Volume 3, Issue No. 1
Download Vol 3 Issue 1 2018
Diversity and heterogeneity of academic debate is critical to our journal. Our efforts are focused towards creating a virtual academic platform that allows a plurality of young voices to speak about important subjects such as responses to mass violence and international criminal justice. In doing so, we are continuously extending the scope of the journal to cover and engage with critical perspectives on tangential subjects such as human rights and gender. The diversity of our publications is proof that this journal’s scope goes beyond its name. This is not a journal that advocates for or against R2P, but an inclusive intellectual space that allows young voices to critically engage, unpack and make their contribution to some of the most pressing debates in the field of responses to gross human rights violations.
Such a project would not be possible without interrogating the very nature of human rights. This issue opens with a paper on human rights by Matthew Moore, who argues that the emancipatory potential of human rights is undermined by their liberalism, because enforcing bourgeois, economic rights reproduces coercive relations of production, thus exacerbating structural issues rather than emancipating individuals from them.
Several of the articles in this issue concentrate on the contentious issue of the International Criminal Court’s role in Africa, through critical investigations of the al-Bashir case. Oliver Cotton examines the African Union’s (AU) relationship with the ICC by focusing on the investigation in Sudan. He criticises African governments’ vexation towards the ICC for pursuing cases despite AU opposition based on the AU’s failure to expound the necessity of deferrals in the interest of peace, and some African states’ incompatible and flawed belief that incumbent heads of state should enjoy impunity, given that the ICC was set up to end immunity for mass violence of all individuals under its jurisdiction and remit.
Margot Tudor and Zeinab Drabu’s articles give two different perspectives on the al-Bashir case and of the charge of racism and imperialism the ICC repeatedly has been faced with. Drabu’s article argues that frustrations often articulated by African states towards the ICC are juridically unjustified, because they stand in opposition to structural limitations imposed by the Court’s jurisdiction as outlined in the Rome Statute. She subsequently argues that existing frustrations are politically motivated, meant to delegitimise the ICC in order to serve the political interests and objectives of the concerned African states.
In contrast, Tudor’s article sheds light on how colonial continuities within the operations and ideologies of the international justice system have present implications. She argues that there indeed is an anti-African bias and neocolonialism in the structures of the ICC. Additionally, she argues that the historical roots of these imperial legacies and their contemporary double standards have given political weight to those attempting to evade international law, and that current transitional justice processes exclude victims from the production of justice through legalistic and technocratic approaches which present Western approaches to justice as superior, thus divorcing victims from their access to the judicial process.
Lastly, two papers focus on the military intervention in Libya. Heena Makhija uses the Libya crisis as a case study to analyse India’s approach to the principle of ‘Responsibility to Protect’, especially with regard to where it stands in the UN Security Council discussions. Jamal Nabulsi examines the military intervention in Libya too in relation to the future of the R2P. He argues that the R2P is not dead, but that in light of the 2011 intervention “one of its limbs is gangrenous and in dire need of amputation to save the body from infection”, which will strengthen the consensus on and normative force of the doctrine in future atrocities.
We hope that you will enjoy reading the articles we selected for the Journal’s fifth issue.
Georgiana Epure and Kristin Smette Gulbrandsen
Download Vol 3 Issue 1 2018
By Matthew Moore
Human rights are portrayed in legislation as universal, inalienable and apolitical, which diverts intellectual discourse from the discussion of its theoretical, normative principles and the bearing this holds on the human rights corpus’ emancipatory potential. Liberalism is defined by its principles, tracing back to Locke, who reasoned that states hold a duty to protect humanity via upholding the principles of “lives, liberties and estates” (Locke,1988, p.180). Vitally, for Locke these principles are ontologically assumed as natural rights, the realisation of which is sufficient for the emancipation of individuals. For something to be emancipatory, it must, akin to what Trotsky noted “increase the power of man over nature and … [abolish] the power of man over man” (Trotsky, 1938). In order to be considered emancipatory, human rights must be demonstrated as liberating to mankind, while simultaneously being free from coercion in its means and ends, the presence of which would negate the former. This is echoed by Marx who considered emancipation to be located in the individual wherein “individual man” must “reabsorb in himself the abstract citizen” and “man recognise and organise his ‘own powers’ as social powers” (Marx, 1843). The argument advanced here claims human rights are intrinsically liberal, ontologically and substantively, and that the emancipatory potential of human rights is entirely undermined by this liberalism.
