A TWAIL Critique of International Criminal Justice
About the author: Shantanu Singh is a third-year B.A. LL.B. (Hons.) student at Dharmashastra National Law University, Jabalpur.
Photo available here.
Recently, the International Criminal Court (ICC) decided to reopen a probe into potential war crimes committed in Afghanistan. The alleged perpetrators include not only terrorist groups - the Taliban and the Islamic State Khorasan (ISIS-K), but also the US Forces and its allies. However, the ICC’s ambit of investigation explicitly excludes the alleged crimes of the US and its allies, limiting the investigation to the actions of Taliban and ISIS-K. This decision has triggered criticism from human rights defenders who have questioned the moral standing of the court and described the exclusion of powerful states as extremely dangerous that feeds impunity for all.
Against this backdrop, this article anatomizes the wider issue of persisting inequalities rooted in international criminal justice. It outlines the importance of the third world approaches to international law (TWAIL) in the context of international criminal law and exposes the Eurocentric and hegemonic foundations of international criminal justice. It attempts to accentuate how the institutions of international criminal law systematically perpetrate marginalization of the Global South to the benefit of the Global North. It offers a thorough inspection of the ideological and structural biases that exist in international criminal law from its inception and persist today.
Eurocentrism and the Development of International Criminal Law
One of the defining characteristics of the ICC is that it proclaims to exercise universal jurisdiction in its aim to prosecute, regardless of the place of commission and nationality of the suspect, “the most serious crimes of concern to the international community as a whole.” The concept of universality is based on observance of geopolitical egalitarianism and objectivity in the enforcement of international criminal law. However, from the TWAIL perspective, the pragmatic reality of this idealistic claim is highly contested. The exercise of universal jurisdiction is rather regarded as a reflection of power asymmetries in the international legal order.
As history depicts, the European colonial powers used international law as an instrument to justify and legitimize the subjugation of the Third World in the hands of the European colonial powers. An essential feature of Europe’s colonial framework was incessant interference in the affairs of the Third World, rationalized based on the concept of “civilizing mission” i.e., by characterizing non-Europeans as “other” – primitive, barbarian and uncivilized – who must be civilized and developed. For instance, the British imperialist project to interfere in the native princely states of India was rationalized by calling them ‘semi-civilized’, “semi-sovereign” and “protected dependent states.” Consequently, the states that surrendered their sovereignty and became subsidiary to the British Raj were certified as “civilized states.” Similarly, during the Philippine-American War (1899-1913), Rudyard Kipling's “The White Man’s Burden” supported for the the US to join forces with British imperialism and share the “white man’s burden” of “extending civilization to peoples considered inca-pable of governing themselves.”
From the TWAIL perspective, international criminal law has been a “distinctly Western venture” owing to a strong and unstated influence exercised by the colonial conceptions of the primitive and the barbarian. It is frequently the “other” who are perceived to be the source of all violence and who must consequently be subdued by even more intense violence. Nevertheless, violence administered by a colonial power is always legitimized by characterizing it as of humanitarian or self-defense nature. International criminal justice furthers the occidentalist narrative of them being the saviours of the “dark corners of the world” and of “teaching these darkies about the rule of law” by “imposing white man’s justice upon third world conflicts.” In the light of the Eurocentric foundations of international law, Anghie and Chimni argue that the purported universality in respect of international criminal law is demonstrated to result more so in selectivity than egalitarianism. The interpretive prism of TWAIL encompasses colonial and neo-colonial ordeals lived by the people of the Third World due to the colonial architecture of international law. The crystallization of international criminal law at Nuremberg was an exposition of global power politics, selectively covering the atrocities committed by Nazis while passing over Allies’ conduct as colonial powers. A similar and even more flagrant exposition transpired in the Tokyo Trial, where the Tribunal feared that allowing Japanese defendants to take a defense of tu quoque could enmesh Allies for their war crimes. In his 1,235-page dissent, Judge Radhabinod Pal held that all the defendants were innocent since the London Charter was an ex post facto law. Thus, both the Nuremberg and Tokyo trials are archetypes of victor’s justice wherein the tribunals were heavily dominated by the US influence.
