International Criminal Justice – a Counter- Hegemonic Project?

International Criminal Justice – A Counter- Hegemonic Project?

Workshop 21 & 22 June 2021

Convenors Florian Jeßberger, Berlin Stefan Gosepath, Berlin

Scientific Committee Claudia Cárdenas, Santiago de Chile John-Mark Iyi, Cape Town Miles Jackson, Oxford Wolfgang Kaleck, Berlin Valeria Vegh Weis, Buenos Aires

Berlin Team Leonie Steinl Kalika Metha Luca Hauffe

Contact Lehrstuhl für Strafrecht, Strafprozessrecht, Internationales Strafrecht und Ju- ristische Zeitgeschichte der Humboldt-Universität zu Berlin | Chair in Criminal Law, Criminal Procedure, International criminal Law and Modern Legal His- tory, Humboldt-Universität zu Berlin https://jessberger.rewi.hu-berlin.de https://fli.berlin

Funded by

Berlin University Alliance, Center for Global Engagement

The cover visual uses parts of “The Kissinger Project” (Berlin, 2012) by Alfredo Jaar.

Contents

Program ...... 6

Draft Papers – in order of presentation ...... 7

John-Mark Iyi ...... 9 Ishita Chakrabarty & Guneet Kaur ...... 13 Anastasiya Kotova ...... 41 Maria Varaki ...... 56 Muyiwa Adigun ...... 59 Amina Adanan ...... 62 Karolina Aksamitowska ...... 69 Tonny Raymond Kirabira ...... 76 Fajri Matahati Muhammadin & Ahmad Sadzali ...... 97 Isabel L. Guidote & Raphael Pangalangan ...... 118 Fannie Lafontaine & Catherine Savard ...... 124 Taxiarchis Fiskatoris ...... 127 Leigh Swigart ...... 140 Angela Mudukuti ...... 160 Angie Katherine García ...... 171 Michelle Burgis-Kasthala, Christine Schwöbel-Patel & Nahed Samour ...... 190

Biographies – in alphabetical order ...... 199

PROGRAM

All times stated refer to Central European Summer Time (Amsterdam, Berlin, Rome, Zürich). Please note that presentations should be around 15 minutes and not exceed 20 minutes.

Monday, 21 June 2021

13:00 WELCOME & INTRODUCTION Florian Jeßberger (Humboldt University Berlin, Germany) & Stefan Gosepath (Free University Berlin, Germany)

13:15 PANEL I: THEORY Chair: Miles Jackson (University of Oxford, UK) John-Mark Iyi (University of Western Cape, Bellville, South Africa) | Is International Criminal Justice the Handmaiden of the Contempo-rary Imperial Project? A TWAIL Perspective of Some Arenas of Contestations Ishita Chakrabarty (Quill Foundation, Delhi, India) & Guneet Kaur | Double Whammy: Targeted Minorities in South-Asian countries Anastasiya Kotova (Lund University, Sweden) | Violence in and Beyond International Criminal Law Maria Varaki (Kings College. London, UK) | A Berlinean Sense of ‘The Interests of Justice’ and the Virtue of Phronetic Judgment

16:00 PANEL II: UNIVERSALITY, COMPLEMENTARITY, DOMESTIC IMPLEMENTATION Chair: Valeria Vegh Weis (University of Buenos Aires, Argentina / Free University Berlin, Germany) Muyiwa Adigun (University of Ibadan, Nigeria) | International Criminal Jus- tice: TWAIL and the Rome Statute Complementarity Principle Amina Adanan (Maynooth University, Kildare, Ireland) | Examining Univer- sal Jurisdiction as a Counter-hegemonic Tool under International Law Karolina Aksamitowska (Swansea University, UK) | The ICL is Dead! Long Live ICL! The Counter-Hegemonic Turn to ‘Entrepreneurial Justice’ in Inter- national Criminal Investigations and Prosecutions Tonny Raymond Kirabira (University of Portsmouth, UK) | NGOs and Le- gitimacy of International Criminal Justice in Uganda Menna Soliman (UN Assistance Mission for Iraq) & Ola El-Ashy (UNITAD, Duhok, Iraq) | ICL Ramifications on Iraq

19:00 End of first day

Tuesday, 22 June 2021

14:00 PANEL III: SUBSTANTIVE LAW: GENOCIDE AND WAR CRIMES LAW Chair: Kalika Mehta (Humboldt University Berlin, Germany) Fajri Matahati Muhammadin & Ahmad Sadzali (Universitas Islam Indonesia, Yogyakarta, Indonesia) | The International Criminal Court and Traditional Islamic Legal Scholarship: Analyzing the War Crimes Against Civilians Isabel Guidote & Raphael Pangalangan (University of the Philippines, Quezon City, Philippines) | Drawing an Epistemological Distinction between IHRL and ICL Fannie Lafontaine (Université Laval, Québec City, Canada) & Catherine Savard (Québec Court of Appeal, Montreal, Canada) | Canada’s Colonial Genocide of Indigenous Peoples: Interpreting Genocide in a Counter- Hegemonial Perspective

16:00 PANEL IV: INTERNATIONAL CRIMINAL COURT: INSTITUTION, JURISDICTION, CASE LAW Chair: Claudia Cardenas (University of Chile, Santiago, Chile) Taxiarchis Fiskatoris (Middlesex University, London, UK) |The Global South and the Drafting of the Subject-matter Jurisdiction of the International Criminal Court Leigh Swigart (Brandeis University, Waltham, USA) | The Impact of English Language Hegemony at the International Criminal Court Angela Mudukuti (Open Society Foundation, Berlin, Germany) | Sexual Harassment and Gender Imbalance at the ICC: The Continued Hegemonic Entrenchment of Male Privilege in International Criminal Law Angie Katherine García (All Survivors Project) | The ICC’s Role in Countering Patriarchal Claims in Reproductive Justice Michelle Burgis-Kasthala (University of Edinburgh, UK), Christine Schwöbel-Patel (University of Warwick, UK) & Nahed Samour (Humboldt University Berlin, Germany) | States of Criminality: Political Possibilities and Pitfalls for Palestine before the ICC

18:30 CONCLUDING REMARKS & NEXT STEPS Florian Jeßberger & Stefan Gosepath

19:00 End of second day

Draft Papers

IS INTERNATIONAL CRIMINAL JUSTICE THE HANDMAIDEN OF THE CONTEMPORARY IMPERIAL PROJECT? A TWAIL PERSPECTIVE OF SOME ARENAS OF CONTESTATIONS

John-Mark IYI*

Extended 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 article I identify four arenas of contestations in this regard and I 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 definition of crimes; and the establishment of its foremost institutions for the enforcement of its norms. The article will adopt TWAIL as an analytic framework to expose the manifest contradictions in the construction of international criminal justice and some of the legal problems thereby created. I intend to demonstrate that international criminal justice remains a tool in the service of hegemonic international law.

Keywords: International Criminal Justice, TWAIL, Africa, ICC, International Law.

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 evident 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.

I. INTRODUCTION

International criminal law is arguably one of the branches of public international law that has witnessed 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 massacres in Srebrenica and Rwanda. In a Post-Cold War unipolar context, this easily paved the way for the establishment of the ad hoc tribunals—the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda

(ICTR). The establishment of the International Criminal Court (ICC) on 1st July 2002, as the first permanent, independent international criminal court marked a watershed in this creation of an international criminal justice system. Since then, several hybrid international criminal tribunals have emerged, the vast majority of them in the global South. The disproportionate representation of these courts in the Global South has not gone unnoticed. Similarly, with few exceptions, the overwhelming majority of cases under investigation at the ICC have been in Africa. If one takes the fight against impunity seriously, one could argue that the number of cases from Africa at the ICC is probably a reflection (even if not statistically so) of the intra-state conflicts on the African continent and the concomitant atrocities. However, this does not tell the whole story and the debates thus generated between enthusiasts and sceptics of international criminal justice project (sometimes dubbed “anti-judicial imperialism”) is far from being settled. These controversies have also eroded the initial support base the ICC built in Africa in the early 2000s, polarised its primary constituency (Assembly of States Parties) and undermined its legitimacy. It is therefore imperative to step back and re-examine some of the enduring contestations at stake particularly as they animate the Third World perception of international criminal justice. To be sure, Third World critiques of international criminal justice is a systemic engagement that is broader and runs deeper than the narrow and well-trodden road of Africa-ICC confrontations. There is a growing awareness amongst a new generation of young scholars in Africa in particular and the Third World generally, that the construction of contemporary international criminal justice has 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. My aim in this contribution is to 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 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 definition of crimes; and the establishment of its foremost institutions for the enforcement of its norms—are obviously linked to international law. The article will adopt TWAIL as an analytic framework to expose the manifest contradictions in the construction of international criminal justice and some of the legal problems thereby created. I intend to demonstrate that international criminal justice remains a tool in the service of hegemonic international law. This paper is divided into four parts. Part I provides a brief introductory background and sets out the objective of the paper, the main argument and the outline of the paper. In Part II, I sketch the contours of a TWAIL theoretical framework within which subsequent analyses is situated. In Part III, I examine four arenas of contestations in international criminal justice within which a TWAIL perspective may be examined and understood. In Part IV, I offer my tentative concluding remarks.

II. A TWAIL ANALYTIC PARADIGM

International legal scholars in the TWAIL tradition have critiqued international law and international legal history from a variety of perspectives—development, economic law, trade and investment law, international human rights law; environmental law, post-colonial theory, refugee law, international humanitarian law and so on. Among other things, a unifying feature of their scholarship is the recognition of the colonial nature of international legal history and contemporary international law and the need to re-tell the history of international law from a perspective other than its Eurocentricity. An- other unifying element is the appreciation of the role of international law as a tool basically designed to facilitate empire and colonial domination and exploitation. 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. Some TWAIL scholars have examined some ways in which the ICC in particular exacerbates the domination of the Global North over the peoples of the Global South and perpetuates existing inequalities. The role of international criminal justice in advancing imperialism has also received attention, though less so, perhaps the most comprehensive recent treatment of the subject being the 2015 Symposium on Third World Approaches to International Criminal Law. TWAIL scholars have argued that international criminal justice and the ICC as a project produce and reproduce existing inequalities in several ways. First, its point of departure is a reference to human rights—the ICC seeks to punish violators of human rights within States. 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 been operationalised, exposes the new “civilizing mission” behind the international criminal justice project as a mechanism for ex- porting civilisation to others. Closely tied to this is the alleged universality of international criminal justice and the ICC, its foremost institution. At an institutional level, the ICC’s claim to universality is problematic because it is a fallacy for a court without the most populous countries on earth to claim that it is a universal court. China, India, the United States, Russia and Indonesia are not members of the ICC and it is difficult for a court without roughly half of humanity to claim that it is a universal court by any stretch of the imagination. Secondly, the selective application of universal jurisdiction by Eu- ropean states have shown 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 where the high and mighty are involved—Afghanistan and Palestine are examples. Even the application of universal jurisdiction by individual European States is characteristically racially and geographically biased against citizens of the Third World and peoples of colour while ignoring similar perpetrators in Europe and elsewhere. This selectivity and exceptionalism is historically entrenched in the colonial origins of international criminal justice. For example, if one looks at history, at the same time international criminal justice was invoked at Nuremberg to hold the Nazis accountable for the crimes committed in against Jews in Europe, Britain, France and the United States carried on official policies of racial violence, oppression and segregation against Africans and African Americans in their own jurisdictions. The only difference was the name they called their policies. One was called apartheid (South Africa) the other was called racial segregation (USA). This selectivity in the use of international criminal justice has

11 sometimes been extended to political elites in the Africa who have successfully aligned themselves and been co-opted into the dominant global power structure for the marginalisation of the masses of their countries. Thus, TWAIL scholars conclude that international criminal justice suffers from the same disease that besets international law generally. International criminal justice is therefore, just an additional tool in the repertoire of the modern civilizing mission whose object and purpose are to humanise the peoples of the Third World and deliver what has been described as the “Whiteman’s justice” to the “savages”, replacing a system inherently incapable of delivering justice to the many victims. Framed in the language of universal human rights, democracy and the rule of law, the this narrative of the post-colonial state in the Third World is pro- jected has having failed thus, necessitating external military or judicial interventions or both. This then lays the foundation and is supposed to justify what follows in the subtle erosion or unmaking of the sovereignties of the Third World—a process in which the international criminal justice has become central. TWAIL has been categorised into two generations of scholars with a common vision and mission statement. One of the cardinal objectives of TWAIL, as Makau Mutua points out, is “... 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.” TWAIL is therefore both a theory and method for the enterprise of critically studying international law and international criminal justice from the perspective of the experiences of the peoples of the Third World. 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 analytic framework is used here to expose the manifest contradictions in the construction of international criminal justice and some of the legal problems thereby created. It demonstrates that international criminal justice is the newest additions to the repertoire available to international law in its imperial project hence, it remains a tool in the service of hegemonic international law. TWAIL is therefore relevant to the ensuing international criminal justice discourse and its nexus with hegemony and imperialism which forms the focus of this paper. The critiques of international criminal justice by TWAIL goes beyond mere academic exercise in that, while exposing the international criminal justice as basically a regime of hegemony, it also acknowledges that is not an irredeemable condition and they do not appear to conceive international criminal justice as entirely hopeless. They do summon the genuine redemptive efforts of actors committed to an authentic process of international legal reform and the construction of an egalitarian international criminal justice system by confronting these concerns of the peoples of the Third World. In the next section, I draw on contemporary examples to deconstruct four such contestations in international criminal justice.

Double Whammy: Targeted Minorities in South-Asian States

Ishita Chakrabarty & Guneet Kaur

Abstract The paper explores ways in which both, International Criminal Law (ICL) and Third World Approaches to International Law (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 institutionalisation of ICL by examining prevalent power dynamics of the global political-economy that shields powerful perpetrators in South-Asia. Majoritarian consolidation ensures the appearance of electoral democracy in these countries despite widespread crimes against minorities. First-world 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-a-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 nation-building goals of 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 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.

Key words: mass atrocities, minorities, South-Asia, TWAIL, International Criminal Justice, accountability, remedy.

The minority ‘problem’ has pervaded international legal thought from the commencement of the international order, so much so that even the creation of new states is premised on guaranteeing their rights. Although spatially belonging to the state within whose boundaries they reside, they are still looked upon suspiciously since, unlike other ‘outsiders,’ they possess the legitimacy to claim political independence.1 Until the point of authoring this paper, the international order has seen several successful and unsuccessful realignments of borders. None whatsoever has resulted in homogeneity. Treaty undertakings have not precluded mass atrocities. Despite the current shift in academic literature challenging the uncontested powers of states, the latter continue to

* Ishita Chakrabarty is an Incoming Candidate for the MA PhD Fast Track Programme in International Law, at the Graduate Institute of International and Development Studies (IHEID), Geneva. [email protected] * Guneet Kaur is an independent human rights advocate and researcher, based in Delhi. [email protected] # The authors thank Vipul Kumar for his valuable inputs on the state of South-Asian minorities. 1 Preece 1997.

13 enjoy primacy within their territorial bounds until the power contestations escalate to pose repercussions on peace and stability. All criticisms of ‘unequal sovereignty’ and imposition of externalities aside,2 this grant of statehood and recognition in exchange for guarantees of the civil, political rights, and religious freedoms of the new national minorities was meant to ensure their protection. The history of postcolonial South Asia is one of its minorities3 bearing, witnessing, and some surviving several direct or indirect violent attacks from South Asian states.4 However, 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 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 Home to a fourth of the world's humanity, South Asia remains one of the most violent regions in the world.6 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. Rahman and Khan highlight the majoritarian bias in constitutional frameworks and other forms of legalised discrimination against minorities including through the judiciary in South Asian states.7 Historically hegemonic societal structures coupled with discriminatory economic and institutional policies have led to the consistent marginalisation of minorities in postcolonial South Asian states. On the one hand, this paper attempts to highlight the shortcomings of international criminal justice (ICJ) responses to mass atrocities against minorities in South Asian states. On the other, this paper will try to disentangle the inherent hegemonic interests in TWAIL’s (Third World Approaches to International Law) 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 for 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 Paper begins with a structural outline of mass atrocities against minorities in South Asian states that charts out the history of marginalisation and the flow from dehumanisations to mass atrocities. It subsequently looks into the reasons why ICJ has failed to effectively respond to mass atrocities in South Asia, within state borders and outside of it. In doing so, it also confronts existing criticisms under the ICJ mechanism that have been mostly derived from literature within the African continent but are nevertheless extrapolated to a South Asian geopolitical and economic context. Finally, it explores the TWAIL approaches to international law, and more specifically

2 Preece 1997, pp 80, 82. 3 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 paper does not delve into sexual minorities. 4 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’. 5 Riaz, in Riaz et al. 2019, pp 18-19. 6 Baqai 2004, pp 57-68; Minority Rights Group International (2020), pp. 10-13. 7 Khan and Rahman 2009, pp 372-384.

ICJ, through its various phases, to conclude 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.

1. Mass atrocities and minorities in South Asian states

1.1. Faultlines of History Some of the fault lines and power hegemonies that trigger and sustain violence in South Asia predate the arrival of European colonists. However, it is important to acknowledge that European colonists, especially the British empire, widened the fault lines and re- entrenched some of the hegemonies further.8 Colonial rulers 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.9 Adding to this existing chaos was the British division of historically cohesive ethnic groups across arbitrarily drawn borders, in connivance with local power brokers, as they hastily exited the Indian sub-continent.10 Baqai notes that “... ethnic groups transcend six of the seven borders of South Asian states.”11 The process of drawing these national borders was completed in less than two months by an inexperienced Englishman without any attempt to understand local needs, much less involving those who were going to be permanently uprooted and whose lives and those of their future generations were going to be changed forever.12 The partition was accompanied by a violent civil war killing millions and is the largest mass exodus in history.13 In the years that followed, an elite impatience to execute their long-held visions of building the nation-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. 14

1.2 Postcolonial National Identity and Construction of the ‘Other’ Ali Riaz, Zobaida Nasreen, and Fahmida Zaman pose an interesting question: whether state atrocities in South-Asia are led by ‘cartographic anxieties’ or whether the colonising legacy ‘insufficiently imagined’ that the extant states had solid foundations to begin with - that is, if it was ever possible to contain these multiple identities within a single border.15 Their analysis does not discount colonial mistakes but rather asserts that these fractured identities continue to be manipulated by political elites using internal and external imageries - that one set of individuals belong while the other, don’t.16

8 Khan and Rahman 2009, pp 367-368. 9 Mishra 2016, pp 12-13. 10 Guha 2011, pp 13-14; Hasan 2002, pp 26-27. 11 Baqai 2004, p 57. 12 Hay 2006, pp 74-79; Chatterji 1999, pp 186-187, 192-194; Kaur 2019, pp 116-118. 13 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. 14 Samaddar, in Canefe (ed) 2019, p 10. 15 Riaz et al., in Riaz et al. (ed) 2019, p 2. 16 Riaz et al., in Riaz et al. (ed) 2019, p 2.

Mohammad Shahabuddin argues that national elites in postcolonial states use the postcolonial nation-state as an ideology to counter the ‘minority problem’.17 A key component of such ideology is the process of manufacturing a national identity. South Asian states appended nation-building to the production of a unified national identity in order to navigate the incoherence in national borders and their constituent restructured demographic.18 For example, East Pakistan fought its liberation struggle on the affinity towards a ‘Bangla/Bengali Identity’ leading to the creation of Bangladesh.19 However, as the army took over in 1976, it imposed an official policy of ‘Bangladeshi identity’ based on the myth of a homogenous society in Bangladesh, devoid of differences.20 This had parallel policy implications for the indigenous communities residing in Chittagong Hill Tracts (CHT) who were neither Bengali speaking nor Muslim as the army carried out a massive resettlement plan to settle Bengalis in CHT, imposing assimilation on the non-Bengali speaking indigenous communities.21 South Asian states have oscillated between a secular or assimilated identity with majoritarian leanings and a visibly majoritarian identity. 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’ did not imply the western model of secularism where the state was divorced from the church. Rather, the state that inevitably had a majoritarian character acted as a referee in claims made by these identity groups.22 The process of building a homogenous identity involves diminishing ethno-cultural diversity and packaging a majoritarian cultural code and belief system as ‘national identity’.23 This creates a hierarchical relationship of majority domination over key politico-cultural and socio- economic concerns.24 The newly constituted nation-state demanded absolute loyalty to this unified identity. To this extent, those who were 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’. Commonalities, too, were drawn as per majority dictates. In the Indian imagination, these commonalities involved a shared territory in the likeness of ‘Bharat’, affinity towards Sanskrit literature and efforts towards Vedic revivalism.25 With this imagination, anything that was non- Indic automatically became the other, as in this case, all Abrahamic faiths (Islam, Christianity), whereas other religions that were at least conceived over this territory were brought under the wider Hindu majoritarian fold.26 Further, since the partition occurred along communal lines, Muslims became doubly disadvantaged, and their allegiances have since then perpetually been questioned.27 In fact, one of the primary motivations

17 Shahabuddin Mohammad, Minorities and the Making of Postcolonial States in International Law, Third World Ap- proaches to International Law Review, TWAILR: Reflections #18/2020, available at https://twailr.com/minorities- and-the-making-of-postcolonial-states-in-international-law/ 18 Phadnis and Ganguly 2009, p 13. 19 Hossain and Khan 2006, pp 324-39. 20 Hossain and Khan 2006, pp 324-39. 21 Shahabuddin 2013, p 92. 22 Fazal 2015, pp 29-32; Tambiah 1996, pp 13-16. 23 Shahabuddin 2013, p 92. 24 Shahabuddin 2013, p 92. 25 Fazal 2015, pp 5-10. 26 Fazal 2015, pp 18-19. 27 Kannabiran 2012, pp 272-273.

16 behind the state’s orientation in the form of a federalist model with a strong centre,28 and the denial of political reservation for minority groups, arose from the impulse to control minority demographics from effecting similar territorial changes.29 Anupama Roy makes a telling argument about how rights such as those of citizenship within nation-states inevitably result in othering - conceived as a privilege to only some, it retains its own identity by foreclosing those of others.30 Moreover, identities are not static, and hence inclusion and exclusion is a continuing process according to social discourses and political convenience.31 These ‘others’ do not and cannot claim equal access to rights.32 On the contrary, any assistance to them becomes synonymous with appeasement.

1.3 Marginalisation Rights claims 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.33 Therefore, those classed as the other, not only lack political representation and organisational resources, but when confronted with institutional violence, are inherently disadvantaged because of their 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 of equality offer no assistance, since they mask inequalities without confronting them.34 Eventually, marginalisation in one area percolates into the other, until it becomes multi-dimensional and self-enforcing. The Sachar Committee Report of 2006 over minorities in India, exhibited the status of Muslim minorities as lacking on all fronts, including social, educational, within public service sectors and political processes, ultimately leading to insecurity and targeted violence against them. The Report concluded that the lack of political representation also emboldened arbitrary actions on the part of state agencies, including law enforcement and the judiciary.35 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.36 Immediately following independence, the newly structured Sri Lankan nation-state, comprising a Sinhalese-Buddhist majority, passed the 1948 Citizenship Act that rendered all Tamilians stateless. This official act helped consolidate a Sinhalese majority in the Sri Lankan parliament for years to come. The same ethno- religious majoritarian parliament would in the next few years introduce constitutional amendments, legislations and policy measures, declaring Sinhalese as the official language and Buddhism as the state religion, and introduce discriminatory education policies under the guise of ‘affirmative action’ for their own community, supposedly to reverse colonial era policies favouring the Tamil minority.37 These attempts were

28 Singh 2017, pp 7-11. 29 Fazal 2015, pp 32-36. 30 Roy 2010, pp 5-6. 31 Tripathi in, Tripathi and Singh (ed) 2016, p 4. 32 Roy 2010, p 11. Roy describes how these outsiders become inadequate, indifferent and dangerous in the eyes of the majority population. 33 Grugel et al., in Grugel et al. (ed) 2017, pp 2-3. 34 Roy 2010, pp 10-11. 35 Kannabiran 2012, p 282. 36 Tambiah 1996, p 22. 37 Santos 2007, pp 45-46.

17 directed towards the erasure of minority identities and held the potential to risk their economic and social existence. For instance, those who were unwilling to learn the language could face unemployment.38 We rush to add here that not all states with fractured identities that witness incessant protests, infrastructural failure, developmental lags, and autocratic regimes see the same fate. Some break into mass atrocities, whereas some don’t, provided that the state actors, whether at the national or at the local levels, act accordingly to contain it.39 In fact, efforts such as equitable distribution of resources, inclusive identity promotions and steering away from political competitions on the basis of ethnic identities are all efforts that can prevent mass atrocities in states with existing differences. But this has not been the case for most states in South Asia.

1.4 Targeted violence against minorities The intensity, frequency and long-standing nature of violence from both state actors and from private actors who receive the imprimatur of state organs40 show that South Asia has remained immune to any mediatory efforts between the dominant and minority groups. In fact, in his analysis of political violence within South Asia, Riaz identifies at least six different types of violence since the time of decolonisation, based on institutional, ethnic, sectarian, religious, separatist and ideological grounds.41 Eventually, the constant infliction of violence, the portrayal of such violence as deserved and an act of retribution through means of atrocity propaganda, and the dehumanising and threatening tropes, desensitise the nation-state population for all that is to come.42 For instance, Muslims within India have been subjected to speech acts that not only violate their rights to dignity and security but which in several instances have been followed by targeted attacks in their immediate aftermath.43 A few such stereotypical speeches include drawing contradistinctions between puritanical (and superior) Hindu beliefs with the ‘animalistic tendencies’ amongst the Muslim population to practice polygamy and ‘produce more children’, the constant correlation between terrorism and Islam, their ambition to construct an ‘Islamic insurrection’, and the deliberate attempt to lure women so as to proselytise others to their faith.44 With this, Stanley Tambiah concludes that ethnonationalism, therefore, is by no means purely a western construct.45 Despite all the colonial bashing, these 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 (workers, peasant classes, and religious, linguistic or cultural minorities) as a

38 Santos 2007, p 45. 39 McLoughlin, in McLoughlin (ed) 2015, pp 1-4. McLoughlin approaches the topic with a comparative study of the cases of Zaire and Zambia. While the former quickly escalated into a transnational war, the latter saw the autocratic ruler opting for multiparty elections and accepting his defeat by transferring power. 40 Tambiah 1996, pp 3-4; 41 Riaz 2019, pp 21-22. 42 Fein 2007, p 15. 43 See for example, Delhi Minority Commission 2020, pp 99-103. 44 See, Justice For All 2020, pp 1-3. 45 Tambiah 1996, p 12.

‘mob’, that is, as irrational actors.46 Alongside such labelling, there is a general tendency to trivialise such targeted violence as episodic, rather than viewing them within the larger context of ongoing insurgencies, civil wars, ethnic conflicts, and political movements.47 In our analysis of the literature on counter-terror legislations within Sri Lanka that are infamous for targeting ethnic minorities, we noticed several scholarly works that were in favour of these stifling legislations, in the name of ‘peace and security’. In one of these works, the authors directly proceeded to correlate security as essential for peace, notwithstanding the fact that it came at the cost of repression and targeting.48 The legislations correlate terrorism with even infractions of law and order, vest absolute powers of determination and action within the head of the state, allow forfeiture of properties suspected to have been used as a conduit for the commission of an offence, even without proof of guilt, vest wide powers of search, seizure and arrest at any time and in the absence of a warrant, allow preventive detention for a period up to one year, and so on - without any scope for judicial review, whether before or after the fact.49 As an afterthought, the authors merely go on to add that civilians could be disadvantaged because of such other-ed groups acting in contravention of these legislations.50 When human rights violations themselves remain largely unaddressed, mass atrocities assume different proportions. While scholars like David Jackman argue that violence is an essential part of South Asian societies can only maintain political order through ‘violence specialists’, even they do not imagine targeted violence of a systematic, large- scale and widespread nature.51

1.5 Extra-territoriality and Violence The arbitrary state borders have divided ethnic groups across borders in South Asia.52 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. Further, 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.53 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

46 Tambiah 1996, p 25. 47 Tambiah 1996, p 25. 48 Niriella, in Kaul and Jha (ed) 2018, pp 221-235. 49 Niriella, in Kaul and Jha (ed) 2018, pp 221-235. 50 Niriella, in Kaul and Jha (ed) 2018, p 232. ‘Since the mental element is irrelevant in proving these offences, these civilians are victim- ized by groups who act contravening Regulation 6 as well as the State actors’. 51 Jackman, in Riaz et. al (ed) 2019, pp 26-28. Jackman argues that the theory that only states possess the monopoly to inflict force is not true in the case of South Asian societies, where violence and peace are two sides of the same coin. To maintain a political order, the state relies on several actors and institutions who use violence - not necessarily physical, but coercive, such as through racketeering and extortions, to balance the competing interests within society. Also, Varshney 2002, p 45. For a contrary view over how there exists ‘institutionalized riot systems’ in every city, see, Brass 2003, p 32. 52 Baqai 2004, p 57. 53 Riaz et al., in Riaz et al. (ed) 2019, p 2; Tambiah 1996, pp 3-4.

Lanka’. India assisted in the propping 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’.54 This is another reason why we believe that solutions for mass atrocities within South Asian states must lie within the international domain - where states that seek to protect or win over their own citizens are pitted against another state that is impelled to do the same, domestic remedies are won’t afford any assistance.

2. Scope of accountability in South Asia through the International Criminal Law process Often seen as a subfield of human rights and social justice, the procedural and substantive jurisprudence around redressal and accountability for grave human rights violations as well as the political machinations that govern the modes of accountability and redressal are clubbed together in the field of transitional justice. The question of transitioning from ‘where’ to ‘what’ can be narrowly interpreted as restricted to political transitions and regime change, or it can be broad enough to include any period of repression, civil strife or conflict that involves grave human rights violations.55 The individual criminal responsibility based international criminal law regime is one such mode of the larger transitional justice space. The other modes include mechanisms for truth-finding and truth-telling, memorialisation, lustration or vetting, and reparations.56

2.1 The failure of local alternatives to ICL 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. While any of these modes can potentially ameliorate the underlying factors that trigger conflict or repression, scholars are often rightfully cynical about their ability to completely obliterate the factors that trigger ethnic conflicts.57 In favour of local justice mechanisms, it is usually argued that since they are situated closer to the community, they aid in visibility, and indirectly, in delivery of justice.58 Likewise, they often address the root political, social and economic causes that are essential to preventative efforts and state-building. Recent literature has also been directed towards identifying good practices in societies that could contain future violence, as opposed to transposing a western model over what checklist ingredients could serve as recipes for prevention.59 Mass atrocities juggle with two sets of perpetrators, at the top and bottom levels. Kalvyas argues that recognising this is central to differentiating between the political causes of conflict and causes of violence. At the ground level, several actors with different sets of motivations may be involved (such as economic or personal rivalry), but these may not coincide with those of the state or political actors.60 It is in this

54 Santos 2007, pp 54, 63. 55 Nagy 2008, p. 275-89. 56 Paige 2010, p.271. 57 Paige 2010, p.271; Nessiah 2014, 304-308. 58 Bekou 2015, pp 134-135. 59 McLoughlin 2014, pp 2-8. McLoughlin observes that while it is now understood that both structural, and operational prevention are necessary, structural prevention must also come from within the community, since identity differences do not necessarily lead to violence. To only impose a western model, would amount to believing that violent outcomes are an inevitable consequence of plural identities. 60 Mucha, in McLoughlin 2014, p 27. In Kalyvas’ words, it is the ‘convergence of local motives and supralocal imperatives that endows civil wars with their particular and often puzzling character’.

20 context that alternative mechanisms that seek to reconcile differences are contemplated and are acceptable as long as they are genuine. However, for survivors of mass atrocities in South Asian states, locally administered mechanisms often do not have a survivor oriented lens. Remedy is often elusive through these mechanisms due to majoritarian biases and political manoeuvring that usually protects powerful perpetrators. 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 government 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 in its Supreme Court.61 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.62 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 Nepal.63 There are also several community-led movements by those harmed for establishing truth-finding commissions, especially when there are allegations of enforced disappearances. For example, the Association of Parents of Disappeared Persons and the Punjab Disappeared Project have used various legal and advocacy strategies for a truth commission to establish the truth about thousands of missing persons, allegedly disappeared by Indian security forces in Kashmir and Punjab, respectively. Memorialisation efforts in South Asia are led mainly by members of the harmed minority groups and often face active obstruction from governments.64 Vetting or lustration against government officials responsible for direct abuse is a rarely heard phenomenon in South Asian states where official impunity from prosecutorial action is often legislatively guaranteed.65 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.66 Semantically, this conveys an act of state benevolence for an inadvertent disaster instead of state’s acknowledgement of and restitution for its targeted mass atrocities. Most South Asian states do not have the normative framework for prosecuting mass atrocities.67 As far as domestic prosecutions under international criminal law regimes are concerned, Bangladesh remains an exception. In the opinion of some scholars, the lure of transitional justice mechanisms abovementioned, lies in the fact that a mass atrocity situation inevitably involves a substantial segment of the state’s population, and hence could be better resolved through conciliatory efforts. As mentioned before, the involvement of a substantial and dominant segment of the population, along with the

61 Amnesty International 2011. 62 Chatterji et al. 2015, p. 100-103 63 Rai 2016. 64 For example, Tamil Sri Lankan community has time and again spoken about the destruction of remembrance me- morials by Sri Lankan state authorities. See Srinivasan 2021; BBC 2021. 65 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. 66 For examples, see Reuters Staff 2007; India Today 1996. 67 See for eg. State and Others v. Sajjan Kumar and Others, 2019 IAD (Delhi) 1, para 368(xii).

21 active participation, complicity or at least toleration of state officials, is the exact reason why they may be compromised. Bangladesh’s prosecution of its own nationals for war crimes was an exception built on their national experience and popular support. Even then, the trial was suspended for over 40 years, until the gradual moderation of the islamization that had sustained the Jamaat Islami party, one of the principal local supporters of Pakistan and ally to the Bangladesh National Party, the main opponent of Awami League, and the reemergence of the latter (Awami League) into the political scene. Moreover, 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.68 Further, the alleged infraction of several fair trial rights, including over the number of witnesses to be allowed on behalf of the defence, extraction of confession under coercion and its admissibility, basing conviction and even awarding death sentence on the basis of hearsay evidence - reduced the legitimacy of these trials as an act of ‘political vendetta’.69

2.2 Why do South Asian Minorities turn to ICL? 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. Reflecting on the campaign by the Sri Lankan Tamil community for proceedings under international criminal law for mass atrocities by the Sri Lankan army, John Reynolds and Sujith Xavier state that the reasons vary from deterrence and protection against the recurrence of such atrocities in future to retribution against the colonising state, and a need for their harms to be acknowledged internationally.70 Reynolds and Xavier feel that often it is a frustrating turn for self- determination movements after failure of all other avenues like political struggle, armed insurrection, etc. and sometimes, it is a more tactical use of international criminal justice for the larger cause of liberation.71 Some of the critiques of international criminal justice are similar to critiques of domestic criminal law regime, and its restricted use in deterring crimes.72 Professor David Crane (chief prosecutor for the Special Court for Sierra Leone), and Professor Richard Goldstone, do not claim that international criminal justice mechanisms necessarily prevent mass atrocities - however, the fact that state leaders can be held to account despite their superior national designations, serves to at least put them on notice against commission of such mass atrocities, and resultantly in their aversion.73 On the occasion of the ICC’s commencement, Kofi Annan had expressed a similar opinion that up until now, powerful leaders believed that as long as they were in power, no court could judge

68 Haque 2018, pp 247-248. 69 Haque (2018), pp 246, 256-257. The Author admits that taking support from the UN would have been a morally sound option when it did offer assistance, owing to the emerging criticisms. See, p 253. 70 Reynolds and Xavier 2016, p 976. 71 Reynolds and Xavier 2016, p 976. 72 Bikundo 2014, pp 17-18, referring to the criticism of Tallgren. Tallgren argued that criminal justice procedures assume that achieving prevention requires the making of exemplary decisions, and ends up appropriating attention towards itself. He further quotes Sarah Nuowen and Wouten Werner who have empirically shown that the ICC trials are currently operating at the lowest pace, and thus, are inevitably political processes. 73 Rotberg, in Rotberg (ed) 2010, pp 9-10. Also reiterated by Edward C Luck, the Special Adviser on R2P, that although R2P may never become a binding legal norm, it has the capacity to spur political will at the least. See, p 14.

22 them and even if they sought to do so, the former group could always claim that they were only being persecuted by those more powerful who could sit in judgement over them.74 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 super commander during the 2002 anti-muslim pogrom in Gujarat.75 Although the apex Court in India set up special courts in 2009 to look into the liability of the accused, including Narendra Modi, they subsequently ended up giving a clean-chit to the accused close to the 2014 general elections, despite several sworn statements by senior police officers over how the chief minister explicitly asked them to allow Hindus to vent.76 Another Commission, constituted by Modi himself as chief minister, tabled a similar report in 2019 absolving the chief minister of any allegations and questioning the credibility of the affidavits submitted against him.77 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 of the Sri Lankan army under his presidency. In 2020, the state found itself constitutionally reoriented under a new government into a hyper- executive presidency model that gave the president powers to dismiss even constitutionally elected parliamentarians, dictate appointments or remove appointees within the constitutional courts, and prohibit review of any legislations, including those that breach fundamental rights.78 These changes effectively returned the state to its 1972 predecessor, an era that witnessed intensified autonomy demands by the Tamil minority since it had foreclosed all options for their political participation and power-sharing.79 The amendment marked a departure from an attempt at democracy and found overwhelming support from the Sinhalese-Buddhist community over security-related apprehensions.80

2.3 Divided by borders, united by opposition to Rome Statute International law and international criminal law have 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, although these were led by their own state interests, which coincided with altruistic justice concerns.

74 Bikundo 2014, p 17. 75 Nair 2014, p 13-15. 76 BBC 2012. 77 News18 2019. 78 Gomez 2021. The Constitutional Amendment received 215 votes out of 225, primarily for reasons of poor governance, rifts between the president and the parliamentary wing, and the Easter Bombings of 2019. 79 Gomez 2021. 80 Gomez 2021. Gomez states that after the defeat of the 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.

When the Rome Statute was put to 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 was motivated by the genocidal actions of the Pakistani forces and local collaborators that sought to preclude its own existence.81 Additionally, Bangladesh found within the Rome 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’.82

While India and Sri Lanka abstained from voting, Pakistan subsequently decided not to ratify the treaty. Procedural concerns aside, India and Sri Lanka argued that crimes such as ‘terrorism’ had not found their way into the list of core crimes. India and Pakistan did not support the inclusion of war crimes committed in the course of internal armed conflicts. 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.83

The most likely reason to object to the inclusion or exclusion of these crimes would be state interests. Note that the Rome Statute does not contemplate reservations. 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, that 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 to this in so many words 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.84

ICC cannot initiate investigations on its own for states which are not party to the Rome statute. In such a scenario, where most South Asian states are not members of the Rome Statute, the only way for victims to access the ICC criminal justice system is if they get the support of the UN SC.

2.4 The Politics of International Criminal Justice and Gridlocked Remedy Outside of self-referrals and ICC’s proprio motu (on its own) investigations for member states, the only other ways for triggering international criminal justice processes are through UN SC referrals to either the ICC or setting up an independent international criminal justice mechanism (such as an ad-hoc tribunal, as was done in the case of Yugoslavia and Rwanda) or through universal jurisdiction based sanctions regimes 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.

81 Jha, in Kaul and Jha (ed) 2018, pp 303-304. 82 Jha, in Kaul and Jha (ed) 2018, p 304. 83 Jha, in Kaul and Jha (ed) 2018, pp 301-303. 84 Jha, in Kaul and Jha (ed) 2018, p 305.

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.85 But in the western power’s obsession with 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 mechanisms86 hardly translates into real commitments back home. States weave negative rhetorics and practice fear-mongering over issues of security and immigration to restrict rights and colonise. Stanley Tambiah, in one of his scholarly works, draws commonalities between east-European and South-Asian ethnonationalism, arguing that the two phenomena are not very distinct from each other.87 In one of the most egregious examples, the population transfers effected in Bosnia received international criticism alongside western interventions, while the same consequences sought to be effected under the guise of the Citizenship Amendment Act in India, have seen outpouring of concerns,88 but hardly any action.

Secondly, western powers 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’s (the largest financial contributor to the UN) foreign policy towards India transitioned from a hard-line stance to relative accommodation and even coaxing, after realising the high growth potential and consumer market for american goods and services.89 India also emerged as the potential contender to China, which opposed the US’s freedom of navigation, and appeared to engage in constructing sovereignty over the vital Indian Ocean trade routes.90 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. Sri Lanka’s location near the East-West route, which 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.91 Similar geostrategic interests and machinations also govern international responses to grave human rights violations against minorities in Nepal.

85 Kaul and Jha, in Kaul and Jha (ed) 2018, pp 2-3; Jha et al., in Kaul and Jha (ed) 2018, pp 16,19. 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 SC, twice, in 1950 and 1955, and India’s bid since then to secure a seat has been supported by its regional allies, Nepal, Maldives, Bangladesh. See, pp 16, 19. 86 Jha et al., in Kaul and Jha (ed) 2018, 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. 87 Tambiah 1996, pp 8-9. 88 USCIRF 2019; Genocide Watch 2019. 89 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. 90 Jha et al., in Kaul and Jha (ed) 2018, p 20; Kugelman 2016. 91 Ramachandran 2019.

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. Pakistan’s influence within the Islamic consortium of states also led the US to believe that it could play a potential role in overall deradicalisation and elimination of threats in the likes of Al Qaeda towards the US.92 Likewise, in its conception, Bangladesh provided a classic example of a state’s transition to democracy. But in the US’s fervent attempts to eliminate ‘radicalisation’ overseas, it has often offered assistance to the state to tackle counter-terrorism - despite acknowledging the state’s record for decades, in attacking political dissidents under the guise of counterterrorism.93 On a related note, Michaelsen observes how the UN SC 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.94 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.95

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. Take, for example, the brutal military attack on the Sikh minority and Sikh historical gurudwaras (places of worship) by the Indian government in June 1984 in the Indian state of Punjab that killed thousands of innocent civilians.96 Recently declassified documents in the UK disclose how 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 1990.97

The right to accountability and remedy of victims is often gridlocked in competing interests of powerful states and the majoritarian elite in their governing state. International Criminal Justice becomes hostage to these interests, which essentially excludes victims’ needs. 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 Shavendra Silva under the US’s universal jurisdiction based sanctions regime for grave human rights violations.98 Silva was the commander of the 58th division of the Sri Lankan army during the civil war, and the division is accused of several extrajudicial killings of minority Tamils. Although, far from any real remedy or accountability, for minority Tamil population in Sri Lanka and the Tamil diaspora, this is the only action so far against a powerful perpetrator despite years of domestic accountability processes that shielded perpetrators and domestic electoral processes that awarded perpetrators for majoritarian rhetoric and anti-minority mass atrocities.

92 Kugelman 2016. 93 Kugelman 2016. 94 Michaelsen, in Masferrer (ed) 2012, p 287. Michaelsen assesses the UN SC Resolution 1373 that was initiated post 9/11 attacks, and notices that it was only in 2003 that the UN SC through a belatedly past resolution, Resolution 1456, called on the UN member states to take actions that are consonant with international law. 95 Held (2004), p 63. 96 Kaur 2014. 97 Doward 2017. 98 Borger 2020.

3. TWAIL’s burden of binaries and missing minority intersectionality

Third World Approaches to International Law or TWAIL was born out of the post colonisation cold war context. It critically analyses different operational modes of international law from the “third world” perspective. Some scholars see TWAIL as a political orientation rather than a methodology.99 While others do see it as a methodology within Third World Socio-Legal Studies.100

Radha D’Souza highlights that one thing that ails most third world socio-legal studies methodologies is that their contours are defined by binaries that trap it in “conceptual and political conundrums” that is particularly problematic for third world scholars who want to go beyond Eurocentric theories.101 The vocabulary used to describe postcolonial societies and former colonising societies is through confusing, binary terms that lack adequate conceptual and philosophical grounding of the term “society” in third-world socio-legal studies.102 TWAIL’s limitations also arise from its conceptual grounding within the binaries of west v. east, first world v. third world, north v. south. D’Souza holds that “the object of knowledge for TWAIL scholars is international law, not the Third World.”103 That may explain the ambiguous and open-ended conceptual framing of ‘third world’ in TWAIL scholarship. Eventually, the conception of the third world under TWAIL becomes subjective to the TWAIL scholar’s identification with the “third world” or their interpretation of this term.104

The objective of this section is not to dismiss the importance of TWAIL in reorienting international law. Our intention is to highlight that such a 180 degree flip of international law shuts out the intersectional lived reality of minorities in the postcolonial world. We aim to contextualise TWAIL’s conceptual framework and political motivations within the needs of minorities in South Asian states. So many TWAIL scholars, like R.P. Anand, C.G.Weeramantry, B.S. Chimni, Vasuki Nesiah, Usha Natarajan, Sandhya Pahuja, Sujith Xavier, Balakrishnan Rajagopal, to name a few, 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.

99 Eslava and Pahuja 2012, p 195. 100 D'Souza 2011, p 409. 101 D'Souza 2011, p 413. 102 D'Souza 2011, p 414. 103 D'Souza 2011, p 426. 104 D'Souza 2011, pp 425-426.

