S/25704. 28 Boon 2001. 29 Ibid., p. 656; Grey 2017, p. 908. 30 ICTY Trial Chamber, Prosecutor v. Radovan Karadži´ c and Ratko Mladi´c, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, IT-95-5-R61 and IT-95-18-R61. 31 Grey 2017, p. 916. 32 ICTR Chamber I, The Prosecutor v. Jean-Paul Akayesu, 2 September 1998, ICTR-96-4-T, para 507. 33 Ibid., para 121. 24

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The lack of codification and specific charges on reproductive violence demonstrated that women’s dignity and bodily autonomy was not a priority on the agenda of international criminal tribunals, and it was only considered a crime when viewed through the lens of genocide or ethnic cleansing.34 The ICC Statute incorporates many of the advances made by the ad hoc Tribunals and resolves some of the previous omissions and, by listing and defining a range of sexual and reproductive crimes.35 Article 7(1)(g) of the ICC Statute sets out that, when committed as part of a widespread or systematic attack against any civilian population, ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity’ constitute crimes against humanity. In the case of forced pregnancy, the Statute establishes that it can be prosecuted as a war crime pursuant to Article 8(2)(e)(vi). Even though the Statute does not have a comprehensive list of many of the forms of reproductive violence, the ICC Statute took a step forward as the first international instrument addressing reproductive violence and codifying forced pregnancy.

11.3 Forced Pregnancy in the Negotiations of the Rome Statute and the Elements of the Crime The ICC Statute was negotiated between 1994 and 1998. The first Draft Statute of the ICC was prepared by the International Law Commission in 1994 and submitted before the United Nations General Assembly (UNGA).36 The Preparatory Committee on the Establishment of an International Criminal Court started the consolidation of a final draft. Based on this draft, the UNGA convened the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome, Italy, to finalise and adopt a convention.37 The ICC Statute was adopted on 17 July 1998 with 120 state delegations voting in favour, seven against and 21 states abstaining.38 The negotiation of the Elements of Crimes39 and the Rules of

34

Grey 2017, p. 918. Killean 2015, p. 332. 36 Draft Statute for an International Criminal Court, Report of the International Law Commission on the work of its forty-sixth session, 2 May–22 July 1994, Official Records of the General Assembly, Forty-ninth session, Supplement No. 10, UN Doc. A/49/10 (1994), pp. 29–140. 37 Cassese et al. 2002, p. 3; Bassiouni and Schabas 2005, p. 40. 38 Benedetti et al. 2013, p. 115. 39 UN Preparatory Commission for the International Criminal Court, Report of the Preparatory Commission for the International Criminal Court, Addendum Part II, Finalized draft text of the Elements of Crimes, 2 November 2000, UN Doc. PCNICC/2000/1/Add.2. 35

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Procedure and Evidence,40 two complementary documents to assist judges in the interpretation of the Statute, took place between February 1999 and July 2000.41 During the negotiations concerning sexual and reproductive crimes, in addition to state delegations, non-governmental organisations (NGOs) and women’s rights activists played a key role in developing the definitions of crimes of sexual and gender-based violence.42 Sexual and reproductive crimes were amongst the most contentious aspects to negotiate because of the contrasting cultural, political and legal assumptions. Opposition to progressive definitions came mainly from states with strong patriarchal structures where religion plays a leading role in legal and social matters.43 For instance, the Arab Bloc States proposed that the acts enumerated as elements of crimes against humanity ‘do not affect family matters recognized by different national laws of the States Parties’.44 Forced pregnancy does not escape the controversy. Although many States agreed to recognize the crime of ‘forced pregnancy’ as a war crime and crime against humanity within the jurisdiction of the ICC, it was one of the most difficult and controversial provisions to draft.45 Some States argued that the crime was unnecessary because its elements were already covered by the crimes of rape and unlawful detention or understood it as an aggravating circumstance of rape.46 Conversely, other States, including Bosnia and Herzegovina and the United States of America, argued that this approach denied the existence of a distinct and terrible crime.47 Based on the principle of fair labelling, some states held that the crime of forced pregnancy should be specifically punished in the Statute.48 40

UN Preparatory Commission for the International Criminal Court, Report of the Preparatory Commission for the International Criminal Court, 2 November 2000, UN Doc. PCNICC/2000/1/Add.1. 41 Steains 1999. 42 Bedont and Hall-Martinez 1999; Halley 2008. 43 Baumeister 2018, p. 25. 44 UN Preparatory Commission for the International Criminal Court, Proposal Submitted by Bahrain, Iraq, Kuwait, Lebanon, the Libyan Arab Jamahiriya, Oman, Qatar, Saudi Arabia, the Sudan, the Syrian Arab Republic and United Arab Emirates Concerning the Elements of Crimes Against Humanity, Article 7(1)(b), UN Doc. PCNICC/1999/WGEC/DP.39 (1999). In addition to the Arab block, the Women’s Caucus and the International Committee of the Red Cross and the delegations of Colombia and the US drove the ICC negotiations. The Women’s Caucus became active in the ICC negotiations of sexual and reproductive crimes to ensure that they were appropriately addressed from a gender perspective. The ICRC’s participation was motivated by its role as the guardian and expert of international humanitarian law. Colombia was aware that it might fall to be investigated by the ICC. Therefore, it had an interest in shaping the definitions of crimes its citizens might be accused of. The US insisted on defining the crimes under the jurisdiction of the ICC as it was concerned about its national sovereignty and the prosecution of its own citizens. 45 Hall et al. 2016, p. 274. 46 Preparatory Committee Meeting, 18 June 1998, A/CONF.183/C.1/SR.5, paras 11, 33, 83; Preparatory Committee Meeting, 17 June 1998, A/CONF.183/C.1/SR.4, paras 63, 66; Steains 1999, p. 367. 47 Steains 1999, p. 367. 48 Preparatory Committee Meeting, 18 June 1998, A/CONF.183/C.1/SR.8, para 83; Women’s Caucus for Gender Justice in the International Criminal Court, Recommendations and Commentary

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Another element in contention was the criminalization of the subsequent conduct of forcibly keeping a woman pregnant.49 During the negotiations for the Elements of Crimes, the insertion of the additional element of keeping a woman pregnant was proposed. However, the proposal was removed from the elements adopted.50 States rejecting this addition claimed that the inclusion of the element of ‘keep a woman pregnant’ would restrict the scope of the crime as it would exclude situations where, for example, the intent is to torture the victim.51 Thus, it is not required that the accused intended to keep the woman pregnant to fulfil the threshold for the crime of forced pregnancy. In the same line, the Holy See proposed a high threshold of intent by limiting forced pregnancy to ‘ethnic cleansing’.52 The main catalyst in the negotiation of the crime of forced pregnancy were the atrocities suffered by Bosnian and Rwandan women who were raped and unlawfully detained with the intent to change the ethnic composition of their group, and then denying them access to medical facilities where they could terminate the pregnancies.53 Therefore, some states preferred a definition that required an ‘ethnic cleansing’ intent, as that would condemn the type of atrocities committed in Bosnia-Herzegovina.54 Conversely, The Women’s Caucus for Gender Justice, a group of women’s rights activists and feminist scholars who participated in the negotiations, and other states took the view that ‘ethnic cleansing’ was only one of several settings in which ‘forced pregnancy’ might occur.55 Other states pushed back against this proposal because of the possibility that the crime of forced pregnancy might be used to challenge restrictions on abortion under domestic law or to entrench a broader right to reproductive autonomy under international law.56 During the Rome Conference, the Holy See sought the exclusion of forced pregnancy from the draft statute on the ground that it threatened national laws discouraging or criminalizing abortion.57 The delegate for Saudi Arabia argued against the inclusion of a crime of forced pregnancy due to the prohibition of abortion in his country. Similarly, Iran claimed that this crime might be used as an argument against the prohibition of abortion.58 The Women’s Caucus for Gender Justice was one of the main actors objecting this limitation; however, many states aligned with for December 1997; UN Preparatory Commission for the International Criminal Court, December 1997, Recommendation 7. 49 Preparatory Commission for the International Criminal Court, Proceedings of the Preparatory Commission at its second session (26 July–13 August 1999), 18 August 1999, PCNICC/1999/L.4/Rev.1, p. 71. 50 Dörmann et al. 2003, p. 330. 51 Ibid., p. 330. 52 Preparatory Committee Meeting, 18 June 1998, A/CONF.183/C.1/SR.5, para 72; Preparatory Committee Meeting, 17 June 1998, A/CONF.183/C.1/SR.3, para 32. 53 Steains 1999, p. 366. 54 Ibid. 55 Cottier and Mzee 2016, p. 500. 56 Grey 2017, p. 919; Bedont 1999, p. 191. 57 Bedont and Hall-Martinez 1999, p. 74. 58 Rome Conference Official Records, Vol. II, p. 148, x 32; and p. 166, x 72.

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this vision, given that abortion was restricted or criminalized in numerous states at the moment of the negotiation.59 As a result, the Statute adopted a ‘narrow’ definition of forced pregnancy.60 The definition incorporated in the Article 7(2)(f) of the ICC Statute comprises two material elements: ‘unlawful confinement of a woman forcibly made pregnant’ and the mens rea requirement of ‘affecting the ethnic composition of any population or carrying out other grave violations of international law’.61 In addition, it states that the definition of forced pregnancy ‘shall not in any way be interpreted as affecting national laws related to pregnancy’.62 While this addition does not create a new element to the crime, it does reflect the concern that the crime of forced pregnancy could interfere with national laws on abortion or related to contraception and women’s rights outside of the patriarchal logic.63 In spite of the limitations in the definition of forced pregnancy, its criminalization in the ICC Statute constituted a success for feminist’s claims.64 The ICC Statute is the first instrument to provide the crime of forced pregnancy an independent meaning from the other sexual and gender-based violence crimes in the Statute. It also allows the proper characterisation of the crime by calling it by its true name. Notably, the codification of the crime proves that it is not enough to prosecute forced pregnancy as a combination of other crimes—e.g., rape, sexual slavery or unlawful detention—, or subsume it under the generic forms of sexual violence or aggravating circumstances. In fact, considering the pervasive effects of this crime, its explicit inclusion in the ICC Statute is a significant achievement.

11.4 Dealing with the Narrow Definition of Forced Pregnancy The ICC Statute’s definition is not completely reflected in the ICC Elements of Crimes that were adopted in 2002 by the Assembly of States Parties to the ICC Statute to assist the Court in interpreting and applying the crimes in the ICC Statute.65 The definition comprises three cumulative requirements: (1) the victim must have been forcibly made pregnant (albeit not necessarily by the perpetrator); (2) the victim must be unlawfully confined by the perpetrator; and (3) the perpetrator acted with 59

Halley 2008, p. 104. La Haye 2001, p. 193. 61 UN Preparatory Commission for the International Criminal Court, Preparatory Committee Meeting, 18 June 1998, A/CONF.183/C.1/SR.5, para 72; Preparatory Committee Meeting, 17 June 1998, A/CONF.183/C.1/SR.3, para 32. 62 Article 7(2)(f) of the ICC Statute. 63 Schabas 2016, p. 191. 64 Chappell 2008, p. 154. 65 ICC, Elements of Crime, Article 7(1)(g)-4, para 1; Article 8(2)(b)(xxii)-4, para 1; Article 8(2)(e)(vi)-4, para 1. 60

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the specific intents to affect the ethnic composition of a population, or to carry out other grave violations of international law.66 The first and the second requirement comprise the material element or actus reus of the crime of forced pregnancy. To prove the crime of forced pregnancy is committed, it is necessary to establish that the perpetrator ‘confined one or more women forcibly made pregnant’.67 ‘Forcibly’ in this context is understood as the ‘violence, duress, detention, psychological oppression or abuse of power’.68 In that sense, the coercive circumstances that make a woman pregnant as well as acts that prevent her from controlling her reproductive cycles undermine the woman’s ability to give voluntary and genuine consent.69 The forced pregnancy could occur prior to or during the unlawful confinement. There is no requirement that the perpetrator was involved in impregnating the victim and neither that the victim actually gives birth to a child.70 Indeed, the Pre-Trial Chamber II in the Ongwen confirmation of charges decision held that ‘it is not necessary to prove that the perpetrator has a special intent with respect to the outcome of the pregnancy’.71 In regard to the unlawful confinement, the prosecutor shall prove that the woman must have been restricted in her physical movement contrary to standards of international law. The Elements of Crimes do not define confinement or indicate a specific duration of it but its essence is the restraint of liberty.72 The core of the crime ‘is in unlawfully placing the victim in a position in which she cannot choose whether to continue the pregnancy’,73 then all other forms of unlawful confinement that restrict the victim’s ability to exercise their sexual and reproductive rights in relation to the pregnancy must apply.74 In order to satisfy the actus reus element, it is therefore sufficient that the person who has been made forcibly pregnant is unlawfully confined for any period of the pregnancy. In addition to the mental elements specified in Article 30, the crime of forced pregnancy has also two alternative intents as it requires that a specific intent to affect the ethnic composition of any population, or a more general intent, in which the forced pregnancy is used to perpetrate other grave violations of international law.75

66

Chinkin 2009, p. 77. ICC, Elements of Crimes, Articles 7(1)(g)-4 and 8(2)(e)(vi)-4 of the ICC Statute, para 1. 68 Ibid., Article 7(1)(g)-1(2). 69 UN Preparatory Commission for the International Criminal Court, Rules of Procedure and Evidence, UN Doc. PCNICC/2000/IJAdd.1 (2000), rule 70(a). 70 Amnesty International 2020, p. 9. 71 ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15-422-red, paras 96–101. 72 Boon 2001, p. 662. 73 ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15-422-red, para 99. 74 Amnesty International 2020, pp. 10–11. 75 ICC, Elements of Crimes, Articles 7(1)(g)-4 and 8(2)(e)(vi)-4 of the ICC Statute, para 1. 67

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The first specific intent involves the intention that with the outcome of the pregnancy the children are born to affect ethnic composition.76 It is not required that the perpetrator’s acts actually weaken or alter the ethnicity of a group or its members, but the intent to produce that effect. Neither the ICC Statute nor the Elements of the Crimes suggest that the perpetrator must intend to substantially affect the ethnic composition. Thus, the intent to affect the ethnic composition of a population by any way or degree will suffice.77 The second intent requirement broadens the scope of forced pregnancy considerably because it goes beyond ethnicity and can apply to situations in which race, culture, religion and other aspects motivate the commission of other grave violations of international law.78 Those grave violations can be drawn from the crimes within the jurisdiction of the ICC, typically described as ‘the most serious crimes of international concern’.79 This approach has been applied by the Pre-Trial Chamber in the confirmation of the charges in the Ongwen case. In the said decision, the Chamber held that the accused confined women who had been made forcibly pregnant with the intent to carry out grave violations such as rape, sexual slavery, forced marriage, enslavement and torture.80 Grave violations of international law can also refer to ‘gross violations of human rights’ and ‘serious violations of international humanitarian law’, whether or not they are expressly criminalized in the ICC Statute or other international instruments. These notions can provide useful analogies on what should be considered ‘grave violations of international law’.81 In this sense, the crime of forced pregnancy can also occur with the unlawful confinement of a forcibly pregnant woman with the intent to rape, sexually enslave, enslave and/or torture her, whether or not the pregnancy is related with these violations.82 The elements of the crime of forced pregnancy address only a subset of serious violations of sexual and reproductive rights. It is not clear from the definition of forced pregnancy whether the unsucessful attempts to make a woman forcibly pregnant are covered; for instance in cases where the victim is not capable of conceiving.83 Likewise, when the woman is forcibly made pregnant, but they are not subjected to unlawful confinement, the single act of forced impregnation does not fall within the scope of this provision. It also excludes situations where the victim has become pregnant consensually but is unlawfully confined and as a consequence, unable to exercise her reproductive autonomy.84 76

ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15-422-red, paras 96–101. 77 Amnesty International 2020, p. 18. 78 Boon 2001, p. 665. 79 ICC Statute, Preamble, Articles 1 and 5. See also Boon 2001, p. 665. 80 ICC, Trial Chamber IX, The Prosecutor v. Dominic Ongwen, 4 February 2021, ICC-02/04-01/15, para 101. 81 Amnesty International 2020, p. 20. 82 Ibid. 83 Boon 2001, p. 660. 84 Amnesty International 2020, p. 24.

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As noted, this definition excludes some situations that actually deprive victim’s sexual and reproductive autonomy which should be covered by the crime of forced pregnancy. Nonetheless, as the following sections explains the ICC has a prominent role to address states’ attempts to limit the right to reproductive autonomy and to further a progressive interpretation of the gendered nature of this crime.

11.5 Specialization of the ICC’s Jurisprudence: The Ongwen Case In its first case, the Prosecutor v. Lubanga, the ICC was asked to consider the criminal accountability of Thomas Lubanga Dyilo for the commission of the crimes of conscripting and enlisting children into an armed group and using them to participate actively in hostilities pursuant to Article 8(2)(e)(vii) of the ICC Statute.85 Despite Lubanga’s troops had also reportedly committed sexual violence crimes against female children recruited into the armed group, the Prosecutor did not expand the charges, or make any allegations of sexual violence, during the pre-trial proceedings.86 As a consequence, the majority of the Trial Chamber declined to determine Lubanga’s culpability for the alleged sexual violence.87 Although the ICC Office of the Prosecutor has failed to prosecute sexual and reproductive violence crimes before, the ICC is gradually paving the way towards a gendered model of justice. A first attempt was the application for arrest warrant against Sudanese President Omar Al-Bashir, in which the Office of the Prosecutor alleged that Al-Bashir participated in the rape of thousands of women and girls from particular ethnic groups who became pregnant or died because of the rapes.88 Notwithstanding the arguments presented by the Office of the Prosecutor, the PreTrial Chamber overlooked violations of reproductive rights as the warrant decisions did not make reference to the forced pregnancies.89 With the conviction in Bemba in July 2016, the ICC took a step forward in the explicit recognition of reproductive violence. The document containing the charges 85

ICC, Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842. 86 ICC, Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s closing brief, 1 July 2002, ICC-01/04-01/06-2748-Red, para 205. The Prosecutor held that female children in Lubanga’s armed group were sexually assaulted by their commanders in the camp. As a result. unwanted pregnancy occurred and abortion was an option only if the commanders decided so. 87 ICC, Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842, para 630. 88 ICC, Pre-Trial Chamber I, Situation in Darfur, The Sudan, Annex A, Public Redacted Version of the Prosecutor’s Application under Article 58, 14 July 2008, ICC-02/05-157-AnxA, paras 121 and 200. 89 ICC, Pre-Trial Chamber I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-3; Second Decision on the Prosecution’s Application for a Warrant of Arrest, 12 July 2010, ICC-02/05-01/09-94.

