By Margot Tudor
Margot is an ESRC-funded PhD candidate in Humanitarianism and Conflict Response with the HCRI at the University of Manchester. Her main research areas of interest are peacekeeping, global governance, colonial continuities and the history of humanitarianism.
This article argues that the colonial continuities present in the operations and ideologies within the structures of the international justice system have diplomatic implications. By investigating the International Criminal Court’s (ICC) attempts to prosecute the President of Sudan, Omar al-Bashir, it seeks to verify accusations of anti-African bias and neo-colonialism. Additionally, the historical roots of these imperial legacies and their contemporary double standards have provided political weight to those attempting to evade international law. This project presents a uniquely holistic and interdisciplinary approach to unite the fields of global justice, transitional justice and post-colonialism through utilising the frameworks and literature from international law, history, international relations and politics. It intends to build upon the burgeoning literature considering the connections between ‘new imperialism and histories of humanitarianism’ (Edmonds and Johnstone, 2016, p. 1). It will be argued that the transitional justice process excludes victims from the production process of justice through legalistic and technocratic approaches which present Western approaches to justice as superior. This, therefore, divorces victims from their access to the judicial process. In this way, this project hopes to build upon post-colonial frameworks and use them to view the power sources within global structures and institutions, particularly those within the morality industries (humanitarian, governance or judicial).
To them it is our part to give wise laws, good government, and a well-ordered finance, which is the foundation of good things in human communities… where the light of morality and religion can penetrate into the darkest dwelling places. This is the real fulfilment of our duties; this, I say again, is the true strength and meaning of Imperialism. – (Lord Carnarvon, cited in Cain, 2012, p. 563)
The International Criminal Court’s (ICC, or the Court) case against Sudanese President Omar Hassan Ahmad al-Bashir sits at the crux of several geopolitical and legal dilemmas currently holding the attention of the international community. News of al-Bashir’s arrest warrants – the second warrant added the genocide charge in 2010 (ICC, 2010) – echoed around the globe and yet the Court still awaits his presence in The Hague and his victims await justice (ICC, 2009). Eight years after the first warrant was issued on several charges of crimes against humanity and war crimes, al-Bashir walks free, retains his Head of State status and has regularly travelled outside Sudan to attend international conferences and diplomatic engagements (Nuba Reports, 2016). By examining the political stances of the African Union (AU), Sudan and the Court, the article will show how the Court’s procedures and theoretical approach to justice retains problematic elements of the historical evolution of international justice, diplomatic paternalism and moral imperialism within the Westphalian system. By examining the aftermath of the failed arrest warrants, it will demonstrate how far victims have been ignored in preference of a morally imperialistic and technocratic approach to justice. Overall, it will be shown that the ICC’s less-than-subtle approach to international criminal justice has aided al-Bashir in his evasion of justice as it has fractured diplomatic relations between the AU and the international community.
Recent accusations of neo-colonialism and excessive Western influence on the Court have contributed to negative media and diplomatic thought regarding the independence of the ICC (Peskin, 2009, p. 307). The perceived impartiality of the Court, as an arbiter of objective justice, is crucial to its success as a popular organ within the United Nations (UN) system and thus these criticisms have shaken the core of the beliefs which uphold the ICC’s operations. Victor Peskin’s interviews have shown how these allegations have influenced those who work for the Courtp. ‘“It is a very harmful debate for us…and it is harmful to perceptions,” of the Court, lamented a high-ranking official in a December 2008 interview’ (Peskin, 2009, p. 307). It is with concerns of exploitation within the international legal system in mind that this article seeks to determine how far accusations of colonial continuities within the Court can be verified. In this way, this article argues that transparency and removal of all double standards is the only method available for improving participation in the endeavour of international criminal justice and ensuring that victims’ rights are prioritised.
