Invited Experts on Legal Traditions Question

Badar Avatar Image Mohamed Elewa Badar, LLB, LLM, PHD, FHEA Professor of Comparative and International Criminal Law & Islamic Law Northumbria University School of Law

The International Criminal Court, Islamic Legal Tradition, and the Arab World: Quo Vadis?

In [the Situation in Mali] decision, the Pre-Trial Chamber upheld the Prosecutor’s conclusion that the installation and implementation of Sharia law in Timbuktu proves the existence of an organizational policy to commit a widespread or systematic attack against a civilian population. Not only this, but the Pre-Trial Chamber also accepted the Prosecutor’s contention that applying different forms of Sharia punishments amounted to torture under Article 7(2)(e) of the Rome Statute. It explicitly stated that cultural relativism was rejected in international criminal law. The ramifications of this decision have been highlighted by the defense for Al Hassan, the latter stating that “the allegation that Sharia law constitutes a policy to commit an attack against a civilian population is problematic on many legal and evidential levels.”


I. Introduction

Almost twenty-five years after the conclusion of the Rome Statute, a ground-breaking international treaty which established the world’s first, permanent and (intended) universal International Criminal Court (ICC), the Court appears to have reached a quagmire, whereby its reach and jurisdiction is far from universal. The intended universal reach of the Court that was envisioned in 1998 has been undermined throughout the past quarter of a century by a singular operation of the Court and narrow interpretation of the Rome Statute that have placed Western international law principles and institutions on a pedestal, and largely neglected the alternative visions of law that exist in the world, particularly Islamic Law. The implication of this has been to alienate Islamic law countries from reach of the Court, notwithstanding that many of prosecutions that have been brought before the ICC have related to the Muslim world in one way or another. It is therefore critical that steps are taken to redirect the course towards a more inclusive, pluralistic Court, which acknowledges the legal traditions of the whole world, and not just those belonging to the West. In light of this, this comment seeks to provide some solutions for the Court, by illuminating the historical development of the Court and its place in the Muslim world, and exploring the points of contact and tension between international criminal law as it is traditionally conceived by Western international law institutions and Islamic law.

The Court is viewed as a Westernized adjudicator of international criminal law (ICL), which has alienated the East. This comment seeks to examine the extent to which the ICC has under-represented non-Western laws, traditions, principles, rules, and practices in its legal structure and system, and more importantly to propose solutions for the Court in order to address this issue. As Fraser has warned, “despite the salience of Islamic law for the ICC, recognition, engagement and understanding is only nascent.” 1 This comment explores this issue in the specific context of the Islamic legal tradition across the Arab world. The majority of populations in Arab countries, apart from Lebanon, are Muslims, and their constitutions place Islamic—or Sharia—law at the heart of their legal and political administration. Thus, it is important to clarify that this comment refers only to Arab States, and not to all Muslim majority States in the Muslim world.

Arab States refer to those post-colonial societies whose present realities have been significantly influenced by the colonial experience. This necessarily underpins their view of the imperialistic structures that persist within international criminal law (ICL), which, as this comment demonstrates, is central to the tension that exists between the westernized, or Eurocentric, conception of ICL that dominates international legal institutions, and Islamic law. The timely nature of this question cannot go unacknowledged, with many investigations under consideration by the ICC relating to Muslim-majority States, and the prominence of conflict in Islamic contexts,2 it is time for an international court that is truly universal in its jurisdiction. More particularly, this comment addresses the extent to which Muslim majority states are skeptical of the ICC and its reliance on western systems of justice, and the extent to which Islamic law aligns with the principles of the ICC and could be better incorporated into the ICC’s jurisprudence.

Argument Continued

As Section II of this comment outlines, the broader context in which Arab States exist underpins and explains their lack of engagement with ICL. This was apparent in the process of enacting the Rome Statute establishing the ICC, which highlighted the definitional discrepancies that exist between ICL and Islamic—or Sharia—law, particularly in the realm of international human rights law and the prohibition of torture, a jus cogens norm alongside the international crimes contained within the Rome Statute. This was exacerbated by the preclusion of reservations being made by signatory States to the Statute, in order to avoid interpretations of the Statute that are inconsistent with Sharia being enforced upon those States who follow Sharia law.

Section III explores the extant relationship between the Arab world and the ICC, and in particular highlights the sovereignty concerns raised by Arab States around the ICC, on foot of the power afforded to the United Nations Security Council (S.C.) to refer and defer cases to the ICC. This power has operated unequally against Western States on one hand, and Muslim majority States on the other. Section III also demonstrates the unequal operation of the ICC itself, through actions of the Office of the Prosecutor (OTP) and the abuse of principle of complementarity by powerful Western States to avoid accountability for the commission of international crimes. This concern has again very recently resurfaced with allegations of extra-judicial killings by the British elite Special Air Services (SAS) in Afghanistan during joint British-American occupation. This section does, however, highlight a certain hope regarding the ruling on the Court’s competence over Palestine.

Section IV examines the way forward for the ICC, exploring the various points of tension and contact that exist between ICL and Islamic law and proposes solutions that the ICC could implement in order to move forward with a more inclusive development of ICL.

II. Islam, Arab States, and the Rome Statute

Despite Islamic Law (Sharia) being applied differently in Arab States, the compatibility of treaty law with Sharia has been one of the determining factors for Arab States when deciding whether to ratify a treaty or not. This is reflected in the practice of Arab States to make reservations—known as the Sharia reservations—to human rights treaties, by which they arguably intend to avoid any incompatibilities between the treaty provisions and Sharia rules and principles.3 Therefore, it is reasonable to conclude that one of the reasons preventing most of the remaining Arab States from ratifying the Rome Statute is their persisting concern that the Rome Statute is prone to being implemented in a manner incompatible with Sharia.4

Arab States expressed their concerns during the Rome Conference about specific provisions in the Statute and their incompatibility with Sharia. They expressed concern regarding the inclusion of forced pregnancy as a separate act constituting crimes against humanity. In the opinion of Arab States,5 forced pregnancy was related to rape and does not warrant separate mentioning. They expressed fear that its inclusion would impact their national legislations regarding abortion.6 To accommodate their concerns, paragraph 7(2)(f) was added to stipulate that the definition of forced pregnancy “shall not in any way be interpreted as affecting national laws relating to pregnancy.” The revival of debates regarding the definition of torture as a crime against humanity suggests that Arab States were also concerned that the definition of torture in the Statute could be interpreted to include certain forms of punishments in Islamic law. Two alternatives were presented: the first was to exclude from the definition of torture “pain or suffering arising only from, inherent in or incidental to, lawful sanctions [in conformity with international law]”, the second alternative was to employ the definition of torture in article 1 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (Convention Against Torture) which excludes “pain or suffering arising only from, inherent in or incidental to, lawful sanctions” without qualifying the lawful sanctions as being in conformity with international law.7 It was then accepted that article 7(2)(e) retains the language of the Convention against Torture.8

Furthermore, Arab States expressed their preference of allowing reservations to the Rome Statute.9 Nevertheless, this proposal was rejected by other states, and article 120 was included in the Statute, stipulating that “no reservations may be made to this Statute.” Arab States expressed concern about this and the Sudanese representative—speaking on behalf of the Arab Group—stated that “the right to express reservations should also have been granted. The removal of that right by article 120 would be an obstacle to accession.”10 Although there was no explicit reference to Sharia, it is reasonable to conclude—based upon their practice—that Arab States are in favor of allowing reservations to avoid incompatible interpretations with Sharia.

Although there have been elaborated studies on the compatibility of Sharia and ICL,11 those studies do not seem to constitute a strong catalyst for abolishing Arab States’ concerns about the Rome Statute. One reason for that seems to be the functioning of the ICC itself, and its non-engagement with Islamic Law.12 Although the ICC could resort to Islamic Law under Article 21(1)(c) of the Rome Statute,13 the Court has not, to date, conducted a deep analysis of Islamic principles of criminal law, despite establishing its jurisdiction over situations in States whose national laws have been enacted on the basis of Islamic Law.14 Ignoring Islamic principles affects the Court’s legitimacy by affirming the view that international criminal law is a “distinctly Western venture”.15 This lack of engagement with Islamic law has even driven several scholars to call for the establishment of a hybrid court for the prosecution of members of the Islamic State for crimes committed in Iraq and Syria.16

The ICC’s latest decision on the situation in Mali could amplify Arab and Muslim States’ concerns. In that decision, the Pre-Trial Chamber upheld the Prosecutor’s conclusion that the installation and implementation of Sharia law in Timbuktu proves the existence of an organizational policy to commit a widespread or systematic attack against a civilian population.17 Not only this, but the Pre-Trial Chamber also accepted the Prosecutor’s contention that applying different forms of Sharia punishments amounted to torture under Article 7(2)(e) of the Rome Statute. It explicitly stated that cultural relativism was rejected in international criminal law. The ramifications of this decision have been highlighted by the defense for Al Hassan, the latter stating that “the allegation that Sharia law constitutes a policy to commit an attack against a civilian population is problematic on many legal and evidential levels.” It also pointed out that upholding the Prosecutor’s contentions:

[W]ould have catastrophic effects as concerns the potential universalization of the Rome Statute: clearly, States will not ratify the Statute if the mere fact that Sharia law is practiced in their territory renders them liable to be prosecuted for war crimes and crimes against humanity.18

Regarding the Court’s interpretation of torture, it stated that pain or suffering arising from, inherent in or incidental to, lawful sanctions can only be excluded from the definition of torture when “in conformity with international law”. Consequently, the Court considered that the different forms of punishments in Sharia law were not in conformity with international law and were thus considered acts of torture. The Court based its decision on recommendations and statements made by the Committee against Torture and other human rights bodies and legal scholars. However, the Court neither took into consideration the preparatory works of the Article 7(2)(e) of the Rome Statute nor those of article 1 of the Convention Against Torture. By referring to both, the Court would have recognized that there was no consensus reached among the States regarding the interpretation of the term “lawful sanctions” and thus States had accepted to resort to constructive ambiguity in that respect.

In the drafting history of the Convention Against Torture, a proposal was presented to exclude from the definition of torture “pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.”19 However, Western States refused to refer to the “Standard Minimum Rules for the Treatment of Prisoners” as this would render the latter a binding instrument.20 At the same time, those States expressed their concern that excluding lawful sanctions without any qualification would weaken the definition of torture and thus argued for the limitation of the exception only to lawful sanctions that are in conformity with international law.21 Nevertheless, a compromise was reached among the negotiating States to delete any limitation to the lawful sanctions. This compromise was made to ensure the ratification of Arab and Muslim majority States applying Sharia punishments.22 Nor did the Court examine whether there is any subsequent State practice establishing the agreement of the parties regarding the interpretation of the term “lawful sanctions”.23 By this, the Court decided to give supremacy to the law de lege ferenda over the law de lege lata. Furthermore, the Court implicitly granted to the statements of the Committee Against Torture and the other human rights bodies a binding character; a character long rejected by States. Such a flawed decision that fails to conduct a thorough examination of different State opinions and does not take into consideration non-western traditions and cultures would further undermine the legitimacy of the ICC in the eyes of the Arab world. As Cherif Bassiouni has highlighted:

ICL is proscriptive, whereas IHRL is prescriptive. In other words, ICL criminalizes, while IHRL does not. One of the consequences of this essential distinction is that ICL is at least theoretically bound by principles of legality, which requires its terminology to be more specific, whereas international human rights law, which is not bound by such a requirement, tends to be more general.24

III. An Overview of the Relationship Between the Arab World and the ICC

As previously mentioned, the Arab States role in the establishment of the ICC is generally recognized as a positive one.25 Nonetheless, this has not guaranteed their accession to the Rome Statute. At the end of the Rome Conference, six Arab States, namely Libya, Iraq, Yemen, Qatar, Syria, and Sudan, joined the United States (U.S.) in opposition to the Statute.26 By the time the Statute was opened for signature, only two Arab states ratified it, namely Jordan and Djibouti. Other Arab states followed, becoming signatories in 2000, yet Qatar, Libya, Lebanon, and Iraq neither signed nor ratified the Rome Statute at that date.27 As of today, five Arab countries have ratified or acceded to the Rome Statute, namely Jordan, Djibouti, Tunisia, Palestine, and Comoros.

The current world legal order has developed from the Western legal systems of great European powers,28 meaning that the majority of the modern world are expected to rely on the oversight of Westernized institutions such as the United Nations (U.N.). Indeed, many of the “Great Powers” that sit as permanent members on the S.C. often do not feel obliged by the rules under the U.N. Charter and, as a result, use force under the cover of, for example, war against terrorism.29 This alleged protective oversight, therefore, is rightly perceived by other nations as imperialistic—something that remains an obstacle for universal acceptance. Although the Rome Statute was compromised to accommodate some of the Arab States’ concerns, sovereignty remains one of the main issues pulling them back from ratifying the Statute. Due to the role granted to the S.C. in referring and deferring situations to the ICC, Arab States feared that the ICC would be a political tool in the hands of Western countries to pursue their interests and infringe upon the sovereignty of Arab States.30 So far, the only two situations referred to the ICC by the S.C. have been Sudan and Libya. Indeed, Gissel highlights that this could be seen to pull “the entire doctrine of equality before the law in a sphere which ought to be insulated from such extraneous influences.”31 These concerns have not diminished through the functioning of the ICC but, rather, have been buttressed. The ICC’s engagement with Sudan meant other Arab States became involved, particularly with regard to Al Bashir’s arrest warrant. Its issuance in 2009 spurred the Arab League’s support for Sudan, which was propelled further when Jordan, a State Party to the Rome Statute, failed to arrest the former Sudanese President during his attendance at the 28th Summit of the Arab League in Amman, in March 2017. In contrast to how the ICC handled South Africa’s failure to arrest, the ICC referred Jordan’s inaction to the S.C. and the Assembly of States Parties.32 Both Jordan and the League of Arab States contended that these referrals “constituted an abuse of discretion.”33 Further, the Court’s differential treatment of Jordan from South Africa meant that the Court had not relied on the specific facts of the case but rather on “the situation of a different State Party.”34 Instances such as these create the “ambivalence towards universal justice [that] defines the relationship between the Arab League and the [ICC, who is] perceived as a neo-colonial instrument of power.”35

Not only did the indictment of the then Sudanese President receive opposition from the Arab Governments, public opinion in Arab States also opposed it. According to a survey, conducted by in seven Muslim majority and African States (namely Egypt, Turkey, Kenya, Nigeria, Pakistan, Iraq, and the Palestinian territories) regarding charging Al Bashir before the ICC, a majority disapproved the indictment: the Palestinian territories (70% with 25% approving) and Egypt (52%, with 47% approving). Iraqis were evenly divided (35% approved, 37% disapproved).36 This adds to the extant negative public opinion generated by the trial of the former Iraqi President Saddam Hussein. Arab public opinion viewed the trial “as an American-backed enterprise intended to justify an unpopular war.”37 It is without doubt that public resentment strengthens the prevailing reluctance to engage with the institutional framework of ICL.

However, the Arab Spring in 2011 was thought to be a turning point in the Arab-ICC relationship.38 After ousting President Ben-Ali, Tunisia’s interim government ratified the Rome Statute.39 Along the same lines, the Egyptian Ministry of Foreign Affairs pledged to ratify the Statute.40 Morocco, on its part, included article 23 in its Constitution which criminalizes three core crimes of the Rome Statute (crimes against humanity, genocide, and war crimes).41 Moreover, the ICC held its first regional conference in Qatar, sponsored by Qatar and the League of Arab States, a step recognized as a “a dramatic and impressive shift in the attitudes of the Arab world towards international criminal justice generally, and the International Criminal Court, in particular.”42 During the conference, the ICC launched a campaign, entitled “Calling Arab Lawyers”, to encourage Arab counsels to participate in the Court’s proceedings, highlighting the importance of language and culture in understanding the conflicts from which cases arise before the Court.43

Soon, it became recognized that the Arab Spring was not a strong enough catalyst for improving Arab engagement with the ICC. While there has been thirst for accountability in the wake of the Arab Spring, this—as rightly highlighted by Frédéric Mégret and Nidal Nabil—is not the same as “questions of accountability that the international community has emphasized through its investment in international criminal law.”44 Furthermore, the functioning of the ICC both prior to the Arab Spring and afterwards seems to hold back the remaining Arab States from ratifying the Rome Statute. Although Egypt pledged to ratify the Statute, its political relations with Sudan have delayed this step.45 Arab States also raised concern, during the Qatar Conference, about the ICC’s delay in responding to Palestine’s declaration to accede to the Court’s jurisdiction over events taking place in the Occupied Palestinian Territories after July 1, 2002.46 It took the ICC Prosecutor three years to decide that he was not competent to decide on the validity of Palestine’s declaration.47

While reluctant to ratify the ICC, Arab States did not reject the referral of the situation in Libya by means of Security Council Resolution 1970.48 However, the NATO intervention in Libya and the killing of former President Mu’ammar Gaddafi revealed the instrumentalization of the ICC by Western States to pursue regime change.49 After using the ICC “to frame the intervention in the name of justice and to marginalise and pressure Gaddafi,”50 Western powers quickly abandoned the Court by tacitly supporting the right of the new government to try those responsible for the commission of grave crimes. Similarly, Arab States became more inclined to support domestic prosecutions rather than prosecutions at the ICC.51 The Arab League explicitly supported Libya’s quest to try Saif El Islam domestically.52 Mauritania has surrendered El Senussi to Libya, refusing the ICC’s repeated calls for his extradition.53 The newly appointed ICC Prosecutor, Karim Khan, seems to have received little support during his first briefing on the situation in Libya to the Security Council, as Western states merely called upon the national authorities to secure the arrest and surrender of those wanted by the ICC.54

The instrumentalization of the ICC in the Libyan conflict was a mistake not to be repeated in the Syrian conflict. This has been reflected by the number of Arab States supporting a referral by the Security Council of the situation in Syria to the ICC. Although Saudi Arabia and the Arab Group presented a proposal, that later became a U.N. General Assembly Resolution, calling for the accountability of those responsible for the commission of international crimes and calling upon the S.C. to consider appropriate measures in that regard,55 proposals at the S.C. for an actual referral were explicitly supported by only a few Arab States (namely Libya, Jordan, Qatar, UAE, and Saudi Arabia).56

The perception of the ICC as a neo-colonial Court seems to be reinforced by its decision regarding crimes committed by U.K. military forces in Iraq and its decision regarding the situation in Afghanistan. Although the OTP decided that there is reasonable basis to believe that crimes were committed by members of British forces against Iraqi civilians in detention, the OTP decided to close the preliminary examination into the situation in Iraq because the U.K. has been conducting its own investigations into allegations of crimes committed by its military forces. Despite having concerns about the comprehensiveness of those investigations, the OTP stated that there was no evidence to conclude that:

[The] UK authorities have been unwilling genuinely to carry out relevant investigative inquiries and/or prosecutions (Article 17(1)(a)) or that decisions not to prosecute in specific cases resulted from unwillingness genuinely to prosecute (Article 17(1)(b)).57

This decision has spurred strong criticism and sustained Arab States’ concerns that the principle of complementarity provides a leeway to powerful states to avoid accountability for the commission of international crimes.58

Not only this, but the decision also paints a false picture of said crimes being prosecuted adequately at U.K. national courts. The worst part of the report in terms of narrative, however, is that it perpetuates falsehoods from the lead up to the invasion of Iraq. It describes the events in the following paragraph:

After the January 1991 Gulf War, the Security Council adopted a resolution setting out ceasefire terms, including ending production of weapons of mass destruction and permitting inspection teams on the territory of Iraq. In September 2002, the US and UK argued that Iraq was in material breach of the relevant resolutions and was seeking to develop weapons of mass destruction. UN weapons inspectors stated they had not found any ‘smoking gun’ in their search for weapons of mass destruction but noted that this was ‘no guarantee that prohibited stocks or activities could not exist at other sites, whether above ground, underground or in mobile units.’ The US gathered a coalition of 48 countries, including the UK, for the stated purpose of searching and destroying alleged weapons of mass destruction in Iraq.59

This misleading description implies that S.C. Resolution 699 of 1991 authorized the invasion and does not mention that the S.C. itself never endorsed this view, or that this has been a highly disputed question in international law. The cited inspectors’ report detailed that no evidence of weapons of mass destruction (WMDs) had been found and that Iraqi authorities were cooperating with the inspectors, yet the above paragraph chooses to focus on a sentence of the report allowing for the hypothetical existence of WMDs.60 Moreover, in a footnote, the report relies on The Assessment of the British Government on Iraq’s Weapons of Mass Destruction, a document now known as the “dodgy dossier”, a piece of pro-war propaganda that has long been discredited.

