One of the key charges against international justice interventions, particularly in Africa, has been that of a re-colonization of Africans through political and administrative structures designed to rob sovereignty and physical agency as well as decision-making from African states and civilians. Though these arguments are often derided, especially by North scholars and commentators, these accusations have roots that should be considered despite the often questionable status of those making the charge, and pose questions about the framework and discourse of international and global justice projects.
Several investigations of the legacy and meaning of colonial law in the post-colonial state have revealed a disturbing connection between colonial ideas of person, body, and state/colony that remain and must be reworked in a post colonial era. Discourses of responsibility and protection bring to mind not unreasonably, ideas of paternalism and domination that invoked the same language. Not only in speech, but in law and action, responsibility, and law have been marshaled against South states under colonization as a means to discursively and materially cement Northern rule.
As the ICC moves to increase its span, legitimacy, and to construct its role in global justice, it is thus important to look not only at the questions of who it investigates, and prosecutes, its relationship to victims and to the powerful-especially the P-5 members of the Security Council–but also to look at the types of law it produces.
Since the formation of the ad hoc’s a number of disturbing legal culture questions have arisen, around plea-bargaining, adversarial methods of court procedure, and more recently, rights of protection from “double jeopardy.” These issues pit conceptions of justice against each other, and with no civil law structure to add or remove these procedures once in place, nor a singular notion of justice, the risks that the more resourced legal systems will dominate is considerable.
What might that mean? Since the system will affect the less resourced, and is conceived by the more resourced sans corrective measures, or accountability to those it serves, the ICC and international justice more broadly, risks being either paternalistic or non-just by structure alone.
The best case of mitigating against this was in the Kenyan case, which allowed for negotiation and alternatives to some extent, before the ICC investigation. The worst case was Libya, which ignored complementarity questions and indeed the presence of a state post-arrest warrant, partly on the basis that the ICC was “helping” the people of Libya by prosecuting under its own legal and justice culture where they were unable.