By looking at the African Union High-Level Panel on Darfur (AUPD) report in detail, this article will examine how the international intervention of the ICC in this case has not permitted ‘African solutions for African problems’ and how, instead, the Court has pursued a paternalistic attitude in its interactions with the AU (Maathai, 2010). It will show that the ICC’s preference for legalistic and technocratic approaches to justice have, in the tradition of Western international criminal justice cases, instrumentalised the victims within the court and oversimplified their experiences of the conflict for the ease of legal binaries. It will also explore how far the Court’s assumptions regarding liberal democracy can be seen as part of the broader peacebuilding strategy of the UN. Although peacebuilding intends to ensure stability for the future of a region, it also assumes that the Western vision of civilisation, as outlined in Fukuyama’s thesis, is the ‘end of history’ (Fukuyama, 1989, p. 3). Thus this attitude can lead to justice processes seeking morally imperialistic results (Marks, 1997, p. 474-475). As a UN representative of Sudan commented when the Security Council (UNSC) referred the case to the ICC:
The Council today did not settle the question of accountability in Darfur. Rather, it exposed the fact that this Criminal Court was originally intended for developing and weak states, and that is a tool for the exercise of the culture of superiority and to impose cultural superiority. It is a tool for those who believe that they have a monopoly on virtues in this world, rife with injustice and tyranny. (UN Doc S/PV.5158, 12)
Unpicking the assumptions that underlie the rhetoric, beliefs and therefore operations of the Court is crucial for understanding the implicit liberalistic attitudes towards non-Western approaches to justice. Filtering down through the global governance system are the preferences for legalistic, ‘expert’ and bureaucratised processes. Due to the ‘one-size-fits-all’/‘toolbox’ approach towards international criminal justice, the complexities of individual societies and the needs of minorities are ignored in preference of establishing a liberal democracy. These abbreviated approaches to justice, as part of the peacebuilding endeavour, remove all legitimacy from alternative judicial processes. As Rubli argues, ‘Social change is considered to be an outcome of legal-institutional reforms and hence, transitional justice is often externally imposed in a paternalistic and top-down way’ (Rubli, 2012p. 11).
The development of international criminal justice
Establishing the historical context of the al-Bashir case is important for understanding the complex political circumstances of al-Bashir’s warrant. Before briefly describing the alleged crimes of al-Bashir’s government, it is important to analyse the ideologically fraught arena of international criminal justice, within which al-Bashir’s case will be deconstructed. The development of international criminal justice processes at the beginning of the Twentieth Century accelerated following the Second World War as transitional justice became a tool for the post-war Allies. Nuremberg served as an experiment into the foray of international criminal justice (Jackson, 1945), its first lesson being that the role of history, memory and victimhood are at the centre of its endeavour. Prosecuting a crime that holds such historical and political symbolism presents many unique obstacles that differ from domestic criminal proceedings. Appearances of objectivity are even harder when those at home might not fully understand the difficulties of working within legal frameworks where, ‘…emotions are “regulated” and subject to the requirements of the legal settings and procedures’ (Karstedt, 2016, p. 51).
Additionally, the role justice plays in keeping the peace within a post-conflict society is paramount. The catharsis of a justice system can serve to aid a community in rebuilding and regaining stability; ‘In the long run, the absence of a fair judicial and penal system results in a failure to provide a sense of justice for the victims of war crimes, human rights violations, and other criminal activities, and that sense of justice is essential to achieving sustainable security’ (Field and Perito, 2002-2003, p. 81). The securitisation of justice – i.e. discussions about how far justice processes are an important tool for preventing further conflict – has been an area of scholarship that has grown in tandem with the peacebuilding rhetoric that will later become crucial to this article’s discussions of neo-colonialism. In this way, Nuremberg was the first site where international lawyers discovered the complex and unique requirements that (successful) transitional justice processes demand.
