To sever or salvage? Disaggregating the coercive military component of the R2P

By Jamal Nabulsi 

Jamal Nabulsi is a Master of International Relations (Advanced) student at the Australian National University. He is interested primarily in the ethics of war and normative International Relations theory. His Master’s thesis is on the ethical theory around preemptive and preventive wars.

The Responsibility to Protect (R2P) doctrine is not dead, but one of its limbs is gangrenous and in dire need of amputation to save the body from infection. This article will argue that, in light of the 2011 NATO-led intervention in Libya, the coercive military component of R2P must be disaggregated from the body of the doctrine. This will allow for the consensus around R2P to widen, strengthening its normative force, while the debate about coercive military intervention can carry on outside of the R2P framework. This article will outline the R2P doctrine, describe its implementation in Libya and the consequences thereof, explain why proposed solutions fall short, before offering disaggregation as a solution.

The R2P was first articulated in the 2001 Report of the International Commission on Intervention and State Sovereignty (ICISS) as the notion that a state’s sovereignty is contingent upon its fulfilment of its responsibility to protect its population from avoidable catastrophes, and that when a state fails to fulfil this responsibility (either through inability or unwillingness), the responsibility falls on the international community (ICISS, 2001, viii). The R2P was further clarified in the 2005 United Nations (UN) World Summit Outcome document, as well as being unanimously adopted by the UN Member States (United Nations, 2005, p.30). The 2009 Report of the UN Secretary-General on implementing R2P outlined a three-pillar strategy for implementation. Pillar one is the responsibility of states to protect their populations from the atrocities of ethnic cleansing, genocide, war crimes and crimes against humanity. Pillar two is the international community’s commitment to assist states in protecting their populations from such atrocities. Pillar three is the UN Member States’ responsibility ‘to respond collectively in a timely and decisive manner when a state is manifestly failing to provide such protection’ (United Nations, 2009, p.9). This includes non-violent measures under Chapter VI of the UN Charter, collaboration with regional organisations under Chapter VIII and/or coercive military intervention under Chapter VII (United Nations, 2009, pp.8-9). 

The 2011 NATO-led intervention in Libya was a watershed moment for the R2P doctrine (Evans, 2013). It was the first time that coercive military intervention under Chapter VII was authorised by the UN Security Council against the express will of the state in question with the stated intention of protecting a population from falling victim to mass atrocities. This authorisation was granted in the context of the ‘Arab Spring’—a wave of popular, anti-authoritarian, pro-democracy demonstrations that swept the Middle East and North Africa from the end of 2010. In contrast to the relatively peaceful transitions of power that occurred in Egypt and Tunisia, the protests in Libya quickly turned violent (Glanville, 2013).

Muammar al-Qaddafi, then leader of Libya, promised to ‘show no mercy’ in crushing the ‘cockroaches’ protesting his rule (as quoted in Glanville, 2013, p.333). Such dehumanising language, echoing that used by genocidaires prior to the Rwandan genocide, was a key factor in spurring the Security Council into action (Hehir, 2013, p.138). Another key factor was the condemnation of the Qaddafi regime’s human rights violations by relevant regional organisations (African Union, 2011), and subsequent calls by some of them to establish a no-fly zone in Libya (Council of the League of Arab States, 2011; Glanville, 2013, p.334).

On February 26, 2011, the UN Security Council unanimously adopted Resolution 1970, which condemned the Qaddafi regime’s violence against civilians (invoking Libya’s responsibility to protect its citizens) and imposed an arms embargo on Libya, among other measures (United Nations Security Council, 2011a). Subsequently, on March 17, 2011, the Security Council adopted Resolution 1973 which, most notably, implicitly authorised coercive military intervention in Libya through the enforcement of a no-fly zone, aimed at preventing the Qaddafi regime’s air force from attacking Libyan civilians (United Nations Security Council, 2011b). This resolution was passed by a 10-0 vote, with China, Russia, Brazil, Germany and India abstaining (Silander, 2013, p.269). The reservations expressed by these countries were in relation to the dubious effectiveness of coercive intervention and the lack of specificity regarding the exact form that the military action would take (Odeyemi, 2016, pp.11-12).

Upon NATO’s implementation of Resolution 1973, these concerns were borne out with disastrous consequences for the Libyan people. Rather than focussing strictly on protecting the population, the NATO mandate quickly evolved to include overthrowing the Qaddafi regime (Bachman, 2015, p.56). This was justified on the grounds of its necessity for protecting Libyans in the long-run, however, Kuperman (2013) convincingly argues that regime change was sought as an end in itself, not as a means to the end of protecting the population. NATO forces engaged in actions that were inconsistent with protecting the population but that sought regime change, such as attacking Qaddafi regime forces that were in retreat and failing to pursue offered ceasefires (Kuperman, 2013, pp.113-115).

NATO airstrikes in Libya were markedly discriminatory, with independent estimates of civilian casualties ranging from 55 (Amnesty International, 2012) to 72 (Human Rights Watch, 2012), resulting from 9,700 strike sorties. However, NATO support for Libyan rebel groups facilitated the incidence of countless war crimes and crimes against humanity. During the conflict, for instance, it has been reported that the NATO-backed rebels were committing similar human rights violations to those perpetrated by the Qaddafi regime (Bachman, 2015, pp.61-62).

But the most egregious crimes by the rebels have been committed since NATO evacuated, all but shirking their responsibility to properly see through the transition to democratic government and to help in rebuilding Libya. These crimes include the racially-targeted expulsion of Tawergha’s 30,000 inhabitants (Human Rights Watch, 2011a), the summary execution of Qaddafi and widespread reprisal killings and torture (Human Rights Watch, 2011b). The first elected Libyan Prime Minister lasted one month, before being removed with a vote of no confidence (Bachman, 2015, pp.63-64). Today, Libya remains deeply divided as competing militia groups continue to fight for control over the country amidst widespread lawlessness and economic collapse (Amnesty International, 2017, p.233). The ongoing human suffering that this situation entails is incalculable. 

Would Libya have been better off without a NATO-led intervention? According to Kuperman’s (2013, p.123) plausible counterfactual, the NATO-led intervention magnified the death toll by seven to ten times. Regardless of the accuracy of this estimate, the NATO-led intervention evidently led to untold human suffering, and its ramifications continue to endanger the lives of countless Libyans. 

The disastrous outcome of the NATO-led military intervention in Libya has inflamed the controversy around the coercive use of military force to achieve the humanitarian goals of R2P. This has, in turn, damaged the international support for the R2P doctrine as a whole. The Libyan intervention drew sharp criticism from the BRICS states—Brazil, Russia, India, China and South Africa—among others. Their foremost concerns were that NATO grossly overstepped its mandate (outlined in Resolution 1973) by pursuing regime change, that disproportionate force was used, that opportunities for political dialogue and peaceful settlement were ignored, and that the arms embargo was breached by supplying weapons to the rebels (Bellamy, 2015, p.179). This controversy around the coercive military aspects of R2P’s third pillar has meant that the consensus around the doctrine as a whole has frayed. This is evident most clearly in the rhetoric used by Russia to reject authorising intervention in Syria (regardless of Russian intentions behind this rhetoric) (Gifkins, 2012). 

The positions of the BRICS countries become increasingly important as the global balance of power continues to shift in their favour (Morris, 2013, p.1280). In response to the perceived excesses of the NATO-led intervention in Libya, and the damage that this did to the credibility of the R2P doctrine, Brazil have proposed the concept of ‘responsibility while protecting’ (RWP). While endorsing the basic principles of R2P, RWP calls for establishing a set of guidelines for implementing R2P. These include the strict chronological sequencing of the three pillars, limiting the resort to force and holding intervening states to account for breaching the guidelines (Kenkel, 2016).

With similar intentions and content, China proposed the concept of ‘responsible protection’ (RP). RP requires that the goals of intervention are outlined more clearly, the means of protection are limited, the intervenors are responsible for post-intervention rebuilding, and mechanisms of supervision are put in place to hold intervenors accountable for any breaches of their defined mandate, among other measures (Zongze, 2012). Both RP and RWP were thus, at least ostensibly, attempts to bridge the widening gap between R2P supporters and sceptics.

Although RWP and RP are well-thought-out attempts to address the serious concerns with R2P that arose in the wake of the Libyan intervention, they have ultimately failed to make a significant impact on the doctrine (Bachman, 2015, p.64). If a set of rules governing an R2P intervention, like those presented in RWP and RP, could be strictly enforced by an international authority, perhaps they would sufficiently alleviate the ailments of R2P. However, in the current international system, where no such authority exists and national interest-driven ulterior motives for intervention are inevitably present, RWP and RP are insufficient and have failed to gain traction among Western powers. 

The presence of such ulterior motives makes R2P interventions prone to expanding their objectives, even if this works against the supposedly primary objective of protecting populations (Kuperman, 2013, p.135). Evidence of national interest-driven ulterior motives being a necessary condition for R2P intervention can be seen in the inconsistency with which R2P has been applied. For instance, it is suggested that the US interest in Libya’s rich natural resources and geostrategic importance were decisive factors in choosing to intervene there (Hehir, 2013, p.156). On the other hand, US interests in its regional alliances have led to an almost diametrically opposite response to the similar situation in Bahrain, where pro-democracy protestors have been brutally tortured and killed (Graubart, 2015, p.214). This is not to claim that humanitarian concerns are not considered whatsoever, but that they are overridden by national interest. These ulterior motives not only negatively impact the effectiveness of interventions to protect populations, but also have negative reputational costs for the R2P doctrine, as evidenced by the current aversion of BRICS and other states to the doctrine (Paris, 2014). This aversion is primarily due to their concerns with the coercive military aspects of pillar three, despite their fundamental agreement with the underlying principles of R2P (Stuenkel, 2014). 

The problem of ulterior motives has led Graubart (2015) to advocate for eliminating the coercive military component of R2P entirely. He argues that normatively legitimating military intervention to protect populations is effectively establishing a new category for resorting to force. This new category is ripe for manipulation and its net impact in being implemented will only be more national interest-driven interventions that will ultimately cause more suffering than they will prevent (Graubart, 2015, pp.210-217).

A strong argument against the case for eliminating the coercive military component is that such interventions are going to happen either way, so it is better that we have a set of norms governing these interventions, rather than allow them to be driven entirely by national interest. It is argued, for instance, that the ‘pragmatic appeal of R2P is that rather than be paralysed by geopolitical hierarchies, it carves out a category of mixed-motive, status quo friendly interventions that nevertheless save lives’ (Graubart, 2015, p.204). In response, it is argued that military interventions are inevitably going to be driven by motives of national interest, but R2P increases the prevalence of these interventions by providing a humanitarian cover for these motives, thus reducing the normative hurdles in front of intervening militarily (Graubart, 2015, p.217).

This fiery debate around coercive military intervention, which was stoked by the Libyan intervention, will continue to rage on. But rather than eliminating the coercive military component of R2P completely, the lesson that should be drawn from the Libyan case is that the coercive military component should be disaggregated from the rest of the R2P doctrine. This will allow for the military intervention debate to continue outside of the framework of R2P, while allowing the consensus around R2P to strengthen significantly, ultimately leading to increased protection of populations in the future. 

There is seemingly a trade-off between R2P’s ability to not allow states to act indifferently in the face of looming mass atrocities and its not providing states with an excuse to engage in national interest-driven interventions under the guise of humanitarianism. Removing the coercive military component from R2P softens this trade-off. It prevents R2P from being used as an excuse for military interventions driven primarily by national interest. However, without its coercive military component, R2P can still encourage the international community to act in the face of mass atrocities. For instance, Gallagher (2015, pp.1268-1271) highlights the utility of international assistance under pillar two for addressing threats posed by non-state armed groups. 

Coercive military intervention is by far the most contentious part of the R2P doctrine as it is invariably where states’ interests are the most at stake. The use of force ‘will always be politics all the way down’ (Morris, 2013, p.1282). Removing the coercive military component will purge R2P of the most corrosive national interest-driven motives. This will allow the protection of populations to remain the primary objective of R2P implementations. 

Moreover, this will strengthen the consensus around the R2P doctrine. There is widespread agreement on the basic principles of R2P (Morris, 2013, p.1283), even among the BRICS and other sceptical countries (Odeyemi, 2016, p.14). States will no longer fear that the ‘soft’ pillar three actions (such as sanctions) will constitute the thin end of the pillar three wedge, which will be used to open the door for military intervention; a fear that Russia and China have expressed in justifying their vetos on Security Council Resolutions regarding Syria (Morris, 2013, p.1276; 2016, p.206). So, removing its coercive military component will allow for an expanded consensus to build around R2P, solidifying it as an international norm, increasing its breadth of cascade and depth of internalisation among states. This will ultimately lead to more consistent application of R2P and therefore more widespread and systematic protection of populations globally. 

The huge hit that R2P’s credibility took in the wake of the Libyan intervention will be deflected, allowing the doctrine to protect populations from mass atrocities into the future. It will do so by focussing on solidifying the norms around sovereign responsibilities under pillar one, providing support to states to prevent mass atrocities under pillar two, and using nonviolent means to convince states to uphold their responsibilities under pillar three. It is acknowledged that some situations, such as the 1994 Rwandan genocide, do require coercive military intervention to stop mass atrocities from occurring. Therefore, the debate around military intervention should continue outside of the R2P framework, and R2P might still be able to trigger the doctrine that will potentially come out of this debate. The content of this debate is outside the scope of this article, but Ramesh Thakur (2013, p.63) suggests that, since interventions are likely to occur in developing countries, this debate should initially take place between the governments and civil societies of developing countries, and then between developing and developed countries.

Disaggregating the military intervention component of R2P is not a panacea and is likely to be met with significant opposition. Firstly, it does not address any of the concerns about decisions to intervene militarily. However, it does prevent these concerns from impacting the R2P doctrine as a whole, thereby saving the body of the doctrine from normative contamination (Morris, 2013, p.1283).

One counterargument to this disaggregation proposal is that R2P is built on three mutually-reinforcing pillars of equal length (Welsh, 2016, p.5) and that this disaggregation would essentially be to saw off half of pillar three, causing the entire R2P edifice to collapse. R2P was born out of the urge to prevent mass atrocities such as those that occurred in Rwanda and Kosovo, atrocities that would have required military intervention to prevent. So, to remove the military intervention component would be to rob the doctrine of its core content and render it ineffectual in addressing the problems that it was designed to prevent. However, ‘the true essence of R2P is the understanding that sovereignty denotes responsibility rather than license’ (Morris, 2013, p.1283). R2P’s real power is in its normative force to encourage states and the wider international community to ensure that this responsibility is fulfilled (Morris, 2013, p.1283). Moreover, the debate around military intervention would not be jettisoned entirely, just removed from the R2P framework. The (perhaps once reasonable) desire to maintain the conceptual holism of R2P has become a demand for unattainable perfection (Morris, 2013, p.1280). 

Another counterargument is that this proposal would simply be rejected, especially by Western powers. However, there is reason to believe that disaggregating coercive military intervention from R2P would gain wide support in the UN General Assembly (Graubart, 2015, p.218). If this support was not forthcoming, a potential weaker solution could be to remove coercive military intervention from pillar three and make this the fourth pillar of R2P. This may go some way in addressing the problems with R2P that were highlighted by the case of Libya. However, considerations around the conceptual implications of this solution are outside the scope of this article. 

