II. Current System under the Rome Statute

The Rome Statute provides detailed guidelines for the procedures for investigating, charging, trying, and sentencing international crimes and the individuals responsible for them. The Statute also defines the jurisdictional scope of the ICC—which crimes it can prosecute and when it can choose not to do so. The Statute’s language (at least in its English translation) bears resemblance to the legal systems of the Western world, specifically those of the United States. The Statute is indisputably a predominantly Western-influenced system of international law that relies heavily on structures, procedures, and rules akin to those used in America and Europe. For example, the Rome Statute’s description of the ICC’s jurisdiction 2 resembles the American court system’s jurisdictional rules.3 Similarly, the idea of a prosecutor, 4 as it relates to the role within the ICC, has origins in British and colonial systems of law.5 The Rome Statute’s use of the phrase “in the interest of justice”6 is indistinguishable from the same standard in the New York Criminal Procedure “Clayton motion.”7 In this borrowing from Western legal traditions, the Rome Statute, and thus the ICC, prioritize Western ideals of “justice” and retributive methods of accountability, rather than considering conflicts and bad acts more holistically and with regard to larger context. This biased method of prosecuting international crimes in effect perpetuates the inequality and devastation that are a result of Western colonialism by placing additional burden on individuals in regions afflicted by colonialism and punishing them disproportionately for acts that almost certainly would not have occurred but for the colonial regimes’ involvement. The Rome Statute does not provide an explicit method of considering the historical context of the relevant conflict or situation in the investigation, indictment, trial, or sentencing procedures. Neither has the Prosecutor or other relevant actors in the ICC impliedly considered historical context at any stage in the ICC’s system.

There are numerous portions of the current Statute that offer opportunities for consideration of historical or current colonial context. Article 31 of the Statute delineates grounds that justify the exclusion of criminal responsibility for an individual.8 This is an appropriate process in which to implement additional consideration of the larger context surrounding a crime, specifically the context of colonial regimes and their impact on the region. This context could also be considered in the initiation of an investigation,9 confirmation of charges,10 and sentencing stages.11 Regardless of when in the process the analysis of surrounding circumstances occurs, this context must be considered integral to the outcome of the ICC’s prosecution of an individual and grounds for immediate dismissal of such a case.

III. The ICC and Colonialism

The ICC has faced criticism for its disproportionate investigation and prosecution of situations and defendants in Africa.12 Some argue that this is not a result of bias or the use of a system inherently colonial in nature, but rather due to the prevalence of corrupt regimes in the continent and the inability of African nations to resolve matters independently.13 This explanation ignores the history of the “Scramble for Africa” and the “decolonization” of Africa that led to widespread instability and resulting conflicts.14 Without explicit acknowledgment of and accounting for this history and ongoing colonialism and interventionism, the ICC functions as a colonial tool, prosecuting the individuals reeling from the effects of Western greed rather than the original bad actors.15

A. The ICC’s Focus on Africa and non-Western States

The ICC has, thus far, only pursued prosecution for Black and Brown individuals from countries who indisputably face tragedy due to the lasting effects of historical and ongoing colonialism. The ICC has named fifty defendants in total, forty-seven of them from Africa.16 The ICC has a total of seventeen investigations, ten in Africa.17 The ICC has undertaken investigations and preliminary investigations focusing on harms caused by Western powers such as the situation in Afghanistan, although the description of the investigation does not mention the United States and vaguely describes the focus of the investigation as “crimes listed in the Rome Statute allegedly committed in the context of the armed conflict between pro-Government forces and anti-Government forces.”18 The situation in Palestine is also under investigation by the ICC, although the ICC’s website has taken a blatantly neutral stance, declining to identify a single bad actor, rather describing the investigation as focusing on crimes that “were allegedly committed by members of the Israeli Defense Forces, Israeli authorities, Hamas and Palestinian armed groups.”19 Many of the preliminary investigations that suggest the potential for prosecuting individuals from Western powers have been closed following the Prosecutor’s decision not to proceed.20 The ICC has, to this date, only convicted individuals from Africa.21

B. Colonialism’s Impact on Africa

Scholars have confirmed that where conflicts occur, especially in regions such as Africa, Southeast Asia, and the Middle East, a history of colonialism or control by Western or Soviet powers exists.22 For example, one study revealed that a history of British colonialism in a region is positively associated with present-day ethnic conflict.23 Each of the individuals who has been convicted by the ICC or is in ICC custody comes from a region plagued by the devastation of colonialism and the failures of the movement to decolonize Africa—these regions are Mali, Sudan, the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Kenya, and Uganda.24 The conflicts in each of these regions can either be traced back to historical colonialism or explained as the result of present-day colonialism.