Furthermore, the OTP’s Report labels the Iraqis who resisted the foreign occupation as “insurgents” throughout the document. As historian Craig Murray notes:

The idea that the invaders were the respectable power and the locals were ‘insurgents’ may be the language of the British MOD and may be adopted by the Daily Mail, but it should not be the language of the International Criminal Court.61

This biased narrative further contributes to delegitimizing the ICC in the Arab world. Additionally, the U.S. would not allow the Iraqi government any attempt to become a State party to the Rome Statute because of the atrocities and numerous violations of international law, in particular the law of armed conflict, committed by its soldiers against the Iraqi civilians and those placed hors de combat during their invasion of Iraq in 2003 and its aftermath period, until their withdrawal in 2011. Furthermore, a number of cases, such as Abu Ghraib prison and the so called Nisour Square Massacre, were undergone without a transparent and impartial trial. This has enhanced the belief that the international community is paralyzed and silent towards such violations.

In addition to that, the Pre-Trial Chamber II (PTC) decision on the situation in Afghanistan raises many legitimacy concerns. In that decision, the PTC rejected the request of the OTP to open an investigation into the situation in Afghanistan because it would not “serve the interests of justice”.62 This decision was subject to criticism63 and resulted in alarming calls for reform.64 Refusing to open an investigation in Afghanistan that could have ended in investigating crimes committed by U.S. troops and the Central Intelligence Agency (CIA) was regarded as an act of succumbing to pressure from the Trump administration,65 affirming Arab States’ concerns that the ICC is only a Court for the weak states and never a tool for achieving universal international justice. Cautious hope arose when the PTC decision was reversed by the Appeals Chamber.66 However, the following sequence of events was not promising. The Government of Afghanistan—led by then-President Ashraf Ghani—was granted the request to defer the investigation to the Afghan National Authorities. Then, on September 27, 2021, the Prosecutor filed an application before the Pre-Trial Chamber seeking authorization to resume investigation in Afghanistan because “there is no longer the prospect of genuine and effective domestic investigations.”67 Nevertheless, he emphasized that his investigation will focus “on crimes allegedly committed by the Taliban and the Islamic State—Khorasan Province and to deprioritise other aspects of this investigation.”68 This implies that crimes committed by U.S. Troops and the CIA will be outside the scope of his investigation. This decision has been criticized.69 The decision to deprioritize investigations against the U.S. troops was regarded as a “bow to political as well as resource pressure,”70 and constitutes another decision that will contribute to delegitimizing the ICC in the eyes of the Arab world amid concerns about its double standards and its selectivity.

Concerns surrounding the ability of the ICC to investigate alleged crimes committed by U.K. troops in a Muslim majority state have recently resurfaced, with the revelations by investigative journalists at the BBC of extra-judicial killings committed against Afghan detainees by British soldiers, with apparent impunity, during the period of 2010 to 2013, when Afghanistan was under American-British occupation.71 The reported failures of the British Military to investigate and report such allegations goes to the very heart of Arab States’ concerns over apparent inapplicability of ICL to Western, imperial powers. Indeed, in response to the allegations, the U.K. Ministry of Defense accused the journalists of jumping to “unjustified conclusions from allegations that have already been investigated” and indicate they would only investigate the allegations if new evidence comes to light.72 This is worrying, given the track record of impunity for U.K. actors in the Iraq and Afghan conflicts, and will likely exacerbate the distrust harbored by Muslim majority states and Arab countries towards the ICL framework and institutions.

Nevertheless, the Court’s very recent decision affirming its jurisdiction over crimes committed in Palestine raises hope that there could be light at the end of the tunnel in the relationship between the Arab States and the ICC.73 The League of Arab States has welcomed—in Resolution 8594 adopted by the Council of the Arab League at the ministerial level at its extraordinary session held in Cairo on February 8, 202174—the ICC decision regarding Palestine. It has also emphasized in its 155th Extraordinary Session held in Cairo on March 3, 2021 that any peace plan inconsistent with the terms of reference for the Middle East peace process will be rejected and cannot succeed; to reject any political or financial pressure brought to bear on the Palestinian people or its leadership in an attempt to impose unjust solutions to the question of Palestine.75 The ICC’s continued engagement in the situation in Palestine will certainly contribute to enhancing the legitimacy of the Court in the Arab world, if it is able to overcome pressure exerted from powerful states.76

Before concluding this overview, it must be mentioned that the failure on the part of the Arab States to engage with the institutional framework of ICL does not mean that the connection is lost between the Arab world and the normative framework of this field of international law. In various forms, national legislations of Arab States have incorporated international crimes. According to the International Committee of the Red Cross’s Eighth Periodic Report on the implementation of international humanitarian law at the level of Arab States (2015–2018), Arab States’ incorporation of international crimes into national legislation could be grouped in four categories. Incorporation has either taken the form of a stand-alone legislation on international crimes,77 or the form of generally integrating some aspects of those crimes into military codes, or incorporation has taken the form of generally including some international crimes in penal codes, or it has taken the form of a legislation establishing a special domestic tribunal, or fact finding Commission, related to international crimes.78 Proposals for stand-alone legislation for international crimes is still pending in Egypt,79 Kuwait,80 Morocco,81 Tunisia, and Palestine.82 In that context, it is noteworthy that adopting those pieces of legislation has been incentivized by their importance to evade the jurisdiction of the ICC.83

IV. Overcoming the Residual Barriers to Universal Acceptance of ICL

This comment has covered a substantial part of the history of international law, including its origins, its overall development into the modern world, and, more importantly, the inherent flaws it continues to carry. However, the only way to progress modern international law away from the aforementioned issues, is to suggest a way forward, in order to bridge the gap between the ICC and the Arab world. Indeed, the structural differences between both legal systems, arising from the traditional and religious foundations of Islamic law, on one hand, and the secularity of ICL84 on the other, contain a certain flexibility in both legal systems which can prove useful to developing a sustainable and complementary relationship between them. For instance, just as international judges assume the responsibility of interpretation, so too does Islamic law rely on doctrinal interpretation.85 The laws in both systems are not strictly stagnant, but instead are capable of some evolution to accommodate more present and relevant social needs. There is a necessity, therefore, to promote rigor in both research and study of Islamic legal norms, as well as dialogue within and between the two traditions.86

Scholars such as Mashood Baderin have advanced a number of suggestions to support the argument that modern international law must be further developed to create a more inclusive system. To begin with, Baderin develops the argument that the majority of the academic questions posed to general international law are often dealt with by strict Western, Eurocentric legal scholars, who naturally have limited knowledge of the effect it will have on other legal systems.87 To exacerbate the problem, there is also little consideration of relevant contributions that have been made by other legal systems, such as Islamic law. If these contributions are given fair notice then it may encourage an increase in the universal acceptance of international law.88 The first argument, therefore, is to tailor the response to academic questions to involve better inclusion of more than one legal perspective in order to create a more accurate response—a multi-disciplinary approach.89 Another suggestion that is advanced by Baderin is that there must be an allowance for international law to be developed further. While the theory of legal pluralism is the picture of an ideal international legal system, there must be a recognition of what Baderin refers to as the pluralistic reality.90 While the concept of legal pluralism is good, the development of current modern international law must include the consideration of other legal systems around the world as well as an understanding of what role other legal systems can play in the overall development.

To begin with, there must be an understanding that there are three types of legal pluralism: combative legal pluralism, competitive legal pluralism, and co-operative legal pluralism.91 As co-operative legal pluralism is more centered around the notion of complementarity, naturally this is what modern international law should aim for. Co-operative legal pluralism will complement other domestic legal systems within the international criminal justice system in order to encourage universal acceptance.92 The goal is co-operative legal pluralism, and in order to achieve this, we must move on from the primarily exclusive Eurocentric approach taken towards modern international law, and begin to encourage inclusive analysis. There have been suggestions as to how this can be achieved. For example, as already mentioned, there is an obligation to change the exclusively Eurocentric approach to change the overall narrative of ICL and the overall judicial interpretation and recognised principles of ICL, as well as its political manipulations.93 Similarly, there is also an obligation on Muslim-majority states to fulfil their primary obligation of prosecuting domestically where necessary, fulfilling their secondary obligation of regional responsiveness, and maintaining co-operation with the ICC if they fail in their obligations.94

The inherent difference between traditional ICL and Islamic law is undeniable—ICL being rooted in principles of secularism and legal positivism, in contrast to Islamic law—yet not insurmountable. For example, the chasm between the embrace of modernity by the two legal traditions creates division, whereby religious States feel they are unrepresented in the developing world order that is dominated by secular institutions and frameworks. This tension manifests through the so-called “sword of Damocles that is the conflict of Islamic doctrine with ‘universal’ human rights.”95 Although international treaties and conventions are acknowledged by many states, and indeed many Muslim majority states, the violation and infringement of said human rights are still occurring in varying degrees of intensity.96 Steiger demonstrates that the likely reason behind the inconsistency of human rights implementation is primarily because many nations perceive the notion of democracy and liberalism as western conceptions that only take into account European thought in an attempt to increase international dominance.97 It is often the case, therefore, that based on the belief that public international law is too western-focused, many nations go further than refusing its implementation by also questioning its validity in the first place.98 It follows that many Arab nations are adverse to the process of modernity within their legal systems, viewed as an imperialistic, colonial process imposed by the militarily and economically dominant West.99 In relation to the role of modernity alongside the implementation of Sharia law, Mohamed Khalil demonstrates the friction between Islam and modernity being caused by the issue, inter alia, of proper interpretation of Islamic law, and the compatibility of Islam with democracy and human rights (modernity from a Western perspective advocates the encouragement of a democracy that may not align with Islamic values).100

Corporal punishments laid out in Islamic law are inherently contrary to modern, universal human rights standards, and particularly, as outlined above, the prohibition of torture.101 This highlights a certain irreconcilability between the two systems, which is rooted in maxims of ICL, such as the one contained in Article 22 of the Rome Statute, which prohibits derogation from a minimum human rights standard. This creates a perception among Islamic systems of Western human rights as an imposition.102 Furthermore, the dearth of Muslim judges sitting on benches of international tribunals in proportion to the fifty-seven Muslim majority States who are members of United Nations exacerbates this problematic perception in the Muslim World that Western legal principles, and Western justice, are also being imposed upon them.103

In light of this, to further encourage universal acceptance, Baderin suggests adopting an object and purpose paradigm approach towards the analysis of international treaties. In adopting this approach, one must analyse the object and purpose of the treaty that is often outlined in its preamble.104 If only the substantive content of the treaty is focused on, it will naturally lead to the argument of imposed hegemonic dominance and will not be willingly applied on an international scale.105 If steps such as these are taken into consideration and, ideally, enacted, then it may encourage future universal acceptance and a better designed universal international legal system that is more inclusive of more than one legal system.

In relation to designing a system that encourages better inclusivism, other legal perspectives must be included in the discussion. This can be achieved through inviting experts of different legal systems to the drafting of present and future international treaties, allowing an open-table discussion of how current modern international law can be improved, and inviting more legal experts of different backgrounds into the ICC itself. In relation to the first advancement of inviting experts of different legal backgrounds, the inclusion of Third World Approaches to International Law (TWAIL) scholars is crucial in this respect. While TWAIL scholars have typically focused on the difficulties of the foundations of modern international law, there have been some suggestions provided that could improve the situation.106

For example, as already mentioned, there have been some scholars of various backgrounds, such as those from Asia, that have criticized the Eurocentric approach towards the historiography of international law. These filtered versions of history have been utilized by European scholars to create an international system that is far from an accurate representation of other legal systems. This discussion is similar to that advanced by Baderin, aforementioned, in that this naturally creates combative legal pluralism—one version of events versus another. If this method of narrative continues unchecked, universal acceptance of international law will always waiver.

A similar discussion can be had over the notion of cultural difference. Ronald Dworkin advances the argument that if we continue to emphasize the cultural differences between nations without attempting to find some form of middle ground, there will always be an obstacle against modern acceptance of universality.107 The primary focus on scholars that deliberately dismiss the inclusion of religion in public and political life has automatically framed the matter entirely as one of religious irrationality versus modern secular rationality.108 If narratives such as this continue to dominate the conversation of modern international law, any notion of religious influence will be disregarded as irrational and so will not be afforded sufficient consideration. To create a system that is centered around the notion of co-operation, there cannot continue to be a pattern of selectivity with what is considered to be suitable inclusion.

In taking the time to develop an understanding of Islamic legal systems, we can arrive at a number of similarities that can be utilized to develop a more inclusive system. For example, Kamari Clarke demonstrates that the foundations of most Islamic legal systems are based on the authority and teachings of the Prophet Muhamed—similar to western-centric legal systems that are historically based on the foundations of Christian-Judeo principles.109 While each system is centered around its own particular regime of truth, and arguably its own religious perspectives, it is only the western-centric legal systems that narrate the history and future of international law while regarding alternative viewpoints as irrational.110

While a substantial argument can be made for the incompatibility of modern international law and its implementation at the ICC with Islamic law, it is important to highlight that it was not an idea that was entirely rejected by many Islamic nations. For the majority of Islamic nations, there was no objection to the introduction of the ICC.111 To provide an example of the support for the ICC from some Muslim states, a delegate from the Islamic Republic of Iran declared that “the establishment of an international criminal court, independent, universal, effective and impartial, would be a milestone towards achieving peace with justice.”112 There was a general consensus of satisfaction with the idea of international justice that drafters of the Rome Statute were proposing. However, it is questionable whether this agreed upon principle became a point of friction through the method in which the ICC operates and implements international criminal law. Other evidence provides that there was still plenty of support provided from nations that still had some reservations about the idea.

However, while there was a general consensus of satisfaction, this is not necessarily well reflected into unanimity over signatures and ratifications.113 As outlined in Section III, there were some concerns over the apparent threat to national sovereignty. The foundations of ICL, enforced by the ICC, were built on the principle of complementarity. The ICC should not be able to step in and take charge of a prosecution unless the concerned state is proven to be unwilling or unable to carry out effective proceedings. In theory, this method upholds the principle of complementarity as it allows the opportunity for a case to be handled domestically. However, as mentioned, many states were uncomfortable with the role and powers handed to the OTP to initiate proceedings where they deemed necessary.114 While some states were in favor of an independent prosecutor having the power to pursue prosecution where it was necessary, many nations believed this to be a threat to their state sovereignty and so remained wary of the role of the ICC. As Siraj Khan demonstrates, therefore, the reluctance surrounding the ICC was not necessarily relevant to Islamic law or Sharia. The concerns were primarily centered around an ineffective principle of complementarity that could be overlooked to threaten state sovereignty.115

However, while there is an important note to make that the inclusion of Sharia law is not always one of the primary obstacles towards ratification, there are some discussions to examine that emphasize the role of Sharia law. In situations where there is a choice to accept ratification of the Rome Statute, there can be a general reluctance to do so. The issue is often relevant to the subject of international human rights. As discussed in detail above, there are different ideals that are advanced from differing cultures on topics such as human rights—its implementation often varies according to local religious practice and belief. An act that is committed in Saudi Arabia, for example, may be of no concern in the state itself. However, from the point of view of a European nation, for example, the act could be one that warrants investigation and potential prosecution. If the understanding of certain concepts such as human rights continues to vary, there will always be a potential disagreement in relation to its implementation. It is this possibility of disagreement that often leaves some states concerned that if they were to ratify the Rome Statute and incorporate it into domestic legislation, the ICC would pursue prosecution against that state were certain acts which were previously not deemed to be unlawful.

Finally, having Islamic expertise participate in the Court process can illuminate the historical, political, social, and even geographical context in which Arab societies exist, which can improve Arab States engagement with ICL. This could empower the Court to truly engage with, and apply, Islamic legal concepts, where applicable, to matters that come before it, while ensuring principles of ICL remain strictly adhered to. This could apply particularly to a matter that concerns alleged offenses that occurred in Islamic jurisdictions, by alleged perpetrators who are Muslims, and in apparent pursuance of Islamic laws, as was the context of two recent prosecutions brought before the ICC in the cases of Al Mahdi and Al Hassan (ongoing).

V. Concluding Remarks

To conclude the aforementioned suggestions and discussions, the overall takeaway is that there must be a more effective method of taking into consideration alternative viewpoints of different legal systems that does not primarily focus on a western perspective. While the history is inevitably from a western perspective, as during its development there was not necessarily an open discussion or consideration of alternative legal systems, there is still an opportunity to adopt more inclusive methods of developing a future international legal system that can truly be applied internationally.

The message must be conveyed to the ICC that the interpretation by its judges of the provisions of the Rome Statute should benefit from the plurality of legal traditions that occupy our world, in order to make the adjudication of ICL a truly universal and far-reaching mechanism of justice. The undeniable differences that exist between the foundations and operation of ICL and Islamic law respectively do not justify the Court simply setting Islamic law to one side, in favor of traditional ICL. Indeed, as this comment has demonstrated, such differences are not wholly irreconcilable.

In the context of Islamist militant groups who stand before the ICC, it is submitted that the legality of their acts must be examined through the lens of Islamic legal principles, and not solely through that of Western ICL principles, in order to legitimize such legal scrutiny in the eyes of Muslim majority States.