In light of the disastrous humanitarian situation that has resulted from the military intervention in Libya and NATO’s perceived abuse of its mandate, the future of the R2P doctrine is in question. The key lesson that should be drawn from the Libyan case is that the coercive military component must be disaggregated from R2P. The controversial debate around military intervention will rage on, but this solution will salvage the R2P doctrine, strengthening its normative force and, ultimately, allowing for more people to be protected from mass atrocities in the future. 

Bibliography

African Union. 2011. Communique of the 261st Meeting of the Peace and Security Council, PSC/PR/COMM(CCXLI).

Amnesty International. 2012. Libya: The forgotten victims of NATO strikes. [Accessed 12 May 2017]. Available from: https://www.amnesty.org/en/documents/MDE19/003/2012/en/

Amnesty International. 2017. Report 2016/2017: The State of the World’s Human Rights. London: Amnesty International.

Bachman, J. 2015. R2P’s ‘Ulterior Motive Exemption’ and the Failure to Protect in Libya. Politics and Governance.3(4), pp.56-67. 

Bellamy, A. 2015. The Responsibility to Protect Turns Ten. Ethics and International Affairs. 29(2), pp.161-185.

Council of the League of Arab States. 2011. The Implications of the Current Events in Libya and the Arab Position, Resolution number 7360.

Evans, G. 2013. ‘R2P down but not out after Libya and Syria’. Open Global Rights. [Accessed 16 March 2018]. Available from: https://www.openglobalrights.org/r2p-down-but-not-out-after-libya-and-syria/.

Gallagher, A. 2015. ‘The promise of pillar II: analysing international assistance under the Responsibility to Protect’. International Affairs. 91(6), pp.1259-1275.

Gifkins, J. 2012. ‘The UN Security Council Divided: Syria in Crisis’. Global Responsibility to Protect4(3), pp.377-393.

Glanville, L. 2013. ‘Intervention in Libya: From Sovereign Consent to Regional Consent’. International Studies Perspectives. 14(3), pp.325-342. 

Graubert, J. 2015. ‘War is Not the Answer: The Responsibility to Protect and Military Intervention’. In: Thakur, R. and Maley, W. ed. Theorizing the Responsibility to Protect. Cambridge: Cambridge University Press

Hehir, A. 2013. ‘The Permanence of Inconsistency: Libya, the Security Council, and the Responsibility to Protect’. International Security. 38(1), pp.137-159.

Human Rights Watch. 2011a. Libya: Militias terrorizing residents of “loyalist” town. [Accessed 12 May 2017]. Available from: https://www.hrw.org/news/2011/10/30/libya-militias-terrorizing-residents-loyalist-town.

Human Rights Watch. 2011b. Libya: Apparent execution of 53 Gaddafi supporters. [Accessed 12 May 2017]. Available from: https://www.hrw.org/news/2011/10/24/libya-apparent-execution-53-gaddafi-supporters.

Human Rights Watch. 2012. Unacknowledged deaths: Civilian casualties in NATO’s air campaign in Libya. [Accessed 12 May 2017]. Available from: https://www.hrw.org/report/2012/05/13/unacknowledged-deaths/civilian-casualties-natos-air-campaign-libya

ICISS. 2001. The Responsibility to Protect: The Report of the International Commission on Intervention and State Sovereignty. Ottawa: International Development Research Centre. 

Kenkel, K. M. 2016. ‘Brazil and the ‘Responsibility While Protecting’ Initiative’. Sustainable Security. [Accessed 13 May 2017]. Available from: https://sustainablesecurity.org/2016/06/09/brazil-and-the-responsibility-while-protecting-initiative/

Kuperman, A. 2013. ‘A Model Humanitarian Intervention?: Reassessing NATO’s Libya Campaign’. International Security. 38(1), pp.105-136.

Morris, J. 2013. ‘Libya and Syria: R2P and the spectre of the swinging pendulum’. International Affairs. 89(5), pp.1265-1283.

Morris, J. 2016. ‘The Responsibility to Protect and the use of force: Remaking the Procrustean bed?’, Cooperation and Conflict. 51(2), pp.200-215.

Odeyemi, C. 2016. ‘R2P intervention, BRICS countries, and the no-fly zone measure in Libya’’. Cogent Social Sciences. 2(1), pp.1-16. 

Paris, R. 2014. ‘The ‘responsibility to protect’ and the structural problems of preventive humanitarian intervention’. International Peacekeeping. 21(5), pp.569-603. 

Silander, D. 2013. ‘R2P—Principle and Practice? The UNSC on Libya’. Journal of Applied Security Research. 8(2), pp.262-284. 

Stuenkel, O. 2014. ‘The BRICS and the Future of R2P: Was Syria or Libya the exception?’. Global Responsibility to Protect6(1), pp.3-28.

Thakur, R. 2013. ‘R2P after Libya and Syria: Engaging Emerging Powers’. The Washington Quarterly. 36(2), pp.61-76. 

United Nations Security Council. 2011a. Security Council resolution 1970 on establishment of a Security Council Committee to monitor implementation of the arms embargo against the Libyan Arab Jamahiriya, S/RES/1970.

United Nations Security Council. 2011b. Security Council resolution 1973 on the situation in the Libyan Arab Jamahiriya, S/RES/1973.

United Nations. 2005. United Nations World Summit Outcome Document, A/60/1. 

United Nations. 2009. Implementing the Responsibility to Protect: Report of the Secretary-General, A/63/677.

Welsh, J. 2016. The Responsibility to Protect at Ten: Glass Half Empty or Half Full? The International Spectator.51(2), pp.1-8. 

Zongze, R. 2012. ‘Responsible Protection: Building a Safer World’. China Institute of International Studies. [Accessed 13 May 2017]. Available from: http://www.ciis.org.cn/english/2012-06/15/content_5090912.htm.

India’s stand on the Responsibility to Protect: The UN Security Council and the Libya crisis

By Heena Makhija 

Heena Makhija is a student at Centre for International Politics, Organizations and Disarmament at Jawaharlal Nehru University in Delhi, undertaking an MPhil in International Organizations.

Jawaharlal Nehru’s idealism and commitment to the maintenance of international peace and security has remarkably influenced India’s response towards international conflicts. In the Security Council, in its capacity as a non-permanent member, India has been a supporter of peaceful and responsible policy decisions for conflict resolution. In the past few decades, international intervention in conflict zones for the protection of civilians from war crimes on account of the failure of domestic state machinery has been a matter of debate in mainstream academia. Though India has been one of the largest contributors to the UN Peacekeeping Missions, its approach to the idea of ‘Responsibility to Protect’ has been cautious.

This paper seeks to analyse India’s approach to the principle of ‘Responsibility to Protect’, especially with regard to where it stands in the UN Security Council discussions. The first section traces India’s evolving stance on the principle of ‘Responsibility to Protect’. The second section analyses India’s stance on the use of R2P in Libya and its reasons for abstaining in the UN Security Council voting on the issue of intervention. The third section seeks to evaluate India’s response and strategy after the military intervention in Libya. The concluding section attempts to bring out the lessons India drew from the Libyan experience and its influence on India’s present-day approach to R2P.

Humanitarian intervention, R2P and India 

Though the idea of humanitarian intervention in conflict zones has existed for decades, its conceptualization under the aegis of ‘Responsibility to Protect’ is fairly new. India, given its experience with colonialism, inherited a divided, exploited and dependent society that was vulnerable to internal dissension and external interference (Ayoob, 2004, p. 99). Therefore, India accorded utmost priority to the principles of democracy and sovereignty whilst dealing with international actors. India’s apprehensions were triggered immediately after independence, as when it referred the issue of Jammu and Kashmir to the UN Security Council, instead of a fruitful resolution, Cold War politics shadowed the UN leading to a deadlock. In the light of the Kashmir issue, Indian leadership began to resist approaching multilateral institutions to intervene in conflict areas fearing a threat to its state sovereignty (Ganguly, 2016, p. 363). India’s response to the concept of international intervention in states’ affairs has been fluctuating over the years. In the 1960s, while India was quick to defend its intervention in Goa to drive out the Portuguese by force, on the other hand, it was highly critical of the Anglo-French intervention in Egypt over the issue of the Suez Canal. At the United Nations, India actively caucused with Asian and African nations for supporting the resolution demanding compliance with the UN resolutions and a ceasefire (Nayudu, 2016). Following an idealist and moral approach, while India continued to criticize the Western bloc at international forums for its interventionist policies, India itself came under fire for its semi-interventionist conduct in its immediate neighbourhood. When the domestic turmoil in East Pakistan led to a huge influx of refugees, India argued that Pakistan’s internal conflict had become a grave concern for India’s security (Bass, 2015, p. 232). Indira Gandhi decided to intervene militarily in view of the failure of diplomatic efforts and Bangladesh emerged as an independent nation in 1971. India justified its interventionist role on the grounds of self-defence as Pakistan had initiated the war (Ganguly, 2016, p. 364). India’s armed involvement in East Pakistan in 1971 is viewed as one of the world’s foremost successful attempts at humanitarian intervention against genocide (Mehta, 2011, p. 100). Side-lining its ethical commitment to state sovereignty, India also briefly intervened in Sri Lanka’s civil war between the armed forces and the Liberation Tigers of Tamil Eelam (LTTE) in 1987. Thus, despite its strong commitment to the principle of upholding state sovereignty, India’s stand was based on its own national interest and on the merit of each case. 

However, in the 1990s, several incidents of mass atrocities on civilian populations emerged. As evidence of heinous crimes against unarmed populations started surfacing in the international arena, demands for humanitarian intervention increased. No principled approach or international law existed for handling cases such as Somalia, Rwanda, and Kosovo. Disagreements emerged on whether the international community exercised a right to intervene. If yes, then how should it be carried out and under whose authority? (Evans & Sahnoun, 2002). The ‘Responsibility to Protect’, or the R2P norm, emerged from the International Commission on Intervention and State Sovereignty (ICISS) report in 2001 and was codified in the World Summit Outcome document in 2005 (Bloomfield, 2015). The UN Secretary General’s 2009 Report ‘Implementing the Responsibility to Protect’ placed the three pillars of the R2P principle in the public discourse. Pillar One focused on the protection responsibilities of the state, Pillar Two dealt with international assistance and capacity-building, and Pillar Three enshrined timely and decisive response from the international community (Assembly, 2009). However, international intervention in domestic conflicts for the protection of civilians from genocide, war crimes, and ethnic conflict has been under normative criticism and contestation since its very inception (Mahdavi, 2015, pp. 8-9). 

India approached the principle of R2P with suspicion and caution. Given the international climate that favoured a decisive policy to curtail domestic atrocities, India did not resist the first two pillars of R2P as they were in coherence with India’s foreign policy. India favoured a ‘soft’ approach where policy-makers supported measures such as diplomatic missions and unarmed ceasefire monitoring missions (Bloomfield, 2015, p. 31). However, India rendered strong opposition to the third pillar of R2P, describing it as an unnecessary interference in domestic concerns of a state and a tool of powerful nations to topple over existing regimes and threaten the state sovereignty. Nirupam Sen, Permanent Representative of India to the United Nations until 2009, openly voiced his criticism of the R2P principle in UN meetings and portrayed it as military humanism and re-emergence of humanitarian intervention in a new facet (Teitt, 2012, p. 200).

India’s approach as a UN Security Council non-permanent member and the Libya crisis 

In 2009, Hardeep Singh Puri, the new Permanent Representative of India to the United Nations, took charge and continued to adopt a pragmatic approach to R2P. However, maintaining its firm stand on treating intervention as the last resort, India did accept the peacekeeping principle of PoC (Protection of Civilians) while stressing its preference for Pillar One and Pillar Two of R2P (Bloomfield, 2015, pp. 33-34). India was running for non-permanent membership of the UN Security Council in the forthcoming year, thus flexibility and a pragmatic stance was in coherence with its aspirations. India was selected as a non-permanent member of the Security Council in 2010 with a record result of 187 affirmatives out of 191 votes (Krause, 2016, pp. 24-25).  India entered the Security Council in 2011 as a non-permanent member after a gap of 18 years. Undoubtedly, India wanted to prove itself to be a worthy contender for a permanent seat at the horseshoe table. Adding ‘value’ to the proceedings by acting as an objective bridge between member states and active participation was a necessary medium to strengthen its claim (Mishra and Kumar, 2013). 

At the beginning of 2011, the escalating crisis in Libya was one of the crucial challenges encountered by the Security Council. Rebellion groups under the umbrella of ‘Arab Spring’ that had engulfed the Middle East revolted against Muammar Gaddafi, leading to a civil war in the country (Shrivastav, 2011, p. 3) The matter was brought to UN Security Council’s attention by a faction of revolting Libyan officials as reports of gross violations of human rights and a crackdown on civilians began surfacing. Gaddafi already had a turbulent history as sanctions were imposed over his role in the 1988 terrorist attack on the Pan American Flight 103 (Puri, 2016, pp. 59-60). The public opinion was full of rage and contempt for the Libyan leader and there was ample evidence that mass atrocities were being inflicted on the civilians by the state. 

Resolution 1970 was passed by the UN Security Council on 26th February 2011 after a marathon 12-hour session (Puri, 2016, p. 69). The resolution called for an end to violence in Libya with immediate effect, an arms embargo, and referred the conflict to the International Criminal Court (ICC). India, along with China, Brazil, and South Africa had their reservations about the ICC referral and favoured a calibrated approach of first threatening with a referral in a future date (Puri, 2016, p. 71). Despite the initial reservations, India went ahead and voted in favour of resolution 1970. India’s affirmative stand can be attributed to two major reasons. First, India was at the table after a long hiatus and abstaining or voting negatively on an issue of heinous crimes against civilians while international community including African and Non-Aligned Movement nations favoured strict action, it would have served as a setback for India’s aspirations. Secondly, closer ties with the United States might have had a role to play in shaping India’s decision (Ganguly, 2016).  

In March 2011, the UN Under-Secretary-General stated that the Gaddafi Regime was using heavy artillery and air and naval assets against civilians and rebels (Puri, 2016, p. 81). This marked the onset of an official intervention in Libya through Resolution 1973 and the US encouraged promulgating Chapter VII of the UN charter for authorizing the use of force. Resolution 1973 was adopted by the Security Council on 17th March 2011, with 5 members – Brazil, Russia, China, India, and Germany – abstaining (Puri, 2016, p. 90). Resolution 1973 was one of the most debated and controversial decisions in the history of R2P (Bellamy, 2011). India, though voted in favour of Resolution 1970, abstained from voting on Resolution 1973. In order to understand the reasons behind India abstention, it is necessary to understand the contents of Resolution 1973. As stated in the official press release of the UN Security Council (2011),

Demanding an immediate ceasefire in Libya, including an end to the current attacks against civilians, which it said might constitute “crimes against humanity”, the Security Council this evening imposed a ban on all flights in the country’s airspace — a no-fly zone — and tightened sanctions on the Gaddafi regime and its supporters. Adopting resolution 1973 (2011) by a vote of 10 in favour to none against, with 5 abstentions (Brazil, China, Germany, India, Russian Federation), the Council authorized Member States, acting nationally or through regional organizations or arrangements, to take all necessary measures to protect civilians under threat of attack in the country, including Benghazi, while excluding a foreign occupation force of any form on any part of Libyan territory — requesting them to immediately inform the Secretary-General of such measures.

