Open Collections

UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

International crime and the politics of international criminal theory Kiyani, Asad Ghaffar 2016

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata

Download

Media
24-ubc_february_2016_kiyani_asad.pdf [ 2.36MB ]
Metadata
JSON: 24-1.0223680.json
JSON-LD: 24-1.0223680-ld.json
RDF/XML (Pretty): 24-1.0223680-rdf.xml
RDF/JSON: 24-1.0223680-rdf.json
Turtle: 24-1.0223680-turtle.txt
N-Triples: 24-1.0223680-rdf-ntriples.txt
Original Record: 24-1.0223680-source.json
Full Text
24-1.0223680-fulltext.txt
Citation
24-1.0223680.ris

Full Text

   INTERNATIONAL CRIME  AND THE POLITICS OF INTERNATIONAL CRIMINAL THEORY   by  ASAD GHAFFAR KIYANI  B.A., Wilfrid Laurier University, 2001 LL.B., Osgoode Hall Law School at York University, 2005  LL.M., University of Cambridge, 2008     A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF   DOCTOR OF PHILOSOPHY   in   THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES  (Law)   THE UNIVERSITY OF BRITISH COLUMBIA  (Vancouver)     January 2016   © Asad Ghaffar Kiyani, 2016     ii Abstract   This dissertation responds to the dissonance between international criminal law’s utopian visions and the challenges posed by its implementation. While holding great promise, international criminal law remains a novel and unstable discipline, contested as being under-theorized and/or deferential to political and economic power. These arguments attack the substance and structure of international criminal law, undermining claims as to its effectiveness and even sustainability.  In responding to these challenges, this dissertation uses postcolonial theory and Third World Approaches to International Law (TWAIL) to address central questions of criminal law theory. The goal of this dissertation is to develop a plausible normative framework for international criminal law. This normative framework will provide a platform for critiquing existing norms and practices, as well as the basis for alternative understandings of international criminal law, and potential responses to these problems that are normatively coherent and consistent with the goals of international criminal law.  This dissertation offers five inter-related conclusions. First, it demonstrates the utility of TWAIL as a methodological and theoretical frame for studying international criminal law. Second, it argues for a broader and more normatively consistent understanding of what constitutes an international crime. Third, it offers a justification for extraterritorial punishment that accounts for state sovereignty as an important interest. Fourth, it explains why the selective application of international criminal law undermines this justification, and how this might be remedied in both normative and practical terms. Fifth, it identifies the potential disruptions international criminal law poses to general public international law, and explains why these challenges may undermine the long-term goals and viability of the field.   iii  Preface  This dissertation is original, independent work by the author, Asad Ghaffar Kiyani. A version of Chapters 1 and 2 has been accepted for publication [Asad G Kiyani, “International Crime and the Politics of International Criminal Theory” (2015) 47 New York University Journal of International Law & Politics (forthcoming)]. A version of Chapter 5 has been published [Asad G Kiyani, “Al-Bashir & the Problem of Head of State Immunity” (2013) 12 Chinese Journal of International Law 467].     iv Table of Contents  Abstract ..................................................................................................................................... ii	  Preface ...................................................................................................................................... iii	  Table of Contents .................................................................................................................... iv	  Acknowledgments ................................................................................................................... vii	  Dedication .............................................................................................................................. viii	   Introduction:  International Crime, Punishment, and the Third World .............................. 1	  I.	  	   The Existential Dilemma of International Criminal Law .............................................1	  II.	   An Interdisciplinary Approach ......................................................................................2	  III.	  A Third World Approach to International Crime and Punishment? ............................8	  IV.	  Structure of the Dissertation ........................................................................................18	   Chapter 1:  International Crime and the Politics of International Criminal Theory .......... 27	  I.	  	   Introduction .................................................................................................................27	  II.	   The Politics of Apartheid .............................................................................................34	  A.	   Outlining a Third World Approach to International Law ....................................36	  B.	   The Legal-Political Engineering of Apartheid .......................................................42	  D.	   The “Post” of the Postcolonial World ....................................................................54	  E.	   Civilization and the Production of (Postcolonial) Knowledge ...............................61	  III. Conclusion ...................................................................................................................66	   Chapter 2:  Structural Deficits in the Concept of International Crime ............................... 69	  I.	  	   Introduction .................................................................................................................69	  II.   Human Rights & the Third World ..............................................................................74	  III. Atrocity & the Appetite for Criminal Law Theory ......................................................85	  IV. The Economic Context of International Crime ..........................................................92	  V.	   Towards a Critical Criminal Normativity .................................................................106	  VI. Conclusion: From Exclusion to Inclusion ..................................................................112	   Chapter 3:  The Interests and Limits of Extraterritorial Punishment ................................ 115	  I. 	   Introduction ...............................................................................................................116	  II. 	  An Interest-Based Account of Punishment ................................................................118	  A.	   Rights and Interests, Dignity and Security ..........................................................118	  B.	   The State as Punishing Authority ........................................................................129	  C.	   Forfeiture, Dissent & Civil Disobedience .............................................................133	  D.	   