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alleged that ‘many of the women victims of rapes and gang-rapes contracted HIV, and became pregnant as a result of these rapes’.90 However, the ICC Pre-Trial Chamber treated rape and sexual violence as secondary crimes and regarded the ‘unwanted pregnancies’ as an aggravating factor of rape.91 The case of Prosecutor v. Dominic Ongwen is a notable achievement in adjudicating reproductive justice. Dominic Ongwen, is a former commander in the Lord’s Resistance Army (LRA), accused of numerous war crimes and crimes against humanity committed in Northern Uganda, including sexual and gender-based crimes.92 The crime of forced pregnancy was not charged in the application for arrest warrants against Ongwen and other senior leaders of the LRA in 2005.93 However, in the decision on the confirmation of charges, the Prosecutor went beyond rape and charged Dominic Ongwen with the crime of forced pregnancy as a crime against humanity under Article 7(1)(g) and as a war crime under Article 8(2)(e)(vi) of the Statute.94 The Prosecution alleged the victims were initially abducted by the LRA and forced to become Ongwen’s so-called ‘wives’. During the confinement, Dominic Ongwen systematically raped them, made them forcibly pregnant and then confined them by preventing them from leaving. The victims were put under armed custody and were threatened to be killed if they tried to escape. Dominic Ongwen’s intention was to confine these women in order to continue committing acts of rape, torture and sexual enslavement against them even after he had forcibly impregnated them.95 The evidence provided by the Office of the Prosecutor demonstrated that sexual and gender-based crimes were systemic, institutional and included rape, forced pregnancy, forced marriage, torture and sexual slavery.96 On 23 March 2016, Pre-Trial Chamber II confirmed 70 counts of crimes against humanity and war crimes, including 19 counts for sexual and gender-based crimes.97 Following the proceedings, on 4 February 2021, the ICC’s Trial Chamber IX found Dominic Ongwen guilty of 61 counts of war crimes and crimes against humanity, including 19 counts of sexual and gender-based crimes. Unlike previous decisions, 90

ICC, Pre-Trial Chamber II, Public Redacted Version of the Amended Document Containing the Charges, 30 March 2009, ICC-01/05-01/08-395-Anx3, para 39. 91 Green 2011, p. 530. 92 UN Security Council, Report of the Secretary-General pursuant to resolutions 1653 (2006) and 1663 (2006), 29 June 2006, UN Doc. S/2006/478. 93 ICC, Pre-Trial Chamber II, Warrant of arrest for Dominic Ongwen, Situation in Uganda, 8 July 2005, ICC-02/04-01/05-57. The prosecutor originally charged Ongwen with only three counts of crimes against humanity (murder, enslavement, and inhuman acts) and four counts of war crimes (murder, cruel treatment of civilians, intentionally attacking a civilian population, and pillaging). 94 ICC, Prosecution’s submission of the document containing the charges, the pre-confirmation brief, and the list of evidence, 21 December 2015, ICC-02/04-01/15. 95 ICC, Pre-Trial Chamber II, 22 January 2016, ICC-02/04-01/15-T-21-Red2-ENG, p. 50, lines 2–20. 96 ICC, Pre-Trial Chamber II, Decision on the confirmation of charges against Dominic Ongwen, 23 March 2016, ICC-02/04-01/15-422-Red. 97 Ibid., paras 96–101.

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this is the first time that the crime of forced pregnancy and forced marriage are subject of adjudication.98 This judgement has significant implications worthy to discuss in the light of a critical view of the ICC’s jurisprudence. In its assessment of the material element, the Chamber held that the unlawful confinement of two women forcibly pregnant fulfils the threshold for the crime of forced pregnancy.99 It also clarified that the purpose of this confinement need not be to keep the victim pregnant. Accordingly, the Trial Chamber concluded that ‘the crime of forced pregnancy consists in the confinement of a forcibly pregnant woman in order to carry out other grave violations of international law, regardless of whether the accused specifically intended to keep the woman pregnant’.100 For instance, the crime of forced pregnancy applies in situations where the victim, having become pregnant through force, is unlawfully confined for reasons unrelated to her pregnancy. It may also include the forced impregnation through artificial insemination committed against persons in confinement.101 The application of this special intent reflects the efforts of some of the delegations and women’s rights groups to set a less restrictive approach to this crime. By resorting to the open-ended intent of ‘carrying out other grave violations of international law’, the judgement broadens the applicability to the crime of forced pregnancy to a wider range of circumstances beyond ethnic cleansing. In doing so, it provides a diverse array of rules and international standards to interpret broadly the circumstances that underpin the commission of forced pregnancy, in order give full effect to the rights protected by this crime. With the Ongwen case, the ICC Trial Chamber pioneered an interpretation of the legal harm of forced pregnancy grounded in the woman’s right to personal and reproductive autonomy.102 The judgement acknowledges that the deprivation of the woman’s ability to give voluntary and genuine consent to choose whether to continue the pregnancy is at the core of this crime.103 This decision also breaks the historical tendency of international criminal tribunals to treat sexual and reproductive violence as secondary crimes by enabling the proper characterisation of the crime of forced pregnancy. As explained in the Trial Judgment, ‘[i]t is not enough to punish it merely as a combination of other crimes (e.g., rape and unlawful detention), or subsumed under the generic “any other form of sexual violence”’.104 The crime of forced

98

ICC, Trial Chamber IX, The Prosecutor v. Dominic Ongwen, Trial Judgment, 4 February 2021, ICC-02/04-01/15. 99 Ibid., para 2728. 100 Ibid., para 2729. 101 Amnesty International 2020, p. 17. 102 ICC, Trial Chamber IX, The Prosecutor v. Dominic Ongwen, Trial Judgment, 4 February 2021, ICC-02/04-01/15, para 2717. The reasoning of the Court was extracted from human rights instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Proclamation of Teheran, Final Act of the International Conference on Human Rights. 103 Ibid., para 2725. 104 Ibid., para 2722.

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pregnancy must have an independent meaning from the other sexual and gender-based violence crimes in the Statute.105 Although the ICC also highlighted the ‘sustained character’ of sexual and genderbased crimes committed by Ongwen, the judgement does not elaborate the nexus between forced pregnancy and other crimes that were committed concurrently, namely forced marriage, torture, rape and sexual slavery. The judgement also falls short in assessing the intersecting grounds and particularly, the gender-based reasons underlying the commission of forced pregnancy and the sexual and reproductive violence perpetrated parallel to or consequential of it.106 The ICC also fails to distinguish the particular nature of reproductive violence vis-à-vis other related types of sexual violence. The lack of characterization of reproductive violence prevents defining the scope and the differential effects of reproductive crimes and perpetuates the invisibility of some forms of reproductive violence that are not expressly criminalized under international law.107 Despite these shortcomings, the Ongwen’s conviction is a significant step to develop specialized jurisprudence on reproductive violence and influence the domestic narratives around victims’ bodily security and autonomy. Based upon this potential, the final section of this chapter explores the ICC’s role to address reproductive justice claims.

11.6 The Role of the ICC in Reproductive Justice Despite the increased attention that the Ongwen judgement can bring over reproductive violence, the prosecution of reproductive crimes poses significant challenges. A central point of the analysis is how local patriarchal norms played a key role in the drafting of the ICC Statute and how, still today, those continue to radiate into ICC institutional practice. As discussed, the narrow definition and high threshold of the crime of forced pregnancy is entrenched in the patriarchal fear that criminalising forced pregnancy may be understood as legalising abortion. The diffuse definition of reproductive violence has its origins in the patriarchal oppression justified by the social construction of gender and the accompanying roles, behaviours and attributes assigned to women and men. Reproductive violence targets individuals or groups because those socially constructed norms frequently intersected with class, race, poverty level, ethnicity. For instance, forced pregnancy is influenced by the victim’s biological sex, but it does not exclude the fact that this crime may be motivated by underlying inequalities and societal attitudes on discrimination based on

105

Ibid. Kather and Nassar 2021. 107 Some scholars have categorised as reproductive crimes: sexual assault which affects reproductive capacity, forced impregnation, forced loss of pregnancy, forced sterilization, genocidal rape, forced maternity, and the mutilation of reproductive organs. See Askin 1997, pp. 397–403. 106

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gender.108 As Rosemary Grey points out, the harms of reproductive violence are ‘(…) often most acute for women and girls, who because of their childbearing capacity and their socially constructed gender roles, are exposed to forms of reproductive violence that men and boys are not (…)’.109 The intersectional nature of reproductive violence is also reflected in the disproportionate impact of poverty and the social stigma that women who become pregnant by ‘the enemy’ and children born of rape often face.110 Thus, even though reproductive violence may be motivated by biological sex, it also amounts to gender-based violence. As reproductive violence is deeply intertwined with socially constructed roles on gender, an analysis of the traditional patriarchal discourse and its influence in the criminalization of reproductive violence takes on special relevance on this point. States’ attempts to limit the right to reproductive autonomy, as explicitly depicted in the drafting history of the ICC Statute, reflects the wish to maintain existing patriarchal power structures. The deprivation of reproductive choices can constitute an effective tool to perpetuate power structures and maintain the control of individuals and collectives.111 In that sense, reproductive capacity is employed as ‘a recourse to be commandeered for political, ideological or economic ends’.112 The criminalization of forced pregnancy encounters the patriarchal fear that a provision on forced pregnancy could interfere with national abortion legislations in that it might oblige states to provide forcibly impregnated women access to abortion. As noted above, the narrow definition and high threshold of forced pregnancy restrain the scope of the crime and exclude the prosecution of certain experiences which one might expect to be covered by the crime of forced pregnancy. Overall, what states sought to avoid was that the ICC will not recognize a general right to abortion.113 This scepticism proves that women’s reproductive autonomy and dignity was not in itself a value protected by international criminal law. It also illustrates that power structures are yet to be fully dismantled and may even have been reinforced through the engagement with international institutions such as the ICC. Nevertheless, the adjudication of reproductive violence at the ICC represents an opportunity to challenge ‘local patriarchal norms’ and undertake an analysis of gender as a structuring category of power. Thus, the ICC may have a prominent role to address states’ attempts to limit the right to reproductive self-determination through its jurisprudence and in the exercise of positive complementarity. In order to understand the influence that the ICC can have at the domestic level, it is useful to introduce the feminist strategy of norm transfer.

108

Oosterveld 2018, p. 448. Grey 2017, p. 907. 110 Ibid. 111 Altunjan 2021, p. 2. 112 Grey forthcoming, p. 5. 113 Markovic 2008, p. 445. 109

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11.7 Norm Transfer in Reproductive Justice The ‘feminist strategy of norm transfer’ seeks to elucidate how feminist standards created at the level of international criminal law have the potential to impact the law at the domestic level and vice versa.114 In the international criminal law realm, it provides a framework to explain the extent to which the international criminal legal prohibitions therein affect or are affected by society and culture.115 Indeed, international criminal law has a role in advancing women’s rights beyond contexts of conflict or mass violence.116 This is especially relevant when analysing the role that the ICC is called to play in advancing reproductive justice. By situating the feminist strategy of norm transfer within the complementarity regime of the ICC, it is possible to reflect upon the standards developed at the ICC and how those encourage broader discussion around reproductive violence and its legal categorisation at the domestic level. According to Eithne Dowds, this process unfolds into a tripartite structure: […] classical complementarity focused on promoting domestic prosecution of international crimes; positive complementarity focused on facilitating domestic prosecution of international crimes which may provide the opportunity for legislative transfers between the international and the domestic; and positive complementarity focused on mobilising domestic reform on ‘ ordinary ’ crimes which represents more of a trickle down process giving domestic actors the opportunity to rethink existing law and prompt change.117

Article 17 of the ICC Statute formulates that the ICC States have the primary duty to exercise its criminal jurisdiction over those responsible for international crimes.118 The ICC only activates its jurisdiction when States fail to do so, because they are ‘unwilling or unable’ to genuinely carry out proceedings domestically.119 By virtue of the principle of complementarity, the ICC does not pretend to ‘compete’ with states for jurisdiction, but to ensure constructive partnerships focused on building capacity to prosecute international crimes at the national level.120 In fact, the complementarity doctrine implies that the ICC jurisdiction is complementary but not competing with the domestic courts.121 Complementarity has two dimensions: classical and positive.122 Classical complementarity depicts the ICC as a court of last resort and as ‘catalyst’ for national prosecution.123 The ICC Statute enables the Court to monitor domestic situations and to encourage the State to initiate national proceedings, help 114

O’Rourke 2013, p. 16. Dowds 2019, p. 16. 116 Grewal 2010, p. 57; Dowds 2019, p. 11. 117 Dowds 2019, p. 54. 118 ICC Statute, Article 17. 119 Office of the Prosecutor 2003, p. 3. 120 Tillier 2013, p. 509. 121 Ellis 2009, p. 81. 122 Moreno-Ocampo 2011, p. 21. 123 Kleffner 2006, p. 310. 115

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to develop cooperative anti-impunity strategies, and possibly provide advice and certain forms of assistance to facilitate national efforts.124 As a result of the principle of complementarity, international and national systems share responsibility for the prosecution of mass crimes.125 Consistent with this mandate, states are also required by Article 88 of the ICC Statute to enact national legislation to comply with their cooperation obligations with the ICC. The adoption of implementing legislation is a mean to reaffirm sovereignty but also reinforce national and international efforts against impunity.126 In addition to the implementation of legislation, domestic courts may also inform their jurisprudence with any relevant judgement or decision of the ICC when interpreting and applying the ICC Statute provisions or the Elements of the Crimes. Those two ways of engagement with domestic jurisdictions are viewed as positive complementarity.127 Other means to strengthen the domestic capacity is to reform national justice systems by ‘transferring’ the legislative and policy developments made by the ICC. It is here where the feminist strategy of norm transfer plays a key role to address gender biases and failures in the existing domestic laws. Then, the legislation and jurisprudence of the ICC is a foundation from which to build upon more progressive standards on gender justice. One example of this process is the adoption of the ICC Statute crimes into domestic law. Research developed by Ní Aoláin found that of 122 States Parties to the ICC Statute, 95 States subsequently criminalized forced marriage, forced pregnancy and forced sterilisation.128 In this sense, the ICC Statute served as a catalyst to fill the gaps in existing legal frameworks and incorporate those crimes domestically. Domestic criminalisation of forced pregnancy may also be an effective avenue to open up the discussion on reproductive autonomy and the access to abortion services as a core aspect of this crime.129 This process can also unfold through the ICC jurisprudence on sexual and reproductive crimes. The complementarity regime of the ICC has the potential to go beyond securing the prosecution of sexual and reproductive crimes; in fact, it is also a platform to trigger legislative transfers between international and the domestic and to prompt further discussions mobilising domestic actors.130 In this sense, the Ongwen judgement may have a ‘knock-on effect’ whereby the feminist engagement with norm transfer reflects the gender-informed standards set by the ICC back in the domestic legislatures and court systems.131 As it stands, the criminalization of forced pregnancy in the Ongwen judgement may lead to the development of domestic standards not just on forced pregnancy, but on other norms intrinsically related to the exercise of reproductive 124

Office of the Prosecutor 2003, p. 7. Stahn 2011, p. 3. 126 Office of the Prosecutor 2003, p. 5. 127 Dowds 2019, p. 65. 128 Ní Aoláin 2014. 129 Dowds 2019, p. 75. 130 Kapur 2016, p. 77. 131 Ní Aoláin 1997, p. 901. 125

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autonomy. It also may trigger the domestic reform of norms on sexual and genderbased crimes, in particular, abortion laws. However, the definition of forced pregnancy incorporated a clause whereby the crime ‘shall not in any way be interpreted as affecting national laws relating to pregnancy’. This may seem problematic taking into account that this final sentence was included to avoid that the ICC scrutiny on national abortion laws. Thus, any attempt to criminalize forced pregnancy or to promote a legal reform of any other related norm may be considered as the basis for interference with national laws on pregnancy and abortion.132 Nevertheless, as discussed above, the positive complementarity does not seek to amend, nullify or void national legislation but to promote domestic reform and further discussions on domestic gender struggles. Therefore, the indirect effect of positive complementarity cannot be seen as a means of scrutiny or illegitimate intervention of the ICC. At this point, the ICC is called to take a more active role to develop more progressive standards on reproductive violence. By virtue of this role, the ICC can help strengthen the capacity to address gender violence at the national level via the incorporation of progressive definitions of existing crimes and more gendersensitive procedures, the engagement with key national actors and the cooperation with national institutions on the broader discussion of the gender violence agenda. Either through its jurisprudence or other strategies, the ICC may initiate the debate on contested issues on reproductive justice, for instance, how the criminalization of abortion or laws preventing the access to abortion services go against the right to reproductive autonomy. In this context, the Ongwen judgement provides a momentum to build up progressive standards on reproductive justice and paves the way towards domestic reform. Eventually, the ICC is compelled to explicitly endorse the application of the crime of forced pregnancy to any situation where a pregnant woman is denied access to safe and legal abortion, regardless of the circumstances of conception.133 This can be also translated into the mobilization of domestic networks to advance in the decriminalization of abortion and the safe access to reproductive services. In order to achieve this goal, it is necessary to develop a more critical stand against the local patriarchal discourse. This means that it is necessary to elaborate the concept of reproductive violence, as distinct from the related issue of sexual violence. It also calls for further attention to reproductive violence and reproductive autonomy, as part of the broader project of ‘gendering’ international criminal law.134 At this stage, the complementarity regime of the ICC has the potential to transform the patriarchal narrative and influence the states’ practices in order to give full effect to the right to reproductive autonomy and the right to safe abortion. Considering that the ICC Statute adopts a narrow definition of forced pregnancy, the process of norm transfer should be more critical and reflective. Rather than focusing on top-down transfers, that is, from international to domestic, engaging 132

Dowds 2019, p. 75. Steains 1999, p. 366. 134 Grey 2017, p. 909. 133

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in an interactive process whereby international and domestic criminal approaches inform one another may contribute to legal consistency, coherency and certainty of legal norms. In order to build progressive standards on reproductive justice, it is then necessary to discern whether the ICC marks a progression or regression in standards. In this context, critical reflection on the crime of forced pregnancy should allow correction or clarification of the definition set by the international criminal law when domestic jurisdictions offer a more progressive one.135 The norm transfer is not limited to the State Parties and to the formal complementary process promoted by the ICC. Domestic gender advocates may lobby for the incorporation of the ICC standards into domestic law.136 As a consequence, this process is much more complex, taking into account that its effectiveness depends on multiple factors such as knowledge of the legal developments and jurisprudence at the domestic level, the public policy agenda, the willingness of national stakeholders to incorporate those developments, etc. It is for this reason that measuring the effect of the Ongwen judgement on reproductive justice may be a difficult task as, in addition to those factors, the ultimate decision to reform or incorporate jurisprudential developments is that of the States Parties. However, this decision represents a unique stage for a broader dialogue on the content of the existing gender norms and a platform to encourage domestic reforms. At this point, the role of the ICC through the complementarity regime is instrumental.