As Indian representative Hardeep Singh Puri pointed out, India was highly skeptical of the ground realities in Libya and in absence of official clarification it did not want to take any decision in haste. Moreover, the mandate of the UN and ceasefire procedures to be implemented were vague and threatened the sovereignty of Libyans. India was also deeply concerned about the safety of its nationals in Libya, as only a third of them had been evacuated (Puri, 2016, p. 85). Internationally, India did not want to support a resolution that might lead to a regime change and escalate the crisis in absence of any certainty on how a military intervention would shape. Domestic concerns also played a pivotal role in shaping India’s stand. Supporting a precedent that validates intervention might have backfired given the conflicts and secessionist tendencies within India. Also, aiding the Western democracies to intervene in a Muslim state carried a threat of backlash from the Muslim population within India (Ganguly, 2016). Since there was no clarity about the end goals of this operation, it would have been difficult for the Indian government to justify its support for this resolution to its coalition partners and domestic constituencies (Shrivastav, 2011). 

Despite numerous justifications for abstaining on Resolution 1973, some critics consider it to be a lost opportunity where India could have supported the Western powers and substantiated its claim of being a compelling democratic rising power in the international fora (Ganguly, 2016, p. 369). India is also criticized for ‘inaction’ and its unwillingness to take strong decisions and act as a responsible power (Pillai, 2012). However, the critics must take into consideration that not following the West on a resolution that was against India’s ethical foreign policy approach as well as its national interest, India exercised its autonomy in foreign affairs. Moreover, India did vote in favour of Resolution 1970, thus its commitment to the protection of civilians in Libya cannot be questioned (Shrivastav, 2011). Though India had serious concerns about the procedures to be adopted under Resolution 1973, it still abstained from voting rather than putting in a negative vote, thus paving the way for the passing of resolution without acting as a hindrance. A liberal approach of supporting democracy and protection of human rights guided India’s policy as India’s abstention achieved a middle ground – it did not degrade its relations with the West or the Arab world (Bloomfield, 2015, p. 41).

India’s response post-Libya intervention

As soon as Resolution 1973 passed, NATO warplanes surrounded Libyan airspace dropping their lethal arsenal. Indiscriminate bombing and full-scale military intervention made it very clear to the international community that the resolution aimed at regime change rather than putting an end to the cycle of violence.  Resolution 1973 had five major goals – a ceasefire with the mediation of the African Union, use of all necessary means to protect civilians, a no-fly zone, an arms embargo, and targeted sanctions. Notably, with the passing of the resolution, members of NATO side-lined the African Union and the sole focus was on the use of all necessary means by bombing Libya (Puri, 2016, p. 92). Within a month, it became clear to the Indian policymakers that NATO was pursuing a regime change in Libya (Puri, 2016, p. 103).

India was highly critical of the way the operation was unfolding in Libya. In the subsequent Security Council meetings, Indian UN Representative Hardeep Singh Puri was actively denouncing the manner in which Resolution 1973 was being implemented. In a sharp exchange of words in April 2011, he pointed to the Council that the reports showcased arming of the rebel groups by the NATO forces. It was also increasingly clear that the goal of regime change was getting the better of all objectives, but that was neither mentioned per se in Resolution 1973 nor was it approved by the Security Council (Puri, 2016, p. 102). He concluded that Libya gave a bad name and raised serious questions about the credibility of the principle of R2P. Violation of human rights did not appear to be the reason for intervention in the state affairs, rather deeper strategic issues such as oil fields and incompatible leadership emerged as motivating factors for the operation (Khandekar, 2015, p. 121). NATO’s military action in Libya followed the official passage of Resolution 1973, setting a dangerous example on how the official channels were used to authorize an operation that did not end the violence or civil strife in Libya rather it sowed seeds for a turbulent future in the region.

As the Libyan crisis broke out, though India was voicing its opposition, it came under scrutiny within India from media, public, and the opposition who actively analysed India’s stand on the matter. Indian media was quick to point out the direct impact of Libyan crisis on the oil prices and the plight of Indians who were still stranded in the war-torn country (Bloomfield, 2015, p. 9). Policymakers extensively questioned India’s abstention on the resolution. Left-oriented parties with their anti-Western rhetoric saw India’s inability to vote against the resolution as its failure to give structure to its anti-imperial foreign policy ideals (Chishti, 2011). On the other hand, realists pointed out that India might not be willing to intervene directly in the internal affairs of states but its support for the resolution that might stabilize the region would have served its long-term interests in international forums (Rajamohan, 2011). 

It was evidently clear for India that the UN Security Council resolution 1973 was not implemented and formulated in a way that was in sync with the noble cause of R2P. As a policy approach, the Libyan experience brought back India’s serious concerns with Pillar Three of R2P. India did try to mould its position by voting in favour of Resolution 1970, but the aftermath of NATO’s intervention in Libya made India reiterate its initial hostility towards Pillar Three. India’s long-standing scepticism about the Western powers and the limited ability of a military intervention to solve humanitarian crisis were validated by the Libyan experience (Krause, 2016). 

India and the future of R2P

Resolution 1973 advanced the debate on the principle and implementation of R2P. In hindsight, it is possible that the Security Council might not have authorized the resolution had it known that it would be used in a selective manner for military action in Libya (Puri, 2016, p. 103). India’s fears were proven right with the breakdown of the Libyan state after the intervention. During its two-year stint as the non-permanent member of the Security Council, India maintained a calculated and pragmatic approach towards intra-state conflicts. With respect to R2P, India’s lessons learned from Libya’s experience were clearly visible in its approach to the crisis in Syria. It was very evident that critics of the resolution 1973 were not going to throw Syria down the same road. In October 2011, when a resolution to condemn the actions of Bashar-al-Assad in Syria was put for vote in the UN Security Council, China and Russia used their veto and India abstained with a view to prevent any further Western intervention. India was not in denial of the disturbing situation in Syria but wanted to pursue a calibrated approach. It is evident from the fact that under the presidency of India, the UN Security Council issued an initial statement on Syria that condemned the use of force on the civilians by the authorities (Puri, 2016). 

Towards the end of its term, India did vote in favour of putting non-military sanctions against the Assad regime, but Russia and China continue to use their vetoes to block the resolutions. Overall, during its term in the UN Security Council, India depicted active support for the first two pillars of R2P. It never voted in negative and fluctuated between abstaining and voting in favour of the resolutions. India was clear about not endorsing any narrowly worded document that might be twisted by the Western nations as it happened in Libya (Bloomfield, 2015). At the beginning of 2013, with the rise of the Islamic State as the situation in the Middle East took a critical turn, it became evidently clear that the means to implement R2P had not succeeded in Libya. 

If we analyse India’s role in the Libyan conflict and larger debate on R2P, it had been wise on India’s part to remain on the side-lines. Libya was a test case and its outcome rightly hardened India’s aversive stance to the idea of military intervention in conflict zones. It also paved way for a renewed debate on the concept of R2P. India argued that responsibility does not end with a military response. When the principle is applied, it must respect the fundamental aspects of the UN Charter including the sovereignty and integrity of member states (Mishra and Kumar, 2013). Thus, India supported the Brazilian proposal for the ‘Responsibility while Protecting’ (Krause, 2016, p. 35). Protection of civilians from autocratic and abusive regimes is undoubtedly essential, but it should not compromise on the sovereignty and territorial integrity of the state.  

To conclude, India’s initial critical stance towards the principle of R2P softened in the prelude to its membership of the UN Security Council in 2011. Whether it was the international pressure or the desire to take a strong stand, India though maintained its practical demeanour, it did flirt with the idea and partially supported Pillar Three of the R2P. The disastrous outcomes of the NATO intervention in Libya where regime change and Western aspirations overshadowed the positive dimensions that R2P aimed to achieve, brought India back to its calculated and cautious approach. In the post-2012 scenario, India has time and again stressed the anomalies in the system of international intervention aspect of R2P. As a post-colonial state, India, especially after the Libyan experience, finds it difficult to endorse Western interventionist policies. Though India asserts the highest value to the territorial integrity of a state, India’s stand on R2P cannot be consistent and might fluctuate on the case to case basis in the future, keeping in mind its national interest and aspirations (Ganguly, 2016).

Bibliography

UNGA. 2009. A/63/677 Report of the Secretary General, s.l.: s.n.

Ayoob, M. 2004. ‘Third world perspectives on humanitarian intervention and international administration’, Global Governance, 10(1), pp. 99-118.

Bass, G. 2015. ‘The Indian Way of Humanitarian Intervention’. The Yale Journal of International Law, 40(227), pp. 227 – 294.

Bellamy, A., 2011. The Responsibility to Protect: Libya and Beyond. s.l.:s.n.

Bloomfield, A., 2015. ‘India and the Libyan Crisis: Flirting with the Responsibility to Protect, Retreating to the Sovereignty Norm’, Contemporary Security Policy, 36(1), pp. 27-55.

Chishti, S., 2011. Colonel’s End. s.l.:Indian Express.

Evans, G. and Sahnoun, M. 2002. ‘The Responsibility to Protect’. Foreign Affairs, 81(6), pp. 99-110.

Ganguly, S. 2016. ‘India and the Responsibility to Protect’, International Relations Volume, 30(3)p. 363.

Khandekar, R. 2015. ‘India and the Responsibility to Protect’s Third Pillar’, in: The Responsibility to Protect and the Third Pillar. London: Palgrave Macmillan .

Krause, D. 2016. It is changing after all: India’s stance on ‘Responsibility to Protect’. Observer Research Foundation, Issue Occasional Paper 90.

Mahdavi, M., 2015. A Postcolonial Critique of Responsibility to Protect in the Middle East. Perceptions , 10(1), pp. 7-36.

Mehta, P. B., 2011. Do new democracies support democracy? Reluctant India. Journal of Democracy , 22(4), pp. 97-109.

Mishra, S. and Kumar, K. S. 2013.’ India’s Two Years at the Horseshoe Table’. Institute for Defence Studies and Analyses, pp. 1-10.

Nayudu, S. K., 2016. India’s moment in the Suez Canal crisis. s.l.:The Hindu Business Line.

Pillai, R. 2012. India’s Libya Shame will haunt It. s.l.:The Diplomat.

Puri, H. S. 2016. Perilous Interventions: The Security Council and Politics of Chaos. Delhi: Harper Collins Publisher, India.

Rajamohan, C. 2011. It’s not West vs the rest. s.l.:s.n.

Shrivastav, S. K. 2011. India’s Response to the Libyan Crisis. Institute for Defence Studies and Analyses, 13 April.

Teitt, S. 2012. ‘Paper Tiger or Platform for Action? South Asia and the Responsibility to Protect’. In: A. Knight & F. Egerton, eds. The Routledge Handbook of the Responsibility to Protect. London: Routledge.

United Nations Security Council. 2011. Security Council 6498th Meeting. [Online] 
Available at: http://www.un.org/News/Press/docs/2011/sc10200.doc.htm.
[Accessed 5 April 2017].

‘This delicate mosaic may be shattered at any time’: The ICC, technocracy and the liberal West’s moral imperialism

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).

Introduction

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).

Historical context

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).

Conclusion

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.

Bibliography

Anghie, A. 2006. ‘The Evolution of International Law: Colonial and post-colonial realities’, Third World Quarterly, 27(5), pp. 739 – 753.

Arthur, P. 2009. ‘How “Transitions” Reshaped Human Rights:  A Conceptual History of Transitional Justice’, Human Rights Quarterly, 31, pp. 321-367.

Ayoob, M. 2002. ‘Humanitarian Intervention and State Sovereignty’, The International Journal of Human Rights,6(1), pp. 81-102.

Bazlyer, M. J. 2016 Holocaust, Genocide and the Lawp.  A Quest for Justice in a Post-Holocaust World. Oxford

Blanton, R., Mason, D. T. and Athow, B. 2001. ‘Colonial Style and Post-Colonial Ethnic Conflict in Africa’, Journal of Peace Research, 38(4), pp. 473-491.

Bongiovanni, G., et al. 2014. ‘Philosophy of Law and International Criminal Law:  Between Peace and Morality’, International Criminal Law Review, 14, pp. 738 – 767.

Brett, E. A. 2016. ‘Explaining Aid (In)Effectiveness:  The Political Economy of Aid Relationships’, LSE International Development Working Paper, No.16-176, pp. 1-19.

Cain, P. J. 2012. ‘Character, ‘Ordered Liberty’, and the Mission to Civilise: British Moral Justification of Empire, 1870–1914’, The Journal of Imperial and Commonwealth History, 40(4), pp. 557-578.

Cassese, A. 1998. ‘On the Current Trend towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, EJIL, 9, pp. 2-17.

de Waal, A., ‘Sudan and the International Criminal Courtp.  a guide to the controversy’, (14 July 2008), [Available at: httpsp. //www.opendemocracy.net/article/sudan-and-the-international-criminal-court-a-guide-to-the-controversy Accessed on 30/6/2017].

Des Forges, A., et al. 1999. ‘“Leave None to Tell the Story”: Genocide in Rwanda’, Human Rights Watch, p. 1-1188.

Doughty, K. C. 2017. ‘Language and International Criminal Justice in Africap.  Interpretation at the ICTR’, International Journal of Transitional Justice, 11, pp. 239-256.

Edmonds, P. and Johnston, A. 2016. ‘Empire, Humanitarianism and Violence in the Colonies’, Journal of Colonialism and Colonial History17(1), pp. 1-14.

Fanon, F. 1963. The Wretched of the Earth, New York

Field, K. C. and Perito, R. M. 2002-2003. ‘Creating a Force for Peace Operationsp.  Ensuring Stability with Justice’, Parameters, Winter Issue, pp. 77-87.

Firchow, P. and Mac Ginty, R. 2013. ‘Reparations and Peacebuildingp.  Issues and Controversies’, Human Rights Review, 14, pp. 231-239.

Fletcher, L. E., et al. 2009. ‘Context, Timing and the Dynamics of Transitional Justicep.  A Historical Perspective’, Human Rights Quarterly, 31, pp. 163-220.

Fujii, L. A. 2014. ‘Rescuers and Killer-Rescuers During the Rwanda Genocide’, in Semelin, J., Andrieu, C. and Gensburger, S., (eds), Resisting Genocidep.  The Multiple Forms of Rescue, Oxford.

Fukuyama, F. 1989. ‘The End of History?’, The National Interest, No. 16, p. 3-18.

Gegout, C. 2013. ‘The International Criminal Courtp.  limits, potential and conditions for the promotion of justice and peace’, Third World Quarterly, 34(5), 800-818.

Glasius, M. 2009. ‘What is Global Justice and Who Decides? Civil Society and Victim Response to the International Criminal Court’s First Investigations’, Human Rights Quarterly, 31(2), pp. 496-520.

Goda, N. J. W. 2006. ‘Review Article:  Law, Memory, and History in the Trials of Nazis’, The International History Review, 28(4), pp. 798-806.

Goetschel, L. and Hagmann, T. 2009. ‘Civilian peacebuilding:  peace by bureaucratic means?’, Conflict, Security and Development, 9(1), pp. 55-73.

Goldstone, R. J. 1996. ‘Justice as a Tool for Peace-Making:  Truth Commissions and International Criminal Tribunals’, New York University Journal of International Law and Politics, 28(3), pp. 485-503.

Human Rights Watch. 2010. ‘Darfur:  International Criminal Court’s Decision on Bashir Arrest Warrant’, (3 February 2010), [Available at:  https: //www.hrw.org/news/2010/02/03/darfur-international-criminal-courts-decision-bashir-arrest-warrant Accessed on 22/03/2017].

Human Rights Centre UC Berkeley School of Law. 2015. ‘The Victims’ Court?:  A Study of 622 Victim Participants at the International Criminal Court’, pp. 1-77, [Available at:  https://reliefweb.int/sites/reliefweb.int/files/resources/VP_report_2015_final_full2.pdf Accessed on:  02/08/2017].