1. Mali

The Taureg rebellion in Mali, the conflict surrounding the crimes for which the ICC prosecuted two defendants, has been regarded as the result of ongoing efforts by the French government to colonize and exploit the resources of Mali.25 In fact, the French military remains involved and present in Mali in order to “fight terrorism” but, as reporters suggest, the real reason behind the French military presence is “to protect French economic and geostrategic interests.”26 The French involvement in the region has been named as the primary reason for the conflict.27

2. Sudan

Sudan’s history of colonization by Turco-Egyptian and British regimes left the region economically unstable and conflict-ridden.28 Sudan’s surplus of petroleum reserves have been targeted by Western powers, including the U.S., in recent years.29 The current involvement in the region, without acknowledgement of its colonial history, has brought about ongoing conflict.30 However, rather than prosecute those Western powers for their intervention in and exploitation of the region, individuals who have faced the consequences of such exploitation have been indicted.31

3. Central African Republic

The French colonial rule of the CAR imposed forced labor, conscription and relocation to Congo for construction of a railway, as well as conscription into the French army during World War II.32 However, even after CAR gained independence in 1960, France’s influence did not end.33 The French’s exploitation of the region’s resources, as well as its political influence, continued to cause conflict in the region.34 That conflict, and France’s military intervention in 2013, are critically relevant to the prosecution of four individuals from the CAR.35

4. Democratic Republic of Congo

The Belgian government reigned over the Congo region and granted concessions to private companies in order to extract natural resources from the region, including diamonds, rare minerals, and fossil fuels.36 The abusive colonial regime, as well as the politically motivated decolonization efforts, led to corrupt and unstable governance and ongoing conflict in the region, often related to ethnic tension.37 The current conflicts have been the grounds for the investigation of six individuals from the region.38

5. Kenya

The British colonial history of Kenya was characterized by tribal displacement, forced labor, and “the creation of ethnically exclusive reserves.”39 This history has directly spurred ongoing ethnic violence and political conflict and Kenya and its people remain in an utterly vulnerable position.40 These political and ethnic wars are the grounds for an investigation of five individuals by the ICC,41 including Paul Gicheru who was indicted for conduct relating to the ICC’s proceedings involving other individuals from Kenya.42

6. Uganda

Uganda has been characterized by some of the most devastating and long-lasting conflicts in Africa.43 British colonial rule in Uganda, which brought together multiple independent ethnic groups under a common government, can be identified as a source of the ongoing ethnic conflict in Uganda.44 The ethnic disputes, and actions related to those disputes, are the basis of the ICC’s investigation into Uganda and indictment of one individual from the region.45

In each of these indictments, trials, and sentences, the context of colonialism and interventionism by Western powers has not been considered in either reducing criminal liability or mitigating the sentencing of the individual.

IV. Incorporating these Models into the ICC and the Rome Statute

Given the nature of the purpose of the ICC and its disproportionate prosecution of Black actors from non-Western states that suffer most from the harms of colonialism, the Court’s function and legitimacy cannot be realized without amendment to the Rome Statute in order to require consideration of historical context in the prosecution of crimes. Alternatively, the consideration of larger context can be impliedly read into the current language of the Rome Statute, although this method would rely on the individuals responsible for the various steps outlined in the Rome Statute, such as the Prosecutor and the different committees.

A. Amending the Rome Statute

Amendment of the Rome Statute, while a suggestion many would describe as impractical and not worth consideration, it is an entirely inadequate and perhaps even counterproductive option. Bolstering the legitimacy of a tribunal inherently colonial in nature and impossible to separate from the harms of a Western system of justice likely serves to reduce the chances of the abolition of such a court. There is no amendment to the text of the Statute that would serve to dissolve its roots in interventionism and its favoritism of white Western nations operating under the systems that it itself deems to be legitimate. Even a sweeping overhaul of the Statute, given the procedures necessary to realize any amendment,46 would likely result in the same type of system that provides very convenient loopholes to discriminatory practices and plausible deniability of those practices rooted in ideas of “prosecutorial discretion” and “the interest of justice.”47 Nevertheless, given the purported goals of the Court to “end impunity”48 and achieve “long-term peace, stability and equitable development in post-conflict societies,”49 the international community ought to be able to push the Court towards anti-colonial practices and recognition of the widespread devastation caused by those leaders of the Western world in the pursuit of imperialism often realized through crimes the Court now prosecutes.