The ignorance of Islamic law by the ICC is counter-productive, serving only to further alienate the Arab world from its jurisdiction, thus weakening its own legitimacy and outreach. The implications of this unfamiliarity with other legal traditions are already evidenced through the Court’s lack of reach to Arab countries, manifested through feelings of distrust and refusals to cooperate with ICC warrants, and the distortion of Islamic law by extremist militant groups to justify their contravention of ICL. This appears particularly reckless on the part of the Court in light of the submissions made in this comment concerning the potential for these legal traditions to collaboratively implement the most fundamental laws in our universal society and uphold the most important of humanity’s values.

In order to develop more inclusive legal pluralism, we must adopt a co-operative stance rather than a combative one. Combative legal pluralism has played a substantial part in the history of international law by consistently highlighting the strong cultural differences that has long justified a single-minded development. Provided that the concerned cultural differences can be examined and settled in an open discussion between scholars and legal practitioners from multiple backgrounds, there is a better chance that future international law can be developed from a more co-operative perspective. As long as scholars and legal practitioners continue to sit down with one another and continue the discussion on how things can be improved through a more inclusive consideration, we may at some point achieve the idealistic reality of an international legal system that operates fairly on the international stage.116 The Court will undoubtedly be presented with ample new opportunity to work towards this reality, as it will likely be confronted with matters from various Muslim majority States, including Myanmar/Bangladesh, Palestine (as mentioned above), Iraq, Nigeria, Sudan, and perhaps even Syria or Yemen.117 Let us hope this can mark an end to Islamic exclusion from the ICC, and wave in a new era of true universality of ICL. As Rudolph Schlesinger put it nearly seventy-five years ago:

The time has come, perhaps, to discard or limit the visionary goal of “one law” or “one code” for the whole world and to substitute for it the more realistic aim of crystallizing a common core of legal principles.118

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

  1. .

    The views and opinions expressed here are those of the author acting in his personal capacity and do not necessarily reflect the views or position of Mr. Al Hassan’s Defense Team.

  2. 1.

    Julie A. Fraser, Exploring Legal Compatibilities and Pursuing Cultural Legitimacy: Islamic Law and the ICC, in Intersections of Law and Culture at the International Criminal Court 379 (Julie A. Fraser & Brianne McGonigle Leyh eds., 2020), paywall, earlier version available online, doi; see also 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.

  3. 2.

    Fraser, supra note 1, at 378.

  4. 3.

    This is not to assert the validity of Sharia reservations with the object and purpose of human rights treaties. On that subject, see Nora Salem, Sharia Reservations to Human Rights Treaties, in Max Planck Encyclopedia of International Law (Rüdiger Wolfrum ed., 2020), paywall.

  5. 4.

    Cf. Shaheen Sardar Ali & Satwant Kaur Heer, What is the Measure of “Universality”? Critical Reflections on “Islamic” Criminal Law and Muslim State Practice vis-à-vis the Rome Statute and the International Criminal Court, in Islam and International Criminal Law and Justice, 2 Nuremberg Academy Series 175 (Tallyn Gray ed., 2018), available online.

  6. 5.

    See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/CONF. 183/13 (Vol. II), Summary records of the plenary meetings and of the meetings of the Committee of the Whole 72 (Jul. 17, 1998) [hereinafter Summary Records], available online.

    (Jordan was not among those Arab States).

  7. 6.

    Id. at Comment of Libyan Arab Jamahiriya 160 ¶ 63; id. at Comment of United Arab Emirates 160 ¶ 66; id. at Comments of Egypt 164 ¶¶ 30–33.

  8. 7.

    United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1, Report of the Preparatory Committee on the Establishment of an International Criminal Court 27 (Apr. 14, 1998) [hereinafter Preparatory Committee], available online.

  9. 8.

    See Bureau of the Committee of the Whole, U.N. Doc. A/CONF.183/C.1/L.53, Discussion Paper 204 (Jul. 6, 1998), available online.

  10. 9.

    See Preparatory Committee, supra note 7, at 27.

    (There were four alternatives for reservations. Most Arab States expressed preference for option four that suggests that no reservation clause should be inserted and that it should be left to the general rules of reservations in international law).

    See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/C.1/SR.19, Summary Record of the 19th Meeting of the Committee of the Whole, Comments of Syrian Arab Republic 252 ¶ 10 (Jun. 29, 1998) [hereinafter 19th Meeting], available online; 19th Meeting, supra note 9, at Comments of Iraq 256 ¶ 57; 19th Meeting, supra note 9, at Comments of Kuwait 254 ¶ 29.

  11. 10.

    See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/C.1/SR.9, Summary Record of the 9th Meeting of the Committee of the Whole, Comments of Sudan 126–27 ¶ 78 (Jul. 17, 1998), available online.

  12. 11.

    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.

  13. 12.

    See Summary Records, supra note 5, at Comments of Libyan Arab Jamahiriya 102 ¶ 83.

    (Previously, during the Rome negotiations, Libya pointed out that “Western values and legal systems should not be the only source of international instruments. Other systems were followed by a large proportion of the world’s population.”).

  14. 13.

    Fraser, supra note 1, at 387.

  15. 14.

    Except for a reference to Islamic law in Situation in the Democratic Republic of the Congo, ICC-01/04-168, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ¶¶ 25–31 (Jul. 13, 2006), available online.

  16. 15.

    John Reynolds & Sujith Xavier, The Dark Corners of the World: TWAIL and International Criminal Justice, 14 J. Int’l Crim. Just. 959, 962 (Sep. 16, 2016), available online, doi.

  17. 16.

    Sergey Sayapin, A “Hybrid” Tribunal for Daesh?, EJIL Talk (May 4, 2016), available online.

  18. 17.

    On these points, among others, see Al Hassan’s defense submissions [hereinafter collectively Defense Submissions]: The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18-394-Red, Submissions for the confirmation of charges, ¶ 82 (PTC I, Jun. 4, 2019), [hereinafter June 4th Submission] available online; The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18, Defence’s final submissions regarding the confirmation of charges, ¶¶ 11–14 (PTC I, Jul. 31, 2019), available online.

  19. 18.

    See June 4th Submission, supra note 17, ¶ 208.

  20. 19.

    Commission on Human Rights, U.N. Doc. E/CN.4/1285, Swedish Draft International Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Jan. 23, 1978), available online.

  21. 20.

    Commission on Human Rights, U.N. Doc. E/1978/34-E/CN.4/1292, Report of the Thirty-Fourth Session, 31 (Mar. 10, 1978), available online; see also Gerrit Zach, Art. 1 Definition of Torture, in The United Nations Convention against Torture and its Optional Protocol: A Commentary ¶¶ 42–53 (Manfred Nowak, Moritz Birk & Giuliana Monina eds., 2d ed. Feb. 19, 2020), paywall.

  22. 21.

    Commission on Human Rights, U.N. Doc. E/CN.4/L.1470, Report of the Working Group on a Draft Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 21 (Mar. 12, 1979), available online.

  23. 22.

    Herman Burgers & Hans Danelius, Annotations on the Provisions of the Convention, in The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 119 (Hans Danelius & Herman Burgers eds., Jul. 1, 1988), paywall, doi.

  24. 23.

    Vienna Convention on the Law of Treaties, art. 31(3)(b), May 23, 1969, 1155 U.N.T.S. 331, available online, archived.

  25. 24.

    Mahmoud Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 208–09 (Oct. 2014), paywall.

    (This position was upheld by Mr. Al Hassan’s defense team. See Defense Submissions, supra note 17).

  26. 25.

    See Hossam ElDeeb, The Ratification and Implementation of the Rome Statute of the International Criminal Court by the Arab States: Prospects and Challenges (Dec. 2015) (Ph.D. thesis, University of Brunel), available online.

  27. 26.

    Michael P. Scharf, Results of the Rome Conference for an International Criminal Court, 3 ASIL Insights (Aug. 11, 1998), available online.

  28. 27.

    Status of Treaties: Rome Statute, UNTC, available online (last visited Jul. 17, 2022).

  29. 28.

    Thilo Marauhn & Heinhard Steiger eds., Universality and Continuity in International Law 18 (Jun. 28, 2011), paywall; Julie A. Fraser, A Seat at the Table: Islamic Law’s Neglected Potential in Universalising International Humanitarian Law, in Human Rights and International Humanitarian Law: Challenges Ahead 225, 238 (Norman Weiss & Andreas Zimmermann eds., May 20, 2022), available online, earlier version available online, doi.

  30. 29.

    Marauhn & Steiger, supra note 28, at 18.

  31. 30.

    ElDeeb, supra note 25, at 160–62.

  32. 31.

    Line Engo Gissel, Nomos and Narrative in International Criminal Justice: Creating the International Criminal Court, 20 J. Int’l Crim. Just. 117, 137 (Mar. 1, 2022), paywall, doi.

  33. 32.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-309, Decision under Article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender o[f] Omar Al-Bashir (PTC II, Dec. 11, 2017), available online.

  34. 33.

    The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-367, The League of Arab States’ Observations on the Hashemite Kingdom of Jordan’s appeal against the “Decision under Article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir,” ¶ 37 (AC, Jul. 16, 2018), available online.

  35. 34.

    Id. ¶ 44.

  36. 35.

    Annette Weber, FRIDE, Bridging the Gap Between Narrative and Practices: The Role of the Arab League in Darfur 16 (Mar. 2010), available online.

  37. 36.

    Many Approve of ICC Indictment of Bashir: Poll of 7 Muslim and African Nations, World Pub. Op., Jul. 16, 2009, available online.

  38. 37.

    Shibley Telhami, Arab Public Opinion and the Trial of Saddam Hussein, Brookings Inst., May 11, 2006, available online.

  39. 38.

    Mark Kersten, The Arab World and the ICC: A New Chapter or Smoke and Mirrors?, Just. in Conflict (May 30, 2011), available online; see also Maryam Jamshidi, The International Criminal Court and the Arab Spring: Overcoming Bias, Increasing Engagement, in Human Rights, Human Security, and State Security: The Intersection 43 (Saul Takahashi ed., Jul. 2014), paywall.

  40. 39.

    Tunisia Becomes First North African Nation to Join International Criminal Court, U.N. News, Jun. 24, 2011, available online.

  41. 40.

    Human Rights Watch, Egypt: Important Commitment to Ratify Rome Statute (Apr. 29, 2011), available online.

  42. 41.

    Morocco Constitution of 2011, art. 23 ( Constitute Project trans.), available online (Eng.), also available online (Morocco).

  43. 42.

    Kersten, supra note 38.

  44. 43.

    International Criminal Court, ICC Launches Campaign to Encourage Arab Counsel to Practice Before the Court, 79 ICC Weekly Update 6 (May 30, 2011), available online.

  45. 44.

    Frédéric Mégret & Nidal Nabil Jurdi, The International Criminal Court, the “Arab Spring” and its Aftermath, DUDI, 2 (Jun. 10, 2016), available online.

  46. 45.

    Mark Kersten, Egypt to Join the ICC but Also Guarantee Bashir Immunity, Just. in Conflict (Feb. 20, 2013), available online.

  47. 46.

    Kersten, supra note 38.

  48. 47.

    International Criminal Court, OTP, Situation in Palestine (Apr. 3, 2012), available online.

  49. 48.

    See United Nations Security Council, U.N. Doc. S/PV.6491, 6491st Meeting, 4 (Feb. 26, 2011), available online, archived

    (Lebanon stated that voting in favor of the resolution was in line with the Arab Consensus).

  50. 49.

    Mark Kersten, Between Justice and Politics: The ICC’s Intervention in Libya, in Contested Justice: The Politics and Practice of International Criminal Court Interventions 466–69 ( Christian De Vos, Sara Kendall & Carsten Stahn eds., 2015), available online, doi.

  51. 50.

    Id. at 468.

  52. 51.

    See United Nations Security Council, U.N. Doc. S/PV.8388, 8388th Meeting, 10–11 (Nov. 2, 2018), available online, archived.

    (See Kuwait’s statement on the occasion of the ICC Prosecutor Fatou Bensouda’s briefing on the situation in Libya where it stressed that Libya has the primary responsibility in prosecuting perpetrators of international crimes and that the international community shall assist it in that respect).

  53. 52.

    The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-130-Red, Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute (PTC I, May 1, 2012), available online.

  54. 53.

    Kevin Jon Heller, Mauritania Extradites Al-Senussi to Libya, Opinio Juris (Sep. 5, 2012), available online.

  55. 54.

    See United Nations Security Council, U.N. Doc. SC/14710, International Criminal Court Prosecutor, Outlining Vision, Calls for New Era of Engagement with Security Council to End Atrocity Crimes in Libya (Nov. 23, 2021), available online.

  56. 55.

    U.N. Drafts, Arab League Draft Resolution on Syria in the General Assembly (Jul. 27, 2012), available online.

  57. 56.

    See United Nations Security Council, U.N. Doc. S/2014/348, Draft Resolution (May 22, 2014), available online.

    (In a proposal to refer the situation in 2013, only two states, Tunisia and Libya, explicitly supported it).

    See United Nations, U.N. Doc. A/67/694 S/2013/19, Letter Dated 14 January 2013 From the Chargé D’Affaires a.i. of the Permanent Mission of Switzerland to the United Nations Addressed to the Secretary-General (Jan. 16, 2013), available online; see Kristyan Benedict, The Countries That Support Referring Syria to the International Criminal Court-and Some Absent “Friends”, Amnesty Int’l U.K. Blog (Sep. 20, 2013), available online

    (This remark was also made by a report issued by Amnesty International United Kingdom).

    See also Human Rights Watch, Letter to Egyptian Foreign Minister on Syria and the ICC (Jan. 13, 2013), available online

    (urging him to support the referral to the ICC).

  58. 57.

    See International Criminal Court, OTP, Situation in Iraq/UK: Final Report (Dec. 9, 2020) [hereinafter Iraq/U.K. Report], available online.

  59. 58.

    Amnesty International, International Criminal Court Decision on UK Military in Iraq Rewards Obstructionism (Dec. 10, 2020), available online; see also Thomas Obel Hansen, Complementarity (in)action in the UK?, EJIL Talk (Dec. 7, 2018), available online.

  60. 59.

    Iraq/U.K. Report, supra note 57, ¶ 36.

  61. 60.

    Hans Blix, Executive Chairman UNMOVIC, Notes for Briefing the Security Council (Jan. 9, 2003), available online; see also United Nations Security Council, U.N. Doc. S/2003/232, Twelfth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in Accordance With Paragraph 12 of Security Council Resolution 1284 (Feb. 28, 2003), available online.

  62. 61.

    Craig Murray, The International Criminal Court: Now Simply Indefensible, Craig Murray Blog (Dec. 29, 2020), available online.

  63. 62.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (PTC II, Apr. 12, 2019), available online.

  64. 63.

    Christian De Vos, No ICC Investigation in Afghanistan: A Bad Decision With Big Implications, Int’l Just. Monitor (Apr. 15, 2019), available online.

  65. 64.

    Kai Ambos, Interests of Justice? The ICC Urgently Needs Reforms, EJIL Talk (Jun. 11, 2019), available online; Todd F. Buchwald, The International Criminal Court Decision on Afghanistan: Time to Start a New Conversation, Just Security (Apr. 13, 2019), available online.

  66. 65.

    Amnesty International, Afghanistan: ICC Refuses to Authorize Investigation, Caving Into USA Threats (Apr. 12, 2019), available online; Human Rights Watch, ICC: Judges Reject Afghanistan Investigation (Apr. 12, 2019), available online.

  67. 66.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17-138 OA4, Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan (AC, Mar. 5, 2020), available online; On that decision, see Aldo Zammit Borda, The Situation in Afghanistan, US Sanctions and the Historical Narratives Emerging From the ICC, EJIL Talk (Jun. 24, 2020), available online.

  68. 67.

    Karim Asad Ahmad Khan, ICC Prosecutor, Statement Following the Application for an Expedited Order Under Article 18(2) Seeking Authorisation to Resume Investigations in the Situation in Afghanistan (Sep. 27, 2021), available online.

  69. 68.


  70. 69.

    Kelebogile Zvobgo, The ICC’s Flawed Afghan Investigation: Why the Court Shouldn’t Let America Off the Hook, Foreign Aff. (Nov. 3, 2021), available online; Jennifer Trahan, Prosecutor De-prioritizes ICC Investigation of US Torture Program, Opinio Juris (Oct. 1, 2021), available online.

  71. 70.

    Amnesty International, Afghanistan: ICC Prosecutor’s Statement on Afghanistan Jeopardises His Office’s Legitimacy and Future (Oct. 5, 2021), available online.

  72. 71.

    Hannah O’Grady & Joel Gunter, SAS Unit Repeatedly Killed Afghan Detainees, BBC Finds, BBC News, Jul. 12, 2022, available online.

  73. 72.


  74. 73.

    Situation in the State of Palestine, ICC-01/18-143, Decision on the “Prosecution request pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine” (PTC I, Feb. 5, 2021), available online.

  75. 74.

    See United Nations, U.N. Doc. A/75/761, Letter dated 12 February 2021 from the Permanent Representative of Egypt to the United Nations addressed to the Secretary-General (Feb. 19, 2021), available online.

  76. 75.

    United Nations, U.N. Doc. S/2021/285, The Question of Palestine, Resolutions adopted by the League of Arab States at its 155th Extraordinary Session held in Cairo on 3 March 2021 (Mar. 25, 2021), available online.

  77. 76.

    See Antony J. Blinken, U.S. Secretary of State, The United States Opposes the ICC Investigation into the Palestinian Situation (Mar. 3, 2021), available online;

    (Several Western states have explicitly opposed the ICC decision on Palestine).

    See Balkees Jarrah, HRW, The United Kingdom’s Brazen Assault on ICC Independence: Prime Minister’s Letter at Odds with Rule of Law (Apr. 16, 2021), available online;

    (British Prime Minister Boris Johnson issued a letter strongly opposing the ICC decision).

    See Marise Payne, Australia Minister for Foreign Affairs, ICC Pre-Trial Chamber on Jurisdiction in Relation to the “Situation in Palestine” (Feb. 6, 2021), available online.

    (Australia has issued a statement as well against the decision).

  78. 77.

    Union Des Comoros, President de l’Union, Décret No 12-022/PR, Loi n°11-022/AU (Dec. 13, 2011) (implementing the Rome Statute), available online (Fr.)

    (As the report mentions only UAE and Bahrain, I would like to add Comoros).

  79. 78.

    See International Committee for the Red Cross, Eighth Periodic Report on the Implementation of International Humanitarian Law at the Level of Arab States 2015–2018, 26–27 (Nov. 24, 2019) [hereinafter Eighth Periodic Report], available online

    (providing a comprehensive list of these laws).

  80. 79.

    On the pending Egyptian draft, see ElDeeb, supra note 25, at 304–08.

  81. 80.

    Eighth Periodic Report, supra note 78, at 26.

  82. 81.

    See Morocco and the Rome Statute, PGA, available online (last visited Jul. 17, 2022).

  83. 82.

    Eighth Periodic Report, supra note 78, at 26.