By Oliver Cotton
Despite the significant role that African states have had in both the creation of the ICC and its ongoing support, African nations and as a collective, the African Union (AU) have become increasingly frustrated with the International Criminal Court (ICC). This essay, primarily focusing on the ICC’s Sudan investigation, posits that African states have two core complaints and that neither is justified. The first complaint is that the ICC undermines African peace and violates the immunity of heads of state, particularly those not party to the ICC’s founding treaty, the Rome Statute, through continuing to investigate African conflicts when the African Union requests deferral. For instance, several African states’ have argued that the ICC hampers peace processes by compromising leaders’ immunity through indictment. It will be asserted, however, that this frustration is unjustified in two ways. Firstly, the structural inequalities of the United Nations Security Council (UNSC) would be a more appropriate target for criticism, because African states were primarily concerned with deferral in the case of Darfur, which was a UNSC failing. Secondly, the AU’s request for deferrals of ICC investigations on the grounds of stability are unjustified because their premises are ill-defined and erroneous. The second core complaint from African states is that the Court unfairly targets and discriminates against Africans. However, despite the disproportionate number of investigations within Africa, the fact that many African states trust the ICC’s judgement brings this claim into question.
Torn between political interests and upholding legal responsibilities? A critical examination of African states’ frustrations with the International Criminal Court
By Zeinab Drabu
The International Criminal Court is currently facing its most serious reputational crisis concerning its role and impact in relation to international criminal justice within the international arena. Nowhere is this crisis more profound than amongst African States that are both party to the International Criminal Court as well as the Constitutive Act of the African Union. Criticisms articulated by African states, including the labelling of the International Criminal Court as an ‘International Caucasian Court for the persecution and humiliation of people of colour, especially Africans’ (Al Jazeera, 2016) by the Gambian Information Minister Sheriff Bojang, are above all symbolic of the mounting frustrations that African states exhibit towards the Court. This essay will assess whether and to what extent such frustrations are justified in terms of their credibility and legitimacy. For this, the analysis will seek to determine whether these frustrations have been elicited due to the Court’s inability to fulfil its aims and objectives as outlined in the Rome Statute. Firstly, frustrations surrounding the Court’s alleged bias in terms of its selection of predominantly African cases will be reviewed. This essay will then critique frustrations regarding the International Criminal Court’s relationship to the United Nations Security Council, particularly through an examination of the case of the indictment of Sudanese President Omar Al-Bashir. As the ‘Court operates at a crossroads between law and politics’ as noted by scholars such as Arbour (2014, p.201), this essay will contend that existing frustrations articulated by African states towards the International Criminal Court are on the whole juridically unjustified, as they stand in opposition to structural limitations imposed by the Court’s jurisdiction as outlined in the Rome Statute. Furthermore, this essay will demonstrate that existing frustrations are principally politically motivated, with the purpose of delegitimising the Court to serve the political interests and objectives of African states inherent in the Court’s handled cases.
‘This delicate mosaic may be shattered at any time’: The ICC, technocracy and the liberal West’s moral imperialism
By Margot Tudor
This article argues that the colonial continuities present in the operations and ideologies within the structures of the international justice system have diplomatic implications. By investigating the International Criminal Court’s (ICC) attempts to prosecute the President of Sudan, Omar al-Bashir, it seeks to verify accusations of anti-African bias and neo-colonialism. Additionally, the historical roots of these imperial legacies and their contemporary double standards have provided political weight to those attempting to evade international law. This project presents a uniquely holistic and interdisciplinary approach to unite the fields of global justice, transitional justice and post-colonialism through utilising the frameworks and literature from international law, history, international relations and politics. It intends to build upon the burgeoning literature considering the connections between ‘new imperialism and histories of humanitarianism’ (Edmonds and Johnstone, 2016, p. 1). It will be argued that the transitional justice process excludes victims from the production process of justice through legalistic and technocratic approaches which present Western approaches to justice as superior. This, therefore, divorces victims from their access to the judicial process. In this way, this project hopes to build upon post-colonial frameworks and use them to view the power sources within global structures and institutions, particularly those within the morality industries (humanitarian, governance or judicial).
By Heena Makhija
Jawaharlal Nehru’s idealism and commitment to the maintenance of international peace and security has remarkably influenced India’s response towards international conflicts. In the Security Council, in its capacity as a non-permanent member, India has been a supporter of peaceful and responsible policy decisions for conflict resolution. In the past few decades, international intervention in conflict zones for the protection of civilians from war crimes on account of the failure of domestic state machinery has been a matter of debate in mainstream academia. Though India has been one of the largest contributors to the UN Peacekeeping Missions, its approach to the idea of ‘Responsibility to Protect’ has been cautious.
By Jamal Nabulsi
The Responsibility to Protect (R2P) is not dead, but one of its limbs is gangrenous and in dire need of amputation to save the body from infection. This article will argue that, in light of the 2011 NATO-led intervention in Libya, the coercive military component of R2P must be disaggregated from the body of the doctrine. This will allow for the consensus around R2P to widen, strengthening its normative force, while the debate about coercive military intervention can carry on outside of the R2P framework. This article will outline the R2P doctrine, describe its implementation in Libya and the consequences thereof, explain why proposed solutions fall short, before offering disaggregation as a solution.