Jurisdictional Claims & Extra-Territorial Punishment ........................................137	  1.	   Territorial Jurisdiction .................................................................................. 138	  2.	   Nationality-Based Jurisdiction ...................................................................... 139	  3.	   Reconsidering Nationality-Based Jurisdiction .............................................. 143	  (a)	   Nationality & TWAIL ............................................................................. 143	  (b)	   Nationality as a Fail-Safe for Territorial Jurisdiction? ............................ 145	  (c)	   Nationality Jurisdiction as Overreach ..................................................... 147	  (d)	   Nationality Jurisdiction and Legal Imperialism ...................................... 148	  4.	   Extraterritoriality and Domestic Interests .................................................... 149	   v E.	   A Presumption of International Jurisdiction? ......................................................152	  F.	   Distinguishing International From Domestic Municipal Crimes ........................155	  G.	   Alternative Theories & the Interest in Non-Intervention ....................................158	  III.  Sovereignty & Territorial Immunity .........................................................................162	  A.	   Sovereignty: a Third Essential Interest ................................................................162	  B.	   Sovereignty & International Criminal Jurisdiction ..............................................169	  IV.	   Conclusion: A Demand for Democracy? ..................................................................183	   Chapter 4: Group-Based Selectivity and Postcolonial Repression .................................... 190	  I.	  	   Introduction ...............................................................................................................191	  II.	   The Defence of Selectivity Practice ...........................................................................196	  III.	  A Typology of Selectivity ...........................................................................................198	  A.	   Design Selectivity .................................................................................................199	  1.	   Material Selectivity ....................................................................................... 199	  2.	   Procedural Selectivity .................................................................................... 200	  3.	   Geographic Selectivity .................................................................................. 201	  4.	   Temporal Selectivity ..................................................................................... 202	  B.	   Operational Selectivity .........................................................................................203	  1.	   Capacity Selectivity ....................................................................................... 203	  2.	   Justice-Based Selectivity ................................................................................ 205	  3.	   Inter-situational Selectivity & Tribunal Discretion ....................................... 207	  C.	   Group-Based Selectivity .......................................................................................208	  D.	   Group-Based Differentiation: A Poor Domestic Analogue .................................212	  IV.	  Group-Based Selectivity and International Crimes ...................................................214	  A.	   Victim and Offender Status .................................................................................220	  B.	   Intra-State Marginalization .................................................................................222	  C.	   Goals and Justifications of Punishment ................................................................227	  V.	   Gravity as a Justification of Selectivity .......................................................................229	  A.	   The Indeterminacy of Gravity .............................................................................230	  B.	   Gravity & Group-Based Selectivity ......................................................................233	  C.	   Remedying Group-Based Selectivity ...................................................................237	  VI.	  Conclusion .................................................................................................................239	   Chapter 5:  Legal Standing and the Administration of the Global Legal Order ............... 243	  I. 	   Introduction ...............................................................................................................244	  II.	   Preconditions of Punishment .....................................................................................249	  A.	   Capacity ...............................................................................................................250	  B.	   Intelligibility .........................................................................................................251	  C.	   Standing ...............................................................................................................253	  III.	  The Referral of al-Bashir ...........................................................................................255	  A.	   Immunities, Treaties, and Customary International Law ...................................257	  B.	   The Legal Nature of Security Council Referrals .................................................261	  1.	   Delegation of Chapter VII Powers ......................................................................262	  2.	   Article 103 and the Supremacy of the Security Council .....................................265	  3.	   Re-interpreting the Security Council referral power ...........................................270	  C.	   No Customary Law Exception to Immunities .....................................................277	  D.	   The Cases of Former Heads of State ...................................................................278	   vi E.	   Statutory Precedent, Substance, and Procedure ..................................................281	  IV.	  Formalism as Legal Critique ......................................................................................284	  A.	   Exposing the Non-Neutrality of International Law .............................................286	  B.	   The Place of Inter-state Hierarchies in ICL ........................................................288	  C.	   Resistance, Non-Cooperation and Reduced Protection ......................................296	  D.	   The Third World as Legal Agent ........................................................................300	  E.	   An Interest in Not Prosecuting? ............................................................................304	  V.	   Conclusion .................................................................................................................307	   Conclusion:  The Limits and Possibilities of TWAIL ........................................................ 310	  I.	  	   