  84. 83.

    See Muhannad Al-Ghandour & Ahmed Al-Khattab, The Law of Serious International Crimes Between UAE Reality and the Egyptian Mamluk 10 (Oct. 15, 2019) (Arabic); The authors also examine United Arab Emirates, Federal Decree Law No. 12 of 2017 on International Crimes (Sep. 18, 2017), available online; Bahrain, Decree Law No. 44 of 2018 on International Crimes (Sep. 25, 2018), available online.

  85. 84.

    See Hossein Esmaeili & Jeremy Gans, Islamic Law Across Cultural Borders: The Involvement of Western Nationals in Saudi Murder Trials, 28 Denv. J. Int’l L. & Pol’y 145 (2000), available online; see also Adel Ibrahim Maged, Gender Violence Prohibition in IHL and in Sharia Law, 2nd Conference on Islam, Politics, and Law 59 (Nov. 27, 2009) (Presentation Abstract), available online.

  86. 85.

    Butti Sultan Butti Ali Al-Muhairi, Islamization and Modernization Within the UAE Penal Law: Shari’a in the Pre-Modern Area, 10 ALQ 287, 308 (1995), paywall, doi.

  87. 86.

    Corri Zoli, Mahmoud Cherif Bassiouni & Hamid Khan, Justice in Post-Conflict Settings: Islamic Law and Muslim Communities as Stakeholders in Transition, 33 Utrecht J. Int’l and Eur. L. 38, 40, 44 (Aug. 31, 2017), available online.

    (“[Within Muslim societies,] the barriers to such research and dialogue are many: lack of support for such work, censorship and rigid or homogenous approaches to studying Islamic law, even profound misunderstandings circulated by authorities in public spaces.”).

  88. 87.

    Mashood A. Baderin, Islamic Socio-Legal Norms and International Criminal Justice in Context: Advancing an “Object and Purpose” cum “Maqáṣid” Approach, in Islam and International Criminal Law and Justice, 2 Nuremberg Academy Series 45 (Tallyn Gray ed., 2018), available online.

  89. 88.


  90. 89.

    Gideon John Boas, What is International Criminal Justice?, in International Criminal Justice: Legitimacy and Coherence 1 (Gideon John Boas, William A. Schabas & Michael P. Scharf eds., 2012), available online.

  91. 90.

    Baderin, supra note 87.

  92. 91.

    Geoffrey Swenson, Legal Pluralism in Theory and Practice, 20 Int’l Stud. Rev. 438 (Sep. 2018), available online, doi.

  93. 92.

    Baderin, supra note 87.

  94. 93.

    Id.; Fraser, supra note 28, at 227.

  95. 94.

    Baderin, supra note 87.

  96. 95.

    Markus Peter Beham, Islamic Law and International Criminal Law, in Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives 347, 360 (Marie-Luisa Frick & Andreas Th. Müller eds., Jul. 15, 2013), paywall, doi.

  97. 96.

    Id. at 19.

  98. 97.


  99. 98.

    Id.; see also Julie A. Fraser, Social Institutions and International Human Rights Law Implementation: Every Organ of Society 6–7, 273 (2020), paywall, doi.

  100. 99.

    Ebrahim Afsah, An Islamic Law of Nations? The Weight of History and Tormented Modernization in Muslim Nations, in Universality and Continuity in International Law 189 (Thilo Marauhn & Heinhard Steiger eds., 2011), paywall.

  101. 100.

    See Mohamed Ibrahim Khalil, Islam and the Challenges of Modernity, 5 Geo. J. Int’l Aff. 97 (2004), paywall.

  102. 101.


    (The prohibition of torture as well as cruel, inhuman, or degrading treatment is enshrined in the Universal Declaration of Human Rights, art. 5, International Covenant on Civil and Political Rights, art. 7, and the United Nations Convention against Torture, arts. 1, 16. The prohibition is generally considered to form part of jus cogens).

  103. 102.

    Khalil, supra note 100, at 361.

  104. 103.


  105. 104.

    Baderin, supra note 87, at 45–82.

  106. 105.


  107. 106.

    Usha Natarajan, John Reynolds, Amar Bhatia & Sujith Xavier, Introduction: TWAIL-On Praxis and the Intellectual, 37 TWQ 1946 (2016), available online, doi; Bhupinder S. Chimni, Third World Approaches to International Law: A Manifesto, 8 Int’l Community L. Rev. 3 (Apr. 2006), available online.

  108. 107.

    Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality 153–55 (Mar. 1, 2002), paywall.

  109. 108.

    Baderin, supra note 87, at 153–55.

  110. 109.

    Kamari Maxine Clarke, Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa 161 (2009), paywall, doi.

  111. 110.

    Dworkin, supra note 107, at 161–62.

  112. 111.

    Sardar Ali & Kaur Heer, supra note 4.

  113. 112.

    Summary Records, supra note 5, ¶¶ 23–27.

  114. 113.

    Siraj Khan, Arab and Islamic States’ Practice: The Shari’ah 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.

  115. 114.

    Sardar Ali & Kaur Heer, supra note 4, at 191.

  116. 115.

    Id. at 191–92.

  117. 116.

    See Conference on Legal Pluralism and Its Significance to the Work of the International Criminal Court (May 13, 2022), available online.

    (This recent conference was organized by the present author and co-sponsored by the International Bar Association War Crimes Committee and Northumbria Law School. The author is currently working together with Professor Morten Bergsmo, Director of CILRAP, and a Team of Editors from the MENA region (academics and practitioners) on the Lexsitus-CLICC commentary (covering both the ICC Statute and RPE) which will be fully translated into Arabic and become available online before the end of 2022. Arabic-speaking lawyers, academics, and students, can now have free access to Lexsitus-Lectures, an audio-visual service where the subtitles of 234 films by leading ICL-experts from around the world are already available in Arabic. The Arabic subtitles are also available as separate transcript PDF files in the ICC Legal Tools Database. In the words of Bergsmo: “CILRAP is not only a ‘disseminator’, but a knowledge—and discourse-actor. Lexsitus-Lectures and Lexsitus-CLICC not only seek to disseminate information about the ICC Statute and RPE, but to foster independent knowledge-generation in international criminal law. The Arabic versions seek to do that among Arabic-speaking actors.”)

  118. 117.

    Fraser, supra note 1, at 396.

  119. 118.

    Rudolf B. Schlesinger, Research on the General Principles of Law Recognized by Civilized Nations, 51 Am. J. Int’l L. 734 (Oct. 1957), paywall, doi; see also Kai Ambos, International Criminal Law at the Crossroads: From Ad Hoc Imposition to a Treaty-Based Universal System, in Future Perspective on International Criminal Justice 161, 177 (Carsten Stahn & Larissa van den Herik eds., 2010), available online

    (noting that a purely Western approach must be complemented by non-Western concepts of crime and punishment, such as Islamic law, to establish and develop a universal system).

  120. Suggested Citation for this Comment:

    Mohamed Elewa Badar, The International Criminal Court, Islamic Legal Tradition, and the Arab World: Quo Vadis?, ICC Forum (Jul. 25, 2022), available at

    Suggested Citation for this Issue Generally:

    Has the ICC Under-Represented Non-Western Legal Traditions?, ICC Forum (Jul. 25, 2022), available at

Cavallaro Avatar Image James (Jim) Cavallaro, J.D., Ph.D. Executive Director University Network for Human Rights

O’Connell Avatar Image Jamie O’Connell Lecturer in Residence Stanford Law School

The ICC’s Best Bet: Look to Regional Systems

The ills which we believe must be addressed concern the Court’s selection of situations to investigate, the nature and extent of its efforts to promote national-level prosecution and political and social change, and the ICC’s excessive focus on its own prosecutions. The problems the Court faces are about its priorities, in particular its overemphasis on its own investigation and prosecution of individual cases. Relatively little would be gained by modifying the laws or rules of procedure in those prosecutions, including the incorporation of non-Western elements.


The International Criminal Court (ICC) has much to learn from other human rights systems—non-Western and Western alike. The lessons, though, are less about tensions between Western and non-Western approaches to law and more about the role of prosecution in response to mass atrocity. We argue that the ICC has overemphasized prosecution and underemphasized complementarity. Regional mechanisms, by contrast, have struck a much more effective balance, especially those in the Americas and Europe. The approach of these mechanisms may have been influenced by non-Western understandings of societal goals after mass atrocity. We counsel the ICC to learn from these bodies and move beyond its excessive focus on prosecution.


The ICC has faced, and continues to face, a devastating array of critiques, many legitimate, others less so. With an annual budget approaching $200 million,1 and total expenditures to date of well over $2 billion dollars, the Court has managed to successfully prosecute only a half dozen defendants in two decades of existence. To be fair, the Office of the Prosecutor (OTP) has opened some seventeen preliminary investigations in as many countries (virtually all of them in the Global South).2 But even those numbers make the ICC a costly investment with little concrete return.

Critiques that focus on the Western bias of the ICC—for example, that, to date, only African nationals have been brought to trial and the vast majority of investigations concern situations in Africa—constitute a significant subset of the universe of commentary on the Court. These critiques, while sometimes valid, can distract from the most important challenges the institution faces. Our research and analysis finds that these are tied to the fundamentally mistaken understanding that criminal prosecution by the ICC should be the Court’s primary means for advancing its objectives.3 To be sure, the Court on the whole has more rigorously investigated and prosecuted of individuals from less powerful countries (Global South, primarily African) than more powerful states (European countries, the United States and their close allies). Even after Biden succeeded Trump in office, new Prosecutor Khan seems to have accepted the limits of his position, opting to continue the exclusion of possible U.S. war crimes from the OTP’s Afghan investigation.4 By contrast, the rapid—and justified—response to Russia’s criminal invasion of Ukraine provides fodder for claims that the ICC serves the interests of the powerful at the expense of the weak. While Russia, with its vast nuclear arsenal, is certainly more powerful than the African states whose nationals comprise the bulk of the ICC docket, the ongoing war in Ukraine has demonstrated the former super-power’s weakness. The ICC appears to have assessed as much. And Russia is the lone state outside the Global South among the OTP’s investigations. But all this is a topic for another essay.

Argument Continued

Although the ICC purports to be a purely legal entity that engages only in the realm of law, it is in fact a body embedded in an international legal system that is highly unequal and deferential to the interests of powerful actors. The consequence to date has been a docket of investigations and prosecutions that has focused on peripheral states (mostly African) and which provides little or no oversight of powerful states. As Morehouse Professor Oumar Ba has argued, even referrals involving African nationals conform to regional and subregional power politics: in many cases, these referrals, rather than involving other states, have involved political opponents or guerrilla groups within the very states that have referred situations against their enemies.5 Thus, within the African continent, situations investigated reflect power dynamics on the continent and within particular states. On the whole, the caseload of the ICC has responded to global and regional hierarchies in which Western states remain at the top of the pyramid.

It is valuable to ask if these problems might be resolved, or at least mitigated in substantial measure, by ensuring greater representation of non-Western laws, traditions, principles, rules, and practices in the legal structure and system of the ICC. Our inclination is to believe that diversifying the personnel and practices of the ICC are likely to be valuable goals,6 but these measures are unlikely to bring about the kind of significant change the Court needs.

Nonetheless, we will endeavor to engage this question on its terms. To do so, we suggest dividing the possible non-Western-inspired changes into two broad categories: first, changes to the ICC’s rules and legal practices and, second, changes to the Court’s broader understanding of how political and social change work and what role it can play in those processes. We will say relatively little about rules and legal practices. First, neither of us is an expert in substantive or procedural international criminal law. More importantly, in our view, what ails the ICC is not fundamentally a matter of legal procedure.

Our critique is more profound and involves the institution’s understanding of itself and its role—the second category of possible changes. The ills which we believe must be addressed concern the Court’s selection of situations to investigate, the nature and extent of its efforts to promote national-level prosecution and political and social change, and the ICC’s excessive focus on its own prosecutions. The problems the Court faces are about its priorities, in particular its overemphasis on its own investigation and prosecution of individual cases. Relatively little would be gained by modifying the laws or rules of procedure in those prosecutions, including the incorporation of non-Western elements.

However, depending on what one understands to be non-Western understandings of social and political change, and the possible role of an international court in it, those might well improve the Court’s effectiveness. We would wish to tread cautiously in generalizing about “non-Western” societies, concerned about effacing the vast diversity among billions of people spread across most of the world. At the same time, we recognize that common historical experiences—such as under Western colonial rule—may have created some similarities. We thus see efforts (such as this forum) to explore such questions as invaluable. Some analysts have argued that centering criminal investigation and prosecution as a means to respond to mass atrocity is a distinctively “Western” approach. If that is true—a question we feel underqualified to judge—then incorporating non-Western approaches into transitional justice might de-center investigation and prosecution. That approach would dovetail somewhat with our analysis of how the ICC has gone wrong, although it would diverge as well, as we generally support national level investigation and prosecution of crimes within the ICC’s jurisdiction. Non-Western approaches might also overlap with the methods of regional human rights institutions, such as the Inter-American Commission on Human Rights and the European Court of Human Rights. Those bodies are not fundamentally concerned with individual criminal responsibility, but instead with the overall human rights situation in countries over which they exercise jurisdiction.

We have written about these issues relatively recently in the Yale Journal of International Law (YJIL).7 Below, we summarize our essential findings and analysis.

We suggested that the ICC could learn from regional human rights systems. We focused on two of the ICC’s many goals: securing criminal accountability for mass atrocity and preventing its recurrence. We comprehensively surveyed and analyzed research on the effectiveness of the ICC and of regional human rights institutions—the European Court of Human Rights, the Inter-American Court and Commission on Human Rights, and the African Court and Commission on Human and Peoples’ Rights—in advancing those two goals.8 We concluded that the accumulated experience of regional systems provides a roadmap that the ICC might adopt and adapt to enhance its effectiveness. In terms of the question presented in this dialogue, by embracing the traditions, principles, and practices of other human rights systems, we contend the ICC could advance this agenda. In particular, we argued that the ICC has understood its role in a limited and legalistic fashion. Of course, the International Criminal Court is a court and exercises judicial functions. But the Court has the potential to do much more—to stimulate processes in countries around the world by taking its complementary role much more seriously. This, we explained, is what regional rights bodies have done—applying traditions, principles, and practices that focus less on accountability through individual prosecution and more on policy, engagement with civil society, media, and social movements, as well as by working with some authorities.

The ICC […] has focused narrowly on choosing cases and investigating, prosecuting, and judging them—and compiled a record of many failures and few successes. While the International Criminal Court’s prosecutors and judges should improve their performance of these core judicial tasks, they—along with the ICC’s State Parties, who oversee and guide its priorities—also must rethink the Court’s strategy for pursuing its goals. The methods developed by the regional bodies provide invaluable guidance. We contend that the ICC should devote less attention and fewer resources to directly investigating and prosecuting cases and more to catalyzing and supporting actions within States—by investigators, prosecutors, judges, executive-branch actors, and civil society—that yield criminal accountability for perpetrators and reduce the chances that mass atrocity will occur.9

The question posed in this debate seeks to remedy the limitations and failures of the Court through consideration of possible legal flaws derived from an excessively Western legal approach. To the extent that one considers the Court’s excessive focus on prosecution to be Western in nature and non-prosecutorial approaches to be non-Western, then integrating non-legal approaches could help transform the ICC. But we believe that such an approach would be tangential. As we diagnosed in YJIL:

The Court’s leaders and staff have succumbed to a lawyerly temptation to view their role as narrowly judicial and technical, detached from complicated, often politicized, processes on the ground. The ICC must reconceive its place in the multilevel legal and political realm, as a player that exercises influence through a variety of political and legal channels and whose impact depends on its interaction with others.10

Our contention that the Court sees itself as a body focused nearly exclusively on prosecutions is supported by the data. In particular, the priorities of the OTP (until recently, at least) have manifested this priority:

The OTP Situation Analysis Section, which conducts preliminary examinations, had just five to six staff members until 2011—and devoted half its time to work on investigation-stage situations. [Former Prosecutor Fatou] Bensouda has improved matters: by 2018 the unit had thirteen staff who appeared to be focused almost entirely on preliminary examinations. However, Human Rights Watch’s analysis of their workload concluded that this was too few even for the research and analysis tasks necessary in that stage—such as determining whether crimes within the Court’s jurisdiction had been committed—“let alone the steps that may be necessary to engage national authorities in a way that can catalyze national prosecutions.” For 2019, the OTP requested approximately one-fifteenth as much funding for preliminary examinations as for investigations and prosecutions.11

A central element of the approach of regional bodies has been a multi-dimensional view of the role of law in political and social change and a creative and sophisticated understanding of how the bodies themselves can advance such change. The Inter-American Court and Commission, the European Court, and to some degree the African Commission and Court approach their respective mandates with a clearer sense of the political nature of their engagement. This leads them to engage in a far more expansive set of actions, extending far beyond promoting criminal prosecution. To be fair, these bodies are not empowered to prosecute individuals directly. But they could take a narrow view of their function as essentially to adjudicate state responsibility for human rights violations and order a narrow range of remedies. Instead, they have used their powers more creatively to promote accountability and prevent mass atrocity in the future. The Inter-American human rights system and its African counterpart retain Commissions with broad mandates and extensive competencies beyond adjudicating cases. The Inter-American system has been particularly adept at leveraging its many competencies to advance prosecutions in states themselves, as well as truth commissions, reparations programs, museums and other sites of historical memory, and other measures designed to foster truth-telling, accountability, and to create barriers to recurrence of mass violence. The European Court has begun to order a similarly wide range of remedies and has for decades carefully built its authority and influence over states, to the point where the latter have embedded respect for human rights throughout their executive, legislative, and judicial processes to a striking—if still incomplete—extent.

