Constructing an international legal order under the shadow of colonial domination

Abstract

It is often pointed out that African states were early and eager supporters of the international criminal justice regime. Yet the current international legal order is starkly different from the one African states had envisioned. By revisiting the archives of two pivotal moments in the establishment of the current international legal order—the work of the International Legal Commission (ILC) in drafting the Code of Crimes against the Peace and Security of Mankind and negotiations that led to the draft statute of the ICC—we find that Africa had proposed a different version of the international legal order. I contend that the visions African states held were reflective of their experience of colonial subjugation. Therefore, the Draft Code and establishment of the ICC were meant to provide an avenue for redress, amid a deep mistrust between Africa and “international law.” This article offers a revisionist historiography of the international criminal justice regime, which “writes Africa in,” and presents Africans as challengers and advocates of norms and a legal architecture borne out their experience of global marginality and the shadow of colonial domination.

Acknowledgments

I’m grateful to Kelly-Jo Bluen, Waleed Hazbun, Austin Schutz, and M. P. Broache for very helpful comments on earlier drafts of this manuscript, and to this journal’s anonymous reviewers. The arguments in this article were presented at the University of North Carolina-Greensboro, Cambridge University, Cornell University, and the University of Ottawa. My deep gratitude to the audiences for the comments and feedback.

Notes

1 Speaking of the international legal order, the focus of this article is specifically on international criminal law.

2 For instance, during the Libyan crisis, the African Union (AU) argued that “[the warrant] concerning Colonel Qadhafi seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya” (see African Union, 2011, para. 6).

3 After the Court issued a warrant for the arrest of President Bashir of Sudan in 2009, the AU justified its decision not to cooperate with the ICC in what it called the “publicity-seeking approach of the ICC Prosecutor” and asked for deferment of Bashir’s indictment (African Union, 2009a). The AU later reiterated its “concern on the politicization and misuse of indictments against African leaders by ICC” and called on the UN Security Council to defer the Kenya and Sudan cases (African Union, 2009b).

4 It is worth noting, however, that amid the AU/ICC rift, some African states, such as Botswana and Senegal, have remained strong supporters of the Court. Other countries—such as Seychelles, Tunisia, Cape Verde, and Côte d’Ivoire—have recently acceded to the Rome Statute.

5 Among African states, only Burundi effectively withdrew from the ICC, however (see Ba, 2020, pp. 148–154).

6 Note that the crime of genocide was not codified until 1948.

7 The formula “from Nuremberg to The Hague” is also common parlance in international justice scholarship and teaching.

8 The more extensive list of crimes in the African Criminal Court are “(1) genocide, (2) crimes against humanity, (3) war crimes, (4) the crime of unconstitutional change of government, (5) piracy, (6) terrorism, (7) mercenarism, (8) corruption, (9) money laundering, (10) trafficking in persons, (11) trafficking in drugs, (12) trafficking in hazardous wastes, (13) illicit exploitation of natural resources, and (14) the crime of aggression” (see Jalloh, 2019, p. 238).

9 Thiam was a member of the ILC from 1970 until his death in 1999.

10 At the UN General Assembly, Thiam said, “Le Bandoeng économique que nous proposons devra permettre de dégager une nouvelle charte économique du monde. Nous nous y rendrons non point pour présenter encore un cahier de doléances, mais pour exiger et revendiquer ce qui nous est dû, plus exactement ce qui est dû à l’homme tout court, quelles que soient sa nationalité, sa race ou sa religion. Il s’agira de définir une nouvelle attitude révolutionnaire qui permettra, en partant des sombres réalités d’aujourd’hui, de déboucher sur des réalités plus conformes à l’éthique des Nations Unies. C’est dire que le Bandoeng que nous proposons ne sera pas le Bandoeng de la haine; il sera le Bandoeng de la justice, de l’équilibre et de la raison; il sera le Bandoeng placé sous le signe de l’homme” (Thiam, 1967, pp. 19–20).

11 See also Thiam, speech before the UNSC, in which, along with his Zambian and Algerian counterparts, he defended the OAU’s position regarding the Rhodesia question (Thiam, 1966b).

12 See, for instance, the United Kingdom and United States positions (UN ILC, 1984, p. 30).

13 The provisions in the draft statute, however, represented divergent views. Whereas some states wanted the tribunal to be a UN organ, others advocated for another type of link or cooperation between the court and the United Nations. Some provisions in the statute were written in brackets, indicating that agreement was not reached, and the Working Group was seeking further guidance from the UN General Assembly.

14 See the United Nations Diplomatic Conference of the Plenipotentiaries on the Establishment of the International Criminal Court, Rome, June 15–July 17, 1998 (https://legal.un.org/diplomaticconferences/1998_icc/).

15 For a detailed history of the negotiations and the drafting of the Rome Statute, see, for instance, Bassiouni (2005), Benedetti et al. (2013), Goodliffe and Hawkins (2009), Kirsch and Holmes (1999).

16 In Rome, the like-minded group, chaired by Canada, comprised more than 60 states, including a large number of European states and many African, Caribbean, and Latin American states (Schabas 2020, p. 11).

17 See, for instance, Egypt, in UNGA Sixth Committee (1995) and Malawi in UNGA, Sixth Committee (1996a).

18 See Libya in UNGA Sixth Committee (1995), Angola, in UNGA Sixth Committee (1996e), and Malawi in UNGA Sixth Committee (1997).

19 Dakar Declaration for the Establishment of the International Criminal Court (February 6, 1998). The Dakar Declaration was also adopted by the Assembly of Heads of State and Government of the OAU at its meeting in Ouagadougou in June 1998.

20 United Nations (1998b). Draft Report Rules of Procedure for the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. UN Doc. A/CONF.183/2/Add.2, 14 April 1998, at Rule 34.

21 The Statute was adopted by an overwhelming majority of 120 votes in favor, with seven states opposed.

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Oumar Ba

Oumar Ba is an assistant professor in the Department of Government at Cornell University. His primary areas of research focus on law, violence, race, humanity and world order(s) in global politics.