Third World Approaches to International Criminal Law (1/2) – The Origins of Modern International Criminal Law Exposed

Third World Approaches to International Law (TWAIL) argue that international law reflects and contributes to the marginalisation and domination of Third World states by the West.^[1] In the past decade, TWAIL has increasingly engaged with the field of international criminal justice. TWAIL scholars such as M. Mutua have viewed the development of modern international criminal law (ICL) critically, notably its very origins at the Nuremberg and Tokyo trials in the aftermath of World War II, as well as the subsequent establishment of specialised tribunals for the former Yugoslavia and Rwanda in the 1990s. However, upon ratification of the Rome Statute in 2002 and the establishment of a permanent International Criminal Court, scholars, including prominent TWAIL authors such as A. Anghi and B. S. Chimni,^[2] as well as numerous states in the Third World, particularly in Africa,^[3] expressed initial optimism that its consensually negotiated Statute would potentially result in a more egalitarian international criminal legal order.

Ought to be universal in its jurisdiction, the aim of the ICC, the ultimate product of modern international criminal law, is to prosecute “the most serious crimes of concern to the international community as a whole”.^[4] However, what this series goes on to show is that instead of universality, the international criminal legal system is characterised by selectivity, particularly detrimental to the peoples of the Third World. Building upon the critical work by TWAIL scholar A. Kiyani, highly acclaimed particularly for his substantial contribution on the issue of selectivity in ICL,^[5] this series aims to go one step further. Whereas there are numerous TWAILers having discussed issues of international criminal justice from a Third World perspective,^[6] this series attempts to offer a complete ideological and structural dissection of the international criminal legal system from its origin until today.

Seeing that the so called “honeymoon phase” of international criminal law, the field now entering a more mature period,^[7] it is necessary to take a holistic view of the evolution of international criminal law manifesting the system’s ingrained structural and material flaws. As the alleged ‘universal’ jurisdiction of the ICC is based upon laws created by Western powers at Nuremberg, it is necessary to dismantle this, what in particular Part I of this series goes on to argue, hegemonic project from its very origin to understand the extent to which international criminal law is truly detrimental to the people of the Third World.

To that end, this article firstly outlines the meaning and importance of TWAIL in the context of ICL, highlighting which key aspects of TWAIL scholarship are of particular relevance to the subsequent analysis (I). Problematising the development of modern ICL from a TWAIL perspective, this first part shows that the international criminal legal order has been a Eurocentric, hegemonic^[8] project since its very beginning. More specifically, it demonstrates that, from the post-WWII international criminal legal order of the Nuremberg trials and Tokyo trials, to the establishment of the ad hoc tribunals for former Yugoslavia and Rwanda, the modern international criminal legal system has systematically marginalised developing states to the benefit of the West (II).

I – TWAIL involvement with international criminal law

To clarify the parameters of analysis, this article first gives an overview of TWAIL theory, before engaging in more detail with the scholarship’s involvement with international criminal law, notably in regard to the concept of universal jurisdiction. This article shows that, contrary to what ICL alleges, the field is built upon Eurocentric and hegemonic foundations, exacerbated in particular through universal jurisdiction which permits judicial control by third parties over the nationals of sovereign Third World states.

A. A brief introduction to TWAIL

Since the 1990s, legal scholars and practitioners have gathered together as an informal networking with the goal of unravelling the ways in which international law continuously facilitates the marginalisation of Third World peoples.^[9] As described by prominent scholars Anghie and Chimni, TWAIL thinking is characterised, firstly, by an increased sensitivity to the power relations amongst states as a consequence of the colonialism and neo-colonialism suffered by the Third World.^[10] Secondly, it is characterised by the experience of colonialism and neo-colonialism lived by the people of the Third World.^[11] Thus, the interpretive prism of TWAIL is not only that of states but rather that of its people,^[12] through which TWAIL scholars seek to transform international law from a language of oppression to a language of emancipation.^[13] Thereby, even if often in reference to a discourse of ‘resistance’, the goal of TWAIL is to reform through the use of law.^[14]

Over time, TWAIL has evolved from what is referred to as TWAIL I scholarship, focused on colonial oppression in international law, to a more recent TWAIL II scholarship which elaborates and builds upon the scholarship of first generation of post-colonial international lawyers.^[15] TWAIL II scholars have consolidated TWAIL’s research agenda. According to Mutua, TWAIL is driven by three main objectives. The first objective is to understand 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”, the second to “construct and present an alternative normative legal edifice for international governance” and the third to ultimately “eradicate the conditions of underdevelopment in the Third World.”^[16]