3.1 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 and hegemonies in the evolution of international law.105 This critical studies approach of deploying history is vital to locate and understand TWAIL’s own political motivations, as well. While TWAIL was given a formal shape at a Harvard Law Conference in 1997106, most TWAIL scholars agree that it is a legacy of the 1955 conference of newly decolonised Asian and African states in Bandung, Indonesia, also popularly called the Bandung Conference.107 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.”108 The participation in Bandung was restricted to state delegations.109 Power in many of the participating states was controlled by feudal elites since pre-colonial times.110 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.111 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.112 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 1971.113 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.114

Bandung’s colonisation lens was restricted to European colonists and there was no reflection about the ways in which participating political elites from these newly decolonised states were already carrying forward the torch of colonisation and using it to repress minorities in their own countries.115 For example, one of the key postcolonial country leaders associated with both Bandung and the vision for TWAIL was the then Indian Prime Minister Jawaharlal Nehru.116 In 1953, the Indian government under Nehru had dismissed a popular, democratically elected Head of the then independent

105 See for example, Anghie 2004. 106 Gathii 2011, p 30. 107 Natarajan et. al 2016, pp 1946-1956. 108 Chimney, in Eslava et. al 2017, p 35. 109 Esmeir, in Eslava et. al 2017, p 93. 110Choudhury, in Eslava et. al 2017, p 323. 111 Khan, in Eslava et. al 2017, p 116. 112Choudhury, in Eslava et. al 2017, pp 324, 334. 113 Choudhury, in Eslava et. al 2017, pp 322-324, 331. 114 Choudhury, in Eslava et. al 2017, p 334. 115 Dirar, in Eslava et. al 2017, pp 355-357. 116 Anand 2002, pp 5-29; Pahuja, in Eslava et. al 2017, pp 552-573.

28 state of Kashmir- Sheikh Abdullah and incarcerated him for almost 11 years.117 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.118

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, as noted earlier, most postcolonial states adopted colonial tools of repression and state of exception, including legislations that legalised mass atrocities, to throttle and criminalise dissenting minorities and marginalised groups within their own borders.119

This is the political legacy that gave birth to TWAIL. First generation TWAIL scholarship was wholly aligned with this agenda. Second generation TWAIL scholars claim that they continue the TWAIL I tradition while using a critical lens towards TWAIL I and making significant changes.120 The following subsection contextualises these changes to the minorities’ experience in South Asian states.

3.2 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.121 Such a uni-dimensional agenda fails to adequately elaborate and centre the concerns of minorities in the third world, specifically in South Asian states.122 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.123

As elaborated in the first section, most South Asian states are run by majoritarian nation-cores that devise the cultural and political identity framework of these states, such as Hindi-Hinduism in India, Sunni Islam in Pakistan, Bangla Muslim in Bangladesh, Nepali in Nepal and the Buddhist Sinhala in Sri Lanka.124 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, putting ethnic minorities in states of constitutional exceptionalism and eventually, mass atrocities. TWAIL scholarship emerges from

117 Altaf 2019, pp 207-210. 118 Altaf 2019, pp 207-210. 119Kalhan et. al 2006; Hussain 1999. 120 Anghie and Chimni 2003, pp 79,82 121 Fukurai 2019, p 241. 122 Fukurai 2019, p 240. 123 Valerie 2007, pp 319-323; Fukurai 2019, p 241. 124 For further explanation of nation-core, see Fukurai 2019, p 206.

29 similar assimilationist goals of social movements and elites in “decolonised” states125 that can often exclude those who are unwilling to assimilate in the nation-core.

Further, Srinivas Burra argues that TWAIL scholarship broadly revolves around pinning the responsibility for all forms of subjugation in the third world on colonisation and the reproduction of colonial patterns of domination in postcolonial states.126 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.127 As mentioned in the first section, hegemonies and the patterns of discrimination against certain minorities in South Asian states predate the colonial encounter. This includes caste-based discrimination and atrocities against Dalit or wrongfully called “lower caste” communities in India, Pakistan, Nepal, Bangladesh, and Sri Lanka. Further, many Dalits historically, and even now, have converted into other religions like Islam, Sikhism, Christianity and Buddhism to escape the discrimination and oppression of Brahminical caste system within Hinduism.128 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 Indian society on 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.129 As we have explained in the first section, 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 state-backed violence against minorities for their assertion of 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.130

3.3 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, Vasuki Nesiah noted that the court declared Israel’s act of constructing the wall illegal by

125 Valerie 2007, p 322. 126 Burra 2016, p 113. 127 Burra 2016, p 126. 128 Teltumbde (2020), in Teltumbde (ed.), p xxx. 129 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, in Eslava et. al 2017, pp 311-321. 130 For example, dog whistles insinuating western linkages to Christianity were the precursor to the Anti-Christian Kan- dhamal pogrom in India in 2008. National People’s Tribunal on Kandhamal 2010, p 4.

30 primarily relying on the international legal doctrine of self-determination. She then argues that this was because self-determination discourse has lost its earlier relevance as a credible political resistance tactic.131 The political charge of self-determination is diffused by the countercharge of “War on Terror” pushed by the Empire in the post- 9/11 scenario.132 Nesiah refers to this as a shift from the Westphalian model of international law based on national sovereignty to an imperial model of justice.133

This simplistic summarisation of contemporary international law history fails to underscore that countries like India and Sri Lanka started using the anti-terror normative structure to criminalise and repress self-determination movements within their own territories almost two decades before the PATRIOT Act or 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.134 Sri Lanka passed its Prevention of Terror Act in 1979, and the Proscription of the Liberation Tigers of Tamil Eelam and Similar Organisations acts in 1978 to use the normative structures of anti-terrorism to criminalise the aspirations and dissent of the minority Tamil community and provide legal strength to the gruesome mass atrocities of its forces against Tamils.135

There is some truth in the fact that the United States of America led global war on terror may have given the final seal of approval to the use of terror doctrine in international law. However, its use as a counter-argument for cancelling self-determination was a fundamental aspect of postcolonial constitutional exceptionalism in countries like India and Sri Lanka. Due to the west-centred critique, scholars like Nesiah 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.

Conclusion

South Asia has remained a hot-bed of violence and mass atrocities owing to the diver nature of almost all the states herein that intersect across religious, ethnic, sectarian, political and other composite lines and the state’s need to assimilate. ICJ emerged with the hope that no state actor using the instrumentality of a state,136 could be immune for

131 Nesiah 2006, p 916. 132 Nesiah 2006,p 916. 133 Nesiah 2006,pp 916-917. 134 Kumar et. al 2003, p 84; Human Rights Watch and Ensaaf 2007, pp 12-14. 135Manoharan 2006, p 2. 136 ICJ does not contemplate simple errors in decision-making processes over prosecution of criminal actors. Rather,

mass atrocities. The non-ratification of Rome Statue by most South-Asian states and the politics of operationalising ICJ otherwise, have blocked access to ICJ for minorities in South-Asian states. With the smoke-gun of colonial history and South Asian positioning, the former found themselves in a conundrum. South Asian 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 challenge the conceptual frames of international like “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 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, was 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 operations limits of ICJ is important for any conversation around remedy and accountability for minorities impacted by mass atrocities in South-Asia.

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Violence in International Criminal Law and Beyond* Anastasiya Kotova

“[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 (ICL). 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 suggested by Emil Durkheim, one of the founders of modern sociology. Durkheim suggested that criminal law proscribed conduct, deemed as “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. No- tably, ICL can be claimed to perform this function with regard to the global community. In this paper I examine the role of ICL 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 in three sections: in section 1 I outline what enables ICL to produce and reproduce the meaning of concepts central to the discipline, – meaning that goes beyond strict disciplinary boundaries. In talking about ICL I focus primarily on the so-called ICL stricto sensu,5 i.e., the substantive

* Anastasiya Kotova, PhD candidate, Lund University, [email protected]. 1 Thomas Weigend, ‘Societas Delinquere Non Potest? A German Perspective’ (2008) 6 Journal of International Criminal Justice 927, 936. 2 Robin Antony Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart 2007) 44. 3 Nikolas M Rajkovic, ‘What Is a “Grave” International Crime? The Rome Statute, Durkheim and the Sociology of Ruling Outrages’ (2020) 16 Loyola University Chicago International Law Review 65. 4 ibid 72. 5 I use the term ‘ICL stricto sensu’ to refer to the law pertaining to the four core crimes, since the scope of ICL is subject to varying interpretations in the scholarship, and I adhere to a broad definition of ICL whereby the definition on an international crime is not limited to the core crimes – the term ICL stricto sensu, therefore, is helpful in referring to the part of ICL related to core crimes. The terms ICL stricto sensu and ICL 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 to ICL stricto sensu, whereas ICL largo sensu, or ICL interpreted broadly, corresponds to ‘droit pénal international’, ‘derecho penal internacional’ and ‘Internationales Strafrecht’ respectively – see Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (4th edn, Oxford University Press 2020) 35. Many authors, including Werle and Jessberger, Antonio Cassese, International Criminal Law (2nd ed, Oxford University Press 2008) 3–4; Robert Cryer, An Introduction to International Criminal Law and Procedure (Cambridge University Press 2010) 5 reserve the term ICL 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 ICL, fall into a relatively recent category of transnational criminal law. Scholars, influential in the field of ICL prior to this conceptual divergence, most notably M. Cherif Bassiouni, understood ICL primarily as ICL largo sensu. See M Cherif Bassiouni, Introduction to International Criminal Law (2nd rev. ed, Martinus Nijhoff Publishers 2013) 1–57. For a discussion of the international/transnational criminal law divide and its implications for the discipline see

41 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. In section 2 I reconstruct the understanding of violence undergirding ICL, and in section 3 I place this understanding within the conceptual framework of violence suggested by Johan Galtung to identify the types of violence which ICL is unable to see and explain why this ‘blindness’ can be problematic; section 4 concludes. 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 normal- ised and naturalised. 6

1. ICL and Hegemony 1.1 The role of law in hegemony A discussion about hegemony would be superficial without due consideration of the wider theoretical framework to which it belongs, i.e., Marxist theory. In Marxist analysis of law as a normative system, some elements of it are at the basis of social relations of production: these are, for instance, rules establishing and 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 theo- rists hold to a … reading, in which the relation between the determining base and the determined superstructure is posed as a question, rather than an explanatory theory”.7 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,8 to better understand which he introduces the concept of an “historical block”. Historical block embodies “the reciprocal and interrelated development of structure and superstructure”9 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”.10 An historical block, in turn, emerges when the hegemony of a dominant social group is established – through the concept of historical block the concept of hegemony is linked to the particular constellation of basis and various superstructures, including the legal system and morality. Hegemony is “a process through which a class or group establishes

Douglas Guilfoyle, ‘Transnational Crimes’ in Kevin Jon Heller and others (eds), The Oxford Handbook of International Criminal Law (Oxford University Press 2020); Frédéric Mégret, ‘The Unity of International Criminal Law: A Socio-Legal View’ in Kevin Heller and others (eds), The Oxford Handbook of International Criminal Law (Oxford University Press 2020).For a critique of these varying approaches to ICL scope ratione materiae see Grietje Baars, The Corporation, Law and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy (Brill Nijhoff 2019) 243–263. 6 Tor Krever, ‘International Criminal Law: An Ideology Critique’ (2013) 26 Leiden Journal of International Law 701. 7 Susan Marks, ‘Introduction’ in Susan Marks (ed), International Law on the Left: Re-examining Marxist legacies (Cambridge University Press 2008) 2. 8 A Claire Cutler, ‘Gramsci, Law, and the Culture of Global Capitalism’ (2005) 8 Critical Review of International Social and Political Philosophy 527, 534. 9 Adam David Morton, Unravelling Gramsci: Hegemony and Passive Revolution in the Global Political Economy (Pluto Press 2007) 96. 10 Antonio Gramsci, Prison Notebooks (1971) 366, Q8§182, as quoted ibid, emphasis added.

42 the conditions necessary to establish control, not just through force, but through ideo- logically capturing popular support as the articulator of the public interest or common sense”.11 The dominant class is successful in establishing hegemony when its class interests appear as the common interests, when it prevails in “shaping intersubjective forms of consciousness in civil society”.12 Law plays a 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 the 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. Law “operates… through processes of naturalisation, rationalisation and universalisation”.13 The specificity of criminal law is in that it ostensibly defines the most serious transgres- sions of 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.14 If we, instead, accept the Marxian premise that the prevalent moral orientations are shaped by 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 naturalis- ing a particular, historically contingent form of moral solidarity.

1.2 Hegemonic potential of ICL How do these insights translate into the realm of ICL, 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.15 As demonstrated by contributions to international political economy adopting a Gramscian perspective,16 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 inter- state relations. 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.17 The term “global civil society” refers here to a variety of institutions

11 Cutler (n 9) 536. 12 Morton (n 10) 93. 13 Cutler (n 9) 536. 14 Rajkovic (n 4) 74. 15 Morton (n 10) 132. 16 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., Robert W Cox, ‘Social Forces, States and World Orders: Beyond International Relations Theory’ (1981) 10 Millennium 126; Robert W Cox, ‘Gramsci, Hegemony and International Relations : An Essay in Method’ (1983) 12 Millennium 162. 17 Margaret M deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law (First edition, Oxford University Press 2020).

43 that compose civil society in Gramscian understanding – non-governmental organisations, religious institutions, intellectuals (as opposed to bureaucrats and state function- aries) 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 ICL, 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”.18 Immi Tallgren further notes on the comparison of the hegemonic potential of domestic and international criminal law that the recognition of criminal justice system as a hegemonic instrument and an arena of power legitimation in the scholarship on criminal law and criminology is significantly less controversial than a similar claim regarding ICL.19 Universal values, shared by the entire humanity, are often invoked as the normative basis of ICL in general and of the operation of the ICC in particular.20 The language of common humanity and of concern of the international community permeates the preamble of the Rome Statute of the ICC,21 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 practioners, scholars, and advocates,22 into “common interests of humanity”. The creation and operation of the ICC have further consolidated the hegemonic operation of ICL by institutionalising its practices, and this is why a substantial part of the discussion below concerns the Court specifically. In what follows I mention three narratives, whose operation, in my view, strengthens ICL’s claim 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.

1.2.1 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”.23 The invocations of global criminal justice – and even merely global justice – are frequent in both

18 Frédéric Mégret, ‘Introduction: Situating Critical Approaches to International Criminal Justice’, Critical Approaches to International Criminal Law: An Introduction (Routledge 2014) 19. 19 Immi Tallgren, ‘Who Are “We” in International Criminal Law? On Critics and Membership’, Critical Approaches to International Criminal Law: an Introduction (Routledge 2014) 76. 20 Similarly, it is suggested by Werle and Jessberger that ICL draws a special “supranational legitimacy” from the fact that it protects the interests of international community that are attacked when an international crime is committed, Werle and Jessberger (n 6) 38–39. 21 Rome Statute of the International Criminal Court, adopted on 17 July 1998, as amended on 29 November 2010. (UNTS Vol 2187); ‘Assembly of States Parties of the International Criminal Court, 18th Session, Remarks of the Prose- cutor’ (2 December 2019) 8 . 22 Sarah MH Nouwen, ‘Justifying Justice’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (1st edn, Cambridge University Press 2012) 342. 23 Luis Moreno-Ocampo, ‘International Criminal Court: Seeking Global Justice’ (2007) 40 Case Western Reserve Journal of International Law 215, 216.

44 the ICC’s parlance24 and in its scholarship.25 Mégret suggests that international criminal justice is conflated with global justice by both its supporters and its opponents.26 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”.27 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 or misguided:28 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.29 This process both determines 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.30 Justice as in “social justice” – the redistribution of wealth and power – is relegated into obscurity.31 Since, as Steven Ratner suggests, international lawyers hardly engage in discussions on justice and its role in the shaping of legal normativity,32 it appears that ICL is one of the few fields that explicitly engages with the notion of global justice. Given the lack of alternative visions of global justice, the vision put forward by ICL fills the vacuum and becomes dominant by being the only available one. 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.

1.2.2 “Contribution to peace” narrative

24 ‘Assembly of States Parties of the International Criminal Court, 6th Session, Remarks of the Prosecutor’; ‘Assembly of States Parties of the International Criminal Court, 6th Session, Remarks of the Secretary-General of the United Na- tions.’; Office of the Prosecutor, ‘ICC Prosecutor, Fatou Bensouda, Meets with the EU Foreign Affairs Ministers: “The ICC Is Central to a More Just and Rules-Based International System.”’ (International Criminal Court, 22 February 2021) accessed 12 May 2021. 25 Stephan Parmentier, ‘Global Justice in the Aftermath of Mass Violence. The Role of the International Criminal Court in Dealing with Political Crimes’ (2003) 41 International Annals of Criminology 203, 204; deGuzman (n 18) 6, 22, 89. For a critique of international criminal justice as global justice see, e.g., Frédéric Mégret, ‘What Sort of Global Justice Is “International Criminal Justice”?’ (2015) 13 Journal of International Criminal Justice 77; Sara Kendall, ‘Commodifying Global Justice: Economies of Accountability at the International Criminal Court’ (2015) 13 Journal of International Criminal Justice 113; Sarah MH Nouwen and Wouter G Werner, ‘Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity’ (2015) 13 Journal of International Criminal Justice 157. 26 Mégret, ‘What Sort of Global Justice Is “International Criminal Justice”?’ (n 26) 78. 27 ‘Justice’ in Lexico Dictionaries powered by Oxford accessed 12 May 2021. 28 At the same time, I do not necessarily suggest that the use to the term “global justice” by practioners, scholars, and civil society representatives is deliberately hegemonic – the operations of ideology are much more complex. 29 Nouwen (n 23) 343; Nouwen and Werner (n 26) 158,163. 30 Krever, ‘International Criminal Law’ (n 7) 703; Kendall (n 26) 114. 31 I will go back to the concept of social justice and its meaning in the subsequent discussion of violence. 32 Steven R Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (Oxford University Press 2015) 19–20 accessed 17 February 2021.

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,33 and, what is more, that criminal justice is an indispensable component in the post-conflict toolbox.34 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.35 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 Rome Statute.36 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 justice to victims and to guarantee lasting respect for and the enforcement of international criminal justice”.37 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.38 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.39 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.40 At the same time, it has been increasingly asserted by numerous voices in

33 Werle and Jessberger (n 6) 38; Nouwen (n 23) 331. 34 Nouwen and Werner (n 26) 162; Pádraig McAuliffe and Christine Schwöbel-Patel, ‘Disciplinary Matchmaking’ (2018) 16 Journal of International Criminal Justice 985, 995, 998. 35 Nouwen and Werner (n 26) 168. 36 Preambular paragraphs 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…” Rome Statute of the ICC. 37 ‘Assembly of States Parties of the International Criminal Court, 18th Session. Opening Remarks of the President of the Court’ 3. 38 Sarah MH Nouwen and Wouter G Werner, ‘Doing Justice to the Political : The International Criminal Court in Uganda and Sudan’ (2010) 21 European Journal of International Law; Claire Nielsen, ‘From Nuremberg to the Hague: The Civilizing Mission of International Criminal Law’ (2008) 14 Auckland University Law Review 81; Nouwen (n 23); Tor Krever, ‘Dispensing Global Justice’ (2014) 85 New Left Review accessed 8 April 2021. 39 Nouwen (n 23) 332,335. 40 Christof Royer, ‘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’ (2017) 18 Human

46 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.41 By insisting that an international judicial intervention is indispensable to peace, ICL similarly strengthens its hegemonic potential to shape the intersubjective understanding of other phenomena.

1.2.3 The “most serious crimes” narrative ICL stricto sensu as a corpus of norms and the ICC as the institution with jurisdiction for their enforcement rely, for their own legitimacy,42 on the claim that they address the “most serious crimes of concern to the international community as a whole”.43 Gravity and seriousness are the central conceptual categories in ICL, applied in a variety of contexts, especially in the operation of the ICC. They delimit the prescriptive jurisdiction of ICL,44 they guide the choice of situations to be investigated45 and, when an investigation results in a prosecution and a guilty verdict, play a role in sentencing.46 At the same time, the meaning of gravity in ICL is notoriously ambiguous and fluid:47 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”48 is the furthest the ICC jurisprudence has come. When it comes to the material scope of ICL 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 ICL: as a number of commentators suggest, the notion of international crime has not always been synonymous with that of a “core

Rights Review 395, 404. 41 Nouwen (n 23) 339. 42 A detailed investigation of the normative content of the concept of gravity, its use in and legitimating role in ICL is provided by Margaret M deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law (First edition, Oxford University Press 2020). On reliance of ICL on the concept of gravity see p.2. 43 Preamble, Rome Statute of the ICC. 44 William Schabas, An Introduction to the International Criminal Court (Fifth edition, Cambridge University Press 2017) 74– 75; for an opposite view see Roger O’Keefe, International Criminal Law (First edition, Oxford University Press 2015) 57– 58, who argues that an idea that gravity can serve as an identifying feature of international crimes is “misleading”. 45 Schabas (n 45) 182,186. 46 ibid 325. 47 Ioannis Kalpouzos and Itamar Mann, ‘Banal Crimes against Humanity: The Case of Asylum Seekers in Greece’ (2015) 1 Melbourne Journal of International Law 1, 3, 24; deGuzman (n 18) 61; Nikolas M Rajkovic, ‘What Is a “Grave” International Crime? The Rome Statute, Durkheim and the Sociology of Ruling Outrages’ (2020) 16 Loyola University Chicago International Law Review 65, 84. 48 Situation on Registered Vessels of the Comos, 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 (n 45) 186.

47 crime” or a crime of most serious concern to humanity.49 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 1980s50 and crystallised as commonsensical with the creation of the ICC. Thus, not only does the ICL have the power “to frame certain problems as criminal law problems”,51 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 ICL has acquired serves to strengthen its hegemonic potential.52 As Tallgren suggests, ICL 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.53 The danger of ICL’s claim 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.54 The three narratives discussed so far are self-reinforcing: ICL’s indispensability 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 ICL to achieving global justice. Cumulatively, they increase the power of ICL to influence the content and meaning of other concepts it engages in. Importantly, these narratives themselves represents victo- ries 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.

2. Violence in ICL 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 context 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. 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,

49 Christine Schwöbel-Patel, ‘The Core Crimes of International Criminal Law’ in Kevin Heller and others (eds), Oxford Handbook of International Criminal Law (Oxford University Press 2020) 781–782; Guilfoyle (n 6) 791,794,799; Mégret, ‘The Unity of International Criminal Law: A Socio-Legal View’ (n 6) 815–817. 50 deGuzman (n 18) 47. 51 Mégret, ‘Introduction: Situating Critical Approaches to International Criminal Justice’ (n 19) 23. 52 This term was coined by the US representative at the Rome Conference David Scheffer, as quoted in Royer (n 41) 407. 53 Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13 European Journal of International Law 561, 464; see also Kendall (n 26) 125. 54 Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (n 54) 595; Schwöbel-Patel (n 50) 769.

48 as mala prohibita, mostly regulatory offences. As to ICL, 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.55 The ad hoc tribunals and the ICC use the term in some instances, such as employing “acts of violence” to refer to individual episodes of crimes investigated.56 What are other characteristics of violence that ICL recognises, besides the focus on direct physical harm? Firstly, as suggested above, ICL 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,57 the context, necessary for offences to qualify as crimes under the Rome Statute, is that of relatively large-scale violence. For genocide, the Ele- ments of Crimes prescribe that “[t]he conduct”, listed in Art.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”. 58 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 Art. 7 of the Rome Statute, must be “committed as part of a widespread or systematic attack directed against any civilian population”,59 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, ICL 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”.60 What is radically evil for the ICC can be gathered from the long history of the Rome 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, om- nibus 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.61

55 Arts. 5-8, Rome Statute of the ICC. 56 See, e.g., Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC- 01/ 09- 19 (March 31, 2010), para. 84; Prosecutor v. Gbagbo (Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber I of June 3, 2013 entitled ‘Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute’) ICC- 02/ 11- 01/ 11 OA 5 (December 16, 2013), para. 215. 57 deGuzman (n 18) 72. 58 Elements of Crimes, International Criminal Court (2013) 2–3 . 59 Art. 7, Rome Statute of the ICC. 60 Kalpouzos and Mann (n 48) 1–5. 61 ILC, ‘Report on the Work of Its Thirty- Sixth Session (May 7– July 27, 1984) UN Doc. A/ 39/ 10’ para 63, as quoted in deGuzman (n 16) 48.

This passage, no doubt interesting in several respects, points out at least two characteristics of the type of violence ICL addresses. The spectacular nature of violence, of which Kalpouzos and Mann speak, and which the passage sketches, invokes the aesthetics that ICL 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.62 Ac- cording to Schwöbel-Patel, by shining a spotlight on spectacular violence, ICL’s “aes- thetical bias” serves to obscure and marginalise instances of other violence.63 Furthermore, ICL’s vision of violence is racialised: the language of savagery and barbar- ity in international law has been traditionally used to legitimise the mission of civilising a savage and barbarous ‘other’ through international law itself,64 and as Claire Nielsen suggests, ICL continues this civilising mission.65 The attention paid to the outrages of some political communities and the oblivion to those of other ‘less relevant’ 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, the use of slave labour in the southern states of the United States was never seen to undermine its status as a civilised nation.66 While contemporary ICL purports to be universally applicable and is not as blatantly racial, 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 ICL 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”.67 This allows for the high-tech violence of the civilised, such as NATO bombardment of Kosovo to remain beyond the gaze of ICL,68 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 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.69 The alleged genocide in Darfur invokes vivid images of savage intracommunal violence, while the democracy-

62 Schwöbel-Patel (n 50) 788. 63 ibid. 64 Antony Anghie and BS Chimni, ‘Third World Approaches to International Law and Individual Responsibility in In- ternal Conflict’ (2004) 36 Studies in Transnational Legal Policy 185, 193. 65 Nielsen (n 39); Schwöbel-Patel (n 50) 784. 66 Ntina Tzouvala, Capitalism as Civilisation: A History of International Law (Cambridge University Press 2020) 64–66. 67 In this section I provide some examples of low-tech and high-tech violence. For a further discussion on this point, see Tallgren (n 20) 74. 68 Nielsen (n 39) 97; Shannon Maree Torrens, ‘The Politics of International Criminal Justice: Hegemony and Humanity at the International Criminal Tribunal for the Former Yugoslavia’ in Holly Cullen, Philipp Kastner and Sean Richmond (eds), The Politics of International Criminal Law (Brill Nijhoff 2020) 76 accessed 27 March 2021. 69 Krever, ‘Dispensing Global Justice’ (n 39) 83-84,88.

50 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, ICL can only see and address violence that can be attributed to an individual in one way or another – as a direct or indirect perpetrator, instigator, aider and abettor, commander, etc.70 [I will elaborate on individual responsibility as a factor structuring the visual field of violence in ICL in the subsequent draft]. A discussion on violence that is visible to ICL suggests, therefore, that there is also violence that ICL does not see, and that violence as a phenomenon is not reducible to ICL’s vision. In the next section, I examine types of violence that can be found beyond ICL and demonstrate the implications of its invisibility to the discipline.

3. Violence beyond ICL 3.1 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.71 In political theory, an influential conceptualisation of violence was produced by Johan Gal- tung. It was later employed by Paul Farmer in his ground-breaking work on global public health,72 and inspired Robert Nixon’s analysis of slow violence.73 Galtung, who is today considered to be the founder of the field of peace research, 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 seminal 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”. 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 ICL.74 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

70 Arts. 25, 28, Rome Statute of the ICC. 71Violence was investigated, among others, by Jacques Derridà, Walter Benjamin and Michelle Foucault. For a discussion on these thinkers' take on violence see Antiphon, ‘Power, Violence, Law’ (Critical Legal Thinking, 5 April 2009) accessed 14 May 2021. 72 Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor (University of California Press 2003). 73 Rob Nixon, Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011). 74 Johan Galtung, ‘Violence, Peace, and Peace Research’ (1969) 6 Journal of Peace Research 167, 168, emphasis in original.

51 realization 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”.75 Therefore, for Gal- tung a death from a preventable disease is violence, although it is not caused by intentional physical harm.76 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, two axes are of particular importance. The first one hinges on the presence of an actor inflicting violence: if violence is committed by an actor, it is personal or direct violence, and “where there is no such actor”, violence is “structural or indirect”.77 Structural violence, Galtung continues, “shows up as unequal power and consequently as unequal life chances”.78 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.79 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.80 I will return to this point later. 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, but waves on otherwise tranquil waters. Structural violence is silent, it does not show – it is essentially static, it is tranquil waters.81 It is noteworthy that, to Galtung, the imperceptibility of violence is a matter of persuasion, an instance of conditioning. 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. Robert Nixon, for instance, cautions us from 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.82

75 ibid 169. 76 The violence of preventable deaths or severely compromised life quality is discussed at length by Paul Farmer (n 72). Among a variety of case-studies he considers, inter alia, the deaths from antibiotic-resistant tuberculosis in Russian prisons in the 1990s. 77 Galtung (n 75) 170. 78 ibid 171. 79 ibid 173. 80 ibid 172, 183. 81 ibid 173, emphasis in italics in original, emphasis in bold added. 82 Nixon (n 74) 11.

Another axis of violence, relevant to this discussion, has intended and unintended violence as its poles. Galtung notes that much thinking about responsibility83 has been structured through a bias towards intended violence, present “both in Judaeo-Christian ethics and in Roman jurisprudence”84 – a bias, universalised by the export of these systems in the course of the colonial enterprise and imperialism.85 [This section will be further developed in the subsequent draft/final version].

3.2 Violence invisible to ICL Some of the observations, made by Galtung, are applicable and significant to my analysis the notion of violence in ICL, discussed above. The attention towards “violence that shows”, that has a perpetrator and that is intentional, reproduces the biases Galtung emphasises. As ICL 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”.86 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 ICL 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.87 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”, 88 the conditions that are “historically articulated and enforced”.89 Phenomena that are instances of structural violence – poverty and destitu- tion, marginalisation, racism, and discrimination are not recognised as violence, because the existing frames of recognition are structured in a way that makes these phenomena appear both natural and inevitable, insofar as they randomly occur. They are mere “free- floating bad events”.90

83 Galtung talks about the importance of the distinction “when guilt is to be decided, since the guilt has been tied more to intention…”: I interpret this statement as applicable, by extension, to the determination of responsibility, in particular, criminal responsibility, that, generally speaking is subject to actus reus and mens rea being established. 84 Galtung (n 75) 171. 85For example, as Humphreys suggests, in Sub-Saharan Africa, the local notions of restorative justice were replaced by retributive justice by the colonial administration, simultaneously with the introduction of deprivation of liberty as a form of punishment: seeSteven Humphreys, Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice (Cam- bridge University Press 2010) 117. See also Nielsen (n 39). 86 Galtung (n 75) 178. 87 Butler discusses concepts of recognisability and frame of recognition and Judith Butler, Frames of War: When Is Life Grievable? (Verso 2009), 3-7. 88 ibid 6. 89 ibid 5. 90Susan Marks, ‘Human Rights and Root Causes’ (2011) 74 Modern Law Review 57. Marks borrows the term from Naomi Klein; discussing the “root causes” turn in human rights discourse she notes: “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

Since ICL 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. ICL makes structural violence, causing and amplifying violent conflict or repressive state rule, obscure and unrecognisable:91 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 madness (Taylor in Liberia)) or singular political acts (the Hariri assassination in Lebanon)) are understood as ‘crimes’.92 Importantly, I do not claim that the solution to the invisibility of structural violence in ICL is its criminalisation – this would be both implausible and ineffective.93 Instead, I suggest that it is important to regard the invisibility of structural violence in ICL within the broader context of ICL’s hegemonic operation. Claiming its indispensability to global justice and to lasting peace, ICL 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 ICL is not, perhaps, the most serious problem: this can be remedied, if there are other frames of recognition where structural violence could fit. A more problematic aspect of ICL’s hegemonic operation is precisely its ability to obscure such other frames, as it claims to deliver global justice by countering the most serious crimes of concern to humanity. Since the central focus of Galtung’s research is peace, the resort to the concept of structural violence is, in a sense, instrumental since it is meant to allow for a more robust and extensive understanding of peace, defined as the “absence of violence”.94 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.95 While ICL ostensibly aims at contributing to lasting peace, it becomes increasingly unclear how this goal can be achieved through ICL. Since ICL does not see nor address structural violence, it cannot be expected to contribute to the absence of structural violence, i.e. to positive peace. ICL’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’

‘natural’ necessity” p. 75, emphasis added. 91 Tor Krever, ‘Unveiling (and Veiling) Politics in International Criminal Trials’, Critical Approaches to International Criminal Law: an Introduction (Routledge 2014) 130–131. 92 Gerry Simpson, ‘Linear Law: The History of International Criminal Law’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law: an Introduction (Routledge 2014) 170. 93 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 (n 54) 593. 94 Galtung (n 75) 167–168, 183. 95 ibid 183.

54 cooperation for warrant execution, such peace through incapacitation is tenuous at best. Similarly, ICL’s inability to contribute to peace would have been 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.

4. 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 disclosing the existing class struggle from the view of the oppressed. The hegemonic operation of ICL, as discussed in this article, 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, ICL obscures the vision of other types of 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”.96

96 Arundhati Roy, The Cost of Living (Modern Library Pbk ed, Modern Library 1999); as quoted in Nixon (n 71) 1.

A Berlinean sense of ‘the interests of justice’ and the virtue of phronetic judgment

Maria Varaki

In 1953, Isaiah Berlin wrote about the sense of reality while criticising both historical determinism and dogmatic scientific knowledge. Berlin was trying to provide an alternative vision either to utopian absolutism or cynical realism, through the development of both an individualizing and individualized personal judgment that accommodated value pluralism and a sense of present to day reality.1

The current contribution argues that the Berlinean sense of reality resembles the Aristotelian virtue of phronesis. Aristotle argues that virtue is a 'state concerned with choice, lying in a mean relative to us, this being determined by reason and in the way in which the person of practical wisdom (phronimos) would determine it".2 In this piece, both phronesis and sense of reality are understood to reflect common sense that enables intuitive sense of judging and strengthens the capacity of the decision-maker to assess the particularities of a situation, before making a choice.3

In this context, the current paper purports to explore the power and limits of phronetic judgment, via the lenses of the interests of justice reference in art.53 (1)(c) of the ICC Rome Statute, where the Prosecutor may decide not to proceed with an investigation. The main question to be addressed is to what extent phronetic actors( judges in our case) can operate in a cathartic way towards normative,structural and ideological biases and thus preserve the 'innocence' of international criminal justice, balancing radically between 'faith' and 'critique'.

1.Introduction to the interests of justice debate in the Rome Statute Article 53(1)(c) of the Rome Statute provides that the Prosecutor, in deciding whether to initiate an investigation or not, shall consider whether ‘taking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of the justice’. Additionally, Article 53(2)(c) indicates that, upon investigation, the Prosecutor may conclude that there is no sufficient basis for a prosecution to take place because it would not be in the interests of justice, taking into account all the relevant circumstances, including the gravity of the crime, the interests of the victims and the age or infirmity of the alleged perpetrator as well as his or her role in the alleged crime. The challenges ( both of content and application) raised by the ‘interests of justice’ provisions have been characteristically highlighted in a policy paper on the matter issued in 2007 (hereafter, ‘the policy paper’) by the Office of the Prosecutor (OTP):

1 Joshua L. Cherniss, 'The Sense of Reality': Berlin on Political Judgment, Political Ethics, and Leadership in Cherniss &Smith (eds.,)The Cambridge Companion to Isaiah Berlin ( Cambridge University Press, 2018) 2 Rachana Kamtekar, ‘Ancient Virtue Ethics’: An overview with an Emphasis on Practical Wisdom’, in Daniel C. Rus- sell (ed.), The Cambridge Companion to Virtue Ethics (Cambridge University Press, 2013) 29, at 34-35, citing Nichomachean Ethics. 3 Rosalind Hursthouse, ‘Practical Wisdom: A Mundane Account’, (2006) 106 Proceedings of the Aristotelian Society 1; Dan- iel Russell, Practical Intelligence and the Virtues (Oxford University Press, 2009), and Bronwyn Finnigan, ‘Phronesis in Ar- istotle: Reconciling Deliberation with Spontaneity’, (2015) 91 Philosophy and Phenomenological Research 674.

The issue of the interests of the justice, as it appears in article 53 of the Rome Statute, represents one of the most contentious and complex aspects of the Treaty. It is the point where many of the philosophical and operational challenges in the pursuit of international criminal justice coincide (albeit implicitly) but there is no clear guid- ance on what the content of the idea is.4

2. Phronetic Judgment and the sense of reality The virtue of phronesis has been developed in book VI of Aristotle’s Nichomachean Ethics, where he analyses the intellectual virtues.5 The Aristotelian theory of phronesis does not condone the "middle way" but requires choices and judgment in hard cases of indeterminacy and discretion.6 My own proposition of phronesis, as I have developed elsewhere, is very much based on the notion of common sense7, and in particular of a dialectic format based on the interpretation Outi Korhonen has described.8 Phronesis is the next step of intellectual wisdom, that assesses the entirety of the context and moves from the general to the particular and backwards, and in that sense phronesis is ‘dialogic’ whereas tekhne is 'dogmatic knowledge'.9 Phronesis understood this way, provides simultanuously the means for deliberation and liberation while strengthening the capacity of the decision-maker to assess the particularities of a situation, before making a choice.10 The essense of phronesis also rests with the lack of predetermined criteria that can secure a phronetic judgment.11 Instead, when we exercise phronesis, ' a family of skills',12 the conflict between the particular and the global reaches its maximum and the 'mean' becomes the key element of phronesis.13

3. The cathartic effect of phronetic judgment for international criminal justice

I will argue that a combination of phronetic and imaginary judgment can operate in a cathartic way for the project of international criminal justice. The interests of justice provision in article 53 (1) © of the Rome Statute facilitates the exercise of discretion via the lenses of phronesis or else common sense. Mainly though the interests of justice provision is a tool for an aistheticaly tempered sense of justice or else for a fine sense of fairness. This kind of justice is neither of utopian purity (dogmatic legalism) nor of light heart realism. Certainly, it is no less thought provoking. Understood this way the

4 ICC Office of the Prosecutor (OTP), Policy Paper on the Interests of Justice, September 2007, available online at http://www.legal-tools.org/doc/bb02e5/ (last visited 4 July 2017) (‘Policy Paper on Interests of Justice’), at 2. 5 See Aristotle, Nicomachean Ethics ( 1976, Thomson trans.) See also Aristotle, The Eudemian Ethics (2011, Kenny trans.); D. Russell, ‘Phronesis and the Virtues’, in Ronald Polansky (ed.), The Cambridge Companion to Aristotle’s Nicomachean Ethics (Cambridge University Press, 2014) 203; and Jamie Gaskarth, ‘The Virtues of International Society’, (2012) 18 European Journal of International Relations, 431. 6 R. Kamtekar, ‘Ancient Virtue Ethics’: An overview with an Emphasis on Practical Wisdom’, in Daniel C. Russell (ed.), The Cambridge Companion to Virtue Ethics (Cambridge University Press, 2013) 29, at 34-35, citing Nichomachean Ethics. 7 For Arendt also the exercise of judging was developed around the notion of common sense, see Jonathan P. Schwartz, Arendt’s Judgment (Philadelphia PA: University of Pennsylvania Press, 2016) 151. 8 See the seminal work of Outi Korhonen, ‘New International Law: Silence, Defense or Deliverance?’, (1996) 7 European Journal of International Law 1, on situationality. 9 Id. 10 Rosalind Hursthouse, ‘Practical Wisdom: A Mundane Account’, (2006) 106 Proceedings of the Aristotelian Society 1; D. Russell, Practical Intelligence and the Virtues (Oxford University Press,2009), and B Finnigan, ‘Phronesis in Aristotle: Rec- onciling Deliberation with Spontaneity’, 91 Philosophy and Phenomenological Research (2015) 674. 11 As Macintyre argues ‘the exercise of such judgment is not a routinizable application of rules' (After Virtue, at 176) whereas later he attributes the lack of criteria to the interrelationship of virtues (After Virtue, at 182). 12 Russell, ‘Phronesis and the Virtues’, at 206. 13 MacIntyre, After Virtue, supra note 28 at 180-181.

57 interests of justice reflects the epitomy of this aistheticaly calibrated sense of justice, the one of fairness and decency, the way Tom Franck described it many years ago when he wrote that “[l]aw…does not thrive when its implementation produces reductio as absurdum: when it grossly offends most persons common moral sense of what is right.”14

Conclusion

The area of international criminal justice has produced a remarkably fine scholarship that focuses on its survival or rescue. Yet, what it of immense interest, is that the majority of those suggestions operate in an abstract level. ‘The “Court” should behave differently’ or ‘States should adopt particular policies’. Contrary to that, the current contribution, adopts a human agency approach and focuses on the importance of phronetic judgment by relevant actors in international legal praxis.15

This is not a blueprint exercise. Still it becomes more and more obvious that different actors can change dramatically the way legal projects are tested in practice. A phronetic judicial actor may decide to abstain from a particular intervention, while assessing the general and the particular. In this sense the proposition for phronetic judgment can be translated into an aesthiticaly cathartic sensibility of deliberation and adaptability, that entails both order and change, decency and humanity and thus it may preserve the lost innocence of international law in an era of cynicism and excess.

14 THOMAS M. FRANCK, RECOURSE TO FORCE 178 (2002). 15 Friedrich Kratochwil, Praxis: On Acting and Knowing (Cambridge University Press, 2018).

International criminal justice: TWAIL and the Rome Statute complementarity principle

Muyiwa Adigun

Abstract

Some critics contend that the International Criminal Court (ICC) is selective in its approach to international criminal justice. At present, there are 14 situations that are being investigated, namely Democratic Republic of the Congo, Uganda, Darfur (in Sudan), Central African Republic, Kenya, Libya, Cote d’Ivoire, Mali, Central African Republic II, Georgia, Burundi, State of Palestine, Bangladesh/Myanmar and Afghanistan. These situations have yielded 30 cases. All these situations are in the Third World. Thus, the critics called for withdrawal from the Rome Statute. To the extent that the call constitutes a protest against unequal treatment of the Third World, it is reflective of the Third World Approaches to International Law (TWAIL). But, the Rome Statute establishes the International Criminal Court (ICC) as a court of last resort and not one of first instance. Therefore, this study examines TWAIL and the Rome Statute complementarity principle within the context of international criminal justice.

TWAIL started in 1996 by a group of Harvard Law School graduate students. Their primary concern was international economic law and the issue of global wealth and poverty. TWAIL is a movement, a theory and a methodology. As a movement, it is intellectual, political and ideological. While it is historically located, it is not bounded geographically. It qualifies as a theory to the extent that it explains international system and its institutions and makes prediction about the future in respect of these institutions and what might become of the Third World operating within it. However, it does not imply that all members of TWAIL as a theoretical school must agree completely on all issues. It suffices once there is a central idea that runs through their works. Some of the theories of TWAIL are on contemporary empire, the origins of international law, international environmental justice, culture and gender, human rights, bio-piracy and third world resistance. As a methodology, TWAIL is not so much a science of method but a method in analyzing international law. In this respect, it has woven the Third World into international law in terms of its history and analysis and challenges the dominant narratives. In TWAIL, international law is considered to serve the interest of the West. It is not just, neither is it fair nor equitable. It subordinates the interest of the Third World and fosters its exploitation by the West. International law is an instrument used by Europeans to advance its imperial agenda over non-Europeans. Therefore, TWAIL maintains a dialectic opposition to international law. In this respect, TWAIL is counter- hegemonic in rejecting European and Western dominance. It is suspicious of universal creeds in international norms and practices because they are essentially of Western origin. It is favourably disposed to coalition as it seeks alliances with such other movements as critical race theory (CRT) and new approaches to international law (NAIL). Because TWAIL responds to European domination, it is reactive. But, at the same time, it is proactive. It is proactive because it intends to bring changes in the internal

59 conditions of the Third World. TWAIL is motivated by three objectives. These objectives are linked with one another. The first objective is to understand international law and then break it into pieces to expose the supremacist agenda in its norms and institutions. The second is to build international law and present alternative norms and institutions. The third is to bring to an end the condition of underdevelopment in the Third World through scholarship, policy and politics.

The idea of complementarity started from Chinese philosophy about 2500 years ago. It was believed that opposite concepts form a complementarity relationship. These opposite concepts are called yin and yang. They can be likened to the union of male and female elements or the masculine and the feminine forces. Without these union, life cannot exist. Thus, without the systole and the diastole of the heartbeat, without inhal- ing and exhaling, there is no life. In the same vein, without the negative and the positive poles, there is no electric current. The opposite concepts are meant to complement each other. One is meant to complete the other to achieve perfection. Where one is lacking, the other is to supply or fill the gap. In the field of science, the idea of complementarity is applied to physics, psychology, biology and economics. In psychology, such concepts as logic and sentiment are found in all humans as complementary opposites. In philosophy of science, Niels Bohr was the first to apply the idea of complementarity to physics. Confronted with a situation where light was behaving as a wave and a particle in a mutually exclusive way, he contended that its diametrically opposed behaviour complement each other. In international criminal law, the idea of complementarity found expression for the first time in the trial of Peter von Hagenbach in 1474 (Bresaich Trial). Peter von Hagenbach was tried by an ad hoc tribunal composed of 28 judges from the Allies consisting of France, Austria and the neighbouring towns. He would have been tried by a local court, however, they were considered incapable of delivering justice. In essence, the principle of complementarity in international criminal law suggests the existence of two tribunals where one is domestic and the other international. Each is required to complement the other. Some of the deficiencies that can be found in a domestic tribunal includes provisions on immunity, amnesty, pardon, parole, inadequate witness protection mechanisms, lack of independence of the prosecuting authority and lack of independence of the judiciary. All these make prosecution almost always impossible. On the part of an international tribunal, it depends on the cooperation of states for its effectiveness, and is limited in financial and material means. The ICC is founded on the principle of complementarity. Thus, it is a court of last resort and not of first instance, and that state parties to the Rome Statute are required to prosecute unless they are unwilling or unable. This is embodied in articles 1 and 17 of the Rome Statute. Article 1 of the Rome Statute provides that the ICC shall be complementary to national criminal jurisdictions. Article 17 requires State Parties to the Statute to investigate and prosecute international crimes over which they have jurisdiction and that it is when they are ‘unwilling’ or ‘unable’ that the ICC will intervene and take over from them. Although article 17 is not couched in a positive obligatory term but only considers crimes recognised under the Rome Statute as being suitable for investigation and prosecution domestically, nonetheless it emphasises ‘policy prescriptions in favour of national action’ by State Parties. The fundamental tenet of the ICC is that it operates on a principle of complementarity. Hence, the ICC shall not supersede domestic criminal courts, but rather complement them in cases where there is a conspicuous unwillingness or inability

60 to investigate and prosecute. That means that the autonomy, as well as legislative/prescriptive and judicial sovereignties of states are not impugned or compromised but rather reinforced by this international court-making it not a court of first instance that seeks to close any potential gaps in order to quell the possibility of impunity for serious crimes in international law.

