Third World Approaches to International Criminal Law (2/2) – Structural and Material Bias at the International Criminal Court

Through the lens of Third World Approaches to International Law (TWAIL), which argue that international law reflects and contributes to the marginalisation and domination of Third World states by the West,^[i] the aim of this article is to dissect the ideological and structural anatomy of the international criminal legal system. More than just condemning the International Criminal Court (ICC) for its past prosecutions that have not reached beyond the geographic scope of Africa,^[ii] this article shows that the ICC is both structurally and materially biased in favour of the West and instrumentalised by the United Nations Security Council in a continuous attempt to reinforce the existing global imbalance of power.

In a follow-up to Part I of this series, which problematised the development of modern ICL from a TWAIL perspective and showed that the international criminal legal order has been a Eurocentric, hegemonic project since its very beginning, Part II problematises the functioning of the International Criminal Court. In doing so, this article shows that the International Criminal Court is structurally biased in favour of the West, particularly as a consequence of its persistent deference to the Security Council, as well as materially biased as a consequence of the non-exhaustive list of crimes included in the jurisdictional scope and the Court’s promotion of a false narrative of conflict biased in favour of the West. In protecting a biased, narrow understanding of human rights, the complaints of the civilising mission of the West over the Third World is internalised by the international criminal system.

Part II of this series argues that the mandate of the International Criminal Court is both structurally and materially based on selectivity, rather than universality. Tapping into the traditional narrative of exporting the civilised to the uncivilised, the ICC is constructed in deference to the United Nations Security Council, resulting in an inability to prosecute nationals of Western powers (I). Based on a false universality of human rights law in the context of ICL, the Court is materially biased in favour of the West, selective in its list of crimes and engaging in a narrative of conflict to the detriment of the peoples of the Third World (II).

I- The ICC is structurally biased in favour of the West, resulting in an inability to prosecute nationals of Western powers

The status quo of international criminal law is that it is more concerned with keeping up the global imbalance of power rather than challenging a system most unfavourable to those who deserve its protection most.^[iii] As a result of the problematic relationship between the ICC and the Security Council, the Court is able to pursue nationals of states that are not party to the Rome Statute, as was the case with Sudan and Libya, but can refuse to proceed with investigations into the conduct of the US in Afghanistan.^[iv] This pro-Western agenda is enshrined in the Statute of the ICC, rendering the institution structurally biased in favour of Western powers.

A. De facto immunity of Western states (art. 17 and 98 of the Rome Statute)

The ICC’s jurisdiction is considered to be universal, even if the court itself is treaty-based which usually would exclude the possibility of universal application. However, in reality, Western states are de facto immune from prosecution by the ICC.^[v] Three out of five members of the Security Council (China, Russia and the US) are not parties to the Rome Statute, the United Kingdom and France being the only ones having ratified the Statute. Nevertheless, even if party to the Statute, the UK and France remain practically untouched by the Court’s jurisdiction, seeing that it is limited to the state under review being unwilling or unable to exercise jurisdiction as per article 17 of the Rome Statute.^[vi] Thus, as long as the UK and France are willing and able to carry out an investigation, the case at hand is inadmissible before the ICC.

Quite the opposite is the case for Third World states which are often accused of deficiency in their legal systems that, in addition to a lack of development and infrastructure, leave them unable to investigate or prosecute a case that becomes then subject to the jurisdiction of the ICC.^[vii] As a consequence of the ICC’s selective jurisdiction, the traditional ‘civilising mission’ of the West over the Third World is reinforced. Moreover, article 17 offers the basis for violating Third World states’ sovereignty, as they are deemed incapable of pursuing a case themselves. Additionally, the clause allows to universalise the judicial systems of powerful states, as the systems of Third World states are deemed inappropriate to be granted jurisdiction over an investigation or prosecution. Rather than supporting local and non-institutional solutions, article 17 of the Rome Statute results in the promotion of Western legal hegemony over the Third World. Ultimately, measuring the ability to investigate or prosecute a case according to Western standards burdens the Third World with a Western cultural package rather than a universally applicable rule.^[viii]

Moreover, also article 98 of the Rome Statute allows Western powers de facto immunity from jurisdiction. Article 98 allows any two states to conclude an agreement that impedes the ICC from executing an arrest or transfer of an individual from one state to another.^[ix] The United States were quick to conclude several such agreements, frequently hand in hand with a threat to withhold military or development aid.^[x] This is yet another way in which Western powers can lobby their way out of the scope of the ICC, resulting in anything but a universal jurisdiction of the Court.