For the subsequent analysis, what is of particular relevance from the second generation of TWAIL scholars is the understanding that the alleged universality of international law predicated on colonialism,^[17] which, in the case of ICL, is demonstrated to result more so in selectivity than universality. Moreover, what this article is taking from TWAIL is the need to prioritise the experience of the people of the Third World. However, in alignment with what has been argued by second generation TWAILers, at times it is through critiquing the Third World state that the interests of the Third World peoples are most advanced.^[18] As demonstrated in Part II of this series, including crimes such as governmental profiteering into the material jurisdiction of the ICC would put Third World governments under scrutiny, but ultimately result in an increased protection to its people. Thus, what this article takes from TWAIL II is the objective of examining, on the one hand, how international human rights norms should be used to protect Third World peoples agains their own states and international actors such the United Nations and, on the other hand how projects of ‘development’ promoted by international institutions, such as the International Court of Justice, works to the disadvantage of Third World peoples.^[19]

B. Problematising international criminal law from a TWAIL perspective

International criminal law is characterised by the concept of universal jurisdiction. In reference to the conduct alleged, which is argued to comprise serious crimes against the international community as a whole, universal jurisdiction permits to try breaches regardless of where they occur. Consequently, the ICC is in a position to prosecute crimes committed globally. From the perspective of TWAIL, this idea of universality is instinctively problematic. Given the Eurocentric origins of international criminal law, which is outlined in more detail below, the universal jurisdiction of the ICC enables the continuation of exporting civilisation to the uncivilised through judicial control of a body established by the United Nations over nationals of sovereign states.^[20] Through this alleged universality, ICL constructs an image of ordinary people of the Third World as in need of saving and preserves the pre-existing hegemonic power structures in international relations.^[21]

Numerous legal scholars have discussed bias in international criminal justice, particularly regarding its geographic selectivity, without positioning themselves within TWAIL discourse.^[22] ‘Critical Approaches to International Criminal Law’ (CAIL), for instance, serves as another strand of critical work being undertaken in the context of ICL.^[23] There are multiple similarities between TWAIL and CAIL, numerous authors identifying as belonging to both camps.^[24] However, in the words of Anghie and Chimni, “any system that purports to be universally valid must surely be assessed in terms of how it deals with the most disadvantaged.”^[25]

What TWAIL brings to the table compared to alternative critiques is its keen political commitment to dissecting the existing system of ICL with the goal of ultimately liberating the Third World from legalised oppression.^[26] Thus, taking a TWAIL perspective allows to consider how the foundations of ICL are deeply questionable.^[27] Additionally, through the angle of TWAIL, this series (in particular Part II) problematises human rights law in the context of ICL. Given that the role of ICL is to provide accountability for human rights violations, the TWAIL approach shows how the Western origins of human rights law continues to enable the process of marginalisation and domination of the Third World by the West.^[28] In practice, TWAIL engagement with ICL has indeed been limited in the past,^[29] but the scholarly movement has seen an increase in involvement with ICL since the 2015 TWAIL conference in Cairo.^[30]

Both ICL and TWAIL seek global transformation through law and share a commitment to end certain forms of violence, however in disagreement over what type of violence.^[31] In the words of Burgis-Kasthala, “where ICL scholars tend to see the trial as effecting rupture and repair, TWAIL scholars seek to highlight colonial continuities that have produced these episodes of violence.”^[32] To that end, instead of seeing colonial history as an artefact of the past, TWAILing ICL allows to replace this static awareness with an understanding of the ongoing consequences of violence as “an enfolding and unfolding process.”^[33] To that end, this article is taking a historical approach to dissecting the ideological and structural bases of international criminal law through the lens to TWAIL, starting with its origins at Nuremberg, to the establishment of ad hoc criminal tribunals and, as Part II of this series will discuss, ultimately the institutionalisation of modern ICL with the creation of the International Criminal Court.

II- The origins of modern international criminal law from a TWAIL perspective

TWAILing ICL allows to take a holistic approach of the development of modern international criminal law, dissecting the ideological and structural bases of the discipline from its very origins until today. In doing just that, this section demonstrates that ICL has been built on Eurocentric and hegemonic foundations that were hoped to be counteracted through a consensually negotiated Statute of a permanent court. However, as Part II of this series goes on to show, the initial optimism in regard to the ICC was unwarranted, the Court continuously engaging in the promotion of a false universality at the detriment to the peoples of the Third World.