Having examined TWAIL and the Rome Statute complementarity principle within the context of international criminal justice, It is found that selectivity cannot be unequiv- ocally established. While there is no doubt that African leaders, nay leaders from the Third World, have been much more subjected to the criminal justice process under the Rome Statute, it is equally not in doubt that international crimes committed in Sub- Saharan Africa, a Third World, are one of the most serious and that the domestic legal system of these countries are pathetically weak. It can also not be denied that the situations in Uganda, Central African Republic, Cote d’Ivoire and Mali were referred to the ICC by the states concerned. The situations in Darfur and Libya were referred to the ICC by the Security Council. Africans who are being prosecuted have committed international crimes against Africans and not against citizens of any of the Western powers, and these victims want justice done to them irrespective of the platform-domestic or international. However, if one considers the eagerness with which the ICC took the Kenyan case at the time, the ICC appears not have appreciated the purport of the principle of complementarity. In fact, self-referral does not automatically imply that the ICC must intervene because financial burden has automatically been shifted. Similarly, the overly dismissive attitude of the Security Council when the African Union (AU) requested for deferment for a year in respect of Sudan situation, does not reflect evenness. In addition, the delay for 3 years with respect to Palestinian declaration by the ICC could hardly be interpreted in any other way than bias. With respect to this hazy situation, the inference that can be drawn is that while the ICC is not targeting the Third World, it appears that the Third World is being used as guinea pig.

It is therefore argued that using the Third World as guinea pig is hegemonic and reflects Western imperial agenda. This is contrary to the demands of TWAIL for equal treatment. This argument is in tandem with the first objective of TWAIL in exposing the supremacist agenda of the West. In this respect, TWAIL is reactive. Since TWAIL is also proactive as it intends to bring changes in the internal conditions of the Third World, it is argued that the Third World countries can prosecute for one another through direct transfer of criminal jurisdiction. There are several treaties in which one state transfers its criminal jurisdiction to another. Whenever the ICC wants to intervene in respect of any international crime that the state party concerned is required to prosecute, the state party will indicate that another state to which it has transferred its jurisdiction is acting as its agent and that it is the one doing the prosecution as the principal. This argument is in tandem with the third objective of TWAIL which is to bring to an end the condition of underdevelopment through scholarship, policy and politics. The condition of underdevelopment here is impunity while the transfer of criminal jurisdiction is a matter of policy and politics. With this, the Third World can operate within international criminal justice system without being at its receiving end.

Examining Universal Jurisdiction as a Counter-hegemonic Tool under International Law

Amina Adanan

Extended abstract

The topic of this paper is the principle of universal jurisdiction under international law. Universal jurisdiction or the universality principle allows any State to prosecute the alleged perpetrator of a grave human rights abuse, irrespective of the nationality of the accused or victim, where the crime was committed abroad.1 The jurisdiction applies to a limited number of offences that come under the wider heading of ‘atrocity crimes’ or international crimes. The legal basis for the principle emanates from conventional international law and customary international law. States parties to the Four Geneva Con- ventions of 1949 and Additional Protocol I,2 the Apartheid Convention,3 the United Nations Convention Against Torture,4 the UN Convention on Enforced Disappear- ance,5 have an obligation to exercise universal jurisdiction over grave breaches of the Geneva Conventions, apartheid, torture and enforced disappearance, respectively. Ad- ditionally, a number of States exercise universal jurisdiction over genocide, crimes against humanity and war crimes committed in non-international armed conflict,6 which is not codified in an international treaty. When States exercise universal jurisdiction outside of an international treaty-based obligation, they are, in effect, acting under the ‘Lo- tus principle’ in international law,7 which permits States to exercise extra-territorial jurisdiction to the extent that they do not breach a rule of international law.

On the one hand, the principle of universal jurisdiction plays an important role in post-conflict justice. Notwithstanding the significance of international penal tribunals, the primary responsibility for the prosecution of atrocity crimes rests with States.8

1 Luc Reydams, Universal Jurisdiction: International and Municipal Perspectives (OUP, 2002). 2 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31, Art 49; Geneva Convention for the Ame- lioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85, Art 50; Geneva Convention relative to the Treatment of Pris- oners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135, Art 129; Geneva Convention relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287, Art 146; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I), Art 85 3 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 (Apartheid Convention), Art 5. 4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1987, entered into force 26 June 1987) 1465 UNTS 85 (UNCAT), Arts 5(2), 7. 5 International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entry into force 23 December 2010) 2716 UNTS 3 (Convention on Enforced Disappearance), Arts 5, 9(2), 11(1). 6 For example, see Public Prosecutor v Jorgić, Oberstes Landesgericht Dusseldorf,̈ 26 September 1997 (Appeal judgment); Bundesgerichtshof (Federal Supreme Court), 30 April 1999; Prosecutor's Office of Salzburg v. Duško Cvjetković, Supreme Court of Austria, 15Os99/94; National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another [2014] ZACC 30, Constitutional Court of South Africa, 30 October 2014; Public Prosecutor v Higaniro et al, Assize Court of Brussels, 8 June 2001. 7 Judgment, Lotus Case (France v Turkey), PCIJ Rep Series A No 10, 7 September 1927. 8 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute), preamble, para 6.

Indeed, this is the basis under which the world’s first permanent international criminal tribunal, the International Criminal Court (ICC), operates. Under the principle of complementarity, the Court will only intervene in situations where a State with jurisdiction over the offence is unwilling or unable to carry out the investigation and prosecution.9 Within this framework, universal jurisdiction allows for the prosecution of international crimes where a State with a closer nexus to the crime is unable or unwilling to do so. Ordinarily, the State of nationality of the accused or the State in which the offence occurred will conduct the criminal proceedings.10 In particular, universal jurisdiction enables States with no nexus to the extraterritorial crime to conduct a trial when faced with the presence of persons accused of atrocity crimes in their territory. Recently, scholars and NGOS have recorded the resurgence in cases prosecuted under the principle of universal jurisdiction.11 In particular, the attempts of European States, such as Germany and Sweden, to prosecute individuals for international crimes committed in Syria has received much media attention. These cases demonstrate the important role played by the principle as a judicial tool to secure accountability for the atrocities committed in armed conflicts, over which the UN Security Council is unable to take punitive action.

On the other hand, it is clear that the functioning of the principle aligns with the interests of strategically powerful States. The modern practice of universality shows that, more often than not, the principle is used to try low-rank officials from particular States.12 High-level officials from the Global North remain immune under the principle.13 An analysis of universal jurisdiction state practice shows that most cases prosecute ‘low cost’ defendants, rather than those most responsible for international crimes, such as senior officials.14 It is also clear that it is mostly Western States utilising the principle against nationals of the Global South.15 In addition, notwithstanding the wide scope of the principle (in theory), States are increasingly placing caveats on the functioning of the jurisdiction in their national law, by necessitating a link between the crime abroad and the State prosecuting the offence.16 This nexus is required through the nationality or residency of the alleged perpetrator(s) and / or victim(s). For example, in the UK, the jurisdiction can only be used to prosecute foreigners suspected of committing genocide, crimes against humanity and war crimes in a non-international armed conflict where the accused is also resident in the UK, either before or after commission of the crime.17 In Belgium, the law providing for universal jurisdiction was abolished in 2003

9 Ibid, preamble, para 10 and Art. 17. 10 Where the former situation occurs, this is known as the nationality principle or active personality principle, and the latter situation is known as the territorial principle. 11 See for example Máximo Langer and Mackenzie Eason, ‘The Quiet Expansion of Universal Jurisdiction’ (2019) 30 (3) European Journal of International Law, 779-817 and TRIAL and others, Universal Jurisdiction Annual Review 2021, https://reliefweb.int/sites/reliefweb.int/files/resources/Trial%20International_UJAR_DIGITAL.pdf, accessed 22 May 2021. 12 See for example, ibid. 13 Attempts to prosecute senior Western officials in Belgium and in the UK led to legislative changes in these countries, which narrowed the scope of the principle in these countries. See Máximo Langer, ‘The Diplomacy of Universal Juris- diction: The Political Branches and the Trasnational prosecution of International Crimes’ (2011) 105 American Journal of International Law 1; Steven R Ratner, ‘Belgium’s War Crime Statute: A Postmortem’ (2003) 97 American Journal of Interna- tional Law 888. 14 Langer and Eason (n 11). 15 Ibid. 16 See for example, see the legislative changes in Belgium, Spain and the UK, Langer (n 13); Ratner (n 13). 17 International Criminal Court Act 2001, s. 68. This requirement does not apply to persons who are accused of committing grave breaches of the Geneva Conventions or torture, see Geneva Conventions Act 1957, s. 1 and Criminal Justice Act 1988, s. 134, respectively.

63 and replaced with the nationality and passive personality principle.18

Antony Anghie and BS Chimni argue that individual criminal responsibility for crimes against humanity committed in a non-international armed conflict developed as a principle of international law when the State violence perpetrated by colonial powers had come to an end.19 This theme underlies this paper, as the history of universal jurisdiction mirrors this proposition, because the principle did not apply to atrocity crimes committed in a non-international armed conflict until colonial violence had come to and end. Here, my argument is that the creation of universal jurisdiction and the development of the principle can be explained by the relationship between the Global North and the Global South, historically and in the present. It is well established in TWAIL scholarship that the seminal principles of international law, such as sovereignty and equality of States, are a product of Eurocentric dominance of international law, and that the Global South played a central role in the formation of these principles.20 I argue that relations between the Western world and the Global South have also shaped the development of the principle of universal jurisdiction, as its history and recent State practice demonstrates. Using critical international law perspectives, this paper deconstructs the principle of universal jurisdiction, its past and present. It argues that the judicial tool has always been used a tool of powerful hegemonic States to further their interests.

The work begins by examining the origins of the application of universal jurisdiction to international piracy and analyses the positioning of pirates as outsiders. It illustrates that the origin of the concept stems from the treatment of pirates in ancient Rome, who were excluded from the application of Roman laws due to their ‘enemy’ status, and thus they could be killed. This legal positioning of the pirate was adopted in the writings of scholars such as Alberico Gentili and Hugo Grotius, who advanced the discourse by declaring pirates and brigands to be enemies of international society. This legal concept was later adopted by Chief Justis Coke in King v Marsh, when he famously labelled pirates as hostis humanis generis,21 which was applied in subsequent case law.22 The act of piracy was deemed to be so ‘heinous’ that it affected the whole of international society, which warranted the application of universal jurisdiction to the crime. The perpetrator was stripped of his/ her nationality. Thus, any State can try the individual in their national courts. Key to the principle is the classification of the perpetrator as an outsider or hostis humanis generis. In effect, the principle meant that the warships of any State could exercise the right or visit, search, and seizure over a suspect piratical vessel on the high seas.23 At the same time that universal jurisdiction was being applied to pirates on the high seas, States were actively employing persons to conduct the same

18 Ratner (n 13). 19 Antony Anghie and B. S. Chimni, ‘Third World Approaches to International Law and Individual Criminal Responsi- bility in Internal Conflict’, (2004) 36 Transnational Legal Policy 185. 20 Siba N'Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans: Race and Self-Determination in International Law (Uni- versity of Minnesota Press 1996); Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in nineteenth Century International Law’ (1999) 40 Harvard International Law Journal 1; Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2004). 21 King v Marsh (n 8), p. 30. 22 See for example Dawson’s Trial (1696) 13 How St Tr 451. 23 Here, the warship of any State could embark on a vessel suspected of being involved in piracy and inspect its registration papers. If the suspicion proved to be well-founded, then the vessel was seized and the pirates were brought to the nearest court of the searching State for trial. The penalty for piracy was death.

64 acts as piracy, under what was known as privateering.24 The aim of privateering was to disrupt the trading vessels of other States with whom the privateering State was at war.

Of course, in reality, pirates interfered with international commerce, and thus they were a threat to all trading nations. Moreover, at the time that the principle developed, pirates were well-organised communities operating from the Mediterranean area, situated in North Africa.25 Thus, viewing the creation of the rule critically, through the lens of post-colonial scholarship, on ‘civilised States’ and those communities that were excluded from statehood, will be important here. Key to the developing principle of sovereignty was that only European States that had reached the criteria of ‘State’ were members of international society, from which the nations of the Global South were excluded. Adopting a critical approach, the research identifies the genesis of the principle being based on the narrative of ‘allies v enemies’, where hegemonic States utilised the principle to judicially punish those who were deemed to ‘enemies’. This theme continues throughout the work. The work also demonstrates that the pirate’s status as a non-State actor was integral to the development of the jurisdictional principle, as illustrated by failed attempts in the early 20th century to apply the principle to State-subma- rine warfare.26

In the next section, the development of universal jurisdiction over slavery on the high seas is explored. This section is divided into two sub-sections on the basis of a time line. Part one focuses on the attempts to have universality apply to the slave trade at sea during the 19th century. This part analyses the concerted efforts of Britain to advocate for the application of the right of visit, search and seizure to the slave trade at sea, which was of limited success due to the scepticism of other States. As such, universal jurisdiction only applied to the slave trade as sea during war, principally during the Napoleonic Wars. Using a comparative approach, it compares the similarities between the act of piracy on the high seas and the slave trade on the high seas, and questions the durability of the ‘heinousness’ act narrative, which warranted universal jurisdiction as a judicial response. A key theme introduced in this section is the difference between piracy and slavery committed on the high seas in terms of the nexus of the perpetrator to a State entity.

There is a notable difference between Western State support for the application of universal jurisdiction to international piracy, which was widely adopted by States, and the application of the principle to the slave trade at sea, which was not fully supported by Western States during the 19th century. Anthony Anghie’s ‘dynamic of difference’ explains the difference between the treatment between these crimes. Firstly, the pirate was not affiliated with a State (unlike the privateer, who was affiliated to a State), notwithstanding that pirates were sometimes organised units, they were not afforded statehood by the European powers. In contrast, States themselves permitted their subjects to engage in the slave trade, by issuing vessels registration permits. Thus, slave traders, unlike pirates, were linked to a State. Second, a further reason for the difference

24 Alfred P Rubin, The Law of Piracy (2nd ed, Transnational Publishers 1998). 25 Mark Chadwick, Piracy and the Origins of Universal Jurisdiction (BRILL, 2019). 26 Ronald F Roxburgh, ‘Submarines at the Washington Conference’ 3 British Yearbook of International Law (1922-1923) 150.

65 between the two offences lies in the categorisation of the victims of each crime. Piracy was carried out indiscriminately against the nationals of any State. In other words, States were the victims of piracy, as the crime impeded international commerce and threatened their nationals. On the other hand, the Atlantic Slave Trade was carried out against a specific group of persons, whose countries were not classified as full members of international society during the nineteenth century. As BS Chimni notes, ‘The alienation of international law from the peoples of the third world was epitomised in the civilisation/barbarian divide that made them and their territory into objects of international law’.27

The second part of this section examines the application of universality to the act of slavery on the high seas during the 20th century. It builds on part one of the section and analyses the continued reluctance of States to allow the application of universal jurisdiction to slavery on the high seas. This position is primarily illustrated in the negotiating history of the 1926 Slavery Convention and the 1956 Supplementary Slavery Convention, where a provision providing for the application of universal jurisdiction to slavery at sea was purposefully excluded on a number of grounds.28 This section highlights that the nexus between universal jurisdiction and international armed conflict, and notes that the only time that the slave trade (as a separate and distinct act) was subject to universal jurisdiction was during international armed conflict in the early 19th century. This introduces the reader to a theme that continues throughout the work, which is the nexus of universal jurisdiction to acts committed during an international armed conflict in order to prevent the application of the rule to slavery during peacetime. This positioning of the principle of universal jurisdiction does not end until the period of colonisation comes to an end. Thus, heinous acts committed against persons in the colonies were exempt from the principle.

The first examples of universal jurisdiction being exercised over international crimes in the modern sense can be found in the prosecutions of minor enemy nationals for offences committed during the Second World War, under the United Nations War Commission (UNWCC), which operated from 1943-48.29 The preparatory work of the Commission, illustrates that the members classified war criminals as ‘enemies of mankind’.30 This labelling was important because for first time since the Napoleonic Wars universal jurisdiction was exercised against persons operating with State authority. This shift had the effect of including State action within the enforcement jurisdiction of foreign courts. This section illustrates a continuation of the ‘allies v enemies’ narrative, as evident throughout the UNWCC, as the Allies’ enemies were subjected to the principle, while their own nationals remained immune under the principle of universal jurisdiction.31 In addition, this section argues that the operation of the principle within the

27 B. S. Chimni, ‘The Past, Present and Future of International Law: A Critical Third World Approach’ (2007) 8 (2) Melbourne Journal of International Law 499-515, p. 501. 28 In the 1926 Slavery Convention and the Supplementary Slavery Convention 1956 provide for a right of visit and search in respect of vessels suspected of being engaged in slavery on the seas, but the treaties are silent as to prosecution of the act, see Jean Allain, The Slavery Conventions: The Trauvaux Préparatoires of the 1926 League of Nations Convention and the 1956 United Nations Convention (Martinus Nijhoff 2008). 29 This was a commission of 16 Allied States that oversaw the over 2000 trials after WWII. These trials took place in the military courts and military commissions of the 16 Allied member States. 30 History of the United National War Crimes Commission (UNWCC, H M Stationary Office, 1949). 31 Some of the member States of the UNWCC, such as Belgium, did prosecute their own nationals under the nationality and territorial principles.

UNWCC trials was the first time (a part from the limited examples in respect of the slave trade as sea) where universal jurisdiction was used to prosecute persons linked to a State entity. The section demonstrates that it was the international armed conflict, which authorised this action by the Allies, and that there were questionable reasons for this position.

Here, this work critically analyses the restrictive scope of the exercise of universal jurisdiction under the UNWCC using a post-colonial theory and aims to argue that limiting the principle to crimes committed in an international armed conflict prevented the application of the principle to the colonial violence that was being inflicted on independence movements in the colonies after the war.32 In establishing the post- WW II justice regime, the Allies were cognisant that they were creating rules to which they would also be subjected. As US Chief Prosecutor at the IMT in Nuremberg, Robert Jackson, famously declared, ‘[w]e must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow’.33 It was the international armed conflict that ‘internationalised’ post-conflict justice and provided the gateway through which the Allies could enforce the universality principle. Notably, the violence inflicted against colonial peoples by Britain and France continued after the first prosecutions of systematic human rights abuse at the IMT and the UN- WCC.34 Using the universality principle within this limited remit prevented the ‘interna- tionalisation’ of armed conflicts in the colonies and precluded other States from prosecuting the mass human rights abuse committed there. Moreover, the legal regime imposed in the colonies made it impossible for human rights abuses to be prosecuted in the colonies themselves.35

Building on the assertion of Anghie and Chimni in relation to the development of individual criminal responsibility in the post-colonial period, the penultimate section explores the development of the principle of universal jurisdiction in the second half of the twentieth century. Here, it is asserted that Western States did not support universal in an international treaty without a nexus to international armed conflict until the period of colonial violence had come to an end. Limiting the exercise of universal jurisdiction to situations of international armed conflict removed colonial violence from the remit of international law. As Chimni notes, ‘Death, destruction, pillage, plunder and humiliation are the key words that best capture the relationship between third world peoples and international law’ during the colonial period’.36 This position of Western States is clear from the debates over the inclusion or exclusion of universal jurisdiction in the Genocide Convention, the Four Geneva Conventions of 1949, the Apartheid Convention 1973, Additional Protocol I to the Geneva Conventions 1977, UNCAT 1984 and the Convention on Enforced Disappearance 2006. Indeed, the negotiation of the Rome Statute and the discussions as to whether the ICC should operate on the basis of universal jurisdiction, illustrate this line of argument. Of course, by this time, the

32 See for example, Fabian Klose, Human Rights in the Shadow of Colonial Violence: The Was of Independence in Kenya and Algeria (University of Pennsylvania Press, 2013). 33 Opening statement by Robert H. Jackson, Chief of Counsel for the United States, to the IMT, 21 November 1945. 34 For example, see Klose, ibid., and Aoife Duffy, ‘Legacies of British Colonial Violence: Viewing Kenyan Detention Camps through the Hanslope Disclosure’ (2015) 33 Law and History Review 489. 35 See for example, Klose, ibid. 36 Chimni (n 27), p. 501.

State-inflicted violence in the colonies had come to an end. What is more, the Rome Statute cannot be applied retrospectively to crimes that occurred prior to its creation.37 This position ultimately protects the former colonial powers, such as the UK and France, from potential liability under the Rome Statute.

This work concludes by briefly analysing the recent State practice of universal jurisdiction. It notes the recent limitations to the principle that can be seen in countries like Belgium, Spain and the UK, have led to the principle being used only in support of the prosecuting State’s foreign policy aims. This in turn, has meant that low-level officials from the Global South are the suspects to whom the principle applies. High- ranking officials, those who are most responsible for these acts remain immune. As Chimni notes, ‘for Western states, ‘universality’ is a device that is adopted or rejected in relation to the demands of dominance’.38 This ultimately questions the ‘universality’ rationale that is asserted. Today, the label and jurisdiction is reserved for Rwandan géno- cidaires, and Serbian and Syrian war criminals.39 Indeed, in the European Union’s Gen- ocide Network’s database on international crimes, the most common nationalities are Rwandan and Syrian nationals, followed by Afghans and nationals from Central African Republic. Notably, nationals from the Global North remain immune under the principle. In reality, universal jurisdiction is a legal tool perpetrates the civilised/ uncivilised narrative that runs through international law from its inception through to today. Thus, this work aims to demonstrate the central role played by the Global South in establishing the principle of universal jurisdiction under international law.

37 Rome Statute, Art. 24. 38 Chimni (n 27), pp. 501-502. 39 Langer and Eason conducted quantitative data on universal jurisdictions cases since the 1960s and note that the most common nationalities prosecuted under the principle are German former Nazis, Serbians and Rwandans (n 11).

The ICL is Dead! Long Live ICL! The Counter-Hegemonic Turn to “Entrepre- neurial Justice” in International Criminal Investigations and Prosecutions

Karolina Aksamitowska

Abstract

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 contemporary conflicts in Syria and Eastern Ukraine might suggest an imminent decline of international criminal justice, this paper suggests a contrary view. The wide ratification of the Rome Statute together with the implementation of core crimes definitions – as well as the establishment of war crimes prosecution units pursuant to legislation at times allowing for universal jurisdiction (UJ) – is among the greatest achievements of the system of complementarity. The cognizance by the local populations that the UN-affiliated judicial institutions cannot intervene in conflicts such as Syria or Eastern Ukraine, had an impact on the proliferation of grassroots documentation and evidence collection initiatives. In this context, the Commission for International Justice and Accountability (CIJA) and the Coalition “Justice for Peace in Donbas” serve as examples of non-governmental organisations continuing to provide valuable assistance to prosecution authorities in Germany, the Netherlands, and Ukraine respectively. This paper re-interprets Máximo Langer’s theory on UJ, adopts a TWAIL framework and methodologically relies on the idea of “Entrepreneurial Justice” in private criminal investigations in arguing that the inaction of the UNSC, largely as an attempt to exercise hegemonic power by the UNSC Permanent Members, has paved the way for new bottom-up accountability initiatives. This has paradoxically led to counter-hegemonic “justice ownership”1 perception in communities of Syria, Ukraine and beyond. Keywords: international criminal investigations – Syria – Ukraine – Commission for International Justice and Accountability – private criminal investigations – civil society – Entrepreneurial Justice – human rights documentation – Universal Jurisdiction – war crimes units – non-governmental organisations

I. Introduction

1 See, Cheah Wui Ling, 'Forgiveness and Punishment in Post-Conflict Timor' (2005) 10 UCLA J Int'l L & Foreign Aff 297; Monica Aciru, 'Rethinking Post-Truth Commissions: Empowering Local Capacities to Shape the Post-Truth Commission Discourse' (2017) 11 Hum Rts & Int'l Legal Discourse 71; Dustin N Sharp, 'Interrogating the Peripheries: The Preoccupations of Fourth Generation Transitional Justice' (2013) 26 Harv Hum Rts J 149; Kieran McEvoy, 'Beyond Legalism: Towards a Thicker Understanding of Transitional Jus- tice' (2007) 34 JL & Soc'y 411; Yasmin Sooka, 'Dealing with the Past and Transitional Jus- tice: Building Peace through Accountability' (2006) 88 Int'l Rev Red Cross 311; Anne Menzel, 'The pressures of getting it right: Expertise and victims’ voices in the work of the Sierra Leone Truth and Reconciliation Commission (TRC)' (2020) International Journal of Transitional Justice, 2020, 14, 300–319.

In his historic op-ed for the New York Times,2 Vladimir V. Putin expressed a “plea for caution” to the American people in relation to the escalating situation in Syria at the end of 2013. In his op-ed, the Russian President emphasised the crucial role of the United Nations Security Council (UNSC) in preventing World War II scale of atrocities from ever happening again. He criticised the practice of bypassing the Security Council 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”. “Ours” meaning powerful states with strong economies and large military spending. The same states, in their role as Permanent Members of the UN Security Council, may decide on whether allegations of violations of core international crimes may be investigated and prosecuted, either through UNSC resolutions establishing international criminal tribunals, or through a referral to the International Criminal Court. However, the developments in recent years have illustrated that this model of accountability for core international crimes is no longer viable. Instead, new grassroots accountability initiatives have taken the space of declining UN-affiliated institutions. This paper discusses a number of civil society initiatives aimed at bringing perpetrators of core international crimes to justice in European courts – the Commission for International Justice and Accountability (CIJA) and the Coalition “Justice for Peace in Donbas” which serve as examples of non-governmental organisations continuing to provide valuable assistance to prosecution authorities in Germany, the Netherlands, and Ukraine respectively. 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 ICTR. Both the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribu- nal for Rwanda (ICTR) relied heavily on materials obtained by civil society organisations. The author argues that:

‘considering the current political landscape of anti-multilateralism and the po- litically impotent UNSC, it was long overdue that the international community

2 Putin V (2013) A Plea for Caution from Russia. New York Times https://www.ny- times.com/2013/09/12/opinion/putin-plea-for-caution-from-russia-on-syria.html. Accessed 25 May 2021.

becomes more creative in its fight against impunity. The IIIMs 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’.3

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 United Nations’.4 CIJA, although supported by the UN and EU Member States, operates outside of the UN system. It is suggested that the justice developments that we are witnessing in relation to international crimes committed in Syria and Eastern Ukraine, and the role of civil society at their core, are going beyond the old dichotomy of civil society as ‘subject’ versus ‘object’ narrative, 5 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 the victims of atrocities.

II. The Coalition “Justice for Peace in Donbas” – The Role of the Ukrainian Civil Society in Documentation of Atrocities

As a result of the outbreak of the war in Eastern regions of Luhansk and Donetsk in Ukraine in 2014, a number of non-governmental organisations from the region were forced to relocate to the government-controlled territory or to the capital city of Kyiv. The nature of their work has also changed, from regular community assistance or anti- corruption work in a peaceful country, they have made an informed decision to contribute towards grassroots accountability initiatives and start documenting the atrocities that they had witnessed in Donetsk and Luhansk since the outbreak of the war. The Coalition “Justice for Peace in Donbas” was created as an informal union of 17 human rights organisations. Members of the Coalition have combined efforts to conduct coordinated documenting of core international crimes committed during the armed conflict in Donbas. According to members of the Coalition, bringing perpetrators to justice is a prerequisite for the restoration of peace in Eastern Ukraine. Together they have created databases, which collect information on core international crimes committed during the armed conflict.6 Moreover, the Coalition members have undertaken efforts to improve access to justice for survivors of torture and sexual and gender-

3 Alexander Heinze, ‘Private International Criminal Investigations’ (2019) 2 Zeitschrift für Internationale Strafrechtsdogmatik 169-181, 181. 4 Melinda Rankin, ‘Investigating Crimes against Humanity in Syria and Iraq: The Commis- sion for International Justice and Accountability’ (2017) Global Responsibility to Protect 395-421, 399. 5 Haslam E (2011) Subjects and Objects: International Criminal Law and the Institutionali- zation of Civil Society. International Journal of Transitional Justice 5:221-240. 6 https://jfp.org.ua/coalition/pro-koalitsiiu?locale=en

71 based violence (SGBV) in detention in Eastern Ukraine.7 They provide vital support to victims and witnesses, internally displaced persons (IDPs) and people released in pris- oner 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 and the Ukrainian national authorities in connection with the preparation of joint communications to the International Criminal Court under Article 15 of the Rome Statute.8 The civil society in Ukraine is playing an important role in documentation of violations of international humanitarian law. They conduct open source investigations, interview witnesses and assist victims released from captivity by separatists with their basic needs as well as legal complaints. 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 non-governmental organisations. Furthermore, recent domestic legislative initiatives to implement international humanitarian law and international criminal law into Ukrainian national legislation,9 have the potential of further strengthening the role of the civil society in core international crimes investigations. The fact that it will be possible to prosecute SGBV 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 the charges reflect the full scope of the conduct of the accused, encompassing both general domestic criminal codes, as well as international crimes.10 The fact that the International Criminal Court has not yet initiated full scale investigations into atrocities committed in Eastern Ukraine during the ongoing conflict in Donbas, does not discourage domestic accountability initiatives. Conversely, in the current environment where the International Criminal Court (or the UN Security Coun- cil) cannot yet intervene, the civil society has facilitated and supported domestic investigations and prosecutions. The next section focuses on accountability efforts in relation to the atrocities committed in Syria.

III. The Commission for International Justice and Accountability (CIJA) and their Model of Private Criminal Investigations

7 Eastern-Ukrainian Center for Civil Initiatives, ‘Unspoken Pain. Gender-based Violence in the Conflict Zone of Eastern Ukraine’ (2017) https://jfp.org.ua/system/reports/files/92/en/Unspoken-Pain-web.pdf. 8 Marchuk I and Wanigasuriya A (2021) Venturing East: The Involvement of the Interna- tional Criminal Court in Post-Soviet Countries and its Impact on Domestic Processes. Ford- ham Int'l L.J. 44:735, 764. 9 Parliamentarians for Global Action (PGA), ‘The Parliament of Ukraine Adopts Bill to Im- plement International Criminal and Humanitarian Law’ (20 May 2021) https://www.pgac- tion.org/news/ukraine-adopts-icc.html. 10 See, initiatives by the civil society in Germany to include SGBV as a crime against humanity in indictments: ECCHR, ‘Al-Khatib Trial in Koblenz – Sexual Violence Now In- dicted as Crimes Against Humanity’ (17 March 2021) https://www.ecchr.eu/en/press-release/syrien-prozess-in-koblenz/

The Commission for International Justice and Accountability (CIJA) was created directly in response to the lack of international accountability for crimes committed during the Syrian uprising.11 CIJA’s investigative work in Syria has already led to a number of convictions in European courts. They continues 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 the Islamic State (“IS”) perpetrators having answered over 500 requests for assistance pertaining to 1000 persons of interests in the last five years.12 CIJA’s model relies on training local Syrian and Iraqi human rights activists and investigators to gather evidence, often at significant personal risk, that complies with the highest international criminal investigations’ standards.13 They began conducting investigations into the enslavement of women and children by the IS in late 2015. Evidence gathered by CIJA’s Daesh Crimes Investigation Unit (DCIU, formed with the consent of the Kurdistan Regional Government Council of Ministers) 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 Au- gust 2014 until at least October 2017’.14 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.15 The aim of the local CIJA investigators based on the ground in the conflict- affected areas, is to collect evidence and material that follows a chain of custody, that will be admissible in any future court. Later, a number of CIJA analysts, based in an undisclosed location in Europe, prepare evidence and case briefs, and respond to any requests for assistance from state authorities engaged in prosecutions of core international crimes.16

11 Michelle Burgis-Kasthala, 'Entrepreneurial Justice: Syria, the Commission for Interna- tional Justice and Accountability and the Renewal of International Criminal Justice' (2020) 30(4) European Journal of International Law 1165-1185, 1167. 12 ‘CIJA Testifies in Case of Anwar Raslan’ (19 November 2020) https://cijaonline.org/news/2020/11/19/cija-testifies-in-case-of-anwar-ruslan 13 Melinda Rankin, ‘The Future of International Criminal Evidence in New Wars? The Evo- lution of the Commission for International Justice and Accountability (CIJA)’ (2018) 20(3) Journal of Genocide Research 392-411; Melinda Rankin, ‘The ‘Responsibility to Prosecute’ Core International Crimes? The Case of German Universal Jurisdiction and the Syrian Gov- ernment (2019) 11(4) Global Responsibility to Protect 394-410, 407; Michelle Burgis- Kasthala, ‘Entrepreneurial Justice: Syria, the Commission for International Justice and Ac- countability and the Renewal of International Criminal Justice’ (2020) 30(4) European Journal of International Law 1165; Commission for International Justice and Accountabil- ity (CIJA), Annual Report 2019-2020 https://cijaonline.org/s/CIJA-Annual-Re- port-2019-2020-8w3r.pdf 14 Stephanie Barbour, ‘Supporting Accountability for Sexual Violence in the Syria and Iraq Conflicts Innovations, Good Practices, and Lessons Learned through Private Criminal Investigations’ (2019) 18 Journal of International Criminal Justice 397-423, 406. 15 Ibid. 16 Melinda Rankin, ‘Investigating Crimes against Humanity in Syria and Iraq: The Com- mission for International Justice and Accountability’ (2017) Global Responsibility to Pro- tect 395-421, 401.

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’.17 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. By June 2019, CIJA had responded to a total of 221 requests from domestic authorities in 12 countries and submitted 10 proactive reports’.18 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’.19 This directly corresponds to Russia’s President words from his op-ed in 2013, where he warned against the demolition of the international law system, as we know it. Nevertheless, 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:

“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”.20

However, instead of challenging the UN-affiliated institutions such as the ad hoc tribunals, the IIIM or the ICC, the CIJA staff regard their individual efforts through the ‘CIJA model as a radical, complementary tool in realising anti-impunity through criminal trials’.21 Scholars who have conducted extensive qualitative research pertaining to CIJA, have suggested that its presence within the ICL field is a necessary one and that it has already started to have effects within Syria and beyond.22 Importantly, this has a major impact on the paradigm shift as more countries, originally under strong economic and political influence of several UNSC Members, realise that they do not need to rely on the UNSC and the ICC, but rather that they can collect the evidence or even prosecute core international crimes using all the tools that are at their disposal domestically. 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.

17 Stephanie Barbour, ‘Supporting Accountability for Sexual Violence in the Syria and Iraq Conflicts Innovations, Good Practices, and Lessons Learned through Private Criminal Investigations’ (2019) 18 Journal of International Criminal Justice 397-423, 420. 18 Ibid. 19 Melinda Rankin, ‘Investigating Crimes against Humanity in Syria and Iraq: The Com- mission for International Justice and Accountability’ (2017) Global Responsibility to Pro- tect 395-421, 415. 20 Michelle Burgis-Kasthala, 'Entrepreneurial Justice: Syria, the Commission for Interna- tional Justice and Accountability and the Renewal of International Criminal Justice' (2020) 30(4) European Journal of International Law 1165–1185, 1182. 21 Ibid. 1183. 22 Ibid.

This is potentially a dangerous phenomenon for the UN Security Council Member States that would prefer to block certain international 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, it further undermines the top-down approaches to investigating crimes. Para- doxically, this can have further impact on “justice ownership’ in transitional societies such as Ukraine or, in the future, Belarus. Although CIJA has now transferred vast amounts of its evidence to IIIM, which could suggest the temporary return of the top-down order, it does not change the fact that the domestic courts remain the key accountability avenues as opposed to UNSC-related institutions.

NGOs and Legitimacy of International Criminal Justice in Uganda

Tonny Raymond Kirabira

Abstract In recent years, there have been significant debates about the legitimacy of the international Criminal Court(ICC) in situation countries. Perspectives from the Global South are critical against the hegemonic elements of this regime, perceived as an instru- mentalization of global human rights norms and Western imperialism. Yet, current debates about the legitimacy of international criminal justice, have tended to neglect the hegemonic capacities of non-state actors in affected communites. This paper cen- tralises the role of Non-Governmental Organizations (NGOs) in Uganda’s contested criminal justice processes as a prism through which to examine these discourses. The paper 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 my experience as a legal practitioner in Uganda. Drawing on the theory of legitimacy, it illustrates how NGOs perpetrate hegemonic structures of international criminal justice through the approaches that they take, regarding the prosecution of international crimes at the ICC and 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 paper also highlights a limited counter-hegemonic role of some domestic NGOs that prioritize domestic accountability mechanisms. Ultimately, an attention to NGOs as critical actors is essential if we are to sustain the counter-hegemonic debates in international criminal justice. The paper concludes that NGOs are key stakeholders in the future of the international criminal justice project

Keywords: International Criminal Justice, International Criminal Court, international crimes, Uganda, Non-Governmental organizations, legitimacy

------Work in progress, please do not quote or distribute. ------

1 INTRODUCTION

Recent decades have witnessed an exponential growth of international criminal justice. With emerging critical perspectives from the Global South against hegemonic elements of international criminal justice,1 this paper explores the role of non-governmental organizations(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.2

1 Philip Clark, Distant Justice The Impact of the International Criminal Court on African Politics (Cambridge Uni- versity Press 2018); Jaya Ramji-Nogales, ‘Bespoke Transitional Justice at the International Criminal Court’ in Christian De Vos, Sara Kendall and Carsten Stahn (eds), Contested Justice The Politics and Practice of Interna- tional Criminal Court Interventions (Cambridge University Press 2015). 2 Mark Klamberg, ‘Rebels, the Vanquished, Rogue States and Scapegoats in the Crosshairs: Hegemony in International Criminal Justice’ in Morten Bergsmo and others (eds), Power in International Criminal Justice

In a pluralistic international environment, international criminal justice is bound to raise questions of authority about its constituents. Key questions include who speaks for victims, and international criminal justice in general.3 This paper thus seeks to examine these questions, with a critical focus on NGOs as key actors in international criminal justice. Counter-hegemonic strategies are reflected in global NGO networks and victim advocates in international criminal law.4 Crucially, it is vital to evaluate the counter-hegemonic potential of NGOs in domestic contexts. Based on their central role in the promotion of international criminal justice,5 this paper seeks to evaluate how NGOs enhance or undermine the legitimacy of international criminal justice institutions. Using the context of the International Criminal Tribunal for the former Yugoslavia (ICTY), Carsten Stahn argues that NGOs have “become important advocates and voices of judicial action. 6 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 tribunal.7 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.8 As she points out, they also help to legitimise the court within these pluralist spaces of justice.9 In 2014, the ICC published guidelines to for- malize and synergize its intermediary relationships. 10 While Leila Ullrich’s primary concern relates to the vagueness on the question of their implementation,11 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”.12 Against this theoretical background, this paper examines how NGOs (de)legitimise international criminal justice. Using Uganda as a case study, it critically interrogates the position of both domestic and international NGOs in relation to the international criminal justice interventions. This

(Torkel Opsahl Academic EPublisher 2020).641 3 Kevin Jon Heller and others, ‘Introduction’ in Kevin Jon Heller and others (eds), The Oxford Handbook of International Criminal Law (Oxford University Press 2020).2 4 Sonja Buckel and Andreas Fischer-Lescano, ‘Gramsci Reconsidered: Hegemony in Global Law’ (2009) 22 Leiden Journal of International Law 437,451. 5 Sarah M. H. Nouwen and Wouter G.Werner, ‘Monopolizing Global Justice’ (2015) 13 Journal of Inter- national Criminal Justice 157; Mikkel Jarle Christensen, ‘The Creation of an AD Hoc Elite: And the Value of International Criminal Law Expertise on a Global Market’ in Kevin Jon Heller and others (eds), The Oxford Handbook of International Criminal Law (Oxford University Press 2020). 6 Carsten Stahn, ‘Legacy in International Criminal Justice’ in Margaret M. deGuzman and Diane Marie Amann (eds), Arcs of Global Justice: Essays in Honour of William A. Schabas (Oxford University Press 2018).282 7 Kirsty Brimelow and others, ‘Shaping the Law: Civil Society Influence at International Criminal Courts’ (Chatham House 2016) International Law Programme Meeting Summary; Sarah Williams, Hannah Woolaver and Emma Palmer, The Amicus Curiae in International Criminal Justice (1st edn, Hart Publishing 2020). 8 Leila Ullrich, ‘Beyond the “Global–Local Divide”: Local Intermediaries, Victims and the Justice Con- testations of the International Criminal Court’ (2016) 14 Journal of International Criminal Justice 543. 9 ibid. 568 10 International Criminal Court, ‘Guidelines Governing the Relations between the Court and Intermediar- ies for the Organs and Units of the Court and Counsel Working with Intermediaries’ accessed 5 May 2021. 11 Leila Ullrich (n 8).552 12 Emily Haslam and Rod Edmunds, ‘Managing a New “Partnership” “Professionalization”, Intermediar- ies and the International Criminal Court’ (2013) 24 Criminal Law Forum 49.

77 is an interesting case study, due to the fusion of both domestic and international justice mechanisms. Therefore, this contextual assessment makes a unique contribution to both the literature and practice of international criminal justice. Northern Uganda has been at the centre of both domestic and international debates on accountability, since 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.13 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 on crimes against humanity and war crimes on 4 February 2021.14 His prosecution elicited mixed views on the role of international criminal justice within the broader context, considering the fact that Ongwen was both a victim of the brutality of the LRA as well as a perpetrator of gross crimes.15 Despite the end of the war in 2008,the transitional justice process is still contested and incomplete, with mixed perceptions about the effectiveness of international criminal justice . Transitional justice means the different judicial and non-judicial measures adopted following legacies of massive human rights abuse or authoritarian rule.16 More importantly, the inadequacy of state responses in complex contexts like Northern Uganda can be used as a justification for the application of international criminal justice. Scholars, practitioners and experts have told and retold different accounts of the international criminal justice framework in Uganda.17 However, the role of NGOs in international criminal justice is underexplored, yet they are key stakeholders in the often contested processes.18 This paper departs from the existing scholarship that centres on state actors and the politics of the ICC intervention in Northern Uganda, by focusing on the work of NGOs as key actors. While previous research has examined the role of NGOs in peacebuilding, less attention has been given the conceptual framework of TJ. Quinn’s research focuses on NGOs and traditional justice systems.19 Just like Ullrich, De Silva’s work examines the

13 Adam Branch, ‘Exploring the Root of LRA Violence: Political Crisis and Ethnic Politics in Acholiland’ in Tim Allen and Koen Vlassenroot (eds), The Lord’s Resistance Army: Myth and Reality (1st edn, Zed Books 2010). 14 International Criminal Court, ‘Dominic Ongwen Declared Guilty of War Crimes and Crimes against Humanity Committed in Uganda’ International Criminal Court (The Hague, The Netherlands, 4 February 2021) accessed 5 April 2021. 15 Adam Branch, ‘Dominic Ongwen on Trial: The ICC’s African Dilemmas’ (2017) 11 International Jour- nal of Transitional Justice 30; Erin K. Baines, ‘Complex Political Perpetrators : Reflections on Dominic Ongwen’ (2009) 47 The Journal of Modern African Studies 163. 16 Lars Waldorf, ‘Expanding Transitional Justice’ in Olivera Simić (ed), An Introduction to Transitional Justice (2nd edn, Routledge 2020). 17 Steven C. Roach, ‘Multilayered Justice in Northern Uganda: ICC Intervention and Local Procedures of Accountability’ (2013) 13 International Criminal Law Review 249; Adam Branch, ‘Dominic Ongwen on Trial: The ICC’s African Dilemmas’ (n 15); Stephen Smith Cody, ‘Procedural Justice, Legitimacy, and Vic- tim Participation in Uganda’ in Nobuo Hayashi and Cecilia M Bailliet (eds), The Legitimacy of International Criminal Tribunals (Cambridge University Press 2017). 18 Jasmina Brankovic and Hugo van der Merwe (eds), Advocating Transitional Justice in Africa: The Role of Civil Society (Springer, Cham 2018); Math Noortmann, ‘NGOs in International Law: Reconsidering Personality and Participation (Again)’ in Thomas Davies (ed), Routledge Handbook of NGOs and International Relations (1st edn, Routledge 2019); Noam Schimmel, ‘International Human Rights Law Responsibilities of Non- Governmental Organizations: Respecting and Fulfilling the Right to Reparative Justice in Rwanda and Beyond’ (2019) 8 Cambridge International Law Journal 104. 19 Joanna R. Quinn, ‘Madly Off in All Directions: Civil Society and the Use of Customary Justice as Tran- sitional Justice in Uganda’ in Jasmina Brankovic and Hugo van der Merwe (eds), Advocating Transitional

78 relationship between the ICC and NGOs, contextualised as ‘intermediaries’.20 In addition, their research does not go far to investigate the hegemonic ideas and practices of international criminal justice. While Lohne explores the role of NGOs in international criminal justice and the Ugandan context, she uses sociology of punishment as a theoretical orientation.21 This is the key theoretical point of departure for this paper, as it is concerned with hegemonic structures in international criminal justice. This paper 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. Cark’s empirical engagement with NGOs in Uganda’s transitional justice was done five years before the adoption of Uganda’s National Transitional Justice Policy22 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 paper builds on scholarly work that uses legitimacy as a framework for assessing the work of international courts23 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.24 This could be interpreted as also ‘based on the transnational regulation being perceived as legitimate by actors in the field’.25 In particular, I adopt the 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’.26 I argue that NGOs (de)legitimise international criminal justice in Uganda in four ways: First, local NGO discourses legitimise the ICC as a form of transitional justice. Second, domestic NGOs adopt and implement international criminal justice through networks and coalitions. Third, I argue that NGOs legitimise international criminal justice through the complementarity framework. Finally, I argue that NGO discourse and work in relation to alternative justice mechanisms delegitimises international criminal justice. Methodologically, the paper takes an empirical legal research approach, using a combination of methods. This data rests primarily on qualitative interviews with a range

Justice in Africa: The Role of Civil Society (Springer 2018). 20 Leila Ullrich (n 8); Nicole De Silva, ‘Intermediary Complexity in Regulatory Governance: The Interna- tional Criminal Court’s Use of NGOs in Regulating International Crimes’ (2017) 670 The ANNALS of the American Academy of Political and Social Science 170; Nicole De Silva, ‘International Courts’ Sociali- zation Strategies for Actual and Perceived Performance’ in Theresa Squatrito and others (eds), The Perfor- mance of International Courts and Tribunals (Cambridge University Press 2018). 21 Kjersti Lohne, Advocates of Humanity: Human Rights NGOs in International Criminal Justice (Oxford Univer- sity Press 2019). 22 Phil Clark, ‘“All These Outsiders Shouted Louder Than Us”: Civil Society Engagement with Transi- tional Justice in Uganda’ (2015) Working Paper SiT/WP/03/15 Security in Transition 1. 23 Carsten Stahn, ‘Editorial: Between “Faith” and “Facts”: By What Standards Should We Assess Interna- tional Criminal Justice?’ (2012) 25 Leiden Journal of International Law 251; Marieke de Hoon, ‘The Fu- ture of the International Criminal Court. On Critique, Legalism and Strengthening the ICC’s Legitimacy’ (2017) 17 International Criminal Law Review 591. 24 Marlies Glasius and Tim Meijers, ‘Constructions of Legitimacy: The Charles Taylor Trial’ (2012) 6 In- ternational Journal of Transitional Justice 229. 25 Louise Munkholm, Cecile Pelaudeix and Bettina Lemann Kristiansen, ‘Conclusion: Transnationalisa- tion and Legal Actors: Legitimacy in Question’ in Bettina Lemann Kristiansen and others (eds), Transna- tionalisation and legal actors : Legitimacy in question (Routledge 2019). 26 Barrie Sander, ‘The Expressive Turn of International Criminal Justice: A Field in Search of Meaning’ (2019) 32 Leiden Journal of International Law 851.