11.8 Conclusion The Ongwen judgement is a significant achievement in the development of jurisprudence on reproductive violence, as it is the first international conviction for charges of forced pregnancy. The groundbreaking nature of this decision is also based on the fact that it recognises that the crime of forced pregnancy is grounded in the woman’s right to personal and reproductive autonomy. The Ongwen judgement unfolds the potential of the complementarity regime to contribute to the development of domestic standards not just on forced pregnancy, but on other norms intrinsically related to the exercise of reproductive autonomy. The feminist strategy of norm transfer seeks to incorporate feminist informed standards at the international criminal level and use them as a means to promote reform of domestic criminal law. It is here where the ICC has a prominent role to address states’ attempts to limit the right to reproductive autonomy. The Ongwen judgement is a first step to set international standards that move away from domestic defects and to facilitate the transfer of norms from the international to the domestic and vice versa. Positive complementarity has far-reaching impacts, not only in relation to the prosecution of reproductive crimes but also in mobilising domestic reform in order to promote reproductive justice. From the perspective of the feminist strategy of norm 135 136

Dowds 2019, pp. 70–71 and 77–80. Dowds 2019, p. 74.

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transfer, the ICC can strategically incentivise States Parties and key stakeholders to open up the debate and broader dialogue on the domestic and international dynamics in relation to reproductive violence, even beyond its mere criminalization. Through the engagement with the feminist strategy of norm transfer, the Court can become a leading advocate in the fight against gender-based violence. By addressing previously overlooked sexual and reproductive crimes, the ICC opens up the possibility to change the patriarchal narrative and influence the states’ practices in order to give full effect to the right to reproductive autonomy. Although the effects of the Ongwen judgement across domestic jurisdictions are yet to be determined, this decision provides an opportunity to reformulate the narrow definition of forced pregnancy, trigger discussions on reproductive violence beyond criminalization, and over time transform domestic contexts towards full recognition of the right to safe abortion.

References Altunjan T (2021) Reproductive Violence and International Criminal Law. T.M.C. Asser Press, The Hague Amnesty International (2020) Forced Pregnancy: A Commentary on the Crime in International Criminal Law, 30 June 2020. https://www.amnesty.org/en/documents/ior53/2711/2020/en/. Accessed 28 May 2021 Askin KD (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals. Martinus Nijhoff, Leiden Bassiouni MC, Schabas W (2005) The Legislative History of the International Criminal Court, 1st edn. Transnational Publishers Baumeister H (2018) Sexualised Crimes, Armed Conflict and the Law: The International Criminal Court and the Definitions of Rape and Forced Marriage. Routledge, London Bedont B (1999) Gender-Specific Provisions in the Statute of the International Criminal Court. In: Lattanzi F, Schabas W (eds) Essays on the Rome Statute: Vol. 1. Sirente Bedont B, Hall-Martinez K (1999) Ending Impunity for Gender Crimes Under the International Criminal Court. Brown Journal of World Affairs 6: 65–85 Benedetti F et al. (2013) Negotiating the International Criminal Court: New York to Rome, 1994– 1998. Brill, Leiden Boon K (2001) Rape and Forced Pregnancy Under the ICC Statute: Human Dignity, Autonomy, and Consent. Columbia Human Rights Law Review 32: 625–675 Brady H (2012) The Power of Precedents: Using the Case Law of the Ad Hoc International Criminal Tribunals and Hybrid Courts in Adjudicating Sexual and Gender-Based Crimes at the ICC. Australian Journal of Human Rights 18: 75–108 Cassese A et al. (eds) (2002) The Rome Statute of the International Criminal Court: A Commentary. Oxford University Press, Oxford Chappell L (2008) Women’s Rights and Religious Opposition: The Politics of Gender at the International Criminal Court. In: Abu-Laban Y (ed) Gendering the Nation State: Canadian and Comparative Perspectives. UBC Press, Vancouver Chinkin C (2009) Gender-related Violence and International Criminal Law and Justice. In: Cassese A (ed) The Oxford Companion to International Criminal Justice. Oxford University Press Cottier M, Mzee S (2016) Paragraph 2(b)(xxii): Rape and Other Forms of Sexual Violence. In: Triffterer O, Ambos K (eds) The Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck/Hart/Nomos

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Dörmann K et al. (2003) Elements of War Crimes Under the Rome Statute of the International Criminal Court - Sources and Commentary. Cambridge University Press, Cambridge Dowds E (2019) Feminist Engagement with International Criminal Law: Norm Transfer, Complementarity, Rape and Consent. Bloomsbury Publishing, London Ellis M (2009) International Justice and the Rule of Law: Strengthening the ICC Through Domestic Prosecutions. Hague Journal of the Rule of Law 1: 79–86 Gardam JG, Jarvis M (2001) Women, Armed Conflict and International Law. Kluwer Law International Green L (2011) First-Class Crimes, Second-Class Justice: Cumulative Charges for Gender-Based Crimes at the International Criminal Court. International Criminal Law Review 11: 529–541 Grewal K (2010) Rape in Conflict, Rape in Peace: Questioning the Revolutionary Potential of International Criminal Justice for Women’s Human Rights. Australian Feminist Law Journal 33(1) Grey R (2017) The ICC’s First ‘Forced Pregnancy’ Case in Historical Perspective. Journal of International Criminal Justice 15: 905–930 Grey R (forthcoming) Reproductive Crimes in International Criminal Law. In: Rosenthal I et al. (eds) Gender and International Criminal Law. Oxford University Press, Oxford Hall CK, Ambos K, Hayes N, van den Herik L, Powderly J, Stahn C (2016) Article 7. Crimes against Humanity. In: Triffterer O, Ambos K (eds) The Rome Statute of the International Criminal Court: A Commentary, 3rd edn. C.H. Beck/Hart/Nomos Halley J (2008) Rape at Rome: Feminist Interventions in the Criminalisation of Sex-Related Violence in Positive International Criminal Law. Michigan Journal of International Law 30: 1–123 Kapur A (2016) The Value of International-National Interactions and Norm Interpretation in Catalysing National Prosecution of Sexual Violence. Oñati Socio-Legal Series 6 Karaian L (2013) Pregnant Men: Repronormativity, Critical Trans Theory and the Re(conceive)ing of Sex and Pregnancy in Law. Social & Legal Studies 22: 211–230 Kather A, Nassar A (2021) The Ongwen Case: A Prism Glass for the Concurrent Commission of Gender-Based Crimes. Völkerrechtsblog, 15 March 2021, https://voelkerrechtsblog.org/de/theongwen-case-a-prism-glass-for-the-concurrent-commission-of-gender-based-crimes/. Accessed 6 June 2021 Killean R (2015) An Incomplete Narrative. Journal of International Criminal Justice 13: 331–352 Kleffner J (2006) Complementarity as a Catalysts for Compliance. In: Kleffner J, Kor G (eds) Complementarity Views on Complementarity. Cambridge University Press, Cambridge La Haye E (2001) Article 8(2)(b)(xxii)-4 Forced Pregnancy. In: Lee RS (ed) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Transnational, New York, p 193 Markovic M (2008) Vessels of Reproduction: Forced Pregnancy and the ICC. Michigan State Journal of International Law 16: 439–458 Moreno-Ocampo L (2011) A Positive Approach to Complementarity: The Impact of the Office of the Prosecutor. In: Stahn C, El Zeidy M (eds) The International Criminal Court and Complementarity – From Theory to Practice. Cambridge University Press, Cambridge, pp 21–32 Ní Aoláin F (1997) Radical Rules: The Effects of Evidential and Procedural Rules on the Regulation of Sexual Violence in War. Albany Law Review 60: 883–905 Ní Aoláin F (2014) Gendered Harms and Their Interface with International Criminal Law. Int Feminist J Polit 16(4):622–646 O’Byrne K (2011) Beyond Consent: Conceptualising Sexual Assault in International Criminal Law. International Criminal Law Review 11: 495–514 Office of the Prosecutor (2003) Informal Expert Paper. The Principle of Complementarity in Practice. ICC Oosterveld V (2018) The ICC Policy Paper on Sexual and Gender-Based Crimes: A Crucial Step for International Criminal Law. William & Mary Journal of Women and the Law 24(3), 443

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O’Rourke C (2013) International Law and Domestic Gender Justice: Why Case Studies Matter. In: Fineman MA, Zinsstag E (eds) Feminist Perspectives on Transitional Justice: From International and Criminal to Alternative Forms of Justice. Intersentia, Cambridge Rosenblum D, Ben-Asher N, Case MA, Emens E (2010) Pregnant Man? A Conversation. Yale J Law Feminism 22:207 Schabas WA (2016) The International Criminal Court: A Commentary on the Rome Statute, 2nd edn. Oxford University Press, Oxford Sørlie A (2018) Governing (Trans)Parenthood. The Tenacious Hold of Biological Connection and Heterosexuality. In: Otto D (ed) Queering International Law: Possibilities, Alliances, Complicities, Risks. Routledge, London Stahn C (2011) Taking Complementarity Seriously: On the Sense and Sensibility of “Classical”, “Positive” and “Negative” Complementarity. Cambridge University Press, Cambridge Steains C (1999) Gender Issues. In: Lee RS (ed), The International Criminal Court: The Making of the Rome Statute. Kluwer Law International, The Hague, Boston, pp 357–390 Tillier J (2013) The ICC Prosecutor and Positive Complementarity: Strengthening the Rule of Law? International Criminal Law Review 13: 507–591 United Nations, Women (2000) Sexual Violence and Armed Conflict: United Nations Response. Published to Promote the Goals of the Beijing Declaration and the Platform for Action, April 1998

Other Documents Decision on the Confirmation of Charges Against Dominic Ongwen, Ongwen (ICC-02/04-01/15422-Red), Pre-Trial Chamber II, 23 March 2016 Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir, Bashir (ICC-02/05-01/09-3), Pre-Trial Chamber I, 4 March 2009 Preparatory Committee Meeting, 18 June 1998, A/CONF.183/C.1/SR.5, paras 11, 33, 83; Preparatory Committee Meeting, 17 June 1998, A/CONF.183/C.1/SR.4, paras 63, 66 Prosecution’s Final Brief, Lubanga (ICC-01/04-01/06-2748-Red), Trial Chamber I, 1 July 2002, p. 205 Prosecution’s Submission of the Document Containing the Charges, the Pre-confirmation Brief, and the List of Evidence (ICC-02/04-01/15), 21 December 2015 Prosecutor v. Akayesu, 2 September 1998, International Criminal Tribunal for Rwanda, Trial Judgement, Case No. ICTR-96-4, paras. 598, 688 Prosecutor v. Delali´c et al. Trial, 16 November 1998, International Criminal Tribunal for the Former Yugoslavia, Trial Judgement, Case No IT-96-21 Prosecutor v. Dominic Ongwen, Decision on the Confirmation of Charges Against Dominic Ongwen, Pre-Trial Chamber II, ICC-02/04-01/15-422-Red, 23 March 2016, paras. 96–101 Prosecutor v. Dominic Ongwen, Trial Judgment Trial Chamber IX, (ICC-02/04-01/15), 4 February 2021 Prosecutor v. Lubanga, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/ 06-2842, 14 March 2012 (Lubanga Trial Judgment), para. 630 Public Redacted Version of the Prosecutor’s Application Under Article 58, Bashir (ICC-02/05-157AnxA), Pre-Trial Chamber I, 14 July 2008, paras. 121 and 200 Report of the Secretary-General Pursuant to Resolutions 1653 (2006) and 1663 (2006) (S/2006/478), UN Doc. S/2006/478, 29 June 2006 Second Decision on the Prosecution’s Application for a Warrant of Arrest, Bashir (ICC-02/0501/09-94), Pre-Trial Chamber I, 12 July 2010 Transcript, Ongwen (ICC-02/04-01/15-T-21-Red2-ENG), Pre-Trial Chamber II, 22 January 2016, 50, Lines 2 to 20

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United Nations, Fourth World Conference on Women, The Beijing Declaration and the Platform for Action, Fourth World Conference on Women 84, para. 135 (1996) Vienna Declaration and Programme of Action, U.N.GAOR (2013) World Conference on Human Rights, pt. 2, para. 38, U.N. Doc. A/CONF.157/23

Angie K. García Atehortúa is a Colombian human rights lawyer, specialised in criminal justice. She holds a LL.M. magna cum laude in international human rights law from the University of Notre Dame, USA. She is currently a visiting professional at the International Criminal Court. She has been previously involved with civil society organizations in litigation of international crimes and human rights violations before domestic and regional tribunals, focusing on cases of conflictrelated sexual violence. The views presented in this chapter are solely the author’s and do not reflect the ICC’s opinion or approach to the case.

Chapter 12

The Impacts of English-Language Hegemony on the ICC Leigh Swigart

By the same process whereby man spins language out of his own being, he ensnares himself in it; each language draws a magic circle round the people to which it belongs, a circle from which there is no escape save by stepping out of it into another. – Wilhelm von Humboldt (Cited in Cassirer 1946, p. 9)

Contents 12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2 The Case of Language Policy v. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2.1 What About the ICC Statute? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2.2 Voices of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2.3 Does English-Language Dominance Really Matter? . . . . . . . . . . . . . . . . . . . . . . . 12.3 Practical Considerations: What Does English-Language Hegemony Mean for Day-to-Day Activities? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3.1 A Mountain of Translation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3.2 The Advantages of Having English as a First Language . . . . . . . . . . . . . . . . . . . . 12.3.3 A Dearth of French-Speaking Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3.4 Artificial Intelligence to the Rescue? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4 English-Language Dominance and Conceptual Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4.1 Thinking Outside the Linguistic Box . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4.2 A Multilingual Institution with a Monolingual Ideology . . . . . . . . . . . . . . . . . . . . 12.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The ICC’s working language policy conforms to the mould of many other international legal institutions. All staff members must be proficient in at least one of its working languages, English and French. As in other comparable institutions, however, the reality is that English has become the Court’s lingua franca. What does the dominant role of English mean for the ICC’s ability to further the international L. Swigart (B) International Center for Ethics, Justice and Public Life, Brandeis University, Waltham, MA, USA e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_12

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criminal justice project? How does the status of English at the Court privilege those professionals for whom it is a native language, as well as the legal framework they bring with them? What kinds of conceptual limitations does dependence on a single language create for an institution aiming to promote what it considers globally applicable principles? Does the ICC’s objective of delivering global justice enable, in fact, the dominance of the contemporary worldwide lingua franca without too much pushback? This chapter, based on a multi-year ethnographic project on how the ICC addresses diverse language challenges, explores the impact of the uneven status of the Court’s working languages on those who work at and with the ICC, as well as on what the Court conveys to the world through the communications of its top officials, its judgments, its outreach activities, and its everyday language choices. It is shown that English-language hegemony is not only entrenched but has detrimental effects for the ICC in both practical and symbolic spheres, rendering the Court less efficient while also undermining its mission as a global institution. Keywords ICC · Language policy · Language ideology · Translanguaging · Interpretation and translation · English as a lingua franca

12.1 Introduction The Chair of the NGO Committee on Language and Languages, Humphrey Tonkin, recently described the new entity’s aim like this: ‘We hope to bring the attention of the NGO community and the United Nations itself to the need for international action to address the problem of linguistic exclusion which, even if it’s often ignored, manifests itself in every aspect of international affairs and creates both practical and psychological alienation’.1 Such alienation is particularly notable when it occurs within institutions which purport to be ‘global’ and whose very mandates promote equity and justice. This is the case with the ICC (hereafter also the Court). The ICC’s working language policy conforms to the mould of many other international legal institutions. All staff members must be proficient in at least one of its working languages, English and French, with the standard formulation in most vacancy announcements reading, ‘Working knowledge of the other is desirable’. As in other comparable institutions, however, the reality is that English has become the Court’s lingua franca. What does the dominant role of English mean for the ICC’s ability to further the international criminal justice project? How does the status of English at the Court privilege those professionals for whom it is a first language, as well as the legal framework they bring with them? What kinds of conceptual limitations does dependence on a single language create for an institution aiming to promote what it considers globally applicable principles? Does the ICC’s objective of delivering global justice enable, in fact, the dominance of the contemporary worldwide lingua franca without too much pushback? 1

Tonkin 2021.