A. TWAIL critique of the post-WWII international criminal legal order of the Nuremberg and Tokyo trials

The history of modern individual criminal responsibility has been deeply Eurocentric since its very origin, in it being a “distinctly western venture”.^[34] Atrocities committed all over the world were of no concern to international law until the victims subject to the atrocities were European peoples.^[35] During the Nuremberg trials following the end of the Second World War,^[36] the allies were in a position to extend the reach of international law to cover the atrocities committed by the Nazis, but ensured that their wrongful acts committed particularly in their colonial territories would not be covered.^[37] Distinguishing between war crimes committed in the context of international versus internal conflicts allowed for the newly introduced regime against atrocities to not concern the Allies’ own conduct as colonial powers.^[38] Crucial to the development of international criminal jurisprudence on mattes of war crimes and crimes against humanity, the Nuremberg Trials “gave future generations a basis for talking about accountability for the most horrible crimes; but it also emphasized the cynicism of power.”^[39]

The same was even more blatantly done in the context of the Tokyo Tribunal, where prosecutors feared to allow Japanese defendants to argue the defence of tu quoque, which would have prevented the Allies powers from prosecutions for acts committed by the Allies themselves.^[40] Judge Radhabinod Pal from India who was part of the tribunal referred to the “accomplishments” of Tokyo as neo-colonialist.^[41]

Most importantly, at neither military tribunal, the allied powers’ conduct, such as the bombing of civilians in major urban areas, was prosecuted.^[42] With Nuremberg and Tokyo, the foundations of ICL were laid on a restrictive legal practice, at the exclusion of nearly all non-western criminal law systems such as Islamic of Chinese law, as well as a narrow understanding of international human rights violations.^[43] Based on this narrow practice, the civilising mission of the West was imported into ICL.^[44]

B. TWAIL critiques of ad hoc international criminal tribunals

Continuing to dissect the ideological and structural bases of ICL, this article questions the motivation behind the UN Security Council’s establishment of the “Nuremberg-type war crimes tribunal[s]” for specific conflicts, particularly the International Criminal Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR), as well as the Special Court of Sierra Leone (SCSL).^[45] As put blatantly by Mutua, amongst the harshest TWAIL critics of the ad hoc tribunals, the ICTY and the ICTR were established pursuant to a “mobilization of shame by non-governmental organizations and especially the grisly pictures beamed to the world by the television camera created a public relations nightmare and made liars of the centers of Western civilization.”^[46] In line with what has been argued by Mutua, this section shows that the establishment of the ad hoc tribunals was in fact a continuation of the “cynicism of power” in favour of Western powers that were unwilling to take political and military measures in time to prevent the genocides  and atrocities committed.

In the case of the former Yugoslavia, Western powers were oblivious to the war crimes being committed in the middle of Europe, until public opinion was sensitised to the atrocities ongoing, urging politicians in Europe and the United States into taking action that would salvage their reputation.^[47] Instead of liaising targeted military intervention to prevent ethnic cleansing with diplomacy and the establishment of a tribunal to hold war criminals accountable, NATO and the United Nations were ignorant to finding a fair and just outcome to the conflict to which the parties involved would commit.^[48] Consequently, Bosnia and Herzegovina today remains a war-torn conflict ridden country that continues to struggle with ethnic tension. Mutua questions whether Wester powers would have handled the conflict the same way, had it not been most cruel to the population of Bosnian Muslims but rather Western European white Christians.^[49] Importantly, seeing that Bosnia and Herzegovina is neither economically nor militarily strategically significant, Western powers had no real incentive to intervene with the objective of coming to a fair and just end to the conflict.^[50]

Moreover, and as further support to the argument that the ad hoc tribunals are ideologically biased in favour of Western powers, the ICTY was presented with compelling evidence against NATO military operations and Western military leaders regarding their conduct during the conflict, but chose not to proceed with the inquiries.^[51] This double standard is also demonstrated by the fact that the ICTY gained a lot more attention and momentum than the ICTR, even if the events which led to the establishment of the tribunals showed numerous parallels. It is even argued that the ICTR would have not been created, had the ICTY not already existed and the Security Council been embarrassed to admit to its double standards by ignoring the genocide in Rwanda.^[52] This is yet another example showing that Western powers have little to no interest if the subjects to the atrocities in question are people of the Third World.^[53]

In addition to the tribunals created in the interim of Nuremberg and the establishment of a permanent court being politically hampered by Western states, they were structurally disadvantageous to the people of the Third World. The ad hoc tribunals are each statutorily restricted in time and geography, with the clear aim of only prosecuting criminal conduct resulting from the conflict at hand.^[54] However, both the temporal and geographic selectivity result in an inability of the tribunals to prosecute crimes that have been committed in the context of the conflict in focus of the tribunal.