79 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 per- vade NGO work. The semi structured elite interviews were conducted through a mixture of tel- ephone and online via video technology. Salmon’s Qualitative e-Research framework was used as a tool for organizing and designing the interviews.27 The University of Portsmouth 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 provide informed consent before participating in the online interviews.28 The paper also relies on an extensive review of secondary sources regarding the TJ 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. I also add reflections based on my experience as a legal practitioner in war-affected communities in Uganda, working for Uganda Law Society and International Justice Mission between 2012 and 2018. 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.29Narratives can also be suitable tools for empirical examination on how international criminal justice processes are legitimised. The paper is organized in four main sections. Following this Introduction, section two sets the scene by situating NGO work within the field of international criminal justice. Next, Section three 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 NGOs delegitimised the ICC intervention, with preferences for alternative dispute resolution. Finally, in Section four, the paper will conclude with recommendations on the legitimation of international criminal justice.

2 SETTING THE SCENE: NGOs AS CRITICAL ACTORS IN INTERNA- TIONAL 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 organizations (CSOs),operating separating from the state and political parties.30 This section explores the work

27 Janet Salmons, Doing Qualitative Research Online (SAGE Publications 2016). 28 Janet Salmons, ‘Designing and Conducting Research with Online Interviews’ in Janet Salmons (ed), Cases in Online Interview Research (SAGE Publications 2012).8 29 Julia Otten, ‘Narratives in International Law’ (2016) 99 KritV, CritQ, RCrit. Kritische Vierteljahres- schrift Für Gesetzgebung Und Rechtswissenschaft / Critical Quarterly for Legislation and Law / Revue Critique Trimestrielle De Jurisprudence Et De Législation 187. 30 Riva Krut, ‘Globalization and Civil Society: NGO Influence in International Decision-Making’ (United Nations Research Institute for Social Development 1997) Discussion Paper No. 83, April 1997.

80 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,’31which 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 Pros- ecutor.32 NGOs were influential in the interpretation of the Special Court Agreement (Ratification) Act 2002, in regards to the contested legal relationship between the Tri- bunal and the Truth and Reconciliation.33 This interpretative role can be regarded as a form of legitimization 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 With- out Justice, in what he terms ‘intellectual and political energy’.34 Kendall’s study further illustrates the implications of extensive involvement of non-state actors like donors in global justice, using the case of the Special Court for Sierra Leone.35 The above criticism illustrates that NGOs have become critical actors in the international justice work, in what Stahn regards as ‘advocates and voices of judicial action’.36 A coalition of 138 NGOs were also involved in the drafting and eventual adoption of the Rome Statute in 1998.37 A transnational coalition of 300 NGOs lobbied Nigeria to arrest Charles Taylor and surrender him for trial at the SCTL in what is referred to as the “Justice Cascade”, while creating narratives against amnesties.38 To David Crane, the founding Chief Prosecutor of the Special Court for Sierra Leone, the rise of grassroots efforts by NGOS is a key element in the age of accountability.39 Besides Sierra Leone, NGO influences in international criminal justice are also observed in the contexts of Kenya and Sri Lanka, where they use different strategies that (de)legitimise accountability mechanisms under international law.40In Kenya, there was a split, as NGOs strategized around competing transitional justice mechanisms in the form of truth commissions and criminal prosecution by the ICC.41 In South Africa, NGOs played a crucial role in shaping the idea of ‘transformative constitutionalism’ as

31 Interview with ICC judge, 4 March 2021. 32 Interview with David M. Crane, Founding Chief Prosecutor, 1 March 2021. 33 William A Schabas, ‘Internationalized Courts and Their Relationship with Alternative Accountability Mechanisms: The Case of Sierra Leone’ in Cesare P.R. Romano, André Nollkaemper and Jann K. Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford Uni- versity Press 2004). 34 ibid. 35 Sara Kendall, ‘Donors’ Justice: Recasting International Criminal Accountability’ (2011) 24 Leiden Jour- nal of International Law 585. 36 Carsten Stahn (n 6). 37 Peter Brett and Line Engbo Gissel, ‘Explaining African Participation in International Courts’ (2018) 117 African Affairs 195.206 38 Kenneth A. Rodman, ‘Intervention and the “Justice Cascade”: Lessons from the Special Court for Si- erra Leone on Prosecution and Civil War’ (2015) 16 Human Rights Review 39. 39 Interview with David M. Crane, Founding Chief Prosecutor, 1 March 2021. 40 Thomas Obel Hansen and Chandra Lekha Sriram, ‘Fighting for Justice (and Survival): Kenyan Civil So- ciety Accountability Strategies and Their Enemies’ (2015) 9 International Journal of Transitional Justice 407; Nihal Jayasinghe and Daley J. Birkett, ‘A War Crimes Tribunal for Sri Lanka?: Examining the Op- tions Under International Law’ (2014) 46 Case Western Reserve Journal of International Law 567. 41 Ronald C. Slye, ‘Reflections on Africa and International Criminal Law’ in Ronald C. Slye (ed), The Nu- remberg Principles in Non-western Societies: A Reflection on their Universality, Legitimacy and Application (Interna- tional Nuremberg Principles Academy 2016).

81 a mechanism of transitional justice, triggering innovative legal remedies in relation to socio-economic rights of victims.42 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.43 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, together with limited government interest, donor support and media coverage, most ordinary Kenyans knew very little about the Commis- sion[TJRC]beyond the headlines about its chairman”.44 Nonetheless, NGOs helped in documentation of crimes and victims, and created public deliberations on the ICC intervention and.45 More generally, NGO roles in Kenya’s TJ were largely influenced by local political actors and international pressure.46 More generally, the Kenya case shows that NGO coalitions have a big potential to influence public perceptions in TJ 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.47 Transnational networks of NGOs had a significant influence in the prosecution of former Chadian President Hissène Habré before the Extraordinary African Cham- bers in Senegal.48 In what he calls ‘networked justice’, Sperfeldt argues that the NGO networks intended to use the Habré trial as legal precedent to advance universal jurisdiction.49 Similarly, domestic NGOs often have to implement the mandates of their international partners.50 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 its work. For example, the involvement of the ICC in Colombia indicates a more formal and practical relationship between the court and NGOS.51

42 David Bilchitz, ‘Socio-Economic Rights and Expanding Access to Justice in South Africa: What Can Be Done?’ in Philipp Dann, Michael Riegner and Maxim Bönnemann (eds), The Global South and Compara- tive Constitutional Law (Oxford University Press 2020). 43 Lydiah Kemunto Bosire and Gabrielle Lynch, ‘Kenya’s Search for Truth and Justice: The Role of Civil Society’ (2014) 8 International Journal of Transitional Justice 256. 44 ibid. 45 ibid. 46 Thomas Obel Hansen and Chandra Lekha Sriram (n 40). 47 Obiora Chinedu Okafor and Uchechukwu Ngwaba, ‘The International Criminal Court as a “Transi- tional Justice” Mechanism in Africa: Some Critical Reflections’ (2015) 9 International Journal of Transi- tional Justice 90. 48 Reed Brody, ‘Bringing a Dictator to Justice: The Case of Hissène Habré’ (2015) 13 Journal of Interna- tional Criminal Justice 09; Human Rights Watch, ‘A.U. Summit: African NGOs Urge Justice in Habré Case: African Union Must Send Chadian Ex-Dictator to Trial’ Human Rights Watch (New York, NY, 16 January 2006) accessed 12 May 2021. 49 Christoph Sperfeldt, ‘The Trial against Hissène Habré: Networked Justice and Reparations at the Ex- traordinary African Chambers’ (2017) 21 The International Journal of Human Rights 1243. 50 Hugo van der Merwe and Jasmina Brankovic, ‘The Role of African Civil Society in Shaping National Transitional Justice Agendas and Policies’ (2016) 1 Acta Juridica 225. 51 Kirsten Ainley, ‘The Responsibility to Protect and the International Criminal Court: Counteracting the

Specifically, NGOs play a pivotal role in monitoring Colombia’s compliance with its obligations under the Rome Statute.52 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.53 This concern raises a need to analyse how NGOs engage with the ICC’s complimentarily regime. Against the background of the criticisms against NGO, crucial questions arise in respect to how International criminal justice mechanisms (de)legitimised. The next section will make a qualitative analysis of the case study of Uganda, to identify the constructive role that NGOs play in the (de)legitimation of international criminal justice.

3 (DE)LEGITIMIZING INTERNATIONAL CRIMINAL JUSTICE IN CONTESTED SPACES OF UGANDA

This section will show how NGOs (de)legitimise international criminal justice in Uganda in three 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 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.

3.1 Legitimacy through local NGO discourses on victims

As discussed in the introduction section of this paper, the ICC intervention in Uganda and subsequent prosecution of Dominc Ongwen elicited mixed views in Northern Uganda, as some people considered him as a victim of the LRA.54 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.55 Justice and Reconcilia- tion Project (JRP),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-integrat- ing former LRA combatants within the societies in northern Uganda.56 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 can not

Crisis’ (2015) 91 International Affairs 37.49 52 Marina Aksenova, ‘The ICC Involvement in Colombia: Walking the Fine Line Between Peace and Jus- tice’ in Morten Bergsmo and Carsten Stahn (eds), Quality Control in Preliminary Examination: Volume 1 (Tor- kel Opsahl Academic EPublisher 2018). 53 ibid. 270 54 Adam Branch, ‘Dominic Ongwen on Trial: The ICC’s African Dilemmas’ (n 15); Erin K. Baines (n 15). 55 See Leila Ullrich (n 8). 56 See JRP’s website: accessed 11 April 2021.

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.57 Another issue that required NGO intervention related to the Peace vs Justice debates, which also created dilemmas for local NGOs that depended on funding for their activities. These dilemmas are revealed through an intriguing set of NGO discourse. Ini- tially, there were strong voices of dissent by 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 Rome Statute in 2010,the Peace vis- à-vis Justice debate polarised the engagements among the different TJ stakeholders.58 One NGO staff put this way: ‘Many NGOs found themselves in a position where they didn’t have a concrete position’.59 Another NGO representative recalled the tense environment, noting: ‘some of us where accused of undermining ICC work’. This affirms similar observations made by Clark, that noted a gradual change of approach among local NGOs, aligned towards the ICC.60 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 centred their work around the president, this undermined their legitimacy in Northern Uganda’.61 The local NGOs were therefore the voice of the affected people. Therefore, the court had to work more with the affected communities, with lesser engagement with the government. It was noted that ‘NGO criticisms strengthened the way the ICC approached it...’62 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.63 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...”64 Against the background of these narratives, it can be argued that NGOs com- plemented the ICC’s work in the contested spaces of justice in Northern Uganda, where the government’s priorities had shifted from prosecution towards towards peace processes. Local NGO discourses and work on the ICC enhanced the sociological legitimacy of the court before the affected communities. The Uganda Victims' Foundation (UVF) worked directly with victims of the

57 Interview with local leader, 26 March 2021 58 Lucy Hovil, ‘The ICC’s Engagement in Uganda from a Local NGO Perspective’, NGOs and the Interna- tional Criminal Court: the State of the Union? (International Refugee Rights Initiative (IRRI) 2010). 59 Interview with NGO founder, 26 February 2021. 60 Phil Clark (n 22). 61 Interview with NGO founder, 26 February 2021. 62 Interview with NGO founder, 26 February 2021. 63 Interview with local leader, 2 April 2021. 64 Interview with NGO Representative,26 February 2021.

LRA in Northern Uganda.65. While some NGO reports stressed the need for victims’ reparations,66 others advocated for more outreach and victim participation activities in the trials.67 As observed in Cambodia, NGO discourses and victim-oriented work in TJ creates key entry points for international criminal justice.68 Nonetheless, it is important that the courts engage directly with the victims. An ICC staff noted, “I can see many NGOs speaking on behalf of victims, but it is important to hear the voices of the victims themselves”.69 Another important legitimation 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 NGO domestic NGO implementing partners, whose work has benefited more than 56,000 people across Northern Uganda.70 The fund also created an opportunity for domestic NGOs to engage in issues of victims’ support. According to an NGO representative, ‘NGOs had to strategize their work and work around the ICC.’71 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.

3.2. Legitimacy through NGO networks

Another approach for the legitimation of the ICC’s work is highlighted in the work of local 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 TJ mechanisms.72 Workshops

65 See UVF website < http://www.vrwg.org/about-vrwg/uvf> accessed 12 April 2021. 66 See, for example, Okot Benard Kasozi, ‘Does the International Criminal Court’s Verdict Offer Psycho- logical Relief for Dominic Ongwen’s Victims in Northern Uganda’ Refugee Law Project (Kampala, 8 April 2021) accessed 13 April 2021; Avocats Sans Frontières, ‘Reflections on Victim Par- ticipation before the International Crimes Division in Uganda’ (Avocats Sans Frontières 2019) Policy Brief; Sarah Kasande Kihika and Eva Kallweit, ‘Building Blocks for Reparations: Providing Interim Relief to Victims Through Targeted Development Assistance’ (International Center for Transitional Justice 2020) Research Report accessed 21 November 2020; Justice Rapid Response, ‘Uganda: Victims Are Central to Prosecuting Mass Atrocity Crimes’ Justice Rapid Response (Geneva, 12 December 2019) accessed 13 April 2021. 67 Human Rights Watch, ‘Who Will Stand for Us? Victims’ Legal Representation at the ICC in the Ong- wen Case and Beyond’ (Human Rights Watch 2017) accessed 13 April 2021. 68 Maria Elander, ‘Visualizing Law and Justice at the Extraordinary Chambers in the Courts of Cambodia’ (2020) 114 American Society of International Law Unbound 128; Rachel Killean, ‘Constructing Victim- hood at the Khmer Rouge Tribunal: Visibility, Selectivity and Participation’ (2018) 24 International Re- view of Victimology 273. 69 Interview with ICC staff, 29 April 2021. 70 Interview with TFV Programme Manager for Uganda,23 March 2021; See also, TFV website < https://www.trustfundforvictims.org/en/locations/northern- uganda#:~:text=The%20TFV%20has%20been%20implementing,6%2C006%20direct%20beneficiar- ies%20in%202018> accessed 13 April 2021. 71 Interview with NGO Representative,26 February 2021. 72 See Justice and Reconciliation Project Annual Report 2009,page 7

85 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.’73 So, what do we make of these NGO coalitions within the prism of international criminal justice? In Northen Uganda, the coalitions hosted consultative dialogues within the affected communites to reflect on indicted Ongwen’s ‘Justice Dilemma,’ emphasizing the importance of both the ICC and domestic justice mechanisms. 74 NUTJWG’s work diminished significantly as the ICC case progressed.’75 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 Northen Uganda.76 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 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 in the court seat so that they can watch the trial and be a part of it.77

NGO representatives from UVF participated in meetings of the Assembly of States Parties(ASP) to the ICC.78 The UVF facilitates dialogues and ‘Victim Empowerment Training.’79 It is important to note that due to the sensitivity about ICC intervention, UVF operated under a broad coalition of NGOs named Uganda Victims' Rights Work- ing Group (U-VRWG). A founding member of UVF noted, ‘There were fears from retaliation when talking about the ICC in the North,’80 On a global level, the victims work was part of a wider Victims' Rights Working Group (VRWG) hosted by RE- DRESS in London.81 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 map out, as well as endorse a strategy to

accessed 11 April 2021. 73 Ibid 9. 74 ‘Ongwen’s Justice Dilemma’ IFAIR (Berlin, 18 March 2015) accessed 12 April 2021. 75 Interview with NGO representative, 2 March 2021. 76 Anna Macdonald, ‘“Somehow This Whole Process Became so Artificial”: Exploring the Transitional Justice Implementation Gap in Uganda’ (2019) 13 International Journal of Transitional Justice 225. 77 Interview with local leader and NGO represented , 6 March 2021. 78 Interview with a Legal Representative for Victims in the Dominic Ongwen case, 12 April 2021 79 TrustAfrica, ‘Strengthening Victim Participation in Accountability Processes: Learning from the Expe- riences of the Victim Support Initiative (VSI)’ TrustAfrica (Dakar, Sénégal, 5 August 2019) accessed 12 April 2021. 80 Interview with founding member of UVF,12 March 2021. 81 See the VRWG website < http://www.vrwg.org/about-vrwg/who-we-are >accessed 13 April 2021.

86 be employed in the campaign for the ICC in Uganda.’82 There were contestations among local NGOs regarding who should host the UCICC.83 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 synergizing NGO efforts.’84 This suggests an implicit legitimation 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 Rome 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.’85 In addition, local events debunked the perception of the ICC as biased against African countries.86 One interesting aspect relates to the membership of the UCICC.87 From a normative perspective, the UCICC was instrumental in the ratification and domestic implementation of the Rome Statute in Uganda.88 At the time of writing this paper, the UCICC was technically not in operation. Two reasons are provided for this situation: First, it’s operations were largely done by one NGO, HURINET – U, which created conflicts among member NGOs.89 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.’90This is akin to Kendall’s observation regarding the Special Court for Sierra Leone, in what she terms ‘donors’ justice.’91 The International Center for Transitional Justice(ICTJ) has operated in the country since 2005,mainly offering technical support and capacity building.92 Similarly, Avocats Sans Frontier (ASF) works in the thematic areas of victims and reparations under the TJ process.93. 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 Uganda situation. One might argue that such campaigns amplify the voices of the victims.94 However, we can also draw critical observations in relation to the ICC agenda, as the Kony 2012 campaign was launched around the time of the

82 See information about UCICC published on the Victims' Rights Working Group (VRWG) website accessed 12 April 2021. 83 Interview with a former Coordinator of the UCICC,2 March 2021. 84 Ibid. 85 See The Coalition for the International Criminal Court website ccessed 12 April 2021. 86 Coalition for the International Criminal Court (CICC), ‘ICC Challenges: Perspectives from Uganda’s Student Community’ Coalition for the International Criminal Court (CICC) (27 September 2017) accessed 12 April 2021. 87 Interview with a former Coordinator of the UCICC,2 March 2021. 88 Interview with a former Coordinator of the UCICC,12 March 2021. The country adopted the Interna- tional Criminal Court Act (ICC Act 2010) in June 2010. 89 Interview with a former Coordinator of the UCICC,2 March 2021. 90 Interview with a former Coordinator of the UCICC,12 March 2021. 91 Sara Kendall (n 35). 92 See ICTJ-Uganda website < https://www.ictj.org/our-work/regions-and-countries/uganda> accessed 10 April 2021. 93 See ASF website accessed 10 April 2021. 94 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.

87 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.95 As the Dominic Ongwen case progressed, international NGOs further engaged in support for international criminal justice oriented elements of TJ. 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.96 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.97

Crucially, we see a central role of NGOs in relation to the ICC situation in Uganda. One can thus argue that the NGO networks serve to legitimise international criminal justice.

3.3 Legitimacy through the ICC Complementarity framework

Another way in which we can view the (de)legitimation 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.98 Within the complementarity framework, Uganda domesticated the Rome Stat- ute 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 International Crimes Division(ICD) in 2008.99 It is also important to note that the creation of a specialized court to try war crimes was initially proposed during the failed peace talks between the Uganda 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,

95 Christine Schwöbel-Patel, Marketing Global Justice: The Political Economy of International Criminal Law (Cam- bridge University Press 2021); Warner ten Kate and Sarah M. H. Nouwen, ‘The Globalisation of Justice: Amplifying and Silencing Voices at the ICC’ in Jeff Handmaker and Karin Arts (eds), Mobilising Interna- tional Law for ‘Global Justice’ (Cambridge University Press 2018). 96 For a detailed analysis, see REDRESS, ‘Not with Us: Strengthening Victim Participation in Transitional Justice Processes in Uganda’ (REDRESS 2020) accessed 27 August 2020. 97 Interview,6 May 2021. 98 William W. Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice’ (2008) 49 Harvard International Law Journal 53. 99 See the High Court (International Crimes Division) Practice Direction, Legal Notice No. 10 of 2011, Section 6(1).

seeing a potential case study for positive complementarity between the ICC and domestic peace processes.100

The ICD is thus perceived by many people in Northern Uganda as an extension of the ICC. As note 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’.101 The complementarity regime and new court thus presented a ground for NGO involvement in the domestic prosecution of international crimes. Just like the case of Domic Ongwen, the trial of Thomas Kwoyelo before the ICD is an important marker in Uganda’s TJ. Kwoyelo was a commander under the LRA that 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.102 Since the start of the Kwoyelo trial in 2011, there have been multiple delays, mainly due to the Uganda government’s lack of interest in criminal prosecution as a TJ approach, but also lack of relevant legal framework. 103 The court was also perceived as an international court meriting special support, unlike other courts in Uganda. A lawyer in the Director of Public Prosecutions(DPP) is critical about the allocation of huge financial resources towards one case.104 A similar challenge was observed by a former Registrar of the ICD, noting how ‘some people argue that the ICD is just a Division of the High Court like any other Division and not an international “Court”’.105 The above concerns were raised during a conference organised by ASF and UCICC in 2012. Since Uganda is a common law country, 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 intervention 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 thus play a critical role in both the operations of the ICD and the prosecution of Kwoyelo. ASF,ICTJ helped in the drafting of the court’s rules of Procedure and technical capacity building by training judges and lawyers. Justice Rapid Response provides direct technical support to the prosecutors,106 while REDRESS supported the victims’ lawyers to collect additional evidence.107This work was implemented through its local intermediaries Emerging Solu- tions Africa (ESA) and the UVF. An NGO representative pointed out that, ‘at times, we help the court to do the

100 Stephen Oola, ‘The Coalition for Reconciliation in Uganda (CORU): Important Lessons for Proactive Civil Society Engagement in Catalyzing Transitional Justice Discourse’, Advocating Justice: Civil Society and Transitional Justice in Africa (Peace Insight 2010) accessed 13 May 2021. 101 Interview ,8 April 2021. 102 Luke Moffett, ‘Complementarity’s Monopoly on Justice in Uganda: The International Criminal Court, Victims and Thomas Kwoyelo’ (2016) 16 International Criminal Law Review 503; Anna Macdonald and Holly Porter, ‘The Trial of Thomas Kwoyelo: Opportunity of Spectre? Reflections from the Ground on the First LRA Prosecution’ (2016) 86 Africa 698. 103 Interview with criminal lawyer,3 March 2021. 104 Interview with lawyer,3 March 2021. 105 Asiimwe Tadeo, ‘Effecting Complementarity: Challenges and Opportunities: A Case Study of the In- ternational Crimes Division of Uganda’ (Avocats Sans Frontières 2012). 106 Justice Rapid Response (n 66). 107 Interview with NGO Representative,26 March 2021

89 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 2018.108 Nonetheless, court outreach and engagement with victims enhances the sociological legitimacy of the court in the affected communities, as also observed in Sierra Leone.109 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”,110 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 legitimation of the authority of international criminal justice.

3.4 Delegitimising International criminal Justice: NGOs and alternative dispute resolution.

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. 111 Similarly, The langi communities practice Kayo Cuk, with a central goal of reconciliation. JRP and the Institute for Justice and Reconciliation were pivotal in engaging victims of the LRA, on the relevance of traditional justice mechanisms.112 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 a starting point.113 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 victimization.114 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. More generally, one can argue that NGOs delegitimised the ICC intervention in Northern Uganda. 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.115 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

108 Interview with NGO Representative,20 March 2021. 109 Interview with David M. Crane, Founding Chief Prosecutor, 1 March 2021. 110 Christine Schwöbel-Patel (n 95). 111 Adam Branch, ‘The Violence of Peace: Ethnojustice in Northern Uganda’ (2014) 45 Development and Change 608. 112 See JRP’s website, supra note 56 113 Interview,2 March 2021. 114 Justice and Reconciliation Project (JRP), ‘Complicating Victims and Perpetrators in Uganda: On Dom- inic Ongwen’ (Justice and Reconciliation Project (JRP) 2008) JRP Field Note 7. 115 Stephen Oola (n 100).

90 trials would not address the full extent of impunity in Uganda”.116 However, just like the NUTJG, 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.117

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.118Nonetheless, we can see that NGO networks have the potential to contribute to counter-hegemony strategies, where there are alternative modes of justice. In sum, the analysis in this section has shown instances when NGOs legitimise international criminal justice, by evaluating their work around the ICC and domestic accountability mechanisms. The section has also shown ways in which NGOs delegitimise international criminal justice, by articulating traditional justice and reconciliation. This distinction between the NGO work is helpful in order to articulate 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 either enhances, or undermines the legitimacy of international criminal justice.

4 CONCLUSION

The paper has evaluated the role of NGOs in international criminal justice. The empirical analysis has revealed that NGOs (d)legitimise international criminal justice in Uganda in four ways: First, local NGO discourses legitimised the ICC intervention as a form of transitional justice. Second, the analysis has revealed how domestic NGOs adopted and implemented international criminal justice through networks and coalitions. Third, it has shown how NGOs legitimise international criminal justice through the complementarity framework. Finally, the paper has revealed how NGOs delegitimise international criminal justice, in the discussions on alternative dispute resolution mechanisms. The implementation of the ICC’s complementarity framework also means that counter hegemonic voices are less likely to have an impact in international criminal justice. As has been revealed in the paper, domestic NGO work is subjected to global governance forces, thus shifting priorities where there are contestations between

116 ibid. 117 Interview with local leader,4 April 2021. 118 Emma Charlene Lubaale, ‘Legal Pluralism as a Lens through Which to Appreciate the Role and Place of Traditional Justice in International Criminal Justice’ (2020) 52 Journal of Legal Pluralism and Unoffi- cial Law 180.

91 criminal justice and other forms of transitional justice. Ultimately, the paper has argued that the sociological legitimacy of international criminal justice mechanisms is highlight dependant on NGO discourses with the affected communities. Finally, how does legitimacy connect with hegemony? This question invites broader range of arguments, depending on the actors involved. As the evidence has suggested, 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 centralizing the subject of victims, NGOs seek to counter the hegemonic structures or perceptions. What we can gain from the debates is that legal pluralism is vital, within contested spaces of justice.

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INTERNATIONAL CRIMINAL COURT AND TRADITIONAL ISLAMIC LEGAL SCHOLARSHIP: ANALYZING THE WAR CRIMES AGAINST CI- VILIANS

Fajri Matahati Muhammadin* & Ahmad Sadzali**

Abstract In recent decades, numerous critics have been directed to Eurocentrism in international law generally and international criminal law specifically. These critics demand international law to be more inclusive towards non-European knowledges, Islamic law among them. Some scholars have argued that it is essential to refer to Islamic law at the ICC, not only to counter Eurocentrism in general but also because there are more cases involving Muslims at the ICC. Other scholars have suggested that there is some congruence between Islamic law and the ICC law in some general principles. However, so far there is very little comprehensive compatibility analysis between the two laws. It must be noted that if the Islamic law has prescribed criminalization for international crimes up to a standard which is at least on par with what international law requires, it would mean at least two things (a) there is no reason for the ICC to not refer to Islamic law resources, and (b) Muslim states/groups who implement it will not need to refer cases to the ICC due to the complementary principle. This research comparatively analyses Islamic Law and the Rome Statute. For the former, this research uses the fiqh literature of the traditionalist Islamic law scholars. Further, this research will limit itself to War Crimes in Article 8 of the Rome Statute, specifically crimes against civilians. The hy- pothesis is that there is congruence in some rules but not others, which is a challenge for both international law and Islamic law scholars. Keywords: Islam, international law, siyar, Rome Statute, jinayat, TWAIL 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 are voicing the need to include more Islamic law in the development of international law.3 This critic extends to the sub- regimes, including international criminal law. Especially discussing the International Criminal Court (ICC), Juliette R. Tiedrez came with an interesting proposition: why not have an Islamic law scholar (in her words: a

* Assistant Professor at the Department of International Law, Faculty of Law, Universitas Gadjah Mada. Email: [email protected] ** Assistant Professor at the Department of Constitutional Law, Faculty of Law, Universitas Islam Indonesia. Email: [email protected] 1 Khaled Ramadan Bashir, Islamic International Law: Historical Foundations and Al-Shaybani’s Siyar (Cheltenham: Edward Elgar Publishing Ltd, 2018); Marcel A Boisard, “On the Probable Influence of Islam on Western Public and International Law,” International Journal of Middle East Studies 11, no. 4 (1980): 429–50. 2 Salim Farrar, “The Organisation of Islamic Cooperation: Forever on the Periphery of Public International Law?,” Chinese Journal of International Law 13, no. 4 (2014): 787–817. 3 See inter alia: Awn S. Al-Khasawneh, “Islam and International Law,” in Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives, ed. Marie-Luisa Frick and Andreas Th Müller (Martinus Nijhoff Publishers, 2013), 29–44; Christopher G. Weeramantry, Islamic Jurisprudence: An International Perspective (Palgrave Macmillan, 1988).

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 that there currently are a lot of cases involving Muslims at the ICC.4

Responding to Tiedrez, Fajri wrote that there are prospects and challenges in doing so. Among them, it would require a comprehensive comparative analysis to see the extent to which Islamic law and international could adopt from each other.5 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 ICC, such as the principles of legality, non-retroactivity, and the presumption of innocence.6 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.7

Our research therefore explores this issue in greater detail by conducting an in-depth comparative analysis between Islamic law and ICC law. We examine the extent to which the material law particularly criminal charges at the ICC coincides with Islamic law, limiting itself to war crimes against civilian persons as the most vulnerable party in war (representing 25 out of 53 war crimes). Analyzing 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 such as the nexus to armed conflict.8 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 1 below: TABLE 1

(i) (ii) (iii) (iv) Deliberately Excessive collat- Deliberate inhumane Confining, Deport- harming civilians eral civilian losses or torturous harm to- ing/ wards civilians transferring/displacing civilians

Article 8(2)(a)(i) Article 8(2)(b)(iv) Article 8(2)(a)(ii) Article 8(2)(a)(vii) Article 8(2)(a)(v) Article 8(2)(b)(ix) Article 8(2)(a)(iii) Article 8(2)(e)(viii) Article 8(2)(a)(viii) Article 8(2)(b)(xxiii) Article 8(2)(b)(x) Article 8(2)(b)(i) Article 8(2)(e)(iv) Article 8(2)(b)(xxi)

4 Juliette Rémond Tiedrez, “Time for an Islamic Legal Scholar at the ICC?,” Völkerrechtsblog, 2020, https://voelkerrechtsblog.org/time-for-an-islamic-legal-scholar-at-the-icc/. 5 Fajri Matahati Muhammadin, “An Islamic Legal Scholar as Judge at the ICC: In Conformity with Islamic Law?,” Völkerrechtsblog, 2020, https://voelkerrechtsblog.org/an-islamic-legal-scholar-as-judge-at-the-icc-in-conformity-with- islamic-law/?fbclid=IwAR0a1f90yRpJiLWg0wp9-CD8w5-69UzSj6NkePz7K0tXRw5DnDEJB82jvVQ. 6 Mohamed Elewa Badar, “Islamic Law (Shari’a) and the Jurisdiction of the International Criminal Court,” Leiden Journal of International Law 24 (2011): 423–26. See also: Julie Fraser, “Exploring Legal Compatibilities and Pursuing Cultural Legitimacy: Islamic Law and the International Criminal Court,” in Intersections of Law and Culture at the International Criminal Court, ed. Julie Fraser and Brianne McGonigle Leyh (Edward Elgar Publishing, 2020). 7 Fajri Matahati Muhammadin and Thara Kunarti Wahab, “Fiqh Al-Jihād in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law,” IIUM Law Journal 26, no. 2 (2018): 241–74. 8 Compare Article 8(2)(b)(i) and Article 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.

Article 8(2)(b)(xv) Article 8(2)(b)(xxii) Article 8(2)(b)(xxv) Article 8(2)(c)(i) Article 8(2)(b)(xxvi) Article 8(2)(c)(ii) Article 8(2)(c)(i) Article 8(2)(e)(vi) Article 8(2)(c)(iii) Article 8(2)(c)(iv) Article 8(2)(e)(vii)

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 Sharī‘ah through the tradition of the fuqaha throughout the ages through the madhāhib 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”.9 Therefore, we do not discard the classical works of the fuqaha but rather continue their tradition and holistically contextualize it in the modern day. Having that said, this article explores the literature of Islamic law, particularly criminal law. We examine the extent to which traditional scholarship would find congruence with the ICC law in terms of how the lawful conduct of war is regulated and its breach criminalized. The larger the congruence would mean that there is a stronger basis for a better dialogue between the ICC and the Islamic world.

2. ISLAMIC LAW AND TRADITIONAL SCHOLARSHIP To understand the extent to which the ICC and Islamic criminal law could complement each other, it is essential to understand the Islamic criminal law system and, before that, the Islamic law system in general. The only true source of Islamic law, sometimes referred to as ‘primary sources of law’, is revelation. Following what is revealed by Allah, whether through the Qur’an or through the Sunnah (sayings, acts, and approval, usually referred as hadith) of Prophet is the most basic tenet of faith in Islam. This makes following ‘the laws ,ﷺ Muhammad revealed by Allah’ part of the most essential beliefs of a Muslim.10 From there, the ‘ulama would derive legal rulings for detailed issues not explicitly regulated in the Qur’an and Sunnah through a process we refer to as ijtihad.11 The result of ijtihad is fiqh which English speakers usually refer to as Islamic law. The fuqaha throughout the ages have made codifications of fiqh, arguing here and there, into a rich stream of scholarship from one generation to the other. Their works cover a great variety of topics from worship matters including purification (taharah), ritual prayer

9 Yusri Mohamad, Contemporary Ijtihad: An Analysis of Individual And Collective Approaches (Kuala Lumpur: Islamic and Strategic Studies Institute, 2016), 54–55. 10 Fajri Matahati Muhammadin, Mukadimah Fikih Siyar: Pokok-Pokok Hukum Internasional Islam Kontemporer (Yogyakarta: Bentala Tamadun Nusantara, 2021), 7–9. 11 Imran Ahsan Khan Nyazee, Islamic Jurisprudence (Selangor: The Other Press, 2003), 128.

(salat), fasting (sawm), as well as public and government matters such as war (jihad) and criminal law (jinayat), often all together in gargantuan multi-volume books.12 As explained in the introduction, ‘traditionalist scholarship’ utilizes this rich body of scholarship and sees them as strong authority. A traditionalist scholar see 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.13 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).

The other ijtihadi trends, as per Yusri Mohamad’s categorization, do not seem very appealing to this research. For example, the ‘Islamist modernists’ who Yusri describes as those “…committed to Islam as a religion but believes that Islam must be somewhat liberated from the inherited versions and interpretations of Islam of earlier generations”.14 However, there is a problem with this categorization. The major group he presented as the strongest in the ‘Islamist modernist’ category are the ‘Wahhabis’ or ‘Salafists’ who, in reality, largely follow the methodology of the Ḥanbalī school which is a traditional madhhab.15 The last category, the ‘secularists’, are perhaps the worst. De- scribed by Yusri as having “…an aggressive tendency to break free from inherited ideas from the past”.16 Sometimes also referred to as ‘reformists’, they often force major or even total reformation of Islamic law, would defeat the purpose of countering Euro- centrism. Like Ebrahim Afsah and Abdullahi An-Na’im, they propose secularism to ‘reform’ Islam so that it could submit to what modernity brings.17 Not only that this approach has been strongly criticized for contradicting major tenets of the Islamic faith by scholars like Sapiudin, Bashir, and Muhammadin.18 But, most importantly, secularism as an epistemology is a Western product,19 and the hegemony imposed by the West through colonialism resulted inter alia in the forced penetration of secular epistemology

12 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: ʿAbd Allāh b. Aḥmad ibn Qudāmah Al-Maqdīsī, Al-Mughni, 10 vols (Maktabah Al-Qahirah, 1388); Muḥammad ibn Aḥmad ibn Abi Sahl Al-Sarakhsī, Al-Mabsūṭ Fī Al-Fiqh, 30 vols (Beirut: Dar al-Ma’rifah, 1409); Al-Mawsū‘ah Al-Fiqhiyyah, 45 vols (Kuwait: Wizarah al-Awqaf wa al-Shu’un al-Islāmiyyah, 1410); Wahbah Al-Zuḥaylī, Fiqh Al-Islām Wa Adillatuhu, 10 vols (Damascus: Dar al-Fikr, 1428). 13 Even the salafi school agrees with this. See: Jonathan A C Brown, “Is Islam Easy to Understand or Not?: Salafis, the Democratization of Interpretation and the Need for the Ulema,” Journal of Islamic Studies 26, no. 2 (2015): 117–44. 14 Mohamad, Contemporary Ijtihad: An Analysis of Individual And Collective Approaches, 56–57. 15 He uses Ibn Baz and Ibn Al-‘Uthaymin as examples of ‘Islamist Modernists’, while they follow the uṣūl of the Hanbali school. See: Abu Muḥammad Ashraf ibn ’Abdil-Maqṣūd, Fatāwā Ramaḍān Fi Al-Ṣiyām Wa Al-Qiyām Wa Al-I’tikāf Wa Zakāt Al-Fiṭr (Riyadh: Maktabah Aḍwā’ Al-Salaf, 1998), 19; “Madhhab Al-‘Allāmah Ibn Al-‘Uthaymīn,” Islamweb, 2012, https://www.islamweb.net/ar/fatwa/188939/. See also: Emad Hamdeh, Salafism and Traditionalism: Scholarly Authority in Modern Islam (Cambridge: Cambridge University Press, 2021), 133. It must be noted that some level of diversity in detailed rulings (even adopting rulings from other maddhabs) is not new in traditional scholarship of fiqh. On the other hand, Yusri also admits there is an overlap between the ‘Traditionalists’ and ‘Islamist Modernist’: Mohamad, Contemporary Ijtihad: An Analysis of Individual And Collective Approaches, 59–60. 16 Mohamad, Contemporary Ijtihad: An Analysis of Individual And Collective Approaches, 57. 17 Ebrahim Afsah, “Contested Universalities of International Law. Islam’s Struggle with Modernity,” Journal of the History of International Law 10 (2008): 259–307; Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (New York: Syracuse University Press, 1996). 18 Fajri Matahati Muhammadin and Mohd Hisham Mohd Kamal, “The Western Universalism v. Cultural Relativism Debate on Human Rights and Islam: An ‘Aqīdah-Based Approach,” Afkar: Journal of ’Aqidah & Islamic Thought 21, no. 2 (2019): 175–216; Bashir, Islamic International Law: Historical Foundations and Al-Shaybani’s Siyar; Saipudin, “Kritik Atas Pemikiran Abdullahi Ahmed An-Na’im Tentang Distorsi Syariat Terhadap HAM,” Ahkam 16, no. 1 (2016): 31–40. 19 See: Syed Muhammad Naquib Al-Attas, Islam and Secularism (Kuala Lumpur: ISTAC, 1993).

100 into Islamic (and most other non-Western) sciences.20 How ironic is it to solve Euro- centrism 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 madhāhib.21 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 maslahat (exigency).22 Nonetheless, they also pointed out that such maslahat, present in the past, no longer persists today thus, despite the text, captives should not be enslaved in the current day.23 As Khalif Muammar explains, the traditionalist scholarship follows the legacy and authority of scholarly tradition is essential in facing the challenges brought about by modernity within a well-established corridor provided in Islam.24

3. ISLAMIC CRIMINAL LAW AND INTERNATIONAL LAW Fiqh al-jinayat, or Islamic criminal law, refers to the Islamic laws to deal with 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 ḥudūd and the second is qiṣāṣ.

Ḥudūd are specific crimes which, with their punishments, are explicitly set in the Qur’an and Sunnah as the Rights of Allah.26 Ḥudūd 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 types of punishment could be execution, stoning, exile, lashing, or ‘crucifixion’28 depending on which ḥudūd crime they committed.

20 Wan Mohd Nor Wan Daud, Islamization of Contemporary Knowledge and the Role of the University in the Context of De- Westernization and Decolonialization (Johor Baru: UTM Press, 2013), 6–7; Al-Attas, Islam and Secularism. See also: Fahmi Salim, Kritik Terhadap Studi Al-Qur’an Kaum Liberal (Jakarta: Perspektif, 2010); Adian Husaini, Wajah Peradaban Barat: Dari Hegemoni Kristen Ke Dominasi Sekular-Liberal (Jakarta: Gema Insani Pres, 2005). 21 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, Contemporary Ijtihad: An Analysis of Individual And Collective Approaches, 67. Hence, this opens much room for different ijtihad in different eras regarding such matters. 22 Musthafa Al-Khin and Musthafa Al-Bugha, Konsep Kepemimpinan Dan Jihad Dalam Islam: Menurut Madzhab Syafi’i (Jakarta: Darul Haq, 2014), 48. 23 Al-Khin and Al-Bugha, 48. 24 Khalif Muammar A. Harris, “Pandangan Islam Terhadap Tradisi Dan Kemodenan,” Jurnal Hadhari 4, no. 1 (2012): 23–48. 25 ‘Abd al-Karīm ibn Muḥammad Al-Lāḥim, Al-Muṭli‘u ‘alā Daqā‘iq Zād Al-Mustaqni‘, vol. 2 (Riyadh: Dar Kanuz Ishbiliya, 2011), 21. 26 ’Abd al-Qadir ’Awdah, Al-Tashri‘ Al-Jinā’i Al-Islāmī Muqāranan Bi Al-Qānūn Al-Waḍ‘I (al-Qāhirah: Maktabah Dar al- Turath, 2003), 127. 27 There are some differences of opinion in a few among them. See: Al-Mawsū‘ah Al-Fiqhiyyah, vol. 17 (Kuwait: Wizarah al-Awqaf wa al-Shu’un al-Islāmiyyah, 2003), 131. 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, The Distinguished Jurist’s Primer, vol. 2 (Reading: Garnet Publishing, 2000), 548–49.

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Qiṣāṣ, or ‘retaliation’, is also prescribed in the Qur’an and Sunnah.29 In this type of crime, the perpetrator will generally be inflicted similar damage to what they have inflicted upon others. If they injured someone, then they will be injured equally. If they murdered someone, they 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 maṣlaḥat (exigency).32 Unlike the ḥudūd which are prescribed specifically to punish evil deeds, ta’zir crimes may or may not be evil as the basis to prescribe them are purely based on exigency.33 There is surely exigency in punishing evil deeds (such as drug dealing), but not all deeds which exigency necessitates punishments are necessarily evil (such as parking in an illegal spot). Additionally, the ‘ulama differ on how severe ta’zir punishments may be. The Maliki school say 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 ḥudūd 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 find exigency to forgive the perpetrator. They further explain that the implementation of ta’zir towards crimes with victims also must be implemented except if forgiven by the victim.35 The question of international law comes in 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, traditionalists do not provide room to cease the implementation of ḥudūd and qiṣāṣ. 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 be averted if the victims (or all heirs, in case of murder) forgive the perpetrator.37 As explained earlier, the implementation of ḥudūd and qiṣāṣ are the rights of Allah. 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 which is mainly governed by maslahat (exigency), considering the binding nature of treaties as well as customary international law, if they do not contradict the primary sources and if there is

29 Which is why some ‘ulama classify qiṣāṣ as among the ḥudūd. See: Al-Zuḥaylī, Fiqh Al-Islām Wa Adillatuhu, 6:13. 30 Al-Mawsū‘ah Al-Fiqhiyyah, vol. 33 (Kuwait: Wizarah al-Awqaf wa al-Shu’un al-Islāmiyyah, 2003), 259. 31 Al-Lāḥim, Al-Muṭli‘u ‘alā Daqā‘iq Zād Al-Mustaqni‘, 2:7. 32 Al-Mawsū‘ah Al-Fiqhiyyah, vol. 12 (Kuwait: Wizarah al-Awqaf wa al-Shu’un al-Islāmiyyah, 2003), 254; Abu Al-Hasan Al-Mawardi, Al-Aḥkam Al-Sulṭāniyyah (Cairo: Dar al-Hadith, 2006), 344. 33 Al-Zuḥaylī, Fiqh Al-Islām Wa Adillatuhu, 6:20. 34 Al-Zuḥaylī, 6:19. 35 Al-Zuḥaylī, 6:18–22. 36 As explained earlier, some of the ḥudūd are victimless, such as intoxication. 37 Al-Zuḥaylī, Fiqh Al-Islām Wa Adillatuhu, 6:19.