A Third World Approach? ........................................................................................310	  II.	   Limits & Possibilities ..................................................................................................313	  A.	   The Specter of the ‘Political’ ................................................................................313	  B.	   The Underdevelopment of ICL ...........................................................................316	  C.	   The Incorporeality of Political Will .....................................................................321	  D.	   Abundant Indeterminacy .....................................................................................324	  E.	   Choosing Injustice? ..............................................................................................326	   Bibliography .......................................................................................................................... 334	      vii Acknowledgments  This dissertation was made possible by the support and advice of a number of individuals and institutions. Special thanks are due to the various faculty, staff, and colleagues at the University of British Columbia, particularly my doctoral committee, whose careful studies, profound insights and challenges were essential to the completion of this project. The patience, support and guidance of my supervisor, Professor Natasha Affolder, has been invaluable. This project went through many iterations and changed directions several times, but Natasha continually offered sound advice and reflections on my research. In many ways, her unflagging support held this project together. Professor James G. Stewart has constantly pushed me to develop my own ideas and voice. The many discussions we had, on this project and others, spurred my research in new directions. In spite of the many changes to this project since I first enlisted them, Professors Benjamin Perrin and Katharina Coleman regularly and persistently encouraged me to refine my thinking on all manner of subjects. In addition, Professor Antony Anghie – my External Examiner – and Professors Karin Mickelson and Sunera Thobani – my University Examiners – provided thoughtful, engaging and challenging feedback on this project.  As the facilitator of the PhD Legal Theory seminar, Professor Gordon Christie introduced me to TWAIL, fundamentally altering the nature of this project and my wider research agenda. Associate Dean of Graduate Studies, Professor Doug Harris offered me a teaching position that helped me reconsider my approach to criminal law, and his successor, Professor Ljiljana Biukovic consistently supported me as I finished this work. I am indebted to my friend and colleague Pooja Parmar, who has directly and indirectly assisted and supported my TWAIL studies even after she left UBC. Katie Sinclair has been a thoughtful and engaged sounding board for many years. I would like to express my sincere gratitude to a number of scholars outside of UBC for their comments, suggestions and advice on various aspects of this project: Professors Antony Duff, Charles Jalloh, Obiora Okafor, Sonia Lawrence, François Tanguay-Renaud, Amar Bhatia, and Sujith Xavier. Finally, this project was made possible by the financial and material support offered to me at various stages by UBC’s Four-Year Fellowship, the Vanier Canada Graduate Scholarship of the Social Sciences and Humanities Research Council (SSHRC), the Charles Bourne Graduate Scholarship in International Law (UBC), the Institute for Feminist Legal Studies (Osgoode Hall), and the Nathanson Centre for Transnational Human Rights, Crime & Security (Osgoode Hall).    viii    Dedication  This dissertation would have impossible without the friendship and support of a great number of wonderful people. At UBC, enough cannot be said about the invaluable support, guidance and friendship of Joanne Chung for many years. Pooja Parmar (as well as Navneet and Arshia), Sarah Marsden, Erika Cedillo, Naayeli Ramirez, Asha Kaushal, Tom Garbett, and Isadora Tytgat are only some of the graduate students at the Faculty of Law who offered sound advice throughout my studies.  My colleagues at St John’s College (UBC) were vital to my well-being: Christine Peralta, Amy Wilkinson, Aaron Tam, Arun Ramamurthy, Pearl Siganporia, Kaline Baker, Stefan Honisch, Marleen de Ruiter, Genevieve Gagne-Hawes, Abhijit Pandari, and Hassan Arshad chief among them. Shayna Plaut, Kate Jongbloed and Robyn Trask have been three of the most supportive friends one could ask for. Salman Ylook Rana and Kate Glover have been companions and supporters throughout my legal studies. That I remain friends with Anthony Iantorno, Wendy Gardham, Eddy Schall, Luke Martyn, Keiko Yasuda, John Carlaw, Nicole Kozicki, Nick Brandon, Guruveer Sangha and Leila Handanović speaks volumes about their generosity and patience. An impossible debt is owed to my immediate and extended family. Special thanks are due to my parents, my brother Saad, his wife Saba Chaudhry, and their wonderful children – Ibrahim, Yusuf, and now Sana – for their patience and support. I am also deeply grateful to the Chaudhry, Shaske and Sinclair families for treating me as one of their own for many years. Finally, this dissertation has been written and rewritten in many places, but the one constant throughout has been Katie Sinclair. She has supported my efforts in innumerable ways, and ensured not only that this was a better piece of work than it otherwise would have been, but that I maintained a sense of perspective throughout. More than anyone else, she has sustained me throughout this process.    1  Introduction:  International Crime, Punishment, and the Third World     I.	  	   The Existential Dilemma of International Criminal Law .............................................1	  II.	   An Interdisciplinary Approach ......................................................................................2	  III.	  A Third World Approach to International Crime and Punishment? ............................8	  IV.	  Structure of the Dissertation ........................................................................................18	      I. THE EXISTENTIAL DILEMMA OF INTERNATIONAL CRIMINAL LAW  This dissertation seeks to problematize international criminal law (ICL) as an object of scholarly study and as a tangible practice. My interest in ICL is rooted its promise and its instability. ICL pledges to reduce the prevalence of international crime, end impunity for those responsible for those crimes, and help societies transition from conflict and chaos to stability and security. Yet these idealistic visions have been confounded by a profound set of challenges – that ICL is under-theorized;1 that it tries to do too much;2 that, at its heart, it is actually profoundly illiberal.3 These normative arguments aim squarely at the structure of ICL, and are supplemented by more particularized arguments attacking specific elements of ICL practice: the way the International Criminal Court (ICC) extends its jurisdiction to states that have not ratified its statute; the ongoing failures to prosecute corporate actors for their pervasive and contributing presence in and around atrocity-generating armed conflicts; the                                             1 Mark Drumbl, “A Hard Look at the Soft Theory of International Criminal Law,” in Leila Nadya Sadat and Michael P Scharf, eds,  The Theory and Practice of International Criminal Law: Essays in Honour of M. Cherif Bassiouni (Leiden: Martinus Nijhoff Publishers, 2008) 7. 