In the context of Sierra Leone, the crimes committed crossed borders to Liberia, which however did not fall within the jurisdiction of the tribunal. Consequently, former Liberian president Charles Taylor was sentenced for his crimes in Sierra Leone but has not been held accountable for crimes committed in Liberia.^[55] Similarly, in the context of the ICRT, the temporal selectivity prevented prosecutors from investigating Rwandan atrocities committed pre-1994.^[56]

Both the geographic and the temporal selectivity demonstrate just how little importance the tribunals were actually paying to bringing justice to the people harmed during the conflict, which is particularly reinforced by the fact that the UN Security Council would have been in a position to expand the structural limitations of the tribunals to ensure that all atrocities committed in the context of the conflict are covered within the jurisdiction of the tribunals.^[57] Moreover, proponents of the tribunals argued at the time that the creation of such tribunals would allow for international law to set further precedent and develop the issue of war crimes in ICL.^[58] However, given these structural limitations, the law resulting from the work of the tribunals is neither a uniform nor definite corpus that can be applied apolitically and universally to war crimes committed across the globe.^[59]

The ideological and structural downsides to the establishment of ad hoc criminal tribunals were aimed to be resolved through the creation of a permanent International Criminal Court.

C. Merits of the establishment of the ICC?

The development from ad hoc criminal tribunals to the establishment of a permanent International Criminal Court was initially received positively, particularly by Third World states.^[60] Even if critical of certain aspects of the ICC, also a number of TWAIL scholars have endorsed the institution in light of its consensually negotiated statute,^[61] which had not been the case for the Court’s predecessors that were created by the United Nations Security Council. Appearing “genuinely egalitarian in structure and profoundly fair in conception”,^[62] the Rome Statute was ratified swiftly, particularly with the support of numerous African states to the surprise of many, seeing that there was concern that the 60-state threshold for the entry into force of the Statute. At the time of ratification of the Rome Statute, there were not enough ‘benign democracies’ in the West to fulfil the threshold, meaning that the Court could have not even been established without the support of Third World states.^[63]

In addition to initial hopes from the Third World, also TWAIL scholars expressed some optimism for the permanent institution.^[64] Anghie and Chimni raise concerns regarding the Rome Statute in respect to the Court’s jurisdiction and the powers granted to the Security Council, but ultimately endorse the institution.^[65]

However, Part II of this series shows that Anghie and Chimni’s concerns regarding the Court being subjected to the power of the Security Council, as well as its selective jurisdiction are indeed justified, as it enables Western domination over the Third World. Rather than being universally applicable, the ICC’s “culture of compliance“^[66] creates a false narrative of conflict resulting in a continuous marginalisation of the Third World.

^[1] For the purpose of this article, the term Third World is reappropriated, in line with what has been done by TWAIL scholars. See Mutua, M., & Anghie, A. (2000). What Is TWAIL? Proceedings of the Annual Meeting (American Society of International Law), 94, 31-40 at 35 (“The term Third World […] correctly captures the oppositional dialectic between the European and the non-European, and identifies the plunder of the latter by the former. It places the state of crises of the world on the global order that the West has created and dominates.) See also Mickelson, K. (1998). Rhetoric and Rage: Third World Voices in International Legal Discourse. Wisconsin International Law Journal, 16(2), 353-419. The term West refers to developed Anglo-European states.

^[2]  Anghie, A., Chimni, B.S. (2003). Third World Approaches to International Law and Individual Responsibility in Internal Conflicts. Chinese Journal of International Law, 2(1), 77–103 at 95 (“[…] we endorse the creation of the ICC”). Arguing for the complementarity of the ICC with national remedies, see Okafor, O., & Ngwaba, U. (2017). Between tunnel vision and sliding scale: Power, normativity and justice in the praxis of the international criminal court. Temple International & Comparative Law Journal, 31(1), 179-194.