102 exigency.38 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.39 How- ever, these works seem to only consider international law as far as it regulates friendly relations between states, and not yet how, as contemporary international law begins to do, regulate the domestic affairs of states such as international human rights law.40 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.41 Our research here is aimed to contribute to such a purpose, particularly in an area where criminal law is affected.

Having that said, the potential relationship between ta’zir and international law can be established. If ta’zir is applied based on maslahat, while international law can be adopted also based on maslahat, then ta’zir can be influenced or based on international law. It must be noted, however, that maslahat (exigency) as a legal notion is determined and guided by (and therefore may not contradict) Islamic teachings.42 Maslahat is primarily designed to regulates worldly affairs to be steppingstones to achieve paradise in the hereafter.43 Therefore, maslahat as a notion of exigency cannot be divorced from its Is- lamic-religious worldview.44 Therefore, non-Islamic notions of exigency, for example, Bentham’s secular-materialistic utilitarianism cannot be used as tool here.45

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 Rome 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.

4.1 Deliberately Harming Civilians Almost all literature on the laws of jihad emphasize the prohibition to kill non-combatants. Classical scholarship usually mention specific types persons as those illegal to be

38 Muhammadin, Mukadimah Fikih Siyar: Pokok-Pokok Hukum Internasional Islam Kontemporer, 14–17. For classical sources, see: Muḥammad ibn Aḥmad ibn Abi Sahl Al-Sarakhsī, Sharḥ Al-Siyār Al-Kabīr (Egypt: Al-Shirkah al-Sharqiyyah li l- I‘lānāt, 1971); Abū Isḥāq Al-Fazārī, Kitāb Al-Siyar (Beirut: Mu’assasah al-Risālāh, 1408). 39 See: Ali Ali Mansur, Syari’at Islam Dan Hukum Internasional Umum (Jakarta: Penerbit Bulan Bintang, 1973); Muhammad Hamidullah, Muslim Conduct of State (Lahore: Sh. Muhammad Ashraf, 2011). 40 Malcolm N Shaw, International Law, 8th ed. (Cambridge: Cambridge University Press, 2017), 213–15. 41 Muhammadin, Mukadimah Fikih Siyar: Pokok-Pokok Hukum Internasional Islam Kontemporer, 20. 42 Yahya Ridha Jad, Fii Fiqhi Al-Ijtihad Wa Al-Tajdid (Cairo: Darussalam, 2010), 174. 43 Ibn Al-Qayyim Al-Jawziyah, ’Uddatush Shabirin (Jakarta: Qisthi Press, 2010), 264. 44 See: Ibrāhīm Al-Shāṭibī, Al-Muwāfaqāt, vol. 2 (Al-Khubar: Dar Ibn Affan, 1997), 17; Abū Ḥāmid Muḥammad Al- Ghazālī, Shifāʾ Al-Ghalīl Fī Bayān Al-Shabah Wa Al-Mukhīl Wa Masālik Al-Ta’līl (Baghdad: Mathba’ah al-Irsyad, 1971), 159–61. 45 Adi Setia, “Freeing Maqāṣid and Maṣlaḥah from Surreptitious Utilitarianism,” Islamic Sciences 14, no. 2 (2016): 127–57; James E. Crimmins, “Bentham on Religion: Atheism and the Secular Society,” Journal of the History of Ideas 47, no. 1 (1986): 95–110.

103 harmed during war, such as: women, children, the mentally insane, isolated hermits, hired serfs, etc.46 Nonetheless, the silver lining is that those not actively participating in the hostilities must not be killed.47 Contemporary scholars were quick to celebrate this, although some noted some potential discourse in the details (such as the status of police force).48 Additionally, civilians in particular have been labelled as “protected persons” in modern International Humanitarian Law (IHL) instruments.49 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.50

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 qiṣāṣ where the perpetrator would be executed according to some scholars or pay diyat instead according to the others.51 Meanwhile, if the civilian was a non-Muslim, the majority of classical scholars say that the murderer must repent to Allah as he/she has violated Islamic law but qiṣāṣ, diyah, or kafarat cannot be imposed.52 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).53 Considering civilians as musta’min as 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.54 If this proposition is accepted, the Muslim who murders a musta’min is punishable by diyat.55 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.

46 See inter alia: Al-Sarakhsī, Sharḥ Al-Siyār Al-Kabīr, para 2741; Ibn Rushd, The Distinguished Jurist’s Primer, trans. Imran Ahsan Nyazee Khan, vol. 1 (Reading: Garnet Publishing, 2000), 458–60; Wahbah Al-Zuḥaylī, Āthār Al-Ḥarb Fi Al-Fiqh Al-Islāmī (Damascus: Dar Al-Fikr, 1419), 494–95. 47 Ibn Rushd, The Distinguished Jurist’s Primer, 2000, 1:459; Ahmed Al-Dawoody, The Islamic Law of War: Justifications and Regulations (New York: Palgrave Macmillan, 2011), 112–14; Yusuf Al-Qardhawi, Fiqih Jihad (Bandung: Mizan, 2010), 291– 96; Abdullah Azzam, Jihad: Adab Dan Hukumnya (Jakarta: Gema Insani Press, 1993), 24, 30. 48 Ahmed Al-Dawoody, “IHL and Islamic Law in Contemporary Armed Conflict: Expert Workshop, Geneva 29-30 October 2018” (Genev, 2019), 37, https://www.icrc.org/en/document/eyperts-workshop-report-ihl-and-islamic-law- contemporary-armed-conflicts. 49 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol. 1 (Cambridge University Press, 2005), Chapters 1-2. 50 Wahbah Al-Zuḥaylī, Fiqih Islam Wa Al-Adillatuhu, vol. 8 (Jakarta: Gema Insani Press, 2011), 33; Al-Khaṭīb Al-Sharbīnī, Mughni Al-Muhtaj, vol. 6 (Cairo: Dar al-Hadith, 2006), 54. 51 Muḥammad ibn ‘Alī Al-Shawkānī, Fatḥ Al-Qadīr, vol. 4 (Beirut: Dar al-Ma’rifah, 2007), 350; Al-Mawsū‘ah Al-Fiqhiyyah, vol. 37 (Kuwait: Wizarah al-Awqaf wa al-Shu’un al-Islāmiyyah, 2003), 190–91. 52 Al-Mawsū‘ah Al-Fiqhiyyah, vol. 16 (Kuwait: Wizarah al-Awqaf wa al-Shu’un al-Islāmiyyah, 2003), 150. 53 Ibrāhīm ibn Muḥammad Al-Bājūrī, Ḥāshiyah Al-Bājūrī, vol. 4 (Jeddah: Dar al-Minhaj Li Al-Nasr wa Al-Tawzi, 2016), 240. 54 Al-Dawoody, The Islamic Law of War: Justifications and Regulations, 134; Al-Zuḥaylī, Fiqih Islam Wa Al-Adillatuhu, 2011, 8:47. 55 Ṣāliḥ bin Fawzān Al-Fawzān, A Summary of Islamic Jurisprudence, vol. 1 (Riyadh: Al-Maiman Publishing House, 2005), 552.

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There is also disagreement on whether a Muslim can be executed due to the murder of a non-Muslim in context of qiṣāṣ,56 and at heart of the disagreement is Prophet Muham- -s explicit statement that a Muslim cannot be killed for the murder of a non’ﷺ mad Muslim57 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.58 It can be argued that, considering how serious the international community is towards the protection of civilians in war, there is greater maslahat 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,59 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 the civilian. However, if following the opinion of scholars not allowing execution for ta’zir in general, other forms of punishments are available. Among these options are lashing (up to 20 lashes) and imprisonment.60

4.2 Excessive Collateral Civilian Losses The issue of collateral damage is something that the international community always regrets, but somehow does not receive 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 non-intended damage caused by military operations towards legitimate targets.61 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 maslahat, and Islamic teachings explicitly command it both generally in life as well as in war specifically.62 When discussing 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.63 To this extent, similar principle is shared with modern IHL.

56 Ibn Rushd, The Distinguished Jurist’s Primer, 2000, 2:483–84. 57 Muḥammad ibn ʿĪsā al-Sulamī Al-Tirmidhī, Jami Al-Tirmidhi, vol. 3 (Riyadh: Darussalam, 2007), hadith no. 1412. 58 Badruddin Al-‘Aynī, ’Umdah Al-Qārī, vol. 15 (al-Qāhirah: Idarat Al-Taba’at Al-Muniriya, n.d.), 94. 59 See inter alia Articles 8(1), 17(1)(d), and 53(1)(c) of the Rome Statute. 60 Al-Zuḥaylī, Fiqh Al-Islām Wa Adillatuhu, 6:198. 61 James Kilcup, “Proportionality in Customary International Law: An Argument Against Aspirational Laws of War,” Chicago Journal of International Law 17 (2016): 248. 62 See inter alia the Qur’an in Surah Al-Ma‘idah (5) verse 77 and Surah Al-Baqarah (2) verse 190 respectively. 63 See inter alia: Ibrāhīm ibn ‘Alī Al-Shīrāzī, Al-Muhadhdhab Fī Fiqh Al-Imām Al-Shāfi‘Ī, vol. 3 (Beirut: Dar al-Kutub ’Elmiya, 1995), 278; ʿAbd Allāh b. Aḥmad ibn Qudāmah Al-Maqdīsī, Fiqh Al-Kāfī Al-Imām Aḥmad Ibn Ḥanbal, vol. 4 (Beirut: Dar al-Kutub ’Elmiya, 2004), 126.

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Another aspect of the issue must be considered. In modern IHL, not only that the destruction must be justified by necessity, but also there should 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.64 This is where current scholarship has some problems.

The scholars only mention or imply that the civilians should not be intentionally targeted.65 Some specify that the civilians should not be aimed at. While the idea seems to be good, but one would be reasonably be uncomfortable of the lack of details. Hundreds of years ago, accidental damage caused by swords and arrows might be regretted. How- ever, 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 previous 49 centuries combined, and this data does not include post 1990 wars.66 More destructive weapons and methods of attack, especially aerial bombardment, is responsible for this.67 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.68 Otherwise, the collateral civilian losses would not be accidental but caused by recklessness. This means that there are strong grounds to prohibit the reckless infliction of collateral civilian losses excessive in relation to the anticipated maslahat. 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 they were not aware.69 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 not directly committing the killing, then a stronger aggravating factor is present to justify higher punishment.

Nonetheless, it must be noted that even if the collateral damage was truly accidental and not caused by recklessness, the perpetrator must nonetheless pay diyat.70 4.3 Inhumane or Torturous Harm Towards Civilians

64 See entire Chapters 3, 4, 5, and 6: Henckaerts and Doswald-Beck, Customary International Humanitarian Law. 65 Al-Zuḥaylī, Āthār Al-Ḥarb Fi Al-Fiqh Al-Islāmī, 506–7. 66 William Eckhardt, “Civilian Deaths in Wartime,” Bulletin of Peace Proposals 20, no. 1 (1989): 89–98; William Eckhardt, “War-Related Deaths Since 3000 BC,” Bulletin of Peace Proposals 22, no. 4 (1991): 437–43. 67 Judith Gail Gardam, “Proportionality and Force in International Law,” American Journal of International Law 87, no. 3 (1993): 399–402. 68 Fajri Matahati Muhammadin, “Fiqh Al-Jihād 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, 2020), 71–127. 69 Al-Mawardi, Al-Aḥkam Al-Sulṭāniyyah, 78. 70 ‘Abd Allah ibn Muḥammad Al-Mūṣilī, Al-Ikhtiyār Li Tal‘īl Al-Mukhtār, vol. 5 (Beirut: Dar al-Kutub ’Elmiya, n.d.), 25.

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Under this category are more numerous types of war crimes, such as: torture and causing suffering, rape, sexual slavery, forced pregnancy and sterilization. This is not to say that other war crimes are not inhumane, but this group is perhaps considered more inhumane than others due to their nature. The first sub-group to be discussed are 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. A well-established principle of Islamic law states “harm may neither be inflicted nor reciprocated”.71 Even more so, the act of causing torturous harm has very specific condemnations, inter alia general prohibition of torture72 and the prohibition of killing with fire.73

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 frac- tures.74 On top of that, extraordinary cruelness in the infliction of these injury, 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.75 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. In general, the act of forced illegal sexual intercourse between a man and a woman is stoned to death if the perpetrator is married, lashed one hundred times and exiled if the perpetrator is unmarried, and the victim must be compensated.76 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.77 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 ḥudūd 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

71 Jalāl al-Dīn al-Khuḍayrī Al-Suyūṭī, Al-Ashbah Wa Al-Nazhā’ir, vol. 1 (Kairo: Darussalam, 2011), 210. 72 ‘Alī Al-Qārī, Mirqah Al-Mafatih Sharh Mishkah Al-Mashabih, vol. 7 (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1422), 76. 73 Al-Qardhawi, Fiqih Jihad, 496. 74 Al-Fawzān, A Summary of Islamic Jurisprudence, 1:563–70. 75 Burhān al-Dīn Al-Marghīnānī, Al-Hidāyah, vol. 2 (Egypt: Matba’a Mustafa al-Halabi, 1971), 116–17. See also: Recep Çiğdem, “Crimes Against Honour in Islamic/Ottoman Law: A Study Of Qadhf/Slander in Comparative Perspective,” Selçuk Üniversitesi Hukuk Fakültesi Dergisi 16, no. 2 (2008): 45–62. 76 Al-Khaṭīb Al-Sharbīnī, Mughni Al-Muhtaj, vol. 5 (Cairo: Dar al-Hadith, 2006), 435, 437. 77 Al-Sharbīnī, 5:435, 437. See also: Abū Bakr Muḥammad ibn ‘Abdallāh ibn Al-‘Arabī, Aḥkam Al-Qur’ān, vol. 2 (Beirut: Dar al-Kutub al-’Ilmiyyah, 1424), 95.

107 married, lashing if unmarried), others say ta’zir.78 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 maslahat, decide to either execute (for men only), free gratuitously, free with ransom, or to enslave.79 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 clearly instructs that slaves must be fed and clothed at ﷺ example, Prophet Muhammad 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.80 There are so many incentives for the master to free slaves, as it is generally seen as a good deed81 and it is often a penalty to expiate certain sins,82 and the slave can have rights to even purchase her/his own freedom in installments and at the same time receive ‘pocket money’.83 Be that as it may, slaves in Islamic law nonetheless share similar elements of the war crimes of sexual slavery according to the Rome 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 of Muslims today.84 However, this is incorrect because some authoritative scholars still hold that the option of enslavement is open.85 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.86 Nonetheless, there is no disagreement that Muslim leader discretion (based on maslahat) is the sole basis to enslave a captive. It has been explained earlier how Al-Bugha and Al- Khin does not reject the rule but have submitted that the maslahat to enslave no longer exists. Even Abdullah Azzam, founder of Al-Qaeda, agrees there is no maslahat to enslave the enemy women (in context of the Soviet-Afghanistan war).87 On top of this, it also means that Muslim leaders may decide to close the option of enslavement, whether

78 Al-Zuḥaylī, Fiqh Al-Islām Wa Adillatuhu, 6:66. 79 Ibn Rushd, The Distinguished Jurist’s Primer, 2000, 1:456–57; Al-Zuḥaylī, Fiqih Islam Wa Al-Adillatuhu, 2011, 8:84–86. 80 Muslim ibn al-Ḥajjāj Al-Naysābūrī, Sahih Muslim, vol. 4 (Riyadh: Darussalam, 2007), hadiths no. 4298-4310; Muḥammad ibn Ismā‘īl Al-Bukhārī, Sahih Al-Bukhari, vol. 1 (Riyadh: Darussalam, 1997), hadith no.30. 81 See for example Surah Al-Balad (90) verses 12-13 and onwards to see other righteous deeds sampled together with the freeing of slaves. 82 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: Wahbah Al-Zuḥaylī, Fiqih Islam Wa Al-Adillatuhu, vol. 3 (Jakarta: Gema Insani Press, 2011), 126–27. 83 Scholars differ whether the master is legally obliged to grant the slave’s request. See: Ibn Rushd, The Distinguished Jurist’s Primer, 2000, 2:453–57. 84 See point 12: “Open Letter To Dr. Ibrahim Awwad Al-Badri, Alias ‘Abu Bakr Al-Baghdadi,” 2014, http://www.lettertobaghdadi.com/. 85 Fajri Matahati Muhammadin, “Refuting Da’esh Properly: A Critical Review of the ‘Open Letter to Baghdadi,’” Journal of International Humanitarian Action 1, no. 1 (2016): 4. 86 ‘Uthmān bin ‘ Alī Ḥasan, Manhaj Al-Istidlal ‘Alā Al-I‘tiqād ‘Inda Ahl Al-Sunnah Wa Al-Jamā‘Ah (al-Riyāḍ: Maktabah Ar- Rushd, 1415), 149–50. 87 ‘Abdullah ‘Azzām, Fī Ẓilāl Sūrah Al-Tawbah (Peshawar: Markaz al-Shahīd ‘Azzām Al-I‘lamī, n.d.), 56.

108 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.88 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, maslahat is a matter of ijtihad which may or may not be correct but the legal maxim “an ijtihad does not annul another ijtihad.”89 Even in this scenario, though, there may be 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.90 If any Muslim does in fact have sexual intercourse (in a slavery-like context or not) with the captive before distributed by the Mus- lim leader, then it is unlawful intercourse or zina punishable as ḥudūd (stoning if perpetrator is married, lashing if not). If the intercourse involves violence, it is punishable by additional ta’zir and diyat91 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.

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.92 As for deporting or transferring (to a location within the army’s territory or outside of it), including also displacement, also is a war crime unless it is to protect the civilian population or for imperative military reasons as per Article 49 of the 4th Geneva Convention 1949.93 From an Islamic law perspective, the issue of confining civilians is first related to the law of war captives. In general, all persons belonging to the (defeated) enemy can be brought into captivity except those under peace treaties with the Muslims,94 but they differ on the permissibility of capturing persons who are not considered to be dangerous. The Hanafis and Hanbalis explains that there is no benefit in detaining those who

88 Many Muslim states are also parties to the Rome Statute, making relevant war crimes even more applicable. 89 Al-Suyūṭī, Al-Ashbah Wa Al-Nazhā’ir, 1:241.

90 Al-Mawsū‘ah Al-Fiqhiyyah, vol. 4 (Kuwait: Wizarah al-Awqaf wa al-Shu’un al-Islāmiyyah, 2003), 200. 91 Diyat is lower for slaves than for free persons. See: Ibn Rushd, The Distinguished Jurist’s Primer, 2000, 2:514. 92 See: Articles 42-43 of the 4th Geneva Convention 1949. See: Knut Dormann, Louise Doswald-Beck, and Robert Kolb, Elements of War Crimes under the Rome Statute of the International Criminal Court (Cambridge: Cambridge University Press, 2004), 114–18. 93 Dormann, Doswald-Beck, and Kolb, 108–9. 94 Al-Mawsū‘ah Al-Fiqhiyyah, 2003, 4:152.

109 do not pose any threats.95 The Malikis say that anyone not executed can be detained, except isolated hermits,96 while the Shafi‘is say that anyone can be detained.97 Despite the differences, we can see that they are all in agreement that the basis of detainment or confinement is necessity of security. A second way to see confining civilians is from a law enforcement perspective. An Is- lamic government can have police forces which, like any other police force, detain anyone who threats public security.98 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 be an act against maslahat (from a law of war captive perspective) or an abuse of position (from a law enforcement perspective). It is clear that the latter could be punishable by ta’zir.99 The former, as the ruling is primarily based on maslahat, the role of the Muslim leader is essential to determine a correct guideline to prevent injustice and ta’zir to enforce it. 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,100 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.101 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.102 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.103 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.104 Such ruling of land-taking applies within the Islamic territory and in peacetime which is different 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

95 ibn Qudāmah Al-Maqdīsī, Al-Mughni, vol. 10 (Dar al-Kutub ’Arabi, n.d.), 404, 409. 96 Muḥammad ibn Aḥmad Al-Dasuqi, Ḥāshiyah Al-Dasuqi ’Ala Al-Sharḥ Al-Kabīr, vol. 2 (Dar Ihya al-Kutub Al-‘Arabi, n.d.), 177. 97 Khayr al-Din Al-Ramli, Nihāyah Al-Muhtāj, vol. 8 (Mustafa Al-Halabi, 1357), 61. 98 Al-Zuḥaylī, Fiqih Islam Wa Al-Adillatuhu, 2011, 8:465. 99 Al-Mawardi, Al-Aḥkam Al-Sulṭāniyyah, 86. 100 Since it focuses more on expelling a person from a location but without any designated destination, unlike transfers or deportations. 101 Al-Suyūṭī, Al-Ashbah Wa Al-Nazhā’ir, 1:155. 102 Ibn Rushd, The Distinguished Jurist’s Primer, 2000, 1:461. 103 Al-Suyūṭī, Al-Ashbah Wa Al-Nazhā’ir, 1:218. 104 Musthafa Ahmad Al-Zarqa, Al-Madkhal Al-Fiqhi Al-‘Amm, vol. 1 (Beirut: Dar al-Fikr, 1967), 248.

110 property of both a Muslim and dhimmis (non-Muslims under special agreement with the Muslims, a protection also applying to the musta’min) is a crime.105 Having all that said, if civilians are unlawfully deported or transferred, there are two consequences. First, restitution shall be made towards 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.

5. COMPLEMENTARITY AND NEBIS 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 Rome 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 said domestic system.106 What seems to be the main concern here, other than so a person is not put on trial more than once for the same crime, is also so that sham proceedings made to shield perpetrators, demean the gravity of the extraordinary crime committed, and even if convicted will only result in inadequate punishments.107 In a section titled “Pro- cess and Not Outcome”, Jo Stigen mentions in his book that the issue here is whether the domestic prosecution was ‘genuine’ and everything else (including severity of punishment, or lack thereof) is used to indicate genuineness.108 A large part of this matter is therefore related to criminal procedural law, which is 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 constituting as war crimes against civilians by the Rome 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 maslahat. This means that there is virtually nothing against the Muslim rulers elaborating the crimes in questions based on the elements provided by the Rome 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 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 ‘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.

105 See the Qur’an in Surah Al-Baqarah (2) verse 188. Also: Al-Lāḥim, Al-Muṭli‘u ‘alā Daqā‘iq Zād Al-Mustaqni‘, 2:29; Al- Mawsū‘ah Al-Fiqhiyyah, vol. 36 (Wizarah al-Awqaf wa al-Shu’un al-Islāmiyyah, 2003), 40. 106 International criminal law scholars seem to have various opinions on this matter. Mohamed El-Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development, and Practice (Brill-Nijhoff, 2008), 307–8. 107 William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2004), 88; El-Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development, and Practice, 73, 307. 108 Stigen uses the term ‘genuine’ to indicate “willingness” or “ability” (as opposed to “unwilling” or “unable”) as per Article 17 of the Rome Statute. See: Jo Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Leiden-Boston: Martinus Nijhoff, 2008), 216–17.

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There could be a difficult discussion regarding lashing that could be imposed either by ḥudūd (such as for unlawful sexual intercourse by an unmarried person) or by ta’zir. On one hand, lashing can be seen as a tiny punishment unworthy of a serious crime, especially if the number of lashes is not so many since a judge technically can 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.109 Surely, international law cannot claim that lashing is torturous and inhumane and, at the same time, an insufficient punishment for an extraordinary crime. 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 Rome Statute can reach, would otherwise seem to only extend to victim participation in the trials.110 6. CONCLUSIONS The immediate challenge of this research was to bridge between the ‘language’ spoken by Islamic criminal law and the Rome Statute, as similar problems can be expressed differently in the respective legal systems. The next challenge was to address the differences in a way that is acceptable within the frameworks of both Islamic and international law. This is exceptionally important for constructing a truly universal international law, unlike its Eurocentric counterpart. It was therefore important to first address the (so far under-researched) effect contemporary international law may have to the development of Islamic law even from a traditionalist method. It is found that there are large areas of similarities of principles between Islamic and international criminal law, where acts considered as war crimes against civilians are mostly either criminalized or at least detested in Islamic law. Together with the dominance of ta’zir regulating relevant acts, so many doors are open to reconcile the differences, at least as far as the scope of this research is concerned.111 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. 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 proceed a case) is an essential part of complementarity 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

109 A position that is, however, substantively debatable. See: Fajri Matahati Muhammadin et al., “Lashing in Qanun Aceh and the Convention Against Torture,” Malaysian Journal of Syariah and Law 7, no. 1 (2019): 11–24. 110 See inter alia: Claire Garbett, “The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice,” Restorative Justice 5, no. 2 (2017): 198–220; Mariana Pena and Gaelle Carayon, “Is the ICC Making the Most of Victim Participation?,” International Journal of Transitional Justice 7, no. 3 (2013): 518–35. 111 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, “The Western Universalism v. Cultural Relativism Debate on Human Rights and Islam: An ‘Aqīdah-Based Approach”; Zara Khan, “Refractions Through the Secular: Islam, Human Rights, and Universality” (Ph.D Dissertation, The City University of New York, 2016).

112 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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Garbett, Claire. “The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice.” Restorative Justice 5, no. 2 (2017): 198– 220. Gardam, Judith Gail. “Proportionality and Force in International Law.” American Journal of International Law 87, no. 3 (1993): 391–413. Hamdeh, Emad. Salafism and Traditionalism: Scholarly Authority in Modern Islam. Cambridge: Cambridge University Press, 2021.

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Jad, Yahya Ridha. Fii Fiqhi Al-Ijtihad Wa Al-Tajdid. Cairo: Darussalam, 2010. Khan, Zara. “Refractions Through the Secular: Islam, Human Rights, and Universality.” Ph.D Dissertation, The City University of New York, 2016. Kilcup, James. “Proportionality in Customary International Law: An Argument Against Aspirational Laws of War.” Chicago Journal of International Law 17 (2016): 244. Islamweb. “Madhhab Al-‘Allāmah Ibn Al-‘Uthaymīn,” 2012. https://www.islamweb.net/ar/fatwa/188939/. Mansur, Ali Ali. Syari’at Islam Dan Hukum Internasional Umum. Jakarta: Penerbit Bulan Bintang, 1973. Mohamad, Yusri. Contemporary Ijtihad: An Analysis of Individual And Collective Approaches. Kuala Lumpur: Islamic and Strategic Studies Institute, 2016. Muhammadin, Fajri Matahati. “An Islamic Legal Scholar as Judge at the ICC: In Conformity with Islamic Law?” Völkerrechtsblog, 2020. https://voelkerrechtsblog.org/an-islamic-legal-scholar-as-judge-at-the-icc-in- conformity-with-islamic-law/?fbclid=IwAR0a1f90yRpJiLWg0wp9-CD8w5- 69UzSj6NkePz7K0tXRw5DnDEJB82jvVQ. ———. “Fiqh Al-Jihād 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, 2020. ———. Mukadimah Fikih Siyar: Pokok-Pokok Hukum Internasional Islam Kontemporer. Yogyakarta: Bentala Tamadun Nusantara, 2021.

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Human rights, criminal law: Pas de deux ou faux amis

Isabel L. Guidote & Raphael Lorenzo A. Pangalangan

Introduction

International Human Rights Law (IHRL) and International Criminal Law (ICL) may be historically entwined yet are unduly conflated. Teleologically, the division is clear: IHRL primarily deals with state responsibility, while ICL seeks to establish individual criminal liability. But as aptly illustrated by the standards of evidence respectively applied by human rights and criminal law tribunals, the disciplines’ shared vocabulary blurs that distinction. The IHRL-ICL divide is thus a tale of false friends – one where legal doctrine is similar in term though not in tenor. The European Court of Human Rights (ECtHR), for example, borrows from criminal law lexicon by adopting a high standard of “proof beyond reasonable doubt” as its threshold for state responsibility.1 Yet in that same breath, the ECtHR interprets the law in favour of human rights and shifts the burden of proof to the respondent state.2 This approach, referred to as the principle of pro homine, is likewise reflected in the methodology of the Inter-American Court of Human Rights.3

On the other hand, at the core of international criminal justice lies the principle of in dubio pro reo – itself a component of the human right to the presumption of innocence – which not only prohibits shifting the burden of proof but also resolves doubts in favour of the accused.4 Article 22 of the Rome Statute echoes that principle by requiring the definition of a crime to be “strictly construed” and, “[i]n case of ambiguity, […] interpreted in favour of the person being investigated, prosecuted or convicted.” Though at the same time, Article 21(3) requires the “application and interpretation of law […] be consistent with internationally recognized human rights”; thus opening stringent criminal law floodgates to the more lenient pro homine presumptions, where ambiguities are interpreted in favour of the claimant-rights holder.

What is more, the strict interpretative rules of ICL are likewise softened by the ICC’s reliance on Article 31 of the Vienna Convention on the Law of Treaties of 1969 (VCLT).5 Though the RS is indeed – as a treaty – subject to VCLT rules, the principle of nullum crimen sine lege stricta, which it codifies, is effectively overtaken by supra rules of statutory method. In the face of ambiguity, Article 22 of the Statute adopts strict legal

1 Adali v. Turkey, Application no. 38187/97 (ECtHR, 2005), available at: https://www.hr- dp.org/files/2013/09/10/CASE_OF_ADALI_v._TURKEY_.pdf. 2 Ergi v. Turkey, Application no. 23818/94 (ECtHR, 1998), available at: https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-58200%22%5D%7D. 3 Claude-Reyes et al. v. Chile, (IACtHR, 2006), available at: http://www.corteidh.or.cr/docs/casos/articu- los/seriec_151_ing.pdf. 4 Prosecutor v. Bemba, ICC-01/05-01/08 (ICC, 2009), available at: https://www.icc-cpi.int/CourtRecords/CR2009_04528.PDF; Telfner v. Austria, Application no. 33501/96 (ECtHR, 2001), available at: http://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-59347&filename=001- 59347.pdf. 5 Situation in the Democratic Republic of the Congo, ICC-01/04 (ICC, 2004), available at: https://www.icc- cpi.int/CourtRecords/CR2006_01807.PDF.

118 constructivism in favour of the person being investigated, prosecuted or convicted. The VCLT, however, takes a neutral stance; informing textual ambiguities with meaning by looking at a treaty’s object and purpose.6 While Article 22 of the Rome Statute pulls in a direction favourable to the accused, Article 31 VLCT makes no such promise. The criminal law ‘presumption in favour of the accused’ is quietly undermined by the general rules of treaty interpretation – an issue highly contested yet underdeveloped.7

The IHRL-ICL divide involves not only teleological differences but epistemological distinctions. By highlighting the fine line of divergence, this essay demonstrates why international law acknowledges crimes without criminals.

I. Interpretative Rules and Legal Presumptions

The ICC’s use of the VCLT is misguided. At the center of this issue is Article 21 of the Rome Statute, which enumerates the ‘Applicable Law’ before the ICC.

Article 21(1)(a) is clear: The Court must apply ‘in the first place’ the Rome Statute, the Elements of Crimes, and the Rules of Procedure and Evidence. The other sources of law provided for in Article 21(1)(b) to (c), i.e. treaties, principles and rules of international law, and general principles of law derived from national laws of legal systems, can only be applied when there is a lacuna in Article 21(1)(a)-sources of law.8 Further, Article 21(2) provides that the ICC may apply principles and rules of law as interpreted in its previous decisions. The ICC is thus not bound by the principle of stare decisis vis-a-vis its previous decisions. What is more, neither is it bound by the decisions of other tribunals.

Yet the ICC not only deviates from the hierarchy of applicable laws in Article 21(1) by applying the VCLT as the primus inter pares of treaty law, it likewise runs the risk of negating Article 21(2) by heavily relying not only on its own jurisprudence, but on the decisions of the ad hoc Tribunals as well. The VCLT, binding merely as Customary International Law should apply only as a subsidiary source of law through Article 21(1)(b).9

a. Rome Statute-enshrined Rules of Interpretation

As earlier established, and different from the Sources of Law enshrined in Article 38 of the ICJ Statute, the Rome Statute lays out a hierarchy of Applicable Laws. Article 21 requires that the provisions of the Rome Statute be applied ‘in the first place.’ Before

6 RICHARD GARDINER, TREATY INTERPRETATION (2 ed. 2015). 7 Dapo Akande, Treaty Interpretation, the VCLT and the ICC Statute: A Response to Kevin Jon Heller & Dov Jacobs (August 25, 2013), available at: http://www.ejiltalk.org/treaty-interpretation-the-vclt-and-the-icc-statute-a-response-to-kevin-jon- heller-dov-jacobs/. 8 Prosecutor v Al Bashir, ICC-02/05-01/09-3 (ICC, 2009), available at: https://www.icc- cpi.int/CourtRecords/CR2009_01517.PDF 9 Prosecutor v. Ruto, ICC-01/09-01/11 (ICC, 2011), available at: https://www.icc- cpi.int/CourtRecords/CR2011_02713.PDF.

119 resorting to the other sources of law, such as the interpretative rules of the VCLT, the provisions of the Statute must be applied primarily.

The Rome Statute codifies two rules of statutory interpretation: one, under Article 21(3), that ‘[t]he application and interpretation of law […] be consistent with internationally recognized human rights,’ and two, under Article 22(2), which provides that the ‘definition of a crime shall be strictly construed and shall not be extended by analogy.’ Article 22(2) further provides that, ‘[i]n case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted’ (hereinafter, ‘the accused’). The decisions of the ICC should thus run counter to neither the Human Rights system en masse nor the Human Rights of the accused.10

Interestingly, the pro homine presumptions of International Human Rights Law – a state- centric paradigm concerned with state responsibility – is not wholly compatible with the principle of in dubio pro reo applicable when dealing with individual criminal liability. The fine nuances of their interphase, however, are beyond the scope of this essay. Suf- fice it to say, however, that pursuant to the hierarchy of applicable laws in Article 21, the Rome Statute-enshrined rules of interpretation should take precedence over the application of any other rules of interpretation – including that of the VCLT. However, as will be shown, the ICC has oft departed from that hierarchy.

b. Applying the VCLT in the ICC

The VCLT provides rules of treaty interpretation that are not only separate and distinct from, but may at times conflict with, Rome Statute-enshrined rules of statutory construction. For example, while Article 22 of the Statute adopts strict legal constructivism (nullum crimen stricta) and interprets ambiguities in favour of the accused, the VCLT informs textual ambiguities with meaning by taking into account a treaty’s object and purpose11 and the travaux préparatoires.12

Despite that interpretative conflict, and notwithstanding the fact that the VCLT is only subsidiarily applicable through Article 21(1)(b), the ICC continues to apply the VCLT in interpreting the Rome Statute. Time and again, the Court has ruled that the ‘Statute, being a multilateral treaty, is governed by the principles of treaty interpretation set out in articles 31 and 32 of the [VCLT].’13 Indeed, it has even opined that the rule of lenity, which is likewise encapsulated in Article 22, is ‘not the first port of call’ and does ‘not enjoy a right of precedence over purposive interpretation’ of the VCLT.14

The ICC’s application of the VCLT is thus misguided because it effectively places the carriage before the horse. Ruling that Article 22 does not enjoy precedence over the

10 Prosecutor v. Katanga, ICC‐01/04‐01/07 (ICC, 2011), available at: https://www.icc- cpi.int/CourtRecords/CR2011_07370.PDF. 11 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, (VCLT) art 31. 12 VCLT, art 32. 13 See e.g. Prosecutor v. Bemba, supra note 4; In re Situation in the Republic of the Congo, supra note 5. 14 Prosecutor v. Ruto, supra note 9.

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VCLT effectively ignores the hierarchy that exists between Article 21(1)(a) and Article 21(1)(b) of the Rome Statute. It elevates a subsidiary source of law by relegating the principle of ‘in dubio pro reo [to] a residual role in the interpretation of legal provisiojns […] limited to doubts that remains after the application of the standard rules of interpretation.’15

II. Standards of Evidence

If taken as a single set of rules, the realm of public international law weaves a tangled web. When applied to the same factual scenario, these rules may elicit different and at times difficult results where systematic violations of human rights are established but criminal processes have not or have only barely commenced. Myanmar’s reported Genocide of the Rohingya,16 the judicially recognized War Crimes in Afghanistan,17 and the internationally condemned Crimes Against Humanity of the Dutertian drug war in the Philippines – all these involve mass atrocities duly established yet either awaiting or pending judicial scrutiny.18 These situations taken together show how the violation of IHRL involves a separate and distinct discourse from international criminal liability. One may ask: Is international criminal justice mere rhetoric?

Such is the predicament of the human rights advocate: While grave atrocities may be proven beyond question, individual liability remains uncertain. But what begins as doctrinal conflation spirals into a paradigmatic paradox; causing amongst the layman and the legal mind alike misunderstanding and, worse, undue expectation.

It is said that the fairness of any criminal justice system should not be adjudged by convictions but acquittals.19 That apothegm seems to be lost to many when it comes to the ICC which has been on the receiving end of criticism amidst its decisions acquitting Jean-Pierre Bemba,20 Laurent Gbago and Charles Blé Goudé.21 The acquittal of Jean- Pierre Bemba, in particular, was criticized to have effectively adjudged “crimes […] to have committed themselves.”22 That view, however, fails to acknowledge the fine distinction between IHRL and ICL. When the subject of the law shifts from the state to the individual, there is a concomitant change in rules. The critique thus fails to make

15 Co-Prosecutors v Meas (Muth), Case No 003/07-09-2009-ECCC-OCIJ (ECCC, 2015). 16 The Gambia v. Myanmar, Request for the Indication of Provisional Measures (ICJ, 2020), available at: https://www.icj- cij.org/public/files/case-related/178/178-20200123-ORD-01-00-EN.pdf. 17 Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4 (ICC, 2020), available at: https://www.icc- cpi.int/CourtRecords/CR2020_00828.PDF; Alice Falkner, Afghanistan finally open for investigations, Voelkerrechtsblog (April 7, 2020), available at: https://voelkerrechtsblog.org/afghanistan-finally-open-for-investigations/. 18 Human Rights Watch, License to Kill: Philippine Police Killings in Duterte’s “War on Drugs” (2017), available at: https://www.hrw.org/sites/default/files/report_pdf/philippines0317_insert.pdf; International Criminal Court, Re- port on Preliminary Examination Activities (2019), available at: https://www.icc-cpi.int/itemsDocuments/191205- rep-otp-PE.pdf. 19 Richard Goldstone, Acquittals by the International Criminal Court, EJIL:Talk! (Jan. 18, 2019), available at: https://www.ejiltalk.org/acquittals-by-the-international-criminal-court/. 20 Prosecutor v. Bemba, ICC-01/05-01/08, Case Information Sheet, available at: https://www.icc-cpi.int/CaseInfor- mationSheets/bembaEng.pdf. 21 International Criminal Court, ICC Trial Chamber I acquits Laurent Gbagbo and Charles Blé Goudé from all charges (Jan. 15, 2019), available at: https://www.icc-cpi.int/Pages/item.aspx?name=pr1427. 22 Diane Marie Amann, In Bemba and Beyond, Crimes Adjudged to Commit Themselves, EJIL:Talk! (June 13, 2018), available at: https://www.ejiltalk.org/in-bemba-and-beyond-crimes-adjudged-to-commit-themselves/.

121 the required code-switch from IHRL to ICL and assumes that establishing human rights violations goes hand in hand with criminal liability.

This dilemma could be completely avoided by distinguishing either discipline from the other. While IHRL and ICL share in the fuel of noble convictions, the research invites caution from over-romanticizing droit pénal as droits de l’homme. They may be equally valued in the international justice experiment, but that is not to say they are co-extensive. They differ in application, procedure, material scope and institutional bias. Indeed, unlike the pro homine implications ingrained in IHRL, there is no presumption of liability in ICL. On the contrary, the prosecutorial process is far from levelled and leans in favor of the defendant.

Unlike the state, the accused’s innocence is not only a possibility, it is a time-honored, though rebuttable, presumption. Equating criminal acquittals with “[c]rimes adjudged to have committed themselves” thus ignores the legal differences, and at times, disa- greements between crime and culpability. The critique fails to view IHRL and ICL as separate disciplines; as if finding for state responsibility comes hand in hand with individual liability. The gaps betwixt contexts of criminality, on one hand, and criminal conduct and the criminal mind (actus reus and mens rea), on the other, remain to be bridged.23

Conclusion

International Criminal Law is often conflated with the traditional, state-centric rules of Public International Law. With the shift from state responsibility to individual criminal liability, there is a concomitant change in rules – from VCLT rules of interpretation to derivative doctrines of in dubio pro reo. By applying Articles 31 and 32 of the VCLT as the primary rules of treaty interpretation, the ICC erases the hierarchy between the Rome Statute (Article 21(1)(a)) and principles of international laws (Article 21(1)(b)).

That practice is misplaced. It is submitted that to remain faithful to the Rome Statute as a whole and the principle of nullum crimen stricta in particular, interpretative rules and jurisprudence alike must be applied in accordance with the hierarchy enshrined in Arti- cle 21. Thus, both the VCLT and jurisprudence of the ad hoc Tribunals may only find application in the International Criminal Court if there is a lacuna in Article 21(1)(a)- sources of law and if their application would not breach the limits imposed by Article 21(3) and Article 22 of the Rome Statute.

Disappointment finds its place within the grey in-betweens of expectation and reality. The frustrations felt by the international community with the international justice experiment, though not entirely without bases and at times painful and true, is largely a product of false expectancy. IHRL and ICL are not engaged in a pas de deux, but are faux amis with their own steps, swaying to their own rhythm. While Human Rights primarily seeks justice for victims, prosecutorial strategy primarily seeks to establish guilt à

23 Prosecutor v. Orić, IT-03-68-A (ICTY, 2008), available at: https://www.icty.org/x/cases/oric/acjug/en/080703.pdf.

122 la Al Capone. It is the failures to recognize that difference that leaves the human rights advocate wanting. It is necessary to separate the advocate from the advocacy by emphasizing how the success of ICL rests neither on acquittals nor convictions but on the reconceptualization of International Criminal Tribunals qua criminal courts.

The laws on individual criminal liability have erroneously relied on traditional, state- centric, rules of treaty interpretation. In stages involving the rights of the accused, the principle of in dubio pro reo should supersede, rather than be suppressed by, pro homine presumptions and VCLT-rules. While human rights mechanisms involving fact-finding and state responsibility may establish criminality, ICTs grapple with establishing criminal liability. This variance in objective brings with it just as varied rules. While establishing criminal contexts is pitted against lower thresholds of evidence (e.g. reasonable conclusion, substantial evidence, clear and convincing evidence), finding criminal culpability must hurdle the high evidentiary threshold of proof beyond reasonable doubt.

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Canada’s Colonial Genocide of Indigenous Peoples: Interpreting Genocide in a Counter-Hegemonial Perspective

Fannie Lafontaine and Catherine Savard*

In recent years, the concept of genocide has been part of many public discussions regarding the qualification of human rights violations experienced by Indigenous peoples in colonial contexts. In Canada, Indigenous peoples’ experience has both been labeled as “cultural genocide” and “genocide,” thus sparking a vivid debate on the respective nature and consequences of these two notions. From a legal perspective, this discussion is intimately connected to debated issues regarding the nature of the specific intent to destroy a group, which characterizes genocide. Whereas the concepts of “physical,” “biological” and “cultural” genocide were initially contemplated by the drafters of the Con- vention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”), intense pressure from colonial powers led to the exclusion of Draft Ar- ticle III providing for the latter. This exclusion currently holds a central place in the dominant interpretation of genocide, and it is often argued that genocide thus prohibits strictly physical and biological destruction, that is, the annihilation of the individuals that compose the group and that of the group’s reproductive capacity.

Building on the work of Canada’s National Inquiry into Missing and Murdered Indige- nous Women and Girls, this paper argues that the enduring debate surrounding the interpretation of the “intent to destroy” must be understood in the light of hegemonic ideas that are woven in the international criminal justice project. Specifically, it argues that the “physical-biological” interpretation of genocidal intent is problematic at many levels, as it places colonial narratives at the heart of the currently dominant understanding of genocide. It thus contributes to the furtherance of international criminal justice as a colonial project, while perpetuating its traditional failure to encompass Indigenous and gendered perspectives. This paper thus critically analyzes the various divergent interpretations of genocidal intent that have emerged through time, to demonstrate how colonial narratives have shaped and continue to impact our understanding of genocide. Then, it demonstrates that the dominant “physical-biological” interpretation of genocide cannot be justified from a positive law perspective. It rather defends an interpretation of genocidal intent that encompasses not only physical and biological destruction, but also that of the group as a social unit. This emerging understanding of genocide also aligns with the grassroot reality of the crime, while paving the way to realize international criminal law’s counter-hegemonic potential.

The term “genocide” was coined in 1944 by the Polish jurist Raphael Lemkin, who first used this word in its book Axis Rule in Occupied Europe. Whereas this work mostly aimed at mapping and disseminating the various techniques used by the Nazi regime to extend its control over Europe, chapter IX specifically discussed the concept of genocide, a neologism meant to refer generally to the intentional destruction of human groups. Lemkin classified various genocidal acts perpetrated by the Nazi regime under various categories, which still shape our understanding of the notion. In particular, “physical” genocide comprised acts of murder, mass killings and endangering of health;

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“biological” genocide included acts designed to lower the birth rate of a given group, notably by separating individuals of opposite sexes; and “cultural genocide” covered, inter alia, the destruction of libraries, forcible transfer of children, and a rigid control of cultural activities.

