Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], available online. عربي, 中文, English, Français, Ελληνικά, Русский, Español.

• Article 17: Issues of admissiblity

• Article 21: Applicable law

Human Rights Watch, Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts (May 31, 2011). Available online.

Kate Allan, Prosecution and Peace: A Role for Amnesty before the ICC, 39 Denv. J. Int’l L. & Pol’y 239 (Jan. 2011). Available online

Allan discusses whether a state’s desire to grant amnesty to perpetrators should be considered an acceptable resolution to a conflict for purposes of complementarity. She concludes that this would be contrary to the interests that led states to ratify the Rome Statute.

Tim Allen, The International Criminal Court and the Invention of Traditional Justice in Northern Uganda, 107 Politique Africaine 147 (Mar. 2007). Available online

Allen goes into detail as to the Western and Christian roots of the myth of traditional justice in Uganda.

Mohamed Elewa Badar, Islamic Law (Shari’a) and the Jurisdiction of the International Criminal Court, 24 Leiden J. Int’l L. 411 (Jun. 2011). Available online, archived, doi.

Badar criticizes the Western focus of International Criminal Legal Theory and the ICC. He demonstrates where principles of Islamic law could be taken into account and incorporated by the ICC. He discusses how Islamic states are skeptical of the ICC and its reliance on western systems of justice, but argues that Islamic law actually aligns with principles of the ICC.

Erin K. Baines, The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda, 1 IJTJ 91 (Mar. 1, 2007). Available online, doi.

Baines discusses the reconciliation challenges in Northern Uganda. Local leaders advocate in favor of adopting local justice and reconciliation mechanisms to address the internal conflict. Baines addresses both the limitations and the potential of such mechanisms. For instance, mato oput is performed between two clans, but, given the scale of the atrocities committed during the conflict, it is hard to know which clan would perform it with whom and who should perform the diplomatic shuttle work. Baines also argues that while local laws exist to address some crimes, they do not generally extend to those extraordinary crimes that are committed during conflict. The local process might also not be representative of all of the Acholi people. Women are not involved in major decision-making in the mato oput process.

Eric D. Blumenson, The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court, 44 Colum. J. Transnat’l L. 801 (2006). Available online

Blumenson looks at the “peace versus justice” problem confronted by the ICC, specifically addressing the question of whether, if a state grants amnesty to a criminal to achieve peace, the ICC should still be able to bring charges. Blumenson argues that institutions such as the South African Truth and Reconciliation Commission should also be recognized as a human rights advance, and, in certain circumstances, a necessary and morally acceptable option for the ICC.

James L. Cavallaro & Jamie O’Connell, When Prosecution is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions, 45 Yale J. Int’l L. 1 (2020). Available online, archived

While the ICC has not been the success many hoped it would be, there are other models of success in the international sphere in the regional human rights courts: the European Court of Human Rights, the Inter-American Commission on Human Rights, the African Commission on Human and Peoples’ Rights, and the African Court on Human and People’s Rights. When it comes to deterrence effect and accountability, these bodies have used a variety of tools to successfully pressure governments to halt abuses and hold criminals accountable.

Masaji Chiba, Legal Pluralism in Sri Lankan Society: Toward a General Theory of Non-Western Law, 25 JLP 197 (1993). Paywall, doi

Summary of an extensive legal research project embarked on in the 1980s that reviewed Sri Lankan customary law. Chiba asserts that Sri Lanka has the “most complicated history of transplantation of foreign law” as contrasted with its indigenous law.

Sneha Dawda, To What Extent Does International Law Reflect the Sovereign Will of States?, E-Int’l Rel. (Apr. 1, 2016). Available online

Dawda argues that the Western-centric notion of sovereignty and colonial discourse provides a coherent explanation to why international law reflects global inequalities and how international law reflects the sovereign will of states to a large extent, but significantly fails to reflect the will of post-colonial states.