However, the advent of the Cold War caused the international community to reprioritise their diplomatic efforts, and prosecutions of Axis powers were no longer deemed necessary unless they incriminated those who occupied the Eastern European border (Bazlyer, 2016, p. 111). During the decolonising period, this pause of prosecutions seemed to indicate that international justice was no longer a luxury that could be afforded. The juxtaposition of the growing human rights rhetoric in Western politics jarred with the realities of their imperial crimes abroad (Klose, 2013, p. 48). As Sartre argues, ‘You who are so liberal, so humane, who take the love of culture to the point of affection, you pretend to forget that you have colonies where massacres are committed in your name’ (foreword of Fanon, 1963, p. 12). Only once the Berlin Wall was brought down in 1989 was the West keen to reignite its role as legal arbiter of human rights through the means of international justice processes (Kaptenijns, 2013, p. 425). To this end, the UN Charter’s Chapter VII was increasingly interpreted more flexibly as the global push for humanitarian interventions fought against the post-colonial struggle to protect sovereign integrity (Ayoob, 2002, p. 83). As Mamdani argues, ‘[t]he transition from the old system of sovereignty to a new humanitarian order is confined to those states defined as ‘failed’ or ‘rogue’ states. The result [was] a bifurcated system whereby state sovereignty [is obtained] in large parts of the world but is suspended in more and more countries in Africa and the Middle East’ (Mamdani, 2010, p. 54).
The development of international criminal justice systems throughout the latter decades of the twentieth century has, therefore, taken place within the environment of a post-Cold War victory, a ‘New World Order’ narrative which has allowed the West to set the tone for what international justice entails and who it is for. The signing of the Rome Statute in 1998 and development of a permanent International Criminal Court in 2002 with the role of prosecuting individuals (as opposed to the mandate of the International Court of Justice which prosecutes member-states of the UN in a civil court) was quickly perceived as representative of much of the global community’s philosophical attitude towards international criminal justice: the supremacy of globalised legalism over other forms of reconciliatory processes (Bongiovanni et al, 2014, p. 760). The ICC’s mandate was seen by many as ‘…the missing link in the international justice system’ (United Nations, 1998-1999). However, hopeful beginnings began to crumble as the ICC’s actions proved no more enlightened than the colonial biases and double standards inherent to the Permanent Members (P5) and veto structure of the UNSC. As Thakur argues, ‘…there is a growing perception that an initiative of international criminal justice, meant to protect vulnerable people from brutal national rulers, [that] has been subverted into an instrument of powerful against vulnerable countries’ (Thakur, 2016, p. 372).
Darfur and the alleged crimes of al-Bashir
The roots of the conflict in Darfur begin long before 2003 with the extreme political and economic marginalisation and oppression of the Western region of Sudan by government forces in the capital city, Khartoum. However, in February 2003 the Sudan Liberation Army attacked the government forces, which had been dominating their communities for years and utilising colonial economic and political structures. This initiated a disproportionate counter-response by the government who were keen to protect their social and political hierarchy within the region. The government utilised local ‘Arab’ militias, the Janjaweed, to attack those in the Darfur region. Al-Bashir’s government is accused of ordering the militias to terrorise the Darfur communities by burning villages, encouraging sexual violence and murdering thousands (Austin and Koppelman, 2004, p. 26). Mills has commented on the international response to the conflict, saying ‘The world was slow to respond. First came humanitarian assistance… A year or so later, newspaper editorial pages started referring to the conflict as genocide’ (Mills, 2012, p. 414).
Legalism ‘barbarises’ its own victims
In 1998, the ICC was hailed as the ‘Victim’s Court’ (Human Rights Centre UC Berkeley School of Law, 2015, p. 1), intending to put survivors and their families’ experiences of the international criminal justice system at the forefront of its priorities. Therefore, ‘In addition to being called as witnesses, victims would have the right to be heard by ICC judges at all stages of the proceedings’ (Human Rights Centre UC Berkeley School of Law, 2015, p. 1). Moffett argues that ‘The broadening of international criminal justice to be more responsive to victims brings challenges of its own in reconciling the need to deliver justice to potential thousands of individuals, against the logistical and financial limits of a single international institution’ (Moffett, 2015, p. 283). Perhaps a national court could hope for this level of victim support, but an international court with only five field offices has virtually set itself up for failure.