Even if we were to consider the success rate on the dimension of promoting successful prosecutions alone, the regional systems far outpace the ICC on a cost-per-case basis. Alexandra Huneeus has examined the effect of decisions of the Inter-American system, for example, analyzing the connection between sentences ordering investigation and prosecution and subsequent domestic investigations and prosecutions. A comparison of the impact of these Court sentences demonstrates that they have resulted in nearly as many prosecutions as carried out by the ICC, the ICTY and ICTR combined, though with a far more limited budget. Huneeus wrote in 2013:

[T]he Inter-American Court of Human Rights has made national prosecution of gross, state-sponsored crimes a centerpiece of its regional agenda. The Court […] regularly orders states to investigate, try, and punish those responsible for gross human rights violations as a form of equitable relief. Then, through another interpretive twist, it supervises states’ implementation of its orders: it holds mandatory hearings and issues compliance reports that aspire to hasten and guide the progress of national criminal processes. The Court has decreed and is actively monitoring prosecutions of international crimes in roughly fifty-one cases across fifteen states. Pursuant to its orders in these cases, states have launched new criminal investigations, exhumed mass graves, moved cases from military to civil jurisdiction, overturned amnesties, bypassed statutes of limitations, and created new institutions and working methods to facilitate prosecution of such crimes. Indeed, at least thirty-nine prosecutions launched pursuant to the Court’s orders have yielded convictions.12

Far from undermining their work, this appreciation of the politics inherent in international law has led the Inter-American human rights system and other regional bodies to develop processes that seek to leverage their limited power by engaging a broad range of actors in the countries in which they operate as well as in their broader regions.13 Our analysis in YJIL goes into some detail on their successes.14

In fact, as we have noted, the ICC has, in some instances, taken measures to promote accountability through means other than prosecutions. When it has done so, we argue, it has been most effective:

The ICC’s greatest potential impact is indirect, through its support of and pressure on national-level actors who gather evidence of crimes, prosecute perpetrators in national courts, and punish them at the domestic level, and other contributions to dynamics that reduce atrocity or increase accountability. Less promising is the Court’s conventional judicial work of direct investigation and prosecution of particular perpetrators. Its indirect exercise of influence resembles the process by which regional human rights systems work, and matches the philosophy of complementarity that guided the ICC’s creators.15

The kinds of changes the ICC should make are less about non-Western understandings of law and more about understanding—from a Western or non-Western perspective—the role of Courts and the dynamics of change in societies that have experienced mass atrocity. Indeed, in a few rare but important situations, the OTP has engaged in this way with significant success. As we observed in YJIL, in the case of the conflict in Colombia, engagement by the OTP followed this logic to great success.

The ICC’s role in Colombia’s peace negotiations with right-wing paramilitaries and the Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo (FARC) illustrates how ICC activities other than building and prosecuting individual cases can contribute to reducing atrocities and achieving criminal accountability. The ICC Prosecutor has kept the Court’s examination of Colombia in the preliminary examination stage for fifteen years, since 2004, rather than upgrading it to an investigation and issuing indictments. Moreno Ocampo, then Bensouda, and their staff have engaged regularly in public and private with the Colombian government, judiciary, and civil society, and modulated their positions as the peace talks have progressed. This flexible, strategic approach has allowed the ICC some influence in a complex, high-stakes peace process. The Court has supported the conclusion of a landmark agreement that could end a four-decade civil war characterized by rampant atrocities, while preserving the possibility of criminal accountability in Colombian courts. As Courtney Hillebrecht and Alexandra Huneeus conclude in their exceptionally subtle study, the ICC’s and Inter-American Court’s effect on the Colombian peace process suggests that “ ‘shadow effects’ [may be] the most important way courts exert influence,” rather than through indicting and prosecuting individual cases.16

The blueprint for successful engagement exists. It requires less emphasis on prosecution and far more on complementarity, incorporating as much as possible, the lessons from regional mechanisms.

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

  1. 1.

    See Assembly of States Parties, ICC, Resolution of the Assembly of States Parties on the Proposed Programme Budget for 2022, the Working Capital Fund for 2022, the Scale of Assessment for the Apportionment of Expenses of the International Criminal Court, Financing Appropriations for 2022 and the Contingency Fund, ICC-ASP /20/Res.1, § A(1) (December 9, 2021), available online.

  2. 2.

    These figures are drawn from the ICC’s website. For the investigation on the Philippines, for example, see Republic of the Philippines, ICC, available online (last visited Jun. 24, 2022).

  3. 3.

    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.

  4. 4.

    Agence France-Presse, ICC Prosecutor Defends Dropping US From Afghan War Crime Probe, Al Jazeera, Dec. 6, 2021, available online; see also Cavallaro & O’Connell, supra note 3, at 65.

    (The ICC’s reluctance to pursue the most powerful state in the world is either an unconscionable ethical compromise—or a necessary acknowledgment of the limits of the Court’s power and authority. At a minimum, though, the Court should not have acknowledged that it was curtailing the investigation because it was weak).

  5. 5.

    Oumar Ba, States of Justice: The Politics of the International Criminal Court (Jun. 2020), paywall, doi; see also Payam Akhavan, Self-Referrals Before the International Criminal Court: Are States the Villains or the Victims of Atrocities?, 21 Crim. L. Forum 103 (Feb. 23, 2010), paywall, doi

    (finding such self-referrals consistent with the Rome Statute).

  6. 6.

    List of Counsel Before the ICC, ICC (Apr. 6, 2022), available online (last visited Jun. 25, 2022).

    (At the level of counsel appearing before the ICC, the majority come from states in the Global North despite the absolute lack of defendants from those countries.

    Counsel that appear before the ICC, in accordance with Rule 22 of the Rules of Procedure and Evidence and Regulation 27 of the Regulations of the Court, may be divided as follows:

    599 are from Developed Western States comprised of 24 Countries—Australia, Austria, Belgium, Canada, Denmark, France, Germany, Greece, Hungary, Ireland, Israel, Italy, Japan, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom, United States.

    416 are from Global South States comprised of 82 Countries—Algeria, Angola, Argentina, Armenia, Bangladesh, Benin, Bissau, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkinabe, Burundi, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Croatia, Cyprus, Czech Republic, Democratic Republic of the Congo, Egypt, Estonia, Fiji, Former Yugoslav Republic of Macedonia, Gabon, Gambia, Ghana, Guinea, India, Iran, Ivory Coast, Jamaica, Jordan, Kenya, Kosovo, Kuwait, Lebanon, Liberia, Macedonia, Malaysia, Mali, Mauritania, Mexico, Moldova, Mongolia, Morocco, Niger, Nigeria, Pakistan, Palestine, Peru, Philippines, Poland, Republic of the Congo, Romania, Russia, Rwanda, San Marino, São Tomé e Príncipe, Senegal, Serbia, Sierra Leone, Singapore, Slovenia, South Africa, Sri Lanka, Sudan, Syria, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, Ukraine, Uruguay, Venezuela, Yemen, Zimbabwe).

  7. 7.

    Cavallaro & O’Connell, supra note 3.

  8. 8.


    (“The ICC and other international criminal tribunals have not been the only supranational institutions working to stop mass atrocity: regional human rights commissions and courts in the Americas, Europe, and Africa have used a variety of tools to successfully pressure governments and, through them, non-State actors to halt abuses and hold violators accountable.”).

  9. 9.

    Cavallaro & O’Connell, supra note 3, at 6–7.

  10. 10.

    Id. at 7.

  11. 11.

    Id. at 25.

  12. 12.

    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, 1–2 (Jan. 2013), available online, archived, doi.

  13. 13.

    Cavallaro & O’Connell, supra note 3, at 6.

    (“[T]he ICC should reconceive its strategy and overhaul its operations to act more like a regional human rights institution. Both theory and evidence from practice show that prevention and accountability result primarily from political and legal processes and norms within States, sometimes catalyzed or supported by international institutions, rather than from the actions of international bodies in isolation. Evidence suggests these local processes tend to have more profound and durable effects, provoke less resistance, and cost less than purely international legal processes. The regional human rights mechanisms—especially the Inter-American Commission and Court and the European Court—have learned to play this complementary role with great effectiveness. Through decades of experimentation and practice, they have devised tactics that contribute to the political and legal dynamics that generate accountability and prevention.”).

  14. 14.

    See Id. at 30–57.

  15. 15.

    Id. at 13.

  16. 16.

    Id. at 26.

  17. Suggested Citation for this Comment:

    James Cavallaro & Jamie O’Connell, The ICC’s Best Bet: Look to Regional Systems, ICC Forum (Jul. 25, 2022), available at

    Suggested Citation for this Issue Generally:

    Has the ICC Under-Represented Non-Western Legal Traditions?, ICC Forum (Jul. 25, 2022), available at

Huneeus Avatar Image Professor Alexandra Huneeus Professor of Law University of Wisconsin Law School

The ICC Should Look to Colombian Transitional Justice for Lessons on Legal Pluralism

In closing its seventeen year Preliminary Examination, the ICC signed a cooperation agreement with the Colombian government which depicts the transitional justice process as “a valuable experience that may be replicated in other situations around the world.” The two parties committed to ongoing dialogue and “exchanges of lessons learned and best practices.” The concept of “territory as victim” provides just such a “lessons learned” opportunity for the ICC. First, it provides a model of how an institution that is rooted in Western law can conduct an inter-jurisdictional dialogue with non-Western law in the context of transitional justice. Second, the concept has implications for those considering how to write the crime of ecocide into the Rome Statute.


In a series of ground-breaking resolutions, Colombia’s transitional justice mechanism has declared that the territories of indigenous peoples and Black Colombian communities were victims of the fifty year internal armed conflict, and thus have rights to truth, reparation, and participation in the transitional justice process. The resolutions are the fruit of Colombia’s constitutional commitment to legal pluralism, which is also reflected in the 2016 Peace Accord between the government and the FARC-EP guerrilla. This comment will argue that the JEP’s inter-jurisdictional work, and the concept of the “territory as victim,” provide an opportunity for the ICC to enrich its engagement with non-Western law. When the ICC closed its Preliminary Examination in Colombia in October of 2021, it committed to continued engagement through “exchanges of lessons learned and best practices.”1 Moving forward, the ICC should highlight the JEP’s inter-jurisdictional work as a useful model for other transitional justice processes that include non-Western law. The concept of territory as victim, with its emphasis on the relation of a people to their place and to the non-human beings with whom they share it, also has implications for debates over adding the crime of ecocide to the Rome Statute.


I. Territory as a Victim with Rights: Why Legal Pluralism in Colombia’s 2016 Peace Accord Matters

Colombia’s Special Jurisdiction for the Peace (hereinafter JEP for its Spanish acronym) was created pursuant to the 2016 peace agreement between the Colombian government and the FARC-EP. It is a unique transitional justice mechanism that seeks to render justice for the crimes of Colombia’s fifty year conflict through a mix of retributive and restorative measures. Since opening its doors in 2018, one of the JEP’s main tasks has been delineating and investigating ten emblematic “macro-cases,” each of which encompasses hundreds of individual crimes.

In 2019, JEP judge Belkis Izquierdo issued a resolution granting the request of the Awá people that their territory, the Katsa Su, be declared a victim of the armed conflict in the context of the JEP’s macro-case 02.2 Judges have followed suit in two other JEP macro-cases, granting victim status to the Cxhab Wala Kiwe and the Eperara Euja, which are the territories of the Nasa and the Sia people, as well as to the territories of two Black communities of Tumaco.3

The resolutions reflect the JEP’s commitment to acknowledging that the armed conflict had differential impact on differently situated groups.4 Indigenous and Black Colombians were particularly hard hit by the armed conflict, suffering high levels of displacement from their territories, direct attacks on the general populations, and strategic attacks on leaders.5 Of the ten macro-cases, three focus on regions where indigenous peoples and Black Colombian communities reside (Cases 02, 04, and 05), and a fourth will be focused entirely on the conflict’s impact on all of Colombia’s ethnically identified peoples (Case 09).

Argument Continued

In a prior article, co-author Pablo Rueda Sáiz and I show that the JEP’s accreditation of territories as victims gives legal expression to the idea that:

[I]t is not just human lives and relationships that are upended by armed conflict, but also relations with non-humans, including animals, plants, ecosystems and natural entities […] such as rivers and mountains, and the spiritual world.6

The theme that runs through these resolutions, in other words, is that the armed conflict severed the ties between a people and its territory.7 In the words of the Nasa people, as quoted by the JEP:

Our ancestral and sacred territory has suffered violations, alterations, mutilations, occupations and harms, product of the armed internal conflict, which have negatively transformed the bond that the Indigenous communities had with their territory, violating the balance, harmony, and autonomy of the Nasa indigenous people.8

The JEP and its interlocutors are only just beginning to figure out how to bring these ideas about harm to life through legal procedures. The accreditation of the territories means that they have the same rights as any other victim under the 2016 peace agreement: rights to truth, reparation, justice, and participation in the JEP’s processes. But the Katsa Su cannot appear in court to convey the harm it has suffered or the reparation it seeks. Thus, the JEP has allowed the organization that represents the Awá before the JEP to speak for the Katsa Su.9 The JEP has held special hearings in situ to learn of the harm of the Katsa Su, with special attention to how this harm affects the Awá people in turn.10 In a later stage, the JEP will have to create reparatory measures to redress the harm suffered by the victimized territories.11

II. Lessons for the ICC and for Ecocide Advocates

In closing its seventeen year Preliminary Examination, the ICC signed a cooperation agreement with the Colombian government which depicts the transitional justice process as “a valuable experience that may be replicated in other situations around the world.”12 The two parties committed to ongoing dialogue and “exchanges of lessons learned and best practices.”13 The concept of “territory as victim” provides just such a “lessons learned” opportunity for the ICC. First, it provides a model of how an institution that is rooted in Western law can conduct an inter-jurisdictional dialogue with non-Western law in the context of transitional justice. Second, the concept has implications for those considering how to write the crime of ecocide into the Rome Statute.

A. On How to Conduct Inter-Jurisdictional Dialogue

The JEP’s openness and ongoing commitment to dialogue with indigenous legal systems could serve as a model for other transitional justice processes. The ICC should use it as an example of a legally plural process when it engages with other situations which include people from non-Western traditions.

The legal concept of territory as victim is a hybrid legal product—it is the fruit of a long-standing dialogue between Colombia’s national legal system, rooted in Western traditions, and the justice systems of its indigenous peoples. However, as argued by Daniel Ruiz Cerda, the concept of territory as victim takes this dialogue to a new level.14 By recognizing territory as a legal subject, the Colombian legal system goes beyond merely recognizing that the Awá have a distinct worldview and a different way of understanding their territory. The JEP’s resolutions adopt this way of viewing the Awá’s territory as their own: they bring the Katsa Su into being as a legal subject in Colombian law.15 In this way, the Colombian legal system is not acting as a neutral arbiter between different cultural views but allowing itself to be changed through its dialogue with indigenous legal systems.16

The JEP is also a model in how closely it collaborates with victims to understand their perspective. In the context of Case 02 alone, the JEP reports that is has conducted over eighty inter-jurisdictional hearings with indigenous justice actors.17 Additionally, the JEP is a model of diversity. Of the fifty-one SJP judges, over half are women; over 10% identify as indigenous and over 10% identify as Afro-descendent Colombians; and a majority hail from outside the capital city of Bogotá. It is not a coincidence that Judge Belkis, who first accredited the Katsa Su, is herself an indigenous woman who understands and is committed to moving between cultures, or cosmovisions.18 Her work suggests that inter-jurisdictional dialogue is more likely to succeed in systems that give leadership roles to indigenous peoples alongside non-indigenous actors.

The JEP as a model of legally plural practice comes with a caveat. Colombia’s legal pluralism is the product of the decades-long activism of indigenous groups in Colombia, and in Latin America more generally. These groups have pushed successfully for legal recognition of their territories and for greater autonomy and recognition within national legal systems, frequently turning to the Inter-American Human Rights System to advance their claims. Further, the Colombian constitution commits the government to the task of inter-jurisdictional dialogue. It is a practice with which Colombian judges and lawyers are familiar. Together these factors create a legal context that is more open to and familiar with indigenous legal thought than may be available in most of the situations before the ICC.

Also, while I am recommending that the JEP’s practice serve as a model of interjurisdictional dialogue with non-Western peoples, I am not recommending that the ICC adopt the practice of accrediting territories as victims as a general practice. The territory as victim is a culturally specific legal idea. It would not have made sense, for example, to declare the mausoleums and other protected buildings of Timbuktu to be victims in the Ahmad Al Faqi Al Mahdi case. Such a practice should only come at the request of the victims and should reflect the way in which the victims experience the harm.

B. Ecocide and the Concept of Territory

The concept of territory as victim foregrounds the ties—cultural, spiritual, social, and moral—of a people to their particular place. This emphasis could inform how we conceive of the elements of the ecocide and should be studied by those who seek to add the crime of ecocide to the Rome Statute.

In July 2021, a working group organized by Stop Ecocide released a draft of the language that they are advocating should be added to the Rome Statute.19 In delineating the harm threshold necessary for an unlawful act to qualify, they require that the damage caused be either “severe and widespread” or “severe and long-term.”20 By widespread, they refer to:

[D]amage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings.21

The definition is focused on the geographical and physical features of the land, not on its cultural and spiritual meaning. It speaks to space, not place. This definition fails to attend to the ideas expressed by the territory as victim: a territory can be of limited geographical reach, and yet its destruction has deep meaning that could impede the cultural survival of a people.22 This can be the case even if the destruction does not meet the threshold for long-term.23

An international law that that is in dialogue with indigenous peoples could mean giving weight to the relationship of a people to their territory, either by adding an exception as regards indigenous people’s territory, or by shifting the focus of the definition to include not only physical but cultural attributes of what it calls “the environment.” But such a revision must be made with care. As noted above, the territory as victim concept is the product of the long-term activism of indigenous groups fighting for more autonomy and control of their territories, and the claims rests on their special relationship to their territory—on its distinctiveness. It is important not to dilute the political leverage of their claim which is of a differential harm. We must take care to learn from an indigenous concept in a way that does not appropriate, expropriate, or weaken it, but rather in a way that acknowledges and bolsters the autonomy of indigenous peoples.


There is a paradox here. The ICC was created as a way of imposing a top-down regime that would push states to respond to international crimes in a particular way. The whole point was to construct a universal, one-size-fits-all paradigm. Now, as the prompt to this forum suggests, the ICC is being asked to consider the nuances of transitional justice, and in particular to engage in the complexity of inter-jurisdictional dialogue with non-Western peoples. The ICC’s openness to the JEP, with its unique mix of restorative and retributive measures, is a sign that it is starting to be able to approach transitional justice systems with nuance. It is to be hoped that the ICC also will be able to learn from the JEP’s deep engagement with indigenous and Black Colombian peoples.

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

  1. 1.

    Cooperation Agreement Between the Office of the Prosecutor of the International Criminal Court and the Government of Colombia, Art. 4 (Oct. 28, 2021) [hereinafter Cooperation Agreement], available online.

  2. 2.

    Jurisdicción Especial Para la Paz, Auto Sala de Reconocimiento de Verdad Belkis Izquierdo Torres 079 (Nov. 12, 2019) (Colom.) [hereinafter Awá Resolution], available online.

  3. 3.

    See Jurisdicción Especial Para la Paz, Auto Sala de Reconocimiento de Verdad Raúl Sánchez 002 (Jan. 17, 2020) (Colom.) [hereinafter Nasa Resolution], available online

    (accrediting Cxhab Wala Kiwe territory as victim);

    see also Jurisdicción Especial Para la Paz, Auto Sala de Reconocimiento de Verdad Belkis Izquierdo Torres 079 (Jun. 10, 2020) (Colom.), paywall

    (accrediting Eperara Euja territory as victim).

  4. 4.

    Congress of Colombia, Estatuaria de la Administración de Justicia en la Jurisdicción Especial Para la Paz, Law 1957, Art. 18 (Jun. 6, 2019), available online

  5. 5.