In order to achieve this movement, the Court must acknowledge the history of colonialism and ongoing forms of colonialism as they pertain to current ongoing tensions within and between nations. This Comment does not attempt to prove what has been proven by many legal scholars before—that many modern-day conflicts, especially those conflicts implicated in ICC investigations and prosecutions, have a non-splintered, traceable root in colonialism.50 Rather, this comment assumes consensus around that proven contention and recommends it be given weight in the procedures delineated in the Rome Statute. One potential method of acknowledgement can be achieved through the mere consideration of that context, and other relevant historical context, in each step of the ICC’s legal process. This ideally would occur through amendment of the text of the Statute to require such consideration in each investigation, charge, trial, and sentencing. Consideration not simply in an acknowledgement of the context but as a mandatory factor in determining whether to proceed with such investigation, whether a charge is appropriate, whether the evidence presented at trial is sufficient, whether sentencing is proportionate, and who is responsible for any reparations to victims.

This historical context should be considered in the determination and collection of reparations to be distributed to victims of the crimes at issue. Given that a link exists between the conflict that brought about the crime at issue and a colonial regime, any reparations to the victims the Court decides is appropriate ought to come either in part or completely from the government responsible for that colonial system. While this suggests a type of punishment only appropriate after an entire trial or a plea, there is no debate as to whether these colonial regimes existed, and little debate as to whether those regimes had lasting damaging effects on the region, thus, reparations are appropriate regardless.51

Another portion of the Rome Statute that lends itself to this process is at the pre-trial confirmation hearing.52 Whereas the Statute simply requires the Prosecutor to support each charge against the accused “with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged,”53 the Prosecutor should be required to rebut a presumption, using relevant evidence, that the charges are invalid as a result of their substantial relation to the effects of colonialism on the region or ongoing interventionism.

Regardless of the stage this analysis is done, the Statute must prohibit and require the immediate discontinuation of prosecution where the link between the conflict relevant to the individual’s charges and intervention by foreign nations—either by military occupation, economic control, manipulative trade practices, or other means of asserting domination or control over another nation—is inextricable, regardless of whether the acts committed by the individual are at all related, on their face, to a resistance to or the results of colonialism. Where civil war, genocide, mass poverty, starvation, and other terrors are a direct result of colonialism, individual criminal liability is inappropriate and inhumane. This is not to suggest that individuals who engage in such despicable acts as those prosecuted by the ICC ought to be without accountability because of the very relevant context, but criminal prosecution and the prison sentence that results are misguided means of response and do not actualize the goals of “end[ing] impunity”54 or encouraging “stability and equitable development in post-conflict societies.”55

Accountability at the individual level must be pursued through alternate procedures, and the ICC must implement procedures to—or form relationships with decolonial entities that work to—account for and attempt to address the very real harms of Western imperialism and other forms of historic and ongoing colonialism. This comment does not provide specific recommendations for achieving those goals, but potential alternate systems of accountability have been modeled by non-Western communities and imagined by abolitionist scholars.56 The damage caused by colonialism is irreversible,57 but scholars have recommended strategies for decolonization, decentring, and disalienation to remedy the deep structural damages of colonialism.58

1. Limitations

There are obvious limitations and deterrents to this proposal. For one, even if adopted, none of these amendments would appropriately account for the damage caused by colonial powers, nor would they prevent any future harm.

Another limitation to the proposed amendment of the Rome Statute is the likelihood that it could ever be adopted. The Rome Statute offers a process for amending the text that requires the proposed amendment to be sent to the Secretary General of the United Nations, then circulated to all States Parties, and then voted on at the Assembly of States Parties which occurs annually or at a Review Conference.59 The amendment will only be adopted if a two-thirds majority of States Parties present vote to adopt it, and then will only go into effect if seven-eighths of the States Parties complete the ratification or acceptance process.60 Given the seemingly radical nature of the amendments proposed, as well as the limitations and extra burden that would accompany these changes, it is highly unlikely that the States Parties would vote to amend the Statute in such a way.

