Negotiating Racial Injustice: How International Criminal Law Helps Entrench Structural Inequality

(Editor’s Note: This article is part of a special Just Security “Racing National Security” symposium edited by editorial board member Matiangai Sirleaf. The goal of the symposium is to render race visible in national security to shift the dominant paradigm toward addressing issues of racial justice.)

Nowhere are the politics of racial inequality more difficult to instantiate than with a court whose goal is to defend victims of mass atrocity violence. The International Criminal Court (ICC) came into being through the recognition that “millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.” The champions of the court insisted that the most serious crimes of concern to the international community must not go unpunished, a principle they rallied around to call for an end to impunity for perpetrators at the highest levels. In practice, however, the ICC’s fixation on this particular notion of justice has caused it to reproduce deep, global structural inequalities.

To date, the ICC has issued indictments against forty-two individuals, all of whom are Black and/or Arab-Africans. Recognizing the existence of anti-Black, anti-Muslim racism globally, one would expect international criminal justice to further interrogate the place of race and racism.  Yet, as Randle DeFalco and Frédéric Mégret argue, agents of the ICC and other international tribunals have strongly rejected any notion that race may shape the conditions and outcomes of their functions. By contrast, proponents of international tribunals tend to position their work as being about mitigating and prosecuting the effects of violence. Race is coded as being external to an international criminal law paradigm in which all lives are supposed to matter; the cultures and systems of white supremacy are rarely acknowledged as shaping the conditions of (in)justice both within and outside this framework.

On the other hand, when discussions of race and white supremacy emerge in these institutional contexts, they often devolve into whether there is conscious or unconscious bias that led to particular decisions. However, rather than being concerned with the workings of individual intention connected to whether decision makers are racist or fueled by animus, I am interested in various ICC institutional designs that further racial subordination.

In this article I highlight some of the underlying structures of racial injustice and white supremacist logics upon which international criminal law has been constructed. Through the making of agreements that become law, white supremacy functions through institutional designs that further racial subordination. What we see is that the forms of racial and neocolonial injustice that exist globally are the product of various political and juridical modes of production which structure conditions of inequality in particular ways – racial, educational, and so forth. I offer a brief discussion of one case in point – how both the drafting and political negotiations that resulted in the Rome Statute continue to contribute to entrenched global structural inequality that plays out in racialized cartographies.

Power and White Supremacy Decides What Counts: “Substantive Crimes” in the Rome Statute

The set of “substantive crimes” articulated by the ICC is one important site of structural and racialized inequality. Article 5 of the Rome Statute states that the crimes over which the court has jurisdiction represent “the most serious crimes of concern to the international community as a whole.” These “most serious crimes” – namely genocide, war crimes, crimes against humanity and the crime of aggression – are routinely referred to as the “core” crimes of international criminal law.

Yet, as I have shown in my book, “Fictions of Justice,” the determination of “core crimes” and the process by which those crimes came to be elevated as international crimes and others relegated to national and transnational concerns was part of a process of brute political negotiation. Over the course of several decades, the list of crimes that emerged as the “most serious” were those that involved mass death and widespread killing – “akin to the forms of violence being perpetrated in sub-Saharan Africa and Latin America at the time.” It was these crimes that were deemed of such gravity that they were to be understood as threats to the peace and security of the international community. In contrast, crimes that had been included in earlier iterations of the negotiating process but that dropped out along the way include “colonial domination and other forms of alien domination; apartheid; recruitment, use, financing, and training of mercenaries; willful and severe damage to the environment; international terrorism; and illicit traffic in narcotic drugs.”

As DeFalco and Mégret note, “the constructed distinction between ‘core’ crimes increasingly associated with the worst international stigma, and a range of other crimes or non-criminal forms of harm causation and human rights violations that are implicitly designated as less grave,” overlap with racialized categories in a range of ways. For example, they correctly note that the work of the ICC has myopically highlighted the destruction of cultural property or the sexual violence against “bush wives” as emblematic of (racialized) African violence. Indeed, DeFalco and Mégret write, “[T]he convictions of Thomas Lubanga Dyilo, Germain Katanga, and Jean-Pierre Bemba have had, amongst other things, the effect of associating Black Africans with physical and sexual violence, the abuse of children through the recruitment and use of child soldiers, and the inability to hold ‘civilized’ elections.” This compares with the persistent ignoring or euphemizing of, for example, acts of aggression by the United States in invading Iraq, the torture of detainees in Guantánamo Bay or Abu Ghraib prisons and other black sites, or threatening other states that have nuclear weapons.

