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Third World Approaches to International Criminal Law

Part of: TWAIL Perspectives on ICL, IHL, and Intervention

Published online by Cambridge University Press:  20 January 2017

Asad G. Kiyani
Asad G. Kiyani*
Affiliation:
Western Law
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A pattern of affording impunity to local power brokers throughout Africa pervades the application of international criminal law (ICL) in Africa. The International Criminal Court (ICC) investigation into Uganda is a notorious but representative example, although similar analyses can be made of the Central African Republic, Côte d’Ivoire, the Democratic Republic of Congo, and Libya. In Uganda, only members of the rebel Lord’s Resistance Army (LRA) have been indicted for international crimes, even though the United Nations, international human rights groups, and local NGOs have documented years of abuses perpetrated by government troops and local auxiliary units, often against the same populations victimized by the LRA. The ICC is thereby implicated in the power structures and political arrangements of a repressive state that both combats the LRA and often brutalizes the civilian populations of northern Uganda. Inserting itself into Uganda, the ICC becomes a partisan player in the endgame of a civil war that extends back over a generation, and is itself rooted in ethnic and tribal animosities cultivated through 19th century Euro-colonial benedictions of favor. Here, the ICC and the war it adjudicates become surprising bedfellows, repurposed by local elites for the consolidation of domestic power.

Type
Symposium on TWAIL Perspectives on ICL, IHL, and Intervention
Information
AJIL Unbound , Volume 109 , 2015 , pp. 255 - 259
Copyright
Copyright © American Society of International Law 2015

References

1 For a representative sample, see, e.g., UN Secretary-General, Report on children and armed conflict in Uganda, para. 36, UN Doc. S/2—7/260 (May 7, 2007); UN Comm. Against Torture, Conclusions and Recommendations, Uganda, para. 10(n), CAT/C/CR/34/UGA (June 21, 2005); Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda 35-37 (2005); and, Human Rights Watch, State of Pain: Torture in Uganda 16 (2004).

2 Nouwen, Sarah & Werner, Wouter, Doing Justice to the Political: The International Criminal Court in Uganda and Sudan, 21 Eur. J. Int’l L. 941, 962 (2011)CrossRefGoogle Scholar.

3 One example being the exemptions from mandatory ICC jurisdiction that are granted to peacekeeping forces contained in Securi ty Council resolutions that refer situations to the ICC. See, e.g., Sc Res 1593, para. 6 (Mar. 31, 2005) and Sc Res 1970 (Feb. 26, 2011).

4 Edward W. Said, Representations of the Intellectual 31–32 (1996).

5 UN Security Council, Meeting Record, 5158th Meeting, UN Doc. S/PV.5158 (Mar. 31, 2005).

6 Alvarez, José E., My Summer Vacation (Part Iii): Revisiting TWAIL in Paris, Opinio Juris (Sep. 28, 2010 Google Scholar, 6:13 am).

7 Kiyani, Asad G., Al-Bashir & the ICC: The Problem of Head of State Immunity, 12 Chinese J. Int’l L. 467 (2013)CrossRefGoogle Scholar.

8 Jalloh, Charles et al., Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court , 4 Afr. J. Legal Stud. 5, 28 (2011)Google Scholar.

9 Fatou Bensousa (Chief Prosecutor of the ICC), Comments on the Report of the Secretary-General on the Sudan and South Suan, UN Doc. S/Pv.7337 (Dec. 12, 2014).

10 See, e.g., Deirdre Golash, the Case Against Punishment: Retribution, Crime Prevention, and the Law (2006); Ted Honderich, Punishment: the Supposed Justifications Revisited (2006); and, R.A. Duff, Punishment, Communication, and Community (2003).

11 Suggestions by the Acholi Religious and Cultural Leaders in Response to the Request by the International Criminal Court’ (Statement, Gulu, 12 November 2004), reprinted in Tim Allen, Trial Justice: the International Criminal Court and Lord’s Resistance Army 86–87 (2006). See also, Pham Phuong & Patrick Vinck, Transitioning to Peace (2010) 38.

12 Kamari Maxine Clarke, Fictions of Justice 235 (2009).

13 See, e.g., Anghie, Antony & Chimni, B.S., Third World Approaches to International Law and Individual Responsibility in Internal Conflicts, 2 Chinese J. Int’l L. 77, 78–79 (2003)CrossRefGoogle Scholar; Okafor, Obiora Chinedu, Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective, 43 Osgoode Hall L.J. 171 (2005)Google Scholar, 176–177; and, Mickelson, Karin, Rhetoric and Rage: Third World Voices in International Legal Discourse, 16 Wisc. Int’l L.J. 353 (1998), 397Google Scholar.

14 Said, supra note 4, at 11-13.

15 As occurred after the Second World War, in the African examples cited above, in the former Yugoslavia (see, e.g., Mandel, Michael, Politics and Human Rights in International Criminal Law: Our Case Against Nato and the Lessons to be Learned From It, 25 Fordham Int’l L.J. 95, 95-97 (2001))Google Scholar, after the Rwandan genocide and in other ICC situations (David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics 75-76, 164-166 (2014)).

16 As an example, see Mamdani, Mahmood, Kenya 2013: The ICC election, Aljazeera, Mar. 14, 2013.Google Scholar

17 Recognizing the peril in retroactively describing particular scholarship as “TWAIL” when the appellation was only formally de veloped many years later. Mickelson, Karin, Taking Stock of TWAIL Histories, 10 Int’l Community L. Rev. 355, 361-362 (2008)CrossRefGoogle Scholar.

18 Gerry Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law 46 (2007).

19 Mamdani, Mahmood, The Logic of Nuremberg, 35 London Review of Books 33, Nov. 7, 2013.Google Scholar

20 Galtung, Johann, Violence, Peace and Peace Research, 6 J. Peace Res. 167 (1969)CrossRefGoogle Scholar.

21 Rob Nixon, Slow Violence and the Environmentalism of the Poor (2013).

22 See, e.g., Billon, Phillipe Le, The political ecology of war: natural resources and armed conflicts, 20 Pol. Geography 561 (2001)CrossRefGoogle Scholar.

23 African Union, Draft protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, AU Doc. No. STC/Legal/Min7(1)Rev.1 (May 14, 2014).

24 See, e.g., Murungu, Chacha Bhoke, Towards a Criminal Chamber in the African Court of Justice and Human Rights, 9 J. Int’l Crim. Just. 1067 (2011)CrossRefGoogle Scholar.

25 Matiangai V.S. Sirleaf, Regionalism, Regime Complexes & International Criminal Justice in Africa, Colum. J. Transnat’l L. (forthcoming 2016).