The amendments proposed would carry with them a large burden for the Prosecutor, counsel for the defendant, the Pre-Trial Chamber, and the other parties active in the investigation, indictment, trial, and sentencing procedures and rely on subjective analyses. For example, requiring the Prosecutor to present evidence sufficient to rebut a presumption that the crime in question is related to the effects of colonialism requires gathering historical data, seeking out experts, and the presentation of copious amounts of data. Furthermore, this evidence would be considered by individuals (i.e., judges, committee members) with preconceived notions of the effects of colonialism. These amendments are inherently limited by the subjectivity involved when deciding whether a crime at issue is linked to or a direct result of colonialism or interventionism. Whether scholars and historians agree that conflict in a region has its roots in former or present influence by Western powers, a crime at issue could be deemed unrelated to that history by a Prosecutor particularly motivated to prosecute an individual.

Finally, and importantly, the victims of the crimes at issue likely are not concerned about whether the acts that caused very real harm to themselves and their communities were due, in part, to a larger context of strife caused by imperialism or outside control. The effects of these crimes on the victims are not mitigated by this context and do not make the process of recovery, if it is even available to them, any easier, less painful, or quicker.61

B. Utilizing an Alternate Reading of the Rome Statute’s Language

While the circular reasoning equipped by individuals who recommend against offering remedies that are seemingly impractical or unlikely to be pursued falls apart under even the slightest scrutiny, an alternate to amending the Rome Statute—a suggestion often dismissed without regard, leaving little room for that potential to be considered and realized—is invoking an alternate reading of the Rome Statute as it stands to allow for a similar type of consideration of colonial context recommended above. While this recommendation obviously does not provide the assurance of an amendment requiring this process, it can be implemented without an administrative process requiring the proposed amendment to be offered at a meeting of the Assembly of States Parties, which occurs annually, and a two-thirds majority vote to adopt.62

This alternative requires reading the potential for consideration of historical context into each procedural step separately, wherever possible.

1. Investigation

The Rome Statute grants the Prosecutor extensive discretion regarding which situations to investigate and which to decline to continue pursuing. Not only may the Prosecutor initiate investigation procedures proprio motu (on their own initiative, without a referral from a State Party), the Prosecutor can decide unilaterally that a situation referred to the Court does not warrant further investigation.63 In analyzing a situation and deciding whether to request authorization of an investigation, the Prosecutor is given the authority to seek out and consider information outside of the facts of the situation, including from “intergovernmental or non-governmental organizations, or other reliable sources he or she deems appropriate.”64 This leaves room for the Prosecutor to request and consider information regarding the larger context of the situation before it is even investigated; this can include considering the link between that situation and colonialism. The Prosecutor should seek out reliable sources for this analysis and not simply presume that the link does not exist or is not significant. If that link is found to exist, the Prosecutor should exercise its discretion and refuse to prosecute individuals in relation to that situation. The Rome Statute provides additional discretion to the Prosecutor in the decision to initiate an investigation where it requires considering whether:

[T]aking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.65

This similarly leaves room for consideration of the larger context surrounding the situation and making the decision, based on that context, not to pursue investigation.

If the Prosecutor decides that a situation provides a reasonable basis to investigate, they must seek authorization from the Pre-Trial Chamber.66 While the Pre-Trial Chamber has less unilateral power (given the ability of the Prosecutor to raise subsequent requests regarding the same situation if authorization is denied), this procedure presents the opportunity for individuals other than the Prosecutor to engage in these determinations. Here, the Pre-Trial Chamber should consider the material provided by the Prosecutor and deny authorization if a link between the situation and the effects of colonialism exists.

2. Prosecution

Once an investigation has been initiated and the Prosecutor is considering whether to move forward with charges against a defendant, the Rome Statute invites the Prosecutor not to proceed with prosecution if it would not be “in the interests of justice, taking into account all the circumstances.”67 This decision by the Prosecutor must be confirmed by the Pre-Trial Chamber to take effect.68 Thus, the Pre-Trial Chamber should confirm this decision if there is reason to believe that the relevant situation has roots in colonialism and its aftermath.