The establishment of country-specific ad hoc tribunals such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR), and the Special Court of Sierra Leone (SCSL) exhibits a drive towards selective prosecution of weak regimes in the Third World. Despite concerted efforts to push for action on allegations against the British forces in Iraq, Canada’s treatment of Afghan detainees, or the alleged crimes of Western allies in Israel and Colombia, the ICC’s prosecutorial lens remains affixed on the Global South, particularly Africa.
Problematizing (Post-) Colonial Continuities
The ICC was established in 1998 with a promise to transform the international criminal justice project by addressing the downsides of ad hoc criminal tribunals. Numerous TWAIL Scholars, albeit critical of its certain aspects, expressed optimism for the ICC in light of its consensually negotiated statute, unlike its predecessors. Countries of the Global South ratified the Rome Statute for it promised an institution that appeared “genuinely egalitarian in structure and profoundly fair in conception.” Nevertheless, the structural and material design of modern international criminal law is still a replication of traditional exclusions. For instance, Article 17 of the Rome Statute is inherently imperialist as it reinforces the civilizing mission of the West and enables the ICC to conduct prosecution by deeming the legal systems of the Third World as ineffective and inappropriate. It is premised on the “existence and perpetuation of state failure and weakness” and is oblivious to the “culpability of Global North for the role of State failure.” This framework of fortifying legal hegemony of the Global North is strongly condemned by TWAIL scholarship for displaying (post-) colonial continuities that legitimize the creation of arbitrary grounds for unsolicited intervention in the Third World states.
Furthermore, Article 98 grants de facto immunity to the Western powers from prosecution of the ICC as it allows two states to conclude a bilateral non-surrender agreement that impedes the ICC’s jurisdiction. These agreements have effectively created evasive routes for the Western powers to conclude several such agreements by issuing threats to withhold military or development aid. For instance, the US has concluded such agreements with over one hundred states, thereby preventing the appearance before the ICC of any US national. This lawlessness of the Western states effectively renders the ICC as an instrument in the hands of the Western powers to maintain their hegemonic status quo.
The referral mechanism of the Security Council under Article 13(b) of the Rome Statute is another blatant portrayal of the ICC’s reluctance to dissociate itself from the imbalance of power of international criminal law in the favor of the West. The Security Council’s referral powers imperiously alter the principles of international law by allowing unsolicited intervention of the ICC over matters transpiring on the territory of a non-party state. For instance, the ICC exercised jurisdiction to indict Sudanese President Omar al-Bashir for alleged genocide in Darfur. The Security Council’s referral powers position even non-signatories of the Rome Statute (the US, China and Russia) to veto any referral of cases to the ICC, thus further entrenching the inferior treatment of the Third World by the international criminal law. The referral power of the Security Council is criticized for departing from the pacta tertiis rule embodied in Article 14 of the Vienna Convention on the Law of Treaties as per which a treaty does not create rights or obligations for a state without its consent.
Apart from the ICC’s geographical selectivity, its “material selectivity” ensures that international criminal law is anything but universally applicable. The forms of violence criminalized at the design level are indicative of deeply rooted historical forms of inequality. International law’s approach to determining what constitutes the “most serious international crimes” has never been a neutral process. This is evident from historical patterns of opposition from Global North states to the inclusion of crimes such as apartheid, colonial domination, foreign intervention and severe environmental damage for fear that their nationals and corporations would be exposed to prosecution. TWAIL aims to re-conceptualize and redefine these boundaries of criminalization by creating an inclusive list that encompasses crimes of neocolonial character such as mercenarism, corruption, money-laundering, illicit exploitation of natural resources, etc.
From a TWAIL perspective, the ICC’s journey hitherto has been restricted by geographical and material selectivity to the detriment of the Third World for it continues the evil legacy of ad hoc tribunals by “imposing white man’s justice upon third world conflicts.” An expedition towards prosecution of all the perpetrators of war crimes in Afghanistan, and contemporary crimes of colonization in Palestine and Sri Lanka would provide the ICC with a meaningful opportunity to prove its emancipatory potential and legitimacy. The ICC ought to extricate modern international criminal law from the clutches of eurocentrism by navigating a more holistic approach to resolving conflicts, aimed at recognizing and understanding the very dynamics that originated the eruption of violence.