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This chapter, based on a multi-year ethnographic project that examined how the ICC addresses diverse language challenges,2 highlights the voices and perspectives of persons interviewed across the Court’s units and functions. I explore various impacts of the uneven status of the Court’s working languages on those who work at and with the ICC, and on what the Court conveys to the world through the communications of its top officials, its judgments, its outreach activities, and its everyday language choices. It will be shown that the hegemony of a single language, English, carries with it practical and conceptual impacts that not only render the Court less efficient but tarnish the global image that the ICC so desires to project. English-language dominance could thus be seen as undermining the counter-hegemonic potential that many originally foresaw in the international criminal justice project.

12.2 The Case of Language Policy v. Reality The ICC was created to participate in a ‘global fight to end impunity’ for individuals charged with ‘the gravest crimes of concern to the international community’.3 Despite the use of words suggesting a world-wide mandate, the Court’s true global impact has been frequently challenged over its first twenty years of operation, whether in reference to its geographically targeted prosecutorial choices,4 its Western-inspired legal foundations, 5 or other unrealized aims and claims. The ICC’s use of English as its default lingua franca constitutes another example of the Court’s sleight-ofhand whereby expansive aspirations in theory are mutated into reduced outcomes in practice. The ICC is not, of course, the only institution with this particular language problem. The growing domination of English in the field of international law and organizations is easily documented, and a number of scholars have laid out the implications of this hegemony.6 In her provocative monograph Is International Law International?, for example, Anthea Roberts describes a number of ways in which

2

Between 2017 and 2019, I carried out more than 60 interviews—mostly in English with some conducted in French—with persons who either provided language services at the Court or regularly used them for their work. The professional positions of interviewees included: language service experts in both the Registry’s Language Services Section and the Language Services Unit of the Office of the Prosecutor (field and courtroom interpreters, translators, terminologists, transcribers, court reporters, supervisors and coordinators); investigators and prosecutors; members of defence teams, including legal counsel, case managers, and interns; judges and legal officers; judicial cooperation and situation analysis staff; diverse staff working with and representing victims; psychologists and psychosocial evaluators; and outreach and communications staff. 3 ICC website: https://www.icc-cpi.int/about. 4 A good discussion of this phenomenon can be found in Ba 2020. 5 Fraser 2022 provides an overview of scholarly literature on this topic. 6 See e.g. Terris et al. 2007; Bohlander 2014; Tomuschat 2017; Cohen 2018.

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the increasing turn toward English has shaped the field.7 Writing on the same subject, Justina Uriburu succinctly captures the essence of what she calls ‘English-centrism’: The importance of the relationship between language and international law cannot be overstated, not least because of the discipline’s universalistic pretence. The choice of language significantly determines the way in which international law is made, interpreted, and applied, what knowledge is produced by scholars, and the participants of the conversation.8

This section describes a number of areas in which the ICC’s policies around language are out of sync with its ‘universalistic pretence’, a disconnect that creates problematic optics for the Court.

12.2.1 What About the ICC Statute? The ICC’s ‘Rome Statute’ clearly states that ‘[t]he working languages of the Court shall be English and French’.9 But as one ICC staff member in a leadership position put it, ‘We have officially Article 50 of the ICC Statute, with two working languages, English and French. But to be honest, it’s English and English’.10 When asked to comment on the balance between the two languages within the Court, another interviewee bluntly stated, ‘There is no balance. It is becoming English almost exclusively’.11 A third interviewee echoed this view in exasperation: ‘There is no balance! We French-speaking people tend to speak English because nobody wants to make an effort to speak French … It’s a shame, because the two languages should be at the same level’.12 The disparity between what is indicated on paper and what happens within the Court may come as a surprise to persons new to the ICC. An interviewee from a French-speaking African country, when first joining the Court as an intern in the Office of the Prosecutor, fully expected to carry out his duties in the working language he spoke best. But then quickly I realized that French wasn’t enough. I was a little bit shocked because my little world was, in my country, it was more French and our local languages. For me, when they say there are two working languages – I was expecting equal treatment when it came to the two languages. But I learned then that all meetings were in English. All of the reports were in English. Major documents were in English. So, yeah, I said, ‘Oh well, I need to go back again to my English and get it stronger and more fluent’.13

7

Roberts 2017. Uriburu 2020. 9 These two languages in addition to Arabic, Chinese, Russian and Spanish serve as the Court’s official languages. ICC Statute Article 50. 10 Author interview RD-4 (6 June 2017). 11 Author interview RL-7 (2 June 2017). 12 Author interview RL-12 (7 June 2017). 13 Author interview OTP-5 (27 June 2019). 8

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This imbalance between the two working languages carries over to official and judicial outputs of the Court, a phenomenon captured by the phrase Version française à suivre—‘French version to follow’. One sees this phrase appended to official memos that are circulated to Court staff, to speeches delivered by top administrators, and to trial judgments. Due to the sheer volume of documents to be translated by the Registry’s Language Services Section (called LSS for short), and its chronic understaffing and underfunding, the French version is often delayed or may not ever follow at all.14 A quick perusal of the ICC’s French-language website shows that links to decisions more often than not lead the user back to the English-language version, the only one available. Significantly, this holds true for materials related to cases from Francophone countries like the Democratic Republic of the Congo, Central African Republic and Côte d’Ivoire. A past president of the ICC once circulated a lengthy all-staff memo on a critical topic in English, explaining that a French version would not be prepared for budgetary reasons and directing those who wished to read it in French to use Google Translate. This direction was issued despite LSS having repeatedly told ICC staff to refrain from using such machine translation websites as they are not confidential.15 The apparent lack of institutional concern over the second-class position of French, despite its equal status in the ICC Statute’s Article 50, is particularly striking given the Court’s careful regard for the language rights of accused persons, as laid out in Article 67(1). Accused persons are guaranteed the right: • ‘To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks’;16 • ‘To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks’.17 I have examined in detail elsewhere the extraordinary efforts made by the Court’s Language Services Section to ensure that accused persons, as well as those testifying during trials, can participate in proceedings in the most appropriate language, no matter how challenging it may be to recruit, and frequently to train in-house, interpreters and translators for that language.18 The Language Services Unit of the Office of the Prosecutor also provides investigators, often the first Court staff to visit a ‘situation country’, with field interpreters in local languages who are critical for the collection of witness and victim statements.19 As of 2022, LSS is providing services in over 45 languages in addition to English and French. This list includes over 30 African languages, some of them categorized as ‘languages of lesser diffusion’, which means 14

Personal communication with former Registry staff member (21 May 2021). Ibid. 16 ICC Statute Article 67(1)(a). 17 ICC Statute Article 67(1)(f). 18 Swigart 2019, pp. 286–287. 19 Ibid. 15

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that they have few speakers in a given location, are non-standardised and largely oral, and for which few or no accredited interpreters exist.20 The ICC’s Outreach Section, along with the various units that work with victims and witnesses, also take great pains to interact with their target audiences and clients in local languages and to use appropriate modes of communication in order to maximize the comprehension of their messaging.21 French is a widely spoken language not only in Europe but also in Africa, due to France’s widespread colonial presence on that continent into the mid-twentieth century and the adoption of French as an official language by many newly independent states (much as Britain’s former colonies often chose English as an official language). French has consequently played an important role as a ‘situation language’ in ICC cases focused on crimes in the Democratic Republic of the Congo, Central African Republic, Côte d’Ivoire and Mali. Furthermore, it is easy to find instruction in French and there already exists a veritable army of professional interpreters and translators for that language. The point here is this: if the ICC wished to respect the working language status of French, it would be a much simpler matter than providing services in some of the rarer languages that the Language Services Section has successfully tackled.

12.2.2 Voices of the Court When it comes to the public image of the ICC, persons in the highest leadership positions loom large. The top officials of the Court’s principal organs—Chambers, the Office of the Prosecutor and the Registry—frequently make public statements, lead delegations to countries that are States Parties to the ICC Statute, and meet with members of situation country governments. Especially in the early years of the Court, the officials elected were generally able to function in both French and English, and they often had skills in other languages as well. Inaugural President Philippe Kirsch was a bilingual Canadian diplomat. First Registrar Bruno Cathala was of French nationality and spoke English. He was succeeded by Silvana Arbia of Italy, who worked mostly in French, although she was also proficient in English. President Sylvia Fernandez of Argentina spotlighted her multilingualism during a 2016 annual statement before the United Nations Security Council, switching from English to French to Spanish, thereby allowing a wide group of audience members to follow portions of her comments in the original language. During a 2021 ceremony, in which the Trust Fund for Victims presented a single symbolic euro as reparations for the cultural destruction perpetrated on historic Timbuktu monuments, Prosecutor Fatou Bensouda of The Gambia, an officially English-speaking country, addressed the gathered dignitaries in French, Mali’s official language. Bensouda also regularly 20

See Balogh et al. 2016. Author interview RP-2 (8 June 2017); author interview RV-2 (7 June 2017); author interview RL-16 (17 October 2018); author interview RV-4 (17 October 2018).

21

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made opening statements in French for trials related to crimes in officially Frenchspeaking countries. With the passage of time, however, the ICC has apparently become less concerned that its top officials embody the bilingualism presented to the world as the Court’s working model. The current generation of leaders (as of August 2022) use English as their working language—indeed, two of them are UK nationals—and they may not even have stated their intention to work toward proficiency in French, once considered de rigueur.22 Other critical ICC positions have also been filled with persons unable to function in both working languages, even when it would seem essential to do so. Examples are the head of a field office in a French-speaking situation country, top legal officer of one of the judicial chambers, and head of the ICC office responsible for the well-being of both English and French-speaking staff.23 Such lack of bilingualism among top management of the Court is a point of dismay for many staff members, particularly those who have French as their first language or whose education and professional life have been largely carried out in that language. It is felt that having bilingual leadership sends a message about the global character of the Court. Furthermore, being able to speak directly to stakeholders in Francophone situation countries is advantageous, stated an interviewee who works in the Court’s Outreach office. Indeed, this interviewee continued, leaders at the highest levels of the Court should all be bilingual. ‘But it is not a criterion, and we are lucky if the person speaks the two languages’.24 The interviewee added, ‘The French-speaking people make a lot of effort to try to speak English. All of our local [Outreach] staff have taken training in English. They are really trying. But it is not always the case the other way. I guess it is also a general issue that when you speak English, you don’t really have to make efforts to learn other languages’.25 A top Court official and outspoken advocate for bilingualism in the working languages believes that there should be more emphasis placed on French language skills when recruiting new staff, particularly when filling influential positions. In order not to restrict the pool of possible candidates, the interviewee proposed to the Registrar that persons not proficient in French upon recruitment should be expected to function at a minimal level—for example be able to read a French language document—within five years of being hired.26 ‘I think the word “international” in the ICC is not only to have people coming from all over the world and speaking English’, stated the interviewee. ‘Such an international organization should be proud to have all bilingual managers’.27

22

The Court’s two current vice-presidents, from the Democratic Republic of the Congo and Peru, can work in French as well as English. 23 Swigart 2020, p. 30. 24 Author interview RP-2 (8 June 2017). 25 Ibid. 26 Author interview RD-4 (6 June 2017). 27 Ibid.

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12.2.3 Does English-Language Dominance Really Matter? Why is the side-lining of French at the ICC a phenomenon worth exploring? Is the predominant use of a single language by an international institution instead of the more balanced use of two languages—both of them with a problematic colonial past—even important in the context of a world where an estimated 6000 languages are spoken?28 In discussing the ‘office culture’ at the Court, which tends to downplay recognition of language diversity as well as language skills more generally,29 an interviewee from the Office of the Prosecutor made this observation about people who are disgruntled by French not being on equal par with English: People feel undervalued as French speakers, but they don’t even consider – those same French speakers – don’t even consider the people who don’t speak French and English as a native language. Right? There are people that are coming from all over the place that, you know, that don’t speak French or English as a first language, and they’re speaking, you know, their third, or fourth, or fifth, or sixth languages. And they’re working in them!30

I assert, nonetheless, that the dominance of a single language is not a simple matter of numbers and statistics. Rather, this dominance carries an important symbolic load. For an institution whose very raison d’être is to bring about accountability for grave crimes committed across the globe, the apparent nonchalance with which the English language is allowed to communicate both visually and orally for the ICC sends an undesirable message to its constituents, who hail from a wide array of nations, language groups and cultures.

12.3 Practical Considerations: What Does English-Language Hegemony Mean for Day-to-Day Activities? Whether one supports the idea of the Court’s dual working language policy or not, the fact remains that it is laid out in the ICC Statute and must, in many contexts, be duly enacted. This requirement creates numerous challenges for the ICC on a daily basis, as a large and diverse staff carry out complex and interconnected tasks. This section will explore some of the practical difficulties and inefficiencies arising from the dominance of English within the institution.

28

Figure cited in Tomuschat 2017, p. 197. Swigart 2020, p. 32. 30 Author interview OTP-8 (24 June 2019). 29

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12.3.1 A Mountain of Translation Since most members of the ICC staff use English as their working language, their outputs are also drafted in that language. An interviewee estimated, for example, that 90% of trial judgments and other judicial decisions are originally produced in English31 and must subsequently be translated into French, a long and complicated process that entails the labour of multiple LSS translators and revisers.32 The same is true for in-house documents of an official nature, reports, staff memos, and other important communications. As noted above, la version française is often slow to arrive (or worse), due to enormous translation backlogs as well as chronic underfunding and understaffing of the Language Services Section. A former Registry staff member observed that the ICC’s annual language services budget is small compared to that of many other international criminal tribunals, even those that work in a small number of languages.33 In addition to ensuring that documents are available in both ICC working languages to the extent possible, LSS does translations into and from dozens of situation languages, and then also handles both field and courtroom interpretation in those situation languages. ‘The LSS of the ICC is the worst funded language service of any international organization, I am pretty sure of it’, opined the former employee.34 A current LSS staff member echoed this view. ‘Translation, and interpretation for that matter, are very costly. But you can’t compromise quality because of language. And if you don’t invest a lot in language, there’s an imbalance that sets in’.35 The sheer impossibility that the Language Services Section could actually handle all the translation required by the various units and sections of the Court leads to a lot of ‘informal translation’ by English/French bilinguals who have not been trained for this specialist activity. An interviewee from the Outreach Section expressed her dismay at having to produce her own translations, given the important nature of the information being communicated and the fact that translation was not part of either her job profile or qualifications.36 Several young bilingual interns working on short-term contracts with ICC defence teams related that translation became one of their primary tasks, as they were called upon to bridge the gap between Englishand French-speaking team members.37 The Office of the Prosecutor experiences a different challenge. Because the staff works predominantly in English, sometimes ‘they are paralyzed and cannot work’ while waiting for the English translation of a French-language document, observed a language professional in the Office’s

31

Author interview CL-1 (6 June 2017). Swigart 2019, p. 279. 33 Personal communication with former Registry staff member (21 May 2021). 34 Ibid. 35 Author interview RL-13 (8 June 2017). 36 Author interview RP-2 (8 June 2017). 37 Author interview RD-1 (2 June 2017); author interview RD-2 (7 June 2017). 32

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Language Services Unit.38 A prosecutor from a French-speaking country expressed his frustration over the inability of his colleagues to read materials in French: From the legal perspective, we say there are two working languages, and I think we have to comply with it. But secondly, in terms of efficiency, it will go faster … And I remember a case where it was all French. The statements had to be translated into English, because the one leading the case didn’t have a clue of what is in the French documents. Which means that it’s a huge cost and delay.39

As if ICC translators and interpreters did not already have enough on their plates, they have now been asked to edit the English language outputs of staff members who do not have the skills to produce clear and polished prose. Conference interpreters working in international fora have observed a growing tendency among speakers using English as a spoken lingua franca ‘to rather grossly misjudge their limited English language skills’.40 The same phenomenon appears to exist among those who use English as a written lingua franca, and it falls upon ICC language professionals to clean up the mess.