3. Pre-Trial Hearing

The Rome Statute requires a hearing, prior to trial, in order to confirm the charges against the defendant.69 As mentioned above, this process provides a unique opportunity for the charges to be analyzed against the presumption of them being linked to the effects of colonialism, and for the Prosecutor and the person charged to provide evidence of the surrounding contextual landscape. However, as the Rome Statute is written, the Prosecutor is only required to show proof that this individual committed the crimes for which they will be charged, which does not leave much room for consideration of other context.70

4. Conviction

The Rome Statute allows the ICC to exclude an individual from criminal responsibility given certain circumstances such as an individual’s mental defect or lack of capacity, or their intoxication during the act for which they are being charged.71 The Statute also excludes an individual from criminal responsibility if the conduct for which they are being charged was:

[C]aused by duress resulting from a threat of imminent death or of continuing or serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.72

Many African leaders who face prosecution by the ICC are “mere puppets of neo-colonial interest” and thus not acting autonomously.73 Even when that is not the case, it is not a stretch to suggest that the dire circumstances surrounding many of the conflicts investigated by the ICC constitute a “threat of imminent death” or “serious bodily harm.”74 It is similarly reasonable to posit that, in those dire circumstances, an individual may engage in conduct that they otherwise would not, had it not been necessary or seemed critical to their survival or avoidance of serious bodily harm. Whether the individual intended to cause greater harm than those present in their circumstances is a difficult analysis but one that should be approached with a presumption that the individual who committed the acts is not committing evil for evil’s sake. Lastly, the impacts of colonialism and imperialism are most certainly beyond the control of the individuals upon whom these practices are inflicted. While it is highly unlikely that a Prosecutor consider the context of ethnic conflict, poverty, displacement, or other circumstances resulting from interventionist policies as “duress” such that it absolves an individual of criminal responsibility, it is important to recognize how willing these systems are to absolve guilty when coercion is immediately recognizable for what it is, but when the finding of duress requires an acknowledgement of the invasiveness and violence of colonialism, the systems are unempathetic and ignorant to those substantial harms.

Even while duress at the hands of colonial circumstances might never be recognized by the ICC, the Rome Statute offers a broader opportunity to absolve an individual of criminal responsibility, allowing the Court to consider “ground[s] for excluding criminal responsibility other than” the ones explicitly listed, “where such a ground is derived from applicable law as set forth” in the Statute.75 The applicable law, which includes the laws of the Statute itself, certainly classify colonial acts of genocide, “forcible transfer of population,” “deprivation of physical liberty,” “persecution against any identifiable group,” apartheid, and “pillaging,” as crimes.76 Even more obvious is the description of the “crime of aggression” which very clearly depicts a colonial intervention:

[T]he planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. […]

[T]he use of armed force by a State against the sovereignty, territorial integrity or political independence of another State; […]

The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; […]

The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement.77

The Statute itself disallows these acts, very often present in colonial regimes, and thus allows for the consideration of such acts as grounds for excluding criminal responsibility.

It is important to note that absolution from criminal responsibility does not require a belief that the individual should not be accountable to their harms or that the victims of such harms do not deserve reparations or other forms of relief. Criminal liability, especially within the carceral and retributive system that is the ICC, does nothing to address the harm caused,78 ensure similar harms do not occur in the future,79 or adequately address the needs of victims.80

5. Sentencing

Considering historical context in deciding the appropriate sentencing after a conviction is likely to be the most universally accepted and easy to implement reading of the current Rome Statute.81 The consideration of circumstances that could mitigate sentencing is already a practice of Western legal traditions and the ICC itself.82 The Rome Statute even allows the Trial Chamber to hold an additional hearing to allow evidence to be presented specifically relevant to the sentencing of an individual.83 Furthermore, the Statute gives deference to the “individual circumstances of the convicted person” in the determination of the sentence.84 In this way, the consideration of larger circumstances is already explicitly permitted, and even encouraged, by the Rome Statute, without needing to employ alternate interpretations of the text.

In considering the colonial underpinnings of the conflict at issue, the ICC should consider whether the defendant, who has been convicted and is awaiting sentencing, is themself a victim of a crime—namely, the crimes listed above that occur in settler colonial regimes and interventionist systems. Since no individual is being charged for those crimes, it is not necessary to undertake a larger process to answer this question; rather it should be presumed that if the region from which the defendant came has seen a history of colonialism, they themself have been a victim of the circumstances that result from such a system. If the individual can be considered a victim of any of those crimes, they should receive reparations in the form of financial aid to themselves or their family, they should be considered less culpable for the crime at issue, and/or their sentencing should reflect a lesser culpability.

Even if the defendant cannot be considered a victim of any crime that the ICC recognizes to be within its jurisdiction, the historical context of the region from which the individual came, and the larger context surrounding the conflict in which the individual participated, must be considered factors that mitigate sentencing. It is necessary to acknowledge that individuals who commit such evil acts only as a result of the most dire circumstances should not receive punishment that is never even considered for the colonizers.