As Sujith Xavier and John Reynolds have written, the ICC’s catalog of core crimes is rooted in a restricted conceptualization of violence that, by design, “cannot address many of the collective interests of global South peoples that are impacted by the structural violence of economic coercion, resource extraction, global wealth distribution and enforced impoverishment, nor in many instances the slow violence meted out by the toxic remnants of certain weaponry.” Ultimately, 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 root causes of atrocities – the economic contexts of war, exploitation and scarcity. This will require a comprehensive effort to, in the words of Asad Kiyani, “reconsider the boundaries of criminalization” and question the role of structural adjustment and austerity programs imposed by international financial institutions, which have contributed enormously to insecurity and precarity in Africa and elsewhere.

White Supremacy Decides What (and When) Applies: Non-Retroactivity and Temporal Jurisdiction

The temporal limitations of the ICC and other tribunals, as relates to historical and continuing crimes, are usurped by legal principles like the ban on retroactive criminalization — which asserts that conduct must be criminalized and penalties fixed in advance of any criminal prosecution (see here). As one of the most fundamental defenses to a criminal prosecution, this “legality” principle stands for the notion that a person may only be held criminally liable and punished if, at the moment when they performed a certain act, this act was regarded as a criminal offence under the applicable law. Given that international criminal law itself did not exist in any clear, distinguishable form until shortly after World War II, the legality principle thus, in one fell swoop removes the numerous atrocities attendant to colonization and empire-building by Western powers from the gaze of this body of law.

In line with the legality principle, the ICC’s jurisdiction is strictly prospective. The ICC’s temporal jurisdiction, as outlined in Article 11, is limited to crimes committed after the entry into force of the Statute on July 1, 2002. Similarly, the International Criminal Tribunal for Rwanda is limited to crimes committed between January 1 and December 31, 1994, excising the complicated leadup to the Rwandan Genocide and central role of colonialism therein. Similarly, the Special Court of Sierra Leone has jurisdiction over crimes committed on the territory of Sierra Leone only after November 30, 1996. The Extraordinary Chambers in the Courts of Cambodia’s limited temporal jurisdiction is even more stark, as it only has jurisdiction over the period the Khmer Rouge held power from April 17, 1975 to January 6, 1979. This limitation removed any possibility of addressing international crimes committed by the French in Cambodia during and after colonialism, and also gives the United States de facto immunity for its massive indiscriminate bombing campaign throughout the country, especially during the Cambodian civil war of 1970 to 1975.

Although the temporal jurisdiction of these international criminal justice institutions are in the late 20th century and early 21st century, if one pursues a contextualization of the various conflicts being judged by these courts, it is critical to understand the colonial histories and structures of inequality that contributed to the violence being adjudicated (not to mention the contemporary complicity of various corporate and other actors in said violence, which similarly tends to be ignored in adjudicatory processes). The reality is that the violence of colonialism and neocolonialism continues to structure the nature of privilege, power, and violence in ICC situation countries today. But the lack of mechanisms to address and attempt to repair the deep structural violence of colonialism, the complicity of colonialism’s inequalities in seeding contemporary violence, and economic degradation of neocolonialism, contributes to unresolved issues for the continuing challenges of structural inequality in the current world order. Much like other forms of transitional justice, international criminal law thus, in the words of Zinaida Miller “serves to narrate conflict and peace, voice and silence, tolerable structural violence and intolerable physical atrocity” and to “delineat[e] who may now speak, describing past violence by deciding what and who will be punished.”

White Supremacy Decides Who is Rendered Culpable: The Security Council Trigger as Double Standard

The Security Council is another domain where ICL’s double standards are clear. As Frederick Cowell noted, “[t]he absence of three of the five veto-holding U.N. Security Council (UNSC) powers from the ranks of ICC member states means that the Council retains a significant supervisory control of the [c]ourt’s prosecutions without ceding any responsibility” for the actions of non-member state permanent council members. By extension, the failure of the UNSC to draw attention to the role of international crimes perpetrated by Western actors in Iraq, Afghanistan,  Pakistan, Guantanamo Bay, Georgia, Tibet and elsewhere, amounts to a double standard whereby the court applies one standard to powerful nations and another to less powerful nations (see e.g. arguments by Celestine Nchekwube Ezennia, and Frederick Cowell). It took unilateral action by the ICC Office of the Prosecutor (OTP) to pursue accountability against U.S. actors for alleged international crimes committed within the context of the Afghan conflict. Meanwhile, the UNSC has failed to show any initiative in this regard, and the possibility of the United States seeking to use its council seat to block the investigation from moving forward has been raised.