^[3] This was notably demonstrated by the swift ratification of the Rome Statute particularly by African states. For more on this, see Schabas, W. A. (2013). The banality of international justice. Journal of International Criminal Justice, 11(3), 545-552 at 548 (“Africa had embraced International justice with astonishing enthusiasm”). Even if Schabas as a more orthodox author does not position himself within the TWAIL camp, he has written extensively on issues of ICL in conjunction with Third World concerns, which is why he is frequently relied upon by TWAIL scholars. See for instance Kiyani, A., Reynolds, J., Xavier, S. (2016). Third World Approaches to International Criminal Law. Journal of International Criminal Justice, 14, 915-920 at 920.

^[4] Rome Statute of the International Criminal Court (2002, July 1), 2187 U.N.T.S. 90, Preamble.

^[5] In 2016, Prof. A. Kiyani was awarded the Antonio Cassese Prize for International Criminal Law Studies by the Board of Editors of the Journal of International Criminal Justice for his essay “Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity’”, published as part of a symposium on Third World Approaches to International Criminal Law. See Kiyani, A. (2016). Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity. Journal of International Criminal Justice, 14(4), 939–957.

^[6] In addition to prominent TWAIL authors such as Kiyani, Anghie, Chimni and Mutua, who have each published numerous works on ICL from a TWAIL perspective, see for instance Burgis-Kasthala, M. (2016). Scholarship as dialogue: TWAIL and the politics of methodology. Journal of International Criminal Justice, 14(4), 921-938; Reynolds, J., Xavier, S. (2016). The Dark Corners of the World’: TWAIL and International Criminal Justice. Journal of International Criminal Justice, 14(4), 959–983; Okafor, O.C., Ngwaba, U. (2015). The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections. International Journal of Transitional Justice, 9(1), 90–108.

^[7] Luban, D. (2013). After the Honeymoon: Reflections on the Current State of International Criminal Justice. Journal of International Criminal Justice, 11(3), 505-515 at 505 (“the momentum for international criminal law seems to be gone and its success story – starting with the creation of the Military Tribunals at Nuremberg and Tokyo and culminating in the adoption of the Rome Statute – has come to a close”).

^[8] For the purpose of this article, the term hegemony or hegemonic is understood to be the West’s dominance over the Third World.

^[9] See Kiyani, A., Reynolds, J., Xavier, S. (2016) at 915.

^[10] Anghie, A., Chimni, B.S. (2003) at 78. For the purpose of this article, neo-colonialism is understood as the continuation of colonial domination through the use of economics, globalisation, culture, institutions and conditional aid often under the pretext of ‘development’

^[11] Ibid at 78.

^[12] Ibid at 83 (“[I]t is sometimes through supporting the Third World state and sometimes by critiquing it that the interests of the Third World people may be advanced”). See also, Kiyani, A. (2016) at 941.

^[13] Anghie, A., Chimni, B.S. (2003) at 79.

^[14] Fidler, D. R. (2003). Revolt Against or From Within the West? TWAIL, the Developing World, and the Future Direction of International Law. Chinese Journal of International Law, 2, 29-76 at 29-34.

^[15] Anghie, A., Chimni, B.S. (2003) at 79-80. The distinction between TWAIL I and TWAIL II has been questioned by TWAIL authors but is adopted as a distinction for the purpose of this analysis. See Mickelson, K. (2008). Taking Stock of TWAIL Histories. International Community Law Review (continuation of International Community Law Review and Non-State Actors and International Law), 10(4), 355-362.

^[16] Mutua, M., & Anghie, A. (2000) at 31. For more information on TWAIL II, see Anghie, A. (2016). Imperialism and International Legal Theory. In Orford, A., Hoffmann, F. (Eds.), The Oxford Handbook of the Theory of International Law; Rajagopal, B. (2014). International Law from below: Development, Social Movements, and Third World Resistance. Cambridge: Cambridge University Press; Anghie, A. (2008). TWAIL: Past and Future. International Community Law Review, 10(4), 479–81.

^[17] Anghie, A., Chimni, B.S. (2003) at 84.

^[18] Ibid at 83 (“By contrast, while recognizing the fundamental importance of the doctrine of sovereignty for advancing Third World interests and for protecting and preserving Third World states against various forms of intervention, TWAIL II scholars have developed powerful critiques of the Third World nation-state, of the processes of its formation and its resort to violence and authoritarianism.”).

^[19] Ibid.

^[20] Kiyani, A. (2011). A TWAIL Critique of the International Criminal Court: Contestations from the Global South. ISA Annual Convention, Montreal, at 14.