6. Limitations

The limitations to reading the consideration of historical context impliedly into the Rome Statute are numerous. This proposal requires the voluntary participation of the Prosecutor and other ICC actors. Considering the additional work involved with such a reading (discussed below), it is not likely that any of these individuals would take on such a burden on their own accord. Moreover, this avenue of progress relies on the popularity of this proposal, a proposal that is not likely to be eagerly accepted by all States Parties. Thus, it is not likely to ever take effect in any practical sense.

The proposal to adopt a reading of the Rome Statute that allows for the consideration of larger context involves more work and time at each step of the ICC’s procedure. Not only would this decrease the efficiency of the Court, but it would also reduce the perception of its efficacy by those who are less eager to consider this context to be relevant to the prosecution of present crimes and those who value carcerality and retribution.

Furthermore, like the proposals amending the Rome Statute, this proposal relies on subjective analyses that, especially without strict guidelines written into the Statute and considering the voluntary nature of this process, are likely to produce inconsistent results that do not achieve the larger goal of acknowledging and accounting for the effects that colonialism in the ICC’s prosecution.

V. Conclusion

The Rome Statute and the ICC it created function as ostensibly and effectively Western systems of “justice.” The Statute’s adoption of British, American, and French terms and processes, and the ICC’s exclusive prosecution of African individuals, characterize the system as colonial in nature. Although likely impractical and certainly inadequate, proposals to either amend the Rome Statute or adopt an alternate reading of the Statute’s current language to account for the larger context of the crimes it is prosecuting may be a step towards achieving an international system of accountability that does not exacerbate the harms of imperialism.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Kamari Maxine Clarke, Is the ICC Targeting Africa Inappropriately or Are There Sound Reasons and Justifications for Why All of the Situations Currently Under Investigation or Prosecution Happen to Be in Africa?, ICC Forum (Mar. 17, 2013), available online

   (“Africa and not the United States, Joseph Kony and not George Bush, crimes against humanity and not pre-emptive intervention form the basis for the court’s action.”). ↩

2. 2.

   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, as amended [hereinafter Rome Statute], available online. ↩

3. 3.

   See Introduction to the Federal Court System, U.S. Dept. of Just., available online (last visited Jul. 3, 2022). ↩

4. 4.

   Rome Statute, supra note 2. ↩

5. 5.

   Abraham S. Goldstein, Prosecution: History of the Public Prosecutor, Encyclopedia.com, available online (last visited Jul. 3, 2022). ↩

6. 6.

   Rome Statute, supra note 2. ↩

7. 7.

   The People of the State of New York v. Robert Clayton, 41 App. Div. 2nd 204 (Apr. 2, 1973), available online; § 210.20 Motion to Dismiss or Reduce Indictment, N.Y. L. Crim. Proc., available online (last visited Jul. 3, 2022). ↩

8. 8.

   Rome Statute, supra note 2, Article 31. ↩

9. 9.

   Id. Article 53. ↩

10. 10.

    Id. Article 61. ↩

11. 11.

    Id. Articles 76, 77, 78. ↩

12. 12.

    See, e.g., Thierry Cruvellier, The ICC, Out of Africa, N.Y. Times, Nov. 6, 2016, available online; Callum Ross, Selective Justice and Persecution? The African View of the ICC-UNSC Relationship, E-Int’l Rel. (Sep. 16, 2018), available online. ↩

13. 13.

    M. Cherif Bassiouni & Douglass Hansen, The Inevitable Practice of the Office of the Prosecutor, ICC Forum (Mar. 17, 2013), available online. ↩

14. 14.

    See I. William Zartman, Europe and Africa: Decolonization or Dependency?, 54 Foreign Aff. 325 (Jan. 1976), paywall, doi; Stelios Michalopoulos & Elias Papaioannou, The Long-Run Effects of the Scramble for Africa, Vox EU (Jan. 6, 2012), available online. ↩

15. 15.

    See Khansa Maria, Is the International Criminal Court a Colonial Institution?, CIRS (Feb. 28, 2021), available online. ↩

16. 16.

    50 Defendants, ICC, available online (last visited Jul. 3, 2022). ↩

17. 17.

    Situations Under Investigations, ICC, available online (last visited Jul. 3, 2022). ↩

18. 18.

    Situation in the Islamic Republic of Afghanistan, ICC, available online (last visited Jul. 3, 2022). ↩

19. 19.