2 Mirjan Damaška, “What is the Point of International Criminal Justice?” (2008) 83 Chicago-Kent LJ 329. 3 Darryl Robinson, “The Identity Crisis of International Criminal Law” (2008) 21 Leiden J Int’l L 925.  2 myopic prosecutorial focus on individuals from weak states, especially Africa; the specter of the Security Council looming behind so much of ICL; the incoherence of sentences for international crimes; and the dubious quality of evidence used to support many convictions at international criminal tribunals. The challenges are wide-ranging and mundane, narrow and profound, hitting every aspect of ICL.  This is the fundamental predicament of ICL: that every action – every indictment, every investigation, every trial – threatens an existential challenge to the discipline itself. ICL’s continual transgressions of cognizable (albeit not impermeable) boundaries between international and local, individual and state, sovereignty and accountability, take on new impetus as ICL seeks to assign individual responsibility for acts and decisions that are both personal and structural.   Every aspect of the discipline is open to challenge. It is not just a question of whether an international criminal tribunal (ICT) follows the rules, but why those rules are to be enforced, why that specific ICT exists in the first place, who else it does or does not prosecute, and what states have an interest in the particular case being decided. Responding to these challenges requires looking beyond the problems of enforcement to a more comprehensive, contextualized understanding of international criminal law.   II. AN INTERDISCIPLINARY APPROACH  This dissertation aims to offer just such an explanation, albeit without attempting to address every possible challenge, or every aspect of the criminal law. A basic theory of criminal law would explain (1) what conduct constitutes international crimes, (2) the moral justification for punishment, (3) why certain institutions are entitled to punish (4) what  3 individuals and entities should be held criminally liable, and, (5) the amount and type of punishment they should suffer.4  Although there is simply not enough room to respond to them all, this dissertation takes seriously each of these challenges to ICL as both existential and episodic critiques of the field, as well as the defenses against them offered by practitioners, scholars and supporters of the international criminal justice project. Chapters One and Two are mainly concerned with the first and fourth points – the questions of what constitutes a crime, and what entities or actors should be held responsible. The remaining chapters focus on the second and third points - the justification for international punishment, and what institutions may enact punishment. This dissertation conceives of these issues as problems of bridging international criminal law: connecting international and domestic criminal law regimes, and exploring the relationship between sovereignty and the exercise of extraterritorial jurisdiction. They attract special attention here because they directly implicate questions about the broader relationship between states and international institutions, the balance of power in international relations, and lie at the core of existential challenges to ICL.5  As a step towards addressing these concerns, this dissertation offers a Third World Approach. It recognizes that certain issues have repeatedly presented themselves in ICL, that ICL has traditionally been directed at certain states and certain parties within those states,                                             4 Jeffrie Murphy, “Does Kant Have a Theory of Punishment?” (1987) 87 Columbia LR 509. 5 Which should not imply the irrelevance of sentencing to the study of ICL, or to TWAIL analyses thereof. The actual punishment levied in the name of ICL is of course tremendously important, but is less concerned with the public international law issues raised by the first four points. At the same time, discussions around sentencing and punishment are instructive for considering the relationship between local and global penal practice and concepts of justice. See, e.g., Ralph Henham, “The Philosophical Foundations of International Sentencing” (2003) 1 JICJ 64 (that context is crucial to understanding the propriety of sentences), S Beresford, “Unshackling the Paper Tiger – The Sentencing Practices of the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda” (2002) 1 Int’l Crim LR 33, and Mark Drumbl, “Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda” (2002) 75 NYU LR 1221.  4 and that it has often given effect to a limited set of interests. It also situates the advent of modern international criminal institutions and international criminal rules and norms in the post-Second World War, decolonization context. ICL is therefore not a silo apart from but a field that both influences and is influenced by developments in international relations and international law. As will be shown, many of the existential challenges levied against ICL reflect the dynamics of the evolving postcolonial international system, and any attempt to explain and redress these challenges must be embedded in this context. At the same time, the principles of criminal law theory cannot be ignored, as they themselves have become important sites of contestation.   This dissertation thus adopts the insights of postcolonial study and Third World Approaches to International Law (TWAIL), and fuses them with central questions of criminal law theory in an attempt to develop a plausible normative framework upon which to build ICL. It translates political or socio-legal concerns about ICL into vital aspects of a critique of ICL and as integral elements of a theory of ICL. In this understanding, ICL cannot be understood apart from the international context in which it has grown. The development of ICL rules and institutions took place in an international environment where states, both individually and as groups, were often acting with regard to their own self-interests or shaping the world in their own self-image, and so the history of public international law is as important as the history of ICL itself.  