    Comisión de la Verdad, Los Impactos del Conflicto en los Territorios de los Pueblos Indígenas de la Región Andina y sus Luchas por la Pervivencia y Reexistencia (Oct. 20, 2020) (Colom.), available online; see also Unidad Víctimas, Más De 1,2 Millones de Víctimas Étnicas Dejó El Conflicto Armado en Colombia (Oct. 10, 2017) (Colom.), available online.

  6. 6.

    Alexandra Huneeus & Pablo Rueda Sáiz, Territory as a Victim of Armed Conflict, 15 IJTJ 210, 222 (Mar. 2021), available online, doi; see also Belkis Izquierdo & Lieselotte Viaene, Decolonizing Transitional Justice From Indigenous Territories, 34 Per La Pau 1 (Jun. 2018), available online; see also Dejusticia, Katsa Su: Ecologías de la Guerra en la Pervivencia del Gran Territorio Awá: Derecho Propio, Coordinación Interjurisdiccional y Violencia Estructural (Mar. 25, 2022) (Colom.), available online.

  7. 7.

    Huneeus & Rueda Sáiz, supra note 6, at 211.

  8. 8.

    Nasa Resolution, supra note 3, ¶ 13.5 (my translation).

  9. 9.

    Awá Resolution, supra note 2.

  10. 10.

    Jurisdicción Especial Para la Paz, Prioriza la situación territorial de Ricaurte, Tumaco y Barbacoas (Nariño) (Colom.) [hereinafter Prioritizing the Territorial Situation], available online (last visited Jun. 22, 2022).

  11. 11.

    See Huneeus & Rueda Sáiz, supra note 6; see also Dejusticia, supra note 6.

  12. 12.

    Cooperation Agreement, supra note 1.

  13. 13.

    Id., Art. 4

  14. 14.

    Daniel Ruiz-Serna, El Territorio Como Víctima. Ontología Política y Las Leyes de Víctimas Para Comunidades Indígenas y Negras en Colombia, 53 Revista Colombiana de Antropología 85 (Sep. 13, 2017) (Colom.), available online, doi..

  15. 15.

    Huneeus & Rueda Sáiz, supra note 6.

  16. 16.

    Ruiz-Serna, supra note 14; Id.

  17. 17.

    Prioritizing the Territorial Situation, supra note 10.

  18. 18.

    See Izquierdo & Viaene, supra note 6.

  19. 19.

    Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide: Commentary and Core Text (Jun. 2021), available online.

  20. 20.

    Id. at 5.

  21. 21.


  22. 22.

    See, e.g., David R. Goyes, Nigel South, Mireya Astroina Abaibira, Pablo Baicué, Angie Cuchimba, & Deisy Tatiana Ramos Ñeñetofe, Genocide and Ecocide in Four Colombian Indigenous Communities: The Erosion of a Way of Life and Memory, 61 BJC 965 (Jul. 2021), available online, doi

    (drawing connections between ecocide and genocide in the Colombian context);

    See also Lauren J. Eichler, Ecocide Is Genocide: Decolonizing the Definition of Genocide, 14 Genocide Stud. & Prevention 104 (2020), available online, doi.

  23. 23.

    Stop Ecocide Foundation, supra note 19.

    (“ ‘Long-term’ means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time.”).

  24. Suggested Citation for this Comment:

    Alexandra Huneeus, The ICC Should Look to Colombian Transitional Justice for Lessons on Legal Pluralism, ICC Forum (Jul. 25, 2022), available at

    Suggested Citation for this Issue Generally:

    Has the ICC Under-Represented Non-Western Legal Traditions?, ICC Forum (Jul. 25, 2022), available at

Nickson Avatar Image Ray Nickson, Ph.D., Barrister & Solicitor Senior Lecturer University of Newcastle Law School

By Recognizing Broader, Deeper, and Longer Conceptions of Justice Through Complementarity, the ICC Can Transcend a Narrow, Western Approach to International Criminal Justice

Recognizing non-Western laws, traditions, rules, and practices simply requires a more embracive approach to complementarity under Article 17. By recognizing justice efforts conceived more broadly, deeply, and longer as satisfying complementarity, the ICC provides the space for non-Western, traditional, indigenous, restorative, and other justice mechanisms to be employed at the national and local level. The ICC can buttress such an approach to complementarity by noting that when national justice initiatives are genuine attempts to address wrongs and harms caused by contravention of international criminal law, it is not in the interests of justice under Article 53 to proceed with investigation and prosecution merely because those justice initiatives do not resemble justice as the ICC would pursue it.


The International Criminal Court (ICC) has faced criticism for privileging Western, adversarial legal traditions. To be truly international, however, the ICC must incorporate non-Western legal laws, traditions, principles, rules, and practices. No substantive legal change must occur for this internationalization to be realized. Instead, the ICC, and especially its prosecutors, should be open to broader, deeper, and longer conceptions of justice.

Adversarial trials are not always the best mechanism for achieving justice goals in the wake of crimes against humanity and mass violence. When affected communities, transitioning from violence to peace, select an alternative justice mechanism to investigation and prosecution, the ICC should empower those communities and respect those choices by affirming the myriad ways in which impunity can be diminished, and justice can be sought and achieved.


Concerns that the ICC disproportionately emphasizes Western, European approaches to justice are not new.1 Nor are arguments that the ICC, with its exclusive use of prosecutions and trials, largely in African locations, is a neo-colonial enterprise.2 While there may be merit to these critiques, there does not have to be. What is required from the ICC to avoid these critiques is greater institutional humility and an acceptance by the ICC and its staff of justice in national jurisdictions that is broader, deeper, and longer than currently conceived.3 This does not require any legal reform of the ICC. Indeed, while Article 21(1) of the Rome Statute might provide scope for the more formal adoption of non-Western laws, traditions, rules and practices by the ICC, we do not have to wait for formal inclusion.4 Instead, recognizing non-Western laws, traditions, rules, and practices simply requires a more embracive approach to complementarity under Article 17.5 By recognizing justice efforts conceived more broadly, deeply, and longer as satisfying complementarity, the ICC provides the space for non-Western, traditional, indigenous, restorative, and other justice mechanisms to be employed at the national and local level. The ICC can buttress such an approach to complementarity by noting that when national justice initiatives are genuine attempts to address wrongs and harms caused by contravention of international criminal law, it is not in the interests of justice under Article 53 to proceed with investigation and prosecution merely because those justice initiatives do not resemble justice as the ICC would pursue it. This avoids postcolonial critiques of the ICC by incorporating into the ICC’s function a recognition of the myriad ways in which a meaningful justice to local communities can be pursued when opting for something other than an adversarial model from western legal traditions. The ICC, its representatives, and its supporters must be champions of broader, deeper, and longer justice initiatives, and not merely invoke western retributive justice as the only way to respond to international crimes in the wake of mass violence.

Argument Continued

The ICC could be considered to perform multiple functions, but I am interested here in its role as part of transitional justice. Transitional justice is “the process that seeks to address the abuses and crimes of prior regimes or conflicts in transitions to more democratic polities.”6 There is no consensus among scholars or practitioners of an exhaustive or definitive list of the goals or aims of transitional justice.7 Such goals and aims, however, typically exceed what a trial, or trials, focusing on individual guilt or innocence can achieve.8 As currently constituted, the ICC itself can only perform and deliver a limited type of justice: trials and punishment.9 While trials may be significant in some contexts, they will not be the most important mechanism for achieving meaningful justice in all contexts.

Due to the nature of complementarity in the Rome Statute, however, the ICC can (and indeed should) recognize, empower, and support other forms of justice as conceived and pursued within national jurisdictions. Article 17 of the Rome Statute established the relationship between national and international jurisdictions. It states that cases are inadmissible where the State that has jurisdiction carries out a genuine investigation or prosecution and not merely an attempt to shield the perpetrator from accountability with a sham proceeding. Almost immediately after the Rome Statute that established the ICC was finalized, questions were raised about complementarity and the relationship between the ICC and national justice initiatives that did not follow the ICC’s model of adversarial trials. Llewellyn posed the question early in this debate: “[whether] the ICC’s jurisdiction [would] add insult to injury in transitional contexts by precluding truth commissions as a viable means of dealing with the past?”10 Llewellyn, in analyzing Article 17 of the Rome Statute, noted that the issue is whether investigation and prosecution are distinct and separate actions and if an alternative approach to justice that included investigation but did not anticipate prosecutions would be enough to satisfy State jurisdiction and prevent the ICC from invoking its own jurisdiction.

Two decades on and the question of alternative justice mechanisms and complementarity with the ICC is still debated. In a thorough examination of the question of complementarity, Minow, almost twenty years after Llewellyn, asks “whether the ICC and the project of international criminal justice it represents, leave room for alternative conceptions of justice beyond the western adversarial model.”11 Minow suggests a possible understanding of Article 17 where the ICC must leave space for such alternatives, because if the ICC only recognized Western-style prosecutions as satisfying complementarity then post-colonial critiques of the ICC would have merit.12 Minow concludes that:

Greater acceptance of alternatives to formal criminal prosecution at the local level may be wise, given both the symbolic and real benefits of deferring to domestic and culturally resonant responses to mass violence, and the exigencies that make formal and criminal prosecution unavailable in a domestic context.13

An interpretation of the Rome Statute that permits recognition of alternative justice mechanisms, and not solely adversarial trials, is to be preferred because we should prioritize the idea that international justice should reflect the diversity of justice models internationally, while also being open to innovation. Innovation, for example, might mean the “rediscovery” of lost or moribund traditional or indigenous justice practices. It may also mean the development of a novel justice mechanism, suited to the context and culture of the communities it serves. The ICC; when evaluating whether an alternative justice practice satisfies for the purposes of complementarity; should consider broader, deeper, and longer conceptions of justice. In particular, we must eschew the western criminal law’s obsessive attachment to retribution and punishment when conceiving of a justice that is more international.14 If it is the International Criminal Court, then it must allow diverse approaches to satisfy the complementarity principle. Indeed, “the hard sell for the myopically legal approach that preceded establishment of the International Criminal Court must now be put in its box.”15

Minow notes that statements from the ICC’s prosecutors suggest that only criminal investigations with the possibility of criminal trials are considered to satisfy complementarity in the Rome Statute and therefore exclude jurisdiction of the ICC.16 A broader, deeper, and longer conception of justice provides more space for survivors to be vindicated by some justice. The real strength of the ICC should be in how it empowers national and local justice initiatives that genuinely seek to address past harms and advance peace and healing through its complementary role, invoking jurisdiction only when genuine local efforts, including non-prosecutorial alternative justice efforts, are absent. Alternative justice initiatives at the national and local level should not fall short of satisfying complementarity principles simply because they do not employ western models of criminal justice and do not emphasize retribution as the primary justice outcome. Communities affected by crimes against humanity and war crimes may prioritize other justice goals. Therefore, we should not elevate trials that provide limited justice outcomes over potential alternative justice mechanisms that may deliver justice outcomes seen as more relevant by post-conflict communities.

In this comment I wish to focus on broadening and deepening our conceptions of justice, with specific reference to how the ICC considers complementarity. Discussions of lengthening justice are elaborated elsewhere and are not as relevant to this discussion of complementarity.17 That does not mean, however, that lengthening our conception of justice is irrelevant when considering the jurisdiction of the ICC. Indeed, Article 17 makes plain that an unjustified delay in bringing someone to justice may be enough to trigger ICC jurisdiction.18 Yet, we should allow temporal space for affected communities to define their own justice goals and pursue them. A rush by the ICC to invoke jurisdiction because a nation exiting conflict does not immediately pursue justice could be counterproductive. Speedy investigations and trials do, of course, have their advantages and a delay may result in the loss of crucial evidence for pursuing justice, or the flight or death of potential defendants. Advantages of swift justice may be outweighed, however, by the advantages of providing stakeholders in affected communities the opportunity to design and pursue a justice that is most meaningful to them.

If we conceive of transitional justice more broadly, it may be possible to deliver more justice.19 Nickson and Braithwaite explain, “[t]his response grows from valorizing the idea that international law should have a more international, less narrowly western, character, because it is international.”20 What we ought to include in our vision for transitional justice are alternative forms of justice to the retributive model: forms such as traditional justice;21 indigenous justice;22 restorative justice23 and so on. In this way, it is recognized that justice is holistic and ought to be practiced that way. For the world’s largest religions, the holism of justice is a constant theme.24 Zehr has pointed out that Judaism and Christianity share the Hebrew word shalom for holistic peace with justice.25 Llewellyn and Philpott state that the word salam in Arabic has a similar meaning.26 Shalom and salam resonate with the concept of ubuntu. Ubuntu is a Zulu, Xhosa and pan-African concept of justice. The holism of an ubuntu-informed understanding of justice was outlined in a 2011 hate speech trial in South Africa:27

Ubuntu is recognised as being an important source of law within the context of strained or broken relationships amongst individuals or communities and as an aid for providing remedies which contribute towards more mutually acceptable remedies for the parties in such cases. Ubuntu is a concept which:

  1. is to be contrasted with vengeance;

  2. dictates that a high value be placed on the life of a human being;

  3. is inextricably linked to the values of and which places a high premium on dignity, compassion, humaneness and respect for humanity of another;

  4. dictates a shift from confrontation to mediation and conciliation;

  5. dictates good attitudes and shared concern;

  6. favours the re-establishment of harmony in the relationship between parties and that such harmony should restore the dignity of the plaintiff without ruining the defendant;

  7. favours restorative rather than retributive justice;

  8. operates in a direction favouring reconciliation rather than estrangement of disputants;

  9. works towards sensitising a disputant or a defendant in litigation to the hurtful impact of his actions to the other party and towards changing such conduct rather than merely punishing the disputant;

  10. promotes mutual understanding rather than punishment;

  11. favours face-to-face encounters of disputants with a view to facilitating differences being resolved rather than conflict and victory for the most powerful;

  12. favours civility and civilised dialogue premised on mutual tolerance.

Ubuntu broadens (Western) justice by incorporating different paths for addressing wrongs. A conception of transitional justice informed by ubuntu may well serve to enhance the justice that stakeholders receive. It does this by enabling responses that would otherwise be overlooked or dismissed in an approach to complementarity privileging western legal traditions.

A way to broaden transitional justice would be to consider more actively a focus on harms and needs when assessing complementarity. Current transitional justice as practiced by the ICC focuses primarily on crimes. This focus is not unique to transitional justice or international criminal justice. It is also a dominant feature of most Western conceptions of criminal justice. The adoption of a focus on harms rather than crimes could assist the realization of a greater number of aims for justice.28 Many aims relate more to the victim/survivor experience of mass violence and their needs for recovery. Currently, these aims are not well-addressed in official retributive expressions of transitional justice. When we focus on crimes, recovery is rarely considered directly. A crime focus seeks to respond to a wrong, frequently by punishing the wrongdoer. These efforts do hope to provide some redress for those harmed directly by the wrongdoer—yet only for those whose harms are prosecuted. This leaves the victims whose harms have not been prosecuted, or perhaps even investigated, without redress. A focus on crimes can only ever hope to recognize symbolically the harms suffered by others whose offenders have not had their crimes investigated and prosecuted. This is a relevant consideration for the ICC, an institution that can only ever provide a handful of symbolic prosecutions.

There are several distinct benefits to transitional justice adopting a focus on harms.29 The ICC can contribute to this through recognition and support for such initiatives through complementarity under Article 17. For societies in transition, the prior human rights abuses were most likely widespread. Hence, offending is similarly widespread. Transitional justice, as it is practiced through trials, has come to accept that the vast majority of offenders will not be prosecuted. This leaves the vast majority of crimes unattended by official efforts. Consequently, the victims of those crimes will not be directly engaged or invested in the transitional justice process. This means that the majority of victims are excluded, which can equate to the majority of a transitional society being excluded. Many of the intended goals of transitional justice can only be realized with the participation and investment of local communities. For this reason, recognizing as legitimate alternative justice mechanisms that focus on harms is beneficial, as it can include a far greater number of community members in the transitional justice process. When such efforts take place and ICC investigations and prosecutions might undermine those efforts, it is clearly not in the interests of a justice conceived more broadly, deeply, and longer to intervene.

A problematic concept with trials after periods of mass violence is that judging takes place from an entirely different moral order than that which existed during conflict.30 Human rights abuses often take place in societies with an absence of law and order and skewed moral frames as a result of conflict. In these conditions, crimes are frequently encouraged, rewarded, supported, and condoned by leaders, military and religious authorities, and even the offenders’ communities. Under these circumstances, it may be difficult for many to avoid participation in human rights abuses. It may be common for human rights abusers to face a tough choice between demonstrating solidarity with their own group by participating in abuses, or risk the safety and security of themselves and their family. Judging such conduct when hostilities have abated and a different normative frame is in place may raise questions of legitimacy. A focus on crimes encourages judging from a legal framework. That framework is unlikely to sufficiently account for the moral quandaries some offenders faced during conflict. This in turn may discourage participation by those who are most likely to be in a position to repair harms: offenders, for instance, who know the fate and location of deceased loved ones. A focus on harms does not face this challenge. A focus on harms redirects attention towards recognizing the humanity of those who have suffered.

This is not to dismiss entirely the value of a focus on crimes, a focus designed to designate offensive conduct as abhorrent. The label of crime carries authority and weight: to describe something as a crime is to forcefully declare it outside the boundaries of accepted conduct. The application of the label crime is a powerful form of censure for criminals and provides a degree of acknowledgment for (some) victims. This is as true in transitional justice as it would be in domestic criminal justice. Similarly, a focus on crimes may promote the expressivist function of transitional justice described by Drumbl: “the messaging value of punishment to affirm respect for law, reinforce a moral consensus, narrate history and educate the public.”31 While the censure that follows from labelling something as criminal may be severe, the acknowledgment is likely to end at this point. It does not require that we examine the extent of the crime or its ongoing effects. It certainly does not require that we acknowledge the continuing impact of the crime on the victim. It may be a superficial form of acknowledgment for victims when genuine efforts at repair may do more to acknowledge the harms caused by the crime. For these reasons, there is limited scope to the acknowledgement victims receive by labelling the conduct that harmed them as criminal. In contrast, a focus on harms requires a commensurate focus on needs. The needs of individuals and communities after mass violence will correspond to what we might otherwise express as many of the aims of transitional justice: reparation, acknowledgment, truth.32 Acknowledging alternative justice mechanisms that focus on harms rather than crimes as sufficient to exclude ICC jurisdiction is a fundamental way the ICC can be less euro-centric and promote international law that is more authentically international.