    International Criminal Court, Questions and Answers on the Decision on the International Criminal Court’s Territorial Jurisdiction in the Situation in Palestine (Feb. 15, 2021), available online. ↩

20. 20.

    See, e.g., Preliminary Examination: Registered Vessels of Comoros, Greece and Cambodia, ICC, available online (last visited Jul. 3, 2022)

    (showing that the investigation into the Israeli raid was closed because “the information available did not provide a reasonable basis to proceed with an investigation.”);

    Office of the Prosecutor, ICC, Situation in Iraq/UK: Final Report (Dec. 9, 2020), available online

    (explaining how, in light of abuses committed by the British army against Iraqi civilians in detention, and although the UK’s domestic process has not led to a single case submitted for prosecution, “a result that has deprived victims of justice,” the Office of the Prosecutor has closed the preliminary examination). ↩

21. 21.

    31 Cases, ICC, available online (last visited Jul. 3, 2022)

    (listing eight defendants who have been convicted, all of whom are African). ↩

22. 22.

    Sandra Marker, Effects of Colonization, Beyond Intractability (Nov. 2003), available online. ↩

23. 23.

    Robert Blanton, T. David Mason & Brian Athow, Colonial Style and Post-Colonial Ethnic Conflict in Africa, 38 J. Peace Research 473 (Jul. 2001), paywall, doi. ↩

24. 24.

    31 Cases, supra note 21; see also 50 Defendants, supra note 16

    (additionally listing eight defendants in ICC custody). ↩

25. 25.

    See Genevieve Jesse, The French Intervention in the 2012 Malian Conflict: Neocolonialism Disguised as Counterterrorism, 3 SUURJ 96 (2019), available online. ↩

26. 26.

    See Pape Samba Kane, The French Colonial Designs in Mali, Al Jazeera, Aug. 22, 2019, available online. ↩

27. 27.

    See Id. ↩

28. 28.

    See Conn Hallinan, South Sudan: Colonialism’s Dead Hand, FPIF (Feb. 5, 2014), available online; Riek Machar Teny-Dhurgon, South Sudan: A History of Political Domination—A Case of Self-Determination, Afr. Stud. Center (Nov. 19, 1995), available online. ↩

29. 29.

    See Hallinan, supra note 28. ↩

30. 30.

    See Id. ↩

31. 31.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Germain Katanga, ICC-01/04-01/07 (Jul. 2021), available online (last visited Jul. 3, 2022); International Criminal Court, Case Information Sheet: The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 (Jul. 2021), available online (last visited Jul. 3, 2022). ↩

32. 32.

    See Jan S.F. van Hoogstraten, Central African Republic, Encyclo. Britannica, available online (last visited Jul. 3, 2022). ↩

33. 33.

    Rodolfo Zamora Rielo, War and Colonialism in the Central African Republic, Granma (Sep. 6, 2017), available online. ↩

34. 34.

    Id. ↩

35. 35.

    31 Cases, supra note 21. ↩

36. 36.

    See Sara Lowes & Eduardo Montero, Lasting Effects of Colonial-Era Resource Exploitation in Congo: Concessions, Violence, and Indirect Rule, VoxDev (Jan. 11, 2021), available online. ↩

37. 37.

    Alex Chestnut, The Democratic Republic of the Congo: A Case Study of War and Failed Peace, Beyond Intractability (Jun. 2020), available online. ↩

38. 38.

    31 Cases, supra note 21. ↩

39. 39.

    See Leighann Spencer, Kenya’s History of Political Violence: Colonialism, Vigilantes and Militias, The Conversation (Sep. 28, 2017), available online. ↩

40. 40.

    Id. ↩

41. 41.

    31 Cases, supra note 21. ↩

42. 42.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Paul Gicheru, ICC-01/09-01/20 (Jan. 2022), available online (last visited Jul. 3, 2022). ↩

43. 43.

    Fredrick Kisekka-Ntale, Roots of the Conflict in Northern Uganda, 32 J. Soc., Pol. Econ. Stud. 421 (2007), available online. ↩

44. 44.

    Id. ↩

45. 45.

    31 Cases, supra note 21. ↩

46. 46.

    Rome Statute, supra note 2, Article 121. ↩

47. 47.

    (Given the reliance on States Parties signing onto the Rome Statute, it is unlikely that any version of an international criminal court that does not allow for political pressure, or other outside influence, to affect prosecutorial decisions without noticeably affecting the legitimacy and efficacy of such a court would be approved). ↩

48. 48.