ICC. ‘Understanding the International Criminal Court’, [Available at:  https: //www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf Accessed on 10/08/2017].

ICC. 1998. ‘Rome Statute of the International Criminal Court’, A/CONF.183/9, (17 July 1998),[Available at:  https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdfAccessed on 2/02/2017].

ICC. 2005. ‘ICC – Security Council refers situation in Darfur to ICC Prosecutor’, (1 April 2005), [Available at:  https: //www.icc-cpi.int/Pages/item.aspx?name=security%20council%20refers%20situation%20in%20darfur%20to%20icc%20prosecutor Accessed onp.  12/03/2017].

ICC. 2009. ‘Warrant of Arrest for Omar Hassan Ahmad Al Bashir’, (4 March 2009), [Available at:  https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-1 Accessed on 03/01/2017]. 

ICC. 2010. ‘Second Decision on the Prosecution’s Application for a Warrant of Arrest’, (12 July 2010), [Available at:  https: //www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/05-01/09-94 Accessed on 03/01/2017].

IRIN News. 2002. ‘How close is an African criminal court?’, (13 June 2002), [Available at:  http://www.irinnews.org/analysis/2012/06/13 Accessed on 7/07/2017]

ISS Peace and Security Council Report. 2017. ‘Beyond symbols:  can the AU really prevent genocide on the continent?’, (26 May 2017), [Available at:  https: //issafrica.org/pscreport/on-the-agenda/beyond-symbols-can-the-au-really-prevent-genocide-on-the-continent?utm_source=BenchmarkEmail&utm_campaign=PSC+Report&utm_medium=email Accessed on 14/03/2017]

Jackson, R. H. 1945. ‘Opening Statement Before the International Military Tribunal’, [Available at:  https: //www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international-military-tribunal/Accessed on 04/06/2017].

Kapteijns, L. 2013. ‘Test-firing the ‘new world order’ in Somalia: the US/UN military humanitarian intervention of 1992–1995’, Journal of Genocide Research, 15(4), pp. 421-442.

Karstedt, S., (2016), ‘The Emotion Dynamics of Transitional Justicep.  An Emotion Sharing Perspective’, Emotion Review, 8(1), pp. 50–55.

Kastner, P. 2007. ‘The ICC in Darfur – Savior or Spoiler?’, ILSA Journal of International & Comparative Law, 14(1), pp. 145-188.

Kennedy, D. 2009. ‘Selling the Distant Other:  Humanitarianism and Imagery—Ethical Dilemmas of Humanitarian Action’, The Journal of Humanitarian Assistance, [Available atp.  httpsp. //sites.tufts.edu/jha/archives/411Accessed on 02/08/2017].

Kersten, M. 2013. ‘The ICC and Regime Change: Some Thoughts but Mostly Questions’, Justice in Conflict Blog, (31 January 2013), [Available atp.   httpsp. //justiceinconflict.org/2013/01/31/the-icc-and-regime-change-some-thoughts-but-mostly-questions/ Accessed on 27/07/2017].

Kelsen, H. 1944. ‘The Principle of Sovereign Equality of States as a Basis for International Organisation’, The Yale Law Journal, 53(2), pp. 207-220.

Kiokio, B. 2003. ‘The right of intervention under the African Union’s Constitutive Act:  From non-interference to non-intervention’, International Review of the Red Cross, 85(852), pp. 807-825.

Klose, F. 2011. ‘The Colonial Testing Ground:  The International Committee of the Red Cross and the Violence End of Empire’, Humanity, 2(1), [Available at:  http: //humanityjournal.org/issue2-1/the-colonial-testing-ground-the-international-committee-of-the-red-cross-and-the-violent-end-of-empire/ Accessed on 02/08/2017].

Klose, F. and Geyer, D. 2013. Human Rights in the Shadow of Colonial Violence, Philadelphia:  University of Pennsylvania Press

Kohn, M. 2013. ‘Post-colonialism and global justice’, Journal of Global Ethics, 9(2), pp. 187-200.

Kuzmarov, J. 2013. ‘The Responsibility of Intellectuals Redux:  Humanitarian Intervention and the Liberal Embrace of War in the Age of Clinton, Bush and Obama’, The Asia-Pacific Journal, 11(24), pp. 1-38.

Lamony, S. 2015. ‘Putting Victims First:  The Aftermath of al-Bashir’s Visit to South Africa’, (27 July 2015), [Available at:  https: //justiceinconflict.org/2015/07/27/putting-victims-first-the-aftermath-of-al-bashirs-visit-to-south-africa/ Accessed on 08/08/2017].

Loeb et al., J. 2010. ‘Darfurian Voices:  Documenting Darfurian Refugees’ Views on Issues of Peace, Justice and Reconciliation’, [Available at:  http: //www.24hoursfordarfur.org/ Accessed on 27/07/2017].

Maathai, W. 2010. ‘Analysis – African Leaders Solving Own Problems’, (28 January 2010), [Available at:  http: //www.newsudanvision.com/international/2000-analysis-african-leaders-solving-own-problems Accessed on 30/07/2017].

Mac Ginty, R. 2008. ‘Indigenous Peace-Making Versus the Liberal Peace’, Cooperation and Conflict, 43 pp. 139-163.

Mac Ginty, R. and Richmond, O. 2013), ‘The Local Turn in Peace Buildingp.  a critical agenda for peace’, Third World Quarterly, Vol. 34(5), pp. 763-783.

Mamdani, M. 2008. ‘‘Darfur, ICC and the New Humanitarian Order:  How the ICC’s “responsibility to protect” is being turned into an assertion of neo-colonial domination’, Pambazuka News, (17 September 2008), [Available at:  httpsp. //www.pambazuka.org/governance/darfur-icc-and-new-humanitarian-order Accessed onp.  28/07/2017].

Mamdani, M. 2010. ‘Responsibility to Protect or Right to Punish?’, Journal of Intervention and Statebuilding, 4(1), pp. 53-67.

Marks. S. 1997. ‘The End of History? Reflections on Some International Legal Theses’, EJIL, 3, pp. 449-477.

Mbeki, T. M. 2009. ‘Darfur:  The quest for peace, justice and reconciliation. Report of the African Union High-Level Panel on Darfur’, International Journal of African Renaissance Studies – Multi, Inter- and Transdisciplinarity, 4(2), pp. 205-219.

Meernik, J. 1996. ‘United States Military Intervention and the Promotion of Democracy’, Journal of Peace Research, 33(4), pp. 391-402.

Miller, D. 2002. ‘Cosmopolitanism: A Critique’, Critical Review of International Social and Political Philosophy, 5(3), pp. 80-85.

Mills, K. 2012. ‘“Bashir is Dividing Us”p.  Africa and the International Criminal Court’, Human Rights Quarterly, 34(2), pp. 404-447.

Moffett, L. 2015. ‘Elaborating Justice for Victims at the International Criminal Court’, Journal of International Criminal Justice, 13, pp. 281-311.

Monbiot, G. 2005. ‘How Britain Denies its Holocausts’, (27 December 2005), [Available at:  httpp. //www.monbiot.com/2005/12/27/how-britain-denies-its-holocausts/ Accessed on 14/08/2017].

Paris, R., 2002. ‘International peacebuilding and the ‘mission civilisatrice’’, Review of International Studies, 28, pp. 637-656.

Pavlakis, D. 2016. British Humanitarianism and the Congo Reform Movement, 1896-1913. Routledge, 2016.

Peace and Security Council. 2009. ‘Report of the African Union High-Level Panel on Darfur (AUPD)’, PSC/AHG/2 (CCVII), (29 October 2009).

Peskin, V. 2009. ‘The International Criminal Court, the Security Council, and the Politics of Impunity in Darfur’, Genocide Studies and Preventionp.  An International Journal4(3), pp. 304–328.

Rubli, S., (2012), ‘Transitional Justicep.  Justice by Bureaucratic Means?’, Swisspeace Working Paper, 4, pp. 1-25.

Sato, S. 2017. ‘‘Operation Legacy’p.  Britain’s Destruction and Concealment of Colonial Records Worldwide’, The Journal of Imperial and Commonwealth History, Online edition:  11 Apr 2017, pp. 1-23.

Souaré, I. K. 2008. ‘ISS Situation Reportp.  Sudanp. What Implications for President Al-Bashir’s Indictment by the ICC?’, Institute for Security Studies, (25 September 2008), [Available at:  https: //issafrica.org/acpst/publications/situation-reports/situation-report-sudan-what-implications-for-president-al-bashirandapos;s-indictment-by-the-icc-issaka-k.-souare Accessed on 30/07/2017].

Sooka, Y., (2006), ‘Dealing with the past and transitional justicep.  building peace through accountability’, International Review of the Red Cross, Vol. 88(862), pp. 311-325.

Sriram, C. L. 2007. ‘Justice as Peace? Liberal Peacebuilding and Strategies of Transitional Justice’, Global Society, Vol. 21(4), pp. 579-591.

Thakur, R. 2016. ‘Ethics, International Affairs and Western Double Standards’, Asia and the Pacific Policy Studies, Vol. 3(3), pp. 370–377.

The Economist. 2008. ‘A middle way for justice in Sudan’, (11 December 2008), [Available at:  httpp. //www.economist.com/node/12777952 Accessed on 08/08/2017].

Thomson, S. and Nagy, R. 2011. ‘Law and Power and Justice:  What Legalism Fails to Address in the Functioning of Rwanda’s Gacaca Courts’, The International Journal of Transitional Justice, 5(1), pp. 11-30.

Tietel, R., (2002), ‘Humanity’s Law:  Rule of Law for the New Global Politics’, Cornell International Law Journal, 35(2), pp. 355-387.

Tiemessen, A., (2014), ‘The International Criminal Court and the politics of prosecutions’, The International Journal of Human Rights18(4-5), pp. 444-461.

United Nations, ‘Rome Statute of the International Criminal Courtp.  Overview’, (1998-1999), [Available atp. httpp. //legal.un.org/icc/general/overview.htm Accessed on 04/07/2017].

United Nations SC, ‘Minutes, 5158th Meeting’, (31 March 2005), UN Doc S/PV.5158.

United Nations SC Resolution, S/RES/1593, (31 March 2005).

Vieille, S., (2012), ‘Transitional Justicep.  A Colonising Field?’, Amsterdam Law Forum, Vol 3(3), pp. 58-68.

Yablonka, H., (2012), ‘The Eichmann Trialp.  Was It the Jewish Nuremberg?’, Loyola of Los Angeles International and Comparative Law Review, 34 (Rev. 301), pp. 301-313.

Torn between political interests and upholding legal responsibilities? A critical examination of African states’ frustrations with the International Criminal Court

By Zeinab Drabu

Zeinab Drabu is a recent graduate from the University of Leeds, where she achieved a First Class Honours in her BA degree in German and International Relations. Her academic and research interests include international politics, international law and international ethics.

The International Criminal Court is currently facing its most serious reputational crisis concerning its role and impact in relation to international criminal justice within the international arena. Nowhere is this crisis more profound than amongst African States that are both party to the International Criminal Court as well as the Constitutive Act of the African Union. Criticisms articulated by African states, including the labelling of the International Criminal Court as an ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’ (Al Jazeera, 2016) by the Gambian Information Minister Sheriff Bojang, are above all symbolic of the mounting frustrations that African states exhibit towards the Court. This essay will assess whether and to what extent such frustrations are justified in terms of their credibility and legitimacy. For this, the analysis will seek to determine whether these frustrations have been elicited due to the Court’s inability to fulfil its aims and objectives as outlined in the Rome Statute. Firstly, frustrations surrounding the Court’s alleged bias in terms of its selection of predominantly African cases will be reviewed. This essay will then critique frustrations regarding the International Criminal Court’s relationship to the United Nations Security Council, particularly through an examination of the case of the indictment of Sudanese President Omar Al-Bashir. As the ‘Court operates at a crossroads between law and politics’ as noted by scholars such as Arbour (2014, p.201), this essay will contend that existing frustrations articulated by African states towards the International Criminal Court are on the whole juridically unjustified, as they stand in opposition to structural limitations imposed by the Court’s jurisdiction as outlined in the Rome Statute. Furthermore, this essay will demonstrate that existing frustrations are principally politically motivated, with the purpose of delegitimising the Court to serve the political interests and objectives of African states inherent in the Court’s handled cases.

Is the International Criminal Court exclusively targeting Africa? 

In view of the submission of withdrawal notices from the International Criminal Court by the African states of Burundi, Gambia and South Africa in October 2016, despite eventual revocations in the cases of the latter two, scholars such as Werle and Vormbaum (2014, p.181) contend that the ‘Afro-centric focus of the International Criminal Court has created a distorted perception within the African continent about the intentions underlying the establishment of the Court’. The Court was initially founded to prosecute the most serious crimes facing the international community, including ‘the crime of genocide, war crimes and crimes against humanity’ (ICC, 2011, p.3), following the entry into force of the Rome Statute on the 1st July 2002. Objectively it is evident that all cases pursued to date have been directed towards African nationals. Specifically, submissions have included ‘those by individual governments in the cases of Uganda, the Democratic Republic of the Congo [DRC] and the Central African Republic [CAR], self-initiated interventions by the ICC chief prosecutor, Louis Moreno Ocampo in Kenya and Côte d’Ivoire and two UN Security Council referrals in Sudan and Libya’ (Murithi, 2012, p.4). Taking such observations into account, frustrations concerning the Court’s disproportionate focus on Africa are empirically justifiable. However, the first three situations outlined were self-referrals and therefore investigated at the request of the respective states themselves. In addition, crimes committed in all cases fell under the jurisdiction of the International Criminal Court.

Currently there are 124 State Parties to the Rome Statute of the International Criminal Court, of which 34 are African. Hence, quantitatively, Africa constitutes the most heavily represented region in the International Criminal Court, which not only recognises its permanency and legitimacy, but also accepts and emulates its jurisdiction. In addition, the International Criminal Court benefits extensively from the expertise of African professionals, with numerous Africans occupying high-level positions in all its organs. This includes Ms. Fatou Bensouda of the Gambia, who was instated as the Chief Prosecutor of the Court in 2012. In light of these structural and demographic contributions, African recognition of the legitimacy and authority of the International Criminal Court as an institution is significant.

The contributions of African states during the establishment of the International Criminal Court are also imperative to consider when assessing the extent to which their frustrations with the Court’s allegedly selective approach are justified. Indeed, whilst numerous African states were present for the drafting of the Rome Statute, the founding treaty of the International Criminal Court at the Rome Conference in July 1998, the clear majority voted in favour of adopting the Rome Statute and establishing the International Criminal Court. Such extensive support suggests that the objectives and purpose of the Court at the time of its establishment aligned with the interests of the majority of African states. In addition, on the 2nd February 1999, Senegal ratified the Rome Statute of the International Criminal Court, becoming the first State Party to ratify the Statute (United Nations, 2014), encapsulating and reaffirming African support for the Court. Furthermore, it is important to note that current efforts by the International Criminal Court to expand its international outreach are actively being pursued in terms of its prosecution of mass atrocity crimes. As well as the recent initiation of a proprio motu investigation into crimes against humanity and war crimes committed in Georgia in 2008, a Report on Preliminary Examination Activities (2016, p.6) issued by the Chief Prosecutor outlines ‘preliminary examinations currently underway in a number of states across different continents including Afghanistan, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Ukraine’.