TWAIL is used for several reasons. First, as the ICC is currently only prosecuting situations in Africa, it seems appropriate to consider whether a theoretical approach that is driven by a particular view of the historical relationship between colonized and colonizing states, and a similar mistrust of international institutions, can provide any particular insight  5 into the norms and systems that underpin the exercise of international criminal jurisdiction. Second, the concerns outlined by the TWAIL critique put forth here seem to parallel or overlap with other scholarly criticisms of ICL. These other critiques address important aspects of the ICL system, without claiming a specifically TWAIL analysis, but instead relying on particular conceptions of fairness, justice, or the norms of the criminal law. Third, states and observers that argue against some or all aspects of the international criminal system often adopt arguments that coincide with a TWAIL analysis of ICL, regardless of whether the states themselves are considered part of the ‘Third World’ or not. Suspicions of the ability to pierce state sovereignty mirror concerns about less powerful states and peoples being dominated by more powerful states and supranational institutions. Those that mistrust the norms projected by ICTs reflect TWAIL concerns about the supposed universality of those norms (such as certain trial procedures, or even trials themselves) and their desirability in specific cultural and political contexts (where peace remains fragile, or where alternative response mechanisms might be appropriate). Where states make these critiques, it matters less if the individuals who make up the bureaucracies of these states are sincere in their complaints, for the fact remains that these criticisms have great political currency, and have been adopted by states and international organizations alike (especially in Africa). In this way, TWAIL addresses itself toward the concerns of postcolonial scholars, criminal law theorists, and a number of important actors involved in the ICL system.   A theory of international criminal law must therefore account for ICL as an interdisciplinary phenomenon. This dissertation attaches concerns about race, politics, geography and ethnicity to normative claims about international and criminal law, making connections that demonstrate the relevance of TWAIL and postcolonial theory to developing  6 a coherent theory of ICL. These alternate approaches thus act as methodological tools for deconstructing current theories and practices of ICL, as well as core principles for reconstituting the same. In this way, this dissertation remains a law dissertation. It seeks to connect legal theory to legal method so as to ask questions about the law of international crime. The deconstructive and reconstructive tasks it sets itself are always centred on the law, the coherence of legal norms and their theoretical foundations, the effects of putting those norms into practice. Echoing Ratner and Slaughter’s introduction to international legal methods, this dissertation seeks to “establish what the law is, where it might be going, what it should be, why it is the way it is, where the scholar and practitioner fit in, how to construct law-based options for the future, and whether it even matters to ask those questions.”6 In this sense, this dissertation also provides a riposte to the Ratner and Slaughter. While the symposium on methods that they introduced initially excluded TWAIL, this dissertation demonstrates the salience and vitality of TWAIL as a theory and method of international law by engaging in the same pursuits they identified. Just as Oppenheim argued that American jurists were as influential in the study of international law as their European counterparts,7 this dissertation shows how TWAIL can and does engage with interdisciplinary and traditional methods of studying international law.  The dissertation makes four important contributions to the literature. First, it identifies important problems in the current theory and practice of ICL, and explains how these concerns are not just complaints about realpolitik, but also attacks on the normative foundations of ICL. Second, and relatedly, it offers not only a TWAIL critique of ICL, but                                             6 Steven R Ratner & Anne-Marie Slaughter, “Appraising the Methods of International Law: A Prospectus for Readers” (1999) 93 AJIL 291, 292-293. 7 Lassa Oppenheim, “The Science of International Law: Its Task and Method” (1908) 1 AJIL 313.  7 outlines the contours of a TWAIL theory of ICL. This cannot, for reasons of space, length and indeed complexity, be a complete understanding of every aspect of ICL, but it does confront important questions that are germane to TWAIL, postcolonial study, and criminal law theory: the interests that are protected by current definitions of international crime; the justifications offered for extraterritorial punishment; and the relationship between international criminal institutions, state sovereignty, and the consent-based international system. It is both a critical and a productive enterprise. Third, by engaging with criminal law theory in this manner, this dissertation offers a more methodical TWAIL analysis of ICL than currently exists. Previous efforts in the literature have been trenchant but discrete – identifying the virtues of hybrid tribunals;8 problematizing assertions of international human rights as a universal panacea for suffering;9 demonstrating the relevance of TWAIL critiques to international criminal law;10 reconceiving jus ad bellum debates;11 and, explaining how the trope of novel security threats legitimates imperialist actions 12  – and have yet to systematically confront ICL qua criminal law. Finally, it sets out possible future avenues of research for both ICL and TWAIL scholarship: on the theory of international crime; the conceptualization of sovereignty; and on the implications of positioning ICL institutions as institutions of global governance.                                              8 Balakrishnan Rajagopal, “The Pragmatics of Prosecuting the Khmer Rouge” (1998) 1 YB Int’l Hum L 189. 9 Makau Wa Mutua, “The Politics of Human Rights: Beyond the Abolitionist Paradigm in Africa” (1995) 17 Mich JIL 339. 10 Antony Anghie & Bhupinder Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts” (2003) 2 Chinese JIL 77. 11 Usha Natarajan, “A Third World Approach to Debating the Legality of the War in Iraq” (2007) 9 Int’l Community LR 405. 12 Obiora Okafor, “Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective” (2005) 43 Osgoode Hall LJ 172.  8  III. A THIRD WORLD APPROACH TO INTERNATIONAL CRIME AND PUNISHMENT?  In its most simplified form, this dissertation applies a TWAIL perspective to the problem of international crime and punishment. By engaging with, as opposed to abandoning, the international criminal law project, this dissertation adopts a moderated critical perspective. It deconstructs key tenets and practices of ICL, while at the same time pointing to plausible, coherent, and productive reformulations. It is a critical project, but not wholly so, and thus - in addition to its main argument - offers reflections not only on the discipline of ICL, but on TWAIL as a mode of critique and analysis.  In this respect, this dissertation is both indebted to but detached from most TWAIL studies, of international law in general and of ICL. Paradigmatic TWAIL scholarship has focused on economic inequality, and the conditions of self-determination in decolonized states. Though he never referred to himself as such, Bedjaoui’s call for a New International Economic Order (NIEO) was arguably one of the first pieces of TWAIL scholarship.13 Professors Abi-Saab and Sornarajah have themselves dissected the nature of the international community,14  international arbitration and foreign investment laws,15 and contemporary scholars such as Anghie have turned their attention to the work of the International Centre for Settlement of Investment Disputes (ICSID). Of course the Bretton-Woods institutions have been severely critiqued for their role in economic policy, and so too have the political and                                             13 Mohamed Bedjaoui, Towards a New International Economic Order (New York: Holmes & Meier, 1979). 