Shahrzad Fouladvand, Complementarity and Cultural Sensitivity: Decision-making by the International Criminal Court Prosecutor in the Darfur Situation, 14 Int’l Crim. L. Rev. 1028 (Oct. 2014). Paywall, doi, earlier version available online.

Fouladvand examines the manner in which the ICC and its European-influenced legal traditions come into conflict with non-European concepts of justice. She argues, through the example of the situation in Darfur, that Islamic and shari’a law, as well as local culture, are in conflict with the ICC’s complementarity regime. She argues that the ICC must adapt to become more acceptable to all States Parties.

Alexandra V. Huneeus, International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts, 107 Am. J. Int’l L. 1 (Jan. 2013). Available online, archived, doi

Huneeus argues that the regional rights systems are developing quasi-criminal review, a practice that is accomplishing some of the goals of the international criminal justice system, including fostering prosecution of criminal acts that are international crimes; and as practiced by the regional rights systems, quasi-criminal review presents a complement and, in certain situations, an alternative to the work of the current international and hybrid tribunals. These courts foster local processes of justice, memory, and justice reforms. Huneeus states that these systems are able to pair restorative justice and victim-centered remedies with retributive justice.

Linda M. Keller, Achieving Peace With Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 (2008). Available online

Keller begins by explaining how modern conflicts today will end with peace deals that include great compromises. She then discusses the conflict in Uganda and that the Lord’s Resistance Army wants a peace deal, in exchange for immunity from ICC prosecution. Keller highlights the peace vs. justice debate. Should a peace deal with immunity be signed, or should the ICC prosecute zealously and risk more bloodshed?)

Farhad Malekian, The Homogeneity of International Criminal Court with Islamic Jurisprudence, 9 Int’l Crim. L. Rev. 595 (Jan. 2009). Paywall, doi

(Malekian looks into the basic principles of the Rome Statute and examines whether similar principles can also be found within the Islamic criminal system. Malekian indicates the ability of both systems to function together and increase practical international criminal justice. He argues that cooperation and accommodation between the two systems, in order to modify, adapt, adjust or alter laws, will improve global justice. Prevention of international crimes will not be achieved solely through Islamic or ICC jurisprudence alone.

Samuel O. Manteaw, John Mensah Sarbah and African Value Systems in Legal Education, 27 UG L.J. 58 (2014). Paywall

Manteaw explores customary law and practices in various communities in Ghana; critiques Africa’s role as an onlooker, rather than participant, in shaping systems; and suggests strategies for incorporating core African value systems into the “current global legal order”.

Martha Minow, Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court, 60 Harv. Int’l L.J. 1 (2019). Available online

Minow addresses the question of whether the ICC should treat truth commissions, grants of amnesty, and other alternatives to prosecution as satisfying the predicate of national action required to deprive the ICC of authority under the Rome Statute’s complementarity provision. She analyzes the debates around alternatives to trials in fulfilling complementarity and advances recognition of some domestic restorative justice processes that meet specified criteria. Specifically, she concludes that certain domestic processes—those that provide for gathering of people’s experiences, give voice to victims, provide individualized accountability with opportunities to be heard for those charged with wrongdoing, and produce public reports—deserve to be considered sufficient to deprive the ICC of its power under the complementarity provision.

Uma Narayan, What Do Rights Have to Do With It?: Reflections on What Distinguishes “Traditional Nonwestern” Frameworks From Contemporary Rights-Based Systems, 24 J. Soc. Phil. 186 (Sep. 1993). Paywall, doi.

Ray Nickson & John Braithwaite, Deeper, Broader, Longer Transnational Justice, 11 Eur. J. of Crim. 445 (Jul. 1, 2014). Available online, doi.

The authors advocate the the need to “deepen, broaden, and widen/lengthen” the ICC’s conception of justice in order to better facilitate a form of justice that is acceptable to the culture or people affected. There are a number of alternatives to justice besides the Western punishment/adversarial-focused system, and attention to non-western traditions will have the effect of making the ICC more impactful.