Nevertheless, dismissals to date by the International Criminal Court of cases outside Africa have triggered frustrations from African states that the ‘International Criminal Court is practicing a form of “selective justice” which purposely avoids the prosecution of diplomatically, economically, financially and politically strong countries’ (Mbaku, 2014, p.10). A key example highlighted by Dugard (2013, p.563) which illustrates this is the Prosecutor’s failure to investigate alleged war crimes committed by Israel and Hamas during Operation Cast Lead in 2008. Whilst Dugard (2013, pp.567-569) emphasises the Prosecutor’s weakness in confronting Israel and its allies such as the United States as a key causal factor in the case’s dismissal, what is most interesting to note is the Prosecutor’s decision to investigate crimes committed in Mali instead, where the evidence is less clear. Whilst this example bolsters the credibility of frustrations regarding the International Criminal Court’s active preference in prosecuting African cases, scholars such as Saltzman (2013, p.164) counter this contention. Saltzman contends that at the time of the offensive, although the Palestinian National Authority had recognised the International Criminal Court’s jurisdiction, it was not a party to the Rome Statute and therefore not under the Court’s jurisdiction. Thus, although the structural limitations of the Rome Statute can be universally applied to different cases in assessing whether African state frustrations are justified, this example highlights the necessity to equally explore case-specific political dynamics in conjunction with the subject matter of the case. It further illustrates an instance where structural limitations of the International Criminal Court have delegitimised rhetoric regarding the selective targeting of African states by the International Criminal Court.

The Paradox of state co-operation: an analysis of the case of Omar Al-Bashir

On the 4th March 2009, the International Criminal Court issued a warrant of arrest for President Omar Al-Bashir of Sudan on charges including genocide, crimes against humanity, and war crimes. As these are all crimes that fall within the jurisdiction of the Court in accordance with the Rome Statute, the case possesses legitimate prerequisites for investigation. As well as being the first case in which a sitting head of State has been issued with an arrest warrant, scholars such as Mills (2012, p.407) acknowledge that it is also the first in which a ‘case before the ICC has forced states to confront their multiple interests and responsibilities in light of global power dynamics’. This is due to the fact that African states are required to overcome the conflict between their legal obligations under the Rome Statute and their political commitments as member states of the African Union in determining their involvement and approach respective to the case of the indictment of Al-Bashir. 

Frustrations concerning the alleged ‘political abuse of universal jurisdiction against African officials by Western states’ (Van der Wilt, 2011, p.1044) appear to oppose the African Union’s policy asserting that ‘heads of state enjoy diplomatic immunity’ when confronted with arrest warrants (Akande and Shah, 2010, p.815).  The case of the South African government’s failure to arrest Al-Bashir during his visit to an African Union summit in Johannesburg in 2015 highlights the discrepancies between Article 27 and Article 98 (1) of the Rome Statute in relation to diplomatic immunity. It further demonstrates South Africa’s voluntary violations of its legal responsibilities as outlined by the Rome Statute in favour of complying with the African Union’s policy of non-cooperation, which provides support for the contention that African State frustrations towards the International Criminal Court’s jurisdiction are not justified. 

As illustrated by Article 27 of the Rome Statute, there is an ‘absolute prohibition on immunities for crimes falling within the jurisdiction of the ICC at the international level’ (Bekou and Shah, 2006, p.513). South Africa is also a State Party to the Rome Statute and therefore falls under the jurisdiction of the International Criminal Court. Hence some scholars argue that the removal of diplomatic immunity for perpetrators of mass atrocities is also mandatory at the national level. From this, it is evident that there is a comprehensive legal basis obligating the South African government to arrest Al-Bashir. Yet upon examination of Article 98 (1) of the Rome Statute, it can be argued that the removal of diplomatic immunity from a head of State such as Al-Bashir violates other key principles of international law, including territorial sovereignty and non-interference, producing a ‘scenario of forced regime change by one country on another’ in the words of South Africa’s Masutha (Feldman, 2016). Article 98 (1) states that

‘the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity’ (International Criminal Court, 2011, p.69).  

That said, according to scholars such as Van der Vyver (2015, p.574), ‘the obligation of non-party states to execute the arrest warrant of President Al Bashir should rest with Security Council, acting under its Chapter VII powers, which has instructed all states and non-party-states included’. From this perspective, it can be contended that the ultimate authority and legitimacy of State Parties legal obligations take precedence, delegitimising African state frustrations’ regarding the diplomatic immunity of Heads of State such as Al-Bashir.  

The obligations of non-state party co-operation within the Rome Statute further highlight weaknesses regarding African state frustrations concerning the jurisdiction of the International Criminal Court in its relationship with the United Nations Security Council. On one hand, contentions regarding the obligations of non-state parties, specifically in situations where they have been referred to by the United Nations Security Council to co-operate with the Court, have often been manipulated by African states, as in the case of Al-Bashir, to justify and legitimise such frustrations. Firstly, Bekou and Shah (2006, p.541) assert that as ‘Sudan is not a State Party to the Rome Statute, there is no obligation for the state to fulfil requests for cooperation from the Court’. However, due to the referral mechanism used in the case to the Prosecutor of the International Criminal Court through U.N. Security Council Resolution 1593 under Chapter VII of the U.N. Charter, scholars such as Schabas (2011, p.418) draw attention to Article 12 of the Rome Statute which ‘opens up the possibility for the Court to exercise jurisdiction if a matter is referred to it by the Security Council’. This obligates Sudan as a non-state party to cooperate with the Court by placing it under the same jurisdictional obligations as existing State Parties of the International Criminal Court. However, it can be contended that a closer examination of the duties entailed in the resolution reveal a degree of ambiguity. As stated in Paragraph 2 of the resolution, ‘Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution’ (United Nations Security Council, 2005). Additionally, the resolution ‘urges all States and concerned regional and other international organizations to cooperate fully’ (United Nations Security Council, 2005). 

Taking this into account, it can be argued that the wording of the resolution merely encourages states to cooperate with the Court but does not necessarily compel them to do so. This exhibits weakness in the Court’s power of enforcement of state co-operation for the successful resolution of cases. However, when considering the votes in favour of the resolution by African states that were members of the Security Council at the time, it can be argued that the majority were supportive of the resolution. Both Benin and the United Republic of Tanzania voted in favour of the resolution, with Algeria abstaining. Although Algeria’s abstention stands contrary to African states’ support for the resolution, it appears principally politically driven, favouring alternative prosecution options to be determined by the African Union. In contrast, Benin refers to the ‘Ezulwini Consensus of 8 March 2005 in which the AU recognizes the right of the UNSC to protect a population when its government cannot or will not do so’ (Mutton, 2015) in its defence of the International Criminal Court’s decision following the U.N. Security Council resolution vote. Benin’s stance not only highlights the legal obligation of African states’ to act in accordance with the U.N. Security Council in this case but also affirms African states’ collective recognition of the International Criminal Court’s jurisdiction over Sudan. 

At the time that the arrest warrant against Al-Bashir was issued in Sudan, African states requested for the arrest warrant against Al-Bashir to be deferred. According to scholars such as Oette (2010, p.348) this was due to concerns regarding the arrest warrant’s impact on the peace process being mediated by the African Union and on Sudan’s political stability in accordance with Article 16 of the Rome Statute. Yet the rejection of the deferral request by the United Nations Security Council triggered notable frustrations from African states, who turned to label the International Court as a ‘neo-colonial Court’ (Wegner, 2015, p.297) used as a tool to impose Western imperialism, as well as an institution that practices double standards regarding its relationship with the United Nations Security Council.  

Although examples such as the adoption of Security Council Resolution 1422 following Article 16 of the Rome Statute to grant immunity for U.S. soldiers in Bosnia and Herzegovina (Heyder, 2006, p.657) legitimate such frustrations, when examining the conflict between the pursuit of retributive justice in the attainment of peace in the Court’s prosecution of Al-Bashir juxtaposed with the structural limitations of the Court, such frustrations are not entirely justified. As Bensouda has pointed out, the ‘ICC is a judicial institution and cannot take into consideration the interests of peace’ (Buchanan, 2015). Thus, the United Nations Security Council’s decision to avoid accommodating political considerations in its decision to reject the deferral request is arguably valid in order to avoid the politicisation of justice, thereby safeguarding the legitimacy of the Court. However, as the case remains deadlocked at the Pre-Trial stage, although African State frustrations’ in general may have been unjustified, their implications on State cooperation appear to have had a profound, delegitimising effect on achieving progress within the case.

To conclude, over the course of this essay, the justification of various African states’ frustrations regarding the functionality and objectives of the International Criminal Court, in addition to frustrations that have arisen as a result of the Court’s interaction with international political organisations including the United Nations Security Council and the African Union, have been analysed. Whilst the first section does, to an extent, concur with frustrations concerning the International Criminal Court’s exclusive selection of cases within Africa, it also highlights the progress of the Court, which has begun to expand preliminary examinations and investigations into other continents. The second section of the essay focuses on the case of Omar Al-Bashir. Despite State Parties’ entailed obligations within the Rome Statute, this section illustrates that frustrations regarding sovereign immunity and universal jurisdiction are prevalent. This is due to African states’ conflicted and often politicised interpretations of these concepts, despite on the whole being juridically unjustified, which has provided impetus to a lack of State Party cooperation.

Bibliography

Akande, D and Shah, S. 2011. Immunities of State Officials, International Crimes, and Foreign Domestic Courts. The European Journal of International Law, 21(4), pp.815-852.

Al Jazeera. 2016. Gambia withdraws from International Criminal Court. [Online]. [Accessed 20th May 2017]. Available from: http://www.aljazeera.com/news/2016/10/gambia-withdraws-international-criminal-court-161026041436188.html.

Arbour, L. 2014.The Relationship Between the ICC and the UN Security Council. Global Governance: A Review of Multilateralism and International Organizations. 20(2), pp.195-201. 

Bekou, O. and Shah, S. 2006. Realising the Potential of the International Criminal Court: The African Experience. Human Rights Law Review, 6(3), pp.499-544.

Buchanan, R. 2015. Security Council Referral to the ICC: a help or hindrance in achieving peace. [Online]. [Accessed 20th May 2017]. Available from: http://www.hscentre.org/global-governance/security-council-referral-icc-help-hindrance-achieving-peace/

Dugard, J. 2013. “Palestine and the International Criminal Court: Institutional Failure or Bias?” Journal of International Criminal Justice. 11(3), pp. 563-570.

Feldman, N. 2016. International Criminal Court is too focused on Africa. [Online]. [Accessed 20th May 2017]. Available from: https://www.bloomberg.com/view/articles/2016-10-25/international-criminal-court-is-too-focused-on-africa.  

Heyder, C. 2006. The U.N. Security Council’s Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court’s Functions and Status. Berkeley Journal of International Law, 24 (2), pp. 650-671.

Human Security Centre. 2015. Security Council Referral to the ICC: a help or hindrance in achieving peace. [Online]. [Accessed 20th May 2017]. Available from: http://www.hscentre.org/global-governance/security-council-referral-icc-help-hindrance-achieving-peace/.

International Criminal Court. 2011. Rome Statute of the International Criminal Court. [Online]. The Hague: International Criminal Court. [Accessed 20th May 2017]. Available from: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

International Criminal Court. 2016. Report on Preliminary Examination Activities 2016. [Online]. The Hague: International Criminal Court. [Accessed 14th May 2017].  Available from: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-pe_eng.pdf

Mbaku, J. 2014. International Justice: The International Criminal Court and Africa. [Online]. [No Place]: The Brookings Institute. [Accessed 16th May 2016]. Available from: https://www.brookings.edu/wp-content/uploads/2016/07/03-foresight-international-criminal-court-africa-mbaku-1.pdf

Mills, K. 2012. “Bashir is Dividing Us”: Africa and the International Criminal Court. Human Rights Quarterly, 34(2), pp.404-447.

Murithi, T. 2012. Africa’s Relations with the ICC: A Need for Reorientation? In: Luckscheiter, J and Mass-Albert, K. eds. A Fractious Relationship: Africa and the International Criminal Court. [Online]. [No place]: Heinrich Böll Foundation Southern Africa 2012. , pp. 4-9. [Accessed 16th May 2016].  Available from: https://www.boell.de/sites/default/files/2012-08-Perspectives_Africa_1_12.pdf

Mutton, J. 2015. Africa and the ICC: Countering half-truths. [Online]. [Accessed 30th March 2018]. Available from: https://www.dailymaverick.co.za/opinionista/2015-07-13-africa-and-the-icc-countering-half-truths/#.Wr3_4ExuK8B

Oette, L. 2010. Peace and Justice, or Neither? The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond. Journal of International Criminal Justice, 8(2), pp.345-364.

Saltzman, Z. 2013. Much Ado About Nothing: Non-Member State Status, Palestine and the International Criminal Court. Journal of International and Comparative Law, 3(2), pp.163-209.

Schabas, W. 2011. An Introduction to the International Criminal Court. 4th. Cambridge: Cambridge University Press.

United Nations Security Council. 2005. Resolution 1593 (2005): Adopted by the Security Council at its 5158th meeting, on 31 March 2005. [Online]. S/RES/1593. [Accessed 20th May 2017]. Available from: https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf

United Nations. 2014. Senegal First State to Ratify Rome Statute of International Criminal Court. [Online]. [Accessed 18th May 2017]. Available from: http://www.un.org/press/en/1999/19990203.l2905.html

Van der Vyver. 2015. The Al Bashir debacle. African Human Rights Law Journal, 15(2), pp.559-579.

Van der Wilt, H. 2011. Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States. Journal of International Criminal Justice, 9(5), pp.1043-1066.

Wegner, P. 2015. The International Criminal Court in Ongoing Instrastate Conflicts: Navigating the Peace Justice Divide.[No place] : Cambridge University Press.

Werle, G. and Vormbaum, M. 2014. Africa and the International Criminal Court. 1st. The Hague: Asser Press.

African states’ frustrations with the ICC: justifiable or misdirected and overstated?

By Oliver Cotton

Oliver Cotton is a law conversion course student. He graduated with a BA degree in International Relations from the University of Leeds in 2017, with a particular interest in terrorism, R2P and humanitarian law. 

Despite the significant role that African states have had in both the creation of the ICC and its ongoing support, African nations and as a collective, the African Union (AU) have become increasingly frustrated with the International Criminal Court (ICC). This essay, primarily focusing on the ICC’s Sudan investigation, posits that African states have two core complaints and that neither is justified. The first complaint is that the ICC undermines African peace and violates the immunity of heads of state, particularly those not party to the ICC’s founding treaty, the Rome Statute, through continuing to investigate African conflicts when the African Union requests deferral. For instance, several African states’ have argued that the ICC hampers peace processes by compromising leaders’ immunity through indictment. It will be asserted, however, that this frustration is unjustified in two ways. Firstly, the structural inequalities of the United Nations Security Council (UNSC) would be a more appropriate target for criticism, because African states were primarily concerned with deferral in the case of Darfur, which was a UNSC failing. Secondly, the AU’s request for deferrals of ICC investigations on the grounds of stability are unjustified because their premises are ill-defined and erroneous. The second core complaint from African states is that the Court unfairly targets and discriminates against Africans. However, despite the disproportionate number of investigations within Africa, the fact that many African states trust the ICC’s judgement brings this claim into question.  