14 Georges Abi-Saab, “Newly Independent States and the Rules of International Law- An Outline” (1962) 8 Howard LJ 95, and Georges Abi-Saab, “Whither the International Community?” (1998) 9 EJIL 248 (on the relationship between an international law of coexistence and laws of cooperation). 15 M Sornarajah, “Power and Justice in Foreign Investment Arbitration” (1997) 14:3 J. Int’l Arbitration 103; M Sornarajah, The International Law on Foreign Investment (2d ed) (Cambridge: Cambridge University Press, 2004).  9 economic local elites that benefit from these international programs. Throughout TWAIL’s emergence there has been a focus on the deprivation of the ordinary Third World person and peoples, and in particular how the political and economic exclusions they suffer are the product of deliberate lawmaking and policy efforts that privilege certain interests and actors at the expense of others. In this way, TWAIL has often overlapped with the wide spectrum of analyses on the political left.  In the context of a world in which material inequality still directly affects the lives of some of the most marginalized peoples of the world, a critical analysis of international criminal justice may seem somewhat out of step with a perspective that claims to prioritize the ordinary people whose lives are affected by international law. After all, traditional understandings of international crime — genocide, war crimes, crimes against humanity, and aggression — seem like exactly the sort of conduct one would want to respond to with international legal mechanisms. Humanitarian concern is as much a part of ICL as it is of TWAIL, and there is something counter-intuitive about the reticence with which this dissertation approaches ICL. Given the continued pervasiveness of international crimes, the growth in ICL — in its judicial institutions, its jurisprudence, its professional corps, its jurisdictional reach — should be welcomed.  Yet an instinctual desire for international criminal justice should not efface its relationships to other aspects of the international system. Compartmentalizing ICL as a set of legal responses to particular categories of crime detaches it from the context within which the field has developed, and been applied. Whatever benefits it may offer, international criminal law serves as an appropriate object of critical study precisely because it is a growth industry that is becoming normalized in discourse and application. As ICL becomes less an episodic  10 phenomenon administered by the victors of armed conflict, and more an independent means of regulating atrocities as they occur — often before a conflict is definitively won or lost — it becomes more important to confront how its institutions and norms shape the world for better or worse, and how ICL intersects with general international law and the system of international relations to produce the dark sides of its virtue.   ICL has a material impact on how the Third World is understood. The stories it tells — about what is an international crime, about how certain atrocities came to be, about who is responsible, to what degree, and for what acts — not only shape popular understandings of the world, but legitimize policies that react to these accounts. The cases prosecuted by the International Criminal Tribunal for Rwanda (ICTR) tell some part of the Rwandan genocide of 1994, but little of the preparatory acts that took place in the preceding years;16 the revenge killings by Tutsis against Hutus after the Rwandan Patriotic Front’s invasion from Uganda;17 and, of course, the profoundly disturbing choice of the international community, certain powerful states, and the United Nations to not intervene to stop the 1994 genocide.18 Nor does it tell the story of colonial occupation, ethnic division of the country, and the traumas of                                             16 Helen M Hintjens, “Explaining the 1994 genocide in Rwanda” (1999) 37 J Modern Afr Stud 241, 247 (“The regime in power in the 1990s, along with its regional and international allies, was fully responsible for the genocide of 1994”); and, Linda Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide, 2d ed (New York: Zed Books, 2009). 17 Report of the Secretary-General’s Investigative Team charged with investigating serious violations of human rights and international humanitarian law in the Democratic Republic of Congo, UN Doc. S/1998/581 (29 June 1998) (describing the reprisals as crimes against humanity). 18 As noted in Rwandan objections to the ICTR. UNSC Meeting Record, UN Doc S/PV.3453 (8 Nov. 1994), 13 – 15. See, generally Report of the Independent Inquiry into the actions of the United Nations during the 1994 genocide in Rwanda, UN Doc S/1999/1257 (16 Dec. 1999).  11 decolonization.19 Similarly, through its cases, the International Criminal Tribunal for the former Yugoslavia (ICTY) can narrate atrocity, but it cannot tell the stories of post-Cold War structural adjustment programs and the associated breakdown of societal relations that dovetailed so neatly with stirring political forces.20   Trials are about more than just stories, of course. They can serve, and are often justified on the basis of, instrumental goals that they directly or indirectly pursue. International criminal trials are popularly seen as deterrent mechanisms, preventing future atrocity through their clear condemnations of certain conduct and punishment of offenders. This dissertation asks who is deterred, and how, when justice is so partial in what it chooses to criminalize, and who it chooses to prosecute. As international criminal justice so frequently focuses only on say African perpetrators of violence, it ignores their foreign enablers. That it so frequently focuses only on military leaders, it ignores the businessmen selling them weapons that will be used in atrocities, and the corporations whose exploitation of natural resources in conflict zones gives the military leaders the money to buy those foreign-made and foreign-sold arms in the first place.  Yet trials are often not even necessary to ICL. The NATO-led bombing campaign of Libya was enabled in part by its ability to describe the Libyan regime as a criminal one,21                                             19 Many authors identify what Mamdani describes as the ‘logic of colonialism’ in the central division between Hutu and Tutsi that was identified and then formalized by colonial powers, and which continued post-independence. Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism & the Genocide in Rwanda (Oxford: James Currey, 2001), 34; Melvern, supra note 16, at 7 – 15; and, Hintjens, supra note 16, at 252–254 (noting that the shift to a cash crop-based colonial economy, as well as the ‘tidying up’ of complex webs of social relations, and the proxy conflict between Flemish and Walloons cemented a dichotomous Hutu-Tutsi divide where highly sophisticated interactions and identities had once ruled). 