Despite the recent ‘local turn’ (Mac Ginty and Richmond, 2013, p. 763) in peacebuilding in response to ‘frustrations at the technocratic and unresponsive aspects of orthodox peacebuilding policy’ (Firchow and Mac Ginty, 2013, p. 232), international justice practitioners have yet to respond to its critics with its own evolution. Human rights defenders on the ground have argued that ‘the Court remains too far removed from the field and from the concerns of the affected communities. Largely absent from the regions where the victims live, the ICC has not as yet succeeded in making itself known’ (Glasius, 2009, p. 510). In this way, the victims are removed from the consultation and procedural process and their experiences filtered through a Western legalistic process which has constructed tropes of African victims of conflict which are often found in ‘humanitarian’ marketing – often infantalised and in need of parental guidance (Kennedy, 2009). Apoliticising victims removes their identity which may have been the reason for their victimhood in the first place. Removing a victim’s political agency from their involvement in the Court process is not only offensive to their capacity for autonomous voice (Moffett, 2015, p. 286) but is also detrimental to the Court’s understanding of the conflict. As was seen in the Nuremberg Tribunals, many Jewish victims felt that the prejudice against their identity had been erased in preference of interpreting the Holocaust as ‘yet another manifestation of the atrocities performed by the Germans in the countries they occupied’ (Yablonka, 2012, p. 303).
One of the reasons for the Court’s detached attitude in regards to victims and their families is its idea that they would complicate the judicial process as they do not fit neatly into legalistic language. Instead, their narrative is co-opted and manipulated to suit the Western framework of justice. Thus, they ‘were treated as objects of moral concern, rather than subjects with any rights to present their own interests’ (Moffett, 2015, p. 283). In addition to logistical issues such as language interpretation and physically encouraging a witness to attend the trial at The Hague, there are power imbalances which intentionally attempt to remove the ‘local’ from the Courtroom, which arguably derives directly from the colonial experience. As Doughty argues, ‘Ethnographic work on bilingual courtroom transitional in post-colonial or colonial contexts emphasises power-laden linguistic shifts that occur between ‘local’ language and ‘courtroom’ language, where ‘local’ means both ‘nonlegal’ and ‘nonwestern’’ (Doughty, 2017, p. 245). This sanitised approach favours Western assumptions of what victims want rather than including them within the consultation process. As Rubli has discovered, ‘The lack of context knowledge is mostly substituted with expert knowledge. It is often based on ‘received wisdom’ and assumed causal beliefs about transitional justice or ‘experts’ simply evoke international norms and standards without linking them to the context. Thereby external ‘expert’ knowledge is considered to be superior and trump popular and indigenous conceptions about how to deal with the past’ (Rubli, 2012, p. 11).
Attitudes towards transitional justice and international law – and decisions over who is allowed in the process and to what degree – are directly involved in constructing the political narrative of the community’s future (Tietel, 2002, p. 385). The recurrent exclusion of victims from the future narrative of their own communities’ possible reconciliation highlights the paternalism of this approach. Impartiality, within the ‘uneven moral economy of international justice’ (Doughty, 2017, p. 246), is illusory, as it sets out to silently bias the more powerful approach (i.e. the status quo of international justice – a Western approach) and ignores the structural imbalances which remove victims from their intended procedural role and agency within their own historical and legal narrative (Moffett, 2015, p. 287). Therefore, ‘The legalist lens that transitional justice takes limits the focus to specific sets of actors for specific sets of crimes committed within a rather artificial period of time, and thus determines the categories of when, to whom and for what transitional justice applies’ (Rubli, 2012, p. 10).
Legalism has also encouraged the structural preference of legal binaries: innocent/guilty, victim/perpetrator, bystander/rescuer, etc. With her new studies of the realities on the ground, Lee Ann Fujii has shown that genocidaires should not be painted as wholly evil as this erases the reality of their behaviour. Appreciation of the reality of complex wrong/right-doing during conflict would help to bring the Court’s interpretation of the conflict into better alignment with the actions in the conflict. As Fujii has explored, ‘…even the most active killers – those who clearly fall under the category of “perpetrator” – were capable of acts of rescue when the circumstances allowed them to do so. Acts of rescue, to be sure, did not absolve or make up for their participation in mass murder. Yet, to overlook these acts of rescue would be to overlook the extent and form of rescue activities during … genocide’ (Fujii, 2014, p. 157-158). In this way, the legal binaries of Kohn’s described ‘epochal contest’ allow those in power to choose who it is politically advantageous to demonise through unrealistic assumptions about behaviour in conflicts.