B. The Security Council’s referral powers (art. 13 of the Rome Statute)

The Security Council’s referral mechanism granted in article 13 of the Rome Statute demonstrates the ICC’s unwillingness and inability to detach itself from the imbalances of power of international law in favour of the West. The ICC may exercise jurisdiction in four ways,^[xi] one of which granting the Court jurisdiction over matters taking place on the territory of a state not party to the Rome Statute through the Security Council’s referral powers under article 13. Past cases, notably Libya and Sudan, have shown that Security Council referral’s are treated more swiftly and seriously as opposed to other cases referred to the ICC through alternative mechanisms.^[xii] Thereby, in exercising jurisdiction as a treaty-based institution over non-state parties, the ICC is unilaterally altering principles of international law.^[xiii]

In the case of Sudan for instance, the ICC is exercising jurisdiction over a non-state party by indicting its head of state, al-Bashir.^[xiv] In doing so, the ICC imposed a the terms of a treaty on a non-state party, violating customary laws of treaties.^[xv] The argument that such indictment would be justified given the Security Council’s referral is flawed, seeing that the Security Council itself is subject to the Laws of Treaties which prevents binding a non-state party to a treaty, even if through a Security Council Resolution.^[xvi]

More importantly, the universality of the Court’s jurisdiction being expanded to non-state parties would not cause much issue from a TWAIL perspective, if it were truly applicable to all states. However, China, Russia and the US as non-signatories of Rome Statute are in a position to veto any referral of cases to the ICC.^[xvii] As a consequence of this referral power, the second-class nature of Third World states under international criminal law is further entrenched. Thus, and as shown in this section, whether or not Third World states have consented to the Rome Statute is incidental, as they are in any case subject to Security Council’s discretion.

C. The Security Council’s deferral powers (art. 16 of the Rome Statute)

In addition to being able to refer cases to the ICC, the Security Council is granted the power to defer investigations and prosecutions for a period of one year upon request, with possibility of renewal under the same conditions.^[xviii] However, instead of using these deferral powers in situations in which a prosecution would hinder the conflict from being resolved, for example by enflaming peace talks, the Security Council has relied on article 16 to further its own agenda.

The African Union (AU) made several requests to the Security Council to defer the ICC’s prosecution in the case of its investigation into Sudan.^[xix] Instead of relying on the opinion of the AU,  which at the time had peace troops all over Sudan and was heavily implicated in peace talks in the region, the Security Council chose to dismiss the input,^[xx] as so often when coming from the Third World. This article does not argue that the Security Council should be deferent to every deferral request. Rather, the Security Council should at least debate every such request and in particular hear out the parties making such request. In the example of Sudan, the AU proposed an alternative solution to the ICC’s prosecution of the Sudanese president. However, that alternative was never even consulted, let alone debated, by the Security Council.^[xxi]

As outlined above, the allegedly consensually negotiated egalitarian Statute of the ICC is in reality yet another corroboration that protection under international law is not granted to the ones most in need, but to the ones with most power. With the ICC, a structural bias resulting in the marginalisation and domination of the Third World by the West is institutionalised. In addition to being structurally flawed, the ICC is also materially biased, protecting a narrow concept of human rights that imports the civilising mission into modern international criminal law.

II- The ICC is materially biased in favour of the West, promoting a false universality of human rights law

Not only is the ICC structured, by virtue of the Rome Statute, favourably to Western powers (particularly if sitting in the Security Council), also its material scope is anything but universally applicable. The question of what crimes fall under the material jurisdiction of the ICC is what Kiyani refers to as “material selectivity”.^[xxii] According to the author, the selectivity takes a number of forms, including “the predominant emphasis on crimes within African states and not outside of the continent”, “the unwillingness to pursue foreign and transnational arms dealers, corporate actors, and military forces involved in these African situations” and “the focus on only some parties to a conflict and not others.”^[xxiii] This section argues that the international crimes falling within the Court’s jurisdiction are non-exhaustive and selective in favour of the West, resulting in a false narrative of conflict to the detriment of the people of the Third World.

A. Non-exhaustive list of international crimes selective in favour of the West

The ICC’s allegedly universal jurisdiction is justified in reference to internationally recognised human rights norms, the Court’s mission being the manifestation and protection of such rights. In its Statute, the institution’s jurisdiction claims to cover “the most serious crimes of concern to the international community as a whole”,^[xxiv] giving the illusion of an exhaustive list of crimes. However, yet again when considering the ‘international community’ ICL pays little to no attention to the needs and concerns of the Third World.