Following the end of the Second World War, the then newly created United Nations General Assembly unanimously expressed the will to elaborate an international convention to prevent and punish genocide. Raphael Lemkin was very active during the negotiations surrounding the creation of this novel instrument and had a significant influence throughout this convoluted process. In particular, the drafters of the Convention considered the concepts of physical, biological and cultural genocide, the latter being at the heart of vivid controversy. As hegemonic ideologies were deeply entrenched in many states’ policies at the time, many colonial powers were extremely reluctant to penalize a conduct they were themselves currently perpetrating at the very moment the Conven- tion was being drafted. These concerns ultimately led a Draft Article III explicitly providing for cultural genocide to be withdrawn from the Convention, with a vote of 25 versus 16, and 4 abstentions.

The Genocide Convention was adopted in 1948 and entered into force three years later, soon becoming part and parcel of customary international law. However, it is only a few decades after its adoption that the Genocide Convention gave rise to the development of a significant body of jurisprudence, in the wake of the atrocities perpetrated in the 1990s the former Yugoslavia and in Rwanda. When it comes to the specific intent to destroy a group, divergent approaches were followed by the various international and national tribunals tasked with the interpretation of this notion. These divergent interpretations can generally boiled down to two jurisprudential trends. On the one hand, the “physical-biological” approach was reiterated numerous times and nowadays can be said to constitute the dominant interpretation of genocidal intent. This interpretation, prominently expressed in the Krstić judgement, mostly focuses on the Genocide Con- vention’s travaux préparatoires and on the exclusion of cultural genocide, to conclude that the term “destroy” strictly encompasses the physical and biological destruction of a group. This interpretation also builds upon the 1996 International Law Commission’s Draft code of crimes against the peace and security of mankind, whose Commentary expresses a similar argument. On the other hand, another jurisprudential trend rejects this “physical-biological” interpretation, and advances that the term “destroy” encompasses not only physical and biological destruction, but also that of the group as a social unit. Even though this approach has been followed by a minority of national and international tribunals – being championed notably by German national courts and by judge Shahabuddeen’s dissent in the Krstić case –, it appears much more compelling for three main reasons.

First, the centrality of the Genocide Convention’s travaux préparatoires in the “physical- biological” interpretation of genocidal intent is not coherent with the principles of interpretation provided for in the Vienna Convention on the Law of Treaties. A treaty’s drafting history constitutes but supplementary means of interpretation, which can only be used either to confirm the meaning stemming from the application of the general rule, or to determine the meaning of the treaty if the application of the general rule leads

125 to an ambiguous, obscure, absurd or unreasonable meaning. Thus, placing the travaux at the heart of the interpretative process cannot be justified from a positive law perspective. That being said, the text of the definition itself, and notably the ordinary meaning of the words “group” and “as such,” directly lead to the conclusion that the term “destroy” encompasses not only physical and biological destruction, but also that of the group as a social unit. This interpretation is also coherent with the Genocide Conven- tion’s object and purpose, as expressed by the International Court of Justice in its 1951 Advisory Opinion on the Reservations to the Genocide Convention.

Second, even if any ambiguity was to be found following the application of the general rule of interpretation, recourse to supplementary means remains of limited relevance to determine the meaning of the term “destroy.” The Genocide Convention’s drafting history reflects a complex and convoluted process involving a plurality of actors sharing conflicting views. Specifically, when it comes to the meaning of the term “destroy,” the search for a common understanding of the term is illusory. The exclusion of Draft Ar- ticle III as it stood, following a tied vote featuring a small number of states, does not imply a shared intent to exclude all possible forms of destruction other that physical or biological. To the opposite, the travaux reveal a plurality of divergent views on the desired nature of the destruction inherent to genocidal intent. These divergences crystal- lized in the text that was ultimately adopted without any evidence of a shared intent of the parties on that matter.

Third, understanding genocide as encompassing the destruction of a group as a social unit is essential to align with the grassroot reality of the crime, as it acknowledges its socially destructive impacts, including its inherently gendered component. Whereas it is now widely recognized that rape and sexual violence constitute genocide, a strict “physical-biological” approach fails to adequately comprehend the destruction that is sought by these acts. A gendered approach to genocide reveals that gender considerations are woven in the perpetrators’ mens rea, as gender destructive acts maximize the destruction of the targeted group. Targeting victims in a gender-oriented manner destroys the very foundations of the group as a social unit and leaves long-lasting scars within a group’s social fabric. It is inherent to the destruction of the group as such and is inseparable from the violence continuum that constitutes genocide.

In sum, interpreting genocide as encompassing the destruction of a group as a social unit is more coherent both with positive law and with the grassroot reality of the crime. It also paves the way to developing international criminal justice’s counter-hegemonic potential, as it challenges the colonial narratives that have been and still are entrenched in the dominant understanding of the concept.

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The Global South and the Drafting of the Subject-matter Jurisdiction of the International Criminal Court*

Taxiarchis Fiskatoris

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 unfortu- nate discontinuation of the international criminal justice project. Contrary to such perspective, this paper 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 paper 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 it operates. In doing so, it 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

The mainstream international criminal law scholarship approaches the subject-matter jurisdiction of the International Criminal Court (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. In reality though, 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 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.1 This paper first deals with two such discontinuities in the traditional narrative, namely the promotion of the idea of an international criminal court through the 1973 Apartheid Convention, and the 1989 Trinidad and Tobago proposal for an international penal jurisdiction against trafficking in narcotic drugs. It will then bring to light the views of States from the Global South, as documented in their comments about the Draft Code of Offences against the Peace and Security of Mankind, and the opinions of Global South members of the International Law Commission, as indicative of the opinions of “the most highly qualified publicists” from the Global South. Subsequently, the paper will expose how the procedure followed at the final phase of the drafting history of the Rome Statute put delegations from the Global South in disadvantage. The concluding

* Taxiarchis Fiskatoris, Philipps-Universität Marburg, [email protected] 1 Schwöbel-Patel 2020, p 770

127 part 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 it operates. In doing so, it subverted the counter-hegemonic capacity of the institution and opened the door to potentially competing regional projects.

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 International Law Commission (ILC) elaborated a draft code in 1951 and 1954, which did not stray too far from the catalogue of Nuremberg crimes. Nevertheless, despite strong opposition by renowned members, such as Hersch Lauter- pacht, 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. The prospect of a permanent criminal tribunal had been inscribed in the 1948 Gen- ocide Convention. After a positive conclusion of the International Law Commission on the feasibility of such a project, the General Assembly handed over the drafting of a statute for a permanent international criminal court to a subsidiary ad hoc political body. The latter concluded in 1953 a draft, vesting intentionally in abstracto the proposed court with jurisdiction over “crimes generally recognized under international law”. On the pretext of the unresolved issue of the definition of aggression, both the code of offences and the court’s project 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 Organisation (UN) had welcomed over seventy new members, most of which former African colonies. Already since 1965, the changed voting balance within the United Nations had enabled the General Assem- bly 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.

However, the Apartheid Convention went a step further. Echoing the 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 Con- vention 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”. The United Nations Commission on Human Rights swiftly advanced the project of a tribunal with the assistance of the Egyptian-American

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Professor Cherif Bassiouni. Bassiouni submitted by the end of 1980 a report suggesting the conclusion of a supplementary “Convention on the Establishment of an Interna- tional Penal Tribunal for the Suppression and Punishment of the Crime of Apartheid and Other International Crimes”.2 The latter contemplated an international criminal court, vested with jurisdiction over “grave breaches” of article II of the Apartheid Con- vention, 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”.

The United Nations, including of course the members of the Global South, failed to grasp the 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 in 1970 by Robert Kurt Woet- zel and directed by his close friend Arthur Robinson.3 In his capacity as Prime Minister of Trinidad and Tobago, Robinson deposited in 1989 a formal request for the inclusion of a supplementary item in the General Assembly’s agenda regarding “[i]nternational criminal responsibility of individuals and entities engaged in illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities”. Calling for the “establishment of an international criminal court with jurisdiction to prosecute and punish individuals and entities who engage in, inter alia, the illicit trafficking in narcotic drugs across national borders”, 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 mul- tiplied 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”.4 Throughout the legislative history of the International Criminal Court, and indeed after its operation, several States and scholars have suggested that “transnational crimes” in the like of drug trafficking should better be addressed by national jurisdictions through an enhancement of international cooperation, dissembling the shortcomings of the indirect enforcement system, which largely privileges powerful States.5 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”. On the contrary, States of the Global North focus on the function of international criminal law

2 See Bassiouni M C, Derby D (1981), p 523 3 See Glasius M (2006), p 10 4 Boister N (2009), p 343 5 See Boister N (1998), p 36

129 and justice as an enforcement system upon the “unwilling”; as an avenue for punishing faraway atrocities of “limited application and occurrence”.6

The proposal signalled the home stretch of a decades long aspiration. The Sixth Com- mittee 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 Inter- national Law Commission 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”.

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 International Law Commission 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 Carib- bean (Barbados), a Pacific (Fiji), an African (Nigeria), a Southeast Asian (the Philip- pines), a Middle Eastern (Syrian Arab Republic), and two Central American (Mexico and Panama) States. The General Assembly called for the comments of the UN Mem- ber 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 enthusiasti- cally backed the initiative, proceeding to concrete proposals.

Among many States which felt that due account should be taken in the proposed code of existing instruments condemning colonialism or affirming the principle of self- determination of peoples, Algeria considered colonialism as “clearly” coming within the ambit of the project. Sudan referred to the “exploitation of the natural wealth of peoples”, and Zaire highlighted the economic aspect of the security concept. Sudan and Zaire also endorsed the UNESCO suggestion for the consideration of “cultural genocide”. A significant number of States from 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 Euro- pean demand for the criminalisation of nuclear weapons and other violations of arms control treaties. Bangladesh, Madagascar, Mongolia, but also Finland, regarded slavery and the slave trade as crimes deserving a place in the Code. Madagascar also stressed that a code which sidestepped the use of mercenaries “would lose all credibility in the

6 Boister N (1998), p 38

130 eyes of the vast majority of the peoples of the third world”. Algeria, Senegal, Sudan, and Zaire from the African continent, as well as Afghanistan, Cuba, and Guyana openly stood by the island State. The Philippines referred to crimes of economic nature, such as “large-scale fraud, the absconding of public funds… counterfeiting and forgery offences and other similar offences that would tend to financially or economically destabilize the economic viability and security of States, particularly those of the developing States”.

In light of the received comments, the General Assembly, by Resolution 36/106 of 10 December 1981, decided to invite the International Law Commission “to resume its work with a view to elaborating the draft Code of Offences against the Peace and Se- curity 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”. The following year, the Commission appointed the Senega- lese 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. In the view of the Special Rapporteur, aggression, slavery, colonialism, apartheid, and environmental crimes belonged to this category and definitely to the code. Thiam generally considered the old article 19 of the draft articles on State responsibility a good starting point. However, the International Law Commission's report made clear that the draft would “not relate to all the international crimes defined in article 19, which would make it an international penal 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. 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 also opened a debate on the inclusion of the use of nuclear weapons, and economic aggression. Regarding the former, he concluded in an irresolute negative recommendation, prompting the Commission to “distinguish between what is desirable and what is possible and maintain a reasonably real- istic stance”. Respecting the latter, he asserted that “the expression ‘economic aggression’ is perhaps more suited to political than to legal parlance”. Besides, the code already covered aggression and interference in the internal or external affairs of a State. The German member Christian Tomuschat acknowledged that economic aggression was of primordial importance “particularly for third world countries”, but reckoned that its inclusion in the code would not deal with the problem better than the Security Council. The advocates of the need for 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

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“intervention in the internal or external affairs of a State by fomenting [armed] subver- sive or terrorist activities or by organizing, assisting or financing such activities, or sup- plying arms for the purpose of such activities, thereby [seriously] undermining the free exercise by that State of its sovereign rights”. 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”.

In addition, 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. The commentary explained that the article did not concern only traditional colonialism but all kinds of alien domination, 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”. 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 International Law Commission proceeded to the adoption of the Draft Code of Crimes against the Peace and Security of Mankind on first reading. Because of the difficulties that the partition in crimes against peace, war crimes, and crimes against humanity posed to its duty to extend the code’s scope taking into account the development of international criminal law since the 1950s, the Commission dared to do away with the distinction. The 1991 Draft Code included therefore 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 training of mercenaries; international terrorism; illicit traffic in narcotic drugs; and wilful and severe damage to the environment.

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 Code. More importantly, the dissociation 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 such a drastic curtailment, 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”. He felt that the omitted offences were unpopular

132 with many governments but remarked that “third world countries had generally not expressed their views”. Some members of the Commission argued that “[t]he silence of the States that had not made observations could equally be interpreted as an acceptance of the old list”.7 In effect, there was nothing to suggest that States of the Global South had consented to the deletion of offences like apartheid, colonial domination, intervention, and mercenarism. In the discussions held at the Sixth Committee, a clear majority of States representing the Global South and taking a position on the matter expressed their disappointment at the curtailment of the list. However, the Global South failed to raise a concerted voice. Actually, a small part of it, driven by considerations of practical nature and often by the “hope that such restrictions would be temporary”, backed the restrictive approach forwarded by a marginal majority of Northern States.

The objection of Southern international lawyers in the International Law Commis- sion was more robust. The Mexican Alberto Székely 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”. While the supporters of the curtailment focused on the prospects of acceptability of the Draft Code by States, the Indian Pemmaraju Sreenivasa Rao, as well as Awn Shawkat Al-Khasawneh, who later became an ICJ Judge and Prime Minister of Jordan, reminded that the Commission, as a body of independent jurists, should not prejudge the position of States but provide them with a legal assessment of the topic. Attention was drawn to the unequal treatment of the crimes under consideration. For instance, Guillaume Pambou-Tchivounda from Gabon wondered why aggression was singled out for special treatment, whereas apartheid was eliminated. The rest of the Commission’s members expressed their understanding of the Special Rapporteur approach but took distinct sides for or against the exclusion of individual crimes. The exclusion of the threat of aggression and intervention met with the least opposition “because of the nebulous character of the underlying concept and the lack of rigour required by criminal law”. Apart from the alleged lack of a clear definition, apartheid and colonialism faced the argument of obsolescence. Advocates of their inclusion doubted the disappearance of all forms of colonial or neo-colonial domination and of any system of institutionalised discrimination by whatever name. They counter- claimed that, even if that was the case, the code should include acts because they were criminal in nature and not exclude them because they were no longer likely to occur. Besides, their recurrence at any time or place could not be precluded, and in that respect, the code could serve as an instrument of deterrence. These members also pinpointed the draft code's symbolic nature, which should not disregard the historical significance of colonialism and apartheid and undermine the many decisions of the United Nations organs. 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

7 Cf Quane H (2014)

133 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”.

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.8 The decision of the Com- mission though to satisfy at the last minute the American proposal for the inclusion of crimes against United Nations and associated personnel left Southern members disgruntled. They gave notice of their intention to reopen the consideration of omitted offences, such as colonialism, intervention, mercenarism, drug trafficking, terrorism, and aircraft hijacking. The Guatemalan Francisco Villagrán Kramer refused to join a consensus unless the Commission reviewed the inclusion of intervention and drug trafficking, which were of great importance to Latin America, as well as international terrorism and environmental crimes. 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”.

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. On the other side, a dozen States from the Global South, with the addition of Bulgaria and Greece, stood critical, although they did not share the same agenda and expectations. In the view of the delegation of Iran, “the Commission had sacrificed juridical idealism, i.e. an exhaustive codification of international crimes, to political expediency”, while the delegate of India wondered “whether such a minimalist approach was really appropriate, given the objective sought”. According to India, “[t]he draft Code in its current form did not meet the expectations of the international community”. Cuba and Algeria were of the opinion that colonialism, intervention, international terrorism, and environmental crimes “had been abandoned for dubious juridical and political reasons”.

3. The travaux préparatoires of the Rome Statute

As mentioned in the second part, the General Assembly invited the International Law Commission to deal in the framework of the item of the draft code with the Trin- idad and Tobago’s proposal for an international criminal tribunal. A Working Group of the Commission, chaired by Abdul Koroma from Sierra Leone, recommended in 1992, when the code still contained 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. Such an

8 Vargas Carreño had been elected as a member of the Commission in 1992, two years after Augusto Pinochet had stepped down.

134 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.9 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 shrinkage 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. The impact of the International Criminal Tribunal for the former Yugoslavia was evidently instan- taneous, with the Working Group declaring that “[i]t was guided in the choice of these in particular by the fact that three of the four crimes are singled out in the statute of the International Tribunal as crimes under general international law falling within the jurisdiction of the International Tribunal”.

As for the crime of aggression, the Working Group merely stated that it would “seem retrogressive to exclude individual criminal responsibility for aggression (in particular, acts directly associated with the waging of a war of aggression) 50 years after Nürnberg”. It further noted that

“[t]he inclusion of these four crimes represented a common core of agreement in the Commis- sion, and [was] without prejudice to the identification and application of the concept of crimes under general international law for other purposes”… ; “[i]t is limited to those crimes under general international law which the Commission believes should be within the jurisdiction of the court at this stage, whether by reason of their magnitude, the continuing reality of their occurrence or their inevitable international consequences”. The abasement of apartheid to the class of treaty crimes met with incisive criticism. The Chair of the Working Group had to concede that apartheid had not been classified as a “crime under general international law”, “not because it was not” one, but for the reason that “no consensus had been obtained for the inclusion of other crimes, including the crime of apartheid”.

The International Law Commission 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”.10 Nonetheless, it is controvertible whether that corre- sponded 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

9 See Schabas W (2010), p 103 10 Bos A (2002), p 41

135 participating States together.11 Among the present delegations, thirty originated from Europe and North America, nineteen from Africa, seventeen from Asia, and twelve from Central and South America. The Pacific region was represented only by Australia; the Caribbean islands only by Trinidad and Tobago, and Antigua and Barbuda. 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.12 Nev- ertheless, in the words of Adriaan Bos, “[a]fter the first session [of the Ad Hoc Commit- tee], the groundwork for the establishment of the Court was … already laid with regard to the scope of the Court’s jurisdiction ratione materiae”.13 The participation of the Global South was still weak at the subsequent Preparatory Committee, that held six sessions between 1996 and 1998.

During the examination of the reports of the Preparatory Committee by the Sixth Committee of the General Assembly, the fourteen members of the Caribbean Commu- nity (CARICOM) and the fourteen members of the Southern African Development Community (SADC) spoke uniformly against the exclusion of treaty crimes, the former with an emphasis on the illicit traffic in narcotic drugs, the latter proposing a consent- based mechanism. The Philippines brought up “the plunder of national wealth by former holders of office exercising the highest authority”, Tanzania referred to mercenarism, and Libya would have liked the planned court to adjudicate case of “use of weapons of mass destruction”. The Global South had not given up. The United Nations Diplomatic Conference on the Establishment of an Interna- tional Criminal Court convened in the Italian capital from 15 June to 17 July 1998. The conference was open to all Member States of the United Nations, and with the help of a Trust Fund, 160 States were able to participate. In spite of complaints that “the proliferation of informal groups within the [Preparatory] Committee had perceptibly affected the participation of small delegations, which very often were not able to contribute to the preparation of texts”, the negotiations followed a similar method, with various issues assigned to formal or informal working groups. The insider’s view of Professor Bassiouni was that, although this procedure expedited the complex task of the conference, “[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”.14

Nevertheless, “a North-South divide was virtually absent at the ICC negotiations”.15 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.16 On the other hand, it is possible

11 There were approximately 80 participating States, and 90 absent States from the Global South. There were also two dozens of absent States from the Global North. 12 Bos A (2002), p 53 13 Bos A (2002), p 43-44 14 Bassiouni M C (1999), pp 449-450 15 Glasius M (2006), p 24 16 See Kirsch P, Robinson D (2002), p 70

136 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.17 More than 60 from a total of 160 States present at the Rome Conference had adhered to the “like-minded group”.18

Apart from the fervent proponents of the inclusion of drug trafficking and terrorism, only a handful of States sought to expand the debate on the court's subject-matter 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”. 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. Comoros and Madagascar submitted a formal proposal for the inclusion of “acts committed by mercenaries”.19 None of the above proposals attracted the attention of the conference.

One of the achievements of the Global South with regard to the Court’s subject- matter 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.

4. Concluding Remarks

From the above it has become clear that the major part of Global South has consist- ently 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. Within the UN General Assembly, its subsidiary organs and committees strove for the international criminalisation of institutionalised racial discrimination, all forms of colonialism and alien domination, all kinds of external intervention, including economic intervention, mercenarism, environmental crimes and a series of transnational organised criminality.

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. The curtailment of the Draft Code on second reading, and the disassociation from it of the question of the international criminal court striped the hopes of the Global South for a genuinely counter-hegemonic project away. In Rome, it was already too late. Hidden behind an extra- dition system that favours them, behind debatable arguments about the distinctive legal

17 Cf Clarke K M (2016), pp 331-332 18 See Schabas W (2017), p 19 19 See Zimmermann A (2008), p 132

137 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 conceal the fact that the origin of disagreement has always been the Global North.

However, 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 International Criminal Court, investing in more relevant to their needs competing regional projects. 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.20 A similar project has been contemplated in South Amer- ica.21

The incompatibility of some of the offences of the Malabo Protocol with the prevailing doctrinal theories of international criminalisation should not be overemphasised. 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”.22 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. Is this a risk that the international community is willing to take?

References

Bassiouni M C, 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

Bassiouni M C (1999) Negotiating the treaty of Rome on the establishment of an international criminal court. Cornell International Law Journal 32: 443-469

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

20 See Werle G, Vormbaum M (2017) 21 See Currie R J, Leon J (2019) 22 O’Keefe R (2015) 54

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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 K M (2016) Why Africa? In: Steinberg R (ed), Contemporary issues facing the international criminal court. Brill/Nijhoff, Leiden; Boston, pp 326-337

Currie R J, Leon J (2019) COPLA. A transnational criminal court for Latin America and the Caribbean. Nordic Journal of International Law 88: 587-613

Glasius M (2006) The international criminal court. A global civil society achievement. Routledge, London; New York

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

Quane H (2014) Silence in international law. British Yearbook of International Law 84: 240-270

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, Cam- bridge University Press, Cambridge

Schwöbel-Patel C (2020) The core crimes of international criminal law. In: Heller K J et al. (eds) The Oxford Handbook of International Criminal Law. Oxford University Press, Oxford, pp 768-790

Werle G, Vormbaum M (eds) (2017) The African criminal court. A commentary to the Malabo Protocol. TMC 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

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The Impacts of English Language Hegemony on the International Criminal Court

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 Humboldt1

1. Introduction

Chair of the recently formed 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’. 2 Such alienation is particularly notable when it occurs within institutions which purport to be ‘universal’ and whose very mandates promote equity and justice. This is the case with the International Criminal Court (hereafter the ICC or the Court).

The ICC’s working language policy conforms to the mold 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 an- nouncements reading, ‘Working knowledge of the other is desirable’. As in other comparable institutions, 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 purporting to promote universal principles?

This paper, based on a multi-year ethnographic project that examined how the ICC addresses diverse language challenges,3 highlights the voices and perspectives of persons interviewed across the Court’s units and functions. The author explores various impacts

1 On Language: On the Diversity of Human Language Construction and its Influence on the Mental Development of the Human Species (1836). Cambridge U Press, 2000. Pg? 2 Humphrey Tonkin, 19 April 2021, from remarks delivered upon the opening of the symposium ‘Language and Mi- gration: Experience and Memory’, organized by the Migration Lab of Princeton University. See https://migration.princeton.edu/symposium. 3 Between 2017 and 2019, the author carried out more than 60 interviews with persons who either provided language services at the Court or regularly used them in the course of their activities. 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 communication staff.

140 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, and its everyday language choices. It will be shown that the clear dominance of a single language, English, carries with it practical and conceptual impacts that not only render the Court less efficient but tarnish the image of universality that the ICC so desires to achieve.

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’.4 Despite the use of words suggesting a world-wide mandate, the Court’s true universality has been frequently challenged over its first twenty years of operation, whether in reference to its geographically targeted prosecutorial choices,5 its Western-inspired legal foundations,6 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-of-hand 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.7 In her provocative monograph Is International Law International?, for example, Anthea Roberts describes a number of ways in which the increasing turn toward English has shaped the field.8 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.9

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.

4 ICC website: https://www.icc-cpi.int/about. 5 A good discussion of this phenomenon can be found in Oumar Ba, States of Justice: The Politics of the International Crimi- nal Court, 2020, Cambridge University Press. 6 Julie Fraser provides an overview of scholarly literature on this topic in ‘A Seat at the Table: Islamic Law’s Neglected Potential in Universalising International Humanitarian Law’. Forthcoming in Norman Weiss and Andreas Zimmerman (eds.) Human Rights and International Humanitarian Law: Challenges Ahead (Edward Elgar 2021). 7 See e.g. Daniel Terris et al, The International Judge: An Introduciton to the Men and Women Who Decide the World’s Cases, Brandeis University Press, 2007); Michael Bohlander, Language, Culture, Legal Traditions, and Interna- tional Criminal Justice. 12 J. OF INT’L CRIM. JUST. 491, 491–513 (2014); Christian Tomuschat, ‘The (Hegemonic?) Role of the English Language’, Nordic Journal of International Law, 86 (2017) 196-227; Mathilde Cohen, Continuing Impacts of French Legal Culture on the International Court of Justice, in Comparative International Law (Anthea Roberts et al eds, Oxford 2018. 8 Anthea Roberts, Is International Law International? Oxford University Press 2017. 9 Justina Uriburu, ‘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-english-centrism-in-international-law/)

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2.1 What about the Rome Statute?

The ICC’s Rome Statute clearly states that ‘[t]he working languages of the Court shall be English and French’.10 But as one ICC staff member in a leadership position put it, ‘We have officially Article 50 of the Rome Statute, with two working languages, English and French. But to be honest, it’s English and English’.11 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’.12 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.’13

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 (OTP), 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’.14

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 Lan- guage Services Section (LSS), and its chronic understaffing, the French version is often delayed or may not ever follow at all.15 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 Congo (DRC), the Central African Republic (CAR) 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

10 These two languages in addition to Arabic, Chinese, Russian and Spanish serve as the Court’s official languages. Cite Article 50 of Rome Statute. 11 Author interview RD-4 (6 June 2017). 12 Author interview RL-7 (2 June 2017). 13 Author interview RL-12 (7 June 2017) 14 Author interview OTP-5 (27 June 2019) 15 Personal communication with former Registry staff member (21 May 2021).

142 issued despite LSS having repeatedly told ICC staff to refrain from using such machine translation websites as they are not confidential16.

The apparent lack of institutional concern over the second-class position of French, despite its equal status in Rome 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’;17 • ‘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.’18

The author has examined in detail elsewhere the extraordinary efforts made by LSS 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.19 The Language Services Unit of the OTP also provides investigators, who are 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.20 As of 2021, LSS is providing services in over 40 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 that they have few speakers in a given location, are non-standardised and largely oral, and for which few or no accredited interpreters exist.21 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 messages.22

French is a widely spoken language, in Europe as in Africa, and it has furthermore played an important role as a ‘situation language’ in the ICC cases focused on crimes in DRC, CAR, Côte d’Ivoire and Mali. It is not difficult to find instruction in the French language, and a veritable army of professional interpreters and translators for that language already exists. If the ICC wished to honor the working language status of that language, it would be a much simpler matter than providing services in some of the rarer languages that LSS has successfully tackled.

2.2 Voices of the Court

16 Ibid. 17 Rome Statute Article 67(1)(a). 18 Rome Statute Article 67(1)(f). 19 Leigh Swigart, ‘Unseen and Unsung: ICC Language Services and Their Impact on Institutional Legitimacy’. In Freya Baetens (ed.) Legitimacy of Unseen Actors in International Adjudication, 2019, Cambridge University Press. 20 Ibid. 21 See Katalin Balogh, Heidi Salaerts, and Dominique Van Schoor (eds), TraiLLD: Training in Languages of Lesser Diffu- sion (Lannoo Campus Publishers 2016). 22 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).

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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 Of- fice of the Prosecutor and the Registry – frequently make public statements, lead delegations to countries that are States Parties to the Rome 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 her 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.23 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 Eng- lish-speaking country, addressed the gathered dignitaries in French, Mali’s official language.24 Bensouda also regularly made opening statements in French for trials related to crimes in French-speaking countries.

With the passage of time, however, the ICC has apparently become less concerned that its officials embody the bilingualism presented to the world as the Court’s working model. The current generation of leaders use English exclusively and may not even publicly state their intention to work toward proficiency in French, once considered de rigueur. 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.25

Such lack of bilingualism among top management of the Court is a point of dismay for many staff members, particularly for 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’26. 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

23 31 October 2016. http://webtv.un.org/watch/silvia-fernandez-de-gurmendi-president-of-the-icc-on-the-report-of- the-international-criminal-court-general-assembly-37th-plenary-meeting-71st-session/5191293148001/?term=. 24 30 March 2021, https://www.pscp.tv/w/1ZkKzeVrNmDxv. 25 Leigh Swigart, ‘Now you see it, now you don’t: culture at the International Criminal Court. In Julie Fraser and Bri- anne McGonigle Leyh(eds.) Intersections of Law and Culture at the International Criminal Court, Edgar Elgar, 2020. p 30. 26 Author interview RP-2 (8 June 2017)

144 also a general issue that when you speak English, you don’t really have to make efforts to learn other languages’.27

A top Court official and outspoken advocate for bilingualism at the ICC 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.28 ‘I think the word “international” in the International Criminal Court 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’.29

2.3 Does it really matter?

Why is the sidelining 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 important in the context of a world where an estimated 6,000 languages are spoken?30 In discussing the ‘office culture’ at the Court, which tends to downplay recognition of language diversity as well as language skills more generally,31 an OTP interviewee 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!32

The author asserts that the dominance of a single language is not a simple matter of numbers and statistics, but that it 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 multilingual and multicultural constituents.

3. Practical considerations: what does English language hegemony mean for day-to-day activities?

27 Ibid. 28 Author interview RD-4 (6 June 2017) 29 Ibid 30 Figure cited in Tomuschat, The (Hegemonic?) Role of English. 31 Swigart Now you see it, now you don’t. 32 Author interview OTP-8 (24 June 2019)

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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 Rome 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.

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 English33 and must subsequently be translated into French, a long and complicated process that entails the labor of multiple LSS translators and revisers.34 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, due to enormous translation backlogs as well as chronic underfunding and understaffing of the LSS.

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.35 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.36 A current LSS staff member echoed this view. ‘Trans- lation, 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’.37

The sheer impossibility that LSS could actually handle all the translation required by the various units and sections of the Court leads to a lot of ‘informal translation’ by Eng- lish/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.38 Several young bilingual interns working temporarily with ICC defense teams related that translation became one of their primary tasks, as they were called upon to bridge the gap between English- and French-speaking team members.39 The OTP 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-

33 Author interview CL-1 (6 June 2017). 34 Swigart Unseen and Unsung. 35 Personal communication with former Registry staff member (21 May 2021). 36 Ibid. 37 Author interview RL-13 (8 June 2017). 38 Author interview RP-2 (8 June 2017). 39 Author interview RD-1 (2 June 2017); author interview RD-2 (7 June 2017).

146 language document, observed a language professional in the Office’s Language Services Unit.40 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.41

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’.42 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.

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’.43 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’.44 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’.45 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 diplomats say is invariably correct form a formal viewpoint of grammar and style and enjoys therefore generally

40 Author interview PL-5 (25 October 2017). 41 Author interview OTP-5 (27 June 2019). 42 Paola Gentile and Michaela Albl-Mikasa. ‘ “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, Issue 2017, Vol. 10. https://www.cultusjournal.com/files/Ar- chives/Gentile_Albl-Mikasa.pdf. 43 Tsedal B. Neeley, ‘Language Matters: Status Loss and Achieve Status Distinctions in Global Organizations’. Organi- zation Science, Vol. 24, No. t, March-April 2013, pp 476-497. p 477 44 Ibid p 484. 45 Roberts, Is International Law International?, p 260.

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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.46

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 mis- take is made, she added, ‘you pass for an idiot’.47 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’.48 A member of the OTP 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’.49

English language skills are also advantageous in the recruitment phase, despite the official pretense 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’.50 The head of a principal Court section noted that for many jobs, all applicants are 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’.51 A member of the OTP stated outright, ‘Essentially at this place – in the prosecution division – if you can't speak English, you can't do your job’. 52 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’.53

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 Af- rica, 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

46 Tomuschat, The (Hegemonic?) Role of English. P. 199. 47 Author interview RL-3 (30 May 2017). 48 Author interview RL-12 (7 June 2017). 49 Author interview OTP-3 (26 June 2019). 50 Author interview RL-12 (7 June 2017). 51 Author interview RD-4 (6 June 2017) 52 Author interview OTP-9 (19 June 2019) 53 Author interview CL-1 (6 June 2017)

148 of English/French bilinguals in LSS 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.54

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 2021, only four or five judges on the bench were able to work in French. Like other ICC staff members, however, judges are – at least these days – essentially unable to function solely in the French language. 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 into the bench.55 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 skills.

There have occasionally been fully French-speaking trial chambers (with 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 by counsel and witnesses on the floor) so that the official hearing transcripts, derived from interpretation, are available in both languages.56 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 pertained to crimes (allegedly) committed in Francophone countries – five in DRC, four in CAR, one in Côte d’Ivoire, and two in Mali.57 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.58 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:

54 Swigart, Now You See It 55 Cite interviews and personal communications. 56 Read more about how trial transcripts are created, and the irregular use of interpretation for this purpose, in Swigart, Unseen and Unsung. 57 See https://www.icc-cpi.int/cases 58 Author interview CJ-4 (8 June 2017) Fernandez.

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…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.59

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 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!60

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’.61 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 judges sitting on the case. 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.62 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.63

3.4 Artificial intelligence to the rescue?

The suggested solution to the lack of English/French bilingualism among ICC staff is rarely the active acquisition of language skills on their own part. Indeed, the Court has

59 https://www.icc-cpi.int/RelatedRecords/CR2019_02039.PDF 60 Author interview RV-1 (5 June 2017). 61 Author interview RD-4 (6 June 2017) 62 Author interview CL-1 (6 June 2017) 63 Ibid.

150 for many years offered in-house French language classes with apparently very few tak- ers. 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.64 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’.65 ‘That's why they fondly call us “interrupters” sometimes’, commented an LSS staff member. ‘Not interpreters, but “interrupters”’.66

A number of interviewees discussed the notion that inter-linguistic challenges might disappear with the advent of improved artificial intelligence.67 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’.68

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?’69 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.70

One interviewee brought the dream of dispensing with interpreters altogether back to a simple lack of familiarity what it means to be multilingual:

64 Author interview OTP-7 (24 June 2019); author interview CJ-6 (22 October 2018). 65 See https://translationexcellence.com/the-creation-of-simultaneous-interpretation/. 66 Author interview RL-7 (26 June 2019). 67 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). 68 Author interview OTP-7 (24 June 2019). 69 Author interview RL-19 (26 June 2019) 70 author interview RL-9 (25 June 2019)

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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.71

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

4. English language dominance and conceptual limits

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.72 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 given 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.

In her provocative book Imprisoned in English: The Hazards of English as a Default Lan- guage,73 Anna Wierzbicka makes this assertion about the monolingual worldview, one that largely echoes the observation made by Wilhem von Humboldt (serving as this paper’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.74

Among the interviews conducted for the author’s project on multilingualism 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’.75 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

71 Author interview RL-19 (26 June 2019) 72 https://www.icc-cpi.int/about 73 Anna Wierzbicka, Imprisoned in English: The Hazards of English as a Default Language, Oxford 2014. 74 Ibid p?? 75 Author interview RL-2 (29 May 2017)

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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.76

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’.77 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 prominent 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’.78 He also notes ‘an almost claustrophobic attitude where the research carried out ends at the boundaries of the Anglophone communication space’.79 What is the ultimate effect of such restrictions? According to Tomus- chat, ‘…linguistic dominance translates easily into intellectual and political self-insula- tion, wittingly or unwittingly’.80

Writing on the connection of whiteness and language, anthropologist Janet McIntosh describes how the history of empire and capital has set up Whites across the globe for language privilege, particularly English speakers. As tourists, they can almost always count on interacting with local populations and finding public signage in English. Eng- lish speakers can readily find overseas employment teaching their first language. ‘Relax- ing into this luxury’, McIntosh writes, ‘US Americans and British are among the most monoglot of peoples’.81

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.82 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 [Rome] 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

76 Author interview RL-3 (30 May 2017) 77 Roberts, Is International Law International?, p 267. 78 Tomuschat, The (Hegemonic?) Role of English, p 221. 79 Tomuschat, p 222. 80 Tomuschat, p 226. 81 McIntosh, Language and Whiteness, The International Encyclopedia of Linguistic Anthropology, date? Wiley. 82 Author interview RL-7 (2 June 2017) Ahmed

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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.83

In recent years, there has been pushback by certain judges to the ‘common law drift’84 that appears to have occurred at the ICC, despite efforts made at the Rome Conference to create a sui generis legal system.85 ‘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.86

This author has 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.87 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 Eng- lish, 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…’.88

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 allegedly ‘the cause of all humanity’.89 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’.90

83 Author interview CL-1 (6 June 2017) Nerlich 84 A term used by Colin Picker, as cited in Roberts, Is International Law International?, p 270. 85 Fatou Bensouda, ‘The ICC Statute: An Insider’s Perspective on Sui Generis System for Global Justice’. 36 NCJ Int’lL 277 (2010). 86 Author interview RL-7 (2 June 2017) Ahmed; personal communication SM (date?) Other? 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. 87 Swigart Now you See It. 88 Julie Fraser, A Seat at the Table: Islamic Law’s Neglected Potential in Universalising International Humanitarian Law, Forthcoming in Norman Weiss and Andreas Zimmermann (eds.), Human Rights and International Humanitarian Law: Challenges Ahead (EE 2021). 89 A description of the Court by former United Nations Secretary-General Kofi Annan. https://www.icc- cpi.int/about. 90 Wierzbicka, Imprisoned in English. P?

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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’.91 A very powerful ideology – often found in the world of language policy and education – understands multilingualism to be the combination of monolingualisms, and assumes that multilinguals move from one bounded system to another, ideally speaking each as if it were their only language.92 In other words, language use is judged according to a ‘monoglot standard’.93 Such an ideology ignores or stigmatizes the hybrid communicative practices that are so common around the world. 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…’.94

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 re- volve 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.95

How might adopting this different – and many would argue more accurate – conceptu- alization 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. Re- quests for such testing often come from the OTP, 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

91 Kathryn A. Woolard, ‘Language Ideology’, The International Encyclopedia of Linguistic Anthropology, 11 August 2020. Wiley. https://onlinelibrary.wiley.com/doi/full/10.1002/9781118786093.iela0217. 92 Nelson Flores and Jonathan Rosa. ‘Undoing Appropriateness: Raciolinguistic Ideologies and Language Diversity in Education’, Harvard Educational Review; Summer 2015: 149-171. 93 Michael Silverstein, 1998. Monoglot ‘standard’ in America: Standardization and metaphors of linguistic hegemony. In D. Brenneis R.Macaulay (Eds.), the matrix of language: Contemporary linguistic anthropology (pp 284-306). Boul- der, CO: Westview Press. 94 https://ealjournal.org/2016/07/26/what-is-translanguaging/. July 26, 2016. ‘What is Translanguaging?’ Author? 95 Frances Rock, ‘Shifting ground: exploring the backdrop to translating and interpreting’, The Translator, 2017, Vol. 23, No. 2, 217-236. P 218.

155 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’.96 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’.97 Profi- ciency 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.98 As a former leader in 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, which the accused indicated he spoke ‘perfectly’.99 In the end, the Pre-trial chamber decided, and then uphold 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 Rome Statute; 2) the accused could only have the services of a French/Sango interpreter and translator on an ad-hoc basis, when deemed necessary; and 3) not all court records/ filings would be translated into French as a matter of course.100 The trial chamber in The Prosecutor v. Alfred Yekatom and Patrice- Edouard Ngaïssona functions primarily in English and most of the decisions associated with the 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, and 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 LSS insider observed confidentially that, based upon conversations with experts in French and Sango, Yekatom did not appear truly proficient in either language.101 The evaluation of Yekatom as ‘semilingual’102 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.103 When a speaker is used to drawing on a broad linguistic repertoire for self-

96 Author interview OTP-8 (24 June 2019) 97 Rome Statute Article 67. 98 Yekatom’s case has been joined with that of Patrice-Edouard Ngaïssona. https://www.icc-cpi.int/carII/yekatom- nga%C3%AFssona 99 Order to Conduct a French Language Proficiency Assessment of Alfred Yekatom, No: ICC-01/14-01/18, 18 De- cember 2018. https://www.icc-cpi.int/CourtRecords/CR2018_06011.PDF. LSS was, incidentally, already equipped to handle French/Sango interpretation and translation as it was an important situation language in the Bemba trial. 100 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. 101 Personal communication former Registry staff member, 15 Feb 2019. 102 Flores and Rosa, Undoing Appropriateness 103 The author’s early scholarly work examined this phenomenon in Dakar with Wolof and French. See Swigart, ‘The Limits of Legitimacy: Language Shift in a Changing Market.’ 2001. Journal of Linguistic Anthropology 10(1) 90-130; ‘Cul- tural Creolisation and Language Use in Postcolonial Africa: The Case of Senegal’. 1994. Africa Vol. 64, No. 2:175-89. .

156 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 certain level as a member of parliament, or that he should speak Sango with a certain purity since it is his first language, reveals powerful assumptions about the nature of multilingualism and the practices of multilinguals. It reveals that the Court operates according to an unartic- ulated monolingual norm.

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. The author 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 Eng- lish in a natural, intertwined and unconscious manner. The interpreters repeatedly in- tervened, 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 it was clearly so normal that the speaker 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

Currently, the ICC has nine preliminary examinations and thirteen investigations ongoing. 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, such thinking serves to undermine imagination and comprehension within the walls of the Court.

The author has suggested elsewhere that persons working in international criminal justice, and judges in particular, ‘should possess the intellectual flexibility to imagine what

104 Rock, Shifting Ground, p 231.

157 it 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

5. Conclusion

In this paper, the author has 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 intrusions, and they are furthermore closely associated respectively with the two most dominant legal systems of the world, civil and common law. At the same time, French is already enshrined in the Rome 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 in the multilingualism of its staff – would ultimately achieve. It is, of course, impossible that ICC staff members, including those pivotal figures 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 geo- graphic 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, 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:

105 Leigh Swigart, ‘Linguistic and Cultural Diversity in International Criminal Justice: Toward Bridging the Divide’. The University of the Pacific Law Review, Vol 48, 2017. Pp 197-217. P 216. 106 Uriburu, Between Elitist Conversations. 107 Uriburu 108 Peter J. Laverack, as cited by Anthea Roberts, Is International Law International?. Peter J. Laverack, The Rise of

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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 paper contends that ICC staff members must be encouraged, indeed required, to step out of what von Hum- boldt 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 to judicial complementarity to audiences across the globe. Despite a growing caseload and expanding ge- ographic 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 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

Asia and the Status of the French Language in International Law, 14 Chinese Journal of International Law, 567 (2015) 109 Author interview CL-1 (6 June 2017) 110 Uriburu, Between Elitist Conversation 111 Swigart Unseen and Unsung 112 ‘Justice has costs, but it has no price’.

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SEXUAL HARASSMENT AND GENDER IMBALANCE AT THE ICC: THE CONTINUED HEGEMONIC ENTRENCHMENT OF MALE PRIVILEGE IN INTERNATIONAL CRIMINAL LAW

Angela Mudukuti

Table of Contents 1.Introduction ...... 161 2. Gender imbalance at the top and male privilege ...... 161 2.1Recruitment ...... 162 2.2 Elections ...... 164 2.2.1 Prosecutorial elections ...... 164 3.2.2 Judicial elections ...... 165 2.2.3 Registrar elections ...... 166 2.2.4 Impact of gender imbalance ...... 167 3. Sexual harassment ...... 168 3.1 Accountability for sexual harassment at the ICC ...... 169 4. The ICC’s efforts to address gender imbalance ...... 169 5. Conclusion ...... 170

Abstract The International Criminal Court (ICC), an invaluable part of the international criminal justice landscape has a mixed bag of successes and failures. Seeking to improve the efficiency and effectiveness of the Court, states parties initiated a review process led by a group of independent experts.

The Independent Expert Review (IER) process 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 paper will delve into the gender imbalance issues, sexual harassment and its handling at the Court and make reference to its impact on the international criminal law profession and beyond. Ac- cording to the 2018 Assembly of States Parties (ASP) Report of the Bureau on the Eq- uitable Geographical Representation of Gender Balance in the Recruitment of Staff of the ICC, only 1 out of 9 staff at the D1 level is female, 13 out of 43 at the P5 level are female, 30 out of 83 at the P4 level are female, and 79 out of 172 at the P3 level are female. The statistics are sobering and their impact on the field is clearly visible when one looks at the number of female candidates vying for top spots, such as the

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2020/2021 ICC prosecutor election where out of 9 finalists considered for the role there were only 2 women.

1.Introduction The International Criminal Court has been up and running since 2002. Considered a relatively young institution its past is colored 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 people who do this work and their environment.

The report released by the Independent Expert Review (IER) report covers an array of topics including the work environment. It is arguably the most comprehensive account of the work environment at the Court and it sheds light on sexual harassment and gender imbalance at the ICC which is effectively entrenching hegemonic male privilege. The paper will look at the gender imbalance at the top and its links to recruitment process and ICC elections, sexual harassment and accountability for sexual harassment and will come full circle to show why it is essential to correct the current gender imbalance.