Ignoring the complexities on the ground for the ease of fitting into the ‘one-size-fits-all’ legal framework will do little to aid the additional reconciliation efforts that are performed in addition to judicial routes (Rubli, 2012, p. 11). This bureaucratised method of peacebuilding through justice dehumanises those who are experiencing conflict by using metaphors like picking and choosing peacebuilding ‘tools’ with which to ‘[mix] paint’ (Goetschel and Hagmann, 2009, p. 62). These detached metaphors further patronise the locals’ failure to solve the complexities of the political situation. The political and emotional influence of the trial should not be neglected and more holistic approaches must be employed to better perform justice for victims on the ground – distant from the Court and yet directly influenced by its outcome. Thus, ‘[t]ransitional justice mechanisms have all too often been introduced without regard for the internal dynamics of the society for which they were intended, and thus are “abstract from lived realities”’ (Rubli, 2012, p. 11).
The Mbeki Report and the power of self-determination
The Mbeki Report (also known as the African Union High-Level Panel on Darfur or AUPD) was the result of the Peace and Security Council’s (PSC) decision to confront ‘issues of accountability and [combat] impunity…and reconciliation and healing…’ whilst simultaneously requesting a deferral from the UNSC (Mbeki, 2009, p. 205). Some have argued that the report was supposed to replace the need for the ICC’s intervention but this section will argue that the report clearly seeks justice and accountability from those guilty of crimes in Darfur; it simply requests that it be an African process so as to be part of a cathartic process of healing for Sudan.
As an influential politician, Thabo Mbeki’s comments have had a wide reach within the AU and those interested in the geopolitical shift towards ‘African Solutions for African problems’. The (physical) fight for self-determination in post-colonial years has been seen as an encouraged method of rebuilding oneself following the oppressive psychological damage of colonial rule (Fanon, 1963, p. 94). As such, the battle continues for autonomy within the humanitarian sphere: the right to protect one’s neighbour. Mbeki writes that he believes ‘it is Africa’s crisis and, as such, Africa has a duty to help the people of Sudan to achieve a lasting solution’ (Mbeki, 2009, p. 206). In this way, the AU is establishing itself as a defender of human rights, determined not only to investigate the truth of the crimes committed, but also to ensure that those believed guilty will face a courtroom. As an ‘idiom in most African cultures [states,] you do not fold your hands and just look on when your neighbour’s house is on fire’ (Kiokio, 2003, p. 820). Mbeki’s report reads as a manifesto for the AU’s increased role in global governance, recognising the need for support from the international community whilst establishing itself as a respected party with a significant stake in the case. Therefore, understanding that ‘the task [of implementing their Recommendations] also requires commitment from, and action by, various actors and entities, especially the Government of Sudan and other Sudanese stakeholders, the neighbours of Sudan and the rest of the international community, including the United Nations’ (Mbeki, 2009, p. 206).
Ignoring the potential for self-determination, or encouraging it only through conditionality, can be damaging to the independent stability of a post-conflict state, which in turn ignites development debates surrounding dependence (Brett, 2016, p. 3). Paradoxically, by removing autonomy from the victims, the West both highlights its fears of a ‘un-modern’ post-conflict state whilst also picturing post-conflict states as political ‘blank slates…[implying] that post-conflict societies represent a social and political vacuum’, fertile for transformation into liberal democracies (Rubli, 2012, p. 16). In reality, the AUPD has stated that this belief, and the paternalistic steps that often follow the assumption of apolitical post-conflict states, is dangerous to the future of an independent Sudan. They argue that, ‘Both the Sudanese actors and players in the international community should understand that what Sudan needs is strong and cohesive leadership collectives which enjoy the necessary confidence of the constituencies they lead, to enable them to ensure that these constituencies participate seriously as agents of change in the process of giving birth to a new Sudan’ (Mbeki, 2009, p. 210).
In line with the principle of complementarity, Sudanese opposition politician Sadiq al-Mahdi has argued that a hybrid court (with both Sudanese and international judges) may provide the best solution for encouraging greater Darfurian consultation, and most importantly, may be the only logistical option that could physically put al-Bashir in the dock (The Economist, 2008).