^[21] Antony Anghie, B.S. Chimni (2003) at 88.

^[22] See for instance Van der Wilt, H. (2011). Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justices as Administered by Western States. Journal of International Criminal Justice, 9(5), 1043-1066, at 1066.

^[23] See for instance Schwöbel, C. (Ed.). (2014). Critical Approaches to International Criminal Law: An Introduction (1st ed.). Routledge.

^[24] Burgis-Kasthala, M. (2016) at 934.

^[25] Anghie, A., B.S. Chimni (2003) at 102.

^[26] Burgis-Kasthala, M. (2016) at 934.

^[27] Kiyani, A. (2016) at 942.

^[28] Kiyani, A. (2011) at 7.

^[29] Burgis-Kasthala, M. (2016) at 921.

^[30] Xavier, S., Bhatia, A., Narajan, U., Reynolds, J. (2016). Placing TWAIL Scholarship and Praxis: Introduction to the Special Issue of the Windsor Yearbook of Access to Justice. Windsor Yearbook of Access to Justice, 33, v-xiv at vi. See also Haskell, J. (2014). TRAIL-ing TWAIL: Arguments and Blind Spots in Third World Approaches to International Law. Canadian Journal of Law and Jurisprudence, 27(2), 383-414 at 383.

^[31] Burgis-Kasthala, M. (2016) at 935.

^[32] Ibid at 936.

^[33] Ibid.

^[34] Reynolds, J., Xavier, S. (2016) at 962.

^[35] Anghie, A., B.S. Chimni (2003), at 88.

^[36] At Nuremberg, each of the four victory powers was able to appoint one member of the tribunal. As such, what is referred to as the “birthplace of an international criminal law” was not a collective action of a global community of nations but rather a manifestation of power of the Allies. See Reynolds, J., Xavier, S. (2016) at 11.

^[37] Mutua, M. (1997). Never Again: Questioning the Yugoslav and Rwanda Tribunals. Temple International and Comparative Law Journal, 11(1), 167-188 at 171 (“The irony of Nuremberg, and the White men who created it, was that the adjudicating states either condoned (or practiced as official policy) their own versions of racial mythologies: Britain and France violently put down demands for independence in “their” colonies in Africa and Asia while the United States denied its citizens of African descent basic human rights.”)

^[38] Anghie, A., B.S. Chimni (2003), at 88.

^[39] Mutua, M. (1997) at 172.

^[40] Ibid at 171. See also Khan, A. (2016). Inheriting a Tragic Ethos: Learning from Radhabinod Pal. American Journal of International Law, 110, 25-30 at 27-28.

^[41] Khan, A. (2016) at 26-27.

^[42] Kiyani, A. (2016) at 942. See also Xavier, S., Bhatia, A., Narajan, U., Reynolds, J. (2016) at vi.

^[43] Kiyani, A. (2015-2016) at 943. See also Kiyani, A. (2015-2016). Third World Approaches to International Criminal Law, American Journal of International Law, 109, 255-259 at 257.

^[44] Kiyani, A. (2011) at 2.

^[45] Kiyani, A. (2016) at 944.

^[46] Mutua, M. (1997) at 174.

^[47] Mutua, M. (1997) at 174. The same international inaction was visible in the context of the genocide in Rwanda and the subsequent establishment of the ICTR. See ibid at 175-177.

^[48] Ibid at 174-175.

^[49] Ibid at 175.

^[50] Ibid.

^[51] Antony Anghie, B.S. Chimni (2003) at 91-92.

^[52] Schabas, W. A. (2013) at 548.

^[53] Mutua, M. (1997) at 180.

^[54] Kiyani, A. (2016) at 944.

^[55] Ibid.

^[56] Ibid at 939.

^[57] Ibid.

^[58] Mutua, M. (1997) at 179.

^[59] Ibid at 178-180.

^[60] Reynolds, J., Xavier, S. (2016) at 963.

^[61] Anghie, A., B.S. Chimni (2003) at 95-96.

^[62] Schabas, W. A. (2013) at 548. See also Reynolds, J., Xavier, S. (2016) at 964.

^[63] Schabas, W. A. (2013), at 548.

^[64] See Anghie, A., B.S. Chimni (2003). See also Okafor, O.C., Ngwaba, U. (2015) at 90–108.

^[65] Antony Anghie, B.S. Chimni (2003), at 95.

^[66] Ibid.