Motoo Noguchi, Criminal Justice in Asia and Japan and the International Criminal Court, 6 Int’l Crim. L. Rev. 585 (Jan. 2006). Paywall, doi.

Emilia Justyna Powell & Sara McLaughlin Mitchell, The Creation and Expansion of the International Criminal Court: A Legal Explanation, Midwest Pol. Sci. Ass’n Conf. (Apr. 2008). Available online, archived, doi.

The authors argue that the structure of a state’s legal system affects the state’s interest in being a party to the ICC. They find that states that have common law or civil law structures were more likely to ratify the Rome Statute because the court is a combination of these systems. States with different systems, like Islamic law or mixed law, were less likely to ratify, because their systems are very different from the ICC.

Joanna R. Quinn, Presentation to Canadian Political Science Association Annual Meeting, Customary Mechanisms and the International Criminal Court: The Case of Uganda (Working Paper, Jun. 3, 2006). Available online

Quinn begins by talking about the situation in Uganda. She discusses a 2000 law that gives amnesty to rebels who give up fighting. However, less clear is how the ICC will deal with those granted amnesty. There is a contradiction between the Amnesty Act, seen by many as an alternative to punishment, and the investigations and subsequent punishment by the ICC. Quinn explains how Uganda has a rich tradition of customary and traditional forms of justice. Traditional practices have been used to deal with conflict at every level of Ugandan society, within groups, communities, clans, and neighborhoods. Quinn also points out problems with traditional forms of justice, including empowering certain chiefs over others. She then discusses how traditional forms of justice can fit into the present Rome Statute.

Theresa Reinold, Constitutionalization? Whose Constitutionalization? Africa’s Ambivalent Engagement with the International Criminal Court, 10 ICON 1076 (Oct. 3, 2012). Available online, doi

Reinold contends that the states at the periphery view constitutionalism as a Western hegemony, only striving to condense Western ideals and impose it upon the rest of the world. Challenges of a global constitution are already tenuous given the strained relationship between the African Union and the ICC. By understanding the refusal of the African Union to interact with the system, we can gain greater understanding of solutions that allow incorporation of non-Western traditions and ideals.

Christopher R. Rossi, Hauntings, Hegemony, and the Threatened African Exodus from the International Criminal Court, 40 Hum. Rts. Q. 369 (2018). Available online, doi.

Rossi discusses how the ICC has faced criticism in part for its apparent bias against African leaders and its insistence on western colonial ideas of accountability.

Vivien Stern, An Alternative Vision: Criminal Justice Developments in Non-Western Countries, 28 Soc. Just. 88 (2001). Paywall

Examining the disturbing trends of over-incarceration in Western nations, Stern describes how some governments, though captivated by market ideology, have rejected the western model of “mega-prisons” and the policies designed to fill them. She also argues that the community service schemes seen in some African countries have much to teach the west about the relationships between communities and penal sanctions.

Leigh Swigart, Linguistic and Cultural Diversity in International Criminal Justice: Toward Bridging the Divide, 48 UOP L. Rev. 197 (Jan. 2017). Available online

Swigart explores the difficulties that different cultures, languages, and world-views have with international legal proceedings by specifically looking at the ICTY, ICTR, the Special Court for Sierra Leone, and the ICC. For example, at the ICTR, most of the testimony was given in the Kinyarwanda language, even though no judge spoke it or was even from Rwanda. Thus, it can be imperative to develop legal terminology in languages or cultures that aren’t used to Western legal proceedings. The problem easily emerges when Western practices of international criminal justice do not fit into the mold of non-Western cultural understandings.

Hiroyuki Tosa, Global Constitutional Order and the Deviant Other: Reflections on the Dualistic Nature of the ICC Process, 18 IRAP 45 (Dec. 15, 2017). Available online, doi.

Tosa discusses how “universal” liberal values, that are now considered the core of a global constitutional order, are maintained through the exclusion of “non-western deviant others.” Tosa points out the existence of a dual structure in the current global form of law, which is an asymmetrical relation between the Global North and the Global South in context of the socioeconomic positions within the capitalist world system. He argues that “the ICC is being employed merely as an instrument to manage and contain the ‘uncivilized’ effects of neoliberal global inequality in accordance with liberal-legalist rhetoric”.