The ICC’s material selectivity is problematic at its very root. International criminal law is predominantly concerned with direct and extreme forms of violence occurring in in conflict,^[xxv] which were listed by the Allies in the aftermath of World War II. From a TWAIL perspective however, it is necessary to understand the underlying historical forms of inequality that are often the cause or background condition for conflict.^[xxvi] As pointed out by Rajagopal, the ICC’s material definition of criminal conduct renders “several forms of violence, such as that generated by development, invisible to the discourse.”^[xxvii] If ICL takes into account the context of violence, it is usually in connection with ‘Third World causes’, such as for instance the illegitimate seizure of power by local overlords, the abusive projection of that power by ‘tyrants’, as well as the torture and oppression of local populations.^[xxviii] The consequences of colonialism or development are not considered as catalysts of conflict, which has been criticised by voices in the Third World, notably the African Court of Justice and Human Rights which took steps into the direction of covering a more inclusive list of crimes.^[xxix]

As suggested by Kiyani, the ICC’s jurisdiction should include, firstly, a definition of crimes of aggression, as had been suggested in the 1991 Draft Code of Crimes Against the Peace and Security of Mankind by the International Law Commission. Thereby, it is suggested to define crimes of aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”^[xxx] In doing so, the Court’s jurisdiction would make sure to exclude struggles for self-determination or independence but include crimes such as invasion, occupation and bombardment. As a consequence, Third World states would be offered a “dual protection”, reinforcing the right to self-determination whilst at the same time allowing Third World states to shield themselves from crimes of aggression.^[xxxi]

Moreover, given that Third World states inarguably suffered, and are still suffering, from their colonial oppressors, the international criminal project would improve its legitimacy by criminalising and further clarifying conduct in the context of colonial domination, including for instance the recruitment of mercenaries. Furthermore, the ICC should be granted jurisdiction over economic crimes, such as arms trade,^[xxxii] as well as governmental profiteering.^[xxxiii]

The range of crimes falling within the jurisdiction of the ICC are largely focused on core civil and political rights, thereby excluding rights of particular concern to the peoples of the Third World. Instead of offering a complete list of crimes, the ICC’s material selectivity focuses on a “set of crimes whose archetypal perpetrators are the rebels, rogue army leaders and dictators of the developing world.”^[xxxiv] This, in turn, results in a false narrative of conflict to the detriment of the people of the Third World.

B. Promotion of a false narrative of conflict biased in favour of the West

The ICC’s conduct since its establishment has been highly questionable from a TWAIL perspective, “imposing white man’s justice upon third world conflicts”.^[xxxv] Already with the establishment of the ad hoc criminal courts, Western powers have constructed an image of the Third World in need of ‘saving’, which has been continued by the practice of the ICC. In doing so, the international criminal system has failed to take into account the role of international politics and economic exploitation in the genesis of conflict.

In addition to being structurally and materially limited in its jurisdiction to the detriment of the Third World, the ICC’s practice so far has solely focused on Africa, the Court having turned down investigations into cases concerning conflicts in other parts of the world.^[xxxvi] Thus, the ICC does not only fail to investigate cases due to being statutorily precluded, but also choses to exercise its discretion by not pursuing cases. Ultimately, with this anti-African partiality, the Court is allowing convicted leaders to be victimised, which does not only strip the actual victims from their deserved justice but, more generally, jeopardises the legitimacy of the entire international criminal legal system.^[xxxvii]

            To conclude, this article does not aim to exonerate actors having committed mass atrocities across the Third World. More so, it serves as a critique to a system that purports universality but instead is based on structural and material selectivity. This article has shown that, with its deference to Security Council, as well as its narrow understanding which crimes ought to be included in the Court’s jurisdiction, the ICC is unable to truly bring justice to the victims of mass atrocities in the Third World. Imperceptive to the crimes generated by development, ICL does not only prevent Western states engaging in such violence to be held accountable but also allows the very same to economically benefit from such conduct. Thus, as demonstrated in this article, by structurally and materially precluding the prosecution of individuals from powerful states, modern international criminal law enshrines the existing global imbalance of power and enables the continuous domination and marginalisation of the Third World by the West. Instead of engaging in this civilising mission, the International Criminal Court ought to take a more holistic approach to conflict, aimed at understanding the very dynamics that caused the outbreak of violence, which, until today, remains unrecognised by international criminal law.

^[i] 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.

^[ii] The ICC has initiated investigations into cases outside of Africa (3 out of 13 situations currently under investigation) but so far has not prosecuted any non-Africans out of 29 concluded cases. For more information on ongoing cases, see International Criminal Court. Situations under investigation, available at https://www.icc-cpi.int/pages/situation.aspx [accessed on Dec. 22, 2020]. See also Kiyani, A. (2019). Afghanistan and the Surrender of International Criminal Justice. Third World Approaches to International Law Review, 10 at 3.

^[iii] Kiyani, A. (2015-2016). Third World Approaches to International Criminal Law, American Journal of International Law, 109, 255-259 at 256.

^[iv] Kiyani, A. (2019) at 6.