The AU’s frustration with the UNSC’s role and deferral process

A principal frustration that some African states and the AU have directed towards the ICC, is their vexation towards the Security Council’s and, concomitantly, the ICC’s dismissal of their demands for a deferral of African investigations for a year long period, in line with Article 16 of the Rome Statute (1998). The effect of which has been the perceived marginalisation and lack of authority that African states consider themselves to have over the justice proceedings of their own affairs and crimes, despite their influence in the formation of the Court (Mills, 2012). This frustration should be directed towards the role of the Security Council and the structural inequalities and power imbalances that it represents, underscored by all five of the permanent UNSC members emanating from outside of Africa. Beyond their misplaced frustration with the role of the ICC instead of that of the UNSC, this essay asserts that the necessity of deferrals, notably in Sudan, was not adequately established. At its 2009 Summit in Sirte, the AU expressed and posited two principal reasons for its non-cooperation stance towards the ICC in reaction to the Security Council’s decision not to defer the Sudan investigation that it referred to the Court in 2005 (Jalloh et al, 2011; Ssenyonjo, 2013). They are: the belief that incumbent heads of state not party to the Rome Statute are immune from the Court’s jurisdiction under Article 98(1) (Rome Statute, 1998); and the perspective that prosecutions during ongoing conflicts hinder the achievement of peace. In terms of the former, the AU argued that the ICC’s jurisdiction should not extend to states that have not ratified the Rome Statute, in line with the sovereign principle of non-intervention (Akande and Shah, 2011). This argument is premised on the logic that in international law, ‘generally only parties to a treaty are bound by its provision’ (Sirleaf, 2016, p.751). There is significant contestation regarding the complexity of whether senior members of governments should be immune from ICC prosecution if they have not consented to the Court’s jurisdiction. However, given that the Security Council referred the case to the ICC under Resolution 1593 (UNSC, 2005) and that Sudan is a member of the UN and thus subject to the UN Charter, it is posited that Sudan’s immunity has been waived in a similar way to those of state parties, pursuant to Article 27 (Rome Statute, 1998), thereby legitimising the indictment (Du Plessis, 2010; Ciampi, 2008).  

It is also important to stress that African states are not just frustrated with the UNSC’s and the Court’s role in by-passing the lack of jurisdiction that the ICC has over non-state parties, but also the more general indictment of incumbent heads of state. African leaders, party to the Rome Statute, for instance Malawi’s president, Bingu wa Mutharika expressed that, ‘to subject a sovereign head of state to a warrant of arrest is undermining African solidarity’ (Mills, 2012, p.436). African states’ criticism of the indictment of incumbent leaders, whether party or not to the ICC, is premised on the crippling effects that arresting a head of state has upon the credibility of the states themselves. However, implicit in the opposition of African countries to the ending of the impunity that leaders enjoy is also the fear amongst heads of state who have committed mass atrocities that ‘their number might be next’ (Mills, 2012, p.430). This is exemplified by the AU’s formation of the Malabo regional court in 2014 and its incorporation of an immunities provision, which states that ‘no charges shall be commenced or continued before the Court against any serving African Union Head of State or Government’ (Amnesty International, 2016). This veiled effort to further embed the impunity of African leaders is unjustifiable and starkly inconsistent with the ICC’s principal aim to eradicate the immunity of all individuals under its jurisdiction, set out in the Rome Statute (Sirleaf, 2016). 

The principal reasoning expounded by the AU for the deferral of African cases is that the arrest of officials or even leaders of African governments during conflict situations is detrimental to the brokering of peace, which African governments argue should be the primary concern of the international community. The AU expressed that its objection to the prosecution of Sudanese leader, Omar al-Bashir and other officials lay in the timing of Bashir’s indictment as opposed to the case itself. Indeed, in line with the AU’s opposition to external interference and desire for greater autonomy, the regional institution discussed whether, instead of the ICC, it could alternatively prosecute Bashir, implying that African states are willing to prosecute war criminals themselves (Mills, 2012). The organisation nonetheless called for the arrest of Bashir to be deferred in the interest of establishing peace in Sudan. It cited that the investigation could ‘seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur and the promotion of long-lasting peace and reconciliation’ (AU, 2008, p.2). Support for a deferral in order to benefit the Sudanese peace efforts extended beyond African states. Russia, for instance stressed its opposition to the ICC’s interference in Sudan, instead emphasising the importance of Sudan investigating its own crimes and the ICC acting as a court of last resort, in line with the principle of complementarity (UNSC, 2008). 

The elevation of peace above judicial action in order to end immunity, and the perception of irreconcilability between them are popular views among academics. It is contended that the ICC’s involvement acts as an obstacle to establishing peace (Rothe and Collins, 2013; Kastner, 2007) on the basis that its indictments have incentivised violence in: Sudan, Colombia and Uganda (Sirleaf, 2016; Riveros, 2009; Belloni, 2006). For instance, in Uganda, the ICC’s indictment of Joseph Kony was conceptualised as leading to the cessation of the Juba peace negotiations (Rothe and Collins, 2013). Likewise, in Sudan, it is noted that the arrest warrant for Bashir plausibly reinforced the rebels’ cause, in turn, resulting in the Justice and Equality Movement eliminating the possibility of negotiations (Simons et al, 2008). Despite the relative credibility of this argument in theory, in practice, there was little tangible evidence to validate the necessity of a deferral (Oette, 2010). It is important to stress that the legitimacy of a deferral following a UNSC referral of a situation to the ICC is dependent upon a change in the circumstances of a case. That is, from one that has already been considered to warrant ‘effective prosecution by the ICC into one in which the Court’s exercise of jurisdiction threatens the peace and security of the world’ (Ciampi, 2008, p.891). The Sudan situation did not merit a deferral as the AU failed to highlight any tangible change in circumstances that could plausibly justify the postponement of the ICC’s investigation in Darfur. Equally, there was no clear evidence that the ICC’s involvement obstructed peace processes or that peace would be more likely to prosper in the case of a deferral, undermining the AU’s frustration. Indeed, the Darfur conflict has persisted since 2003, highlighting the opportunity that Sudan’s government has had to foster peace and to prevent the direct involvement of the ICC through the prosecution of its own offenders, under the principle of complementarity (Jalloh et al, 2011; Fritz, 2012). Yet, it has failed to do so, illustrated by the failure of the 2006 Darfur Peace Agreement (Oette, 2010) and the unstable, violent conditions prior to the ICC indictment, underscored by the eruption of conflict in Omdurman and Abyei in 2008 (HRW, 2008). The failure of Sudan’s domestic proceedings, or more fittingly, its lack of willingness to indict its own officials, justifies the need for the ICC’s external involvement (Jalloh et al, 2011). 

The ICC’s credibility has been weakened by the lack of support from the Security Council and African states in arresting Bashir. Nonetheless, as has been argued, in the absence of a justifiable explanation for a deferral of the Sudan case, the ICC’s continued investigation was warranted and prevented the Court from setting a precedent of subordinating impunity in favour of political expediency (Oette, 2010). Furthermore, in contrast to the argument that peace should be prioritised above the prosecutorial duties of the ICC, this essay elucidates that alternatively, peace and justice are inseparable goals. As opposed to facilitating the establishment of peace, deferring cases against heads of state in the absence of exceptional circumstances would have the perverse effect of encouraging leaders to sustain conflict in order to delay their prosecution indefinitely (Oette, 2010). 

The perception of the ICC as a Western tool of African oppression 

African leaders and academics alike have cited the ICC as a tool of Western oppression that selectively and unfairly discriminates against African nations, particularly in the wake of Bashir’s 2008 indictment. Indeed, the African scholar Eberechi (2011) stressed that the ‘ICC is rapidly turning into a Western court to try African crimes against humanity’ (p.55). Rwandan president, Paul Kagame even stressed that the ICC’s unfair targeting of Africans has colonialist and racist overtones (Steinberg, 2016; Sudan Tribune, 2009). The extent of this frustration is encapsulated by the African Union passing a resolution in 2008 to appeal to the European community to halt the indictment of Africans (Mills, 2012). The pinnacle of this frustration and subsequent opposition to the ICC’s operational functioning by African states came with South Africa’s, the Gambia’s and Burundi’s announcement of their plans to withdraw from the Court (Keppler, 2017). Although the AU has consistently found issue with the Court’s work, its endorsement of the withdrawal of African states collectively from the ICC at the 2017 AU summit signaled the culmination of the continent’s frustrations with universal jurisdiction and the role of the ICC (Jalloh et al, 2011; Maasho, 2017). This has even prompted commentators to question whether such action signals the end of the ICC (Allen, 2016; Cronin-Furman and Schwartz, 2016). This is grounded in the logic that international institutions, such as the League of Nations have historically become redundant and perished once members have flouted their jurisdictions and withdrawn their membership (Murithi, 2012). 

Both Gambia’s and South Africa’s decision to withdraw from the Court have since been revoked, however, it is clear that the frustration amongst African governments regarding its perceived biased targeting has damaged the ICC’s credibility. This is particularly apparent, given that African membership and support for both the ICC’s founding and ongoing execution have been integral to its relative success as an institution to date. Nevertheless, upon analysis, the perspective that such frustration could beckon the ICC’s demise is thoroughly futile and simplistic. It obscures the disparity and disagreement amongst African states regarding their support for the ICC. For instance, the majority of African states either opposed the decision by Gambia, South Africa and Burundi to declare their withdrawal from the ICC or reaffirmed their support for the Court (Momoh, 2017; AU Summit, 2017). Thus, the AU’s declaration of non-cooperation and withdrawal from the ICC did not represent the majority view.

The ICC’s selectivity and Western bias is supported by nine out of ten of the situations under investigation by the Court residing on the African continent (ICC, 2017a). Nonetheless, the African frustration regarding the perceived oppression of the ICC grossly misrepresents the reality. Although Western, powerful states are more capable of averting the Court’s jurisdiction and justice, the ICC is far from a Western institution, represented by the Gambian nationality of its incumbent prosecutor, Fatou Bensouda (Smith, 2012). Furthermore, it is clear that this perceived Western oppression of Africans masks the accountability, autonomy and transparency inherent in the ICC (Du Plessis, 2010). The frustration is additionally flawed, given that far from unfairly targeting the continent, African states have, in fact, requested the ICC’s investigation into their own affairs, confirming that the ICC purely acts in the interests of African victims. This is signified by self-referrals marking five out of the nine African situations under investigation (ICC, 2017a). The fact that the Security Council has only referred two out of these nine cases to the ICC brings into question Mamdani’s (2009) narrative of the ICC as a tool of the West. The imbalance in the Court’s prosecutions and investigations into African situations is predominantly explained by factors outside of its control and its limited jurisdiction, marked by neither America, China, nor Russia being party to the ICC Statute (ICC, 2017b). Notably, in the absence of a Security Council referral, the ICC can solely prosecute individuals from its state parties via self-referrals or the proprio motu capabilities of the ICC Prosecutor. The Court is thereby heavily dependent upon state support and power politics. Nonetheless, the frustration of African states is further undermined by the ICC’s evident willingness and intent to prosecute the most heinous war crimes wherever they occur when the Court has both the jurisdiction and the authority to do so (Jalloh, 2010). This is evidenced by five of the ten situations under preliminary investigation coming from outside of Africa, notably, Bensouda’s reopening of the case against British nationals in Iraq, previously closed by her predecessor, Ocampo in 2006 (ICC, 2017c). The higher prevalence of conflict and, concurrently, war crimes, coupled with Africa representing the region with the most signatory states to the Rome Statute, further justifies the disproportionate number of African cases investigated by the ICC (Jalloh et al, 2011; Brock-Utne, 2001). 

Conclusion 

In examining the justifiability of African states’ frustrations with the ICC, this essay has evaluated two overarching dissatisfactions which have impaired the relationship between the ICC and the African Union. It has concluded that neither frustration, nor the broader discontent that African governments have directed towards the ICC are justifiable. The AU’s frustration regarding the overlooking of its appeal for the deferral of African cases under ICC investigation should be re-directed towards the role of the Security Council and its embodiment of structural inequalities. African governments’ vexation towards the ICC for pursuing cases despite AU opposition is additionally unwarranted, premised on two shortcomings. They are: The African Union’s failure to expound the necessity of deferrals in the interest of peace; and some African states’ incompatible and flawed belief that incumbent heads of state should enjoy impunity, given that the ICC was definitively set up to end the immunity of all individuals under its jurisdiction and remit. African states’ criticism of the Court as a Western tool that is biased against and seeks to oppress Africans is an equally misplaced frustration. For, the ICC’s sizeable jurisdiction within Africa, coupled with the greater willingness of African states to self-refer cases justifies the disproportionate number of prosecutions and investigations on the continent. Nevertheless, going forward, it is important that the ICC builds upon and translates some of its five preliminary examinations from situations outside of Africa into fully fledged investigations. Pursuing cases beyond Africa more diligently and purposefully would advance the ICC’s inherent goals of ending the immunity of war criminals and protecting victims globally, whilst simultaneously acting to thwart African states’ increasing opposition towards the Court. In a similar vein, African governments can alleviate their frustrations by increasingly adhering to the ICC’s role as a court of last resort and its principle of complementarity by emboldening their domestic judicial systems and, concurrently, progressively prosecuting their own crimes. 

Bibliography 

Akande, D. and Shah, S. 2011. ‘Immunities of state officials, International Crimes, and Foreign Domestic Courts’. European Journal of International Law. 21(4), pp.815-852.

Amnesty International. 2016. Africa: Malabo protocol: legal and institutional implications of the merged and expanded African court. London: Amnesty International.

Allen, K. 2016. ‘Is this the end for the criminal court?’, BBC. [Online]. 24th October. [Accessed: 2nd May]. Available from: http://www.bbc.co.uk/news/world-africa-37750978

African Union (AU). 2008. Peace and Security Council 142nd Meeting, Addis Ababa, Ethiopia. [Online]. [Accessed: 2nd May]. Available from: http://www.iccnow.org/documents/AU_142-communique-eng.pdf

AU Summit. 2017. ‘Africa continues pushback against ICC withdrawals’. Coalition for the International Criminal Court. [Online]. 8th February. [Accessed: 5th May]. Available from: http://coalitionfortheicc.org/news/20170208/au-summit-2017-africa-continues-pushback-against-icc-withdrawals

Belloni, R. 2006. ‘The Tragedy of Darfur and the Limits of the ‘Responsibility to Protect’’. Ethnopolitics. 5(4), pp.327-346.

Brock-Utne, B. 2001. Indigenous Conflict Resolution in Africa. [Online]. [Accessed: 4th May]. Available from:http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.460.8109&rep=rep1&type=pdf

Ciampi, A. 2008. ‘The proceedings against President Al Bashir and the Prospects of their Suspension under Article 16 ICC Statute’. International Criminal Justice. 6(5), pp.885-897. 

Cronin-Furman, K and Schwartz, S. 2016. ‘Is this the end of the International Criminal Court?’, Washington Post. [Online]. 21st October. [Accessed: 4th May]. Available from: https://www.washingtonpost.com/news/monkey-cage/wp/2016/10/21/is-this-the-end-of-the-international-criminal-court/?utm_term=.020631b66fcc

Du Plessis, M. 2010. The International Criminal Court that Africa Wants. South Africa: Institute for Security Studies. 

Eberechi, I. 2011. ‘Rounding Up the Usual Suspects’: Exclusion, Selectivity, and Impunity in the Enforcement of International Criminal Justice and the African Union’s Emerging Resistance’. African Journal of Legal Studies. 4(1), pp.51-84. 

Fritz, N. 2012. South Africa and the ICC: A Testy Long-Term Relationship. In: Böll, H. (ed.). ‘A Fractious Relationship: Africa and the International Criminal Court. Perspectives: Political Analysis and Commentary from Africa’. The Heinrich Böll Foundation. 1(12),, pp.10-13.