The Court and its ‘Mission Civilisatrice’
The history of geopolitical movements in the twentieth century have directly influenced how we determine success in justice processes today. Rubli states that ‘The dominant normative lens (to facilitate transitions to democracy) determined which kind of justice measures were considered as appropriate and why certain measures were recognised as the legitimate justice initiatives during a time of political change’ (Rubli, 2012, p. 5). The rhetoric of liberalism and what we determine as a ‘successful’ state is at the core of international justice discourse since the Court’s involvement is part of a larger political endeavour to ‘transition’ a ‘failing’ state into a liberal democracy (Sooka, 2006, p. 313). As Fletcher et al.’s empirical study argues, ‘if states are closer on the continuum of liberal democracies, the necessity for an intervention seems to be less immediate… This raises the question of whether universal principles can be enforced and whether that is even a desired goal’ (Fletcher et al, 2009, p. 217). This is despite the fact that, ‘[marketisation and democratisation are] often more destabilising and may even provoke a return to conflict [when believed to be, in of themselves, sources of peace]’ (Sriram, 2007, p. 579).
In this way, the Western desire for cultural, political and moral supremacy over other states – through the judicial expansion of liberal market ‘human rights’ rhetoric – seeks in reality to limit the autonomy of more fragile states in a paternalistic fashion (Paris, 2002, p. 638). Therefore, in a palliative sense, the West manipulated its ‘White Man’s Burden’ of fighting for universal rights into a method of utilising justice systems to ‘resign’ from the ‘systematic economic abuses and the legacies of inequality and poverty,’ which lie at their door (Rubli, 2012, p. 15).
The roots of many conflicts within ex-colonial countries, including Sudan, are permeated with the injustices experienced due to colonial territorial or economic divisions (Mbeki, 2009, p. 207-208). One could argue that the hypocrisy of these impunities, which remain largely unknown and through which the disastrous consequences of self-interested censorship missions like Operation Legacy (Sato, 2017, p. 5) have been made visible, has contributed to outrage over the lack of non-African prosecution within the ICC (Thakur, 2016, p. 372). Although the ICC has restricted itself to crimes from 2002 onwards, it is not the first criminal justice strategy that has been manipulated by the international community so as to protect Big Interest states and ensure their cooperation with the globalisation vision. The legal strategies constructed by the international community to hide violence in the colonies exemplify the double standards that are implicit in the definitions of what a ‘war crime’ has come to mean in contemporary international criminal justice. It seems that the power of colonial nations, and their authority over the construction of the Geneva Conventions, the UN and global humanitarian norms, has allowed Britain and France to forge the laws of war to their benefit and to the detriment of their combatants. Utilising their position as leaders of the new humanitarian movement of the post-World War II international community, they have been able to manipulate the legal definitions that we still use today. Indeed, by:
[d]escribing the situation with euphemisms like “civil unrest” and “events,” the governments in London and Paris attempted not only to cover up the true nature of the conflicts but also to criminalize their opponents and deny them any legitimation… Because the insurgents lacked the status of combatant, they could not assert a claim to the protection accorded by international humanitarian law. (Klose, 2011)
Violence was a common tool for imperialists in their approach to expansion, oppression and the civilising mission, and they manipulated legal boundaries to ensure their right to use force. During the decolonising period, their definitions were used to carefully curtail details of reprisals to demonise the ‘savage’ indigenous people who were painted as the truly violent ones; mass murder, genocide and eugenics programmes were redefined as benevolent policies of education or policing (Monbiot, 2005). Indeed:
[s]everal passages of the Geneva Convention drafts, such as the prohibition of “collective punishment,” gave the British Colonial Office especially big headaches since this and other prohibited measures were common and efficient instruments used by the colonial governments to squelch unrest. The burning down of entire villages in Malaya and the punitive bombardments in the Protectorate of Aden illustrated, in the eyes of the Colonial Office, the value of collective punishment measures, and the authorities fought resolutely to prevent such effective means from being taken away from the local security forces (Klose, 2011).