These developments have not gone unnoticed. On the contrary, a plethora of scholars have objected to such double standards. As argued by Cowell, Dire Tladi, Siba Grovogui, and Dapo Akande, Max Du Plessis and Charles Jalloh, amongst others, one of the ways that inequality has played out in the Rome Statute has been in the bolstering of sovereign inequality that has led to the perpetuation of dominance by powerful actors. Article13(b) of the Rome Statute ensures that the UNSC retains the power to refer cases to the OTP. By giving the UNSC such power to selectively pursue investigations of non-state parties,  the Rome Statute accentuates sovereign inequality. This power is compounded by the UNSC’s inverse power in Article 16 of the Rome Statute to “defer” (i.e., halt) ongoing ICC investigations via resolution for renewable one year periods. This perpetuates pre-existing hierarchies by constraining less powerful states.

We saw this playing out in relation to the UNSC referral of the situation in Darfur, Sudan to the ICC. In 2005, the UNSC referred the conflict in Darfur to the ICC via Resolution 1593 (for commentary, see here). This marked the first time that the UNSC had invoked its power under Article 13(b) of the Rome Statute to refer a particular situation to the OTP for investigation. In April 2007, the ICC issued arrest warrants against Janjaweed militia leader Ali Kushayb and Sudan’s Minister of Humanitarian Affairs, Ahmad Harun. In July 2008, the OTP requested an arrest warrant against Sudanese President, Omar al-Bashir, which was issued in March, 2009. It is no surprise that scholars such as Xavier and Reynolds have suggested that the UNSC referral mechanism can be seen as “extending a form of purported universal jurisdiction” that in reality, is problematically selective. As they note, “[i]n Libya, the U.N. Human Rights Council established an International Commission of Inquiry in the context of the Gaddafi regime’s crackdown on the 2011 popular uprising.” They also detail how the UNSC “referred the situation in Libya to the OTP via Resolution 1970, and soon thereafter authorized air and naval intervention – to be effected by NATO powers and their Gulf allies – in Resolution 1973.” And two days later, NATO commenced an intervention with the establishment of a “no-fly zone” and aerial attacks and, by October 2011, rebel forces took over control of Libya and killed Muammar Gaddafi.

Following the enactment of UNSC Resolution 1970, the OTP immediately opened an investigation into crimes against humanity (persecution and murder) and  the ICC’s Pre- Trial Chamber released arrest warrants for Muammar Gaddafi, followed by warrants for Saif Gaddafi and Abdullah al-Senussi (see Xavier and Reynolds on this point).

As Xavier and Reynolds  have suggested, the speed of these investigations, and arrest warrants compared to other situations involving consenting states, raises questions about the role of UNSC referrals  in both the Sudan and Libya. It also raises questions about the reality that investigations “excluded the court’s personal jurisdiction over nationals of non-party states outside Sudan and Libya . . . for any acts or omissions arising out of military operations authorized by the Council.” In other words, jurisdiction excluded , the United States troops that intervened.

We could describe numerous other illustrations of this double standard in practice, from Sri Lanka, to Syria, to Palestine. As Cowell remarks, not only does the ICC grant “direct juridical privileges to a narrow group of states – the permanent members who hold the power of veto – but it also underscores the inequality [among] states.”  This inherent structure of non-ICC state dominance institutionalizes the power of the UNSC, perpetuating its legal hegemony through the Rome Statute and making the ICC a mechanism of empire.

White Supremacy Decides Who Chooses: Prosecutorial Discretion

Additionally, the racially tinged reordering of priorities within international criminal justice is closely tied to the exercise of prosecutorial discretion. This structural inequality in the ICC is grounded in Article 15(1) of the Rome Statute, as well as general prosecutorial powers, which have allowed the court’s disproportionate focus on African countries and African defendants. From accusations of lack of impartiality, to the call  for greater oversight of the prosecutor’s discretionary powers to the inequalities related to case selection,  Article 15 has been critiqued less for its content than its application.