20 See José Alvarez, “Rush to Closure: Lessons of the Tadić Judgment” (1998) 96 Mich LR 2031, 2054 – 2055, and Susan L Woodward, Balkan Tragedy: Chaos and Dissolution After the Cold War (Brookings Institution Press, 1995). 21 Barack Obama, David Cameron and Nicolas Sarkozy, “Libya’s Pathway to Peace”, New York Times (14 Apr 2011) (noting that the ICC was “rightly investigating the crimes” committed by the Gaddafi regime).  12 whose leadership was quickly indicted by the ICC for war crimes and crimes against humanity. Western air warfare was vital in ensuring the military defeat of the Gaddafi regime; it was also crucial to the country’s descent into a chaotic war between a multitude of armed factions, and the power vacuum that they and the notorious ISIS/ISIL are attempting to fill.22   International criminal law obscures as much as it illuminates; it passes judgment on people and actors involved in conflict, definitively declaring who and what are culpable for the suffering to which we bear witness. Thus to study ICL is to study the structural preoccupations of the international community, including the economic forces and agents that enable international crime. It is to study in granular detail the intense suffering that ICL often acts in deference to or even in service of, instead of ameliorating that suffering. It is to study our shared stories of the world, stories sanctified by law, and their impacts. Indeed, we study it because it is law, which justifiably or not retains a powerful grip on international imagination and discourse. International legal processes and declarations possess an immense authority, particularly in a world where the multiplicity of voices arguing for one position or another lacks the gravitas of international courts and international judgments. Law has power; legal institutions are loci of power; and legal norms its arbiters. And whenever TWAIL encounters power, no matter how benevolent it may seem, it does and should ask how this power is developed, applied, and instrumentalized.  In this light, many excellent TWAIL scholars remain suspicious of ICL’s aims, its means, its universalist prescriptions, and of course its selective enforcement. After the                                             22 See Mieczystaw P Boduszyński and Duncan Pickard, “Libya Starts from Scratch” (2013) 24:4 J Democracy 86, 92 – 96; Al-Qaeda in Libya: A Profile, Report Prepared by the Federal Research Division, Library of Congress (Aug. 2012), 7 – 11; and, To The Point, “Libya’s Power Vacuum Draws ISIS Closer to Europe” Radio broadcast  (19 Feb 2015) KCRW Radio.  13 Second World War, one could make the case that at least some Western Europeans – those involved in the Axis crimes – had been prosecuted. Otherwise, critics say, international criminal courts and tribunals have by and large prosecuted individuals who make up the Other: people from the Balkans; Rwandan Hutus and Tutsis; Sudanese, Ugandans, Kenyans, Cambodians, Sierra Leoneans and Ivorians — these are the people who have been indicted and prosecuted by various ad hoc and permanent international criminal mechanisms. This preoccupation with peoples of the Global South is a clear warning sign for TWAIL scholars, who themselves are preoccupied with the position of those same peoples, and their states, in the international legal order. For TWAIL scholars, there is much that needs to be explained in light of this apparent preference for the non-Western criminal, which is the starting point from which many argue the poor fit between ICL and the people over whom it exercises jurisdiction. Continuities abound with TWAIL critiques with other aspects of public and private international law, including international human rights law, and these apparent similarities sow seeds of suspicion as to the utility of ICL, and the intentions of its framers and arbiters.  International law’s defects are thereby identified by TWAIL scholars as filtering into ICL. Without disregarding or minimizing the relevance of these concerns, this dissertation takes a different perspective and considers the field of international criminal justice first and foremost as a problem of criminal, not international law. In other words, the primary focus of this dissertation is how the international law problems of ICL — its selectivity, its institutions and their agents, its legalist solutions — are understood through the lens of criminal law theory. It is, as suggested in the next chapter, a study more of the politics of criminal theory than the politics of enforcement. This is not to ignore those concerns about  14 enforcement, selectivity, and the individuals who animate international criminal justice; rather, it is to translate those concerns and reflect upon them using criminal law theory as a central mode of analysis. Thus, the question becomes not whether selectivity happens, or even why it happens, but how the practice of selectivity bears upon ICL as a field of criminal law. What does it say about our understanding of the relationship between ICL and the liberal criminal justice practices of the West upon which ICL is modelled? Can the criminal law accommodate such selectivity? Is it simply a question of North-South relations, or can we understand selectivity in different terms if we parse it first as a problem for criminal law? And, what are the implications for our understanding of ICL as the praxis of criminal law?   Practices of selectivity and other facts of the implementation of ICL remain relevant to this dissertation, but so too does the idea that ICL is first and foremost a question of criminal law. This emphasis results in part from the lack of attention paid to it so far by TWAIL scholars, but also from an intuitive understanding, grounded in my albeit brief practical experiences in the Canadian and international criminal systems, that the line between criminal law and other areas of law, or — to borrow the legal pluralist phrase — other modes of social ordering is quite blurred. Criminal law norms are as much expressions of public policy as tax reform, immigration rules, employment insurance, electoral reform, and universal health insurance schemes. Popularly accepted or not, the criminal law does not merely apply in society, but regulates and shapes it, through its enforcement, its norms, and the underlying processes of lawmaking. As much as any other public scheme, criminal law offers a vision of the society in which we live; to the extent that TWAIL is concerned with how the international community is built and structured, it must concern itself with the fundamental criminal law norms that are (problematically) enforced.   