12.3.2 The Advantages of Having English as a First Language It is undeniable that those whose first language is English constitute a privileged category in the sphere of international work, given the current status of English as a global lingua franca. In researching the intra-staff dynamics at a global firm after English was designated the working language, Neeley found that ‘native English speakers in an organization may experience a status gain under a lingua franca mandate because of the benefit they reap from speaking in their native language’.41 After interviewing both first- and second-language English speakers, the researcher found that the latter spoke about ‘feeling “stupid”, “diminished”, “reduced”, and “devalued” when communicating and in achieving their work goals, especially when a level of abstract conversation or nuanced discussion was required’.42 Roberts writes that in the field of international law, shifts toward English in both the spoken and written modes ‘have clear distributional effects in terms of whom they privilege’.43 Tomuschat describes the benefits in more detail: A state that succeeds in elevating its national language to the status of preferred means of communication in international relations ensures for itself a massive advantage. It can make its voice heard without any difficulties of a semantic nature. What its statesmen and 38

Author interview PL-5 (25 October 2017). Author interview OTP-5 (27 June 2019). 40 Gentile and Albl-Mikasa 2017. 41 Neeley 2013, p. 477. 42 Ibid., p. 484. 43 Roberts 2017, p. 260. 39

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diplomats say is invariably correct from a formal viewpoint of grammar and style and enjoys therefore generally a greater power of persuasion. In oral presentations, those agents may achieve a degree of natural freshness which those who have learned a foreign language later in life will never attain.44

ICC staff who are not native English speakers are very aware of the greater effort they need to expend in order to function professionally in what is the de facto lingua franca of the Court. A native French-speaking interviewee noted the extra burden of thought and time associated with composing a simple email or memo in English. And if a mistake is made, she added, ‘you pass for an idiot’.45 French speakers may also be frustrated by how few opportunities they have to use their preferred working language in their daily activities. ‘In a meeting room, if you have only one English speaker, the whole meeting will be conducted in English. Because … that’s the way it is’.46 A member of the Prosecutor’s Office described the language dynamics of an investigative team working in a French-speaking country: ‘The team is a Francophone team. Everybody working there, they are fluent in French, they do the statements in French, they interact with everybody in French, it’s very Francophone. Still their meetings are in English because there is always one or two persons who don’t speak French’.47 English language skills are also advantageous in the recruitment phase, despite the official pretence that French language skills carry equal value. ‘It is clear that if there are two candidates for a job at the ICC, the one who speaks only a bit of French will get it over the one who speaks just a bit of English’.48 The head of a principal Court section noted that for many jobs, all applicants must be able to speak English—nobody can rely on French alone. ‘De facto, you cannot be staff of the ICC if your English is totally inexistent’.49 A member of the Prosecutor’s Office stated outright, ‘Essentially at this place – in the prosecution division – if you can’t speak English, you can’t do your job’.50 He went on to add that most senior trial lawyers are native English speakers. And reiterating the notion that first language knowledge facilitates a career at the ICC, a legal officer observed: Being able to work in your mother tongue is a huge advantage. It is a huge privilege that people have … You have an advantage when you don’t need to have a job interview in a language that is not your own. You will come across more naturally than someone like me who is essentially expressing himself in a foreign language … I have a non-native accent; I struggle sometimes to find the right words. And people interviewing in their native tongue don’t have this.51

44

Tomuschat 2017, p. 199. Author interview RL-3 (30 May 2017). 46 Author interview RL-12 (7 June 2017). 47 Author interview OTP-3 (26 June 2019). 48 Author interview RL-12 (7 June 2017). 49 Author interview RD-4 (6 June 2017). 50 Author interview OTP-9 (19 June 2019). 51 Author interview CL-1 (6 June 2017). 45

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There are administrative units and sections that do rely on a certain number of staff being proficient in both English and French. Examples are the Victims Participation and Reparations Section, which has worked on a number of cases in Francophone Africa, and the Public Information and Outreach Section, which attempts to abide by the dual language policy in its official communications. And not surprisingly, the percentage of English/French bilinguals in the Language Services Section itself is high. But as already mentioned, even positions that ideally require a knowledge of both working languages—as in the Victims and Witnesses Section—often end up filled by someone who can only work in English, either because the applicants do not speak both languages or because linguistic skills are ultimately valued less than other kinds of expertise.52

12.3.3 A Dearth of French-Speaking Judges Of the eighteen judges who constitute the ICC bench at any given moment—at times the number has been even higher when individual judges had their terms extended in order to complete a particular trial—a minority have been French-speaking. In 2022, only an estimated six judges on the bench were able to work in French, with either native or some degree of fluency. Like other ICC staff members, however, judges are—at least these days—essentially unable to function solely in the French language for all their daily activities. If they are elected on the basis of speaking that working language, they will have to improve their English language skills rather quickly in order to become fully integrated onto the bench.53 Of course, since most of the judges working in English do not have it as their first language, they may also find it necessary to improve their linguistic skills upon arrival. There have occasionally been fully French-speaking pre-trial or trial chambers (generally composed of three persons), which means that these judges can interact outside of the courtroom in French and will eventually draft their judgments in French. During the actual hearings of a trial, there is almost always simultaneous interpretation provided for the oral proceedings into both English and French, (although one of those languages is often being used already by counsel and witnesses on the floor) so that the official hearing transcripts, derived from interpretation, are available in both languages.54 Indeed, maintaining (relatively) up-to-date transcripts in both working languages is a context in which the Court’s working language policy is most closely respected. There has been a longstanding linguistic disconnect over the first twenty years of the Court’s life in the sense that twelve of the thirty cases pursued to date have 52

Swigart 2020, pp. 30–32. Personal communication, former ICC judge (8 March 2017); personal communication, current ICC judge (9 June 2018); author interview CJ-3 (5 June 2017). 54 Read more about how trial transcripts are created, and the irregular use of interpretation for this purpose, in Swigart 2019. 53

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pertained to crimes (allegedly) committed in Francophone countries—five in the Democratic Republic of the Congo, four in the Central African Republic, one in Côte d’Ivoire, and two in Mali.55 This means that much of the evidential material is also in French, and that submissions from defence teams, in particular, are in French. Many of the trial chambers in these proceedings, on the other hand, have worked in English. A former Court president observed that it would be very helpful if judges could at least read French so that they could look at submissions from the parties without waiting for translation.56 In 2017, ICC Judge Marc Perrin de Brichambaut of France, one of the Francophone minority in Chambers but fluent in English as well, made this pointed remark in a talk delivered to Chinese law students: … if you allow me a personal note … all the accused are Francophone – while most of the judges are Anglophone. This is one of the problems of the Court, is that the only Chamber which works in French is the one I chair on reparations for Lubanga and Katanga. Every other Chamber works in English, and therefore does not understand, cannot communicate without interpretation with either the accused, or most of the time the lawyers of the accused are also Francophone, another little problem.57

When it comes to judicial decisions of all kinds—the myriad motions, interlocutory appeals, and eventually trial judgments, along with separate and dissenting opinions—these are more often than not written in English and must then be translated into French for defence counsel (and sometimes into other languages for the benefit of the accused). Proceedings are thus subject to delay and budgets are stretched thin due to the fact that critical actors are limited in the languages they read. A Francophone staff person working as a representative for victims expressed her frustration with this topsy-turvy situation: I resent the fact that you have so many places where French is the language of the situation. Of course, it is Swahili or Lingala. But if they do speak a working language, it would be French. But then everything is done in English because the three judges are speaking English, and do not speak a word of French. I resent that for my clients, because then everything is in English, everything I’m writing is in English, and I would have to translate it for them to be able to understand … But if it is in French, they can try!58

Another impact of the predominantly English-speaking Chambers is that accused persons are now making choices about their lead defence counsel differently than in the earlier trials. Word has apparently gone around the ICC detention centre, reported an interviewee: ‘Because judges are mainly English-speaking, and their decisions are in English, the tendency now is to take a counsel who speaks English, because they want someone who can understand everything’.59 Accused persons from Francophone countries may thus sacrifice direct communication with their own lead counsel so that their lead counsel can have direct communication with the 55

For a full list of cases before the ICC, see https://www.icc-cpi.int/cases. Author interview CJ-4 (8 June 2017). 57 Perrin de Brichambaut 2017. 58 Author interview RV-1 (5 June 2017). 59 Author interview RD-4 (6 June 2017). 56

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judges sitting on the trial. This logic made sense to another interviewee who works in Chambers, who said he would personally want a lawyer who writes and speaks in the working language of the judges since some things will inevitably get lost in translation.60 He added that this is one reason that bilingual French Canadians are a popular choice for lead counsel—they can lead an examination of a French-speaking witness in the courtroom and then pivot quickly to answer a query from a judge in English.61

12.3.4 Artificial Intelligence to the Rescue? The suggested solution to the lack of English/French bilingualism among Anglophone ICC staff is rarely the active acquisition of language skills. Indeed, the Court has for many years offered in-house French language classes with apparently very few takers. Some staff believe, instead, that what the Court needs is more translators working from French—and other critical languages like Arabic—into English so that they can access important information more quickly in the only working language they read. If this is not possible, certain staff members have suggested that turning to private translation services or even Google Translate should be permitted.62 Some interviewees have also expressed exasperation by the need to rely on interpreters at all, believing that this professional group acts as a communication barrier rather than a bridge. Indeed, they would seem to agree with members of the Nuremberg Tribunal, where simultaneous interpretation was first pioneered, that interpreters are a ‘necessary evil’.63 ‘That’s why they fondly call us “interrupters” sometimes’, commented an LSS staff member. ‘Not interpreters, but “interrupters”’.64 A number of interviewees discussed the notion that inter-linguistic challenges might disappear with the advent of improved artificial intelligence.65 A prosecutor who believes that interpreter/witness dynamics can skew the collection of important information in the field imagined an instruction he would like to give to a witness: ‘Frankly, this person is here because they haven’t invented a machine yet that can do it. You know. This is not a person for you to be talking to. This is someone to help me understand what you’re saying and for you to understand what I’m saying. So, don’t chat’.66

60

Author interview CL-1 (6 June 2017). Ibid. 62 Author interview OTP-7 (24 June 2019); author interview CJ-6 (22 October 2018). 63 Conant 2015. 64 Author interview RL-7 (26 June 2019). 65 Author interview OTP-7 (24 June 2019); author interview CJ-6 (22 October 2018); author interview RL-7 (26 June 2019); author interview RL-19 (26 June 2019); author interview RL-17 (26 June 2019); author interview RL-18 (25 June 2019); author interview RL-9 (25 June 2019). 66 Author interview OTP-7 (24 June 2019). 61

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ICC interpreters have a lot to say about the naïve belief that they could be replaced by machines anytime soon. ‘I’ve heard about machine technology ever since I left interpreting school, this dream about the perfect machine which will do much better than interpreters’, said a courtroom interpreter. ‘But I don’t know, I think a machine lacks – maybe intelligence and emotion?’67 There is some agreement that artificial intelligence might be used for the translation of texts, but interpretation of live speech is another matter: I think the technology has come on a lot. I mean it’s much easier for machines to work with text because the problem is the recognition. I always think a good comparison with spoken language is handwriting. If I said to you, ‘translate my notes’, first of all you would have to recognize what I’ve written. I can barely recognize it myself some of the time. With spoken language it’s the same thing – because people have different accents, they speak in different ways, and then there are non-native speakers.68

One interviewee brought the dream of dispensing with interpreters altogether back to a basic misunderstanding of what it means to be multilingual, perhaps reinforced by the hubris typically found among native English speakers: I think it’s only in the English-speaking world where people think that machines will sort all the interpretation and translation issues, or queries or whatever. Only people who speak one language think that way.69

The next section will explore in more detail the impacts of both monolingualism and the monolingual mindset in the ICC’s conceptual sphere.

12.4 English-Language Dominance and Conceptual Limits 12.4.1 Thinking Outside the Linguistic Box The ICC website announces among its ‘facts and figures’ that it has 900 staff members hailing from approximately 100 states.70 One can easily surmise that almost all of them are English speakers. While it would be more difficult to estimate how many staff members principally or only speak English, it is precisely those with this linguistic restriction who have a proportionally significant impact on the conceptual life of the Court. As already noted, those who have English as a first language may be largely unaware of the professional advantages conferred upon them in the ICC’s work environment. They may also, very significantly, be blind to the ways in which their language shapes the very way they think and view the world, which in turn affects the Court. 67

Author interview RL-19 (26 June 2019). Author interview RL-9 (25 June 2019). 69 Author interview RL-19 (26 June 2019). 70 ICC website: https://www.icc-cpi.int/about. Accessed 20 December 2021. 68

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In her provocative book Imprisoned in English: The Hazards of English as a Default Language,71 Anna Wierzbicka makes this assertion about the monolingual worldview, one that largely echoes the observation made by Wilhelm von Humboldt (found in this chapter’s epigraph) published close to 200 years earlier: The conviction that the words of our native language fit the world as it really is, is deeply rooted in the thinking of many people, particularly those who have never been forced to move, existentially, from one language into another and to leave the certainties of their home language.72

Among the interviews conducted for my project on language challenges at the ICC, numerous comments emerged about the intellectual limits associated with speaking a single language. All of these comments were made by multilingual interviewees. An LSS translator working between French and Arabic noted that ‘each language parses the world in its own way’.73 A French/English interpreter went farther by suggesting what the ICC loses through having so many monolingual staff: It’s not only about language – I always say that – it’s about expressing the world in different ways. And if you only have one language, you express it in only one way. Which is very limited. If you have several languages, you have several ways of expressing the world, and so to see the world as well. And in an institution like this one, we need more of that, I think.74

Roberts notes that ‘it seems reasonable to assume that privileging certain languages results in privileging both native speakers of those languages, as well as the conceptus, approaches and sources with which they are familiar’.75 When the only or predominant language one speaks is English, the intellectual restrictions seem to be compounded. Indeed, international law seems generally rife with both practitioners and scholars, working in English, who fail to recognize what is unavailable to them due to their linguistic blinders. Noting the limitations of scholars who publish in the very prestigious American Journal of International Law, Tomuschat writes that ‘many American authors remain deliberately within the cage of the Anglophone literature without ever looking beyond their own homegrown sources’.76 He also notes ‘an almost claustrophobic attitude where the research carried out ends at the boundaries of the Anglophone communication space’.77 What is the ultimate effect of such restrictions? According to Tomuschat, ‘… linguistic dominance translates easily into intellectual and political self-insulation, wittingly or unwittingly’.78 Linguistic insulation and privilege may also be intertwined with race, writes anthropologist Janet McIntosh, noting that the history of empire and capital has set up Whites across the globe for language privilege, particularly English speakers. 71

Wierzbicka 2014. Ibid., p. 6. 73 Author interview RL-2 (29 May 2017). 74 Author interview RL-3 (30 May 2017). 75 Roberts 2017, p. 267. 76 Tomuschat 2017, p. 221. 77 Ibid., p. 222. 78 Ibid., p. 226. 72

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As tourists, they can almost always count on interacting with local populations and finding public signage in English. English speakers can readily find overseas employment teaching their first language. ‘Relaxing into this luxury’, McIntosh writes, ‘US Americans and British are among the most monoglot of peoples’.79 While White Spaniards might find a parallel (colonially-rooted) ease when in South America, the Spanish language clearly does not have the same global reach or ability to confer advantage as English. The monoglot tendencies of American and British staff at the ICC—and one may add to this group many Australians, Irish and Anglophone Canadians—do not only express themselves through their one language but also through their attachment to the common law system. ‘It is a very multilingual and multicultural court, but English dominates. And there is also supposed to be a hybrid legal system, but common law is also dominant’, stated an interpreter.80 A multilingual legal advisor noted that the English language is the sole reference point for the common law system. He described how English speakers at the ICC sometimes have difficulty in appreciating the nuances of legal terms at the ICC, instead assuming that they already understand their semantic content: When you have English as your native tongue, there may be a tendency then to understand certain terms that are used in the [ICC] Statute in their original meaning, in the States or Canada. Legal terms, like ‘admissibility’. And it is essentially intellectually challenging to realize, ‘hey, even though this term means something in my home jurisdiction, it might mean something different at the ICC’ … For someone whose mother tongue is not English, a continental lawyer coming from the Roman Germanic system, they already have to take this first intellectual step.81

In recent years, there has been pushback by certain judges to the ‘common law drift’82 that appears to have occurred at the ICC, despite efforts made at the Rome Conference to create a sui generis legal system.83 ‘You can feel this on a daily basis in the way they manage their courtrooms’, said an LSS courtroom interpreter who, like others who work ‘in the booth’, is a regular observer of what happens during trials. These ‘renegade’ judges, all from civil law countries, have introduced procedures from their own systems in the trials over which they preside, for example in the admission of evidence, much to the confusion and consternation of certain prosecutors and defence counsel who had become accustomed to the common law approach used in other trials.84 79

McIntosh 2020. Author interview RL-7 (2 June 2017). 81 Author interview CL-1 (6 June 2017). 82 A term used by Colin Picker, as cited in Roberts 2017, p. 270. 83 Bensouda 2011. 84 Author interview RL-7 (2 June 2017); personal communication with ICC judge (15 June 2018). In a recent Women in International Law webinar (‘The Right to a Fair Trial in International Criminal Law’), hosted by KU Leuven, ICC defence counsel Kate Gibson described how two ICC courtrooms, located physically side by side, can have trials being conducted according to widely divergent procedures. 80

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I have written elsewhere about how the core concepts and documents of the ICC have been largely framed in English and that they therefore may not map seamlessly onto other languages.85 An example is the critical distinction the Court makes between a preliminary ‘examination’ and an ‘investigation’, a difference that is not always possible to convey in a language without two such semantically related but distinguishable lexical items. It has also been suggested that the very creation of the ICC, through long debates and negotiations during the Rome Conference, was shaped by the dominance of English, despite the fact that common law legal terms were deliberately eschewed in the actual basic texts of the ICC. In writing about the limited number of non-Western voices present at the Conference, Julie Fraser notes that ‘the participation of Southern States was subject to the prevailing power dynamics that were not in their favour. For example, the lack of translation services in Rome privileged English-speaking delegates …’.86 In other words, a lack of familiarity with English may have compounded the relative powerlessness of representatives from certain nations during the negotiation of the foundational ICC treaty. The essential idea here is that English-centrism stacked on top of the common law legal approach may engender a particularly narrow worldview, one which may nonetheless appear natural and inevitable to certain persons working at the ICC. Such a limitation is not desirable for an institution whose cause is purportedly ‘the cause of all humanity’.87 Those working with the Court would do well to acknowledge the view expressed by Wierzbicka in Imprisoned in English—that ‘while English is a language of global significance, it is not a neutral instrument or one that, unlike other languages, carves nature at its joints; and that if this not recognized, English can at times become a conceptual prison’.88

12.4.2 A Multilingual Institution with a Monolingual Ideology This final section explores, in a speculative manner, a different kind of conceptual limitation, one that is specific neither to the ICC nor to the English language. It pertains rather to taken-for-granted assumptions about how language works, what are known in the field of linguistic anthropology as ‘language ideologies’.89 A very powerful ideology—often found in the world of language policy and education— understands multilingualism to be the composite of distinct monolingualisms,90 and assumes that multilinguals move from one bounded system to another, ideally 85

Swigart 2020, p. 32. Fraser 2022. 87 A description of the Court by former United Nations Secretary-General Kofi Annan. https://www. icc-cpi.int/about. Accessed 20 January 2022. 88 Wierzbicka 2014, p. 4. 89 Woolard 2020. 90 Grosjean 1989. 86

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speaking each as if it were their only language.91 In other words, language use is judged according to a ‘monoglot standard’.92 Such an ideology ignores or stigmatizes the hybrid communicative practices that are so common around the world (where most people are, in fact, multilingual). In the past often described as ‘code-mixing’ or ‘code-switching’, the fluid use of more than one language in a communicative event has increasingly been captured by the term ‘translanguaging’: ‘using resources from different languages together, with very little regard for what we might call the “boundaries” of named languages …’.93 The shift in thinking about how many multilinguals use the languages at their disposal has implications for institutions that must accommodate the speakers of diverse languages. Frances Rock describes the dilemma facing those whose professional lives revolve around multilingual communication: … whilst interpreters and translators are likely to be familiar with a rich multilingual tapestry which may run throughout their lives, many of the social institutions in which they work still view languages as separate and separable units which come into contact in highly regularised ways and can therefore be highly regulated whenever they meet. In other words, many social institutions still operate on the assumption of a monolingual norm even though many social actors within them do not.94