2. Gender imbalance at the top and male privilege

Male privilege is when men are “afforded economic, social and political advantages in most societies.”1 (-Include more on male privilege in general.) In the field of international criminal law, male privilege is evident as it is a traditionally male-dominated field where men have benefitted from the “boys club” mentality and the erroneous assumption that women are not as capable. The ICC’s legislative oversight body, the Assembly of States Parties exhibits similar traits. The Independent Experts appointed in 2019 to conduct the review that will be referred to in this article consisted of only three women and six men. The Committee on the Election of the Prosecutor (CEP), appointed by the ASP member states in 2019 had four men and one woman. The Panel of Experts appointed in 2019 to assist the CEP had three men and only two women. The ASP is led by a Presidency and since the Court’s inception there have 7 Presidents and only two of them have been women. The 2020 Advisory Committee on the Nomination of Judges at the ICC has 9 members and only three of them are women.2 Whilst the ASP’s blatant gender problem is not the focus of this essay it is indicative of the imbalance in the field as a whole and exhibits male privilege. Be it deliberate or not, the fact is men continue to be given important positions in the field and a lack of gender balance is detrimental for the Court, for jurisprudential developments and for international criminal law as a profession.

1 Wenzel 2020 p.18 Available at https://www.google.de/books/edition/Male_Privi- lege/NbjXDwAAQBAJ?hl=en&gbpv=1&dq=male+privilege+definition&printsec=frontcover 2 Advisory Committee on Nomination of Judges at the ICC webpage, available at https://asp.icc- cpi.int/en_menus/asp/ACN/Pages/default.aspx

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It should be said that over time, the number of women working in the field has increased but what remains is an imbalance in terms of the hierarchy. There are more men in top positions than there are women. As of 30 September 2020,3 the ICC staff was 49.2 percent female and 50.8 percent male. 4This may seem acceptable (not perfect) but when one digs deeper the problem because clear as most of the women are in junior roles. 2019 statistics revealed that “[O]nly 11 per cent of staff at the D-1 level were female, 30 per cent at the P-5 level, 37 per cent at the P-4 level, and 46 per cent at the P-3 level. 5 The rest of the women at the Court are P1s and P2s.

Whilst there are a number of initiatives aimed at levelling the playing field and supporting women including the ATLAS Network6, the International Gender Champions Ini- tiative7, Institute for African Women in Law8, American Society of International Law- Women in International Law9 there is still a long way to go.

The current gender dynamics at the ICC have a significant impact. As pointed out in the IER report, the predominately male leadership of the ICC significantly shapes the culture. The 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.”10

According to the 2020 Report of the Bureau on Equitable Geographical Representation and Gender Balance in the Recruitment of Staff of the International Criminal Court, “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 given the job?

2.1 Recruitment In general, “[W]omen are on average, 30 percent less likely to be called for a job interview than men with the same characteristics…”11 Unconscious bias in recruitment processes is common as are interview panels that have more men resulting in more men being offered the job. For example, Google found, “that women who turned down job offers had interviewed only with men. Now, a woman interviewing at Google will meet other women during the hiring process.”12 The IER recommended that “Where this is

3 Report of the Bureau on equitable geographical representation and gender balance in the recruitment of staff of the International Criminal Court (2020) available at XXX 4 Para 11 Report of the Bureau on equitable geographical representation and gender balance in the recruitment of staff of the International Criminal Court (2020) 5 para11 Report of the Bureau on equitable geographical representation and gender balance in the recruitment of staff of the International Criminal Court (2020) 6 Available at https://www.atlaswomen.org/ 7 Available at https://www.genderchampions.com/ 8 Available at https://www.africanwomeninlaw.com/ 9 Available at https://www.asil.org/community/women-international-law 10 Para 205 11 Women are 30 percent less likely to be considered for a hiring process than men, 2019 María José González, Clara Cortina and Jorge Rodríguez-Menés, researchers at UPF's Department of Political and Social Sciences. Available at https://phys.org/news/2019-03-women-percent-hiring-men.html 12 In Google’s Inner Circle, a Falling Number of Women 2012 available at https://www.ny- times.com/2012/08/23/technology/in-googles-inner-circle-a-falling-number-of-women.html?_r=1&pagewanted=all

162 currently not the case, all recruitment panels in future should have at least one woman…”13

According to the Bureau’s 2020 Gender and Geographical Balance Report, in 2020, 38 per cent of applications for P-4 and P-5 positions were from female candidates and 62 per cent were from male candidates.14 There is clearly a need to increase number of female candidates which goes hand in hand with making sure women are on interviewing panels, and in positions of leadership all of which could encourage more female applicants.

In the Court’s 176- page Overall Response15 to the findings of the IER Report, it acknowledged the challenges and welcomed the Expert’s recommendations in general terms. They noted that they consider gender balance in recruitment panels to be “crucial”16 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.17

As pointed out men hold the majority of high-level positions at the Court and apart from elected officials who have a limited term, many staff members at the ICC have held these positions for many years and have very secure employment contracts. Ac- cording to the Experts, 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 – 10 years.18 This means that men stay in their coveted positions and promotion of women is unlikely if not impossible until the position is vacant.

Seeing the general problem with lack of upward movement and need to balance institutional memory and experience with fresh thinking, the Experts recommended a tenure system be introduced for new recruitments in P-5 and Director Level positions.19 Citing international organisations that operate in this manner, the Experts pointed to the Hague based Organisation for the Prohibition of Chemical Weapons which has a maximum 7-year terms for all its officers, the Organisation for Security and Cooperation in Europe, the International Atomic Energy Agency which have a maximum of five years.20 The Experts recommend something between the five-year term of the Registrar, and the nine-year terms of the judges and prosecutor. 21

13 Recommendation 91 IER Report 2020, available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/IER-Final- Report-ENG.pdf 14 Para 11 available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/ICC-ASP-19-29-RE-ENG-GRGB-report%2008mar21-1100.pdf 15 Overall Response of the International Criminal Court to the “Independent Expert Review of the International Crim- inal Court and the Rome Statute System – Final Report” Preliminary Analysis of the Recommendations and information on relevant activities undertaken by the Court. 16 Para 211 Overall Response 17 Para 211 Overall Response 18 IER para 248 footnote 145 19 Para 249 20 Para 249 IER 21 Para 249 IER

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In its Overall Response, the Court’s resistance to the tenure proposal was evident, particularly the OTP who used the example of a Senior Trial lawyer to make their point. They stated that given the length of time cases take at the ICC 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… would be detrimental to OTP operations.”22

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”23

Whilst there is merit to the Court’s resistance, a tenure policy is essential for staff- turn over and to give others an opportunity to hold these positions, develop these skills and improve the gender balance. If all the male P-5s and Directors remain in their positions then the gender imbalance will remain unchanged.

2.2 Elections The Registrar, Prosecutor and judges are all elected officials of the Court and each follow a different route to get the Court.

2.2.1 Prosecutorial elections There have been three prosecutors to date and their respective election processes have differed. In 2021/2021 a Committee on the Election of the Prosecutor (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,24 the pool of applicants left a lot to be desired due to the lack of gender balance. Out of 89 applicants, only 26 where female.25 Of those 26 women only two made the final short list of nine.

The CEP, in accordance with its Terms of Reference26 had due regard to the “extent possible” to gender balance and other factors such as geographical representation and legal system27 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.”28

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 makes this even more important. The

22 Para 236 Overall Response 23 Para 237 Overall Response 24 Appointment of Karim Khan as ICC’s chief prosecutor raises questions over lack of consensus and vetting process Daily Maverick 21 February 2020, Angela Mudukuti available at 25 Committee on the Election of the Prosecutor Final Report 2020 p.6 Available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/ICC-ASP-19-INF2-ENG-CEP.pdf 26 Available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/ICC-ASP-19-INF2-ENG-CEP.pdf 27 Para 23 CEP Report 28 Para 40 CEP Report

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Deputy prosecutor is elected by the states parties from a list provided by the current prosecutor.29 If all goes according to plan a new deputy prosecutor will be elected in December 2021. It is important that the Deputy Prosecutor be well-qualified, experienced, of high moral character and female if gender balance is to improve at the Court.

3.2.2 Judicial elections The legitimacy of a court is linked to fair gender representation30 which Grossman defines as “an approximate reflection of the ratio of the sexes in the general population.” Fair sex representation is necessary because, as pointed out by Grossman, “ men and women bring different perspectives to bear in judging.”31 The Rome Statute requires states to consider “the need for . . . fair representation of female and male judges”32 this is indeed a step in the right direction but implementation has been inconsistent.

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 term33 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 Rome Statute and Resolution ICC- ASP/3/Res.6.34 In 2020, six new judges were elected and the ICC bench35 reached gender parity after years of imbalance. Currently there are 9 female judges and 9 male judges. Prior to that, 2020 was the sixth consecutive year that female judges were out- numbered by male judges. In fact, in 2020 there were 12 male judges and only 6 female judges. 36

Judges at the ICC are nominated 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 Advisory Committee on the Nomination (ACN) of Judges at the ICC, who provide assessments of the candidates with regard to the Rome Statute’s criteria. However it is states that make the final choice through their votes. Minimum Voting Requirements (MVRs) are in place to ensure the representation.

29 Article 42 (4) Rome Statute available at https://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94- 0A655EB30E16/0/Rome_Statute_English.pdf 30 P. 643 Grossman, N. (2011). Sex Representation on the Bench and the Legitimacy of International Criminal Court p.649 International Criminal Law Review, 11, 643-653. 31 P.645 Grossman, N. (2011). Sex Representation on the Bench and the Legitimacy of International Criminal Court p.649 International Criminal Law Review, 11, 643-653. 32 Rome Statute article 36(8)(a)(iii) 33 Article 36(9) of the Rome Statute 34 Coalition for the ICC Report The Nomination and Election of Six New ICC Judges, December 2020 p.2 available at https://www.coalitionfortheicc.org/sites/default/files/cicc_documents/CICC%20memo%202020%20ICC%20Judi- cial%20Elections.pdf 35 Six judges join the International Criminal Court’s bench as the Court begins a new chapter FIDH Press Release 24 December 2020 available at https://www.fidh.org/en/issues/international-justice/international-criminal-court- icc/six-judges-join-the-international-criminal-court-s-bench-as-the-court 36 CICC Election Team Paper on Gender available at https://coalitionfortheicc.org/sites/default/files/cicc_docu- ments/CICC%20Elections%20Team%20statement%20gender%20representation.pdf

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“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 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.”37

However, MVRs 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 com- piled to help states understand MVRs, the number four was a political compromise to, “accommodate those delegations that preferred a less restricted election procedure.” 38 This is limit is problematic. For the 2020/2021 election the MVR for gender was one, meaning states were encouraged to vote for at least one women during the election. This would not have been sufficient to tip the balance, promoting civil society39 to advocate for states to go further than that. Thankfully, states did exactly that resulting in the first balanced bench in six years.

2.2.3 Registrar elections According to the Rome Statute, the Registrar is elected by an absolute majority of the judges.40 The Presidency establishes a list of candidates who meet the requirements and sends this list to the ASP with a request for recommendations. 41 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 there have been 3 registrars in the Court history two were men and one was a woman cannot go unmentioned. In its Overall Response, the Court mentioned that in recent Registrar elections there have been a “clear majority” of male applicants.42 All judges of the Court interview the candidates, the significance of a predominately male bench interviewing predominantly male candidates should also be considered when considering why mostly men apply and why mostly men have been elected.

37 Raising the Bar, Improving the Nomination and Election of Judges to the International Criminal Court p. 19 available at https://www.justiceinitiative.org/uploads/a43771ed-8c93-424f-ac83-b0317feb23b7/raising-the-bar- 20191112.pdf 38 Informal guide and commentary to the procedure for the nomination and election of judges of the International Criminal Court Para.7 available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP16/ICC-ASP-16-INF2-ENG.pdf 39 CICC Election Team Paper on Gender available at https://coalitionfortheicc.org/sites/default/files/cicc_docu- ments/CICC%20Elections%20Team%20statement%20gender%20representation.pdf 40 Article 43 (4) 41 Rules of Procedure and Evidence, Rule 12 available at https://www.icc-cpi.int/iccdocs/PIDS/legal-texts/RulesPro- cedureEvidenceEng.pdf 42 Para 179 Overall Response

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2.2.4 Impact of gender imbalance One clear impact of the gender imbalance is that it perpetuates further gender imbalance 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. Gender imbalance can also impact the jurisprudence of an international court.

It is often women prosecutors and judges who ensure the inclusion of gender crimes at international courts and tribunals. This was evident at the International Criminal Tribu- nal for the former Yugoslavia (ICTY) where only two out of eleven original judges were women.43 Grossman writes that female judge Elizabeth Odio Benito had to “publicly exhort” ICTY prosecutors to include gender crimes in their indictment against Dragan Nikolic. 44 Thompson writes that female judge Patricia Wald has noted ‘that five major legal precedents regarding gender crimes were crafted “when at least one woman judge sat on the bench”45 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.”46

At the International Criminal Tribunal for Rwanda (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.47 Akayesu was found guilty of rape committed as a crime against humanity among other crimes.48

Grossman writes that the absence of female judges during the Nuremberg trials meant that crimes against women were essentially ignored. Nuremberg prosecutors chose not to prosecute evidence of rape and sexual violence against women.49

In addition to having an impact on the jurisprudence the gender imbalance also affects how the courts and tribunals are perceived. At the ICC, the 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,

43 Thompson, Lyndsay B. Gender Equality in International Institutions: Progress and Challenges in Moving Toward Gender Parity. Inquiries Journal 9.02 (2017). 44 P. 649 Grossman, N. (2011). Sex Representation on the Bench and the Legitimacy of International Criminal Court p.649 International Criminal Law Review, 11, 643-653. Available at https://papers.ssrn.com/sol3/papers.cfm?ab- stract_id=1723407 45 Thompson, Lyndsay B. Gender Equality in International Institutions: Progress and Challenges in Moving Toward Gender Parity. Inquiries Journal 9.02 (2017). 46 Thompson, Lyndsay B. Gender Equality in International Institutions: Progress and Challenges in Moving Toward Gender Parity.Inquiries Journal 9.02 (2017). 47 Thompson, Lyndsay B. Gender Equality in International Institutions: Progress and Challenges in Moving Toward Gender Parity." Inquiries Journal 9.02 (2017). 48 The Prosecutor v Jean-Paul Akayesu Case No. ICTR-96-4-T available at https://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf 49 Grossman p.649

167 administration and external relations.50 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 2 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. As noted by the IER Report, the ICC office culture can be described as “adversarial and implicitly discriminatory against women”51 and the heavy male presence in positions of power has a massive influence on this culture.

The gender imbalance and office culture is also connected the prevalence of sexual harassment at the ICC.

3. Sexual harassment

Sexual harassment is defined by the International Labour Organisation as “a sex-based behaviour that is unwelcome and offensive to its recipient.”52 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.”53 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. 54

Unfortunately, the ICC has a sexual harassment problem. 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

50 ICC Presidency Webpage available at https://www.icc-cpi.int/about/presidency 51 IER Report para 209 available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/IER-Final-Report-ENG.pdf 52 International Labour Organisation,Sexual Harassment at Work Sheet, available at https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_decl_fs_96_en.pdf 53 International Labour Organisation,Sexual Harassment at Work Sheet, available at https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_decl_fs_96_en.pdf 54 International Labour Organisation, Sexual Harassment at Work Sheet, available at https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_decl_fs_96_en.pdf

168 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.”

The Experts identified the need to improve disciplinary measures as one of the way 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.128 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.”55

As the Experts point out, sexual harassment can be better addressed and prevented when there is gender balance especially in top positions including those held by managers.

The ICC is not alone in the battling sexual harassment. Many international institutions have faced similar challenges, including the World Health Organisation, Oxfam, and the United Nations Peacekeepers. - Include additional information and examples about sexual harassment in the legal profession and in international organisations.

3.1 Accountability for sexual harassment at the ICC …

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. As highlight in its Overall Response to the findings of the IER, the ICC stated that it 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

55 IER Report para 212 available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP19/IER-Final-Report-ENG.pdf

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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/second- ment with other international organizations, as well as setting up gender parity targets.”56

Addressing the gender imbalance at the Court is key to addressing sexual harassment as well. The Court has since appointed57 a long-awaited Gender Focal Point in March 2021whose 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.”58

- Include comparions to focal points at other tribunals - Include other internal court attempts to address sexual harassment and gender issues in Overall Response and suggestions in IER Report.

5. Conclusion - Amplify link between male privilege, gender imbalance and sexual harassment - Imbalance needs to be rectified, amplify constructive solutions - Consequences of failing to rectify amplify effects on staff well-being, sexual harassment, jurisprudence, perception and credibility. - Amplify importance of opportunities presented by the IER and emphasize that the time to take action is now because changes take time to take effect.

56 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 Para 202 available at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Overall%20Response%20of%20the%20ICC%20to%20the%20IER%20Final%20Re- port%20-%20ENG%20-%2014April21.pdf 57 ICC Press Release International Women’s Day: ICC appoints Focal Point for Gender Equality 8 March 2021 available at https://www.icc-cpi.int/Pages/item.aspx?name=pr1573 58 ICC Press Release International Women’s Day: ICC appoints Focal Point for Gender Equality 8 March 2021 available at https://www.icc-cpi.int/Pages/item.aspx?name=pr1573

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The ICC’s role in countering patriarchal claims in reproductive justice

Angie Katherine García Atehortúa1

Abstract This paper discusses the impact of the Ongwen case in changing the patriarchal fear of criminalising forced pregnancy as means of achieving reproductive autonomy. On Feb- ruary 4, 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 Rome Statute, the contentious negotiations for its inclusion as well as, its narrow definition reflect the patriarchal claim whereby its criminalization may interfere with national laws criminalizing abortions. The paper analyses the negotiations for the Elements of Crimes, the 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 to address states’ attempts to limit the right to reproductive self-determination as explicitly depicted in its drafting history. In doing so, the article 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 article evaluates the effect that the Ong- wen judgement can have in domestic reproductive justice. Key words: forced pregnancy, reproductive justice, International Criminal Court, Ong- wen case, norm transfer, patriarchal claims, abortion.

1. Introduction On February 4, 2021, the ICC’s Trial Chamber IX found Dominic Ongwen, a former commander in the Lord 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 first to charge the reproductive crime of forced pregnancy as a crime against humanity and a war crime.2 While international criminal law (ICL) 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.3 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’. In a significant achievement, the Rome Statute of the International Criminal Court (ICC) lists and defines the crime of forced pregnancy opening the door to advance reproductive justice. However, the codification of forced pregnancy comes after a contentious process of negotiation. Some delegations opposed to criminalized forced pregnancy arguing that it

1 National Legal Consultant at All Survivors Project. Email: [email protected] 2 Press Release. Dominic Ongwen declared guilty of war crimes and crimes against humanity committed in Uganda. ICC- CPI-20210204-PR1564, 4 February 2021 3 Altunjan 2021, p. 2.

171 may have the potential to interfere with national laws criminalizing abortions.4 As a result, the Rome Statute 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”5. This formulation is puzzling considering delegates could have relied on a more progressive view of forced pregnancy. A particular problem is that this definition set a high threshold which limits the circumstances expected to be covered by the crime.6

Despite the shortcomings of this definition, its inclusion in the Rome Statute is a notable achievement to ensure the prosecution of forced pregnancy as an independent category of crime. The Ongwen judgement demonstrates ground breaking nature because, along with the conviction for forced pregnancy, it recognises that the value protected by this crime primarily reproductive autonomy.7

This article 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 legislation” 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 characterization 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 paper also aims to draw attention to the underlying reasons limiting the scope of international crimes. The critical analysis focused 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 article explores the role that the ICC is called to play to broadens 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 article focuses on the analysis of the 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

4 Markovic 2007, p. 443. 5 Rome Statute of the International Criminal Court. art. 7(2)(f). 6 Amnesty International 2020, p. 23. 7 Prosecutor v. Dominic Ongwen, Trial Judgment Trial Chamber IX, (ICC-02/04-01/15), 4 February 2021, para. 2717. 8 Dowds 2019, p. 57.

172 of reproductive autonomy or which is directed at people because of their reproductive capacity”.9 Thus, the article concentrates on women and girls’ victims of forced pregnancy due to their exclusive childbearing capacity. Considering the multiple edges of the Ongwen judgement, the exclusive reference to aspects related to the crime of forced pregnancy does not ignore the relevance of the criminalization of other forms of violence. 2. From rape towards reproductive justice: the crime of forced pregnancy. Prior to the criminalization of sexual 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.10 Sexual violence was then depicted as violations of the victim’s honour. In the Geneva Conventions11 and their 1977 Additional Protocols,12 the crime of sexual violence is depicted in terms of chastity and modesty of women.13 For instance, article 27 of Geneva Convention IV states that ‘women shall be especially protected against any attack on their honour (…)”14. The honour-based interpretation of sexual violence was to some extent overcome through the development of ICL.15 While sexual violence was formally prohibited before the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993,16 the International Criminal Tribunal for Rwanda (ICTR) in 1994,17 and the adoption of the ICC Statute in 1998,18 it was dismissed as an issue of discrimination and as a violation of victims’ bodily security and autonomy.19 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.20 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.21 Despite the progressive change of approach, reproductive violence was not expressly recognised and the overemphasis on raped persisted. For instance, the statutes of the

9 Grey 2017, p. 906. 10 Baumeister 2018. 11 International Committee of the Red Cross (ICRC), 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 Con- vention 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). 12 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 Non-International Armed Conflicts, 8 June 1977, (Protocol II). 13 Gardam, Jarvis and Michelle 2001, p. 96-97. 14 IV Geneva Convention, article 27. 15 O’Byrne 2011, p. 499. 16 S.C. Res. 827, U.N. SCOR, 48th Sess., at 29, U.N. Doc. S/INF/49 (1993) (deciding to establish the International Criminal Tribunal for the Former Yugoslavia). 17 S.C. Res. 955, U.N. SCOR, 49th Sess., at 15, U.N. Doc. SIINF/50 (1994) (deciding to establish the International Criminal Tribunal for Rwanda). 18 Rome Statute of the International Criminal Court, U.N. Diplomatic Conference of Plenipotentiaries on the Estab- lishment of an Int’l Crim. Ct., U.N. Doc. A/Conf.183/9 (1998) 19 Boon 2001. 20 Boon 2001, p. 628. 21 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 “Rape and Abuse of Women in the Territory of the Former Yugoslavia” (S/25704).

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International Criminal Tribunal for the former Yugoslavia (ICTY)22 and the Interna- tional Criminal Tribunal for Rwanda (ICTR)23 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. Nevertheless, with the criminalization of enslavement,24 torture,25 other inhumane acts,26 wilfully causing great suffering27 and outrages on human dignity,28 the ICTR and the ICTR statutes implicitly opened the possibility to prosecute a broad spectrum of gender-based crimes. The tribunals’ jurisprudence intended to prosecute crimes of sexual assault outside the scope of rape. In Akayesu, the ICTR Trial Chamber defined sexual violence as “any act of a sexual nature which is committed on a person under circumstances which are coercive”.29 In Delalić et al., the ICTY Trial Chamber recognised 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”.30 These decisions outlined the seriousness of sexual violence other than rape and the expanded list of sexual violence crimes including sexual slavery, enforced prostitution and forced pregnancy.31 The Rome Statute of the International Criminal Court (ICC) has incorporated many of the advances made by the ad hoc Tribunals.32 The inclusion of a broad range of sexual and reproductive violence crimes in the Rome Statute of the ICC reflects the reliance on the ICTY and ICTR precedents throughout the ICC negotiations.33 The ICC Statute resolves previous omissions by listing and defining a range of sexual and reproductive crimes. Article 7(1)(g) of the Rome 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. Sexual crimes forced pregnancy can be prosecuted as a war crime pursuant to Article 8(2)(e)(vi). Thus, the ICC Statute took a step forward as the first international instrument to define and codify forced pregnancy. 3. Forced pregnancy negotiations for the Elements of Crimes and the Rome Statute provisions The Rome Statute was negotiated between 1994 and 1998. The first Draft Statute of the International Criminal Court was prepared by the International Law Commission in 1994 and submitted before the United Nations General Assembly (UNGA).34 The

22 Statute of the International Criminal Tribunal for the former Yugoslavia, S/Res/827, UN SCOR 48th session, 3217th meeting (1993) 23 Statute of the International Criminal Tribunal for Rwanda, S/Res/955, UN SCOR 49th session, 3453rd meeting (1994) 24 ICTY Statute, art. 5(c); ICTR Statute, art. 3(c). 25 ICTY Statute, art. 5(f); ICTR Statute, art. 3(f). 26 ICTY Statute, art. 5(i); ICTR Statute, art. 3(i). 27 ICTY Statute, art. 2(c); ICTR Statute, art. 4(c). 28 ICTR Statute, art. 4(h). 29 Prosecutor v. Akayesu, 2 September 1998, International Criminal Tribunal for Rwanda, Trial Judgement, Case No. ICTR-96-4, paras. 598, 688. 30 Prosecutor v. Delalić et al. Trial, 16 November 1998, International Criminal Tribunal for the former Yugoslavia, Trial Judgement, Case No IT-96-21 31 Chappell 2016. 32 Killean 2015, p. 332. 33 Grewal 2012, p. 374. 34 Draft Statute for an International Criminal Court, Report of the International Law Commission on its Forty-Sixth

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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.35 The Rome Statute was adopted on 17 July 1998 with 120 state delegations voting in favour, seven against and 21 states abstaining.36 The negotiation of the Elements of Crimes37 and the Rules of Procedure and Evidence,38 two complementary documents to assist judges in the interpretation of the Statute, took place between February 1999 and July 2000.39 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 violence.40 Sexual crimes were amongst the most contentious aspects to negotiate because of the con- trasting cultural, political and legal assumptions. Opposition to progressive definitions of sexual crimes came mainly from states with strong patriarchal structures where religion plays a leading role in legal and social matters.41 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”.42 Forced pregnancy does not escape to 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 Statute provisions to draft’.43 Some States argued that the crime was unnecessary because its elements were already covered by the crimes of rape and unlawful detention or understood as an aggravating circumstance of rape.44 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.45 Based on the principle

Session, 2 May-22 July 1994, U.N. GAOR, 49th Sess., Supp. No. 10, at 29-140, U.N. Doc.A/49/10 (1994). 35 Cassese, Gaeta and Jones 2002; Bassiouni, 2005. 36 Fanny Benedetti, Karine Bonneau and John Washburn, Negotiating the International Criminal Court: New York to Rome, 1994–1998 (Brill 2013) 15–16 37 Finalized Draft Text of the Elements of Crimes, Preparatory Comm'n for the Int'l Crim. Ct., U.N. Doc. PCNICC/2000/1]Add.2 (2000). 38 Finalized Draft Text of the Rules of Procedure and Evidence, Preparatory Comm'n for the Int'l Crim. Ct., U.N. Doc. PCNICC/2000/IJAdd.1 (2000), 39 24); Roy S. Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers 2001); 40 Barbara Bedont and Katherine Hall-Martinez, ‘Ending Impunity for Gender Crimes Under the International Criminal Court’, 6 Brown Journal of World Affairs (1999) 65–85. Janet Halley, ‘Rape at Rome: Feminist Interventions in the Criminalisation of Sex-Related Violence in Positive International Criminal Law’, 30 Michigan Journal of International Law (2008) 1–123. 41 Baumeister, H. (2018). Sexualised crimes, armed conflict and the law: The International Criminal Court and the definitions of rape and forced marriage, p. 25. 42 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, Preparatory Comm'n for the Int'l Crim. Ct., art. 7(1)(b), U.N. 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 (ICRC) and the delegations of Colombia and the United States of America (USA, 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. In 43 C. K. Hall, J. Powderly, N. Hayes in O. Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2008), p. 274. 44 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; C. Steains, ‘Gender Issues’ in R. S. Lee (ed.) The Inter- national Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999), p. 367 45 9 C. Steains, ‘Gender Issues’ in R. S. Lee (ed.) The International Criminal Court: The Making of the Rome Statute:

175 of fair labelling, some states held that the crime of forced pregnancy should be specifically punished in the Statute.46 Other element in contention was the criminalization of the subsequent conduct of forcibly keeping a woman pregnant.47 During the negotiations for the Elements of Crimes, it was proposed the insertion of the additional element of keeping woman pregnant. How- ever, the proposal was removed from the elements adopted.48 States rejecting this addition argued that, the inclusion of the element of “keep a woman pregnant” would restrict the scope of the crime because it would exclude situations where, for example, the intent is to torture the victim.49 Thus, it is not required that the accused intended to keep the woman pregnant beyond these alternative intentions to fulfil the threshold for the crime of forced pregnancy. In the same line, certain States, such as the Holy See, proposed a high threshold of intent by limiting forced pregnancy to “ethnic-cleansing”.50 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.51 Therefore, some states preferred a definition that required an ‘ethnic cleansing’ intent, as that would condemn the type of atrocities committed in Bosnia-Herzegovina.52 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.53 Other states pushed back against this proposal because of the possibility of 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 self-determination under international law”.54 During the Rome Conference, the Holy See sought the exclusion of forced pregnancy from the draft statute on the ground that it threatened to criminalize enforcement of national laws discouraging or criminalizing abortion.55 The delegate

Issues, Negotiations, Results (1999), p. 367. 46 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 for December 1997 PrepCom on the Establishment of An International Criminal Court, December 1997, Recommendation 7 47 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. 48 K. Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court - Sources and Commentary (2003), p. 330, n. 5. 49 Knut Dormann, Louise Doswald-Beck and Robert Kolb, Elements of War Crimes under the Rome Statute of the ICC (CUP 2003), p. 330. 50 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. 51 C. Steains, ‘Gender Issues’ in R. S. Lee (ed.) The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999), p. 366. See Kunarac et al. Appeals Judgment, paras 342, 583, 654; ICTY, Trial Chamber II, Prosecutor v. Radoslav Brđanin, Judgement, 1 September 2004, IT-99-36-T, para. 1011. 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. 52 C. Steains, ‘Gender Issues’, in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International, 1999) 357, at 366. 53 M. Cottier and S. Mzee, ‘Paragraph 2(b)(xxii): Rape and other forms of sexual violence’, in Triffterer and Ambos, ibid., 477, at 500. 54 Grey, R. (2017). The ICC’s First ‘Forced Pregnancy’ Case in Historical Perspective. Journal of International Criminal Justice, 15(5), 905–930, p. 919. Bedont, ‘Gender-specific provisions in the Statute of the International Criminal Court’, in F. Lattanzi and W. Schabas (eds), Essays on the Rome Statute: Vol. 1 (Il Sirente) 183, at 196^199. W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2016), p. 191. 55 Barbara Bedont & Katherine Hall-Martinez, Ending Impunity for Gender Crimes Under the International Criminal

176 for Saudi Arabia argued against the inclusion of a crime of forced pregnancy due to the prohibition of abortion in his country. In the same line, Iran claimed that this crime might be used as an argument against the prohibition of abortion.56 The Women’s Cau- cus for Gender Justice was one of the main actors objecting this limitation; however, no many states aligned with this vision, given that abortion was restricted or criminalized in numerous states at the moment of the negotiation. 57

As a result, the Statute adopted a ‘narrow’ definition of forced pregnancy.58 The definition incorporated in the Article 7(2)(f) of the Rome Statute comprises the mens rea requirement of “affecting the ethnic composition of any population or carrying out other grave violations of international law”.59 In addition, it states that the definition of forced pregnancy “shall not in any way be interpreted as affecting national laws related to pregnancy”.60 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 led regulations relating to contraception and women's rights out of the patriarchal logic.61 Despite the limitations in the definition of forced pregnancy, its criminalization in the Rome Statute constituted a success for feminist’s claims.62 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 subsumed under the generic forms of sexual violence or aggravating circumstances. In fact, considering the pervasive effects of this crime, its explicit inclusion in the Rome Statute is a significant achievement. 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.63 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 the specific intents to affect the ethnic composition of a population, or to carry out other grave violations of international law.64

Court, 6 BROWN J. WORLD AFF. 65, 72 (1999), p. 74. 56 Rome Conference Official Records, Vol.II, at 148, x 32; and at 166, x 72. 57 Halley J. (2008) Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law, 30 MICH. J. INT'L L. 1, p. 104. 58 E. La Haye, ‘Article 8(2)(b)(xxii)-4 Forced Pregnancy’ in R. S. Lee (ed.) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), p. 193 59 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. 60 Article 7(2)(f) of the Rome Statute. 61 W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2016), p. 191 62 L. Chappell, ‘Women’s Rights and Religious Opposition: The Politics of Gender at the International Criminal Court’, in Y. Abu-Laban (ed.), Gendering the Nation State: Canadian and Comparative Perspectives (UBC Press, 2008) 139, p. 154. 63 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. 64 Christine Chinkin, ‘Gender-related Violence and International Criminal Law and Justice’ in Antonio Cassese (ed) The Oxford Companion to International Criminal Justice (Oxford University Press, 2009), at 77

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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”.65 ‘Forcibly’ in this context is understood as the “violence, duress, detention, psychological oppression or abuse of power".66 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.67 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.68 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”.69 In regard to the unlawful confinement”, the prosecutor must then prove that the woman must have been restricted in her physical movement contrary to standards of international law. The Elements of Crimes do not defined confinement or indicate a specific duration of it but its essence is the restraint of liberty.70 The essence of the crime “is in unlawfully placing the victim in a position in which she cannot choose whether to continue the pregnancy”, 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.71 Therefore, 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.72 The first specific intent involves the intention that with the outcome of the pregnancy the children are born to affect ethnic composition.73 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 Rome 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.74

65 Para. 1 of the Elements of Crimes of Articles 7(1)(g)-4 and 8(2)(e)(vi)-4 of the Rome Statute. 66 Elements of the crimes, art. 7(1)(g)-1(2). 67 Rules of Procedure and Evidence, Preparatory Comm'n for the Int'l Crim. Ct., U.N. Doc.PCNICC/2000/IJAdd.1 (2000) Rule 70(a). 68 Amnesty International 2020, p. 9. 69 Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, Pre-Trial Cham- ber II, ICC-02/04-01/15-422-Red, 23 March 2016, paras. 96-101. 70 Boon 2001, p. 662. 71 Amnesty International 2019, p. 10-11. 72 Para. 1 of the Elements of Crimes of Article 7(1)(g)-4 and 8(2)(e)(vi)-4 of the Statute. 73 Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, Pre-Trial Cham- ber II, ICC-02/04-01/15-422-Red, 23 March 2016, paras. 96-101, para. 100. 74 Amnesty International, p. 18.

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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 carrying out other grave violations of international law.75 Other grave violations of international can be drawn from crimes within the jurisdiction of the ICC, typically described as “the most serious crimes of international concern”.76 This approach has been applied by the Pre-Trial Chamber in the confirmation of the charges of forced pregnancy in the Ongwen case. The Chamber held that the accused confined women who had been made forcibly pregnant with intent to carry out grave violations such as rape, sexual slavery, forced marriage, enslavement and torture.77 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 criminal law instruments. These notions can provide useful analogies on what should be considered “grave violations of international law”.78 In this line, 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.79 The elements of the crime of forced pregnancy address only a subset of serious violations of sexual and reproductive rights. For instance, the definition of forced pregnancy is not broad enough to cover unsuccessful attempts to make a woman pregnant; thus, victims of this crime must be capable of conceiving.80 Likewise, when the woman is forcibly made pregnant, but they are not subjected to unlawfully 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 not unlawfully confined.81 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 self-determination and to further the understanding of the gendered nature of this crime. 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 con- scripting 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.82 Despite Lubanga’s troops had also reportedly committed sexual violence crimes against female children who had been recruited into the armed group, the Prosecutor did not expand the charges, or make any allegations of sexual violence, during the pre-trial

75 Boon 2001, p. 665. 76 ICC Statute, Preamble, Articles 1 and 5. See also Bonn, 2001, p. 665. 77 Prosecutor v. Ongwen, para.101. 78 Amnesty International 2020, p. 20. 79 Amnesty International 2020, p. 20 80 Boon 2001, p. 660. 81 Amnesty International 2020, p. 24. 82 ICC, Situation in the Democratic Republic of the Congo, Prosecutor v. Thomas Lubanga Dyilo, Trial-Chamber, Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842.

179 proceedings.83 As a consequence, the majority of the Trial Chamber declined to determine Lubanga’s culpability for the alleged sexual violence.84 Although the ICC Office of the Prosecutor (OTP) has failed to prosecute sexual and reproductive violence crimes before, the ICC is gradually paving the way towards a more gendered justice. For instance, in 2008 the OTP applied for an arrest warrant against Sudanese President Omar Al-Bashir based upon the alleged rape of thousands of women and girls from particular ethnic groups in Darfur, and that hundreds of these women and girls became pregnant or died because of the rapes.85 Notwithstanding the arguments presented by the OTP, the Pre-Trial Chamber overlooked violations of reproductive rights as the warrant decisions did not make reference to the forced pregnancies.86 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 alleged that “many of the women victims of rapes and gang-rapes contracted HIV, and became pregnant as a result of these rapes”.87 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.88 The case of Prosecutor v. Dominic Ongwen is a notable achievement in adjudicating reproductive justice. Dominic Ongwen, is a former commander in the Lord Resistance Army (LRA), accused of numerous war crimes and crimes against humanity committed in Northern Uganda, including sexual and gender-based crimes.89 The crime of forced pregnancy was not charged in the application for arrest warrants against Ongwen and other senior leaders of the LRA in 2005.90 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.91 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

83 Prosecution’s final brief, Lubanga (ICC-01/04-01/06-2748-Red), Trial Chamber I, 1 July 2002, para. 205. The Pros- ecutor 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. 84 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 85 Annex A: Public Redacted Version of the Prosecutor’s Application under Article 58, Bashir (ICC-02/05-157-AnxA), Pre-Trial Chamber I, 14 July 2008, paras. 121 and 200. 86 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; Second Decision on the Prosecution’s Application for a Warrant of Arrest, Bashir (ICC-02/05-01/09-94), Pre-Trial Chamber I, 12 July 2010. 87 Public Redacted Version of the Amended Document Containing the Charges, Bemba (ICC-01/05-01/08-395-Anx3), Pre-Trial Chamber II, 30 March 2009, para. 39. 88 Green, 2011, p. 530 89 Report of the Secretary-General pursuant to resolutions 1653 (2006) and 1663 (2006) (S/2006/478), UN Doc. S/2006/478, 29 June 2006. 90 Warrant of arrest for Dominic Ongwen, Situation in Uganda (ICC-02/04-01/05-57), Pre-Trial Chamber II, 8 July 2005. 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). 91 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.

180 threaten to be killed if they tried to escape. Dominic Ongwen's intention to confine these women to carry on committing acts of rape, torture and sexual enslavement against them even after he had forcibly impregnated them.92 The evidence provided by the OTP demonstrated that sexual and gender-based crimes were systemic, institutional and included rape, forced pregnancy, forced marriage, torture and sexual slavery.93 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.94 Fol- lowing the proceedings, on February 4, 2021, the ICC’s Trial Chamber IX found Dom- inic Ongwen guilty of 61 counts of war crimes and crimes against humanity, including 19 counts of sexual and gender-based crimes. Unlike previous decisions, this is the first time that the crime of forced pregnancy and forced marriage are subject of adjudication.95 Ongwen’s conviction is also an important milestone for the advancement of reproductive violence. 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 —rather than the act of making her pregnant— fulfils the threshold for the crime of forced pregnancy.96 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”.97 For instance, the crime of forced pregnancy applies in situations where the victim, having become pregnant through force, is unlawfully confined for reasons un- related to her pregnancy. It may also include the forced impregnation through artificial insemination committed against persons in confinement.98 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.99 The judgement acknowledges that the deprivation of the woman’s ability

92 Transcript, Ongwen (ICC-02/04-01/15-T-21-Red2-ENG), Pre-Trial Chamber II, 22 January 2016, 50, lines 2 to 20. 93 Decision on the confirmation of charges against Dominic Ongwen, Ongwen (ICC-02/04-01/15-422-Red), Pre-Trial Chamber II, 23 March 2016. 94 Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen, Pre-Trial Cham- ber II, ICC-02/04-01/15-422-Red, 23 March 2016, paras. 96-101. 95 Prosecutor v. Dominic Ongwen, Trial Judgment, Trial Chamber IX, (ICC-02/04-01/15), 4 February 2021. 96 Ibíd, para. 2728. 97 Ibíd, para. 2729. 98 Amnesty International 2020, p. 17. 99 Prosecutor v. Dominic Ongwen, Trial Judgment, Trial Chamber IX, (ICC-02/04-01/15), 4 February 2021, 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

181 to give voluntary and genuine consent to choose whether to continue the pregnancy is at the core of this crime.100 This decision also breaks the historical tendency of international criminal tribunals to treat rape and sexual violence as secondary crimes by ena- bling the proper characterisation of the crime of forced pregnancy. As explained in the Trial Judgment, “It 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’”.101 The crime of forced pregnancy must have an independent meaning from the other sexual and gender-based violence crimes in the Statute.102 Although the ICC also highlighted the “sustained character” of sexual and gender-based 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.103 The Ongwen judgement is significant step to develop specialized jurisprudence on reproductive violence. By addressing previously overlooked sexual and reproductive crimes, the Court opens the possibility to start changing the patriarchal narrative and influence the states practices in order to give full effect to the right to reproductive autonomy. Based upon this potential, the final section of this article explores the ICC role to address reproductive justice claims. 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. Although this judgement acknowledges the pervasive effects that the crime of forced pregnancy over reproductive autonomy; the ICC fails to distinguish the particular nature of reproductive violence vis-á-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 expressly criminalized under international law.104 The diffuse definition of reproductive violence has its origins in the patriarchal oppression justified by the social construction of gender and the accompanying roles, behav- iours 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, ethnic. 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 gender.105 As Rosemary Grey points out, the harms of reproductive violence are “(…) often most

Conference on Human Rights. 100 Ibíd, para. 2725. 101 Ibíd, para. 2722. 102 Ibíd, para. 2722. 103 Kather and Nassar 2021. 104 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, 397-403. 105 Oosterveld 2018, p. 448.

182 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 (…)”.106 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” often face.107 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 Rome 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.108 In that sense, reproductive capacity is employed as “a recourse to be commandeered for political, ideological or economic ends”.109 The criminalization of forced pregnancy encounters the patriarchal fear that a provision on forced pregnancy could interfere with national abortion legislation 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.110 This scepticism proves that women’s 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. Despite the shortcomings mentioned in the trial judgement, the Ongwen case marks a first step towards the fully recognition of reproductive justice. Thus, the ICC may a prominent role to address states’ attempts to limit the right to reproductive self-determination as explicitly depicted in its drafting history. In order to measure the influence that the ICC can have at domestic level, it is useful to understands the relationship between the ICC positive complementarity and the feminist strategy of norm transfer. 6.1. Norms transfer in reproductive justice A central point of the analysis is how the local patriarchal norms played a key role in the drafting of the Rome Statute and how, still today, those continues to radiate into ICC institutional practice. As discussed, the narrow definition and high threshold of the

106 Grey 2017, p. 907. 107 Ibíd. 108 Altunjan 2021, p. 2. 109 Grey forthcoming, p. 5. 110 Markovic 2008, p. 445.

183 crime of forced pregnancy is entrenched in the patriarchal fear that criminalising forced pregnancy may be understood as legalising abortion. In order to explain the said interaction, it is useful to introduce the “feminist strategy of norm transfer”, intendent to elucidate how “feminist informed standards created at the level of international criminal law make their way into domestic contexts”.111 A “norm transfer” analysis allows to understand how international norms have the potential to impact the law at the domestic level and vis versa.112. In the ICL 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.113

This is especially relevant when analysing the role that the ICC is called to play in advancing reproductive justice from the impact of its own jurisprudence. Indeed, according to the feminist strategy of norm transfer, international criminal law has a role to play in advancing women’s rights in contexts beyond conflict or mass violence.114 By situating the feminist strategy of norm transfer within the complementarity regime of the ICC, it is possible to reflect upon the norms developed at the ICC and to encourage broader discussion around reproductive violence and its legal categorisation. In this vein, the crime of forced pregnancy can be analysed in the light of the role positive complementarity and the impact the Ongwen case in triggering domestic reform of norms on sexual and gender-based crimes, in particular, abortion laws. According to Eithne Dowds the norm transfer process can be divided into a tripartite structure classical complementarity focused on promoting domestic prosecution; positive complementarity focused on facilitating domestic prosecution through “legislative transfers”, and positive complementarity focused on mobilising domestic reform which gives domestic actors the opportunity to rethink existing law and prompt change.115 As it stands, the criminalization of forced pregnancy in the Ongwen judgement may prone the development of domestic standards not just on forced pregnancy, but on other norms intrinsically related to the exercise of reproductive autonomy. This may seem problematic taking into account the final sentence in the definition of forced pregnancy, included to ensure that the ICC scrutiny national abortion laws. How- ever, the principle of complementary does not seek to amend, nullify or void national legislation but to promote the domestic prosecution of reproductive crimes. The “norm transfer” resorts to the positive complementary of the ICC to encourage domestic reform on sexual and reproductive violence on a broader level.

The ICC should take a more active role to further developed specialized jurisprudence on reproductive violence. This means that it is necessary to elaborate the concept of reproductive violence, as distinct from the related issue of sexual violence. Eventually, the ICC is compelled to explicitly endorse the application of the crime of forced pregnancy to any situation where pregnant woman is denied access to safe and legal abortion, regardless of the circumstances of conception.116

111 O’Rourke 2013. 112 Dowds 2019, p. 15. 113 Dowds 2019, p. 16. 114 Mégret 2016. 115 Dowds 2019, p. 54. 116 Steains 1999, p. 366.

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A progressive approach to reproductive violence requires a more critical stand against the local patriarchal discourse. It also calls for further attention to reproductive violence and reproductive autonomy, as part of the broader project of ‘gendering’ international criminal law.117 At this stake, the jurisprudence of the ICC has a potential to transform domestic contexts into a full recognition of the right to safe abortion.

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Boon, Kristen. (2001). Rape and forced pregnancy under the ICC statute: human dignity, autonomy, and consent. (International Criminal Court). Columbia Human Rights Law Review, 32(3). C. Steains, ‘Gender Issues’, in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International, 1999) 357, at 366.