15  Importantly, this project also seeks to distinguish itself from a particular deconstructive strand in the emerging school of thought known as Critical Approaches to International Criminal Law (CAICL). ‘Critical’, of course, can mean anything, but in the context of CAICL it often means critiquing the orthodox conception of ICL as an imperfect but well-intentioned and benevolent system of law. An affinity between Critical Approaches and TWAIL is clear — both are suspicious of the claims of moral authority, moral outcomes, and objectivity that are often marched out in support of international criminal institutions. Where this dissertation differs is that it seeks a thicker attachment to ICL in two ways. First, there is a sense among some CAICL (and indeed TWAIL) scholars, regularly repeated at conferences and in private discussions, that the ICL project as it is currently constituted ought to be abandoned. The ICC in particular is singled out as a failure, but similar criticisms are made of the ICTY and ICTR. These institutions have failed to deliver justice to afflicted populations; they have remained selective; they have been instrumentalized in service of military operations; and, are thus irredeemably damaged. While there is validity to many of these critiques, and indeed many of them are adopted in this dissertation, it is not clear that these flaws do or should condemn ICL as a whole. In particular, the impulse to push ICL to the scrap heap — one that largely emanates from scholars or the military and political leaders vulnerable to ICL — overlooks the very real demands for justice that are being made by local, violence-afflicted communities. As is noted in Chapter Four, for example, the ICC has been very selective in its treatment of the Ugandan state’s conflict with the Lord’s Resistance Army (LRA) in the northern regions of Lango and Acholi. Though both sides have committed serious atrocities, the only persons indicted for crimes in that situation are LRA  16 leaders.23 Yet when confronted with this obvious selectivity, the claim advanced by many Lango and Acholi is not that the ICC has lost its moral authority and should cease operations, but that the ICC should indict government political and military leaders as well.24 In other words, the very people that TWAIL seeks to centre in its analysis, the individuals and groups its interests seeks to protect and affirm, are pushing for a result that often stands at odds with critical deconstructions of ICL.   As such, even though this dissertation levies important criticisms against the field, its institutions, and its agents, I do not seek to dismantle the structures of ICL. Yet none of this should be taken as saying it is victims whose demands should govern the actions of international criminal courts or tribunals, or that victims’ rights and interests need to be prioritized, or that in making the arguments that follow I represent any particular constituency. Rather, it is to say that abandoning ICL at this stage is to disregard the potential for its reform that is sought by so many who might benefit from it, and it is incumbent on scholars that claim a TWAIL ethos to consider whether and how ICL can be salvaged. It may be that ICL is incapable of meeting the needs or expectations of the populations it seeks to protect, and it may be that its institutions do more harm than good. Nonetheless, this dissertation asks whether a TWAIL perspective can offer meaningful reform – without assuming that ICL or its institutions are essential or inherently benevolent.  The second sense in which I pursue a thicker attachment to ICL is again through the emphasis on criminal law theory, as opposed to public international law studies or the                                             23 As detailed in Chapter 4.  24 Suggestions by the Acholi Religious and Cultural Leaders in Response to the Request by the International Criminal Court’ (Statement, Gulu, 12 November 2004), reprinted in Tim Allen, Trial Justice: The International Criminal Court and Lord’s Resistance Army (New York: Zed Books, 2006) at 86–7.  17 intriguing socio-legal analyses increasingly applied to ICL. There is great merit in those approaches, which expose the shortcomings of the discipline and cause us to reconsider our understanding of particular aspects of ICL. Yet if the aim is to sketch out possible reforms or alternative legal norms and structures, then there must be a more sustained engagement with its doctrinal and theoretical aspects. As was recently expressed to me by two South Asian TWAIL scholars, there is a need for “less poetry” and “more law” if actual change is to take place. To parse this concern in slightly different terms, there is a danger that the radical critiques only preach to the choir, without engaging the lawyers and policy makers who shape the actual structures being critiqued. Hence this dissertation addresses the criminal law of international courts and tribunals on its own terms in order to explain why ICL should be reformed in ways that substantially affirm the liberal principles that ground it, instead of merely gilding international courts in the hues of equality and fairness.   In a recent address to an international gathering of TWAIL scholars, Abi-Saab declared TWAIL’s separateness from Critical Legal Studies, saying that while he shares much of the CLS critique, he offers a key difference: “I am for constructive criticism.”25 Thus TWAIL scholars have a responsibility to deconstruct the law, showing that the rules that look objective and natural in fact reflect particular interests and particular values; they also have an obligation to reconstruct the law, by proposing roadmaps and blueprints of alternatives. There are many alternatives and complements to international criminal justice already; truth commissions, reparations, amnesties, local trials and others. This dissertation                                              25 Georges Abi-Saab, The Third World Intellectual in Praxis: Confrontation, Participation or Operation Behind Enemy Lines, Closing Keynote - TWAIL Cairo Conference, American University in Cairo (24 February 2015).  18 seeks the alternatives that lie within ICL, and attempts to draw them out by examining ICL as both a problem of international law and as a problem of criminal law.    IV. STRUCTURE OF THE DISSERTATION  The emphasis on criminal law helps explain why this dissertation is titled “International Crime and the Politics of Criminal Theory”, as opposed to “A Third World Approach to International Criminal Law.” The difference is small but important. Whereas the latter can be problematized as a species of international law, the former emphasizes the criminal law concepts at the core of the ICL project. It also helps explain some of the exclusions in this dissertation.  This project examines ideas of crime in international law; the justifications offered in defense of the harms inflicted by criminal punishment; the relationship between the goals of ICL and the protective shield of state sovereignty. Other vital topics are not considered, except to the extent that they contribute to our understanding of the other issues. For example, vexing questions of attribution — the proper scope of extended liability theories such as joint criminal enterprise, or how corporate criminal responsibility should be formulated in international law — are not considered here. Rather, the emphasis is on a global analysis of the intersections of international law and criminal law in areas that dovetail well with TWAIL analyses of ICL, and that are in some ways fundamental to the establishment of any regime of ICL, whether it involves extended liability doctrines or corporate criminal responsibility or not. In a sense, it is an examination of some of the ‘first principles’ of international criminal justice, an analysis of the basic concepts that shape or explain ICL’s operat