Human Rights Watch (HRW). 2008. Abandoning Abyei. [Online]. [Accessed: 4th May]. Available from: https://www.hrw.org/report/2008/07/21/abandoning-abyei/destruction-and-displacement-may-2008

ICC. 2017a. Situations under investigation. [Online]. [Accessed: 1st May]. Available from: https://www.icc-cpi.int/pages/situations.aspx

ICC. 2017b. The States Parties to the Rome Statute. [Online]. [Accessed: 2nd May]. Available from: https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx

ICC. 2017c. Preliminary examinations. [Online]. [Accessed: 1st May]. Available from: https://www.icc-cpi.int/pages/preliminary-examinations.aspx

Jalloh, C. 2010. ‘Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction’. Criminal Law Forum. 21(1), pp.1-65.

Jalloh, C, Akande, D and du Plessis, M. 2011. ‘Assessing the African Union Concerns about Article 16 of the Rome Statute of the International Criminal Court’. African Journal of Legal Studies. 4(1), pp.5-50.

Kastner, P. 2007. ‘The ICC in Darfur—Savior or Spoiler?’, ILSA Journal of International and Comparative Law. 14(1), pp.145-188.

Keppler, E. 2017. ‘AU’s ‘ICC Withdrawal Strategy’ Less than Meets the Eye’, Human Rights Watch. [Online]. 1stFebruary. [Accessed: 4th May]. Available from:  https://www.hrw.org/news/2017/02/01/aus-icc-withdrawal-strategy-less-meets-eye

Maasho, A. 2017. ‘African Union leaders back mass exodus from International Criminal Court’. The Independent. [Online]. 1st February. [Accessed: 4th May]. Available from:    http://www.independent.co.uk/news/world/africa/african-union-international-criminal-court-a7557891.html

Mamdani, M. 2009. ‘The New Humanitarian Order’. Review of African Political Economy. 36(122), pp.621-629.

Mills, K. 2012. ‘‘Bashir is Dividing us’: Africa and the International Criminal Court’, Human Rights Quarterly. 34(2), pp.404-447.

Momoh, M. 2017. ‘Nigeria opposes mass ICC withdrawal’, The East African. [Online]. 27th January. [Accessed: 7thMay]. Available from:     http://www.theeastafrican.co.ke/news/Nigeria-opposes-mass-ICC-withdrawal/2558-3789624-h5i2jdz/index.html

Murithi, T. 2012. ‘Africa’s Relations with the ICC: A Need for Reorientation’. In: Böll, H. (ed.). A Fractious Relationship: Africa and the International Criminal Court. Perspectives: Political Analysis and Commentary from Africa. The Heinrich Böll Foundation1(12), pp.4-9.

Oette, L. 2010. ‘Peace and Justice, or Neither? The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond’, Journal of International Criminal Justice8(2), pp.345-364

Riveros, N. 2009. Peace vs. Accountability in Colombia. [Online]. [Accessed: 2nd May]. Available from: http://www.monitor.upeace.org/NRIVEROS.pdf

Rome Statute. 1998. Rome Statute of the International Criminal Court. [Online]. [Accessed: 22nd April]. Available from: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf

Rothe, D and Collins, V. 2013. ‘The International Criminal Court: A Pipe Dream to End Impunity’, International Criminal Law Review. 13(1), pp.191-209.

Simons, M, Polgreen, L and Gettleman, J. 2008. ‘Arrest is sought of Sudan leader in Genocide Case’, New York Times. [Online]. 15th July. [Accessed: 7th May]. Available from: http://www.nytimes.com/2008/07/15/world/africa/15sudan.html      

Sirleaf, M. 2016. ‘Regionalism, Legitimacy and International Criminal Justice’, Columbia Journal of Transnational Law. 54(699), pp.699-778.

Smith, D. 2012. ‘New chief prosecutor defends international criminal court’, The Guardian. [Online]. 23rd May. [Accessed: 7th May]. Available from: https://www.theguardian.com/law/2012/may/23/chief-prosecutor-international-criminal-court

Ssenyonjo, M. 2013. ‘The Rise of the African Union Opposition to the International Criminal Court’s Investigations and Prosecutions of African Leaders’, International Criminal Law Review. 13(2), pp.385-428.

Steinberg, R. 2016. Contemporary issues facing the International Criminal Court. Leiden: Brill Nijhoff. 

Sudan Tribune. 2009. ‘AU agree to protect Sudanese president from arrest’, Sudan Tribune. [Online]. 4th July. [Accessed: 13th May]. Available from: http://www.sudantribune.com/spip.php?page=imprimable&id_article=31702

UNSC. 2005. Resolution 1593. [Online]. [Accessed: 16th May]. Available from: https://www.icc-cpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-48EDF55CC587/283244/N0529273.pdf

UNSC. 2008. Reports on the Secretary-General on the Sudan. [Online]. [Accessed: 7th May]. Available from: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.6028

The human right to be enslaved: how human rights’ coercive liberalism was masked as emancipatory

By Matthew Moore

Matthew Moore is a postgraduate student at London School of Economics and Political Science.

Human rights are portrayed in legislation as universal, inalienable and apolitical, which diverts intellectual discourse from the discussion of its theoretical, normative principles and the bearing this holds on the human rights corpus’ emancipatory potential. Liberalism is defined by its principles, tracing back to Locke, who reasoned that states hold a duty to protect humanity via upholding the principles of “lives, liberties and estates” (Locke,1988, p.180). Vitally, for Locke these principles are ontologically assumed as natural rights, the realisation of which is sufficient for the emancipation of individuals. For something to be emancipatory, it must, akin to what Trotsky noted “increase the power of man over nature and … [abolish] the power of man over man” (Trotsky, 1938). In order to be considered emancipatory, human rights must be demonstrated as liberating to mankind, while simultaneously being free from coercion in its means and ends, the presence of which would negate the former. This is echoed by Marx who considered emancipation to be located in the individual wherein “individual man” must “reabsorb in himself the abstract citizen” and “man recognise and organise his ‘own powers’ as social powers” (Marx, 1843). 

The argument advanced here claims human rights are intrinsically liberal, ontologically and substantively, and that the emancipatory potential of human rights is entirely undermined by this liberalism. The structure is as follows. First, it will be contested that despite academic and legislative claims to the contrary, human rights are intrinsically liberal courtesy of mirroring the Lockean ‘social contract’. Human rights share the liberal ontological assumption of natural rights, and implicitly advocate for liberal substantive principles, namely, property rights (‘estates’), self-determination (‘lives’) and the preservation of free markets, the criteria for individual liberty (‘liberties’). This liberalism is derived from human rights being a project of agency which sets its framework for action within the prevailing order, characterised by these principles, and thus implicitly legitimises and advocates for their reproduction. 

Secondly, the significance of human rights’ liberalism will be grounded in the liberal ontology of natural rights being an invalid justification for human rights’ emancipatory potential, as the claim that liberal human rights are self-evidently emancipatory courtesy of their capacity to uphold humankind’s natural entitlements lacks demonstrability and rests on circular reasoning. Moreover, this failure of natural rights unearths a critical issue, for, in successfully presenting liberal principles as universal values, it allows for the movement to be comprehended under the Marxist lens of cultural hegemony as an ideological tool which reinforces the dominant worldview, making the case that human rights’ liberalism renders it coercive in its implementation, and thereby an obstruction to emancipation.  

Finally, in addition to being coercive in their means, liberal human rights are also coercive in their ends, as the freedoms offered are paradoxical in that labourers are free to present themselves on markets, but the act of selling their labour freely ensures their enslavement to capital. Furthermore, Liberal human rights are bourgeois rights, suffering from viewing emancipation as achieved through non-interference, rather than in our relationships with others. These substantive points, coupled with the intrinsic liberalism of human rights undermines its emancipatory potential entirely because any attempt to enforce bourgeois rights will reproduce the coercive relations of production, aggravating the structural difficulties rather than emancipating individuality. 

Human rights as intrinsically liberal 

Mutua (2007, p.25) highlights that the human rights regime “distort[s] the true identity of the corpus,” which makes pinpointing its principles difficult. For instance, Griffin disputes the claim that human rights are tied to liberalism. Contrarily, he suggests there is one sole theoretical claim in human rights legislation, integrated into the UN in 1966, which claimed that “rights derive from the inherent dignity of the person” (Griffin, 2001, pp.5-6). This provides evidence for human rights’ liberalism because the liberal, ontological assumption of natural rights is akin to this claim about humankind’s inherent dignity, with both ontologically asserting self-evident rights as their justifying basis. However, Griffin underestimates the extent of this theoretical, liberal grounding by overlooking the manifestation of the substantive elements of the Lockean social contract being implicitly embedded in human rights legislation alongside natural rights. 

Beitz (2003, p.26) insists that the UN Declaration’s framers found “the philosophical … arguments difficult, … [and] the framers agreed to disagree about the theoretical foundations of human rights”. Yet, conflating a lack of conscious theoretical grounding with an absence of it is mistaken. Indeed, Beitz simultaneously and unwittingly exhumes this liberalism in his acknowledgement that the Declaration contains “provisions associated with economic rights and self determination” (Beitz, 2003, p.28). Because, the economic rights he refers to are found in Articles 23-25 of the UN Declaration, and are not apolitical, but are rights which assume, as Mutua notes, “the legitimacy of capitalism and free markets” (Mutua, 2007, p.31). This is essential as capitalism is characterised by the principles of the liberal Lockean ‘social contract’. For instance, it upholds the right to private property (‘estates’), access to free markets, which is the Lockean embodiment of individual liberties (‘liberty’), and the right to self-determination (‘lives’), completing the trio, rendering human rights as substantively liberal. 

Moreover, Beitz’s insight holds utility in establishing this liberalism as intrinsic to human rights, for, his claim remains plausible. Indeed, human rights’ liberalism is derived from assuming the parameters of the prevailing order as the framework for action. To illustrate this, by granting human rights within the parameters of the characteristics of the prevailing order, namely capitalism, human rights fall under Cox’s notion of a ‘problem-solving theory’, meaning rights are “value-bound by virtue of the fact [they] implicitly accept the prevailing order as its own framework” (Cox, 1981, p.129). This is significant because it suggests human rights’ liberalism will prevail so long as it assumes the legitimacy of the prevailing order characterised by capitalism. Thus, as opposed to being conscious liberal norms, which therein implies the possibility of altering its liberalism, the underlying assumptions of the Declaration’s economic rights render it intrinsically liberal. Because, by assuming the legitimacy of capitalism, a defining aspect of the prevailing order, and with the capitalist mode of production being one characterised by the Lockean principles of a right to private property (‘estates’) and access to markets, then rights will serve to legitimise and advocate for the preservation of that order, ensuring liberalism is integral to human rights’ furniture. The ontological liberalism of natural rights is also eternal intrinsic to human rights, because, human rights are incapable of defending this substantive liberalism, for, if legislation did, it would concede they are principles rather than rights. 

Hence, human rights are substantively liberal courtesy of its problem-solving methodology, and also in its explicit appeal to the liberal ontology of natural rights as a justifying base. Therefore, in order to cogently frame liberalism as critically undermining the emancipatory potential of human rights, this must be reasoned through a critique of the emancipatory potential of the substantive Lockean principles alongside the ontological justification of natural rights. 

Human rights’ means as coercive liberalism  

The liberal ontology of natural rights implies the emancipatory potential of human rights is self-evident because if natural rights exist, human rights are emancipatory in maintaining the rights which humankind are naturally entitled to. Equally, if the validity of this claim is invalidated, presenting liberal principles as incontestable rights unearths a deceptive element in human rights, facilitating a claim that human rights are coercive in their means, emancipations antonym. 

Donnelly and Griffin assert that human rights “are born out of the rights we have as human beings” (Donnelly, 2007, p.282). However, this assertion is impossible to demonstrate. Kant attempts to add a justification, claiming humankind’s rationality holds intrinsic worth, “realised in the adoption of humanity as an end in itself” which is deserving of respect through natural rights (Kant, 1964, p.96). Yet, it does not follow from humanity’s capacity for rational thought that humankind holds self-evident rights. Kant’s argument is undermined by its fallacious circular reasoning, as he ironically appeals to humankind’s capacity for rationality to justify a set of natural rights, but this justification holds no rational basis, due to a lack of capability to clarify or demonstrate it. However, Dworkin critiques this counter-argument, emphasising that “it does not follow from the fact that a statement cannot be proven that it is not true” (Dworkin, 1976, p.81). Dworkin is correct, an absence of demonstrability cannot be conflated with an absence of existence, but, this distinction holds no academic weight. For, as Macintyre notes, Dworkin’s argument can be applied to justify the existence of “witches and unicorns” (Macintyre, 1980, p.69). Even if one concedes that a natural right or a unicorn could exist, proving it is impossible, which ensures that they are asserted as self-evident by Kant, Locke, Griffin and Donnelly. 

Cohen contended that ‘bullshit’ in academia stems from an argument holding “unclarifiable unclarity,” that is, lacking clarity due to an inability for clarification (Cohen, 2013, p.4). This reliance on self-evidence renders the liberal ontology of natural rights as incapable of justifying the implementation of human rights, due to reliance on self-evidence rendering them a phenomenon that is impossible to clarify or demonstrate, ensuring defences of them are ‘Cohen-bullshit’. The Cohen-bullshit of liberal ontology is debilitating to human rights’ emancipatory potential in two ways. First, it shows human rights are not self-evidently emancipatory due to upholding the liberal natural rights of mankind, with the illegitimacy of this liberal ontology ensuring human rights lack a concrete justification. This forms the basis for our second point, for, utilising the liberal ontology of natural rights “as if it could provide us with a rational criterion is to resort to fiction” (Macintyre, 1981, p.70). This is critically debilitating to the emancipatory potential of human rights when combined with the knowledge that UN Declaration acts “as though such documents are the final truth, [implying] that questioning its doctrine is perverse and unwelcome,” unearthing a distinct purpose to commit Frankfurt-bullshit (Mutua, 2008, p.30). Frankfurt-bullshit is a desire to persuade regardless of the truth, and the process of the human rights regime utilising Cohen-bullshit argumentation as a means of justifying and presenting substantive liberal principles as incontestable morality is Frankfurt-bullshit (Frankfurt, 2005, p.19). This Frankfurt-bullshit excavates human rights as a project concerned with persuasion, rather than truth, allowing for it to be conceived of under the Marxist theories of cultural hegemony and a tool in the reproduction of the ruling ideology, which implies that human rights’ liberalism renders the project’s means as inherently coercive, which is the opposite of emancipation. 

Gramsci’s theory of ‘cultural hegemony’ notes the capability of the ruling class to enforce their worldview as the dominant worldview, under which its participants perceive the dominant ideology, the status quo, as a given, in spite of the fact that the order will be aligned with ruling class interests (Gramsci, 2014, p.506). This force ensures that this dominant ideology is reproduced, catalysing the “interpellat[ion] of individuals as subjects” of ideology (Althusser, 1970, p.188). These theories are applicable to illuminate the coercive implementation of human rights, demonstrating that its liberal embeddedness renders them a hegemonic and ideological tool. Gramsci viewed the state as the force of cultural hegemony, not institutions. But, as Cox notes, institutions are “an expression of hegemony, [but] cannot be taken as identical to hegemony” (Cox, 1981, p.137). 