The ICC Prosecutor, even within her limited jurisdictional purview, has thousands of potential situations, cases, and suspects from which to choose. Only a very small minority of these are ever investigated, let alone prosecuted at the ICC (or anywhere else, for that matter). The selection of what situations to investigate, and whom to prosecute, is an exercise that identifies and designates the world’s “worst” criminals and their victims. This act of naming and ordering, without naming or prioritizing other global acts that are part of the world’s context for violence, perpetuates structural inequalities that shape perceptions in particular about blackness and violence.

White Supremacy Decides Who Has Power: Complementarity

The principle of complementarity is another tool worth considering here as it is concerned with the operationalization of international law within state jurisdiction. However, in order for the ICC to assert its jurisdiction, Article 17 requires an assessment of whether states are “unwilling or unable” to genuinely carry out an investigation. This condition enhances the court’s power and diminishes the power of states to manage violence on their terms. By presuming that the lack immediate prosecutorial action is tantamount to lacking capacity, in effect, Article 17 can be seen as creating what Cowell refers to as a “legal regime vesting power[,] and by implication sovereignty[,] within the ICC.”   As such, complementarity presumes state failure.

Such a mechanism requires the admission of state incapacity and dependence. This “language of state failure” is found in the OTP’s official report in which it argued that states that have been devastated by conflict and violence may well be unable to competently investigate and prosecute those culpable for violence.  And though that might be the case, it reflects what scholars such as Charles Call have referred to as the “Failed State fallacy,” which not only negates the ability of the state to find political solutions to age old violence, but it also erases Western states’ complicity for their historic culpability in postcolonial state disfunction.

When such dynamics are applied to states in the Global South, particularly African states, the standard utilized in complementarity assessments feeds into old tropes about African countries being unable to govern themselves, as well as a denial of legal pluralism, at least when it might clash with fundamental colonial interests. The British, like the French, colonizers in African regions were known to defer to local traditional courts on civil matters but claimed jurisdiction of criminal cases. This disregard for traditional justice approaches reflects the same forms of paternalism that we see today in contemporary international justice, which subordinates other forms of conflict resolution and renders Westernized legal processes as the only legitimate means to adjudicate violence.

White Supremacy Decides Who Matters: If All Lives Matter, What Say International Law?

In reflecting on Frédéric Mégret’s argument that the brokering of international criminal law is merely a selection of a particular technique, and thus does not dictate preselected outcomes or sets of crimes, then the toleration of racial inequality ought to be foregrounded as among  the most serious international crimes. The contemporary production of international criminal law “reflects choices and historical patterns in the development of” juridical and political practices “that have tended to relegate” to the margins the significance of structural inequalities that continue to marginalize African voices and African solutions, as Xavier and Reynolds write. In principle, all lives matter for international criminal justice. In practice, the agency of Black and Brown lives matters less in the operationalization of international criminal law. As a regime that is driven by law’s technocratic logic, the ICC’s work is routed through juridical frameworks that are designed to limit its calculus around life in relation to many things, such as scale of violence, nature and manner of violence, and impact of violence. These measures reflect a multilayered set of selectivity measures that are shaped by power, politics and racialized analytics, permeating each layer and shaping the conditions under which certain lives can be preserved – or prosecuted – while others are not.

In contrast with the emergent Black Lives Matter movement, which is a transnational, grassroots social movement aimed to intervening at the root causes and daily manifestations of social inequality, the ICC has a different purpose. It exists through an international treaty that represents a negotiated settlement structured to protect the interests of economically powerful states. This political-juridical mechanism helps to preserve larger sets of international and transnational processes that maintain existing power relations. Even as the ICC focuses exclusively on cases presumed to rescue and protect Black and Brown bodies, its very foundation – shaped by White supremacy – renders the current work of international criminal law difficult to reconcile with the contemporary global call to center Black lives and experiences and eradicate ongoing structural inequality.

(Editor’s Note: This article has been revised to correct attributions to secondary sources.)

Image: Security Council members unanimously adopt resolution 1970, imposing a package of sanctions against the leadership of the Libyan Arab Jamahiriya, including travel bans, asset freezes, an arms embargo and an immediate referral to the International Criminal Court. February 26, 2011 UN Photo # 464851


About the Author(s)

Kamari Maxine Clarke

Kamari Maxine Clarke is a professor of anthropology at UCLA. Follow her on Twitter (@KamMClarke).