How might adopting this different—and many would argue more accurate— conceptualization of multilingual practice affect the work of the ICC? For one thing, it might change thinking around the language proficiency tests that are administered to accused persons so that their need for interpretation and translation can be determined. Requests for such testing often come from the Office of the Prosecutor, which asserts that accused persons should be able to understand the materials they disclose in English and/or French and thus do not need to have them made available in their first language. ‘It’s quite a burden for the Court to translate materials for notice purposes – statements and such – into different languages’, said a senior trial lawyer. ‘French is easier, English is easier. But when you start getting into very small and insular languages that aren’t very widely spoken, it becomes quite problematic’.95 It goes without saying that the problem is not only one of time but of money. Defence teams, on the other hand, defend their clients’ right to have the materials in a language ‘the accused fully understands and speaks’;96 Proficiency tests may also be ordered by a trial chamber seeking clarification about the language services an accused person needs in order to fully comprehend the proceedings against him. Debate over language proficiency arose, for example, in the case of Alfred Yekatom, charged with committing crimes in the CAR.97 As a former leader in 91

Flores and Rosa 2015, p. 153. Silverstein 1998. 93 EAL Journal 2016. 94 Rock 2017, p. 218. 95 Author interview OTP-8 (24 June 2019). 96 ICC Statute Article 67. 97 Yekatom’s case has been joined with that of Patrice-Edouard Ngaïssona. https://www.icc-cpi.int/ carII/yekatom-nga%C3%AFssona. Accessed 20 January 2022. 92

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the Forces Armées Centrafricaines and a member of the CAR parliament, it was apparently considered unlikely by both the Prosecution and Chambers that Yekatom did not possess sufficient language skills to follow his own trial in French instead of Sango, the latter being the language which the accused indicated he spoke fully.98 In the end, the Pre-trial chamber decided, and then upheld upon appeal by the Defence, that (1) the accused was proficient in French for the purpose of Articles 67(1)(a) and (f) of the ICC Statute; (2) the accused has the right to have, on an ad hoc basis, the assistance of a French-Sango interpreter when reading the witness statements, if he so wishes; and (3) not all court records/filings would be translated into French as a matter of course.99 The trial chamber in The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona functions primarily in English and most of the decisions associated with this case on the ICC website are available only in English. Once again, there is a mismatch between the language of the Chamber and that of the crime situation—the working language relevant to CAR, the one that could be directly accessed by both the accused and others with a knowledge of French, has been sidelined. Certain aspects of the Yekatom proficiency assessment also raise questions about whether the Court’s monolingual ideology has blinded it to another understanding of the situation. An insider from the Language Services Section observed confidentially that, based upon conversations with experts in French and Sango, Yekatom did not appear truly proficient in either language.100 The evaluation of Yekatom as ‘semilingual’101 suggests an unfamiliarity with a language practice found across Africa, especially in urban areas, where local lingua francas are used fluidly and often unconsciously in combination with official languages.102 When a speaker is used to drawing on a broad linguistic repertoire for self-expression, being asked to confine oneself to a single language for the purposes of assessment may give some skewed results. It is also quite possible that translanguaging is practiced in contexts usually considered formal, such as speaking before the Central African Parliament. Believing that Yekatom should speak French at a certain level as a member of parliament, or that he should speak Sango with a certain purity since it is his first language, reveals

98

Order to Conduct a French Language Proficiency Assessment of Alfred Yekatom, No: ICC-01/1401/18, 18 December 2018. https://www.icc-cpi.int/CourtRecords/CR2018_06011.PDF. Accessed 20 January 2022. LSS was, incidentally, already equipped to handle French/Sango interpretation and translation as it was an important situation language in the Bemba trial. 99 Request on behalf of Mr. Yekatom seeking leave to appeal ‘Decision on Language Proficiency of Alfred Yekatom for the Purposes of the Proceedings’, No. ICC-01/14-01/18. 16 January 2019. https://www.icc-cpi.int/CourtRecords/CR2019_00122.PDF. Accessed 20 January 2022. 100 Personal communication former Registry staff member, 15 February 2019. 101 Flores and Rosa 2015, p. 153. 102 The author’s early scholarly work examined this phenomenon in Dakar with Wolof and French. See Swigart 1994, 2001.

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powerful assumptions about the nature of multilingualism and the practices of multilinguals. It reveals that the Court operates according to an unarticulated monolingual ideology.103 How the ‘industry’ of translation and interpretation might deal with a different conception of multilingualism is a tricky question. Simultaneous interpretation, in particular, is dependent upon technology that assumes that languages are distinct systems that can each occupy one transmission channel at a time. I once attended a meeting of the African Commission on Human and Peoples’ Rights, where member state delegations have the opportunity to defend their human rights records. The Sudanese delegation chose to speak in Arabic and the interpreters were ready to convey their words into French and English from their respective booths. The principal Sudanese speaker did not confine himself to Arabic, however, instead moving between Arabic and English in a natural, intertwined and unconscious manner. The interpreters repeatedly intervened, asking the speaker to speak Arabic only, to no avail. His fluid use of translanguaging simply did not fit the technical or theoretical constructs of simultaneous interpretation, although this personal practice was clearly so normal that the speaker himself could not prevent it. Rock acknowledges the difficulties of rethinking the way in which institutions bridge linguistic difference: My point is not that interpreting practice should necessarily change to a standby mode or to a mode driven by translanguaging. It is instead that as interpreters review their ethical and indeed moral position, consideration of the character of multilingual talk, as it is currently understood is an important component both for them and, particularly, for the institutions and individuals who employ them.104

As of August 2022, the ICC has three preliminary examinations and seventeen investigations underway. While its early interventions were confined to the African continent, its activities have now reached Asia, Europe, the Middle East and Latin America. Court staff are thus called upon daily to communicate with persons of widely varying language backgrounds and with complex language practices. The effects of a monolingual ideology on an institution whose every function depends on the ability to communicate across diverse languages and cultures cannot be overestimated. In combination with English-centrism—a powerful ideology of its own—such thinking serves to undermine imagination and comprehension within the walls of the Court. I have suggested elsewhere that persons working in international criminal justice, and judges in particular, ‘should possess the intellectual flexibility to imagine what it 103

In more recent decisions relevant to the CAR II case, however, the Court exhibited some nuance in acknowledging that the accused Mahamat Said Abdel Kani has functional differentiation in his language skills—he is orally strongest in Sango but can only access written materials in French. Version publique expurgée de la ‘Réponse de la Défense’ à la ‘Registry Transmission of French and Sango Language Proficiency Assessments of Mahamat Said Abdel Kani and Report on Feasibility of Translating Written Documents into Sango’ (ICC-01/14-01/21-78) » (ICC-01/14-01/21-82-Conf). No. ICC-01/14-01/21, 24 May 2021. https://www.icc-cpi.int/CourtRecords/CR2021_04763.PDF. Accessed 20 January 2022. 104 Rock 2017, p. 231.

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means to see the world in different ways and to express that world through different languages. This flexibility is cultivated through being pushed outside of one’s native linguistic and cultural frame, experiencing the resultant disorientation, and reimagining what one assumed to be the norm as instead one possibility among many’.105 This advice is even more applicable to persons working with the ICC, the institution that will carry the ambitious aims of international criminal justice into the future. Uriburu extends this recommendation further, to the field of international law, arguing that multilingualism is ‘a means to acknowledge difference, and to attain openness and self-relativization. These are critical sensibilities in a discipline that while hardly (or indeed, impossibly) universal has a ubiquitous presence in our everyday lives’.106

12.5 Conclusion In this paper, I have sketched a linguistic and cultural picture of an institution where English-language dominance, privilege and conceptual influence are both undeniable and either passively tolerated or largely ignored. Yet the impacts of this hegemony are palpable in the ways in which the Court’s everyday work is carried out and its mandate is pursued. Is a linguistic counter-hegemony possible at this point? If so, what would it look like? The second-class status of French is a reality at the ICC, but a question remains about whether a true ‘duopoly’107 of the two working languages would significantly open up the minds of staff members. Despite their historical role in international institutions, French and English are both European in origin, albeit now widespread due to colonial occupation, and they are furthermore closely associated respectively with the two most dominant legal systems of the world, civil (Romano-Germanic) and common law. At the same time, French is already enshrined in the ICC Statute as a language of the Court and it is spoken in countries across Africa, a number of which have been sites of alleged international crimes prosecuted by the Court. It thus has ongoing importance for the Court as both a working and a situation language. Perhaps the real question here is what having a truly multilingual institution— expressed through and reflected by the multilingualism of its staff—would ultimately achieve. It is, of course, impossible that ICC staff members, including the all-important individuals who adjudicate cases, could ever have a knowledge of all the relevant languages, societies and cultures that are relevant to the Court’s cases, originating in increasingly disparate geographic zones. It is rather the fact of having the intellectual openness associated with multilingualism that would most benefit the Court. To that end, a number of scholars have suggested that a satisfactory language policy for international legal institutions would be ‘to abandon French in favor of a system that requires international lawyers to speak English plus another language, 105

Swigart 2017, p. 216. Uriburu 2020. 107 Ibid. 106

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which would permit a common language but discourage monolingualism’.108 This suggestion was echoed by an ICC legal officer, fluent in both French and English in addition to his first language: What I think is more important for the Court is, rather than saying we need to have French on an equal footing … we need to basically nurture language knowledge, but not necessarily only French knowledge or even primarily French knowledge, but of different languages so we can basically get different ideas from them.109

Uriburu contends that international lawyers from ‘the core’ need, in particular, to have more exposure to other languages as this ‘directly impacts their engagement with different ways of thinking and their acknowledgement of others’.110 This chapter contends that ICC staff members must be encouraged, indeed required, to step out of what von Humboldt calls the ‘magic circle’ drawn by a person’s first language, and to question the assumptions created there. This would seem to be a necessary foundation for carrying out the aims of the ICC with integrity and fairness. Increased multilingualism within the walls of the ICC will not, however, lessen the critical need for professional language services. The Court cannot function properly without allocating adequate resources in its budget for translation, field and courtroom interpretation, terminology development, and other critical if too often unacknowledged activities.111 The aims of the ICC cannot be achieved if the institution cannot communicate its procedures, judgments, victims’ benefits, and commitment around judicial complementarity to audiences across the globe. Despite a growing caseload and expanding geographic reach, the Registry’s language service budget is being decreased, often due to the pushback of States Parties who object to the cost of the Court. Those who purport to support the ICC’s mission should recall the oft-repeated refrain of Judge Claude Jorda, a ‘first generation’ judge of the Court: La justice a des coûts, mais elle n’a pas de prix.112

References Ba O (2020) States of Justice: The Politics of the International Criminal Court. Cambridge University Press, Cambridge Balogh K et al. (eds) (2016) TraiLLD: Training in Languages of Lesser Diffusion. Lannoo Campus Publishers, Tielt Bensouda F (2011) The ICC Statute: An Insider’s Perspective on a Sui Generis System for Global Justice. North Carolina Journal of International Law 36(2):277–286 Bohlander M (2014) Language, Culture, Legal Traditions, and International Criminal Justice. Journal of International Criminal Justice 12(3):491–513 Cassirer E (1946) Language and Myth (Langer S (translator)). Dover Publications, New York 108

Laverack 2015, as cited in Roberts 2017, p. 268. Author interview CL-1 (6 June 2017). 110 Uriburu 2020. 111 Swigart 2019. 112 ‘Justice has costs, but it has no price’. 109

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Cohen M (2018) The Continuing Impact of French Legal Culture on the International Court of Justice. In: Roberts A et al. (eds) Comparative International Law. Oxford University Press, Oxford, pp 181–205 Conant E (2015) The Creation of Simultaneous Interpretation. Translation Excellence: Bridging Human Beings (4 September 2015). https://translationexcellence.com/the-creation-of-simultane ous-interpretation/. Accessed 1 August 2022 EAL Journal (2016) What Is Translanguaging? (26 July 2016) https://ealjournal.org/2016/07/26/ what-is-translanguaging/. Accessed 1 August 2022 Flores N, Rosa J (2015) Undoing Appropriateness: Raciolinguistic Ideologies and Language Diversity in Education. Harvard Educational Review 8(2):149–171 (Summer 2015) Fraser J (2022) A Seat at the Table: Islamic Law’s Neglected Potential in Universalising International Humanitarian Law. In: Weiss N, Zimmerman A (eds) Human Rights and International Humanitarian Law: Challenges Ahead. Edward Elgar, Cheltenham Gentile P, Albl-Mikasa M (2017) ‘Everybody Speaks English Nowadays’. Conference Interpreters’ Perception of the Impact of English as a Lingua Franca on a Changing Profession. Cultus: Journal of Intercultural Mediation and Communication 10. https://www.cultusjournal.com/files/ Archives/Gentile_Albl-Mikasa.pdf. Accessed 1 August 2022 Grosjean F (1989) Neurolinguists Beware! The Bilingual Is Not Two Monolinguals in One Person. Brain and Language 36(1):3–15 Laverack PJ (2015) The Rise of Asia and the Status of the French Language in International Law. Chinese Journal of International Law 14(3):567–583 McIntosh J (2020) Whiteness and Language, The International Encyclopedia of Linguistic Anthropology. Wiley Online Library. https://onlinelibrary.wiley.com/doi/10.1002/9781118786093.iel a0474. Accessed 1 August 2022 Neeley TB (2013) Language Matters: Status Loss and Achieve Status Distinctions in Global Organizations. Organization Science 24(2):476–497 Perrin de Brichambaut M (2017) Transcription écrite de l’intervention de Monsieur le Juge Marc Perrin de Brichambaut à la Peking University Law School (Beijing) du 17 mai 2017. https://www. icc-cpi.int/RelatedRecords/CR2019_02039.PDF. Accessed 1 August 2022 Roberts A (2017) Is International Law International? Oxford University Press, Oxford Rock F (2017) Shifting Ground: Exploring the Backdrop to Translating and Interpreting. The Translator 23(2):217–236 Silverstein M (1998) Monoglot ‘Standard’ in America: Standardization and Metaphors of Linguistic Hegemony. In: Brenneis D, Macaulay RKS (eds) The Matrix of Language: Contemporary Linguistic Anthropology. Westview Press, Boulder, pp 284–306 Swigart L (1994) Cultural Creolisation and Language Use in Postcolonial Africa: The Case of Senegal. Africa 64(2):175–189 Swigart L (2001) The Limits of Legitimacy: Language Shift in a Changing Market. Journal of Linguistic Anthropology 10(1):90–130 Swigart L (2017) Linguistic and Cultural Diversity in International Criminal Justice: Toward Bridging the Divide. The University of the Pacific Law Review 48:197–217 Swigart L (2019) Unseen and Unsung: ICC Language Services and Their Impact on Institutional Legitimacy. In: Baetens F (ed) Legitimacy of Unseen Actors in International Adjudication. Cambridge University Press, Cambridge, pp 272–296 Swigart L (2020) Now You See It, Now You Don’t: Culture at the International Criminal Court. In: Fraser J, McGonigle Leyh B (eds) Intersections of Law and Culture at the International Criminal Court. Edward Elgar, Cheltenham, pp 14–36 Terris D et al. (2007) The International Judge: An Introduction to the Men and Women Who Decide the World’s Cases. Brandeis University Press, Waltham Tomuschat C (2017) The (Hegemonic?) Role of the English Language. Nordic Journal of International Law 86:196–227

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Tonkin H (2021) Remarks Delivered Upon the Opening of the Symposium ‘Language and Migration: Experience and Memory’, Organized by the Migration Lab of Princeton University (19 April 2021). https://migration.princeton.edu/symposium. Accessed 1 December 2021 Uriburu J (2020) Between Elitist Conversations and Local Clusters: How Should We Address English-Centrism in International Law? Opinio Juris (2 November 2020). http://opiniojuris.org/ 2020/11/02/between-elitist-conversations-and-local-clusters-how-should-we-address-englishcentrism-in-international-law/. Accessed 1 December 2021 Wierzbicka A (2014) Imprisoned in English: The Hazards of English as a Default Language. Oxford University Press, Oxford Woolard KA (2020) Language Ideology, The International Encyclopedia of Linguistic Anthropology. Wiley Online Library. https://onlinelibrary.wiley.com/doi/10.1002/9781118786093.iel a0217. Accessed 20 January 2022

Leigh Swigart is Director of Programs in International Justice and Society at the International Center for Ethics, Justice and Public Life of Brandeis University, Waltham, USA. Holding a doctorate in sociocultural anthropology from the University of Washington, Swigart is a two-time Fulbright Scholar and recipient of the Wenner-Gren Foundation Fellowship for Anthropological Research. Her recent academic work and publications have centred on the international judiciary, the accommodation of linguistic diversity in processes of international justice, and phenomena occurring at the intersection of language, culture and justice.

Chapter 13

Gender Imbalance at the ICC: The Continued Hegemonic Entrenchment of Male Privilege in International Criminal Law Angela Mudukuti

Contents 13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 Gender Imbalance and Male Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2.1 The Assembly of States Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2.2 The ICC Staff: Recruitment and Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3 Impact of Gender Imbalance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3.1 Perpetuating the Cycle and Negative Perceptions . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3.2 Office Culture and Sexual Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3.3 Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4 The ICC’s Efforts to Address Gender Imbalance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The ICC, an invaluable part of the international criminal justice landscape has a mixed bag of successes and failures. There are many challenges facing the Court and the Assembly of States Parties (ASP) and one of them is the shocking gender imbalance at the senior levels of the Court and within the ASP. The Independent Expert Review (IER) process, which came about in a bid to improve the Court’s efficiency and effectiveness, produced a voluminous 348-page report released in September 2020. It reveals a number of concerning issues including sexual harassment which is inextricably linked to the chronic staff related gender imbalance at the ICC. Gender imbalance, perpetuated by many factors including hiring practices, entrenches hegemonic ideas related to male privilege at the expense of women. Taking into account the findings of the IER, and other studies this chapter will delve into the gender imbalance and the associated consequences including how the imbalance affects the field as a whole. This chapter will also look at ways to change the imbalance including better recruitment practices, and tenure policies.