Equally, as Mamdani has argued, this moral supremacy of the West’s ‘civilised’ violence versus the ‘immoral’ reprisals of those in more unstable countries speaks volumes towards the political power of legal rhetoric and the implicit biases in the chosen definitions. Only through transparency and increased democratisation of global governance structures can sovereign equality be achieved in a system built to allow international justice to become a tool of manipulation for imperialists to avoid accountability. Additionally, ‘[o]ne should not forget that the ex-colonial powers – especially France – continued to play strong economic and military roles in their former colonies, making the introduction of accountability measures very difficult’ (Arthur, 2009, p. 342). Definitions for international crimes – and the legal parameters protecting Western strategies of war that remain indiscriminate against civilians on the ground – remain the purview of the states who see their use of violence as somehow more necessary and acceptable than that of less powerful states (Anghie, 2006, p. 744). In this way, ‘[t]he point of the distinction is to reserve universal condemnation for only one form of mass violence… but at the same time to treat both counter-insurgency and war between states as normal developments’ (Mamdani, 2010, p. 57).
Contemporarily, these definitions continue to allow the West to avoid accountability for their methods of violence (i.e. drone attacks, counter-insurgency and unauthorised interventions) which are legally determined as normal standards of the use of force in warfare, rather than considering these violent strategies as similar to other war crimes due to their indiscriminate nature (Maurer, 2013). In this context, the ICC’s influence has been to reinforce the definitions which provide immunity to the most historically powerful nations. As Thakur argues, ‘Self-evidently, only non-Western governments can be norm-violators; Western governments—Abu Ghraib, Guantánamo Bay etc. notwithstanding—can only be norm-setters and norm-enforcers’ (Thakur, 2016, p. 372).
These legal frameworks also encourage the international community to view violence in more unstable regions as ‘backwards’ or ‘tribal’, as seen with the Rwandan genocide (Des Forges et al, 1999), versus the ‘modern’ and more technologically advanced weapons of the West which are supposedly seen as more morally robust. In the eyes of the Western powers, ‘[s]uch technological prowess holds the seductive promise of ‘war lite’ and ‘morality lite’ with respect to blood, treasure and conscience’ (Thakur, 2016p. 374). Yet this is a legal and rhetorical difference rather than a material one, and it is a double standard that is attracting the condemnation of many African nations who hope that ‘[soon] the discrepancy between the West’s universalistic rhetoric of principles and particularistic pursuit of interests is going to be increasingly unsustainable’ (Thakur, 2016, p. 371).
When the law is applied selectively, the result is not a rule of law, but a subordination of law to the dictates of power so flagrant that the outcome is more reminiscent of feudal privilege than of a bourgeois rule of law. – (Mamdani, 2010, p. 62)
In conclusion, the bureaucratic and technocratic preferences of the West in their peacebuilding strategies implicitly encourage a top-down and distant approach to justice which is at odds with the requirements of the justice processp. prioritising the victims’ solace (Moffett, 2015p. 281). In this way, the most logistical, diplomatic, and least damaging option would be for the establishment of a hybrid court under the control of the AU. If the ICC continues its stalemate with the pro-sovereigntist contingency of the AU, al-Bashir will never face justice, which is to very few people’s benefit. As Stephen Lamony argues, ‘Omar al-Bashir’s fugitive status is more than just a political or legal issue, it is an affront to all the victims that have suffered, continue to suffer, and will suffer from his brutal reign over Sudan’ (Lamony, 2015). In this way, the AU has not ignored the horrific crimes al-Bashir has been accused of in Darfur but rather has been at the forefront of the crisis despite being ignored by the UNSC. This is not to say the AU has presented the ultimate solution to the Darfurian crisis, but to ignore its involvement and the power it holds over its member states, is to be diplomatically ignorant of the considerable tensions involved when indicting a sitting President. As Mamdani has argued, ‘The decision as to who to target, and who not to, is inevitably a political decision’ (Mamdani, 2010p. 62). This point is especially prudent considering that al-Bashir’s case involves the indictment of a sitting head of state, rather than an already incarcerated leader. Peace is sought by the AU and ‘While the AU has requested that the arrest warrant be suspended, it has not suggested that Bashir not face justice. Indeed, it even debated whether the AU could try him. This is not the sign of an Africa that is turning its back on justice. Rather, it indicates an Africa that is arguing with itself and the international community over how best to proceed (Mills, 2012p. 445).