^[v] Kiyani, A. (2011). A TWAIL Critique of the International Criminal Court: Contestations from the Global South. ISA Annual Convention, Montreal, at 17-19.

^[vi] Rome Statute, art. 17.

^[vii] Kiyani, A. (2016) at 15-16 (“ […] reflecting an inherent deficiency in the Third World state, further proof of a lack of sufficient infrastructure, development, modernity or commitment to human rights.”)

^[viii] See Anghie, A.(2004). Civilization and Commerce: The Concept of Governance in Historical Perspective. Cambridge University Press at 254-258.

^[ix] Rome Statute, art. 17.

^[x] Kiyani, A. (2011) at 17-18.

^[xi] ICC can exercise jurisdiction in four ways: ii) state party referral; ii) non-state parties may declare their acceptance of the court’s jurisdiction; iii) prosecutor may, at his own initiative, open up an investigation into a situation taking place on the territory of any State party; iv) the Security Council may refer a matter to the Prosecutor, even if the situation is not taking place on the territory of a State Party. See, Rome Statute, art. 13, 14 and 15.

^[xii] 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 at 972-973. This is particularly well demonstrated when compared to the cases of Palestine and Sri Lanka, neither of which were referred to the ICC by the UN Security Council. See ibid at 974-977. For more on the particular case of Palestine from a TWAIL perspective, see Reynolds, J. (2016). Disrupting civility: amateur intellectuals, international lawyers and TWAIL as praxis. Third World Quarterly, 37(11), 2098-2118.

^[xiii] Muller, S., Raic D., Thuranszky, J. (Ed.). (1997). The Security Council and the International Court of Justice: Judicial Drift and Judicial Function at 234 – 235.

^[xiv] The decision to refer the case of Sudan to the ICC was commented by Sudan’s representatives as “[…] this Court is simply a stick used for weak States and that it is an extension of this Council of yours, which has always adopted resolutions and sanctions only against weak countries […]” [Emphasis added]. See Kiyani, A. (2011) at 2.

^[xv] United Nations (1969, May 23), Vienna Convention on the Law of Treaties, art. 35.

^[xvi] Kiyani, A. (2011) at 18.

^[xvii] It seems for instance unlikely that the ICC will ever investigate the situation in Syria, seeing that Russia and China have an interest and the possibility to veto such investigation. See Okafor, O.C., Ngwaba, U. (2015) at 96.

^[xviii] Rome Statute, art. 16.

^[xix] Kiyani, A. (2011) at 16-17.

^[xx] Reynolds, J., Xavier, S. (2016) at 969.

^[xxi] Kiyani, A. (2011) at 16-17.

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

^[xxiii] Kiyani, A. (2015-2016) at 255.

^[xxiv] Rome Statute, Preamble.

^[xxv] The ICC has jurisdiction over four types of crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. These crimes are outlines in art. 6, 7, 8, and 8 bis of the Rome Statute, respectively. See Rome Statute.

^[xxvi] Burgis-Kasthala, M. (2016). Scholarship as dialogue: TWAIL and the politics of methodology. Journal of International Criminal Justice, 14(4), 921-938 at 935.

^[xxvii] Rajagopal, B. (2003). International Law From Below: Development, Social Movements and Third World Resistance. Cambridge University Press at 231.

^[xxviii] Joyce, D. (2004). The Historical Function of International Criminal Trials: Re-thinking International Criminal Law. Nordic Journal of International Law, 73, 461-484 at 464.

^[xxix] Such crimes would include mercenarism, corruption, money-laundering and illicit exploitation of resources. See Reynolds, J., Xavier, S. (2016) at 984.

^[xxx] United Nations. (1974, December 10) General Assembly Resolution 3314 (XXIX), Definition of Aggression.

^[xxxi] Kiyani, A. (2011) at 20.

^[xxxii] Ibid.

^[xxxiii] Kofele-Kale, N. (1995). International Law of Responsibility for Economic Crimes: Holding Heads of State and Other High Ranking Officials Individually Liable for Acts of Fraudulent Enrichment. Kluwer Law International.

^[xxxiv] Kiyani, A. (2011) at 15.

^[xxxv] Crane, D. (2006). White Man’s Justice: Applying International Justice after Regional Third World Conflicts. Cardozo Law Review, 27, 1683-1688 at 1683-1684.

^[xxxvi] The ICC is currently investigating 13 situations, only 2 of which are outside the geographic scope of Africa. The ICC previously has conducted preliminary examinations but declined to initiate formal investigations in Comoros, Honduras and South Korea. All 29 of the ICC’s cases concern individuals from Africa. For more information on ongoing cases, see International Criminal Court. Situations under investigation, available at https://www.icc-cpi.int/pages/situation.aspx [accessed on Dec. 22, 2020].

^[xxxvii] 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 at 184.