A. Mudukuti (B) Human Rights Lawyer, Harare, Zimbabwe e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 F. Jeßberger et al. (eds.), International Criminal Law—A Counter-Hegemonic Project?, International Criminal Justice Series 31, https://doi.org/10.1007/978-94-6265-551-5_13

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Keywords Gender imbalance · ICC · Independent Expert Review · Male privilege · Sexual harassment · Workplace culture

13.1 Introduction The May 2021 United Nations Human Rights Council Advisory Committee Report entitled Current Levels of Representation of Women in Human Rights Organs and Mechanisms: Ensuring Gender Balance states that gender parity is yet to be achieved in many UN bodies1 and the ICC is no exception. The ICC has been up and running since 2002. Considered a relatively young institution, its past is coloured with both success and failure. Much has been said and written about the Court’s core business which is tackling genocide, war crimes, crimes against humanity and the crime of aggression, but not enough has been said about the staff and their work environment. The report released by the group of independent experts (known as the Independent Expert Review (IER)) and mandated by the ICC Assembly of States Parties (ASP) to review the ICC and its operations covers an array of topics including the work environment. It is arguably the most comprehensive account on the topic. It sheds light on the gender imbalance at the ICC which is effectively entrenching hegemonic male privilege and perpetuating unacceptable conduct like sexual harassment. The present chapter2 will look at the gender imbalance specifically at the upper echelons of the Court, and discuss the factors that contribute to gender imbalance including recruitment practices, ICC elections, and male privilege. It will also show that gender imbalance has a harmful impact including on the jurisprudence, prevalence of sexual harassment, a lack of accountability for sexual harassment and on the international criminal law profession as a whole.

13.2 Gender Imbalance and Male Privilege Male privilege is when men are awarded advantages simply on the basis of their sex. In particular they are ‘afforded economic, social and political advantages in most societies’.3 These advantages are entirely unearned and not remotely merit based. Male privilege is evident in many spheres of society as exhibited by the gender pay gap or the fact that in the twenty-first century we are still marking female ‘firsts’, for example Kamala Harris, the first female vice-president of the United States of America, Emmanuelle Charpentier and Jennifer A. Doudna, the first two women to

1

United Nations Human Rights Council Advisory Committee 2021, para 5. This chapter is an expansion of a blog post written by the same author and published on Opinio Juris entitled The ICC’s ‘Boys Club’ Problem, 7 October 2021. 3 Wenzel 2020, p. 8. 2

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ever jointly win the Nobel Prize for Chemistry,4 or Ngozi Okonjo-Iweala, who was the first female to be appointed director-general of the World Trade Organization.5 In the field of international criminal law, male privilege is evident as men hold a majority of the senior positions in this traditionally male-dominated profession. Men in international criminal law have benefitted from the ‘Boys Club’6 mentality and the erroneous assumption that women are not deserving, or are less capable than their male counterparts. Men give other men positions or vouch for them in ways that they often do not do for women.

13.2.1 The Assembly of States Parties The first problematic area is the ICC’s legislative and oversight body, the ASP, which is composed of diplomats from ICC Statute signatory states. The ASP is the site of important decisions including the appointment of individuals given highly influential assignments. The ASP is led by an ASP Presidency and since the Court’s inception there have been seven presidents and only two of them have been women. In addition, the ASP continues to produce entities with no gender balance. Take the aforementioned Independent Experts7 (IER or Experts) established by the ASP, they consisted of only three women and six men. The Committee on the Election of the Prosecutor (CEP), appointed8 by the ASP member states through regional groups in 2019, had four men and one woman. The Panel of Experts (PoE) appointed to assist the CEP had three men and only two women. The current Advisory Committee on the Nomination of Judges (ACN)9 mandated to facilitate the appointment of the highest-qualified judges has 9 members and only three of them are women. It is clear the composition of the ASP itself is part of the problem, and that can be traced back to national level processes. The diplomats who constitute the ASP are proposed to the Credential Committee by their respective Head of State or their Minister of Foreign Affairs.10 Efforts to address the national level gender imbalance must continue but it is incumbent upon ASP representatives to proactively make decisions that reflect an appreciation for gender balance when appointing members to committees or groups.

4

O’Kane 2020, p. 1. Inman 2021, p. 1. 6 Mudukuti 2021b. 7 IER 2020, para 3. 8 ICC-ASP 2020b, para 5. 9 Advisory Committee on Nomination of Judges at the ICC webpage. https://asp.icc-cpi.int/en_ menus/asp/ACN/Pages/default.aspx. Accessed 24 September 2021. 10 Assembly of States Parties webpage. https://asp.icc-cpi.int/en_menus/asp/assembly/Pages/ass embly.aspx. Accessed 24 September 2021. 5

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13.2.2 The ICC Staff: Recruitment and Elections At the Court itself, according to the 2020 Report of the Bureau on Equitable Geographical Representation and Gender Balance in the Recruitment of Staff of the ICC (Gender and Geographical Representation Report), as of 30 September 2020, the ICC staff was 49.2% female and 50.8% male.11 This may seem acceptable (not perfect) but when one digs deeper the real problem is revealed—most of the women are in junior roles. The percentage of female staff at P-5 or above positions is 23.5% whilst male staff come in at a hefty 76.5%. According to the same report, ‘although the quality of female candidates was not lower than that of male candidates, the pool of the latter for senior-level posts tended to be lower …’. Perhaps not enough women apply for these positions but even if they did, would they be selected for the job? In the event that they are selected for the job, are they likely to accept based on the impression they may have gathered during the recruitment process?

13.2.2.1

Recruitment

In general, ‘[W]omen are on average, 30% less likely to be called for a job interview than men with the same characteristics …’.12 Unconscious bias in recruitment processes is common as are interview panels that have more men resulting in more men being offered the job. Research conducted by Google, in their attempt to address their own gender imbalance, revealed that, ‘women who turned down job offers had interviewed only with men.’13 They then ensured that women met other women during the hiring process and as a consequence, the number of women being hired increased. The ICC may exhibit a similar problem as the IER recommended that ‘[w]here this is currently not the case, all recruitment panels in future should have at least one woman …’.14 Hiring practices are one thing but the question of tenure is another factor that affects gender balance at the ICC. Excluding elected officials who have a limited term, many staff members at the ICC have been in secure positions at the Court for several years. According to the Independent Expert Review, 44% of D-1 staff and 23% of P-5s have been at the Court for more than 10 years whilst 33% of D-1s and 41% of P-5s have been at the Court for between 5 and 10 years.15 This means that men, who form the majority of senior staff, stay in their coveted positions and promotion or appointment of women is unlikely, if not impossible, until the position is vacant. 11

ICC-ASP 2020c, para 11. Universitat Pompeu Fabra 2019, p. 1. 13 Miller 2012, p. 1. 14 IER 2020, p. 73. 15 Ibid., para 248, footnote 145. 12

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Seeing the general problem of lack of movement at the top and the need to balance institutional memory and experience with fresh thinking, the IER recommended a tenure system be introduced for new recruitments in P-5 and director level positions.16 Citing international organisations that operate in this manner, the Experts pointed to the Organisation for the Prohibition of Chemical Weapons which has a maximum 7-year term for all its officers, the Organisation for Security and Cooperation in Europe, and the International Atomic Energy Agency which have a maximum of five years.17 The Experts recommend something between the five-year term of the Registrar, and the nine-year terms of the judges and prosecutor.18 Whilst that is very helpful it does not help solve the imbalance with current P-5s and director level staff. In its Overall Response to the IER, the Court’s resistance to the tenure proposal was evident, particularly the Office of the Prosecutor which used the example of a Senior Trial Lawyer to make its point. According to the Office of the Prosecutor, given the length of time cases take, losing a Senior Trial Lawyer would result in ‘[t]he loss of the skill, experience, case and situation knowledge, and personal commitment to the mission possessed by the senior lawyer’ and that, in their view, ‘would be detrimental to OTP [Office of the Prosecutor] operations.’19 Other objections included strain on limited resources via having to recruit frequently and risking increasing the, ‘vulnerability members of such organisations might otherwise feel, if their ability to make decisions independently of public and political opinions, as career public servants, were not protected’.20 Whilst the Court’s resistance is understandable, a tenure policy is essential for staff turnover, to give others the opportunity to hold these positions and ultimately improve the gender balance. If all the male P-5s and directors remain in their positions the gender imbalance will persist.

13.2.2.2

Elections

The Registrar, Prosecutor and judges are all elected officials of the Court. They each follow a different path to office governed by the ICC Statute and ASP resolutions. Prosecutorial Elections There have been three prosecutors to date and their respective election processes have differed. In 2021/2021 the CEP was appointed to assess and evaluate applicants for the job. Whilst the process itself and its handling by the Presidency of the Assembly of States Parties had its challenges,21 the pool of applicants left a lot to be desired

16

Ibid., para 249. Ibid., para 249. 18 Ibid., para 249. 19 ICC-ASP 2021, para 236. 20 Ibid., para 237. 21 Mudukuti 2021a, p. 1. 17

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with respect to gender balance. Out of 89 applicants, only 26 where female.22 Of those 26 women only two made the final short list which consisted of a total of nine candidates. The CEP, in accordance with its Terms of Reference23 had due regard to the ‘extent possible’ to gender balance and other factors such as geographical representation and legal system24 but the CEP’s ‘ability to provide a balanced slate of candidates in this regard was, however, circumscribed by the available pool of applicants and the qualifications of those who presented within specific categories.’25 The CEP recommended that, ‘gender balance and diversity of legal systems be taken further into account in the selection and appointment of the Deputy Prosecutor(s)’ and the subsequent election of male prosecutor made this recommendation even more pertinent. The Deputy prosecutors are elected by the states parties from a list provided by the current prosecutor.26 The vacancy was advertised in July 2021 and if all goes according to plan a new deputies will be elected in December 2021. It is important that the deputies be well-qualified, experienced, of high moral character and female. Judicial Elections Judicial Elections differ from Prosecutorial Elections at the ICC. At any one time there are 18 judges. As they did not all start at the same time, these elections are staggered and take place every three years when a nine-year term27 comes to an end or when a judge has to be replaced. The process for the nomination and election of judges at the ICC is contained in Articles 36 and 37 of the ICC Statute and Resolution ICC-ASP/3/Res.6.28 Judges at the ICC are nominated and elected by states. All nominees are national nominees, meaning that they have been selected by their country. National nomination practices remain inconsistent and unclear in many countries and for gender parity states parties must remain cognizant of the need to present their qualified female nominees. After states have selected their nominee, every nominee is evaluated by the ACN who provide assessments of the candidates with regard to the ICC Statute’s criteria. However it is states that make the final choice through their votes. Minimum voting requirements are in place to ensure the representation. Although the Rome Statute does not set quotas for gender and geographical representation, the Assembly has established minimum voting requirements as a way to ensure adequate representation in these areas. Voting requirements vary from election to election as they are established to maintain diversity considering the remaining and departing judges’ backgrounds. The requirements compel states to direct their votes in such a way as to guarantee 22

ICC-ASP 2020b, p. 6. Ibid., para 23. 24 Ibid., para 23. 25 Ibid., para 40. 26 ICC Statute Article 42(4). 27 ICC Statute Article 36(9). 28 Coalition for the ICC 2020a, p. 2. 23

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that, at any given moment, the ICC bench is composed of at least … six women and six men … States Parties must vote in accordance with the MVRs for their ballots to be valid.29

However, minimum voting requirements for region and gender apply only during the first four rounds of voting. Typically there are several rounds of balloting. As explained in an informal guide compiled to help states understand minimum voting requirements, the number four was a political compromise to ‘accommodate those delegations that preferred a less restricted election procedure.’30 This limit is problematic. For the 2020/2021 election the minimum voting requirement for gender was one, meaning states were encouraged to vote for at least one woman during the election. This would not have been sufficient to tip the balance, prompting civil society31 to advocate for states to go further than that. Thankfully, states did exactly that resulting in the first balanced bench in six years. At the end of 2020, six new judges were elected and the ICC bench32 reached gender parity after years of imbalance. Currently, there are 9 female judges and 9 male judges. Prior to that, the beginning of 2020 was the sixth consecutive year that female judges were outnumbered by male judges. In fact, in early 2020 there were 12 male judges and only 6 female judges.33 Gender balance is necessary because, as pointed out by Grossman, ‘men and women bring different perspectives to bear in judging.’34 Whilst the ICC Statute requirement that the fair gender representation be considered35 is indeed a step in the right direction, it is clear that more needs to be done to ensure that the bench is balanced. Registrar Elections According to the ICC Statute, the Registrar is elected by an absolute majority of the judges.36 The Presidency establishes a list of candidates who meet the requirements and sends this list to the ASP with a request for recommendations.37 After the Presidency has recommendations from the ASP the judges are provided with those recommendations and asked to vote. It would be far too simplistic and unfair to suggest that men only vote for men, but the fact that of the Court’s three registrars, two were men cannot go unmentioned. In its Overall Response, the Court mentioned that in recent Registrar elections there have been a ‘clear majority’ of male applicants.38 All judges of the Court interview the candidates, the significance of a predominately male bench interviewing predominantly male candidates should 29

Open Society Justice Initiative 2019, p. 19. ICC 2017, para 7. 31 Coalition for the ICC 2020b, p. 1. 32 FIDH 2020, p. 1. 33 Coalition for the ICC 2020b, p. 1. 34 Grossman 2011, p. 645. 35 ICC Statute Article 36(8)(a)(iii). 36 ICC Statute Article 43(4). 37 ICC 2013, Rule 12. 38 ICC-ASP 2021, para 179. 30

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also be considered when thinking about why mostly men apply and why mostly men have been elected.

13.3 Impact of Gender Imbalance Gender imbalance at international courts has a negative impact. In particular it perpetuates more imbalance and leads to hostile office culture where conduct such as sexual harassment is rampant. It can also be detrimental to the jurisprudence and a court’s credibility.

13.3.1 Perpetuating the Cycle and Negative Perceptions Gender imbalance perpetuates further gender imbalance because, as mentioned above, women do not see other women in these roles and may therefore not apply, and when they do, being interviewed predominantly by men may also result in a certain bias which can affect the outcome. It also ensures that men have more work experience as they are given all the senior opportunities, gain the relevant work experience and are then appointed to the next job on the ladder and so the cycle continues. In addition to creating a self-perpetuating cycle, the gender imbalance also affects how the courts and tribunals are perceived. At the ICC for example, the ICC Presidency, which comprises of three elected judges is one of the four organs. It is made up of a President and the two vice presidents who have three main functions—judicial and legal functions, administration and external relations.39 The external relations component essentially makes them the ‘front of house’ where they have to ‘maintain relations with States and other entities and to promote public awareness and understanding of the Court.’ A gender balanced Presidency would make a better impression to show the Court is progressive and sensitive to the demands of equality. The ICC has had four presidents since its inception and only one of them has been female. The current presidency, elected in March 2021 has a male President, a female first vice and a male second vice. The previous Presidency consisted of men only. There has only been one all-female presidency. The rest have been two men, one woman except once where there were two women as first and second vice and a male president. The Presidency is a very powerful unit that wields significant influence over how the Court is run. They assign cases, conduct judicial review of some decision made by the Registrar, oversee the work of the Registry, and conclude court-wide cooperation agreements with states, therefore ensuring better gender balance in each presidency is essential. 39

ICC Presidency webpage. https://www.icc-cpi.int/about/presidency. Accessed 24 September 2021.