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Dowds, E. (2019). The Feminist Strategy of Norm Transfer and the Complementarity Regime of the International Criminal Court. In Feminist Engagement with Interna- tional Criminal Law: Norm Transfer, Complementarity, Rape and Consent (Studies in International Law, pp. 54–82). Oxford, Hart Publishing. Gardam, J. G., & Jarvis, Michelle J. (2001). Women, armed conflict and international law. Kluwer Law International. Grewal, K. (2012). The Protection of Sexual Autonomy under International Criminal Law. Journal of International Criminal Justice, 10(2), 373–396. Grewal, K. (2015). International Criminal Law as a Site for Enhancing Women’s Rights? Challenges, Possibilities, Strategies. Feminist Legal Studies, 23(2), 149–165. Grey R (forthcoming) Reproductive Crimes in International Criminal Law. In: Rosen- thal I, Oosterveld V, SáCouto S (eds) Gender and International Criminal Law. Oxford University Press, Oxford. Grey, R. (2017). The ICC’s First ‘Forced Pregnancy’ Case in Historical Perspec- tive. Journal of International Criminal Justice, 15(5), 905–930. https://doi.org/10.1093/jicj/mqx051 Grey, R. (2017). The ICC’s First ‘Forced Pregnancy’ Case in Historical Perspec- tive. Journal of International Criminal Justice, 15(5), 905–930. https://doi.org/10.1093/jicj/mqx051 Halley Janet, Rape at Rome: Feminist Interventions in the Criminalization of Sex-Re- lated Violence in Positive International Criminal Law, 30 MICH. J. INT'L L. 1 (2008)

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Markovic, Milan. (2008). Vessels of reproduction: forced pregnancy and the ICC. (In- ternational Criminal Court). Journal of International Law, 16(2). Mégret, Frédéric. (2016). International Criminal Justice as a Juridical Field. Champ Pé- nal, Vol. XIII. O’Byrne, K. (2011). Beyond Consent: Conceptualising Sexual Assault in International Criminal Law. International Criminal Law Review, 11(3), 495–514. Oosterveld, Valerie. (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. O'Rourke, Catherine. (2013). International Law and Domestic Gender Justice: Why Case Studies Matter in MA Fineman and E Zinsstag (eds), Feminist Perspectives on Transitional Justice: From International and Criminal to Alternative Forms of Justice, Vol 13 (Cambridge, Intersentia). 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; C. Steains, ‘Gender Issues’ in R. S. Lee (ed.) The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999), p. 367

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Jurisprudence

Prosecutor v. Akayesu, 2 September 1998, International Criminal Tribunal for Rwanda, Trial Judgement, Case No. ICTR-96-4, paras. 598, 688. Prosecutor v. Delalić et al. Trial, 16 November 1998, International Criminal Tribunal for the former Yugoslavia, Trial Judgement, Case No IT-96-21 Prosecution’s final brief, Lubanga (ICC-01/04-01/06-2748-Red), Trial Chamber I, 1 July 2002, p. 205. 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- 02/05-157-AnxA), Pre-Trial Chamber I, 14 July 2008, paras. 121 and 200. 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 Second Decision on the Prosecution’s Application for a Warrant of Arrest, Bashir (ICC- 02/05-01/09-94), Pre-Trial Chamber I, 12 July 2010. Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dom- inic Ongwen, Pre-Trial Chamber II, ICC-02/04-01/15-422-Red, 23 March 2016, paras. 96-101. Report of the Secretary-General pursuant to resolutions 1653 (2006) and 1663 (2006) (S/2006/478), UN Doc. S/2006/478, 29 June 2006. Prosecution’s submission of the document containing the charges, the pre-confirmation brief, and the list of evidence (ICC-02/04-01/15), 21 de diciembre de 2015. Transcript, Ongwen (ICC-02/04-01/15-T-21-Red2-ENG), Pre-Trial Chamber II, 22 January 2016, 50, lines 2 to 20. Decision on the confirmation of charges against Dominic Ongwen, Ongwen (ICC- 02/04-01/15-422-Red), Pre-Trial Chamber II, 23 March 2016

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Prosecutor v. Dominic Ongwen, Trial Judgment Trial Chamber IX, (ICC-02/04- 01/15), 4 February 2021.

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States of Criminality: Political Possibilities and Pitfalls for Palestine before the ICC

Michelle Burgis-Kasthala, Nahed Samour and Christine Schwöbel-Patel

After years of indecision the ICC has taken up the request of Palestine to initiate a case into alleged war crimes and crimes against humanity. Such an event falls seductively into now-familiar narratives of international criminal law (ICL) – that such an episode is one of progress, inclusion and geographical expansion for the project of redress through individual criminal responsibility. Such liberal legal narratives are further bolstered in the face of some of the ICC’s detractors, who seek to undermine the Palestine move as hopelessly political and partisan.1 Such critiques provide renewed vigour for retreating to law: the ICC can demonstrate how it robustly negates political pressures and instead can ensconce itself in carefully crafted justifications grounded in the Rome Statute. We have seen this already through the laboured efforts undertaken to examine Palestine’s status as a state since it first applied to the Court in 2012. Paradoxically then, in confirming the possibility of jurisdiction in Palestine after so long, this gesture chisels away at the Palestinian project of resorting to ICL as a form of statebuilding. Here instead, ICL as intervention requires that those intimate relations between Palestinians themselves as well as between Palestinians and their foreign dominator, Israel, are picked apart before reshaping proceedings where both occupier and occupier are jurisdiction- ally available to the reach of the Court as legal equals. Any scope for imagining this relationship through other political registers is radically truncated so that the possibility of thinking of Palestine as a political community after colonialism and after occupation, becomes more remote. In this paper we adopt a historical and Third World Approaches to International Law (TWAIL) lens to explore the ways in which ICL may be employed as a tool for pursuing decolonial equality.

Palestine, International Organisations and Anti-Imperial Struggle Against the background of both a century long dynamic of ongoing settler colonialism, dispossession and displacement as well as a resurgence of violence between Israel and Palestine, with Palestinian lives being disproportionately targeted (and lost), the question of international law has once again become urgent. Great expectations are placed in the investigations by the International Criminal Court’s (ICC) Office of the Prosecu- tor (OTP) into the situation. This comes in particular against the background of the ICC recognising that it has jurisdiction over Palestinian territories, including those occupied by Israel.2 A recent report by Human Rights Watch, which described Israeli practices towards Palestinians as ‘crimes against humanity of apartheid and persecution’ has given further fuel to the debate on individual criminal accountability.3 Crystallising

1 Boris Johnson, Heiko Maas, xxx. See letter signed by over 50 former European presidents in defence of the ICC, Attacks on the ICC must be condemned | Letters | The Guardian 2 Pre-Trial Chamber I ruling of 5 February 2021 recognised that the ICC has jurisdiction over the territories occupied by Israel since 1967 https://www.icc-cpi.int/Pages/item.aspx?name=pr1566 discussed in a brief reflection in Christine Schwöbel-Patel, ‘Palestine at the ICC: Law overcoming Violence’, Critical Legal Thinking 8 February 2021 https://criti- callegalthinking.com/2021/02/08/palestine-at-the-icc-law-overcoming-violence/. 3 This report follows two earlier reports by Israeli-based NGOs also characterising the nature of Israeli rule over the

190 out of the debate is a question of charging Israel for a number of violations, including apartheid as a crime against humanity and various war crimes stemming from its repeated assaults on Gaza along with its widespread settlement construction throughout the West Bank including East Jerusalem. In this paper, we would like to acknowledge such legal tactics as real moments of possibility in which injustice can be highlighted, in which oppressed voices can change legal analysis and action. We also want to place this into a context in which we offer a voice of caution in regard to the progressive potential of international organisations and legal principles as mechanisms to fight oppression. In the history of 20th and 21st century legal internationalism, oppression can mostly be attributed to liberal legalism and resistance to it can mostly be attributed to political struggle (not law).4 As we are present- ing this paper in Germany, we will include the position of the German state vis-à-vis Palestine, international organisations, and anti-imperial struggles. Germany’s self-positioning as liberal bastion and nascent legal hegemon5 is contrasted with its simultaneous declarations of the ICC’s irrelevance for the question of Palestine. This will require a narrative spatial and temporal manoeuvring between colonial power and colonised resistance to this power. Aware of metropole and colony overlapping, we highlight resistance in the metropole through the work of Rosa Luxemburg and resistance in the periphery through Palestinian scholars Edward Said and Noura Erakat.6 In our narrative, we begin chronologically at a time when the Palestinians first encoun- tered 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 provides a framework for understanding the limited and limiting horizons for legal change and liberation today whether through the ICC or other avenues. Our account then moves to the early 1970s, a time at which solidarity movements around anti- imperialism allowed for Palestine to gain both allies and legal momentum at the UN General Assembly. The dismantling of South-South solidarity in the following years, no doubt also brought on through new neoliberal institutions, also had an impact on Pal- estine. Finally, and taking insights from these past episodes into the present, we consider the contemporary ‘Situation in the State of Palestine’ at the ICC.7 Some important consequences arise from this account for the hope or disdain placed in the ICC’s investigations into the situation in Palestine. First, the ICC’s dominant ‘origins 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. With this frame, it is possible to understand both the Jews as experiencing the violence of states occupied territories (B’Tselem) or all of historic Palestine (Yesh Din) as amounting to apartheid. Amnesty Interna- tional is currently completing its own report into apartheid as well. The reports echo previous findings of Palestinian human rights organizations, from Al Haq, to Mezan, Addameer- Prisoners Support and Human Rights Organization, and the Palestinian Center for Human Rights. 4 On the limitations of liberal legalism for Palestinian activism, especially see L Allen, A History of False Hope: Investigative Commissions in Palestine (Stanford University Press, 2021), 15-26. 5 Armin von Bogdandy, German Legal Hegemony? German Legal Hegemony? – Verfassungsblog 6 Admittedly, the categories of metropole and periphery do not fit neatly here. Luxemburg as a Jewish, disabled woman is not neatly to be equated with the hegemonic associations of the metropole and equally the privilege of working at US elite institutions means that Said and Erakat cannot neatly be categorised as the periphery. Nevertheless, there is some merit in distinguishing the role of those in solidarity with the oppressed and those who are part of the Palestinian diaspora. 7 https://www.icc-cpi.int/palestine.

191 of criminality (in the mid 20th century in particular), as well as the Palestinians since the early 20th century. Second, the assumption of the necessity of statehood as making up 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 19th century demonstrate, and the episode of the Palestinian Liberation Organisation at the UN General Assembly further illustrate, the question of statehood as liberation has not always been fixed. 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. Rather than asking whether the ICC can promise statehood or not, we ask whether the case at the ICC is a tool for decolonial equality as a form of self- determination for the territory stretching from the river to the sea.

Palestine at the League of Nations Revisiting the fallout from the First World War is instructive for a number of reasons. Most simply, it was the post War settlement that laid the framework of rule over Pales- tine that helped shape communal, regional and international dynamics of domination ever since. While British oversight of this settler colonial model thus 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.8 Some of these arose within the metropole, such as democratic workers struggles to end empire and domination,9 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.10 As in the case of petitioning the Mandate Commission in the 1920s and 1930s,11 the scope for radical reappraisal might appear limited, but for many, it is a struggle that is worth pursuing whether under the banner of ‘self-determination’, ‘liberation’12 or individual criminal responsibility.

While World War One did result in the end of some European empires,13 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. By the early twentieth century, the Arab world itself was no stranger to colonial machinations, particularly in its seemingly more palatable form of ‘protectorates’. 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, which par- celled out European interests in the African continent through local rulers agreeing to

8 For example, see D Whitehall, ‘A Rival History of Self-Determination’ (2016) 27 EJIL 719-743. 9 T Mitchell, Carbon Democracy: Political Power in the Age of Oil (Verso: London, 2011), 79. 10 John Reynolds/Sujith Xavier, ‘The Dark Corners of the World’: TWAIL and International Criminal Justice , Journal of International Criminal Justice, Volume 14, Issue 4, September 2016, p. 959–983, 11 Especially see N Wheatley, ‘Mandatory Interpretation: Legal Hermeneutics and the New International Order in Arab and Jewish Petitions to the League of Nations’ (2015) 227 Past and Present 205-248. 12 Joseph Massad explores the European and Arabic etymology of ‘self-determination’, ‘liberation’ and ‘freedom’ in J Massad, ‘Against Self-Determination’ (2018) 9 Humanity 161-191, at 170-171. 13 As well as the Ottoman Empire, which was deeply entangled in European statehood.

192 dispose of themselves.14 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 Egyp- tian inhabitants directly until they were capable of governing themselves.15

A range of competing ideas and interests during the War saw European imperial powers espousing a range of 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. Lenin’s publication of these agreements as well as sustained democratising pressures from workers’ organisations across Europe called for a new approach to empire. This would later be presented as the Wilsonian idea of self- determination. Yet, in fact, it was an evolving policy of colonial management that only later came to be referred to as ‘self-determination’. A range of recent work has highlighted how ‘self-determination’ in this period was closely linked to earlier colonial modes of rule. Rather than speak to a broader notion of national liberation, it was increasingly championed by (victorious) European powers as a way to deflect more radical visions of independence.16 This 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 rules as well as settler colonial policies, that saw off this threat to European strategic interests. The ‘compromise’ model then to emerge, the Mandate system, built on earlier experiences of protectorates and their racist notions of non-European capacity 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 self-rule on the part of European- Jewish newcomers and the indigenous Arab population of all faiths. 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.17 Thus, even before its official inception as a Mandate in 1922, Palestine was established as a rather unusual settler colonial model – unusual in that it did not simply transplant its own nationals18 – that built on earlier experiences, particularly in South Africa.19 Through the promise of a ‘national home’,20 European Jews would take up the ‘burden’ of civilising a territory whose indigenous inhabitants were still seen as ill-equipped for independence. Despite the limited scope available to Palestinian Arabs in trying to realise their own destiny during this period, it is important not to discount the sustained

14 Mitchell, at 80. 15 Mitchell, at 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. 16 Especially see Massad (2018). 17 For an overview of the Palestine Mandate context and its terms, see M Burgis, ‘Transforming (Private) Rights through (Public) International Law: Readings on a ‘Strange and Painful Odyssey’ in the PCIJ Mavrommatis Case’ (2011) 24 Leiden Journal of International Law 873-897. 18 D K Fieldhouse, Western Imperialism in the Middle East 1914–1958 (2006), at 117. 19 T Mitchell, at 70-72. 20 As first iterated in the Balfour Declaration 1917.

193 efforts undertaken by many Palestinians to seek greater autonomy and national respect through the League of Nations Mandate petition system.21 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. We see here the beginning of the state/non-state binary which has been at the centre of liberal legal struggles for self-determination. Rosa Luxemburg notably was already prior to the First World War cautious about the liberating potential of statehood, as expressed in her work on ‘The National Question’ in relation to Poland.22 She begins by highlighting (presciently) that the right to self-determination has in itself nothing particularly radical about it, ‘a paraphrase of the old slogan of bourgeois nationalism’. Passionately dedicated to international socialism based on the solidarity of the working classes against imperialism, Luxemburg was acutely aware of the potential pitfalls of nationalism in disrupting international solidarity. She emphasises therefore that to mis- understand 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’. Recognising a right to self-determination gives no indication on how these societies are to be organised. Luxemburg concludes therefore “the right of nations to self-determination” is essentially not a political guideline in the nationality question, but a means of avoiding that question.’ Employing law as a tool for equality is at once ‘met- aphysical cliché’ and at the same time a tool to be used in the service of the oppressed. Standing in solidarity, for Luxemburg, does not amount to idealising ‘national freedom’ as that which could equally be recognised for any peoples and any cause, rather it means to demand legal protection of the oppressed and exploited. Although Luxemburg has been harshly criticised for this critique of self-determination, her observations ring particularly true in regard to the continued fixation by some states on the ‘two state solution’ as that which stands in for an ahistorical ideal of nation state parity. Germany, for example, explained its opposition to the ICC’s investigations into potential international crimes committed against Palestinians as a distraction from the true goal of a two state solution. This fixation ends up avoiding the question of decolonial equality while at the same time seemingly arguing for equality. Luxemburg would have dismissed this as ‘vague cliché’ with distaste. 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 the eruption of the Arab National Revolt, which was the biggest military challenge to Britain’s imperial interests during the inter-war period. It only managed to claw back control through the arming of European Jewish militias who would later channel this experience and expertise in fighting their war of independence, initiating the Palestinian Nakba in the 1940s. The Revolt and the later break out of the

21 Wheatley. 22 https://www.marxists.org/archive/luxemburg/1909/national-question/ch01.htm.

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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 United Nations, 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. Alt- hough 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 ‘self-determination’, international law offered Palestinians radically truncated possibilities for independence in their native lands as a result of racialized readings of self-rule.

Palestine at the General Assembly

A further moment of real possibility that was at the same time asphyxiated through the ties of liberal legalism was the passage of General Assembly Resolution 3236 of 22 No- vember 1974 on the ‘Question of Palestine’, which followed an invitation to the PLO.23 This was a time of great efforts of international law-making from the Global South. Recently independent states, and movements struggling for liberation from domination, were uniting on questions of anti-imperial struggle in its many forms. According to Noura Erakat, the invitation extended to the PLO 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’. The invitation was unprecedented as only nation states had until then been permitted to speak at the UN. This Southern ‘voting bloc’ was also mobilised for the economic programme of South-South trade envisioned as a means to withstand continued economic colonisation by the former colonial power under the name of the New International Economic Order. Its programme of action was declared through a series of General Assembly Resolutions in the same year as General Assembly Resolution 3236. The collective efforts of the so-called Non-Aligned Movement (aligned neither with Soviet Russia – although anti-imperial sympathies ex- isted - nor the imperial West) enabled a declaration of solidarity to be passed. GARes 3236 not only recognised the entitlement of Palestinian people to self-determination, the resolution also included a ‘right of return’ for the Palestinian people who had been displaced and uprooted in particular after the 1967 capture of Palestinian territories by Israel.24 It also included a 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.25 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 the political position in regards to territorial demands, and effected a submission to the law of imperial states. In the words once more of Noura Erakat: ‘By articulating its demands for peoplehood in the framework of international law and pursuing this goal at the United Nations, the PLO drew

23 https://unispal.un.org/UNISPAL.NSF/0/025974039ACFB171852560DE00548BBE. 24 This had resulted in the displacement of between 288,000 and 325,000 Palestinians from their homes. 25 Noura Erakat, Justice for Some, 98.

195 upon the same legal and institutional norms that legitimated Israel’s establishment, nat- uralized it existence, and protected its territorial and political sovereignty.’26

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, with an initial request for the ICC to investigate the situation in Palestine in 200927, Palestinians have finally won the ICC’s attention, seemingly against such powerful states defending the “liberal rule of law” such as Germany or the UK or Australia.28. The focus has been laid on war crimes committed during the Israeli attack on Gaza in 2014- crimes against humanity, such as apartheid and persecution, had not been considered by the ICC then. 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.29 Although the prosecutor did not require formal judicial authorization 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.30 In February 2021, the court ruled that it had jurisdiction over crimes committed in the OPT, including East Jerusalem, confirming Palestine’s status as a state party to the Rome Statute able to confer that jurisdiction.31This jurisdiction would include the ability to prosecute not only war crimes but also the crimes against humanity of apartheid and persecution. In March 2021, the Office of the Prosecutor announced the opening of a formal investigation into the situation in Palestine.32 While the ICC will investigate the “hot violence” of war crimes of the events in June 2014 onwards, the question is whether it will now feel compelled to turn to the “slow, cold violence”33. It is maybe the gruesome regularity of reccurring airstrikes and artillery shelling, home demolitions and shoot-to-kill sniping, plus the resistance of Palestinian armed groups, that is making both Palestinians as well as international commentators turn to more structural questions underlying the situation in Palestine: That of legal, political and economic supremacy of the Israeli state stretching from the Jordan River to the Mediterranean Sea. By now, numerous human rights reports have found that

26 Ibid 99. 27 Michael Kearney/ John Reynolds, Palestine and the Politics of International Criminal Justice, in: William A. Schabas et al (eds.), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Farnham: Ashgate, 2013), p. 407-433. 28 xxx 29 ICC, Pre-Trial Chamber I, “Situation in the State of Palestine,” January 22, 2020, No. ICC-01/18, https://www.icccpi.int/CourtRecords/CR2020_00161.PDF (accessed May 31, 2021), paras. 94-96. 30 4 “Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction,” ICC press release, December 20, 2019, https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine (accessed May 31 2021). 31 ICC, Pre-Trial Chamber I, “Situation in the State of Palestine,” February 5, 2021, No. ICC-01/18, https://www.icccpi.int/CourtRecords/CR2021_01165.PDF (accessed May 31, 2021); “Israel/Palestine: ICC Judges Open Door for Formal Probe,” 32 “Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine,” ICC press release, March 3, 2021, https://www.icc-cpi.int/Pages/item.aspx?name=210303-prosecutor-statement-investigation- palestine (accessed May 31, 2021). 33 Teju Cole, Slow violence, cold violence – Teju Cole on East Jerusalem | Palestinian territories | The Guardian

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Israel meets the definition of apartheid under international law, which defines apartheid as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them”.34 While the use of the apartheid framework in relation to Israel is not new, it is gaining momentum amid the one-state reality. With the occupation paradigm increasingly recognized as built on the false assumption of temporariness and sustaining a false distinction between 1948 and 1967 territories35, the apartheid framework recognises that Israel is the effective governing power between the river and the sea, where it enacts a racialised regime. While there is no reason to expect the ICC to be an exemplary site of decolonial justice, Palestine has the symbolic power to stabilize or destabilize the ICC in the demands to investigate apartheid.36

Apartheid, once associated to refer to South Africa only, is now a legally sanctioned crime enshrined in the Rome Statute, article 7 Nr. 2 h) where it says: "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. 37 Noura Erakat and John Reynolds, while aware of the very limitations of the ICC and the political pressures awaiting it, see the following 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; recon- necting the partitioned but shared realities of occupied, exiled and 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.”38 Charging apartheid indicates a decisive shift away from a “negotiated peace process, leading to a two state solution” as the German amicus curiae letter to the ICC would have it39 but would also put on the table if the ICC recognizes the de/colonial potential of international criminal law.

Conclusion Could this be the moment of decolonising the ICC? It is unlikely that this will happen. Any gains through ICC investigations will be liberal legal gains. This is why Lana Tatour warns against a “liberal reading of Israeli apartheid”, and urges to have apartheid sup- plement our understanding of settler colonialism, not come at its expense: “The erasure

34 https://www.soas.ac.uk/lawpeacemideast/publications/file60532.pdf 35 Aeyal Gross, The Writing on the Wall, Rethinking the International Law of Occupation, 2017. 36 See the recommendation by Human Right Watch to the ICC Office of the Prosecutor to “investigate and prosecute individuals credibly implicated in the crimes against humanity of apartheid and persectution”, HRW Report, A Thresh- old Crossed, Israeli Authorities and the Crimes of Apartheid and Persecution, 2021, p. 207. 37 On the definition of apartheid in the Rome Statute, see Guénaël Mettraux, International Crimes: Law and Practice, Vol- ume II: Crimes Against Humanity (Oxford University Press 2020) 740-745.. See also Max Du Plessis, “International Crim- inal Law: The Crime of Apartheid Revisited” 12 South African Journal of Criminal Justice 417-428 (2011); Roger S. Clark, “Apartheid” in M. Cherif Bassiouni (ed.), International Criminal Law, Volume 1: Sources, Subjects and Contents (Brill, 2008, third edition) 599-620. 38 Noura Erakat, John Reyonolds, We Charge Apartheid? Palestine and the International Criminal Court – TWAILR 39 xx

197 of settler-colonialism in the conversation on Israeli apartheid risks displacing decolonisation in favour of liberal projects of equality. It configures Palestine as a liberal question, rather than a colonial one.” 40

40 Lana Tatour, Why calling Israel an apartheid state is not enough | Middle East Eye, January 2021.

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Biographies

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Amina ADANAN is Lecturer in Law/ Assistant Professor in Maynooth University Law Department in Ireland. In 2018, Amina was awarded a PhD in human rights from the Irish Centre for Human Rights in NUI Galway for her thesis, ‘Allies and Enemies, past and present: An analysis of the rationale for the development of universal jurisdiction over serious crimes under international law’. This work was funded by the National University of Ireland’s Edward J Phelan Fellowship in International Law. Dr. Adanan’s research interests lie in the areas of International Law, International Criminal Law and International Human Rights Law. In particular, Amina researches on the prosecution of atrocity crimes at a domestic and international level and the history of international law and she publishes in these areas. Recent publications include: ‘Reflecting on the Genocide Convention in its Eighth Decade: How Universal Jurisdiction Developed over Genocide’ in the Journal of International Criminal Justice (forthcoming 2021) and ‘United Kingdom Policy Towards Universal Jurisdiction Since the Post War Period’ in the International Criminal Law Review (forthcoming 2021). Amina was awarded the Royal Irish Academy’s Charlemont Grant 2021 for a project examining the exercise of universal jurisdiction during the operation of the United Nations War Crimes Commis- sion (1943-48). She teaches International Criminal Law, Fundamental Rights in Ireland and Irish Property Law.

Muyiwa ADIGUN holds an LLB (First Class Honours) and an LLM (Distinction) both from University of Ibadan, Ibadan, Nigeria. He received his Doctor of Philosophy degree in law from the University of the Witwatersrand, Johannesburg. His research interests include jurisprudence, public and international law. He is the author of: The International Criminal Court and Nigeria: Implementing the Complementarity Principle of the Rome Statute (Abingdon, UK: Routledge 2018). Between 2007 and 2015, he was in private legal practice as a Barrister and Solicitor of the Supreme Court of Nigeria. He was a Postdoctoral Research Fellow, School of Law, University of Venda, Thohoyandou, South Africa between 2019 and 2020. He is currently a lecturer in the Faculty of Law, University of Ibadan, Ibadan, Nigeria.

Karolina AKSAMITOWSKA is a PhD Candidate in international criminal law at Swansea University (Wales, UK) with previous experience at the Extraordinary Cham- bers in the Courts of Cambodia, the International Residual Mechanism for Criminal Tribunals and Global Rights Compliance. In addition, she has worked for the Nether- lands Institute of Human Rights, where she is also the previous Editor-in-Chief of the Utrecht Journal of International and European Law. Karolina holds an LL.B. degree from the University of Southampton (UK) and an LL.M. by research degree from Utrecht University (the Netherlands). She is the author of Digital Evidence in Domestic Core International Crimes Prosecutions – Lessons Learned from Germany, Sweden, Finland and the Netherlands, OUP 2021; Traditional Approaches to the Law of Armed Conflict: Disseminating IHL through the Receptor Approach, Brill 2020.

Michelle BURGIS-KASTHALA is a Senior Lecturer at the University of Edinburgh. She joined the Law School in September 2013. Her teaching focusses on public international law and international human rights law. Her research centres on the operation and contestation over international law across the Arab World. Before joining the Law School, 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.

Claudia CÁRDENAS ARAVENA is a Associate Professor in the Criminal Sciences Department of the University of Chile. She graduated from the University of Chile in Law and holds a LL.M. and Dr.iur. from Humboldt-Universität zu Berlin. Before joining the University of Chile as a Professor she was a Professor of Law at the University

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Católica del Norte and the University of Talca in Chile. From 2015-2017 she served as the Director of the Graduate-School of University of Chile’s Faculty of Law. Her research interests are criminal law and international criminal law.

Ishita CHAKRABARTY is an Incoming Candidate for the MA PhD Fast Track Pro- gramme in International Law, at the Graduate Institute of International and Develop- ment Studies (IHEID), Geneva. She holds a BA LL.B (Hons.) degree from Hidayatullah National Law University, India. Currently, she is engaged with the Quill Foundation as a Research Officer, and primarily handles matters pertaining to International Advocacy. During her stint at Quill, she has been involved in matters pertaining to citizenship (withdrawals), disproportionate use of counter-terror legislation against minorities, institutional discrimination, and other related matters, lying at the intersection of fundamental rights and constitutional guarantees.

Taxiarchis FISKATORIS is an adjunct lecturer at the law school of the Philipps-Uni- versity in Marburg, Germany, where he teaches public international law, international human rights and humanitarian law courses. He holds a PhD in Law from Middlesex University London. His PhD thesis dealt with the doctrinal foundations and history of international criminal law. He has previously studied international relations and international law in Greece, Italy and France. His primary academic interests lie at the intersection of international law, politics and history. He has until recently been a Fellow at the International Research and Documentation Centre for War Crimes Trials of the Philipps University in Marburg, where he was responsible for the curriculum development and was lecturing on issues of international and transnational criminal law, international humanitarian law, and the law of the use of force.

Angie K. GARCÍA ATEHORTÚA is a criminal and human rights lawyer from Co- lombia. She is currently national legal consultant at All Survivors Project where she supports the documenting and investigating conflict-related sexual violence against men and boys, and other people with diverse SOGIESC. Angie holds a LL.M magna cum laude in International Human Rights Law from the University of Notre Dame. Prior joining All Survivors Project, she advised the litigation of cases of sexual violence in Latin America and Asia while working as a legal associate at Strategic Advocacy for Human Rights. From 2017 to 2019, García served as a legal advisor at Foundation for Press Freedom (FLIP) in Colombia, where she litigated cases related to gross violations of human rights before domestic courts, the Inter-American and Universal Human Rights Systems. As a criminal lawyer, she has represented victims in cases of war crimes and crimes against humanity, including conflict-related sexual violence. She also has extensive experience in legal research focused on reparations, international compliance and international criminal law. She has previously worked at Inter-American Court of Human Rights as a visiting professional and interned for the International Residual Mechanism for Criminal Tribunals.

Stefan GOSEPATH is Professor of Practical Philosophy at the Free University Berlin (Germany). He is co-director of the Centre for Advanced Studies “Justitia Amplificata: Rethinking Justice: Applied and Global” < http://www.justitia-amplificata.de/ > together with Rainer Forst; PI Cluster of Excellence The Contestation of the Liberal Script: www.scripts-berlin.eu; PI of the Berlin-Potsdam Researchgroup The Interna- tional Rule of Law – Rise or Decline?: www.kfg-intlaw.de; PI „International Criminal Justice: A Counter-Hegemonic Project?“; PI Transforming Solidarities. https://trans- formingsolidarities.net; Participating Researcher Cluster of Excellence Temporal Com- munities: https://www.temporal-communities.de. He works mainly on justice, equality, morality and human rights. Before coming to Berlin he was professor of International

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Political Theory and Philosophy at the Johann Wolfgang Goethe University, Frankfurt- am-Main, in the Cluster of Excellence, “The Formation of Normative Orders”. Previ- ously he has been a professor at the universities of Bremen, Giessen, Potsdam, Vienna and Visiting Fellow at Harvard University, Columbia University and New York Univer- sity. Further information can be found at: www.stefan-gosepath.de

Isabel L. GUIDOTE is an LL.M Candidate at Harvard Law School and a dual-qualified lawyer (Philippines, England & Wales). She holds an M.A. in Economics for Com- petition Law from King's College London, with Merit, and a J.D. from the University of the Philippines. Isabel works for the Philippine Competition Commission, the country's national antitrust agency, where she handles cross-border M&As and anti-trust cases.

John-Mark IYI received his LLB (Hons) from the University of Benin in Nigeria in 1998 and the BL (Hons) from the Nigerian Law School in 2000. He taught briefly at the Nigerian Police College Maiduguri. In 2003, he obtained a Certificate in Peace Re- search from the University of Oslo and a LLM from the University of Ibadan in 2007. He completed his PhD at the University of the Witwatersrand in 2013 where he was a Research/ Teaching Associate, a Webber Wentzel Scholar, and an Associate of the Wits Programme in Law Justice and Development in Africa. Between 2014 and 2016, he was a Post-Doctoral Research Fellow at the South African Research Chair in International Law, University of Johannesburg, South Africa. He is currently an Associate Professor of Jurisprudence and International Law at the School of Law, University of Venda, South Africa. His research interest is in African perspective of public international law, international peace and security, terrorism, international economic law, democratisation and development in Africa, jurisprudence and legal theory, transitional justice, transnational crimes, international organisations, humanitarian intervention, international human rights and international humanitarian law, international criminal law and justice. He has published extensively and he is the author of Humanitarian Intervention and the AU-ECOWAS Intervention Treaties under International Law: Towards a Theory of Regional Responsibility to Protect (Springer 2016); and co-editor of Boko Haram and International Law (Springer June 2018); Developments in International Law and International Criminal Justice: Perspectives from the Global South (Routledge: forthcoming).

Miles JACKSON is an Associate Professor of Law at the University of Oxford and a Fellow of Jesus College. He holds MA and DPhil degrees from the University of Ox- ford, where he was a Rhodes Scholar, and an LLM degree from Harvard Law School. His research interests lie in general international law, including jurisdiction, immunities, and the law of state responsibility, as well as in international and domestic criminal law. In 2017, he won the Cassese Prize for International Criminal Law Studies. Miles serves as a Faculty Committee Member of Oxford Pro Bono Publico and on the Steering Committee of the Oxford Institute for Ethics, Law and Armed Conflict. He has prac- tised law and clerked at the Constitutional Court of South Africa and the International Court of Justice.

Florian JEßBERGER is Professor of Law at Humboldt-Universitaẗ zu Berlin, 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 of International Criminal Justice. Holding a Dr. iur. from the University of Cologne he was the Lichtenberg Professor of International and Comparative Criminal Law at

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Humboldt-Universitaẗ zu Berlin (2007-2010). Before returning to Humboldt-Univer- sitaẗ in 2020, he was a Professor of Law at Universitaẗ Hamburg (2010-2020), were he also served as the Dean for Research & International Affairs (2013-2020). He was a visiting professor or scholar at a number of universities outside Germany, including the University of Oxford (2018; Jesus College); the University of Ferrara (2016; Letizia Gianformaggio Chair); the University of Naples (2004- 2005; Feodor Lynen Scholar of the Alexander von Humboldt-Foundation); the University of Western Cape, Capetown (2000). He serves on the Advisory Boards of the European Center for Constitutional and Human Rights in Berlin, and is a co-principal investigator of the Minerva Center for the Study of the Rule of Law under Extreme Conditions at the University of Haifa, and a co-editor of the Journal of International Criminal Justice (Oxford University Press) and of the South African Journal of Criminal Justice (Juta). His recent publications include ‚Principles of International Criminal Law' (4th ed. Oxford University Press 2020, with Gerhard Werle), ‚Why Punish Perpetrators of Mass Atrocities? Purposes of Punishment in International Law‘ (Cambridge University Press 2020, ed. with Julia Ge- neuss), and ‘Histories of Transnational Criminal Law (Oxford University Press 2021, ed. with Neil Boister & Sabine Gless).

Guneet KAUR is an independent human rights advocate and researcher. She finished her LLM from UC Berkeley with a specialisation in International Law. She holds a BA LL.B (Hons.) degree from Hidayatullah National Law University, India. She has a license to practice law in India and has worked in several countries across Asia. She works with many grassroots human rights defenders, civil liberties networks, affected communities, and international human rights organizations while using research, advocacy, scholarship, and law as tools for addressing injustice. She has previously worked with Accountability Counsel, Jagdalpur Legal Aid Group and the Armed Conflict and Peoples Rights Project. She focuses on accountability and remedy concerns for international human rights wrongs.

Tonny Raymond KIRABIRA is a PhD law researcher at the University of Portsmouth (United Kingdom), focusing on transitional justice and international criminal prosecution. He is a Visiting Fellow at the Firoz Lalji Centre for Africa, London School of Economics and Political Science(LSE) (2021-22). He also teaches undergraduate law courses at the University of Greenwich and University of Portsmouth. He previously worked as a Visiting Professional in the Office of Public Counsel for Victims at the International Criminal Court(2020). He has also collaborated with Leiden Law School’s Grotius Centre for International Legal Studies as an expert on the Tracing Inherent Powers Project. He holds an LLM in International Human Rights Law from University of Notre Dame, (2018-19), and a bachelor of Laws degree from Uganda Christian University, Mukono (2008-12). He was admitted to the Ugandan Bar in 2014 and practices as an advocate in the High Court of Uganda and all courts of judicature. He is involved in international human rights work, including participation in UN Human Rights Council sessions in Geneva. He is also a Research Affiliate with the Refugee Law Initiative at University of London. Besides publishing journal articles, he has contributed op-eds in The Conversation, EJIL: Talk, New Vision, Daily Monitor and ASIL Insights.

Anastasiya KOTOVA is a PhD candidate at Lund University, Sweden. She holds BA (Hons) in International Law (2011-2015) and MA (Hons) in International Human Rights Protection (2015-2017) from Taras Shevchenko National University of Kyiv, Ukraine. She also obtained MA cum laude in International Relations (2016-2018) from University of Bologna, Italy. Prior to starting the graduate programme, she worked as an intern at the Public International Law group of the Peace Research Institute in Frank- furt. She teaches primarily International Criminal Law. Her research interests comprise

203 international criminal law, corporations in international law, and Marxist approaches to international law.

Fannie LAFONTAINE [LL.B. (Laval University); LL.M. (University of Cambridge); Ph.D. (National University of Ireland Galway)] is a lawyer, full professor at the Faculty of Law at Université Laval and holder of the Canada Research Chair on International Criminal Justice and Human Rights. She is the Project Director of the SSHRC-funded Canadian Partnership for International Justice and founder and co-director of the In- ternational Criminal and Humanitarian Law Clinic, recipient of the "Tribute to social innovations" prize at Laval University. She is the author of the book Prosecuting Gen- ocide, Crimes Against Humanity and War Crimes in Canadian Courts (Toronto: Car- swell, 2012) and of many other publications in Canadian and international law and relations. She is the recipient of the 2016 Laval University Prize for Excellence in Teaching and has joined the 2017 cohort of the College of New Scholars of the Royal Society of Canada. Before joining Laval University, she worked at the Office of the UN High Commissioner for Human Rights, on the International Commission of Inquiry on Dar- fur, at the Supreme Court of Canada and in NGOs and a law firm. She continues to act as expert for human rights organizations and since 2015, she acts as independent civilian auditor of a criminal investigation into criminal acts alleged to have been committed by members of different police forces against members of First Nations in Quebec. In 2019, she acts as the lead author of the legal analysis on genocide produced by Canada’s National Inquiry on Missing and Murdered Indigenous Women and Girls.

Kalika MEHTA is a PhD Candidate at the Albrecht Mendelssohn Bartholdy Graduate School of Law in Hamburg, Germany. She holds an LL.M. cum laude from Geneva Academy of International Humanitarian Law and Human Rights, Geneva (2015-16) and BA.LL.B (Hons.) from Rajiv Gandhi National University of Law, Punjab (2010-15). She is qualified to practice law in India. Before joining the program, she briefly worked on the transitional justice issues in Myanmar followed by a Traineeship at the European Center for Constitutional and Human Rights in Berlin. At ECCHR, she primarily assisted on the situation of War Crimes in Iraq by the UK Forces between 2003 - 2008 before the International Criminal Court. In 2018, she taught undergraduate students at Jindal Global Law School, Sonepat, India. Her research interests include International Criminal Law, Strategic Litigation, and Transitional Justice.

Angela MUDUKUTI is a Zimbabwean human rights lawyer, specialised in international criminal law. Angela is the Associate Advocacy Officer at the Open Society Jus- tice Initiative and has previously worked for Human Rights Watch, the Wayamo Foun- dation and the Southern Africa Litigation Centre (SALC), where she worked on precedent-setting cases on crimes against humanity and universal jurisdiction before the South African Constitutional Court, and was deeply involved in advocacy and strategic litigation, including seeking the arrest of former President Bashir of Sudan during his visit to South Africa. Prior to joining SALC, Angela worked for the Office of the Pros- ecutor at the International Criminal Court, and under the supervision of Prof Cherif Bassiouni at the International Institute for Criminal Justice and Human Rights in Sira- cusa, Italy. Prior to that, Angela was briefly in private practice in Zimbabwe assisting with civil and criminal matters. Angela has an LLM in International Criminal Law and Transitional Justice and an undergraduate law degree. She has written and published on international criminal law issues in books, journals and newspapers and has been fea- tured in the media including the Financial Times and Al Jazeera. She is also a member of three editorial committees, the Oxford Journal for International Criminal Law, Opinio Juris and the African Yearbook of International Humanitarian Law Advisory Board Member.

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Fajri Matahati MUHAMMADIN received his Sarjana Hukum from the Faculty of Law, Universitas Gadjah Mada. His LLM was obtained from the University of Edin- burgh, and Ph.D from the Ahmad Ibrahim Kuliyyah of Laws, International Islamic University Malaysia (AIKOL IIUM). Fajri is currently an assistant professor at the De- partment of International Law, Faculty of Law, Universitas Gadjah Mada, while also serving as Associate Member at the International Law and Maritime Affairs Research Unit, AIKOL IIUM. His research interest revolves around the intersection between public international law and the Islamic sciences.

Raphael A. PANGALANGAN practices public interest law in the Philippines. He obtained his MSt in International Human Rights Law from Oxford and his LL.M. in International Law from Cambridge. Raphael continues his courtroom and classroom advocacies across borders. He sits is a Bertha Justice Fellow with the Center for Inter- national Law, as the Associate Dean with O.P. Jindal Global Law School, and as a Vis- iting Lecturer with the University of the Philippines College of Medicine and College of Law where he teaches Law & Bioethics and Legal Theory.

Ahmad SADZALI received his License from the Faculty of Shari‘ah and Laws, Al- Azhar University, Cairo, and obtained his LLM at Universitas Islam Indonesia (UII). He currently works at UII holding various positions: assistant professor in the Depart- ment of Constitutional Law, Head of Development Division at the Directorate of Is- lamic Education and Development, Secretary General at the Islamic Law Research Cen- ter, and Expert Council member at the Constitutional Law Research Center. Ahmad’s expertise and research area is Islamic constitutional law.

Nahed SAMOUR is Post Doc fellow at the Law & Society Institute at the Humboldt University Berlin. 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 Frank- furt/Main. She clerked at the Court of Appeals in Berlin, and held a Post Doc position at the Eric Castrén Institute of International Law and Human Rights, Helsinki Univer- sity, Finland and was Early Career Fellow at the Lichtenberg-Kolleg, Göttingen Institute for Advance Study. She has taught as Junior Faculty at Harvard Law School Institute for Global Law and Policy from 2014-2018.

Catherine SAVARD is a LL.M. candidate at Université Laval under the supervision of Professor Fannie Lafontaine. Co-coordinator of the Canadian Partnership for Interna- tional Justice, she is member of the Canada Research Chair in International Criminal Justice and Human Rights. She co-authored the National Inquiry into Missing and Mur- dered Indigenous Women and Girls’ legal analysis on genocide, made public in June 2019. She has been hired as a law clerk both at the Supreme Court of Canada and the Québec Court of Appeal. Her research focuses on genocide, gender, colonialism, and treaty interpretation in international law.

Christine SCHWÖBEL-PATEL is Associate Professor at Warwick Law School, where she is the co-Director of the Centre for Critical Legal Studies. In her research, she adopts a critical approach to the dominant framing of mass atrocity, humanitarian- ism, and legal institutions through the lens of political economy and aesthetics. Prior to joining the University of Warwick, Christine taught at the University of Liverpool, Lei- den University, and King’s College London. She is author of the recently published Marketing Global Justice: The Political Economy of International Criminal Law (CUP 2021) and Global Constitutionalism in International Legal Perspective (Brill/Martinus Nijhoff 2011), editor of Critical Approaches to International Criminal Law: An

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Introduction (Routledge 2014), and co-editor (with Dr Robert Knox) of the forthcoming Aesthetics and Counter-Aesthetics of International Criminal Justice (Counterpress 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. For over fifteen years, she ran the Brandeis Institute for International Judges, a unique gathering of judges from across a wide spectrum of international courts and tribunals. In 2020, she launched the Language, Culture and Justice Hub, a platform that acts as a clearing- house for scholarship and practitioner-based commentary about how language and culture impact justice, broadly defined. Her academic work and publications have centered on the international judiciary; language use in postcolonial Africa; and African immigration and refugee resettlement in the United States. Her most research project focused on how the International Criminal Court manages the challenges associated with linguistic diversity, and in particular how it accommodates African language speakers in its investigations, in the courtroom and in its outreach programming to affected regions and victims. Swigart has wide experience in international education, including tenure as director of the West African Research Center in Dakar, Senegal. 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 An- thropological Research.

Maria VARAKI is a lecturer in international law at the War Studies department, King's College London. Before moving to London she held research positions with the Erik Castren Institute of International Law and Human Rights in Helsinki and the Law Fac- ulty of Hebrew University in Jerusalem. Immediate before she was an Assistant Profes- sor in International Law at Kadir Has University, Faculty of Law in Istanbul. She holds a PhD in International Criminal Law from the Irish Centre for Human Rights in Gal- way, Ireland and two LLM degrees in International and Comparative Law, one from Tulane University, School of Law and one from New York University, School of Law. Additionally, she has worked for the OHCHR in Geneva, the UNHCR in New York and for the Legal Advisory section of the Office of the Prosecutor of the International Criminal Court in the Hague. Since November 2017 she is member of the ILA Com- mittee on human rights in times of emergency. Her latest publication is the edited volume 'Ethical Leadership in International Organizations: Concepts, Narratives, Judg- ment and Assessment, Vilaca &Varaki (eds.) published by CUP.

Valeria VEGH WEIS is a Alexander von Humboldt Research Fellow at Free Univer- sity in Berlin and a Senior Lecturer in Criminology at Buenos Aires University Law School. She graduated in law from the University of Buenos Aires and holds a LL.M. from NYU Law School and a PhD from the University of Buenos Aires. Her recent publications include Marxism and Criminology. A History of Criminal Selectivity (Brill, 2017) and Criminalization of Activism (Routledge, 2021, forthcoming).

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