Mark Van Hoecke & Mark Warrington, Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law, 47 ICLQ 495 (Jul. 1998). Available online, doi.

Christie S. Warren, Toolkit or Tinderbox? When Legal Systems Interface Conflict, 53 Cornell Int’l L.J. 297 (2020). Available online, doi.

Warren proposes a next stage in post-conflict reconstruction processes through the use of a “toolkit approach” that synthesizes a variety of legal procedures for a more cohesive legal outcome at the global level.

Dana Zartner, The Culture of Law: Understanding the Influence of Legal Tradition on Transitional Justice in Post-Conflict Societies, 22 Ind. Int’l & Comp. L. Rev. 297 (Jan. 1, 2012). Available online

Using Uganda as a case study, Zartner ultimately argues that the main focus should be on what the victims truly desire. In many places around the world, this is not necessarily the Western conception of justice; in Uganda, only 3% of survey respondents prioritized “justice” after conflict. Zartner argues that the ICC and western justice systems can be a useful tool when supported by the people involved but, if the goal is peace-building, they should not be used.

Tim Allen, Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda, in Courting Conflict? Justice, Peace and the ICC in Africa 47 (Nicholas Waddell & Phil Clark eds., Mar. 2008). Available online

Western focus on mato oput, and a select number of other purported traditional justice mechanisms, is critiqued as ill-informed, stereotyped, and exclusionary.

Mohamed Elewa Badar, Is There a Place for Islamic Law Within the Applicable Law of the International Criminal Court?, in Islam and International Criminal Law and Justice, 2 Nuremberg Academy Series 201 (Tallyn Gray ed., 2018). Available online.

Tim Kelsall, International Criminal Justice and Non-Western Cultures in Oxford Transitional Justice Research: Debating International Justice in Africa 17 (Phil Clark ed., Apr. 12, 2010). Available online

“Although international criminal law strives to borrow from and legitimate itself via a plurality of legal systems, the fact remains that its basic doctrines are Western in origin.” This causes problems in societies where this western conception of law does not fit their sociological patterns. One key example of this is the focus of the court on the doctrines of (1) “superior responsibility” which does not fit well in many African societies where they do not often have well-conceived of hierarchies; (2) procedural jurisprudence which is inherently western and does not take ito account many of the practical struggles of things like transporting witnesses to the courts in Africa; (3) the normative crimes listed and the disconnect they have to small rural societies. This problem is further exacerbated by the ICC’s focus on Africa.

Siraj Khan, Arab and Islamic States’ Practice: The Sharíʿah Clause and Its Effects on the Implementation of the Rome Statute of the International Criminal Court, in Islam and International Criminal Law and Justice, 2 Nuremberg Academy Series 145 (Tallyn Gray ed., Nov. 16, 2018). Available online

Khan looks at how Islamic law complicates adaptation and adherence to the ICC and, subsequently, how Muslim and Arab traditions and perspectives are excluded from discussions on drafting international law.

Leigh Swigart, Now You See It, Now You Don’t: Culture at the International Criminal Court, in Intersections of Law and Culture at the International Criminal Court 14 (Julie Fraser & Brianne McGonigle Leyh eds., Oct. 2020). Available online

Swigart discusses the importance of language and culture in justice. The ICC should apply more resources to acquire multilingual and multicultural staff, and should prioritize understanding different cultures and world views among its personnel rather than solely focusing upon their legal knowledge.

Mark Van Hoecke & Werner Krawietz, Western and Non-Western Legal Cultures, in Rechttheorie 197 (Werner Krawietz ed., 2002). Paywall

The authors distinguish between “legal families” in comparative law, and go on to provide a brief outline of some distinctive elements of Western and other non-Western legal cultures. The authors ground this outline in the societal context of each examined culture.