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13.3.2 Office Culture and Sexual Harassment The gender imbalance also affects office culture, as noted by the IER Report,40 the ICC office culture can be described as, ‘adversarial and implicitly discriminatory against women.’ The Report goes on to say that men ‘exert enormous weight and influence not merely over the substantive work of the Court and how it is organised, but over recruitment, placements and other staffing decisions that impact officers at all levels.’41 Research has shown that women working in male dominated workspaces exhibit unhealthier levels of cortisol, otherwise known as the stress hormone, than women who work in more balanced environments.42 This can have detrimental effects on women’s health. Gender imbalance at the ICC has also contributed significantly to the prevalence of sexual harassment at the ICC. Sexual harassment is defined by the International Labour Organisation as ‘a sexbased behaviour that is unwelcome and offensive to its recipient’.43 Common forms of sexual harassment in the workplace include ‘Quid Pro Quo, when a job benefit - such as a pay rise, a promotion, or even continued employment - is made conditional on the victim acceding to demands to engage in some form of sexual behaviour; or a hostile working environment in which the conduct creates conditions that are intimidating or humiliating for the victim.’44 Sexual harassment can be physical, verbal (including questions about one’s physical appearance, or sexual orientation), and non-verbal including sexually-suggestive gestures, whistling, or displaying sexual materials.45 According to research conducted by the International Bar Association, sexual harassment in the legal profession is all too common. One in three women have been sexually harassed in a work context.46 The study also revealed that in ‘75% of sexual harassment cases the incident is never reported.’47 Very often victims of sexual harassment fear reprisal, or that they will be accused of lying or that nothing will be done if they report the offence. The Experts ‘heard a number of accounts of sexual harassment, notably uninvited and unwanted sexual advances from more senior male staff to their female subordinates. Female interns seemed to be particularly vulnerable to such approaches, underlining the extent to which this phenomenon, not just at the Court, but in business, government, law, academia and many other professional environments around the world, frequently has more to do with power relationships than with mutual attraction.’ 40

IER 2020, para 209. Ibid., para 205. 42 Sehmer 2015, p. 1. 43 International Labour Organisation n.d. 44 Ibid. 45 Ibid. 46 IBA 2019, p. 8. 47 Ibid. 41

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The Experts identified the need to improve disciplinary measures as one of the ways to address workplace harassment but they also rightly pointed out that, there is a need for more women in managerial positions, particularly in senior positions. While women as individuals are not necessarily more inclusive or less confrontational in their work practices than male colleagues, experience in other organisations suggests that when the composition of management approaches parity between women and men, the overall culture of the office becomes more collaborative and is less tolerant to bullying behaviour. The Court should implement initiatives that would lead, over time, to a situation where there is an equal number of women and men at the management level of the Court. The Experts commend in this regard the Registry’s plan to focus on increasing gender equality, especially in higher-level posts.48

As the Experts point out, sexual harassment can be better prevented when there is gender balance especially in top positions including those held by managers. Prevention is important but so is accountability for sexual harassment and that would also improve if there were more women in managerial positions. Sanctions for sexual harassment at the ICC have not be commensurate with the offence in some instances. For example, the treatment of sexual harassment in the Office of the Prosecutor as reported by the Internal Oversight Mechanism (IOM). The IOM was established to oversee the Court and conduct inspections and evaluations at the request of the Assembly or its Bureau, as well as to undertake investigations into reports received of alleged misconduct, or behaviour unbecoming of an elected official, staff member, and other Court personnel.49 A senior staff member of the Office of the Prosecutor was found to have sexually harassed an intern, specifically, ‘the complaint alleged a series of meetings and communications, which included conversations of a personal nature, comments deemed sexually suggestive, and a contemporaneous offer from the senior staff member to consider the intern for a forthcoming paid junior position on their team and under their supervision.’50 The IOM ‘concluded that the allegations had been partially substantiated. It concluded that while there was insufficient evidence to conclude that the senior staff’s conduct constituted the offer of a professional opportunity in exchange for sexual favours, the senior staff member’s conduct constituted unwelcome sexual advances or other of a sexual nature which interfered with the intern’s work and reasonably created an intimidating, degrading, hostile, humiliating, or offensive work environment pursuant to the Court’s regulatory framework.’51 The matter was referred to the Disciplinary Advisory Board, which fully ‘endorsed the IOM’s findings and conclusions’ and the IOM report goes on to indicate that the Prosecutor ‘found that the facts established by the IOM left no room for any reasonable doubt’ however, the prosecutor decided to ‘impose the sanction of a written censure against the staff member.’52 Hardly an appropriate sanction given the infraction. 48

IER 2020, para 212. ICC-ASP 2013. 50 ICC-ASP 2020a, para 20. 51 Ibid. 52 Ibid. 49

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The IOM has issued six consolidated reports spanning from 2013 to 2020 and this above account is the only full account of sexual harassment that was sanctioned albeit in adequately. It took the IOM some time to get up and running53 and there may be many instances that for whatever reason have not been included in the consolidated reports but there are definitely instances that have gone unreported. The IER noted that, The IOM does not as yet enjoy the full confidence and trust of all staff. There is a disinclination to make complaints freely and willingly about, and to report officially, alleged impeachable conduct, especially by elected or senior officials. In turn, this makes it more difficult to assess the real extent of the occurrence of misconduct and misbehaviour, and could be a significant factor in the underreporting of reprehensible conduct. A further ongoing challenge still remains in IOM’s disciplinary investigations against Office of the Prosecutor staff, despite cooperation extended by it. The Experts were informed that there has been an instinctive reaction on the part of the Office of the Prosecutor that its independence precludes any oversight by the IOM, and at times it would appear to be ‘walled off’. Despite the operationalisation of the IOM in late 2015, there is a perception from staff that individuals who officially complain may still bear a personal risk and the repercussions, including possible reprisals for a staff member, if publicly known, stand very high.54

The IOM also lacks the human resources to effectively fulfil its mandate, according to the IER.55 The Head of the IOM is currently a P-5, whilst some of the elected officials the IOM is expected to investigate and potentially make an adverse finding against are at a higher level.56 This makes accountability for sexual harassment and other forms of workplace misconduct harder to attain. As does the generally negative perception of the Court’s internal grievance mechanisms as explained to the IER by the ICC staff. Staff feel that the Court has dealt with its internal grievances procedures in a too legalistic approach, especially criminal law approach; that it translated into very complex rules and procedures, which are viewed as an obstacle (especially by nonlegal staff) and overall dissuade staff from complaining.57

It is clear that sexual harassment perpetrated with impunity is perpetuating a dangerous cycle, and as suggested by the IER internal grievance procedures need to 53

‘At its twelfth session in 2013, the Assembly of States Parties (Assembly) adopted the operational mandate of the Independent Oversight Mechanism (IOM). The Assembly decided that the work and the operational mandate of the IOM would be fully reviewed at its fifteenth session. However, given the lengthy recruitment process for the Head of the IOM, as a result of which the first Head assumed duty only in October 2015, the Assembly had recognized that the review would not be possible at the fifteenth session, in 2016. In order to give the new Head sufficient time to acquire the necessary experience to properly inform the Assembly’s review of its work and operational mandate, the Bureau decided, at its 13 July 2016 meeting, that the review would take place at the seventeenth session of the Assembly in 2018, once a reasonable amount of time had transpired with the IOM being properly staffed.” Ibid., para 1. See ICC-ASP 2020d. 54 IER 2020, paras 285–287. 55 Ibid., para 289. 56 Ibid., para 305. 57 Ibid., para 294.

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improve. There should be serious consequences and sanctions for sexual harassment and all of this could change if there was gender balance at senior staff levels and amongst leaders at the Court.

13.3.3 Jurisprudence Gender imbalance can also impact the jurisprudence of an international court as it is often women prosecutors and judges who ensure the inclusion of gender crimes at international courts and tribunals. This was evident at the ICTY where only two out of eleven original judges were women.58 Grossman writes that female judge Elizabeth Odio Benito had to ‘publicly exhort’ ICTY prosecutors to include gender crimes in their indictment against Dragan Nikolic.59 Thompson writes that female judge Patricia Wald noted ‘that five major legal precedents regarding gender crimes were crafted when at least one woman judge sat on the bench’.60 Thompson goes on to say that one should not assume that male judges are incapable of understanding the significance of gender crimes ‘but that female judges add a unique voice and perspective on sexual assault to the proceedings, as sexual violence is known to affect women in armed conflict in much greater numbers than men.’61 At the ICTR the original bench of nine judges only included one woman, Judge Navi Pillay. Judge Pillay’s presence and efforts led to a major advancement in the jurisprudence relating to the prosecution of sexual violence. Jean-Paul Akayesu was originally charged with genocide and not rape, but after hearing a witness testifying about rape, Judge Pillay sought a postponement in the case to interview the witness and all of this resulted in the inclusion of rape in the original indictment.62 Akayesu was found guilty of rape committed as a crime against humanity among other crimes.63 Going further back in time, Grossman, citing Askin writes that the absence of female judges during the Nuremberg trials meant that crimes against women were ignored. Nuremberg prosecutors decided not to prosecute or bring evidence of rape and sexual violence against women before the courts.64

58

Thompson 2017, p. 1. Grossman 2011, p. 649. 60 Thompson 2017, p. 1. 61 Ibid. 62 Ibid. 63 The Prosecutor v Jean-Paul Akayesu Case No. ICTR-96-4-T (1998). https://unictr.irmct.org/sites/ unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf. Accessed 24 September 2021. 64 Grossman 2011, p. 649. 59

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13.4 The ICC’s Efforts to Address Gender Imbalance The Court and its leadership are not blind to the gender imbalance. There have been efforts made to address the issue. In the Court’s 176-page Overall Response65 to the findings of the IER Report, it acknowledged the challenges and welcomed the Expert’s recommendations on gender balance in general terms. They noted that they consider gender balance in recruitment panels to be ‘crucial’66 and that currently all panels are required to have both men and women. They also stated that the Court ‘can consider the mainstreaming of initiatives including trainings ahead of recruitments to ensure panel members are aware of unconscious bias.’ The Court is also considering psychometric assessment tools to avoid bias during the selection processes.67 The Overall Response goes on to say the ICC sets, the appointment of more women to senior positions as a priority in its strategic plans and institutional targets, and thus welcomes the IER’s recommendation in this regard. The Court notes the connection of this recommendation to the general recommendation R99 for enhanced and centralized training, as well as other recruitment-related recommendations, including R91 on the need to have always at least one woman in recruitment panels to reduce gender bias in recruitments. This is a best practice in place in recruitments at the Court. Some initiatives to further promote the implementation of this recommendation include considering trainings for recruitment panels and managers on unconscious bias, reviewing certain recruitment practices with a view to further avoiding unconscious bias, promoting and reinforcing initiatives such as leadership, mentoring and sisterhood programmes, mobility/secondment with other international organizations, as well as setting up gender parity targets.68

The Court appointed69 a long-awaited Gender Focal Point in March 2021 whose mandate is to ‘assist the Court’s Leadership in their efforts to strengthen gender related policies across the Court and to address issues related to employment conditions of women in the institution, including gender balance at all levels of employment. The Focal Point’s key functions will include monitoring the Court’s progress in strengthening gender equality; advocating on issues impacting women and gender; providing individual counselling; raising greater awareness through training programmes, workshops and events; and advising on gender parity targets.’70 This is a very welcome development particularly because unlike other tribunals, the ICC Gender Focal Point is working on these issues full time as opposed to combining this work with other duties and responsibilities.71 Since her appointment, the Gender Focal Point has been actively consulting civil society, Court staff, elected officials and other stakeholders. An internship72 to 65

ICC-ASP 2021, para 210. Ibid., para 211. 67 Ibid. 68 Ibid., para 202. 69 ICC 2021a. 70 Ibid. 71 Leiden University 2021, p. 1. 72 Internship vacancy advertised via Impact Pool (on file with author). 66

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support the work of the Gender Focal point was also advertised which is a promising start, as the Focal Point will need assistance and support. A High-Level Statement on Equality of Gender73 at the ICC was also issued where the Court’s principals declare their commitment to gender equality including empowering women, continuing to have a zero-tolerance policy when it comes to harassment and discrimination.74 These efforts to address gender balance are welcome and time will tell whether they go far enough.

13.5 Conclusion Gender imbalance cannot be solved overnight but the Court and its relatively new leadership have an opportunity to make positive and sustainable changes. This topic requires a strong commitment and dedication to see gender parity even if it means making difficult choices such as legally, and with all the due consideration, relieving some men of their senior positions. Changes need to be concrete and implemented with courage and determination as the cost in terms of the Court’s credibility, effectiveness, and staff wellbeing has been high and will continue on that trajectory unless unapologetic bold steps are taken. If the status-quo remains, male privilege will be compounded and further entrenched. The profession as a whole is at risk of the only having men dictate its course. Men and women contribute in very different ways and should be equally represented to ensure that the Court is balanced in composition and therefore more effective. Changes need to be made at the ASP level and with existing ICC staff, recruitment practices and elections. The information and recommendations brought about by the IER process provide a valuable opportunity to reflect and take action, stakeholders should not squander this opportunity.

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ICC 2021b. Ibid.

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Grossman N (2011) Sex Representation on the Bench and the Legitimacy of International Criminal Court. International Criminal Law Review 11:643–653 IBA (2019) Us Too? Bullying and Sexual Harassment in the Legal Profession. https://www.ibanet. org/bullying-and-sexual-harassment. Accessed 24 September 2021 ICC (2013) Rules of Procedure and Evidence. https://www.icc-cpi.int/Publications/Rules-of-Pro cedure-and-Evidence.pdf. Accessed 24 September 2021 ICC (2021a) Press Release International Women’s Day: ICC Appoints Focal Point for Gender Equality. https://www.icc-cpi.int/Pages/item.aspx?name=pr1573. Accessed 24 September 2021 ICC (2021b) High-Level Statement on Gender Equality of the International Criminal Court. https:// www.icc-cpi.int/itemsDocuments/gender-equality/210430-ge-eng.pdf. Accessed 24 September 2021 ICC-ASP (2013) Independent Oversight Mechanism ICC-ASP/12/Res.6. https://asp.icc-cpi.int/icc docs/asp_docs/Resolutions/ASP12/ICC-ASP-12-Res6-ENG.pdf. Accessed 24 September 2021 ICC-ASP (2017) Informal Guide and Commentary to the Procedure for the Nomination and Election of Judges of the International Criminal Court. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP16/ ICC-ASP-16-INF2-ENG.pdf. Accessed 24 September 2021 ICC-ASP (2020a) Annual Report of the Head of the Independent Oversight Mechanism. https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/ICC-ASP-19-26-ENG-IOM-%20A nnual%20Report%20-%2030oct20-1730.pdf. Accessed 24 September 2021 ICC-ASP (2020b) Committee on the Election of the Prosecutor Final Report. https://asp.icc-cpi. int/iccdocs/asp_docs/ASP19/ICC-ASP-19-INF2-ENG-CEP.pdf. Accessed 24 September 2021 ICC-ASP (2020c) Report of the Bureau on Equitable Geographical Representation and Gender Balance in the Recruitment of Staff of the ICC. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/ ICC-ASP-19-29-ENG-GRGB-report%2013dec20-1300.pdf#search=Report%20of%20the% 20Bureau%20on%20equitable%20geographical%20representation%20and%20gender%20b alance%20in%20the%20recruitment%20of%20staff%20of%20the%20International%20Crim inal%20Court%20%282020%29. Accessed 24 September 2021 ICC-ASP (2020d) Report of the Bureau on the Review of the Work and the Operational Mandate of the Independent Oversight Mechanism. https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP19/ ICC-ASP-19-24-ENG-Bureau-IOM-report-08dec20-1500.pdf. Accessed 24 September 2021 ICC-ASP (2021) Overall Response of the International Criminal Court to the ‘Independent Expert Review of the International Criminal Court and the Rome Statute System – Final Report’ Preliminary Analysis of the Recommendations and Information on Relevant Activities Undertaken by the Court. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Overall%20Response%20of% 20the%20ICC%20to%20the%20IER%20Final%20Report%20-%20ENG%20-%2014April21. pdf. Accessed 24 September 2021 IER (2020) Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/IER-Final-ReportENG.pdf. Accessed 24 September 2021 Inman P (2021) Nigeria’s Ngozi Okonjo-Iweala Confirmed as WTO Chief. The Guardian. 15 February. https://www.theguardian.com/world/2021/feb/15/nigerias-ngozi-okonjo-iweala-confir med-as-wto-chief. Accessed 24 September 2021 International Labour Organisation (n.d.) Sexual Harassment at Work Sheet. https://www.ilo.org/ wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_decl_fs_96_en. pdf. Accessed 24 September 2021 Leiden University (2021) The Gender Agenda in International Justice: A Conversation with Gender Focal Points. https://www.universiteitleiden.nl/en/events/2021/05/the-gender-agenda-in-intern ational-justice-a-conversation-with-gender-focal-points#ant-nia-pereira-de-sousa,daniella-rud y,nathalie-zaarour. Accessed 24 September 2021 Miller CC (2012) In Google’s Inner Circle, a Falling Number of Women. New York Times. 22 August. https://www.nytimes.com/2012/08/23/technology/in-googles-inner-circle-a-fallingnumber-of-women.html?_r=1&pagewanted=all. Accessed 17 January 2022

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Mudukuti A (2021a) Appointment of Karim Khan as ICC’s Chief Prosecutor Raises Questions Over Lack of Consensus and Vetting Process. Daily Maverick. 21 February. https://www.dailym averick.co.za/article/2021-02-21-appointment-of-karim-khan-as-iccs-chief-prosecutor-raisesquestions-over-lack-of-consensus-and-vetting-process/. Accessed 24 September 2021 Mudukuti A (2021b) Symposium on Gender Representation: The International Criminal Court’s ‘Boys Club’ Problem. Opinio Juris. 7 October. https://opiniojuris.org/2021/10/07/sympos ium-on-gender-representation-the-international-criminal-courts-boys-club-problem/. Accessed 17 January 2022 O’Kane C (2020) Nobel Prize in Chemistry Awarded to Two Women for the First Time. CBS News. 7 October. https://www.cbsnews.com/news/nobel-prize-emmanuelle-charpentier-jennifer-doudnachemistry-crispr-gene-editing-tool/. Accessed 24 September 2021 Open Society Justice Initiative (2019) Raising the Bar, Improving the Nomination and Election of Judges to the International Criminal Court. https://www.justiceinitiative.org/uploads/a43771ed8c93-424f-ac83-b0317feb23b7/raising-the-bar-20191112.pdf. Accessed 24 September 2021 Sehmer A (2015) Women Who Work in Male-Dominated Offices Have More Stress. Independent. 26 August. https://www.independent.co.uk/life-style/health-and-families/health-news/stresswork-how-working-male-dominated-environment-can-impact-women-s-health-10473091.html. Accessed 24 September 2021 Thompson LB (2017) Gender Equality in International Institutions: Progress and Challenges in Moving Toward Gender Parity. http://www.inquiriesjournal.com/a?id=1539. Accessed 24 September 2021 United Nations Human Rights Council Advisory Committee (2021) Current Levels of Representation of Women in Human Rights Organs and Mechanisms: Ensuring Gender Balance. https:// undocs.org/en/A/HRC/47/51. Accessed 24 September 2021 Universitat Pompeu Fabra (2019) Women Are 30 Percent Less Likely to Be Considered for a Hiring Process Than Men. https://phys.org/news/2019-03-women-percent-hiring-men.html. Accessed 24 September 2021 Wenzel A (ed) (2020) Male Privilege. Greenhaven Publishing LLC, New York

Angela Mudukuti is a Zimbabwean human rights lawyer, specialised in international criminal law. Angela has worked for the International Criminal Court (ICC), Open Society Foundations, Human Rights Watch, Wayamo Foundation, and the Southern Africa Litigation Centre (SALC). Focusing on strategic litigation, advocacy, and capacity building, her work has ranged from training prosecutors and investigators to enhance domestic capacity to tackle international crimes to working on precedent-setting crimes against humanity cases before South African courts.