If the West provided genuine support for ensuring that the ICC enact justice without resistance from African nations, it could compel the UN to bring an end to some of the more glaring double standards that are currently protected by their legal and institutional structures. Currently, the ICC is subject to many of the ideological vulnerabilities and colonial continuities which have filtered down from the colonial history of the UN, therefore causing diplomatic tensions and preventing the effective operations of the Court. More importantly, al-Bashir’s victims are caught in the middle as international law is restricted by differing interpretations. As examined in this article, the colonial selectivity of international law procedures has a long history of protecting powerful nations (Anghie, 2006p. 741), and it is unlikely that the P5 nations will be willing to loosen their grip on these benefits. However, with the current trends in geopolitics indicating that the West is no longer in the honeymoon period of the post-Cold War victory years, it is thought that ‘[a]s relative power shifts away from the West, the ability of the latter to exempt themselves from the reach of global norms will lessen. They will have to accommodate to the new normal either by bringing their conduct within the operation of international normative instruments, or by accepting a softening of the latter’ (Thakur, 2016p. 376).
As this article has explored, there is a political momentum within African nations which is seeking to deconstruct the liberal and neo-colonial biases and structures at the core of the international criminal justice system. As Anghie argues, ‘Rather than adopting the traditional view of sovereignty as an exclusively European product extended into a non-European world that was somehow, naturally, non-sovereign, we might see sovereignty doctrine as consisting in part of mechanisms of exclusion which expel the non-European society from the realm of sovereignty and power’ (Anghie, 2006, 741). It seems that non-Western states will no longer accept the double standards which inherently prejudice their experience with international law and political norms.
The current impasse between the AU and the ICC is not a topic to be wholly demonised by the international community as many of the AU’s criticisms have been verified. In this way, double standards are further protected and P5 members are able to strategically protect or target those which best suit their interests through the power of the UNSC veto. The colonial structures of these procedures are concerningly visible in their influence despite efforts during the decolonisation period to exclude imperial influence. Greater international acknowledgement of the violence and war crimes caused by colonial powers during the decolonising period would also help to balance the scales of global justice, and perhaps open discussions regarding the structural harms of colonialism (Blanton et al, 2001, p. 475). The assumptions at the heart of the ICC, and the transitional justice industry more broadly, encourage paternalistic and neo-colonial policies which directly prevent victims from experiencing justice for their own sake, the transitional justice process only playing a small part of the broader peacebuilding effort. Although it is accepted that the judicial process is intentionally built alongside other reconciliatory approaches, it would be wise for the transitional justice industry to learn from the mistakes of the peacebuilding field in its apolitical-and-yet-political endeavour to spread liberal democracy via ‘impartial’ humanitarian vehicles.
This article has sought to provide an initial study into the diplomatic implications and pervasive legacies of colonialism within the spheres of global justice and governance. Overall, it is clear that the processes of international justice are political, and that the legalistic preference of Western judicial procedures is largely unsuited for the holistic and contextual needs of post-conflict international justice (Rubli, 2012p. 11). In this way, the Court’s bureaucratised approach to the al-Bashir case has only aided its critics in highlighting its liberal and technocratic assumptions when it comes to international criminal justice: victims excluded, peace negotiations stymied, and the AU ignored. In its simplest form: whilst most agree that al-Bashir should face justice for his crimes in Darfur, the crux of the debate centres on what the judicial process should look like. ICC, AU Court, AU-Sudanese hybrid, or even an AU-ICC hybridp. none of these present a universally accepted model. However, as a final recommendation, it could be suggested that a greater investigation into the diplomatic collaboration of the AU-UN’s hybrid peacekeeping mission (UNAMID) may indicate that perhaps an AU-ICC court could be the most logistically and theoretically successful option for al-Bashir’s prosecution.
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