Broadening our conception of responsibilities in transitional justice may provide another way to achieve a greater number of transitional justice goals. The term responsibilities, as it is used here, is distinct from responsibility. This proposal does not seek to broaden our understanding of who is criminally responsible. That would be a problematic suggestion. Criminal responsibility for crimes against humanity is a well-developed area of jurisprudence. Rather, it is proposed that we broaden our understanding of responsibilities in the wake of mass violence and as a component of transitional justice. If the ICC recognizes alternative justice efforts that focus on responsibilities, the scope for what justice might be delivered to post-conflict communities is enhanced. Responsibilities, in this sense, are steps that individuals, communities, businesses, industries, governments, militias, and others ought to take to rectify past wrongs and contribute to ongoing justice and rebuilding efforts. An oft-cited justification for the use of criminal trials in transitional justice is that they individualize guilt. The benefit of this, it is claimed, is to alleviate the burden of collective guilt from communities and to encourage communities to see crimes as having been perpetrated by individuals, not groups or entire communities, thereby promoting reconciliation. The true extent that this has taken place in post-conflict societies is difficult to assess. It appears, however, to have been more of a dream than a reality.33 For instance, Nettlefield’s research shows that members of the Bosnian military were more likely to believe that other ethnicities, not their own, were most responsible for atrocities, despite international and domestic trials.34 In my own research, interviewees in Cambodia spoke of discrimination against the children of Khmer Rouge cadre by their non-Khmer Rouge teachers.35 Such evidence suggests that trials have not been successful in removing collective guilt from communities. In response, it is proposed that to broaden transitional justice, we also need to conceive of responsibilities that stem from mass violence more broadly. There is a benefit in avoiding the attachment of guilt to communities in transitional societies, as outlined by the advocates for individualizing guilt. What should be encouraged is collective ownership of harms. This means that communities, government agencies or departments, businesses and industries, militias and security forces would accept responsibility to perform acts that will address the impact of conduct or complicity by such groups during conflict. Recognizing alternative justice mechanisms that respond to harms may result in more meaningful justice for those most affected by conflict, than from distant trials of a few leaders.

The notion advanced here of collective responsibility builds upon and draws from successful practices of group reconciliation efforts in Bougainville,36 where reconciliation between groups was observed to create paths to reconciliation between individuals.37 The rebuilding of houses and places of worship is not a new manifestation of collective efforts at reconciliation: such activities occurred in Indonesian peacebuilding and were seen to encourage the return of victims to former communities.38 Activities conducted under this rubric are likely to go a long way in achieving many goals of transitional justice that are often neglected in a focus on prosecutions and trials. Of course, such initiatives could be pursued with trials, but where post-conflict communities elect for an alternative to prosecution, and where ICC involvement would interfere with this, the ICC should prioritize local choices through its complementary role.

A practical reason to recognize alternative justice is that trials can be counter-productive. Offenders may find living with their crimes difficult and employ techniques of rationalization and neutralization to justify their behavior.39 In a domestic criminal setting, offenders will argue that: their victims deserved it or invited the offense, the victims could afford to be deprived of their property or rights, the criminal conduct was not particularly harmful, or the offender themselves is the true victim of the situation.40 Such techniques are used to diminish feelings of guilt that would otherwise be experienced as a result of criminal conduct. Trials are said to address such rationalization and neutralization quite poorly.41 Instead of encouraging offenders to dispense with rationalization and neutralization techniques—to accept the harms committed and recognize the impact of their behavior and the suffering of victims—prosecutions and trials have quite the opposite effect. The adversarial nature of criminal proceedings encourages the maintenance of rationalization and neutralization techniques. Similarly, the removal of—or limited role for—victims from the process does little to facilitate any realization of the impact of offending on them. There is very little in prosecutions and trials that confronts the offender directly with the harm of their offending and that consequently challenges their rationalizations and neutralizations.

This is directly relevant to transitional societies. In such societies, rationalization and neutralization techniques are manifested in the process of othering. Here, groups are divided by some form of identity (such as ethnicity) and encouraged to view others in opposition to that identity. These “others” are the enemy and atrocities and human rights abuses against them are both rationalized and neutralized by reference to this identity framework.42 Problematically, in international criminal trials, these rationalizations and neutralizations continue. It has been common for defendants to maintain their neutralization fictions during international criminal trials. In many trials, the actions are still maintained as saving, liberating, reforming, protecting the perpetrator’s in-group.43 Or the extent and nature of the abuses is denied. Such conduct during trials can further entrench social division in transitional societies. This is because the various sides still see the enemy-other; there is nothing to bring communities together in this landscape. It is an impediment to peaceful co-existence and reconciliation.

An approach that directly confronted these rationalization and neutralization techniques could go much further in aiding shared aims of peaceful co-existence and reconciliation. What may be required is a process that re-humanizes the victim who has become the enemy-other through rationalization and neutralization. Although such re-humanization must take place from the offender’s (and preferably also the offender community’s) perspective it places the dignity and inviolability of the victim at its center. A shift from viewing the victim as the enemy-other to considering them a fellow citizen worthy of the same respect and rights is an important step towards reconciling individuals and communities. One way would be to focus on harms, but it also requires greater inclusivity. Even if reconciliation is too hopeful, there is still the prospect of contributing to an easing of tensions and the reduction of embedded violence by fostering a climate of greater mutual respect.

Deepening our conception of transitional justice means providing greater opportunities for meaningful engagement in the process. When an ICC investigation and prosecution would disrupt local justice initiatives or undermine the integrity of local, democratic institutions pursuing justice, the ICC should defer to these initiatives under its complementary role. Recognizing deeper conceptions of justice can mean empowering local, contextually and culturally relevant designs for pursing justice. This method of institution design, “outside-in” design,44 is a more participatory and stakeholder inclusive method. An “outside-in” approach to the design of an institution is where the design reflects the needs and preferences of users rather than administrators.45 Braithwaite notes, in relation to tax systems and risk management, that institutions designed inside-out (designed with administrative purposes in mind) can often be too inflexible.46 A similar practice exists in transitional justice: mechanisms are often designed to reflect the capacities of donors or goals of elites. The ICC is such an institution, not designed by post-conflict communities, but pre-existing and inflexible in adapting its practices to local contexts and needs, except when it utilizes complementarity with a broader, deeper, longer conception of justice. An “outside-in” design for transitional justice would incorporate many more justice goals in this process.47 There are several benefits for transitional justice from this. It makes transitional justice far more inclusive than its current practice at the official level. Recognizing alternative justice initiatives designed outside-in means communities would be aware that they have involvement in the process and that their ideas are considered.

A broader conception of transitional justice is a more holistic and multidimensional understanding of what justice can mean and be.48 The ICC exemplifies how legalism has come to dominate the theory and practice of transitional justice. This dominance of legalism, especially western adversarial trials, constrains the positive contributions other understandings of justice can make in transitional societies. In a broadened conception of transitional justice, prosecutorial responses would be problematized to a greater extent and various other responses would be considered in tandem with, or in place of, trials. A significant and straightforward way to achieve this is for the ICC and its prosecutors to take a more humble view of investigation and prosecution in the western legal sense and accept broader, deeper, and longer understandings of alternative justice mechanisms as genuine national efforts at justice that exclude further ICC involvement.

The ICC was only ever conceived as a supplementary institution to national jurisdiction for international criminal law—it complements, but does not usurp the authority of national courts to pursue justice in the wake of breaches of international criminal law. It is precisely because of the ICC’s complementary role that it can perform a more inclusive approach to non-western legal traditions, and support traditional, restorative, and other more contextually appropriate justice measures when nations exiting conflict and transitioning to peace and democracy elect to utilize them. This will require for many; particularly for the international legal and NGO communities invested in conceptions of international criminal justice premised on western, retributive justice; a reimagining of how justice is understood. I argue that nothing, in particular, must change about the rules of the ICC, but that those within the ICC and its advocates must be more embracive of broader, deeper, and longer conceptions of justice. To this end, the ICC must be more humble about what it can contribute, and recognize where appropriate alternative justice mechanisms are satisfactory without a further need for investigation and prosecution. This will permit far greater recognition of the myriad ways that justice can be sought—and achieved—in the wake of mass violence and crime against humanity.

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

  1. 1.

    Jennifer Llewellyn, A Comment on the Complementarity Jurisdiction of the International Criminal Court: Adding Insult to Injury in Transitional Contexts?, 24 Dalhousie L.J. 192, 215 (2001), available online.

    (This is a theme of early critiques and questions about the ICC’s relationship with alternative justice mechanisms in national jurisdictions. For example, Llewellyn raises concerns about the ICC and its view of truth commissions and amnesties, and suggests:

    “Where, then, does this leave states wanting to preserve the truth commission option? It seems states are left with two obvious choices—do not sign or ratify the treaty, or refuse to cooperate with the Court should it request extradition of an individual who has received amnesty.”).

  2. 2.

    See Is the ICC Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online.

    (The question of whether the ICC unduly focuses on Africa, for example, was previously examined in this forum);

    See also Mahmood Mamdani, Darfur, ICC, and the New Humanitarian Order: How the ICC’s “Responsibility to Protect” is Being Turned Into an Assertion of Neocolonial Domination, Pambazuka News (Sep. 17, 2008), available online; For a recent overview of postcolonial critiques, see Lea Ina Schneider, The International Criminal Court-A Postcolonial Tool for Western States to Control Africa?, 1 JICL 90 (Jul. 2020), available online, archived, doi.

  3. 3.

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

  4. 4.

    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], Art. 21(1), available online.

  5. 5.

    Id., Art. 17.

  6. 6.

    Ray Nickson & Alice Neikirk, Managing Transitional Justice: Expectations of International Trials 3 (Apr. 9, 2018), paywall.

  7. 7.


  8. 8.


  9. 9.

    Ray Nickson, Participation as Restoration: The Current Limits of Restorative Justice for Victim Participants in International Criminal Trials, in Restorative Justice in Transitional Settings 95 (Kerry Clamp ed., 2016), paywall.

    (It is possible that victim participation at the ICC could deliver broader justice outcomes for victims, but this is limited by how participation has been conceived at the ICC).

  10. 10.

    Llewellyn, supra note 1, at 196.

  11. 11.

    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, 7 (2019), available online.

  12. 12.


  13. 13.

    Id. at 37.

  14. 14.

    Nickson & Braithwaite, supra note 3, at 448.

  15. 15.


  16. 16.

    Minow, supra note 11.

  17. 17.

    For a full discussion, see Nickson & Braithwaite, supra note 3; see also Nickson & Neikirk, supra note 6.

  18. 18.

    Rome Statute, supra note 43, Art. 17(2)(b).

    (The Rome Statute states that in determining whether an unwillingness to investigate or prosecute has occurred, the ICC can consider whether: “[t]here has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice.” Caution should be taken when determining when a delay is “unjustified” and “is inconsistent with an intent to bring the person to justice.” A hasty judgment may not provide sufficient opportunities for nations to collectively engage their affected communities to determine the best course for pursuing justice).

  19. 19.

    Nickson & Braithwaite, supra note 3.

  20. 20.

    Id. at 448.

  21. 21.

    See Institute for Democracy and Electoral Assistance, Traditional Justice and Reconciliation After Violent Conflict: Learning From African Experiences (Luc Huyse & Mark Salter eds., 2008), available online

    (providing a fuller discussion of the role of traditional forms of justice in transitional justice and peacebuilding).

  22. 22.

    James W. Zion, Navajo Therapeutic Jurisprudence, 18 Touro L. Rev. 563 (2002), available online.

    (As Zion notes, indigenous justice may be described as “the pre-state form of justice. It is not necessarily a separate development, confined to indigenous thought, but the original political arrangement.” Indigenous justice systems will obviously vary according to local traditions and understandings);

    Ada Pecos Melton, Indigenous Justice Systems and Tribal Society, 79 Judicature 126, 126 (Nov. 1995), available online

    (For example, the following explanation of indigenous justice in North America may differ from an Aboriginal Australian concept of indigenous justice:

    “The indigenous justice paradigm is based on a holistic philosophy and the world view of the aboriginal inhabitants of North America. These systems are guided by the unwritten customary laws, traditions, and practices that are learned primarily by example and through the oral teachings of tribal elders.”).

  23. 23.

    Tony F. Marshall, Home Office Research Development and Statistics Directorate, Restorative Justice: An Overview 5 (1996), available online.

    (Restorative justice has been defined as:

    “[A] process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”);

    Howard Zehr, The Little Book of Restorative Justice (2002), available online.

    (Zehr provides an excellent overview of the diverse restorative justice literature. Multiple understandings of the concept exist).

  24. 24.

    Nickson & Braithwaite, supra note 3.

  25. 25.

    Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (1990).

  26. 26.

    Jennifer J. Llewellyn & Daniel Philpott, Restorative Justice and Reconciliation: Twin Frameworks for Peacebuilding, in Restorative Justice, Reconciliation, and Peacebuilding (2014), paywall, doi.

  27. 27.

    Afri-Forum and Another v. Malema and Another, Case No. 20968/2010, 2011 BCLR 1289 (SA Equality Ct., Sep. 12, 2011), available online.

  28. 28.

    See Zehr, supra note 25, at 40.

    (For example, as Zehr explains, restorative justice shifts the focus from crimes to harms).

  29. 29.

    For a full discussion of harms, see Joel Feinberg, The Moral Limits of the Criminal Law, Vol. 1: Harm to Others (1987).

  30. 30.

    Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 Harv. Hum. Rts. J., 39, 59 (2002), paywall, archived.

    (This difficulty is observed by Aukerman:

    “Radical evil involves horrific acts committed by average people who would never commit ordinary crime. How can one understand intent in such circumstances?”);

    James Cockayne, Hybrids or Mongrels? Internationalized War Crimes Trials as Unsuccessful Degradation Ceremonies, 4 J. Hum. Rts. 455 (2005), available online, doi.

    (Cockayne argues that this confrontation of moral orders, that forces transitional societies to reflect on their past, is a distinct benefit of trials in transitional justice).

  31. 31.

    Mark A. Drumbl, Atrocity, Punishment, and International Law 12 (2007), paywall, archived, doi.

  32. 32.

    Nickson & Neikirk, supra note 6.

  33. 33.

    See Laurel E. Fletcher & Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 Hum. Rts. Q. 573 (Jan. 1, 2002), available online.

    (We should also be careful because a focus on individual guilt can contribute to misunderstandings and deliberate fictions about wider complicity and collaboration. This is problematic, as masking broader responsibility for crimes against humanity can be an impediment to justice and reconciliation. A justice that prosecutes relatively few senior leaders but leaves direct perpetrators of violence untouched, often among communities that include their victims, may not feel like much justice to those communities and victims).

  34. 34.

    Lara J. Nettlefield, From the Battlefield to the Barracks: The ICTY and the Armed Forces of Bosnia and Herzegovina, 4 IJTJ 87 (Jan. 29, 2010), paywall, doi.

  35. 35.

    Nickson & Neikirk, supra note 6.

  36. 36.

    John Braithwaite & Ray Nickson, Timing Truth, Reconciliation, and Justice After War, 27 JDR 443, 460 (2012), available online; see also John Braithwaite, Hilary Charlesworth, Peter Reddy & Leah Dunn, Reconciliation and Architectures of Commitment: Sequencing Peace in Bougainville (2010), available online.

  37. 37.

    Braithwaite & Nickson, supra note 36, at 460.

    (“Only later, after individuals who murdered or raped specific individuals had attended that collective reconciliation and realized that forgiveness was genuine, would they consider individual reconciliation.”).

  38. 38.

    John Braithwaite, Valerie Braithwaite, Michael Cookson & Leah Dunn, Anomie and Violence: Non-Truth and Reconciliation in Indonesian Peacebuilding (2010), available online.

  39. 39.

    Gresham M. Sykes & David Matza, Techniques of Neutralization: A Theory of Delinquency, 22 ASR 664, 666 (1957), available online.

    (“[M]uch delinquency is based on what is essentially an unrecognized extension of defences to crimes, in the form of justifications for deviance that are seen as valid by the delinquent but not by the legal system or society at large. These justifications are commonly referred to as rationalizations. They are viewed as following deviant behaviour and as protecting the individual from self-blame and blame of others after the fact.”);

    See also Zehr, supra note 23.

    (Also noted by Zehr, who sees a possible solution in restorative justice).

  40. 40.

    Sykes & Matza, supra note 39

    (describing these as the denial of responsibility, the denial of injury, the denial of the victim, the condemnation of the condemners, and the appeal to higher loyalties).

  41. 41.

    Zehr, supra note 23.

  42. 42.

    See Elizabeth Stanley, Torture, Silence and Recognition, 16 CICJ 5, 15 (2004), paywall, doi.

    (Stanley, in discussion of the Chilean experience of transitional justice, notes:

    “The distancing thesis proposes that perpetrators and victims of torture share no commonalities, no human connection—they are essentially ‘othered’. Of course […] the ‘othering’ or ‘monstering’ of political opponents in Chile was part of state techniques to suppress dissent against violations. The construction of ‘victims’ as being troublesome threats to the state ensured compliance from individual officers assigned to participate in violence.”).

  43. 43.

    Nickson and Neikirk, supra note 6.

  44. 44.

    John Braithwaite, Markets in Vice, Markets in Virtue 156 (2005), available online.

  45. 45.


  46. 46.


  47. 47.

    Jaya Ramji-Nogales, Designing Bespoke Transitional Justice: A Pluralist Process Approach, 32 Mich. J. Int’l L. 1, 56 (2010), available online

    (noting the success of a similar approach—“surveying the preferences of local populations and of thorough integration of traditional systems of justice”—to designing transitional justice in Timor-Leste).

  48. 48.

    Nickson & Braithwaite, supra note 3.

  49. Suggested Citation for this Comment:

    Ray Nickson, By Recognizing Broader, Deeper, and Longer Conceptions of Justice Through Complementarity, the ICC Can Transcend a Narrow, Western Approach to International Criminal Justice, ICC Forum (Jul. 25, 2022), available at

    Suggested Citation for this Issue Generally:

    Has the ICC Under-Represented Non-Western Legal Traditions?, ICC Forum (Jul. 25, 2022), available at

Reinold Avatar Image Theresa Sophia Reinold, Dr. rer. soc. Juniorprofessor of Global and Transnational Cooperation Research Duisburg-Essen University, Institute of Political Science

The International Criminal Court, the Global South, and the Project of Global Constitutionalism

International law is in constant need of legitimation. To the extent that it is being “upgraded” into a law of subordination which makes increasingly intrusive demands upon the internal make-up of nation-states, a need for justification arises: why must states follow this blueprint of legitimate governance and not another? While constitutions confer legitimacy upon political systems, in order to retain their compliance pull towards those addressed normatively, constitutions simultaneously require an ongoing process of legitimation. This process is contested and disruptive, however, as different actors hold diverging conceptions of the “good life”.


The success of the ICC—an institution which forms an integral part of the global constitutionalist project—depends upon a complex interplay of factors. Yet, as I shall argue in this comment,1 the Court’s most precious and, at the same time, most precarious resource—and therefore the most important determinant of its success—is its legitimacy. Legitimacy is not a quantity that can simply be created and then left to operate by itself; it needs to be constantly renewed and is easily wasted through bias, arrogance, and/or neglect. States from the global periphery have long accused the ICC of just these failures, many going as far as calling the Court a tool of neocolonial interference, a Trojan horse designed to subjugate the global South once more to the rule of the North—this time, however, not through military means or other forms of outright coercion, but through the more subtle and insidious mechanisms offered by hegemonic international law. This erosion of the Court’s legitimacy in the global South has undermined its ability to induce compliance from those addressed normatively and thus represents a grave danger to the ICC’s ability to successfully discharge its mandate. In this comment I will therefore engage with the critique articulated by representatives of the global South in more detail—a critique which has been voiced not only by states from the global periphery but equally by scholars representing Third World Approaches to International Law (TWAIL). I will discuss to what extent the ICC—both on paper and in practice—has indeed under-represented the norms, traditions, and interests of the global South, and at the same time suggest ways to counteract the ICC’s erosion of legitimacy.