    About the Court, ICC, available online (last visited Jul. 3, 2022). ↩

49. 49.

    Id. ↩

50. 50.

    See e.g., Elizabeth Schmidt, Conflict in Africa: the Historical Roots of Current Problems, Persp. on Hist. (Jul. 26, 2016), available online.

    (“Many of today’s challenges are the outcome of colonial political and economic practices, Cold War alliances, and attempts by outsiders to influence African political and economic systems during the decolonization and post-independence periods.”);

    See also Helyeh Doutaghi & Jay Ramasubramanyam, By Not Investigating the U.S. for War Crimes, the International Criminal Court Shows Colonialism Still Thrives in International Law, The Conversation (Apr. 15, 2019), available online. ↩

51. 51.

    (In fact, reparations are appropriately owed to all individuals in the region affected by colonialism, but it is not within the scope of the ICC to require this level of sweeping redress, especially considering the ICC’s limited jurisdiction over individuals and not entire countries or governmental systems as a whole). ↩

52. 52.

    Rome Statute, supra note 2, Article 61. ↩

53. 53.

    Id. ↩

54. 54.

    About the Court, supra note 48. ↩

55. 55.

    Id. ↩

56. 56.

    See, e.g., John Braithwaite, Valerie Braithwaite, Michael Cookson & Leah Dunn, Anomie and Violence: Non-Truth and Reconciliation in Indonesian Peacebuilding (2010), available online; Ray Nickson, Great Expectations: Managing Realities of Transitional Justice (Aug. 8, 2014) (Ph.D. thesis, Australian National University), available online, doi; Catherine Lu, Redressing and Addressing Colonial Injustice, 11 Ethics & Global Pol. 1 (2018), available online, doi. ↩

57. 57.

    Antony Anghie, The Heart of My Home: Colonialism, Environmental Damage, and the Nauru Case, 34 Harv. Int’l L.J. 445 (Sep. 1993), paywall. ↩

58. 58.

    See Lu, supra note 56. ↩

59. 59.

    Rome Statute, supra note 2, Article 121. ↩

60. 60.

    Id. ↩

61. 61.

    See, e.g. Ray Nickson & John Braithwaite, Deeper, Broader, Longer Transitional Justice, 11 Eur. J. of Crim. 445 (2014), available online, doi

    (describing the failings of international laws in the justice it purports to offer to victims). ↩

62. 62.

    Rome Statute, supra note 2, Article 121. ↩

63. 63.

    Id. Article 15. ↩

64. 64.

    Id. ↩

65. 65.

    Id. Article 53. ↩

66. 66.

    Id. Article 15. ↩

67. 67.

    Id. Article 53. ↩

68. 68.

    Id. ↩

69. 69.

    Id. Article 61. ↩

70. 70.

    Id. ↩

71. 71.

    Id. Article 31. ↩

72. 72.

    Id. ↩

73. 73.

    Charles Achaleke Taku, Has the International Criminal Court Inappropriately Targeted Africa?, ICC Forum (Mar. 17, 2013), available online. ↩

74. 74.

    See Ann Laura Stoler, Duress: Imperial Durabilities in Our Times (Nov. 2016), available online. ↩

75. 75.

    Rome Statute, supra note 2, Article 31. ↩

76. 76.

    Id. Articles 5, 6, 7, 8. ↩

77. 77.

    Id. Article 8 bis. ↩

78. 78.

    See, e.g., Catherine Gegout, The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace, 34 TWQ 800 (2013), available online, doi. ↩

79. 79.

    See David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473 (1999), available online. ↩

80. 80.

    See Gegout, supra note 78. ↩

81. 81.

    (While the practice of incarceration as punishment for a crime is inherently unjust and inhumane, this comment does not enter into a critique of prison systems or argue against prison time as a form of punishment in order to remain focused on the lesser goal of arguing for a practical shift in the ICC’s procedure to better account for historical context). ↩

82. 82.

    See, e.g., Rule 4.433: Matters to be Considered at Time Set for Sentencing, Cal. Rules of Ct. (as amended Jan. 1, 2018), available online (last visited Jul. 3, 2022); Rome Statute, supra note 2, Article 78. ↩

83. 83.

    Rome Statute, supra note 2, Article 76. ↩

84. 84.

    Id. Article 78 ↩