Evidence of the UN, the human rights project’s legislative embodiment being hegemonic is found in an examination of its policy. When the UN was formed, its stated primary aim was the maintenance of peace. This is consistent with Cox’s claim that “institutions … initially encourage collective images consistent with the power relations… [of] a particular order” (Cox, 1981, p.136). Yet, since the early 1970s, the UN has decreased its budget for peacekeeping relative to an increasingly dominant emphasis on “economic development and cultural exchange” (Meisler, 2011, pp.167-8). This economic development and cultural exchange involves advocating for access to markets and property rights across the globe via policy levers inclusive of multilateral aid and humanitarian interventions. These values are the same liberal principles which were previously demonstrated to be implicitly embedded in the UN Declaration of Human Rights’ economic rights. Hence, advocating for economic development and cultural exchange serves to advocate for the liberal human rights globally. Thus, the UN, the legislative and enforcing entity of the human rights project “become[s] the anchor for hegemonic strategy since they lend themselves to the universalisation of policy” (Cox, 1981, p.137). 

Therefore, the UN does not enforce human rights via the discourse of justifying its substantive liberal free market principles, or a defence of property rights, but through ‘economic development’ which implicitly legitimises and advocates for these substantive liberal principles. In doing so, the UN not only entrenches the ruling ideology but ensures the reproduction of ideology by deceptively presenting these principles of the prevailing order as a given, unearthing the sinister coercion in human rights which is incompatible with its emancipatory vision. 

Human rights can thus be critiqued on the grounds Horkheimer dismissed authoritarianism, for, they attempt to be “commands … [which attempt to] dispossess man of his own conscience” (Horkheimer, 1993, p.86). Because, the implicit advocating of these liberal freedoms and globalised spread of them “become[s] a command to conform to the social order based on commodity exchange, to the legal forms that rule it, the representations that justify it, and the practices they call for” (Bidet, 1970, p.27). This is critically undermining to human rights’ emancipatory potential because the coercive ideological interpellation of individuals is intrinsic to human rights’ adoption. For, the subject of ideology can “enjoy his symptom only as its logic escapes him – the measure of the success of its interpretation is precisely its dissolution” (Zizek, 1989, p.21). In other words, the success of liberal human rights’ implementation hinges on coercion because the concession of rights as principles rather than natural in turn concedes that human rights are principles as opposed to rights.  Contrary to being emancipatory, the liberal principles embedded in human rights ensure its coercion as the regime must necessarily present these liberal values as the incontestable rights of man based on the Cohen-bullshit of the liberal ontology of natural rights.  Liberal human rights which assert the validity of property rights and individual liberties to represent oneself on markets inhibits one the individual liberty to disagree with this form of freedom. Thus, liberalism in human rights is undermined by its implementation, which is, as Gramsci notes, “bureaucra[tic] … crystallization of the leading personnel which exercises coercive power, and at a certain point becomes a caste” (Gramsci, 2014, p.246). 

However, criticism of this reasoning, like Botting, claim that “human rights may be unicorns, but they can fight wicked witches” (Botting, 2016, p.65). This implies that the focus on coercive means overlooks the emancipatory potential in human rights’ outcomes. Moreover, Beitz dismisses natural rights, but upholds their ability for “remedying injustice” (Beitz, 2003, p.38). However, while “a means can be justified only by its end … the end in its turn needs to be justified” (Trotsky, 1938). Thus, the response to these critiques is to counter them by extending the argument, contending that the ‘ends’ of human rights that Beitz and Botting hail are not emancipatory, and that the freedoms offered by liberal economic rights are barriers to human emancipation, rather than the guarantor and embodiment of it. 

Liberalism rendering human rights untenable in its ends 

Charvet and Kaczynska-Nay claim that if granted liberal rights, “human beings…are able to take major decisions for themselves [and] it [is] wrong to subject them to the coercive authority of others” (Charvet and Kaczynska-Nay, 2008, p.317). Yet, human rights are a ‘coercive authority’. To illustrate this, human rights are rights to non-interference, which view emancipation as found in our restraints from one another, rather than in our relationships with others. Marx expands, suggesting “none of the so-called rights of man … go beyond egoistic man; an individual withdrawn into himself, into the confines of his private interests and separated from the community” (Marx, 1844). Indeed, ‘lives, liberties and estates’ are means for pursuing private economic interest, which illuminates a paradox in that for those without capital, these liberal freedoms granted under human rights allow them to sell their labour ‘freely’, but in the process, loses their freedom because, as Zizek illuminates, “the real content of this free act of sale is the worker’s enslavement to capital” (Zizek, 1989, p.21). These liberal rights are bourgeois rights, which reflect the interests of the dominant class, ensuring human rights are exposed as coercive not only in their means, but the freedoms themselves are paradoxically coercive. Indeed, “every ideological universal” including human rights to individual liberty, self-determination and property rights “are false as it necessarily includes a specific case which breaks its unity, lays open its falsity” (Zizek ,1989, p.21). Hence, liberalism’s principles are both integral to human rights and incompatible with emancipation due to its freedoms paradoxically containing barriers to freedom and emancipation.

Charvet counters that those without capital are not enslaved by it because “liberalism protects … the freedom to pursue excellence” (Charvet and Kaczynska-Nay, 2008, p.317). Yet, this claim implies that excellence is achieved through becoming bourgeois, exhuming their faulty definition of emancipation, catalysing further emancipatory issues with liberal human rights. Because, insisting that liberal human rights ensure emancipation through giving citizens aspirations to hold capital assumes the belief that “by abolishing [their] existence as bourgeois, you abolish [their] existence as an individual” (Marx, 1977, p.101). Indeed, for Charvet and Kaczynska-Nay, becoming bourgeois is emancipation’s end, with liberal human rights providing the framework. Therefore, they believe themselves to be “an individual only insofar as he is bourgeois” (Marx, 1977, p.101). By hailing liberal, bourgeois rights to property, individual liberty and self-determination as the embodiment of individuality, Charvet and Kaczynska-Nay tacitly deploy the ontology of natural rights refuted earlier, and consequently, hold no rational justification. Indeed, this identification of private property as the abstract embodiment of the emancipation of individuality, neglects that it is Lockean principles are, as Marx notes, “social relation[s] corresponding to a definite stage of production,” namely capitalism, and could only be considered individual “so long as they have not become fetters of the existing productive forces” (Marx, 1977, p.102).

Moreover, to emphasise this critique whilst accentuating human rights’ liberal freedoms as coercive, Charvet and Kaczynska-Nay neglect that the coercive enslavement to capital is not constrained to workers, but also encompasses the bourgeoisie due to the competitive nature of capitalist markets ensuring “most of the surplus value squeezed out of the workers is not consumed … [but] is reinvested in further production” (Callinicos, 2012, p.127). The bourgeoisie are enslaved into a cycle of continuous production of capital accumulation for its own sake, becoming cogs in the reproduction of the capitalist relations of production, yet Charvet and Kaczynska-Nay hold this as the pinnacle of excellence obtainable through liberal freedoms. Hence, human rights’ liberalism does not lead to emancipatory ends for either bourgeois or proletarians, and therefore cannot reward excellence. 

Hence, the final task is to demonstrate that the above ensures liberalism renders human rights entirely incapable of emancipation, a contention subject to criticism by defenders and critics of rights alike. Kolakowski criticises the employment of Marx to disregard human rights’ capacity for emancipation, arguing that “although Marx despised bourgeois rights, he never argued it did not matter whether those rights were valid in bourgeois society” (Kolakowski, 1983, p.85). Yet, bourgeois rights can only be defended within bourgeois society if two assumptions are held. First, that bourgeois rights, despite their flaws, improve the livelihoods of citizens within bourgeois society. Second, one must also assume the presence of bourgeois rights does not act as a barrier to greater emancipation. Yet, Marx proclaimed that “in reality it is a question of revolutionizing the existing world, of practically attacking and changing existing things” (Marx, 1977, p.62). Thus, if Kolakowski’s reading of Marx is correct, Marx was contradicting his own aims, overlooking bourgeois rights as the antithesis to revolutionary, emancipatory change. 

The presence of bourgeois rights which improve lives in bourgeois society, simultaneously act to ensure that bourgeois society is maintained and legitimised, rendering human rights untenable as an emancipatory project to an absolute extent. Mutua, whilst recognising the limitations of human rights’ liberalism, objects, claiming this view is “an abdication [which] … seek[s] to paralyze ourselves intellectually, so we have a rational excuse for doing nothing … this is cowardly [and] nihilistic” (Mutua, 2007, p.19). Yet, Mutua does not justify that this nihilism is misdirected, and suffers from a phenomena Horkheimer noted of the “self-imposed obligation to arrive at a cheerful conclusion … [and] effort to meet this obligation is one reason why a positive conclusion is impossible” (Horkheimer, 1993, p.87). Because, reconstructionist arguments like Mutua’s insist on trying to remedy the symptoms of the disease in the short run, proposing that African countries require “direct foreign investment, aid, and better trade terms” but in the process, Mutua’s proposals reinforce the liberal principles of human rights and serve to aggravate the structural issues (Mutua, 2008, p.37). Mutua is ‘utopian’ because reconstructionists strive for a society which operates “without the point of exception functioning as its internal negation” (Zizek, 1989, p.23). While one can sympathise with human rights’ utility in improving lives in bourgeois society, this cannot be conflated with being emancipatory. Because, these rights, to quote Wilde, are akin to “slave-owners … who were kind to their slaves, and so prevented the horror of the system being realised by those who suffered from it, and understood by those who contemplated it” (Wilde, 1891). 

As clarified earlier, if the end of human rights is to justify as emancipatory to any extent it must, as Trotsky notes, “increase the power of man over nature and … [abolish] the power of man over man” (Trotsky, 1938). Due to its liberalism, human rights fail to this end. While they hold a capacity to dilute problems of the structural issue, they remain a barrier to emancipation courtesy of reinforcing its liberalism, and the coercive practices and paradoxical freedoms it offers – an issue which can only be sufficiently overcome by abandoning the project by reconfiguring the world order. This sounds utopian, but in a different manner to Mutua, because the analysis suggests this is the only sufficient solution, having demonstrated the incompatibility of human rights’ intrinsic liberalism with achieving emancipatory ends. In the human rights projects’ attempts to partially alleviate the issues derived from the paradoxical liberal freedoms offered by it, those liberal, paradoxical freedoms continue to be legitimised and reinforced, ensuring liberalism entirely undermines the emancipatory potential of human rights.

Conclusion

Human rights are intrinsically liberal, substantively and ontologically, and this liberalism entirely undermines the emancipatory potential of human rights. First, it was demonstrated that human rights are liberal as they share the ontological assumption of natural rights and implicitly advocate for the substantive Lockean principles of ‘lives, liberties and estates’ courtesy of its problem-solving methodology which assumes the legitimacy of the prevailing order characterised by a capitalism as the framework for action. This rendered its liberal features as eternal to the corpus’ identity. 

Secondly, it was established that the human rights regime’s justificatory base is reliant on a defence of the liberal ontology of natural rights, a phenomenon which was categorised as Cohen-bullshit due to lack of demonstrability and clarity. This demonstrated that the human rights regime’s liberalism renders it incapable of rationally justifying its emancipatory capabilities. Moreover, this Cohen-bullshit base was demonstrated to hold a distinct purpose to present liberal principles as incontestable morality which unearthed a deception in human rights’ implementation which allowed for it to be conceptualised under Gramsci’s notion of cultural hegemony and Althusser’s ideological apparatus. Thereby, it was demonstrated that human rights’ liberalism renders it a coercive project in its means which interpellates individuals into subjects of ideology, which cannot be defined as emancipatory. 

Finally, this was accentuated by arguing that the Lockean liberal principles in human rights hold a misguided conception of emancipation, viewing emancipation as found in our restraints from one another by enforcing non-interference, rather than in our relations with others. Furthermore, in addition to the aforementioned coercion in its means, the liberal principles of ‘lives, liberties and estates’ are also  coercive in their ends because of the paradoxical freedoms it offers through individual liberty and property rights, which come into antagonistic conflict with the capitalist mode of production by seeking universality without its internal negation. This ensures that the free act of selling labour removes freedom through enslavement to capital. Thus, the emancipatory potential of rights is entirely undermined by its liberalism, because enforcing these bourgeois, economic rights will reproduce these coercive relations of production, exacerbating the structural issues rather than emancipating individuals from them. 

Bibliography

Althusser, L. 2014. On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses. London: Verso

Beitz, C. 2003. “What human rights mean,” Daedalus, 132(1), pp. 36-46

Bidet, J. 2014. in Althusser, L. “On the Reproduction of Capitalism: Ideology and Ideological State Apparatuses.” London: Verso

Botting, E. 2016. “Women’s human rights may be unicorns, but they can fight wicked witches”, Journal of International Political Theory, 12(1) pp. 58-6

Callinicos, A. 2012. The Revolutionary Ideas of Karl Marx, Haymarket 

Charvet, J. and Kaczynska-Nay, E. 2008. “The Liberal Project and human rights: the theory and practice of a new world order”, Cambridge: Cambridge University Press

Cohen, G. A. 2013. “Deeper into Bullshit.”  HCC Learning Web. http://learning.hccs.edu/faculty/robert.tierney/phil1301-6/bullshit/g.a.-cohen-deeper-into-bullshit/view/ Accessed 3rd January 2018 

Cox, R. 1981. “Social Forces, States and World Orders: Beyond International Relations Theory”, Millennium: Journal of International Studies, 10(2), pp. 126-155

Donnelly, J. 2007. “The Relative Universality of Human Rights”, Human Rights Quarterly29(2), pp.281-306

Dworkin, R. 1976. Taking Rights Seriously. Cambridge: Harvard University Press

Frankfurt, H. 2005. On Bullshit. New Jersey: Princeton University Press

Gramsci, A. 2014. Selections from the Prison Notebooks. New York: International Publishers

Griffin, J. 2001. “Discrepancies between the Best Philosophical Account of Human Rights and the International Law of Human Rights.” Proceedings of the Aristotelian Society, Volume 101, Issue 1, pp. 1–28

Horkheimer, M. 1993 “Reason Against Itself: Some Remarks on Enlightenment”, Theory, Culture & Society10, London: SAGE 

Kant, I. 1964. “Groundwork of the Metaphysics of Morals”, New York: Harper and Row

Kolakowski, L. 1983. “Marxism and Human Rights.” Daedalus112(4), Human Rights pp. 81-92

Locke, J. 1988. Two Treatises of Government. Cambridge: Cambridge University Press

Macintyre, A. 1981. After Virtue, London: Gerald Duckworth & Co 

Marx, K. 1843. On the Jewish Question. Marxists Internet Archive: https://www.marxists.org/archive/marx/works/1844/jewish-question/, Accessed 5th December 2017

Marx, K. 1977. The German Ideology. London: Lawrence and Wishart

Meisler, S. 2011. United Nations: A History. Grove Press

Mutua, M. 2007. Human Rights in Africa: The Limited Promise of Liberalism.” African Studies Review51(1), pp. 17-39

Roth, B. 2004. “Retrieving Marx for the Human Rights Project”, Leiden Journal of International Law, 17, pp. 31-66

Trotsky, L. 1938. “Their Morals and Ours.” Marxists Internet Archive: https://www.marxists.org/archive/trotsky/1938/morals/morals.htm Accessed 29th December

Wilde, O. 1891. “The Soul of Man Under Socialism.” Marxists Internet Archive. https://www.marxists.org/reference/archive/wilde-oscar/soul-man/ Accessed 5th December 2017

Wolff, J. 2006. An Introduction to Political Philosophy. Oxford: Oxford University Press

Zizek, S. 1989. The Sublime Object of Ideology. London: Verso