Law, such is the fundamental premise underlying this comment, implies a political choice. The material content of the law, the way it is applied, interpreted, and enforced—all of this involves decisions which in turn are shaped by political ideologies, power imbalances, and hegemonic influence. This, however, does not imply that the law has no autonomy from politics, that it is simply a tool used by the powerful and central to subjugate the weak and peripheral. In both the disciplines of International Law and International Relations, theories have been developed that seek to account for the ways in which the powerful seek to usurp the law to universalize their own interests;2 or, alternatively, to explain how the law may resist such attempts at usurpation, how it can maintain its autonomy in the face of attempted political interference.3 In this comment I posit that power and law are deeply intertwined, that the law is at the same time partly autonomous from and an instrument of political power. This perspective is inspired by a theoretical approach that has been labeled “realist constructivism” which addresses the myriad ways in which political power and law interact.4

Now, just like general international law is at the same time an instrument of power and a constraint upon this exercise, so is international criminal law (ICL). The ICC reflects this tension very well, as it embodies a fundamentally Western (or Northern) understanding of international criminal justice and has therefore frequently come under fire for allegedly being biased against the global South. Elsewhere I have argued that the ICC forms part of an emerging global constitutionalist architecture,5 and that constitutionalism tends to evoke the idea of taming politics through the force of law—which suggests that less powerful actors should welcome the supposedly equalizing force of ICL. It turns out, however, that states from the global South are continuously contesting the ICC’s legitimacy, as they see constitutionalism as an essentially hegemonic project, which condenses Western notions of good governance, human rights, and the rule of law into the nucleus of an emerging global constitutional order.

Argument Continued

This point of view is associated with a school of thought which has become known as TWAIL.6 Rather than seeing international law as an emancipatory project, which enabled self-determination, de-colonization, and independent statehood for the global South, TWAIL scholars tend to view international law as a fig leaf for the pursuit of particularistic hegemonic interests. Their goal is therefore to turn international law into a weapon wielded by the powerless and peripheral against the strong and central. As Makau Mutua famously wrote:

TWAIL is driven by three basic, interrelated and purposeful objectives. The first is to understand, deconstruct, and unpack the uses of international law as a medium for the creation and perpetuation of a racialized hierarchy of international norms and institutions that subordinate non-Europeans to Europeans. Second, it seeks to construct and present an alternative normative legal edifice for international governance. Finally, TWAIL seeks through scholarship, policy, and politics to eradicate the conditions of underdevelopment in the Third World.7

TWAIL scholarship’s basic conception of international law as a hegemonic project has time and again also surfaced in controversies involving the ICC and states of the global South. Taking these controversies to a more abstract level, one could argue that they revolve around two major themes, one regarding substance, the other one regarding process: in terms of substantive law, the ICC has often been criticized for failing to take into account non-Western values, traditions, and historical grievances. Secondly, at a procedural level, the ICC has been accused of being politicized by the Western-dominated institutions of global governance, notably the U.N. Security Council, which was given a prominent role in activating (or suspending) the ICC’s jurisdiction.

I will address each of these critiques in turn. Before, however, I will briefly reflect upon some of the basic theoretical propositions underlying these controversies, as they raise fundamental questions about the global normative order, questions which touch upon international law’s relationship with its most important ally (or enemy), namely powerful states.

International law is in constant need of legitimation. To the extent that it is being “upgraded” into a law of subordination which makes increasingly intrusive demands upon the internal make-up of nation-states, a need for justification arises: why must states follow this blueprint of legitimate governance and not another? While constitutions confer legitimacy upon political systems, in order to retain their compliance pull towards those addressed normatively, constitutions simultaneously require an ongoing process of legitimation. This process is contested and disruptive, however, as different actors hold diverging conceptions of the “good life”. The concept of constitution is here defined as a framework composed of primary and secondary norms—the former being a set of fundamental rules that directly regulate the behavior of the legal subjects, whereas the latter govern the (trans)formation, interpretation, application, and enforcement of these primary norms. The primary norms enshrined in a given constitution stipulate a particular version of the “good life”, a core set of values, which, in the global North, typically includes fundamental civil and political rights. Second or even third generation human rights are generally considered to be less relevant in the North; at the same time, however, these categories of rights feature much more prominently in the legal discourse and practice of the global South.

While primary norms directly regulate behavior, secondary rules regulate how primary norms are made, and how different public authorities involved in the making and application of primary norms relate to one another. The litmus test for the constitutionalization of international law is therefore the emergence of overarching secondary rules that govern the relationship between different layers of law and regulate the competencies of the various bodies involved in the making and application of international law.

If the project of global constitutionalism is thus informed by a core value system that seeks to universalize a particular concept of the good life, this naturally begs the question of whose vision of the good life is being universalized and whose worldviews are being marginalized. The global normative order rests on a corpus of mainly Western norms, which, over time, came to be regarded as universal by the international community at large. The semblance of universality has not made existing geopolitical cleavages, ideological struggles, and Third World grievances disappear, however. On this view, the project of global constitutionalism thus ought to be treated with considerable skepticism. If the nascent global constitutional order is seen not as reflecting universal interests, but rather as a particularistic project launched by powerful actors seeking to cement their hegemony in world politics, this perception will undermine the law’s compliance pull towards actors from the periphery.

The International Criminal Court’s establishment in 1998 represented an important step towards the constitutionalization of international law, as the Rome Statute not only universalizes a set of fundamental primary norms, but also lays down important secondary rules clarifying the Court’s position in the broader global system of checks and balances. The ICC is not just an organization dedicated to the protection of a core set of human rights, but is simultaneously nested in a broader framework of global governance institutions whose relationships are regulated through various instruments, such as the U.N. Charter, the Rome Statute, and the Vienna Convention on the Law of Treaties.

It has frequently been pointed out that negotiations at Rome cut across the usual geopolitical fault lines, bringing together actors from the global North as well as representatives of the global South. Many African states pushed for a strong and independent court, much like their European counterparts within the so-called like-minded group. Yet a few years after the entry into force of the Rome State, the relationship between non-Western states and the ICC turned sour, when it became clear that the ICC was focusing primarily on what many saw as “easy prey”, that is, weaker states from the global South, all the while shielding powerful Northern actors from prosecution. The AU-ICC standoff is a well-documented example of this North-South cleavage. The controversy sparked by the U.N. Security Council’s referral of the Al-Bashir case to the ICC raised thorny legal (and political) issues that affect the global constitutional architecture as a whole. When the controversy erupted, the African Union not only sought to influence the interpretation of fundamental primary norms of international law (in this case, the principle of immunity), but also targeted the secondary rules of international law, namely those norms regulating the allocation of authority for the maintenance of international peace and security. Since the AU-ICC standoff has been analyzed in much detail elsewhere, I will not revisit this debate here.

Rather, I would like to take a step back, and explore the broader theoretical question of hegemonic bias in the global constitutionalist architecture, of which the ICC is an integral part. According to many voices from the global periphery, the ICC—in terms of both material jurisdiction and procedure (or, to use constitutionalist language, in terms of both primary and secondary norms)—is biased against the global South.

Regarding the first criticism addressing the Court’s subject-matter jurisdiction, one must concede that present-day ICL was indubitably inspired Western (or Northern) legal traditions, with the Nuremberg principles informing subsequent projects of international criminal justice, including the adoption of the Rome Statute. Non-western sources of law, such as principles of African customary law, Islamic law, Chinese law, etc. are not represented in the ICC’s normative framework. In particular, criticism has been leveled against the ICC’s exclusive focus on direct violence, as exemplified by the Rome Statute’s definition of core crimes, namely aggression, genocide, war crimes, and crimes against humanity. This definition of core crimes has been criticized for allegedly blinding the Court to the underlying root causes of direct violence, namely the colonial legacy which gave rise to inter-ethnic grievances, fragile states, and abusive regimes in the first place, and thus created powder kegs that were bound to explode at some point. Johan Galtung famously distinguished between three types of violence:8 direct physical violence (e.g. a Russian soldier shooting an unarmed civilian in the town of Bucha); structural violence, that is, the avoidable non-fulfillment of basic human needs (e.g. a child starving to death in Bangladesh because of the global food crisis triggered by Russia’s invasion of Ukraine); and, finally, cultural violence, that is, the attitudes and practices that make us unable to see that structural or physical violence is being perpetrated (e.g. Western media disproportionately covering the suffering of white Ukrainians while underreporting humanitarian tragedies suffered by non-white, non-Western victims).

Inspired by Galtung’s typology, scholars writing from a TWAIL perspective have maintained that the ICC’s narrow focus on exercising jurisdiction over various forms of direct violence affecting the enjoyment of fundamental civil and political rights is limiting and one-sided, and that the Rome Statute should recognize the significance of structural and cultural violence,9 which, of course, are forms of violence much more difficult to address in a criminal trial. ICC trials specifically, and proceedings in Western or Western-style courts more generally, typically criminalize and usually individualize certain forms of violent conduct that takes place under often chaotic and complex circumstances. The root causes of such criminal conduct, such as colonialism, racism, etc. are not addressed in the course of such trials, leaving important and devastating forms of mass violence unaddressed. Rajagopal thus laments that ICL’s prevailing focus on violations of fundamental civil and political rights renders other types of violence, “such as that generated by development, invisible to the discourse.”10

Courts in the global South have unsurprisingly been more open to including such forms of indirect violence in their subject-matter jurisdiction—consider, for instance, the list of crimes over which the Criminal Chamber in the African Court of Justice and Human Rights (ACJHR) seeks jurisdiction. Even though not without flaws, the scope of material jurisdiction of the chamber has been welcomed by TWAIL scholars as it broadens the list of crimes to include conduct that the ICC has neglected, including unconstitutional changes of government, corruption, the illicit exploitation of natural resources, money laundering, and trafficking in human beings, drugs, and toxic waste.11 This expansion of material jurisdiction addresses the concern articulated by TWAIL scholars about Western-style courts’ exclusive focus on direct physical violence, as it also extends to forms of structural violence, arising, for instance, out of the corruption of public officials, crimes against the environment, etc.

In order to make the ICC more responsive to the interests of the global South, TWAIL scholars have therefore suggested a radical reconstruction of the Rome Statute. Recognizing that the ICC does criminalize certain forms of neocolonial practices (with Article 7 of the Rome Statute criminalizing forcible population transfer and apartheid, and Article 8 prohibiting the settlement of occupied territory by an occupying power), TWAIL scholars nonetheless believe that these provisions do not go far enough. Since their envisaged reconstruction of ICL is quite radical, it deserves being quoted at length:

[M]ore importantly, a TWAIL perspective would prescribe reconceptualization of the material conduct and structures that are criminalized in the first instance. While the existing population transfer crimes […] might at least begin to get at some of the land control and migration issues that go to the structural conditions underlying socio-economic inequality, where they are rooted in the Geneva Conventions they will remain limited to traditionally defined and bracketed settings of armed conflict and belligerent occupation. Any meaningful reconstructionist approach to international criminal law will need to go beyond the problems of unequal enforcement and operational selectivity to the essence of the actions and forms of violence criminalized at the design level. If international criminal law is to take seriously its claim to be part of a project of global justice, it must at some point begin to tackle the economic contexts of war, exploitation and scarcity.12

According to these scholars, there is nothing novel about positing such a significant reconstruction of ICL—after all, beginning in the 1950s, the International Law Commission had already engaged in efforts at defining an expanded list of international crimes. Initially, the list was quite extensive and mentioned twelve core crimes, yet due to the opposition of Western states to including crimes such as colonialism, apartheid, and severe environmental damage, the list was ultimately reduced to the four core crimes nowadays codified in the Rome Statute.13

Now, while I agree that it is imperative to address the structural and cultural forms of violence that are the root causes of the more direct forms of violence criminalized by the Rome Statute and other international legal instruments, I do not think that the ICC is the right institution to take on this challenge. Handing such an expansive wish-list to a Court whose resources are already stretched thin (and which, as a result, is confronting multiple charges of selectivity and bias) would only make matters worse, and further undermine the ICC’s ability to effectively discharge its mandate. In theory, it would certainly be desirable for the ICC to dispense justice to all victims of violence of whatever form, but this is simply not feasible. We live in a decidedly non-ideal world and the ICC’s jurisdiction rules as well as prosecutorial decisions have to take this into account. While, as discussed above, the ACJHR’s founding mothers and fathers have been engaged in an innovative attempt at criminalizing structural violence, I am quite doubtful that the ACJHR will be able to deliver on this promise. Like any other international court, the ACJHR has limited resources, and overburdening the court with an extremely ambitious mandate will likely undermine the its ability to bring justice to either category of victims—those suffering physical violence as well as those experiencing structural or cultural violence.

Therefore, rather than expanding its subject-matter jurisdiction, the ICC should demonstrate its responsiveness to the interests of the global South in a different way. As argued earlier, the global constitutionalist project requires not only agreement on a core set of substantive values but equally implies the emergence of secondary rules. Thus, apart from the controversy over which primary norms should be included in the material jurisdiction of the ICC, the Rome Statute has also frequently been criticized for laying down secondary rules that strongly disfavor weaker states and perpetuate the hegemonic privileges of the global North. This criticism has focused on three provisions in particular: the U.N. Security Council’s referral and deferral powers enshrined in Rome Statute Articles 13 and 16 respectively, and Article 98 on bilateral agreements. The U.N. Security Council’s role in activating or suspending the ICC’s jurisdiction has been the subject of the ongoing controversy between the AU and the ICC. The perception of hegemonic bias was further reinforced by powerful states’ frequent use of Article 98, which allows the conclusion of bilateral agreements that would prevent the ICC from demanding the arrest or extradition of individuals from one state who are in the jurisdiction of the second. The United States has concluded numerous Article 98 agreements to shield its own nationals from prosecution. In so doing, it has made ample use of its preponderant material power to “induce” other states into signing these agreements in order to safeguard America’s hegemonic privileges. This inevitably creates a perception that despite the assumption of sovereign equality, some states are more equal than the rest, and that the global North—by virtue of its economic prowess and political clout—may easily escape accountability, while peripheral states lacking these material resources will be disproportionately targeted by the ICC.

Criticizing this imbalance does not imply that perpetrators from the global South who are brought before the ICC are in any way less culpable and should not be prosecuted—just because justice cannot be achieved everywhere this does not mean that it should not be sought anywhere .

It does imply, however, that if the secondary rules governing the application of international criminal justice are so obviously and blatantly skewed in favor the global North, the ICC—if it wants to maintain its legitimacy as the universal face of international criminal justice—needs to urgently rethink its prosecutorial decisions: even in those cases where the ICC could potentially exercise jurisdiction over powerful Northern actors—the Afghanistan situation is a case in point—the Prosecutor decided to set aside war crimes committed by U.S. forces in Afghanistan and instead prioritized crimes committed by the Taliban and the Islamic State. While the latter’s misconduct clearly deserves to be investigated, prosecuted, and punished, letting the United States off the hook once again only reinforces existing grievances in the global South and inevitably creates the impression that equality before the law is an illusion, that what matters most in international (criminal) law is money and weapons, thus reaffirming a basic tenet of realist International Relations theory according to which international law is merely an epiphenomenon of the underlying distribution of (hard) power in world politics.

While I am in full agreement that the secondary rules governing the deferral and referral of situations before the ICC are outdated, hegemonic, and harmful to the Court’s legitimacy, I also think that a modification of these rules is highly unlikely in the near future. I therefore do not want to issue yet another (futile) call for disempowering the U.N. Security Council. I do want to conclude, however, by calling upon the Office of the Prosecutor to rethink its prosecutorial strategy in order to correct the imbalances that have characterized the ICC’s previous interventions. There are ways to reduce the ICC’s hegemonic bias which do not require modifying the Rome Statute, with all the difficulties this entails. Correcting or at least reducing this bias essentially lies within the discretion of the Prosecutor, who decides what crimes to focus on once the Court has indeed asserted jurisdiction. The Prosecutor should use his discretion to focus on emblematic cases involving crimes committed by powerful Northern actors (such as war crimes committed by U.S. troops in Afghanistan) in order to demonstrate to the international community in general and the global South in particular that no one is above the law. Evidently, such courage does not come without political cost—after all, the ICC is dependent on Western donors and turning against some of these donors risks losing the financial and political support they have to offer. Yet while donor support is an incredibly important resource for the ICC, there is one resource that is even more precious, namely legitimacy. If the ICC squanders this valuable resource by continuing to go after the easy prey all the while avoiding the tough cases, it puts its own existence at risk.

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

  1. 1.

    This comment reuses material from Theresa Reinold, Constitutionalization? Whose Constitutionalization? Africa’s Ambivalent Engagement with the International Criminal Court, 10 ICON 1076 (Oct. 3, 2012), available online, doi.

  2. 2.

    See, e.g., Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (2003), paywall, doi.

  3. 3.

    See, e.g., Theresa Reinold, Cynicism and the Autonomy of International Law, in Cynical International Law? Abuse and Circumvention in Public International and European Law 15 (Björnstjern Baade et al., eds., Nov. 29, 2020), available online, doi.

  4. 4.

    J. Samuel Barkin, Realist Constructivism, 5 Int’l Stud. Rev. 325 (Sep. 2003), paywall, doi.

  5. 5.

    Reinold, supra note 1.

  6. 6.

    See, e.g., Makau W. Mutua, What is TWAIL?, 94 ASIL Proceedings 31 (2000), available online.

  7. 7.

    Id. at 31.

  8. 8.

    Johan Galtung, Violence, Peace, and Peace Research, 6 J. Peace Research 167 (1969), paywall, archived.

  9. 9.

    Asad G. Kiyani, Third World Approaches to International Criminal Law, 109 Am. J. Int’l L. Unbound 255, 258 (2016), available online, doi.

  10. 10.

    Rajagopal, supra note 2, at 231.

  11. 11.

    Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Article 28A (Jun. 27, 2014), available online.

  12. 12.

    John Reynolds & Sujith Xavier, “The Dark Corners of the World”: TWAIL and International Criminal Justice, 14 J. Int’l Crim. Just. 959, 980 (Sep. 16, 2016), available online, doi.

  13. 13.

    Id. at 981.

  14. Suggested Citation for this Comment:

    Theresa Reinold, The International Criminal Court, the Global South, and the Project of Global Constitutionalism, ICC Forum (Jul. 25, 2022), available at

    Suggested Citation for this Issue Generally:

    Has the ICC Under-Represented Non-Western Legal Traditions?, ICC Forum (Jul. 25, 2022), available at