reading 2 - hierarchy Flashcards
Constructing an international legal order under the shadow of colonial domination
Oumar Ba
African states = early and eager supporters of the international criminal justice regime
Africa had proposed a different version of the international legal order = reflective of their experience of colonial subjugation
-> Draft Code + ICC were meant to provide an avenue for redress, amid deep mistrust between Africa and “international law”
Africans as challengers and advocates of norms and a legal architecture borne out their experience of global marginality and the shadow of colonial domination
introduction
African vision for the international legal order = universal, sovereign equality, check against potential abuse by great powers + responsive to concerns of humanity of a whole
Current international legal order = taking shape in Nuremberg trials + 1998 Rome Conference (-> ICC)
Two pivotal episodes construction current int legal order =
- International Law Commission’s work in elaborating the Draft Code of Crimes against the Peace and Security of Mankind
Africa (impulse Special Rapporteur Doudou Thiam) = attempt to broaden the list of the gravest crimes (e.g. colonialism) - Negotiations Rome Conference (ICC)
African states envisioned truly universal court independent of the UNSC
African states wanted a world order that would rectify inequality of the international system
Article = revisionist historiography of the international criminal justice regime that “writes Africa in”
International law birthed colonialism, resisted decolonization and stymied efforts by African states to build an international legal system that condemned the colonial past and envisioned an egalitarian and humanistic future
Modern system = built around no accountability for the colonial past + no safeguard for a noncolonial world
the African vision meets the ICC reality
ASP = Assembly of State Parties = oversight and legislative body of the ICC
Asked for review of the court and the Rome Statute system, ICC-Africa relationship remains of the thorny issues in the international criminal justice system
African states = eager and early supporters establishment ICC (African content largest regional bloc in ICC membership)
Debates with African states and AU and ICC: peace vs justice + head of sate immunity + selectivity ICC prosecutions + anti-impunity norm + ICC interference and hindering of stabilization and peaceful resolution of conflicts efforts
- AU called for members not to cooperate with the ICC (e.g. Bashir had warrant for arrest, visited several ICC members but wasn’t arrested)
- Some African states announced intention to withdraw from the Rome Statute (South Africa, Burundi, The Gambia)
- Steps to have alternative mechanism: African Court
ICC reality strayed from hopes and anxieties of African states: lacks universal jurisdiction + can’t equally threaten the interests of powerful states + UNSC seen as undermining independence of the Court and sovereign equality
the most serious crimes of concern to humanity?
ILC (International Law Commission) defined the most serious crimes of concern to the international community as a whole
Draft Code of Crimes against the Peace and Security of Mankind adopted in 1996 (mirrored crimes in Nuremberg trial)
- aggression
- genocide
- crimes against humanity
- crimes against UN and associated personnel
- war crimes
these crimes also in Rome Statute ICC (aggression, genocide, crimes against humanity and war crimes)
between Nuremberg and ICC there was a window of opportunity for decolonized states to redefine crimes of concern to the international community
- effort to include colonialism among the core crimes (didn’t happen bc settler colonial solidarity)
- first reading draft code in 1991 had 12 crimes, incl. intervention, colonial domination, apartheid etc. (list is similar to that of the Malabo Protocol for the African Court of Justice)
Thiam advocated for inclusion more crimes + advocat4ed for Cold War neutrality + strong advocate for New International Economic Order (call for an economic Bandung) + spoke against US war in Vietnam at the UN + condemned ICJ’s ruling in favor of South Africa in the Southwest Africa case + advocated for better representation African judges at ICJ
western states rejected colonialism as a legal matter (vague and too braod (US), political slogan (UK))
1995 meeting -> second reading only included 4 core crimes, mutilated draft with definitive removal of colonial domination from the code (after private meeting with no official records)
an African vision at Rome
UN wanted an ICC to prosecute crimes as genocide (WW2 aftermath)
1948 Genocide Convention -> persons charged shall be tried in the territory of which the act was committed
UNGA invited ILC to study possibility of an ICC, nothing much happened until the end of the Cold War: UNGA asked ILC to resume work on an ICC with inclusion drug trafficking
1998 Rome Conference -> adoption Rome Statute that created the ICC
revisions ILC draft statute -> diff ad hoc committees that coalesced around core features and interests
- like minded group = universal jurisdiction for the Court + removal of a “filter” role of the UNSC
- Nonaligned Movement (NAM) = curtail influence of the UNSC + inclusion crime of aggression, drug crimes and terrorism
- UNSC permanent members: strong role UNSC + exclusion of nuclear weapons from the prohibitions under the statute
- Africa group (overlapping with NAM and like minded group) = particular interest in establishment ICC bc its peoples have been victims of large scale violations of human rights
for a truly universal and independent court
African states aimed to bring forward a new international order, which is a vision borne out of their collective experience of colonial subjugation and abuse by international law
African states wanted a truly universal court: worldwide membership, acceptance, wide material jurisdiction + wide representation in negotiations and draftings
+ independent court
+ equal sovereignty
failed (no postcolonial international community) bc general agreement and consensus model for making international institutions -> no vote until the final plenary
- consensus model ensures that decision making will not be skewed by the influx of newly independent states from the Global South in the international arena
!if the Rome Statute had been adopted by majority vote, it might well have denied the SC any role whatsoever
who is violating an “anti-impunity norm?”
anti-impunity norm = idea that perpetrators of atrocity crimes must be held accountable
normally = argument that Africa challenges the ICC, thus also resists an anti-impunity norm
- antripreneurs: African resistance to the ICC has stalled the advance of an anti-impunity norm
BUT: Western states initially resisted the emergence of this norm (bc they wanted a regime favorable to them)
-> it is power and white supremacy that decide what counts as international crimes and when and where it applies
